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9,645,500 | 2023-08-22 21:27:01.711952+00 | Larsen | null | OPINION OF THE COURT
LARSEN, Justice.
The issue presented for our consideration is whether a single, unanswered question alluding to alleged unrelated criminal activity1 warrants the granting of a new trial despite the fact that an immediate cautionary instruction and a proper direction in the charge was given to the jury.
On May 6, 1983, at approximately 1:30 a.m. Allan Joseph Nowicki was shot, in the back, with a .38 caliber handgun at his residence in Tinicum Township, Pennsylvania. Stephen Quintín Morris (appellee) was arrested on May 13, 1983 and charged with attempted homicide, aggravated assault, simple assault, recklessly endangering another person and possession of an instrument of crime.
*172Appellee was found guilty on all charges and filed a Motion In Arrest of Judgment and For A New Trial, alleging, inter alia, that the trial court erred in allowing the Commonwealth to cross-examine him concerning an alleged unrelated crime. Appellee’s motion was denied. The basis for the denial of the motion was that the curative instruction given to the jury eradicated any taint of prejudice and thus assured appellee of a fair trial. The trial court also found that “the offense alluded to in questioning, carrying a weapon without a permit, is not, as a general matter, of such a heinous nature as to highly inflame the passion or prejudice of the jury.” Slip opinion at 4. Appellee was sentenced to 5 to 10 years imprisonment on the attempted homicide and aggravated assault charges; 1 to 2 years imprisonment, to be served concurrently, on the recklessly endangering charge and 1 to 5 years imprisonment, to be served consecutively, on the possession of an instrument of crime charge.
Appellee then appealed to Superior Court.2 By memorandum opinion filed May 3, 1985, appellee’s judgment of sentence was vacated and the case remanded for a new trial. Commonwealth v. Morris, 345 Pa.Super. 619, 496 A.2d 853 (1985) [table].3 The Superior Court found the *173reference to alleged unrelated criminal activity engaged in by appellee to be prejudicial and that, “there is no doubt that the offensive testimony was elicited deliberately. The curative instructions, although prompt, could not overcome the prejudice.” Mem. op. at 5. This Court granted the Commonwealth's petition for allowance of appeal and we now reverse.
During cross-examination of appellee, appellee testified that he had “all types of guns,”4 that he was a gun collector and that all of his guns were in the Bahamas. Upon further questioning, appellee admitted that he owned approximately six .38 caliber guns (the caliber used to shoot the victim), that he did, in fact, have approximately three different guns in the United States — a .38, a .44, and a .41 Magnum and, that he had a gun “for protection” at the liquor store, where he worked, in New Jersey. During the course of cross-examination of appellee, the following exchange, which is the focus of this case, took place:
BY MR. GOLDMAN [for the Commonwealth]:
*174Q Are you licensed in the United States to carry a firearm?
A Yes.
Q You are?
A Yes, permit.
Q Where did you obtain that permit?
A Miami, Florida.
Q For just Florida?
A Yes.
Q Do you have that permit in your possession now? A No.
Q Did you have it in your possession when you were arrested?
A No.
Q Did you have a permit to carry a possessive firearm in New Jersey?
A No.
Q But yet, in violation of the law, you possess this firearm in New Jersey ?
BY MR. NASSHORN [counsel for appellee]: Objection. THE COURT: Sustained.
Members of the jury, that is not an issue in this case and it’s not to be considered.
This case to be decided based on the evidence presented as to whether or not you believe beyond a reasonable doubt that the Commonwealth has sufficient evidence to convict the defendant of some or all of the charges involved. You are not to consider anything like that.
Transcript at p. 198-99. (emphasis supplied) In the charge to the jury, the trial court provided further curative instructions.
There has been some reference in this case, although a passing reference, to whether or not the defendant had a gun permit____ You’re not to try, to speculate as to whether the defendant in fact committed other crimes. You are to zero in on what occurred in the early morning *175hours of May 6, 1983, and of course the other facts in the case.
Transcript at 251-52.
Appellee argues that reference to his alleged prior criminal activity was prejudicial and stripped him of the presumption of innocence. The Commonwealth argues that the line of questioning was to impeach appellee and to show that appellee had access to firearms previously purchased by him and that any prejudice that may have resulted from the one question was cured by the immediate cautionary instruction given to the jury. We agree.
Our review of the grant or denial of a new trial is limited to determining whether the trial court abused its discretion or committed an error of law. Commonwealth v. White, 482 Pa. 197, 393 A.2d 447 (1978). The trial court, in the instant case, was correct in denying appellee’s motion for a new trial.
As a general rule, evidence of crimes unrelated to the charge for which the defendant is being tried, is inadmissible. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973).5 There is no per se rule that requires a new *176trial for a defendant every time there is a reference to prior criminal activity. Commonwealth v. Heaton, 504 Pa. 297, 472 A.2d 1068 (1984). “[W]e have never ascribed to the view that all improper references to prior criminal activities necessarily require the award of a new trial as the only effective remedy.” Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977). Further, the reference to prior criminal activity must be prejudicial to the defendant, with prejudice resulting “where the testimony conveys to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.” Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979) (emphasis in original omitted).
However, it is possible to eradicate any prejudice resulting from reference to prior criminal activity by the defendant.
Our decisions have indicated that there are situations where the taint, resulting from an improper reference to an unrelated criminal act, may be expunged without resort to the extreme remedy of aborting an otherwise fair trial. It is suggested that our decisions in Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973) and Commonwealth v. Allen, supra [448 Pa. 177, 292 A.2d 373 (1972) ] would indicate otherwise. We do not agree. In Groce, supra and Allen, supra, the challenged references to prior and unrelated criminal activities were permitted by the trial court for the jury’s consideration. In the instant action, the testimony was stricken and the jury immediately cautioned.
Commonwealth v. Williams, 470 Pa. at 178, 368 A.2d at 252. An immediate curative instruction to the jury may alleviate any harm to the defendant that results from reference to prior criminal conduct. See, Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977) (jury was instructed to disregard a witness’s testimony that he had previously seen defendant “work people over”); Common*177wealth v. Williams, supra, (jury was instructed to disregard a witness’s testimony concerning defendant’s unrelated use of drugs); Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978) (jury instructed to disregard testimony concerning a robbery for which defendant was charged but not then being tried); and Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981), (jury instructed to disregard a witness’s testimony concerning a prior burglary of the same residence for which defendant was then on trial).
“[Wjhether the exposure of the jury to improper evidence can be cured by an instruction depends upon a consideration of all the circumstances.” Commonwealth v. Richardson, supra, 496 Pa. at 526, 437 A.2d at 1165. One of the circumstances to be considered is the nature of the crime. The instant case presents us with a single, unanswered question asked of appellee alluding to his alleged violation of the law of New Jersey by possessing a firearm without a permit. There is no doubt that the Commonwealth’s question was improper. This could have conveyed to the jury, with possible resultant prejudice to appellee, the existence of prior criminal activity. However, we agree with the trial court that the alleged offense alluded to, carrying a firearm in New Jersey without a permit, is not of such a heinous nature as to highly inflame a jury. Possession of a firearm without a permit is not the type of crime, the nature of which is likely to cause a jury to be so incensed as to lose sight of the ultimate question before them — whether appellee shot the victim.
An additional circumstance to be considered is whether or not the trial court gave cautionary instructions to the jury. After an inference of unrelated criminal activity has been conveyed to a jury, minimally, cautionary instructions must be given. In the instant case, immediately after the question was asked, and prior to any answer being elicited from appellee, the trial court sustained the objection of *178appellee’s counsel and immediately cautioned the jury to disregard any reference to alleged prior criminal activity on the part of appellee. No motion for mistrial was made by appellee’s counsel at this time, indicating his satisfaction with the instruction to the jury. The trial court, in the charge to the jury, again admonished the jury to disregard any reference to alleged prior criminal activity on the part of appellee. No objection to this charge was made by appellee, indicating his satisfaction with the charge. We find, in the instant case, that any prejudice to appellee from the limited reference to alleged prior criminal activity was effectively neutralized by the trial court’s immediate cautionary instruction to the jury and admonition in the jury charge. See, Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680, cert. denied, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974) (improper comment by the Commonwealth cured by immediate cautionary instruction and jury charge).
A defendant is entitled to receive a fair trial but not a perfect trial. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). A review of the record as a whole reveals that appellee did receive a fair trial. The Commonwealth’s error was cured by the cautionary instruction and the trial court was correct in its denial of the motion for new trial.
The order of Superior Court vacating appellee’s judgment of sentence and remanding the case for new trial is reversed and appellee’s judgment of sentence is reinstated.
HUTCHINSON, J., filed a concurring opinion.
. Although appellee refers to the matter as unrelated criminal activity, from the record, we do not know if possession of a firearm without a license is indeed a crime in New Jersey; hence we shall refer to the matter as alleged criminal activity.
. Appellee’s trial counsel is also serving as his appellate counsel.
. It appears appellee attempted, in his appeal to Superior Court, to frame the issue surrounding the introduction of alleged unrelated criminal activity as grounds for a mistrial. The Superior Court stated, “appellant [appellee herein] contends the lower court erred in failing to order a mistrial after the Commonwealth’s attorney elicited testimony on unrelated criminal acts from him on cross-examination. He requests discharge or a new trial." Mem. op. at 1. We note that this statement was the first indication that appellee attempted to raise the issue of a mistrial surrounding this particular event. Rule 1118(b), Pa.R.Crim.P. states, “When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.” Rule 1118, Pa.R.Crim.P. Examples of manifest necessity allowing the trial judge to declare a mistrial are contained in Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616, cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974) (during a murder trial, the court learned that the father of the victim was the tipstaff who was attending the jurors); Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 *173(1973) (jury declared themselves hopelessly deadlocked and several jurors needed medical attention) (plurality opinion); and, Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983) (jury declared itself deadlocked). In the instant case, appellee's counsel did not request a mistrial at the time the Commonwealth made reference to alleged prior criminal conduct by appellee. Further, this reference does not constitute manifest necessity so as to justify the court declaring a mistrial, sua sponte. The rule is that double jeopardy attaches if a mistrial is declared without manifest necessity or without the request of the defendant. Commonwealth v. Mehmeti, supra. As this court held in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) , allegations of basic and fundamental error no longer serve to enable parties in criminal matters to seek reversal based on alleged errors not properly raised below. Appellee's counsel did not raise, in the court below, a request for a mistrial or an allegation that the court itself should have declared a mistrial when the Commonwealth attempted to elicit testimony concerning an alleged prior unrelated criminal act. Appellee has waived any issue of a mistrial surrounding this event.
However, Superior Court framed the question on appeal as "whether the Commonwealth attorney’s actions warrant a new trial.” Mem. op. at 1. We will address that issue.
. Appellee testified “I have had 38’s. I have had 44’s. I have had 41’s. You name it I have had it.” Transcript at 193.
. There are exceptions to this general rule.
[E]vidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial-in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.
Commonwealth v. Peterson, 453 Pa. 187, 197-8, 307 A.2d 264, 269 (1973). This Court created another exception in Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985) where we held, "when there is evidence that a statement about prior criminal activity was made by the defendant in order to threaten and intimidate his victim, and when force or threat of harm is an element of the crime for which the defendant is being tried, such evidence is admissible.” 508 Pa. at 205, 495 A.2d at 179. |
9,645,501 | 2023-08-22 21:27:01.716757+00 | Hutchinson | null | HUTCHINSON, Justice,
concurring.
I concur in the result. As the majority implies in footnote 3, at 172-173 n. 3, appellant waived the only issue in this case by failing to move for a mistrial at trial. Thus, I would simply hold that since the issue was not raised below it is waived. |
1,516,371 | 2013-10-30 06:32:53.72155+00 | Hutchinson | null | 513 Pa. 192 (1986)
519 A.2d 385
Glenn C. HUTCHISON and Virginia Hutchison, his wife, Appellees,
v.
SUNBEAM COAL CORPORATION, Appellant.
Supreme Court of Pennsylvania.
Argued September 17, 1986.
Decided December 16, 1986.
*193 *194 Leo M. Stepanian, Stepanian & Muscatello, Thomas W. King, III, Dillon, McCandless & King, Butler, for appellant.
Charles E. Gutshall, Baskin Flaherty Elliott & Mannino, P.C., Philadelphia, for amicus curiae Pennsylvania Coal Mining Ass'n.
Henry Ingram, Thomas C. Reed, Rose, Schmidt, Chapman, Duff & Hasley, Pittsburgh, for amicus curiae Keystone Bituminous Coal.
Peter H. Shaffer, Butler, for appellees.
Before NIX, C.J., and LARSEN, FLAHERTY, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
HUTCHINSON, Justice.
Appellant, Sunbeam Coal Corporation, appeals by allowance Superior Court's order reversing Butler County Common *195 Pleas. 349 Pa.Super. 625, 503 A.2d 54. Common Pleas had denied appellees relief in their suit for a declaratory judgment. The court construed a coal "lease" they had granted appellant to continue as long as appellant paid minimum advance royalties to appellees, Glenn and Virginia Hutchison.[1] As stated, Superior Court reversed Common Pleas, holding the lease had expired. The court reasoned that such leases contain an implied duty to mine diligently which appellant Sunbeam breached. Superior Court erred in implying a general covenant to mine into coal leases which provide for minimum advance royalties. Nevertheless, Superior Court correctly held that the term of this particular lease had expired. Therefore, we affirm.
Appellees, Glenn and Virginia Hutchison, are the owners of 85 acres of land in Oakland Township, Butler County. On December 14, 1976, they executed an "Option and Lease Agreement" with appellant Sunbeam Coal Corporation. The agreement provided, inter alia, for the payment of minimum advance royalties for at least three years should Sunbeam choose not to actively engage in the extraction of coal from the demised property. The parties differ over whether the three year term is a minimum term during which appellant coal company cannot terminate without payment of royalties or a maximum term during which the lease will continue in the absence of mining. In the event mining operations should commence, the agreement provides that Sunbeam is to pay to the landowner royalties in the amount of one ($1.00) dollar per net ton (2,000 pounds) of coal removed. The agreement gave the coal company an option to enter into a lease for the purpose of extracting the coal in place under appellees' land pursuant to terms and conditions also set forth in the December 14, 1976 agreement. *196 Appellant made a timely exercise of its option on June 1, 1977 and began paying minimum royalties on September 1, 1977. The Hutchisons received and cashed minimum advance royalty checks covering royalties due through December, 1979, three years after the signing of the document.[2] Contending the lease had then expired, the landowners refused minimum advance royalty checks tendered after January of 1980 because no mining had begun.
Appellees then sought declaratory relief, pursuant to the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, and asked Butler County Common Pleas to declare that the lease had terminated three years after the execution of the document. Appellee Glenn Hutchison, Homer Rodgers, leasing agent for the Sunbeam Coal Corporation, and Attorney Leo Stepanian, drafter of the lease for Sunbeam, all testified before Common Pleas as to the meaning of the document and the circumstances attendant to its execution. The court examined the lease and stated that appellee Hutchison had simply misinterpreted the express provisions of the lease. It held that as long as Sunbeam tendered minimum advance royalty payments the lease would continue. Superior Court reversed. We granted a petition for allowance of appeal to resolve the debate surrounding the terms of the lease and to examine the Superior Court decision in Frenchak v. Sunbeam Coal Corp., 344 Pa.Superior *197 Ct. 37, 495 A.2d 1385 (1985), implying a covenant to mine despite the payment of minimum advance royalties.
The Frenchak v. Sunbeam Coal Corp. decision, upon which Superior Court relied in the instant case, interpreted a lease document with the same language as the one here to give rise to a forfeiture favoring the landowner. Citing the landowner's inability to develop the demised property when burdened with a mineral lease, and the "stop-gap" nature of minimum advance royalties, the court held that "the law will imply a duty to mine, even in the face of minimum advance royalties." 344 Pa.Superior Ct. at 42, 495 A.2d at 1388. In this respect, Superior Court erred. In letting land for the extraction of minerals, an obligation to pay minimum advance royalties does not create an implied duty to mine under Pennsylvania law. We have never implied such a duty and decline to do so now.
In coal mining leases, where the consideration for the privilege of removing the mineral is a royalty on the amount extracted, it is common for the parties to stipulate that a minimum advance royalty will be paid to the landowner if no mining is done. See generally Lacoe v. Lehigh Valley Coal Co., 290 Pa. 495, 139 A. 140 (1927). In Hummel v. McFadden, 395 Pa. 543, 150 A.2d 856 (1956), this Court implied a duty to mine in a lease agreement which did not provide for minimum royalties in the absence of mining. There, the implied covenant imposed upon the mining company a duty to commence operations in order to provide the landowner some return on his agreement. Our holding in Hummel leaves the contracting parties free to bargain for a provision addressing the amount and type of consideration to be paid in lieu of forfeiture should the mining company fail to commence mining operations. Pennsylvania courts have reasoned that minimum advance royalties are in the nature of liquidated damages for the lessee's failure to mine. Pittsburgh National Bank v. Allison Engineering Co., 279 Pa.Superior Ct. 442, 447, 421 A.2d 281, 284 (1980); Muir v. Thompson Coal Co., 209 Pa.Superior Ct. 432, 435, 229 A.2d 480, 481 (1967); Greenough v. Colonial Colliery *198 Co., 132 Pa.Superior Ct. 270, 275, 1 A.2d 174, 176 (1938) (citing cases). Such reasoning recognizes minimum advance royalties as the consideration flowing from the coal company to the landowner in lieu of the tonnage royalties which would be paid if mining operations were undertaken. Implying a duty to mine in the face of a minimum advance royalty clause ignores the terms agreed to by the contracting parties.[3]
The law will not imply a different contract than that which the parties have expressly adopted. To imply covenants on matters specifically addressed in the contract itself would violate this doctrine. Greek v. Wylie, 266 Pa. 18, 23, 109 A. 529, 530 (1920); Reading Terminal Merchants Ass'n. v. Samuel Rappaport Assoc., 310 Pa.Superior Ct. 165, 176, 456 A.2d 552, 557 (1983). See also 11 Williston on Contracts § 1295 (3d ed. 1968) (implied term justifiable only when not inconsistent with express terms of contract and absolutely necessary to effectuate intent of parties). In Hummel v. McFadden, supra, the consideration flowing to the lessor was the expected receipt of tonnage royalties. Under that lease, the absence of a covenant to mine would have left the landowner without any consideration for his grant of the right to mine. In the present case, the parties have expressly agreed that minimum advance royalty payments of $420.00 per year shall be paid to the lessor if the lessee fails to work the mine. Therefore, during the lease term, whatever that term may be, there is no failure of consideration in the absence of mining and it is not necessary to imply a covenant to mine. The contracting parties themselves have dealt expressly *199 with the possibility of a failure to mine by providing for minimum advance royalties.[4]
Alternately, Superior Court's opinion seems to imply that this particular lease is properly interpreted as a lease for a maximum term of three years in the absence of mining. Therefore, our rejection of that court's rationale based on an implied covenant to mine does not relieve us of our obligation to examine the terms of this particular agreement to determine whether the three year period limits only the coal company's obligation to pay minimum advance royalties, or, conversely, the term of the lease, in the absence of mining operations. The lease provides that the coal operator shall have 180 days after the execution of the document to exercise his option to lease the land. The coal operator also covenants it will commence mining within 90 days after the exercise of the option to lease and, in the event mining does not begin, the coal company agrees to pay the landowner $420.00 per year in minimum advance royalties. Paragraph five, the controverted provision, states:
5. This lease shall continue for a period of 3 years from the effective date hereof or until all the coal which the Coal Operator determines can be mined, removed and sold with economy and profit has been removed or so long as minimum advance royalties are being tendered by the Coal Operator. Coal Operator may remove all equipment, buildings and machinery from the premises at the end of the term provided no royalty is then due, or Coal Operator may leave the same on the premises for a period of six months at its option.
The lease is a standard typewritten form drafted by the coal company and apparently utilized by it in all similar dealings. In this particular paragraph the only term negotiated by the *200 parties is the provision for three years which was inserted in a blank left vacant on the form.
Paragraph five raises difficult problems of construction for a court attempting to discern the parties' intent as to the lease's term when no mining operations have occurred. Appellant Sunbeam's interpretation of the express language in paragraph five would grant it an estate in perpetuity, a fee simple in the mineral in place, not determinable so long as Sunbeam tenders minimum advance royalties to the landowner. The landowners contend that such a construction would make the reference to three years a nullity. Superior Court determined that the lease provision contemplates termination upon the happening of any one of three conditions: the expiration of three years, the coal operator's determination that continuation of coal mining is no longer financially expedient or the cessation of minimum advance royalties. We agree with the result reached by Superior Court, not because of any implied covenant to mine, but because the lease on its face is ambiguous as to its term and the other available evidence favors appellees' interpretation.
A lease is a contract and is to be interpreted according to contract principles. Pugh v. Holmes, 486 Pa. 272, 284, 405 A.2d 897, 903 (1979). Determining the intention of the parties is a paramount consideration in the interpretation of any contract. Robert F. Felte, Inc. v. White, 451 Pa. 137, 143, 302 A.2d 347, 351 (1973); Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963). The intent of the parties is to be ascertained from the document itself when the terms are clear and unambiguous. Steuart v. McChesney, 498 Pa. 45, 48-49, 444 A.2d 659, 661 (1982); In re Estate of Breyer, 475 Pa. 108, 115, 379 A.2d 1305, 1309 (1977). However, as this Court stated in Herr Estate, 400 Pa. 90, 161 A.2d 32 (1960), "where an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is created by the language of the instrument or by extrinsic or *201 collateral circumstances." Id., 400 Pa. at 94, 161 A.2d at 34.
We first analyze the lease to determine whether an ambiguity exists requiring the use of extrinsic evidence. A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. Metzger v. Clifford Realty Corp., 327 Pa.Superior Ct. 377, 386, 476 A.2d 1, 5 (1984); Commonwealth State Highway and Bridge Authority v. E.J. Albrecht Co., 59 Pa.Commonwealth Ct. 246, 251, 430 A.2d 328, 330 (1981). See also Black's Law Dictionary 73 (Rev. 5th ed. 1979). The court, as a matter of law, determines the existence of an ambiguity and interprets the contract whereas the resolution of conflicting parol evidence relevant to what the parties intended by the ambiguous provision is for the trier of fact. Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332 (1957); Fischer & Porter Co. v. Porter, 364 Pa. 495, 72 A.2d 98 (1950). See generally 4 Williston on Contracts § 616 (3d ed. 1961).
In the case sub judice, paragraph five of the lease could arguably be interpreted as appellant urges. So construed, the payment of $420.00 per year in minimum advance royalties would indefinitely extend the lease term. However, this interpretation brings the first measure of the term, three years, into conflict with the third, "so long as minimum royalties are paid." Appellant's argument that this conflict can be resolved by treating the period in gross as merely a limitation on its obligation to pay minimum advance royalties is at best strained and rests wholly on the use of the word "or" to connect the series of events which describe the term. It is also inconsistent with the plain purpose of the paragraph in question, i.e., to describe and delimit the term of the lease, not the term during which minimum advance royalties should be paid. Alternatively, paragraph five can be interpreted to reflect the appellees' construction that minimum advance royalties are to be paid, following the failure to commence mining within 90 days of the coal operator's exercise of the option, but that the lease *202 expires three years after the option is exercised unless mining has then begun. This interpretation is not totally consistent with the use of the word "or," but seems more natural. In any event, since the provisions of paragraph five are reasonably susceptible to two interpretations, it is ambiguous and we must look at the extrinsic evidence.[5]
So doing, we are persuaded, as a matter of interpretation, that the parties intended to limit the lease term to three years after the first payment of minimum advance royalties unless mining had commenced in the meantime.[6] Homer Rodgers, then leasing agent for Sunbeam Coal, *203 testified as follows about the circumstances surrounding the insertion of the three year term into the blank space in paragraph five:
Q. And is it correct to say in this case you told Mr. Hutchison that a five year term was the normal term?
A. This is approximately what we do with all of them, approximately five.
Q. What was his response to that?
A. He would like to have it for three years.
Q. Then, what did you say?
A. I said that I would check with Sunbeam and see if we could do it on a three year period and which I did and came back and
Q. Let me just interrupt you. When you checked with Sunbeam, who did you check with?
A. Mr. Harger.
Q. And what did you say to Mr. Harger about this blank space that needed to be filled in?
A. I said, "On paragraph five, Mr. Harger, can we go for a period of three years instead of five years on that?" Mr. Harger
Q. What was his response?
A. He thought for a little bit and he said, "Yes, we can go for three years on that."
N.T. February 9, 1983 at 31-32.
The need to consult with a superior at Sunbeam points strongly to the parties' shared intent to treat the term in gross as a limit on the length of the demise to the coal company. If the lease could be extended in perpetuity through the payment of minimum advance royalties, there would be little need for the leasing agent, Mr. Rodgers, to seek approval before the insertion of a three year term in paragraph five.
The order of Superior Court is affirmed.
*204 McDERMOTT, J., did not participate in the consideration or decision of this case.
NIX, C.J., concurs in the result.
NOTES
[1] The term "lease" is in some respects a misnomer. What is really involved is a transfer of an interest in real estate, the mineral in place. Hummel v. McFadden, 395 Pa. 543, 552, 150 A.2d 856, 860 (1959); Shenandoah Borough v. Philadelphia, 367 Pa. 180, 186-87, 79 A.2d 433, 436, cert. denied, 342 U.S. 821, 72 S. Ct. 39, 96 L. Ed. 621 (1951). Common Pleas' construction gives the transfer involved the characteristics of a fee simple determinable in the coal, which the lease severs from appellees' interest in the surface.
[2] The document is ambiguous on its face as to when the three year period begins and ends, whatever purpose that period serves. Paragraph 5 (quoted in its entirety infra, at 389) of the document states, "This lease shall continue for a period of 3 years from the effective date hereof." The document itself is both a lease and an option. This leads to at least three possible interpretations of the phrase "effective date hereof" (emphasis added): (a) the lease terminates December 14, 1976, three years after execution of the lease-option document; (b) the lease terminates June 1, 1980, three years after exercise of the option; (c) the lease terminates September 1, 1980, three years after paragraph three's grace period for commencement of mining ends. The parties have argued only the question of whether three years measures the term of the lease or the time during which appellant must pay royalties. Either way, it leaves the beginning and end of the stated period uncertain. We need not address this issue, however, as our affirming Superior Court's holding that the lease term is only three years and not perpetual relieves us of the duty to construe the effective date of the lease term.
[3] This approach is followed in a number of jurisdictions. Inman v. Milwhite, 402 F.2d 122 (8th Cir.1968); Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 304 S.E.2d 365 (1983); Burnett Coal Mining Co. v. Schrepferman, 77 Ind.App. 45, 133 N.E. 34 (1921); Continental Fuel Co. v. Haden, 182 Ky. 8, 206 S.W. 8 (1918); Olson v. Pedersen, 194 Neb. 159, 231 N.W.2d 310 (1975); Frierson v. International Agricultural Corp., 24 Tenn.App. 616, 148 S.W.2d 27 (1940); Vitro Minerals Corp. v. Shoni Uranium Corp., 386 P.2d 938 (Wyo.1963).
[4] The parties to a mineral lease are free, of course, to bargain for a duty to mine in addition to the payment of minimum advance royalties. See Chauvenet v. Person, 217 Pa. 464, 66 A. 855 (1907) (lease containing express provision mandating a forfeiture after one year of inactivity despite the payment of minimum advance royalties).
[5] The resolution of this matter implicates two well-settled rules of construction. First, in determining the intention of parties to a written contract, the writing must be construed against the party drafting the document. Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986); Central Transportation, Inc. v. Board of Assessment Appeals of Cambria County, 490 Pa. 486, 496, 417 A.2d 144, 149 (1980); Burns Manufacturing Co. v. Boehm, 467 Pa. 307, 313 n. 3, 356 A.2d 763, 766 n. 3 (1976); Restatement (Second) of Contracts § 206 (1981). Second, a lease will not be construed to create a perpetual term unless the intention is expressed in clear and unequivocal terms. Sterle v. Galiardi Coal & Coke Co., 168 Pa.Superior Ct. 254, 257-258, 77 A.2d 669, 672 (1951); W. Burby, Real Property § 68 at 159-160 (1965). Rules of construction do not relieve a court of the obligation to inquire into the circumstances surrounding the execution of the document. As stated in Burns Manufacturing Co. v. Boehm, supra, "[r]ules of construction serve the legitimate purpose of aiding courts in their quest to ascertain and give effect to the intention of parties to an instrument. They are not meant to be applied as a substitute for that quest." 467 Pa. at 313 n. 3, 356 A.2d at 766 n. 3. Our first obligation is to examine the extrinsic evidence and resort to rules of construction only should that examination prove fruitless.
[6] As noted supra, generally it is the court's responsibility to determine the existence of an ambiguity leaving the resolution of the ambiguity and the determination of the parties' intent to the finder of fact. In this case, a hearing was held before Common Pleas where both parties proffered their interpretation of the lease agreement. However, in deciding that the lease is perpetual on the continued payment of minimum advance royalties, Common Pleas simply relied upon the express terms of the lease making no findings on the evidence adduced at the hearing. We need not remand this matter for further findings as the record is clear on these facts. An appellate court may draw its own inferences and arrive at its own conclusions when a finding of fact is simply a deduction from other facts and the ultimate fact in question is purely a result of reasoning. Frowen v. Blank, 493 Pa. 137, 142, 425 A.2d 412, 415 (1981); Estate of McKinley, 461 Pa. 731, 734 n. 1, 337 A.2d 851, 853 n. 1 (1975). |
1,516,374 | 2013-10-30 06:32:53.759448+00 | Murray | null | 519 A.2d 1132 (1987)
Raymond SOUSA
v.
Rosalind CHASET, in her capacity as Executrix of the Estate of Nathan Chaset, M.D.
Nos. 84-229-Appeal, 84-324-Appeal.
Supreme Court of Rhode Island.
January 16, 1987.
*1133 John P. Garan, Providence, for plaintiff.
David W. Carroll, Roberts Carroll Feldstein & Tucker, Inc., Providence, for defendant.
OPINION
MURRAY, Justice.
This is an appeal from a directed verdict in a medical malpractice case. The plaintiff had alleged three counts: negligent diagnosis, res ipsa loquitur, and lack of informed consent.
In May of 1977, plaintiff was hospitalized for treatment of depression. His treatment included the administration of certain *1134 medications to control his depression. During his hospitalization, he had difficulty urinating and was examined by Dr. Nathan Chaset, who was a urologist employed by Urologic Services, Inc. After an initial examination, Dr. Chaset scheduled two surgical diagnostic tests a cystoscopy and a urethroscopy to ascertain the source of plaintiff's complaints. A cystoscopy is an examination of the bladder through a surgical instrument. A urethroscopy is a similar examination of the urethra. The plaintiff consented to these procedures after Dr. Chaset assured him no external surgical incision would be made.
A few days before plaintiff's scheduled tests, Dr. Chaset was called out of town on a family emergency. He asked Dr. Harry Iannotti, another physician working for Urologic Services, Inc., to call plaintiff. Doctor Iannotti phoned plaintiff and asked him if he would prefer to be admitted to the hospital on the scheduled date with Dr. Iannotti as the treating physician, or if he would rather have the procedures rescheduled after Dr. Chaset returned from his family emergency. The plaintiff agreed to be admitted with Dr. Iannotti as the treating physician.
After reviewing plaintiff's history from Dr. Chaset's notes, Dr. Iannotti examined plaintiff and attempted to pass a urethroscope through the plaintiff's meatus, which is the opening of the urethra. The doctor was unable to pass the instrument due to the narrowing of plaintiff's meatus. Doctor Iannotti diagnosed meatus stenosis and performed a surgical procedure, a meatotomy, to enlarge the meatus. This was a separate procedure from the diagnostic procedures scheduled. After the surgery, plaintiff developed numerous complications including irritation of the penis and irregular urinary spray.
I
THE MOTION TO JOIN ADDITIONAL PARTIES
The plaintiff's first contention is that the trial court erred in not granting his motion to join Dr. Iannotti and Urologic Services, Inc. as necessary parties, pursuant to Rule 19 of the Superior Court Rules of Civil Procedure. The trial court denied the motion because plaintiff had filed his complaint in the action five and a half years earlier but waited until just four days before trial to move to join parties that he had known for years to be potential defendants.
Rule 19 mandates that "persons having a joint interest which is not also a several interest shall be made parties." Rule 20 allows that "[all persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief * * * arising out of the same transaction [or] occurrence * * *." The first rule pertains to necessary joinder of parties, the second to permissive joinder.
Here, plaintiff moved under Rule 19 to join necessary parties. For plaintiff to prevail on appeal, he must show that the trial court erred in not granting his Rule 19 motion because Dr. Chaset, Dr. Iannotti and Urologic Services, Inc. were jointly, and not severally, liable. If the parties have several liability, then Rule 20 was the rule upon which plaintiff's motion should have been based, and it was in the court's discretion not to grant such a motion, particularly on the eve of a trial that had been pending for half a decade.
The plaintiff argues that Dr. Chaset and Dr. Iannotti were partners by estoppel because, plaintiff alleges, Dr. Iannotti had represented to plaintiff that he and Dr. Chaset were "partners." The evidence produced at trial, however, proves otherwise. On the date of plaintiff's operation, Dr. Iannotti and Dr. Chaset were both employees of Urologic Services, Inc., which had been incorporated some ten months prior. They worked in office space which was rented by the corporation; the utilities and office overhead were paid for by the corporation. The doctors had employment contracts with the corporation and received *1135 their salaries from the corporation. The doctors were not partners at any time during which they treated plaintiff. Nor is there any evidence, other than plaintiff's allegation, that Dr. Iannotti represented himself and Dr. Chaset to plaintiff as partners.
For these reasons, the liabilities of Dr. Chaset, Dr. Iannotti and Urologic Services, Inc. were several, and the mandatory language of Rule 19 does not apply to them. Hence, it was not an abuse of discretion for the trial court to deny plaintiff's motion.
II
THE MOTION FOR DIRECTED VERDICTS
At the close of plaintiff's case, defendant moved for directed verdicts on all three counts. The trial court granted the motion, and plaintiff appeals this decision.
In considering a motion for a directed verdict, the trial court should review the evidence in the light most favorable to the nonmoving party without weighing the evidence or the credibility of the witnesses, and extract from the record only the reasonable inferences that support the nonmoving party's position. If, after such review, the court finds no issues upon which reasonable persons might draw conflicting conclusions, the court should grant the motion. On appeal, we use the same criteria in reviewing the motion. Powers v. Carvalho, 117 R.I. 519, 524-25, 368 A.2d 1242, 1246 (1977).
Negligence
The plaintiff alleged three causes of action stemming from his surgery: negligence, res ipsa loquitur and lack of informed consent. To sustain a cause of action in negligence, a plaintiff must "establish a standard of care as well as a deviation from that standard". Marshall v. Tomaselli, 118 R.I. 190, 196, 372 A.2d 1280, 1283 (1977). This court has said, in describing a physician's standard of care, that
"[a] physician is not a guarantor of either a correct diagnosis or a successful course of treatment. While there is no duty to cure, a physician is bound to exercise the same degree of diligence and skill as physicians in good standing engaged in the same type of practice in similar localities in like cases. We have repeatedly said that, as a general rule, a departure from this standard of care, whether it be at the diagnostic or treatment stage, must be established by expert testimony, except if the lack of care is so obvious as to be within the [layperson's] common knowledge." Young v. Park, 417 A.2d 889, 893 (R.I. 1980).
Here, plaintiff provided no expert testimony to show how anything Dr. Chaset had done departed from the standard of care that he should have provided. The plaintiff's urological condition, and the treatment he received or should have received for the same, were matters beyond the obvious common knowledge of the jury. The diagnostic tests of a urethroscopy and a cystoscopy, the surgical procedure of a meatotomy, and the possible or probable side effects of specific medications plaintiff was taking, are all matters beyond the ordinary knowledge of laypersons. For example, though laypersons might be expected to know that medications have side effects, they cannot be expected to know that a particular medication such as Sinequan, which plaintiff was taking, can cause side effects such as urinary retention. Expert testimony is needed to explain such specifics, as well as what proper procedures and alternatives are available to a physician once it has been established that a patient's condition was caused by medication. Expert testimony is then needed to show why the procedures followed by the defendant physician were negligent, and not legitimate, alternatives.
The plaintiff did try to solicit expert testimony by subpoenaing a urological expert, Dr. John Lawlor, to testify. The doctor, however, did not wish to testify on behalf of plaintiff. The doctor knew little *1136 about the case (he was not plaintiff's treating physician), and objected to testifying. The trial court properly sustained Dr. Lawlor's objection because, as we explained recently in Ondis v. Pion, 497 A.2d 13, 18 (R.I. 1985), and some time ago in L'Etoile v. Director of Public Works of Rhode Island, 89 R.I. 394, 153 A.2d 173 (1959), it is the obligation of the party desiring expert testimony to obtain the services of a qualified individual on a voluntary basis. An expert who has not been engaged, but only subpoenaed, cannot be compelled to give opinion testimony against his or her will.
Since no other expert testimony was presented to show how Dr. Chaset may have violated any duty of care owed to plaintiff, the trial court properly directed a verdict for defendant on the negligence count.
Res Ipsa Loquitur
In establishing a negligent event, the doctrine of res ipsa loquitur is available to a plaintiff who can satisfy three elements: (1) the event must be of a kind that does not ordinarily occur in the absence of negligence; (2) the agency or instrumentality causing the event must have been within the exclusive control of the defendant; and (3) the event must not have been due to any voluntary act or contribution on the part of the plaintiff. Montuori v. Narragansett Electric Co., 418 A.2d 5, 13 (R.I. 1980). Here, the event, the side effects from a surgical operation known as a meatotomy, may well occur in the absence of negligence. There are obviously legitimate purposes for such surgery. Further, Dr. Iannotti, and not Dr. Chaset, was the agent controlling the event. Doctor Chaset was not even in the State of Rhode Island at the time Dr. Iannotti decided to perform the meatotomy. Hence, the trial court properly directed a verdict on the res ipsa count.
Lack of Informed Consent
The plaintiff's third count alleges that the surgery performed on him was done without his consent. Even were this true, plaintiff still has no cause of action against Dr. Chaset. Doctor Chaset promised plaintiff that he would not perform surgery on plaintiff and Dr. Chaset did not in any way violate his promise. It was Dr. Iannotti who performed the surgery; Dr. Chaset was out of state at the time.
The plaintiff's theory is that Dr. Chaset is vicariously liable for Dr. Iannotti's surgical decisions. The plaintiff's vicarious-liability theory fails, however, because there was no evidence showing that Dr. Chaset and Dr. Iannotti were the agents or employees of each other. To the contrary, as was stated earlier, they were both employees of Urologic Services, Inc. Hence, the trial court properly directed a verdict on this count.
III
THE MOTIONS FOR A NEW TRIAL
After the trial court had directed verdicts in favor of defendant, plaintiff moved under Rule 59 for a new trial. The trial court denied the motion on the ground that the court lacked the jurisdiction to entertain the motion.
In Izzo v. Prudential Insurance Co. of America, 114 R.I. 224, 228, 331 A.2d 395, 397 (1975), we said that a trial court has no authority under Rule 59 to consider a motion for a new trial in a case once it has directed a verdict in that case. Since the trial court in this case had directed verdicts on all counts, it was correct in not considering plaintiff's motion.
The plaintiff has also moved, pursuant to G.L. 1956 (1985 Reenactment) § 9-21-5, for this court to grant him a new trial. The plaintiff, however, has produced no new evidence supporting his claim. And since the trial court's rulings on the law and its perception of the evidence were not erroneous, we find no basis on which to grant the motion. It is, therefore, denied.
IV
THE CONSTITUTIONAL ARGUMENTS
Finally, plaintiff raises the claims that two statutes, G.L. 1956 (1985 Reenactment) *1137 §§ 9-19-32 and 9-19-33, pertaining to informed consent and res ipsa loquitur, are unconstitutional. These claims were not raised below.
In Drake v. Popinski, 414 A.2d 468, 469 (R.I. 1980), we stated "the general principle that this court will not act on constitutional issues unless they have first been properly submitted on the record to the trial justice." We see no reason to deviate from that general principle here.
We have examined the remaining contentions advanced by the plaintiff and conclude that they are without merit.
For these reasons, the plaintiff's appeal is denied and dismissed. The judgments appealed from are affirmed. The papers of the case are remanded to the Superior Court. |
9,645,502 | 2023-08-22 21:27:04.350133+00 | Fogleman | null | John A. Fogleman, Justice.
Appellants ask that we reverse the trial court’s affirmance of an order of the Arkansas Commerce Commission authorizng the transfer of a certificate of public convenience and necessity. This certificate for the transportation of household goods was issued to one Homer Fisher on March 16, 1955. It covered irregular routes between points in Arkansas, but all shipments were required to originate or terminate in Mississippi County. Fisher entered into a contract with Branscum for the sale of these operating rights. The joint application of these parties was resisted by appellants, intrastate common carriers of household goods. Their protest was based upon the assertion that the certificate was dormant for failure to render reasonably continuous service. Consequently they contend that approval of the transfer is inconsistent with the public interest. One of the appellants held a virtually identical certificate which he had leased to Branscum.
Provision for transfer of certificates is contained in Ark. Stat. Ann. § 73-1767 (b) (Repl. 1957). Transfer is prohibited when the Arkansas Commerce Commission finds that such action will be inconsistent with the public interest or where it appears that reasonably continuous service has not been rendered under the authority granted by the certificate prior to the application.
After a hearing on November 23, 1966, the Arkansas Commerce Commission approved the transfer. It found that the certificate had not been dormant within the meaning of § 14, Act 397 of 1955 (§ 73-1767). It made a specific finding that Homer Fisher had been ill for a considerable period of time and unable to attend, to business such as he normally would have conducted: had he not become ill, but that afterwards he had been1 attempting to carry on his business.
The scope of our review on appeals is governed by § 73-134. This section provides that findings of fact of the circuit court are not binding on this court. On the other hand, it requires that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable. The circuit court is required to review the order upon the record presented and to enter its finding and order thereon.
In the opinion in Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604, the variable, apparently inconsistent and sometimes confusing statements in some of our opinions with reference to the meaning and application of this statute were harmonized. It is now clear that the review therein provided for is that which we make in chancery cases. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S. W. 2d 372. In doing this, we follow these rules:
1. The trial is de novo upon the record — not as if no judgment had been rendered, but for the purpose of determining whether the judgment is against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S. W. 481; Missouri Pacific RR. Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644; Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604.
2. Neither the findings of the circuit court nor the findings of the Commission are binding on appeal, but we will not upset the findings of the Commission unless they are clearly against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truca Service, Inc. v. Missouri & Arkansas Transportation Co., 203 Ark. 506, 157 S. W. 2d 512; Arkansas Express, Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 205 S. W. 2d 716; Wisinger v. Stewart, supra; Washington Transfer & Storage Co. v. Harding, 229 Ark. 546, 317 S. W. 2d 18.
3. In weighing the evidence, we do not substitute our judgment for that of the Commerce Commission. We will accord due deference to the Commission’s findings because of its peculiar competence to pass upon the fact questions involved and because of its advantage in seeing and hearing the witnesses during the full hearing. St. Louis S. W. Ry. Co. v. Stewart, 150 Ark. 586, 235 S. W. 1003; Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truck Service, Inc. v. Missouri & Arkansas Transportation Co., supra; Schulte v. Southern Bus Lines, 211 Ark. 200, 199 S. W. 2d 742; Wisinger v. Stewart, supra; Boyd v. The Arkansas Motor Freight Lines, Inc., 222 Ark. 599, 262 S. W. 2d 282; National Trailer Convoy, Inc. v. Chandler Trailer Convoy, Inc., 233 Ark. 887, 349 S. W. 2d 672.
4. The burden is on the appellant to show that the judgment is erroneous. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S. W. 481.
5. When the evidence is evenly balanced, the Commission’s views must prevail. Boyd v. The Arkansas Motor Freight Lines, Inc., supra.
In short, this court’s function is to inquire whether the determination of the Commission is contrary to the weight of evidence. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S. W. 2d 372. In so doing, we must not lightly regard the findings of the Commission. Superior Forwarding Co. v. Southwestern Transportation Co., 236 Ark. 145, 364 S. W. 2d 785.
Appellants now urge that the order approving the transfer is not supported by substantial evidence. The basis of their contention is that there was not substantial evidence to show that reasonably continuous service under the authority granted Homer Fisher had been rendered prior to the application for transfer.
Branscum testified that: During the four or five years h¿ had operated under the lease of Beckham’s certificate to the extent that it had been necessary for him to purchase additional equipment and to start construction of a new -warehouse; the population of the Blytheville area was increasing and industrial plants were moving in; he did considerable business because of the air base at Blytheville, and a lot of civilian moves were going on; to his knowledge, the only certificates for household goods carriers were those issued to Homer Fisher and three of the appellants, one of whom was previously Branscum’s lessor. Branscum also testified, over the objections of the protestants, that he had reviewed the books and records of Homer Fisher and made a list of the moves the latter had made outside the city limits of Blytheville in the preceding two or three years. The list showed 23 moves outside the city limits of Blytheville in 1963, 19 in 1964, 17 in 1965, and 24 in 1966. Although he had access to information as to origin and déstination, this was not shown on the list and it was very possible that most of the shipments during 1963 may have gone within a radius of a mile of Blytheville. He could not tell whether any of the moves on the list went to Little Rock or Texarkana or any other place in Arkansas. In the books he saw moves to Jonesboro and West Memphis.
Homer Fisher, at the time of the hearing, only owned one truck which he testified had been in operation continuously. He further testified that: He worked out of his home, a telephone there being listed in his name; he had two part-time employees; he had no warehouse; he was personally in charge of the operation; he had transported one or two or maybe more shipments between various points and places in Arkansas and Mississippi County in 1966; they originated in Blytheville, one going to Jonesboro and one to West Memphis; he handled 24 or 34 shipments to points around the edge of Blytheville, but outside the city limits, over the preceding two years; he had brought one or two to Little Rock and some to West Memphis during the life of the permit; he had not been able to handle more than a very few shipments during the preceding two years because of illness; he judged that there were five or six shipments under the permit in Mississippi County just outside the edge of Blytheville during the month of September 1966; to the best of his memory he handled movements under the permit in August 1966, but didn’t know where they went; he had records that would show movements during each month of 1966, but did not have them with him; he moved one or two to Fort Smith and one to Prescott and moved into Jonesboro in 1966, but couldn’t remember any others; the service he had rendered in 1965 had been less because he had been in the hospital most of the time; the bulk of his operations under the permit was conducted in the immediate vicinity of Blytheville; he drove his truck himself; he was advertising in the telephone book, in his front yard and on his truck, and by getting in contact with persons, making solicitations and trying to get business; he was incapacitated from July 1965, up until the first of September, but for the preceding two months he had been up and moving people.
Protestants offered no evidence pertaining to the issues.
We are unable to distinguish this case from The Arkansas Motor Freight Lines, Inc. v. Howard, 224 Ark. 1011, 278 S. W. 2d 118. There the applicant for transfer was authorized to operate as a motor carrier of a wide range of commodities upon designated highway routes extending into every section of the state. It had been unable to exercise its authority to any great extent. It had only one terminal. Its rolling stock consisted of one truck, three tractors and four semi-trailers. It had carried only 39 shipments of freight during its thirteen-month existence, although it advertised for business and never refused any cargo tendered. The Commission found that reasonably continuous service had been rendered and this court affirmed. Language in that opinion which we here deem appropriate is as follows:
“* * * Inasmuch as the Commission’s knowledge of its own specialized field is undoubtedly superior to ours, its judgment on a question of fact is not to be set aside unless clearly against tbe weight of the testimony. Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604. No difficult problems of law were presented to the Commission in this case. Whether there is a need for the whole range of facilities that might be made available under the Atlas certificate is not the question, for the issue of public convenience and necessity was determined when the permit was granted. Nor was Atlas required to show that it had fully utilized the possibilities lying at its disposal; no law or regulaton requires that a motor carrier systematically travel over all its territory with trucks that are empty for want of business.
* * [T]he Commission was warranted in concluding that the Atlas certificate has not been dormant. This little company, with relatively modest assets, held itself in readiness to render service, advertised its existence, and accepted whatever business was offered. Under the statute complaint might have been made that it was not transporting ‘all the commodities authorized . . . over all the routes authorized,’ Ark. Stats., § 73-1715; but no such complaint ivas lodged by the Commission, the public, or any competing carrier. In this proceeding the issue is narroAved to whether the company’s service has been reasonably continuous; the Commission’s affirmative answer is not contrary to the evidence.”
In this case, too, the certificate might have been revoked by the Commission upon complaint of any of the protestants, or upon its oavh motion, on the very ground of appellants’ protest. See § 73-1767 (a). The fact that no such action was instituted could well be the basis for an inference that appellants’ anxiety about the transfer is due to the prospect of a more active utilization of the authority by a healthy proprietor. Appellants argue in their brief that we ought not to permit a change in the competitive situation in Blytheville and say that they are willing for Fisher to continue operations under the certificate. According to the opinion in the cited case, snch a change is not a basis for a finding that the transfer is inconsistent with the public interest.
As a point for reversal, appellants allege error in the admission of the lists prepared by Branseum from the Fisher books. Since they , were not business records kept in the ordinary course of business, they contend that these exhibits were inadmissible under either the best evidence rule or Ark. Stat. Ann. § 28-928 (Repl. 1962). Appellants’ argument on this point is interwoven into, and forms a part of the basis for, their contention that there is not substantial evidence to support the Commission’s findings. Even without these lists, the testimony would have been sufficient to meet the test laid down in the Howard case. Furthermore, it is not always necessary or advisable that boards, commissions and agencies of the nature of the Commerce Commission be required to adhere strictly to the rules of evidence governing courts in jury trials. See Piggott State Bank v. State Banking Board, 242 Ark. 828, 416 S. W. 2d 291. The necessity for strict adherence to rules of evidence by this Commission has also been eliminated by statute. The Arkansas Commerce Commission came into existence by virtue of Act 132 of 1957 (§§ 73-151 to 73-162). Under that Act all authority, powers, duties, privileges and jursdiction of the Arkansas Public Service Commission with respect to regulation of carriers were expressly conferred on the new Commission. We have recognized that procedure on appeals from the Commerce Commission is governed by the statutes which applied to the Arkansas Public Service Commission as the successor to the Corporation Commission which, in turn, was the successor to the Railroad Commission. See Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604. By the same process of reasoning, the statute on rules of evidence governing the Public Service Commission while it had jurisdiction of matters pertaining to carriers should be applied. These rules were set out as a part of the same Act which changed the name of the Arkansas Corporation Commission to Arkansas Public Service Commission. Act 40 of 1945. Subsection A of § 2 of that Act (§ 73-127) provides that the Commission shall not be bound by the strict technical rules of .evidence, but may exercise such discretion as will facilitate its efforts to ascertain the facts bearing upon the right and justice of the matters before it. We cannot say that the Commission abused its discretion in admitting the evidence attacked.
The uncontradicted evidence offered by appellee is not too insubstantial to support the findings of the Commission. The judgment is affirmed.
Harris, C. J., George Rose Smith and Brown, JJ., dissent. |
9,645,503 | 2023-08-22 21:27:04.356166+00 | Brown | null | Lyle Brown, Justice,
dissenting. There is no substantial evidence to show that Homer Fisher rendered reasonably continuous service prior to the application for transfer. To the contrary, his own testimony shows the certificate was practically dormant.
Homer Fisher obtained his permit in 1955. He was authorized as a common carrier to transport household goods over the public' highways throughout the State. The only restriction on carriage was “that all shipments must originate or terminate within Mississippi County, Arkansas.” The history of his operation for the past four years indicates that practically all of his hauling was confined to Blytheville and the immediate vicinity. In those operations it should be pointed out that he needed no permit from the Commission. Ark. Stat. Ann. § 73-1758 (Repl. 1957). Transportation within a municipality “or within a commercial zone” is exempt from the permit requirements. The term “commercial zone” refers to any municipality and the area outside its corporate limits which is prescribed by the Interstate Commerce Commission as a commercial zone. Under the commercial zone table established by the ICC, the “Blythe-ville Zone” consists of the municipality and all unincorporated areas within four miles of its corporate limits. Code of Federal Regulations (1942) § 170.16 (3).
As to trips outside the city limits of Blytheville, appellee’s testimony was to the effect that Fisher made twenty-five such trips in 1963, nineteen in 1964, seventeen in 1965, and twenty-four in 1966. But of these trips, appellee offered proof of only four such trips being made beyond the Blytheville area within the last two years. Those consisted of trips to Jonesboro, Fort Smith, Prescott, and possibly West Memphis. In describing all other trips outside of Blytheville city limits, these expressions described the distance of these hauls: “just out of the edge of Blytheville,” and “in the immediate vicinity of Blytheville.”
The majority opinion gives credit to Homer Fisher for trips made within the commercial zone of Blythe-ville. Fisher is clearly not entitled to that credit.
The apparent failure of Homer Fisher to render a reasonably continuous service outside the Blytheville zone may well have been caused, in part, by his limited facilities. He possessed only one truck — a 1948 model which he acquired secondhand; it had a fifteen foot van-type bed, six to seven feet in width; he had no warehouse; he used his home as his headquarters; and he had two part-time employees. Homer testified that he was in the hospital during part of 1965, indicating that his illness affected his business. However, in that year he was able, according to his testimony, to do more local hauling than during any of the reported four years.
I cannot agree with the majority in making a favorable comparison of this case with Arkansas Motor Freight Lines v. Howard, 224 Ark. 1011, 278 S. W. 2d 118 (1955). Fisher possessed by way of equipment one secondhand truck of ancient vintage; Howard’s rolling-stock consisted of a truck, three tractors, and four semitrailers. Howard maintained a terminal at Pine Bluff; Fisher operated from his home. In the thirteen months prior to the Commission’s hearing in the Howard case, Howard transported thirty-nine shipments into most of the counties in which he was authorized to operate; in a two-year period, Fisher made only four trips under his permit authority.
Finally, I cannot agree with the majority that “when the evidence is evenly balanced the Commission’s views must prevail.” That statement is taken from an opinion written by Chief Justice Griffin Smith. Boyd v. Arkansas Motor Freight Lines, 222 Ark. 599, 262 S. W. 2d 282 (1953). The statement is clearly dictum. It weakens the salutary attempt of the majority opinion to clarify our scope of review. Furthermore, I cannot conceive it to be the law; in hearings before the Commission, one of the parties has the burden of proof. How can we say the burden is met “when the evidence is evenly balanced?”
Harris, C. J., and George Rose Smith, J., join in dissent. |
1,516,377 | 2013-10-30 06:32:53.807366+00 | Chapman | null | 420 S.W.2d 474 (1967)
J. A. ROBINSON SONS, INC., Appellant,
v.
Helen O. WIGART et al., Appellees.
No. 7727.
Court of Civil Appeals of Texas, Amarillo.
October 2, 1967.
Rehearing Denied October 30, 1967.
*478 Burford, Ryburn & Ford, Dallas, Underwood, Wilson, Sutton, Heare & Berry, R. A. Wilson, Amarillo, for appellant.
Warren Burnett and Robert D. Pue, Odessa, for appellees.
CHAPMAN, Justice.
Helen O. Wigart, her two minor children and the minor child of her deceased husband by a former marriage brought suit against J. A. Robinson Sons, Inc., for the wrongful death of William Robert Wigart, their husband and father. Texas Employers' Insurance Association, the workmen's compensation carrier for Wigart's employer intervened to assert its recoupment rights under the Workmen's Compensation Act. Wigart, an employee of Boman-Chase, was killed on August 1, 1963, when a welding shed fell from a flat-bed truck owned by Robinson and driven by Chester Britain, and struck Wigart. The trial court's judgment, based on a jury verdict, was rendered for the plaintiffs below.
Boman-Chase, a construction company, was employed by Phillips Petroleum Co. to dismantle a cooling tower which was located at a Phillips refinery. Approximately twelve of Boman-Chase's employees were engaged in this particular job. Some four days prior to the incident resulting in Wigart's death, Robinson was contacted by Phillips and made arrangements for Robinson to furnish a truck and trailer and a driver. The tractor or trailer was 8' × 28' with a capacity of 12 tons. The truck was used for the hauling of material from the dismantled cooling tower. When this was completed, a metal welding shed was placed on the trailer and moved to another site. The shed was constructed of corrugated iron, was approximately 28'-30' long and 10'-12' wide. While the shed was being unloaded it slid from the truck and struck Wigart, causing his death.
In response to Special Issues, the jury found: (1) Chester Britain was acting in the course of his employment for J. A. Robinson Sons, Inc.; (2) that Britain was negligent in slacking the winch line immediately prior to the accident; (2b) that such negligence was a proximate cause of Wigart's death; (4) that Wigart removed a pin at the rear corner of the trailer immediately before his fatal injury; (4b) that such action was not negligence; (5) that it was not open and obvious that Wigart might sustain an injury in the very manner in which he sustained his fatal injury; (5b) that he did not know and appreciate the danger; (6a) that Wigart did not fail to maintain proper lookout; (7) that a gust of wind was not the sole proximate cause of Wigart's death; (8) that Chester Britain was not a special or loaned employee of Boman-Chase; (9) that Wigart's death was not the result of an unavoidable accident. The jury awarded a total of $92,500.00 damages to Mrs. Wigart and the three minor children. Upon these findings, judgment was rendered for the plaintiffs and intervenor in the amount found by the jury.
Appellant's first group of points of error attack the judgment against it on the basis of Britain being a special or loaned employee of Boman-Chase. The jury found Britain was acting within the scope of his employment for appellant Robinson, and that he was not a special or loaned employee of Boman-Chase. Appellant contends there is no evidence and insufficient evidence to support these issues. Boman-Chase had a contract with Phillips Petroleum Company to dismantle the cooling tower. During the last four days of the job, Robinson, at Phillips' request, sent a truck and a driver *479 to the job for the purpose of hauling the dismantled materials to a designated location. The loading and unloading of the material was performed by employees of Boman-Chase. Robinson's driver only operated the truck and its equipment. No "swamper" or assistant was assigned by Robinson to Britain. The usual duties of such an assistant, such as giving signals to the driver, were performed by various employees of Boman-Chase. The particular job had been completed except for the moving of the welding shed. The shed was loaded upon the truck by means of pulling it upon the trailer with the winch line on Robinson's truck with the assistance of another winch truck not owned by Robinson. It was then secured on the trailer by means of chains and the winch line, and then moved approximately one mile to another location. It was during the process of unloading the shed from the trailer that Wigart was fatally injured. It was being unloaded by what was referred to as "shaking it off". The winch line was unwound two to three feet; the truck was then placed in reverse. It moved two to three feet when the driver applied the brakes. By repeating this process the shed was gradually moved toward the end of the trailer by its own momentum until it reached a "breaking point" and then it would slip from the trailer by its own weight. During this time Wigart was outside the truck on the right side and Miller, another Boman-Chase employee, was on the opposite side. After several "shaking" movements of the truck and while the winch line was loose, the shed fell from the trailer and struck Wigart.
One of the principal questions presented is whether Britain, a general employee of Robinson, became a special or loaned employee of Boman-Chase for this particular operation. A determination of this question calls for the consideration of many factors. It generally depends on which of the employers retains the right of control and direction over the employee and the job the employee was engaged in while performing the act complained of. 57 C.J.S. Master and Servant § 566, page 284-291. Restatement of the Law of Agency, Vol. 1, Section 227. The general rule was stated by our Supreme Court in Producers Chemical Company v. McKay, 366 S.W.2d 220 in the following language:
"If the general employees of one employer are placed under the control of another employer in the manner of performing the services, they become his special or borrowed employees. If the employees remain under control of their general employer in the manner of performing their services, they remain employees of the general employer and he is liable for the consequences of their negligence."
In McKay, the court lists certain factors to be considered where there is only an implied contract between the employers as to the right of control over the employee. These include the nature of the general project; the nature of the work to be performed by the machinery, and employees furnished; acts representing an exercise of actual control; the right to substitute another operator of the machine, etc.
It is undisputed there was no contract whereby Robinson expressly relinquished the right of control of Britain in the operation of the truck and its equipment. Our courts have repeatedly held that the decisive factor in this type of case is the control of the "machine" rather than the control of the results of the work desired. Insurors Indemnity & Insurance Co. v. Pridgen, 148 Tex. 219, 223 S.W.2d 217. Goodwin v. Wilhelm Steel Construction Co. (Tex.Civ.App.) 311 S.W.2d 510 (Writ Ref.). The proper operation of the truck and its winch and gears required some skill and knowledge of its operation. The job was of short duration. The relocation of the welding shed was to have been the last of the work to be performed by Britain on this particular job and this occurred on the fourth day. Employees of Boman-Chase loaded and unloaded the dismantled material *480 onto Robinson's truck and directed the driver where to haul it. There is no evidence Boman-Chase's employees exercised any control over Britain's operations of the truck or its equipment. This was Britain's responsibility. Robinson had the sole right to substitute another driver for its truck and Robinson charged Phillips by the hour for its truck and driver and the former paid Britain for his services. Under these facts, the only reasonable inference to be drawn is that Robinson, the general employer, had retained control over its driver.
However, appellant strongly urges that in performing the special act of "shaking off" the shed from the trailer, Britain was within the scope of the business of Boman-Chase and under Wigart's direction and control. They argue the unspooling of the winch line was an essential part of unloading the shed and that this operation was under the supervision of Wigart. Appellant's position is that the determining factor is Wigart's direction as to the manner in which the truck and winch were to be used to unload the shed and not the manner in which Britain shifted his gears or unspooled the winch line. Under the facts and circumstances of this case this contention is without merit. Insurors Indemnity & Insurance Co. v. Pridgen (supra), and Polanco v. Austin Bridge Company (Tex.Civ.App.) 348 S.W.2d 728. Wigart and Britain both decided the best method of unloading the welding shed was to "shake it off". Wigart designated the place to unload the shed. Britain placed his truck in position, and when Wigart indicated it was clear, Britain began the "shaking off". Britain decided when to begin each truck movement and when to unspool the winch. He operated the truck and gears without any direction or signal from Wigart. Britain was in full control of the truck and its equipment and how and when it was to be used. There was ample evidence to support the jury finding Britain was acting within the scope of his employment of Robinson and was not a loaned employee of Boman-Chase.
Appellant levelled numerous objections to Special Issue No. 1 and the accompanying definition of "course of employment". The issue inquired if Britain was acting within the scope of his employment for Robinson "at the time of the accident in question". It is urged the issue did not confine the question of employment to the "shaking off" operation; the issue was a comment on the weight of evidence in assuming Britain was to be viewed as Robinson's employee in the "shaking off" operation; and challenged the court's definition of "course of employment". The special issue, as framed, submitted an ultimate issue under the pleaded doctrine of respondeat superior. Appellant challenges the issue on the ground the issue should make reference to the time of the "shaking off" operation rather than at the time "of the accident in question" as the issue was quoted. The accident which caused Wigart's death occurred during the "shaking off" operation. In our opinion, the form of the issue was correct. It cannot be said the issue was confusing or misleading, nor was it a comment on the weight of the evidence. Le Sage v. Smith (Tex.Civ.App.) 145 S.W.2d 308 (Dism.Judg.Corr.). Sears, Roebuck & Co. v. Jones (Tex.Civ.App.) 303 S.W.2d 432 (Ref.N.R.E.).
In connection with this special issue, the court instructed the jury: "By the term `course of employment' is meant an act done in the furtherance of the employer's business and for the accomplishment of the object for which the employee was employed, whether on the employer's premises or elsewhere". This definition properly includes the elements of the term "course of employment" and properly applies the rule of respondeat superior. Texas Power & Light Co. v. Denson (Tex.Com.App.) 125 Tex. 383, 81 S.W.2d 36 (Opinion adopted). Sears, Roebuck & Co. v. Jones (supra).
By Special Issue No. 8 the trial court inquired: "Do you find from a preponderance of the evidence that on the occasion in question Chester W. Britain was not a special *481 or loaned employee of Boman-Chase?" Appellant urges error in the submission of this issue for the reason it was too broad and general and did not limit the inquiry to the unloading operation. Appellant's requested issue so limited the right of control to the particular operation but the requested issue was refused. In effect, the objections here stated are the same that were urged to Special Issue No. 1 previously discussed. We are of the opinion the issue as submitted was substantially correct for the reasons previously stated in our discussions of Special Issue No. 1.
In connection with Special Issue No. 8 the trial court gave the following instruction:
"By the term `special or loaned employee', as used herein, is meant a person who, though in the general employ of another company, is turned over to a second company to assist in the performance of the second company's employment and in doing and performing or assisting in the performance of the second company's employment, the employee in the general employment of another becomes subject to the control, supervision or direction of the second company to whom he is turned over, concerning all the details of the particular work being performed and consents to such control, supervision or direction by the second company.
"You are instructed that a transfer of control can be accomplished through implication arising from the circumstances of work done and to be done as well as by express words."
Substantially the same definition was used in Shell Oil Co. v. Reinhart, 375 S.W.2d 717 (Tex.Sup.). The instruction given contains the essential elements of a special or loaned employee relationship. Appellant's object that the explanation directed that the borrowing employer must have control of all of the details of the work and that the employee must consent to this control by the borrowing employer. It is true that there are cases which hold that an employee may become another's servant as to some acts and not as to others. Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94. However, we do not think such a rule renders the instruction given here erroneous. The language "concerning all the details of the particular work being performed" does not lend itself to the same meaning urged by appellant. The "consent" referred to in the definition refers to the lending employer and not to the loaned employee. We therefore hold the special issue and accompanying instructions are substantially correct. Appellant has cited no authorities and we have found none which hold to the contrary.
Appellant next contends there is no evidence and insufficient evidence to support the jury finding in Special Issue No. 2 that Britain was negligent in slackening the winch line. In deciding these questions we will adhere to the applicable rules set out in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660. In passing upon the "no evidence" point we consider only the evidence most favorable to the verdict and disregard the evidence to the contrary. Britain was operating the truck and its winch. After the truck had been spotted and the "shaking off" operation begun, the chains securing the welding shed on the truck had been previously removed. The only thing securing the shed on the trailer were the metal pins inserted along the sides of the trailer and the winch line. Both Britain and Miller testified the wind was blowing rather strongly. Britain testified the wind "at times it would blow real hard gusts; and then it would be a steady wind and blow at gusts * * *" He stated he could feel the wind and "it would just shake the whole truck". These conditions existed during the "shaking off" operation and when Britain had slacked off the winch line two or three feet. It was during this time a gust of wind blew the shed from the trailer. Claude Robinson, owner of appellant company, testified he would not expect one of his drivers to slack off the winch line without a signal to do so. It is uncontradicted Britain *482 did not unspool on Wigart's signal. He did this on his own volition. The truck was not moving when the shed slid off and Britain was not certain of the whereabouts of Wigart and Miller as the shed blocked his view. We believe there was probative evidence to support the jury verdict.
Miller had removed the pin on the back left side of the trailer and he testified Wigart seemed to be having difficulty removing the pin on the right side. However, the record does not show Britain was aware of this. Britain testified the truck was at a standstill and he was waiting for a clear signal from Wigart to again move the truck backward. While so waiting, the winch line was unspooled. Mr. Robinson testified he would not expect a driver to slack off the winch line unless signaled. He testified further the driver would continue without further signals. However, this was contrary to Britain's stated intention on the particular occasion. The evidence is substantially uncontradicted. The most apparent differences are the emphasis and interpretations placed on the evidence by the respective parties. The jury accepted appellees' version of the evidence. We cannot say the jury verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust.
Appellant further contends Special Issue No. 2 is not supported by the pleadings and urges error in that the issue predicates Britain's action in slackening the winch line under "the circumstances then prevailing". Appellee pleaded the appellant was negligent "in that defendant failed to keep a proper lookout for decedent, William Robert Wigart, in loosening a winch line on defendant's truck at a time when defendant's agent, servant and/or employee knew or should have known, that decedent, William Robert Wigart, was in the vicinity of the rear corner of defendant's truck * * *" Appellant contends the allegation related to lookout and not to the slackening of the winch line. The wording of the allegation may be improved upon but we think the pleadings do support the submission of the issue. It placed appellant on notice as to the facts relied upon to show negligence on the part of Britain. Appellee's whole case was tried upon the theory that Britain was negligent in unspooling the winch line under the conditions and circumstances present immediately prior to the fatal injury.
Appellant also challenges the evidence to support the foreseeability of proximate cause of Britain's alleged negligent act. The courts have allowed juries broad latitude to infer proximate cause from circumstances surrounding an accident. J. Weingarten, Inc. v. Brockman (Tex.Com.App.) 134 Tex. 451, 135 S.W.2d 698 (Opinion adopted). Houston Natural Gas Corp. v. Pearce (Tex.Civ.App.) 311 S.W.2d 899 (Ref.N.R.E.). To render a negligent act a "proximate cause" of an injury, the precise manner of the occurrence need not have been reasonably foreseen; but if consequences follow unbroken sequence, the fact the wrongdoer at the time of his original negligence might have foreseen, by the exercise of reasonable care, that a similar injury might result from such negligence, is sufficient to render such act a proximate cause. Southwestern Greyhounds Lines v. Wafer (Tex.Civ.App.) 208 S.W.2d 614 (Error Ref.). We conclude the evidence previously outlined is sufficient to support the finding of proximate cause.
Appellant takes the position that with the exception of the act of unspooling the winch line by Britain, there is no distinction between what Britain and Wigart knew or could have reasonably known as to the foreseeability of Wigart's fatal injury. The argument is that if the record does not support the findings of causation nor foreseeability as to Britain, the same conclusion must be reached as to Wigart. It follows, argues appellant, that if the record charges Britain with causation and foreseeableness of his acts, the same conclusion must be reached as to Wigart. It this be so, appellant contends, *483 the defenses of no duty and volenti become applicable and present a defense to appellees' cause of action. In our opinion appellant's novel and resourceful contention is without merit. Where the assumed risk defenses of "no duty" and volenti are raised, the duty of the defendant is to exercise ordinary care to make the conditions of the premises or instrumentality reasonably safe or to warn the invitee. Ellis v. Moore, 401 S.W.2d 789 (Tex.Sup.) For the "no duty" defense to be sustained it must be shown the danger was open and obvious which the invitee knew or is charged with such knowledge. The jury found the danger was not open and obvious. It was not shown the instrumentality, the slackened winch line, which permitted the shed to slip off was known to Wigart. It is uncontradicted Wigart had not given Britain a signal to again proceed with the "shaking off". There being evidence to support this jury finding the defense of "no duty" cannot be invoked.
Volenti is an affirmative defense whereby a plaintiff cannot recover from injuries received when he voluntarily exposed himself to a known and appreciated danger. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.). The jury found Wigart did not know and appreciate "that he might sustain injury in the very manner in which he did sustain his fatal injury". Knowledge and appreciation of the dangerous condition or activity are essential requirements of the defense of volenti. J. & W. Corporation v. Ball, 414 S.W.2d 143 (Tex.Sup.). The voluntary exposure requirement was not submitted to the jury. This record does not support the affirmative defense of volenti.
Appellant asserts there is no evidence and insufficient evidence to support the jury finding a gust of wind was not the sole proximate cause of Wigart's death. The testimony concerning this issue has been set out at some length in connection with another point of error previously discussed. We see no need to repeat it here. We simply reiterate there was sufficient evidence to support this jury finding.
The appellant next complains of the refusal of the trial court to submit certain requested special issues. These include: (1) an issue inquiring as to Wigart's negligence in failing to utilize the other pins available before removing the pin in question; (2) an issue inquiring as to Wigart's negligence in removing the pin while the wind was gusting; (3) an inquiry as to Wigart's negligence in placing himself in a position where he could be struck by the shed; (5) an issue inquiring if the gust of wind, together with the removal of the pin was a sole proximate cause. Appellant acknowledges that the trial court submitted two of the five alleged acts of negligence on the part of Wigart, but insists that the three requested issues submitted separate and independent defensive theories and should have been submitted. We cannot agree. The court submitted Special Issue No. 4b inquiring if Wigart's act of removing the pin "under the circumstances then prevailing" was negligence. The jury answered in the negative. There was no evidence the utilization of other pins prior to removing the rear pin would have prevented the shed from slipping from the trailer. We think the ultimate issue was properly submitted. Rule 279, Texas Rules of Civil Procedure. The requested issue inquiring if Wigart was negligent in placing himself in a position where he could be struck is not an ultimate issue in the light of the issues actually submitted. The jury found the danger was not open and obvious; and that Wigart did not know and appreciate the dangerous condition. An affirmative answer to the requested issue would have been in conflict with the above findings. In addition, the jury found Wigart did not fail to keep a proper lookout. The requested issue is related to the lookout issue submitted. The requested issue inquiring if a gust of wind, together with the removal of the pin was not the sole proximate *484 cause of Wigart's death was properly refused. Several acts claiming to be the sole proximate cause should not be submitted in one issue. Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001. Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111. Appellant's points of error 32-35 were overruled.
Numerous objections are leveled to Special Issue No. 3, the damage issue, and the instructions given with it. The court's instruction in connection with the damage issue reads in full:
"In connection with the above issue and your answer thereto you are instructed that you can only consider the pecuniary loss, if any, sustained by each plaintiff, and you cannot allow plaintiffs anything by reason of consolation for the death of William Robert Wigart, or for any sorrow, anguish, or grief suffered by these plaintiffs as a result of his death.
"By pecuniary loss, if any, sustained by Helen O. Wigart, surviving wife of William Robert Wigart, is meant that you may take into consideration loss of maintenance and support, if any, services, if any, contributions from the earnings of William Robert Wigart, if any, and care and counsel, experience, knowledge and judgment in managing her affairs, his personal attention, protection and assistance, if any, that the said Helen O. Wigart would in all probability have received from the said William Robert Wigart, during his lifetime, had he lived.
"By pecuniary loss, if any, sustained by Kim Edwin Wigart and William Franklin Wigart, minor children of the said William Robert Wigart, deceased, is meant that you may take into consideration loss or maintenance, support, value of services, if any, which deceased would have rendered in training and educating of these children; care, counsel and advice, moral advice, nurture, and training, if any, of these children, the said Kim Edwin Wigart and William Franklin Wigart, would in all reasonable probability have received from the said William Robert Wigart, during the minority of each of the said minors, had he lived.
"By pecuniary loss, if any, sustained by the plaintiff, Larry Dean Wigart, is meant loss of maintenance and support, if any, during the minority of said minor."
It is argued the charge did not exclude loss for society, affection and companionship; that the instruction permitted recovery for both "care" and "personal attention, protection and assistance" permitting double recovery for both the wife and children; that "counsel and advice" and "training" were treated as separate elements; that "care" was used twice as an element of damages; that "maintenance and support" overlap "nurture and care"; and that the instruction constituted a comment on the weight of the evidence through failure to interpose the precautionary term "if any" to separate the damage items. When the language of the instruction as a whole is considered, the absence of the exclusion "society, affection and companionship" is not erroneous. The court instructed the jury "you can only consider the pecuniary loss, if any, sustained * * * and you cannot allow plaintiffs anything by way of consolation for the death * * * or for any sorrow, anguish or grief sustained as a result of his death." The language of the instruction contains the proper exclusion when it is read in connection with the instructions as a whole. Minor children may recover the value of services which a deceased father, in reasonable probability, would have rendered to them in "training, advice and educating them". Continental Bus Systems, Inc. v. Biggers (Tex.Civ. App.) 322 S.W.2d 1 (Ref. N.R.E.). Appellant Robinson strongly relies on International & G. N. Ry. Co. v. McVey, 99 Tex. 28, 87 S.W. 328 as authority for the alleged error in omitting the exclusion of the loss or "society, affection and companionship". The general rule in a wrongful death case is that the charge should expressly exclude from the jury consideration the elements of *485 grief, loss and society, mental pain and anguish. Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S.W. 260. Burlington-Rock Island Ry. Co. v. Ellison (Tex.Civ. App.) 134 S.W.2d 306 (Writ Ref.); 17 Tex. Jur.2d, Death by Wrongful Act, Section 127. Generally, when the court charges the proper measure of damages and excludes any allowance for loss of companionship or as a solace for grief, the charge is affirmatively erroneous, but this rule is applicable only where the measure of damages as submitted, including the exclusions, is broad enough to include elements of damages complained of by the objections. Gillette Motor Transport v. Blair (Tex.Civ.App.) 136 S.W.2d 656 (Dismissed Judg.Corr.). Under this record we do not think the charge is subject to the objections made. Plaintiffs' recovery was expressly limited to "pecuniary loss if any" and the court excluded the jury's consideration of "consolation * * or for sorrow, anguish or grief" suffered by plaintiffs as a result of Wigart's death. We find no reversible error in connection with the above instruction. Rule 434, Texas Rules of Civil Procedure.
Appellant further urges the instructions were calculated to allow a double recovery for both the wife and children. This is based on the use of the words "care" and "personal protection and assistance" in referring to the wife; and the argument is these are separate items of damages. As to the children's permissive recovery appellant complains of use of the term "care and advice", "training" and "counsel and advice and moral advice"; that "care" was used twice; and the assertion "maintenance and support" overlapped "nurture and care". Where the language of an instruction did not mislead a reasonably intelligent jury into allowing compensation twice for the same loss, judgment will not be reversed on such grounds. Southwestern Bell Telephone Co. v. Ferris (Tex.Civ.App.) 89 S.W.2d 229 (Error Dism.). McClung Construction Co. v. Muncy (Tex.Civ.App.) 65 S.W.2d 786 (Error Dism.). The words and phrases complained of are of common usage and their meanings are readily understood. We do not believe the instructions were calculated to mislead the jury. There is no indication they did. No reversible error is presented.
Appellant also points out the instruction to the damages issue was on the weight of the evidence in that there was an assumption certain elements of damages actually existed because of the absence of the phrase "if any" after each element of damages enumerated. This contention is without merit. The explanatory instruction contained the phrase "if any" eight times. It followed each definition of "pecuniary loss" in referring to both the wife and children. The phrase follows either a single element of damages or a series of elements of damages the jury was authorized to consider. There was evidence to support the submission of these elements and we do not think the absence of the phrase after each separate element of damages constitutes a comment on the weight of the evidence. It is not misleading. Each element is somewhat related. We conclude this portion of the charge does not present reversible error. See Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880.
Appellant next complains of the admission into evidence of the Wigart income tax returns for the years 1952-1963. In compliance with appellant's counsel's request, Mrs. Wigart submitted these tax returns to them prior to the trial. As a witness, Mrs. Wigart identified the tax returns. Preceding her testimony as to the deceased's earnings for each of the years involved, she was referred to the returns "by way of refreshing your recollection". She then testified to the amounts reflected in each return. Prior to this testimony and prior to the introduction of the returns into evidence, appellant's counsel offered the objection the "income tax return itself is inadmissible as being hearsay and self-serving and it cannot, by indirection, be placed into evidence under the guise of using it to refresh a witness' memory." The general *486 rule is that any writing may be used to revive a present recollection. Texas Law of Evidence, McCormick & Ray, 2d edition, Section 549, and cases there cited. Income tax returns are subject to discovery to the extent of relevancy and materiality. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434. Fort Worth Lloyds v. Hale (Tex.Civ. App.) 405 S.W.2d 639 (Ref. N.R.E.). Income tax returns of a plaintiff in a personal injury case are relevant and material to his prior earning capacity. Wigart's earning capacity is a material issue in this case. Martin v. Jenkins (Tex.Civ.App.) 381 S.W.2d 115 (Ref. N.R.E.); Tex., 384 S.W.2d 123. Under the state of this record, we are of the opinion the objection that the tax returns were hearsay and self-serving were properly overruled. Subsequently to the introduction of the returns into evidence and after the conclusion of the examination of Mrs. Wigart, appellant's counsel offered an additional objection to the admissibility of the tax returns on the grounds their "accuracy and integrity" had not been established. This latter objection was not timely made even though the trial judge permitted it to be made. It is well settled that an objection to the admission of evidence must be made when the evidence is offered and not after it had been introduced. South Texas Electric Cooperative, Inc. v. Ermis (Tex.Civ.App.) 396 S.W.2d 955. 3 Tex. Jur.2d 392, Appeal and ErrorCivil, Section 122. See McCormick & Ray, Texas Law of Evidence, Section 23. We conclude the admission of the tax returns did not constitute reversible error. Rule 434, T.R. C.P.
Appellant further challenges the admissibility of the testimony of witness Womack on the subject of custom and usage in the oil field trucking business. It is undisputed Womack qualified as an expert in the oil field trucking business. His testimony, in effect, was a truck driver, in unloading operations similar to the one Britain was engaged in would not slack off on the winch line without a signal. Evidence of a custom or a usage is admissible to tend to prove what an ordinarily prudent man would do under similar circumstances. Such evidence is not conclusive on the issue of negligence. Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445. Mr. Robinson, owner of appellant company, was also questioned concerning the same custom. His testimony contradicted that of witness Womack. It was for the jury to weigh the testimony in considering all special issues dealing with the alleged negligent acts of Britain.
Witness Miller was not permitted to testify that in his opinion the truck itself had nothing to do with the shed slipping off the truck; but that he believed the wind "blowed it off". It was not shown Miller was qualified to express such an opinion. Britain, the truck driver, was examined at length concerning the wind at the time the accident occurred. In view of these circumstances, the refusal to admit the testimony of Miller was not reversible error.
We have carefully examined all of appellant's points of error and have concluded they do not present reversible error.
The judgment of the trial court is affirmed. |
1,516,378 | 2013-10-30 06:32:53.814503+00 | Moore | null | 916 F. Supp. 1571 (1995)
D.L. LEE & SONS, INC. and American Manufacturers Mutual Insurance Company, Plaintiffs,
v.
ADT SECURITY SYSTEMS, MID-SOUTH, INC., Defendant.
Civil Action No. CV594-008.
United States District Court, S.D. Georgia, Waycross Division.
April 27, 1995.
*1572 *1573 Frederick Owen Ferrand, Swift, Currie, McGhee & Hiers, Atlanta, GA, William J. Edgar, Solomon & Edgar, Alma, GA, M. Theodore Solomon, II, Solomon & Edgar, Alma, GA, Michael R. Ross, Brookhollow Central, II, Houston, TX, for American Mfrs. Mut. Ins. Co.
Frederick Owen Ferrand, Swift, Currie, McGhee & Hiers, Atlanta, GA, M. Theodore Solomon, II, Solomon & Edgar, Alma, GA, Michael R. Ross, Brookhollow Central, II, Houston, TX, for D.L. Lee & Sons, Inc.
J. Thomas Whelchel, Whelchel, Brown, Readdick & Bumgartner, Brunswick, GA, Roy E. Paul, Frank Wilkens Seiler, Bouhan, Williams & Levy, Savannah, GA, Jane L. Peeples, Bouhan, Williams & Levy, Savannah, GA, Teresa Saggese Mills, Atlanta, GA, Joseph R. Odachowski, St. Simons Island, GA, for ADT Security Systems, Mid-South, Inc.
ORDER
MOORE, District Judge.
Defendant ADT Security Systems, Mid-South, Inc. (hereinafter "ADT") moves this Court for summary judgment as to all claims asserted by Plaintiffs D.L. Lee (hereinafter "LEE") and American Manufacturers Mutual Insurance Company (hereinafter "AMM"). For the reasons stated below, Defendant's Consolidated Motion for Summary Judgment is GRANTED.
FACTS
The following facts are in a large part uncontroverted. On February 25, 1988, D.L. Lee & Sons, Inc. entered into a contract with ADT for the design, installation, and continued maintenance of an automatic fire detection and protection system. LEE operated a meat packing plant in Bacon County, Georgia. ADT contacted Jerry Lee by a letter dated January 8, 1988, and proposed installing and maintaining a fire alarm system at the LEE plant. The contract entered into in 1988 required LEE to pay an annual service charge of $2,615.00. At the time of the fire, the annual service charge required was $3,027.00.
On July 21, 1992, a fire severely damaged the premises of LEE. The total damages claimed by LEE were in excess of thirteen million ($13,000,000.00) dollars. LEE had an insurance policy with American Manufactures Mutual Insurance Company (hereinafter "AMM"). Shortly after the fire, AMM began investigating the fire. Between August 3, 1992, and December 1993, in connection with claims made by LEE under the insurance policy, AMM made eight payments to LEE totalling $9,012,734.00, an amount now sought as subrogation from LEE.
Allen Stottlemire, Night-shift Supervisor of D.L. Lee Sanitation Department, first observed the fire above "smokehouse five" at approximately 11:45 p.m. on July 20, 1992. Stottlemire extinguished the visible fire; however, unbeknownst to him, the fire was still burning in the wall of the smokehouse. When Stottlemire checked the smokehouse for the fire at approximately 11:45 p.m., he turned off the power in smokehouse five. (Def.['s] Consol.Mot.Summ.J., Ex. L). After extinguishing the visible fire, Stottlemire called James Nail, his supervisor, to inform him of what had transpired. Nail told Stottlemire to watch the building and call him back if anything else happened. (Id.).
*1574 The next morning, July 21, 1992, at approximately 4:53 a.m., the fire had broken out again and Stottlemire called the Alma Fire Department. (Def.['s] Consol.Mot.Summ.J., Ex. O). Due to the size of the fire, the fire department was unable to extinguish it.
Before the fire, LEE was in the process of concluding construction of a 6,300 square feet building addition at the northernmost end of the existing facility. The building addition was constructed above and surrounding smokehouse five where the fire was first observed. The building addition was built over the existing structure and had no sprinkler system or fire detection equipment at the time of the fire. LEE admits that it disconnected certain heat detectors in the area of smokehouse five while completing construction in that area. LEE maintains that ADT failed to install heat sensors in the crawl space in the attic over the hallway or "stick vat room" next to smokehouse five, an omission which prevented the detection of the fire in its incipient stage.
It is undisputed that the alarm was de-powered at the time of the fire. However, it is hotly disputed as to who de-powered the alarm system. ADT maintains that Michael Hersey, the Assistant Supervisor of the Maintenance Department at D.L. Lee, de-powered the system. LEE maintains that an employee of ADT de-powered the system.
According to ADT's admission, at the time of the fire, "the Control Panel plug had been unplugged from the A.C. outlet" and "there was [neither] battery backup/direct current (D.C.) power to the Control Panel [nor] to the balance of the ADT equipment installed at the premises because at least one battery wire leading to the standby battery supply was disconnected." (Def.['s] Consol.Mot.Summ.J., Ex. N). Additionally, ADT admits that the "Fire Department disconnect button on the Control Panel was depressed" which rendered the system unable to transmit a fire alarm signal to the City of Alma Dispatcher Station. (Def.['s] Consol.Mot.Summ.J., Ex. N).
The control panel was installed by ADT at the LEE facility and was powered by alternating current electric power (A.C. power). The system also had direct current battery back-up power (D.C. power). An illuminated green light would indicate that the system was powered; conversely, the absence of this light would indicate that the system was not powered by A.C. power. ADT claims that this illuminated green light was observable through the glass window portion of the door of the control panel. The control panel had a lock and the key was given to LEE at the time of the installation and remained in LEE's possession. Plaintiffs have retained custody of this control panel.
In the event of the activation of a heat detector, a fire alarm signal was to be electronically transmitted from the control panel to the police and fire dispatcher's office. The control panel had a fire department disconnect button which, when depressed, inhibited transmission of a fire alarm signal to the local authorities and thus, rendered the fire alarm signal transmission capability inoperable. The control panel had a trouble silence button which, when depressed, silenced the annunciation of beeping signals at LEE, signals which would be emitted if the system was troubled, e.g., the A.C. power was interrupted or disconnected.
In the contract between ADT and LEE (Def.['s] Consol.Mot.Summ.J. Ex. A), there is a limitation of actions clause which states:
NO SUIT OR ACTION SHALL BE BROUGHT AGAINST ADT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION THEREFOR. (emphasis in original).
Also, there is a limitation of liability clause, Paragraph "E" which states in pertinent part:
IT IS UNDERSTOOD THAT ADT IS NOT AN INSURER, THAT INSURANCE, IF ANY, SHALL BE OBTAINED BY THE CUSTOMER AND THAT THE AMOUNTS PAYABLE TO ADT HEREUNDER ARE BASED UPON THE VALUE OF THE SERVICES AND THE SCOPE OF LIABILITY AS HEREIN SET FORTH AND ARE UNRELATED TO THE VALUE OF THE CUSTOMER'S PROPERTY OR PROPERTY OF OTHERS LOCAT- *1575 ED IN CUSTOMER'S PREMISES.... THE CUSTOMER DOES NOT DESIRE THIS CONTRACT TO PROVIDE FOR FULL LIABILITY OF ADT AND AGREES THAT ADT SHALL BE EXEMPT FROM LIABILITY FOR LOSS, DAMAGE OR INJURY DUE DIRECTLY OR INDIRECTLY TO OCCURRENCE, OR CONSEQUENCES THEREFROM, WHICH THE SERVICES OR SYSTEM IS DESIGNED TO DETECT OR AVERT; THAT IF ADT SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE OR INJURY DUE TO A FAILURE OF SERVICE OR EQUIPMENT IN ANY RESPECT, ITS LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO 10% OF THE ANNUAL SERVICE CHARGE OR $250.00 WHICHEVER IS GREATER, AS THE AGREED UPON DAMAGES AND NOT AS A PENALTY, AS THE EXCLUSIVE REMEDY. (emphasis in original).
LEE's copy of the aforementioned contract was destroyed in the fire. On September 22, 1992, Michael Ross, attorney for AMM and LEE, wrote a letter to Ms. Belsole, Assistant General Counsel of ADT, requesting ADT documents and, among other things, a complete copy of the contract between LEE and ADT. (Def.['s] Consol.Mot.Summ.J. Ex. C). LEE maintains that ADT did not send them a complete copy of the contract until January 28, 1994. ADT contends that William Von Waldner, the Service Manager of ADT's Savannah office, delivered by hand a copy of the contract to LEE's headquarters on August 3, 1992, approximately six weeks before receiving the request for documents. (Def.['s] Consol.Mot.Summ.J. Ex. B).
ADT contends that it responded to LEE's request of September 22, 1992, in a letter dated November 4, 1992 which stated that ADT would be "glad to consider your recent request for copies of ADT records once the documents that were to have been sent to ADT are received," (Def.['s] Consol.Mot.Summ.J. Ex. D), but that Michael Ross did not reply to their letter until December 6, 1993, which was thirteen months after ADT's response letter of November 4, 1992, and approximately five months after the contractual limitations of action expired. (Def.['s] Consol.Mot.Summ.J. Ex. E).
ANALYSIS
Summary Judgment Standard
The Court should grant summary judgment only if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting Fed.R.Civ.P. 56 advisory committee's note). The Court's analysis ends "where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law." Great Lakes Dredge & Dock Co. v. Miller, 957 F.2d 1575, 1578 (11th Cir.1992); Real Estate Fin. v. Resolution Trust Corp., 950 F.2d 1540, 1543 (11th Cir.1992) (both citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). Thus, summary judgment is appropriate when the nonmovant "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, 106 S.Ct. at 2552; Tidmore Oil Co. v. BP Oil Co./Gulf Prods. Div., a Div. of BP Oil Co., 932 F.2d 1384, 1387-88 (11th Cir.), cert. denied, 502 U.S. 925, 112 S. Ct. 339, 116 L. Ed. 2d 279 (1991). The applicable substantive law governing the action determines whether an element is essential. E.G., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir.1989), cert. denied, 494 U.S. 1081, 110 S. Ct. 1813, 108 L. Ed. 2d 943 (1990).
"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, if any, *1576 which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; Goree v. Winnebago Indus., Inc., 958 F.2d 1537, 1539 (11th Cir.1992). The burden then shifts to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant's case. Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1583 n. 16 (11th Cir.1991), cert. denied, 506 U.S. 903, 113 S. Ct. 295, 121 L. Ed. 2d 219 (1992); Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.1991). A dispute of material fact "is `genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. If the nonmoving party's response to the summary judgment motion consists of nothing more than mere conclusory allegations, then the Court must enter summary judgment in the moving party's favor. Peppers v. Coates, 887 F.2d 1493, 1498 (11th Cir.1989). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, [then] there is no genuine issue for trial." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); see Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512; Johns v. Jarrard, 927 F.2d 551, 556 (11th Cir.1991).
In assessing whether the movant is entitled to summary judgment in its favor, the district court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmoving party. Welch v. Celotex Corp. 951 F.2d 1235, 1237 (11th Cir.1992); Ryder Int'l Corp. v. First Am. Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir.1991). The Court must avoid weighing conflicting evidence. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14; McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934 (11th Cir.1987). A mere "scintilla" of evidence supporting the opposing party's position, however, will not suffice. E.g., Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). Nevertheless, where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the court should refuse to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir.1989).
Defendant has moved for summary judgment on the following grounds:
1. Plaintiffs' action is barred by their failure to commence the action within one year from the date of its accrual;
2. Plaintiffs' warranty claims are further barred as a matter of law by a valid warranty disclaimer provision;
3. Plaintiffs' claims for violations of the Magnuson-Moss Warranty Act must be dismissed as a matter of law;
4. Count VI of Plaintiffs' complaint alleging fraudulent inducement, "Misrepresentation," and gross negligence should be dismissed by virtue of the merger clause, Paragraph "N" of the agreement;
5. In Paragraph "E" of the agreement entered into by the parties D.L. Lee agreed that ADT shall be exempt from any liability. Accordingly, the dismissal of Plaintiffs' complaint is required;
6. Alternatively, partial summary judgment must be granted and ADT's potential liability to Plaintiff must be limited in accordance with the express contractual limitation of liability set forth in Paragraph "E" of the contract;
7. Plaintiff D.L. Lee waived the right to increase the maximum amount of ADT's liability and, therefore, Plaintiffs are estopped from recovering damages in an amount greater than the amount agreed to by the parties;
8. Summary judgment is appropriate as to all allegations of negligent design, negligent installation, fraudulent inducement, or alleged misrepresentation based on the uncontroverted fact that the fire alarm system at issue was depowered at the time of the fire;
9. Summary judgment is appropriate as to all of the Plaintiffs' allegations, including allegations relating to the depowering of the system because Plaintiffs cannot prove causation as a matter of law; and
*1577 10. The subrogation claims asserted by Plaintiff American also must fail.
I. One Year Limitation of Action
ADT claims that the Plaintiffs' action is barred as a matter of law by their failure to commence this action within one year from the date of the fire pursuant to the following terms of the contract:
NO SUIT OR ACTION SHALL BE BROUGHT AGAINST ADT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION THEREFOR. (emphasis in original).
The Georgia courts have permitted parties to contract as to a time limit less than the statutory limit within which an action may be brought so long as the period fixed is not so unreasonable as to raise a presumption of imposition or undue advantage in some way. General Electric Credit Corp. v. Home Indemnity Company, 168 Ga.App. 344, 309 S.E.2d 152, 156 (1983).
It is general contract law in Georgia that parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears. Tahoe-Vinings v. Vinings Partners, 205 Ga.App. 829, 424 S.E.2d 30, 31 (1992). Parties laboring under no disabilities may make contracts on their own terms, and in the absence of fraud or mistake or terms that are illegal or contrary to public policy, they must abide by the contract. American Demolition, Inc. v. Hapeville Hotel Limited Partnership, 202 Ga.App. 107, 413 S.E.2d 749, 752 (1991).
The doctrine of equitable estoppel may be used to bar inequitable reliance on statutory or contractual time limitations. Keefe v. Bahama Cruise Line, 867 F.2d 1318, 1323 (11th Cir.1989). The principle of equitable estoppel, which is based upon the maxim that no man may take advantage of his own wrong, applies with equal force whether the limitation is contractual rather than statutory. Id. To successfully invoke this doctrine, the plaintiff must show that he/she:
was misled by the defendant or its agents so that [s]he delayed suit because of (a) an affirmative statement that the statutory period to bring the actions was longer than it actually was, or (b) promise to make a better settlement of the claim if plaintiff did not bring the suit or (c) comparable representations and conduct. Id. at 1323-24.
Part (c) is the "catch-all" encompassing all manners of conduct. Id. at 1324.
In deciding whether to invoke equitable estoppel, the court focuses on the defendant's conduct. Barton v. Peterson, 733 F. Supp. 1482, 1490 (N.D.Ga.1990). To invoke the protection of the equitable estoppel doctrine, the plaintiff need not prove bad faith on the part of the defendant, but must prove that the conduct was directed towards obtaining a delay in bringing suit, and was motivated by a desire to lull the plaintiff into not bringing a lawsuit. Id. at 1491.
Plaintiffs have not come forward with any evidence that the Defendants delayed Plaintiffs into bring this suit because of comparable representations or conduct. The Plaintiffs, as the nonmoving party, responded to Defendant's motion with mere conclusory allegations; therefore, the Court must grant summary judgment in the moving party's favor. Peppers v. Coates, 887 F.2d at 1498. Plaintiffs must go beyond the pleadings and show that there is a genuine issue as to facts material to the nonmovant's case. Because they failed to meet their burden, summary judgment is appropriate. Thompson, 934 F.2d at 1583.
In support of its claim that no fraudulent behavior sullied the sanctity of the bargained-for limitation of actions provision, ADT claims that William Von Waldner personally delivered a copy of the entire one-page contract to LEE on August 3, 1992, eleven months before the contractually mandated deadline for filing an action. (Def.['s] Consol.Mot.Summ.J. Ex. B). LEE disputes that said copy was delivered and maintains that, although it requested a copy of the entire contract (back and front) several times (Pls.['] Opp.Def.['s] Consol.Mot.Summ.J. Ex. 24), ADT did not give them a complete copy until January 28, 1994, six months after the contractual limitation of actions expired. In the record, A.G. Lee, the secretary-treasurer *1578 of LEE, states that he requested a copy of the contract on July 21, 1992, from ADT but was never given a copy of said contract. (Pls.['] Opp.Def.['s] Consol.Mot.Summ.J. Ex. 24). Michael Ross, attorney for AMM, states that A.G. Lee was given a copy of the first page of the contract when A.G. Lee requested it. (Pls.['] Opp.Def.['s] Consol.Mot.Summ.J.Ex. 30). Ross states that he verbally requested a complete copy of the contract on numerous occasions in his telephone conversations with Ms. Belsole as well as a request by letter. (Pls.['] Opp.Def.['s] Consol.Mot.Summ.J. Ex. 30). Ross also states that he requested a complete copy of the contract by letters dated December 6, 1993, December 14, 1993, January 27, 1994, as well as mentioning it again in a letter dated March 4, 1994. (Pls.['] Opp.Def.['s] Consol.Mot.Summ.J. Ex. 30). However, all of these requests, excluding the September 22, 1992, letter, occurred after the expiration of the limitation of action. LEE maintains that ADT failed to give them a copy of the entire contract so as to delay LEE's filing of this action to a date when it would be time barred.
Whether or not ADT gave LEE a copy of the contract is not a material fact for deciding the limitation of actions clause in the contract.
A person who signs a contract is imputed with knowledge of the contents of that contract. Specifically, everyone is charged with the responsibility of reading and knowing the contents of a contract which he signs. Bradley v. Swift & Co., 93 Ga.App. 842, 93 S.E.2d 364 (1956); see Management Assistance, Inc. v. Computer Dimensions, Inc., 546 F. Supp. 666, 672 (N.D.Ga.1982).
It is uncontroverted that, on February 25, 1988, LEE executed a contract with ADT. (Pls.['] Br.Opp. to Mot.Summ.J., p. 1). The agreement was executed on LEE's behalf by its Secretary-Treasurer A.G. Lee. Therefore, LEE and A.G. Lee are imputed with the knowledge of the contents of the contract. Bradley, 93 S.E.2d 364; Management Assistance, Inc., 546 F.Supp. at 672.
The contract is a one page document with contents on both sides. The limitations and exclusions are on the back side. However, above the signature line is a bold and capitalized sentence which states:
ATTENTION IS DIRECTED TO THE WARRANTY, LIMIT OF LIABILITY AND OTHER CONDITIONS ON REVERSE SIDE. (emphasis in original) (Def.['s] Mot.Summ.J. Ex. A).
While Plaintiffs argue that ADT was required to present LEE with another copy of the contract after the fire destroyed the original copy, this Court does not agree with that supposition. The cases cited by Plaintiffs deal with situations where there was a duty to provide the party with a contract, such as an insurance case or a case involving negotiations between a franchisor and franchisee. No such situation exists here. ADT is not an insurer of LEE nor is there any duty to provide them with a copy of the contract.
Plaintiffs were given the opportunity to provide the Court with case law to support their position. However, after reviewing the briefs, the Court is not convinced that ADT was under a duty to provide LEE with a copy of the contract.
Under Georgia law, concealment of material fact when one is under a duty to speak constitutes fraud. Williams v. Dresser Industries, Inc., 795 F. Supp. 1144, 1147 (N.D.Ga.1992) (The plaintiff need not allege a strict fiduciary or confidential relationship in order to sustain claims for fraudulent concealment and misrepresentation in a franchisee-franchisor contract. Since the fraud occurred during a critical stage of negotiating their contract, the franchisor was under a greater duty to disclose). "Thus, while the duty to disclose may be less great where the parties are already obligated under the terms of an existing franchise agreement, that duty must be distinguished from the one called for by the situation involving negotiations for the entering into of such an agreement." Id. at 1148 (emphasis in original). The mere failure to disclose a fact, even if material, will not constitute fraud in the absence of a duty to make such disclosure. Id. at 1148.
A party to a contract containing a limitations clause was not equitably estopped from asserting the limitations period by failing to *1579 provide the opponent with a copy of the contract before commencing the action. Par Fait Originals v. ADT Security Systems, Northeast, Inc., 184 A.D.2d 472, 586 N.Y.S.2d 2 (1992). A party who signs a document is conclusively bound by its terms absent a valid excuse for having failed to read it. Id. The court held that the one year statute of limitations was enforceable and there was "no merit to plaintiffs' claim that since they were unaware of the contract at the time of the loss and were awaiting a copy from defendant before commencing this action, defendant should be equitably estopped from asserting the contractual one-year limitations period." Id. The court held that equitable estoppel requires justifiable reliance which was not present; therefore dismissal of the claims was proper. Id.
As a result of the foregoing reasons, ADT's motion for summary judgment is granted. ADT is not equitably estopped from asserting the contractual limitations of actions; there is no evidence that ADT acted in any manner to delay LEE in bringing the suit. LEE freely contracted with ADT and had, at the very least, constructive knowledge of the contents of the contract; therefore, LEE is bound by the contents of the contract that it signed. Since there is no evidence of fraud or fraudulent inducement, ADT is not estopped from asserting its contractual limitations of actions.
Although the one year contractual limitations decides this case substantively, the Court will continue its analysis and address the merits of the remaining issues.
II. Whether the transaction between ADT and LEE is a sale so as to afford LEE the protection of the Uniform Commercial Code and the Magnuson-Moss Act.
The transaction between ADT and LEE was not a sale; therefore the U.C.C. is not applicable. Under the law of Georgia, implied warranties can arise under contracts for the "sale" of goods. O.C.G.A. 11-2-316.
A "sale" consists in the passing of title from the seller to the buyer for a price. U.C.C. § 2-106; O.C.G.A. 11-2-106(1). The contract between ADT and Lee expressly provides that the system is to remain property of ADT. Craig v. American District Telegraph Co., 91 Misc. 2d 1063, 399 N.Y.S.2d 164, 165 (1977). The parties were able to choose between two options when characterizing the transaction, (1) "Direct Sale (equipment to become property of the Customer upon payment of selling Price indicated below in full)"; or (2) "System to remain property of ADT." Clearly, if the parties had intended to contract for a sale the first box would have been marked and not the second box. Since the transaction between LEE and ADT is not a sale, there can be no cause of action for breach of implied warranty based upon the U.C.C..
The U.C.C. applies only to the "sale" of goods and does not apply to the sale of services. Steiner Corp. v. American District Telegraph, 106 Idaho 787, 683 P.2d 435, 438 (1984). In Steiner, ADT agreed to supply the fire alarm system, but, by the clear terms of the contract the system remained the property of ADT. Id. 683 P.2d at 437-38. Like the case at bar, the transaction was not a sale because the product was not placed in the control of the customer. Id. at 438. As in Steiner, the "product," the fire alarm system, remained entirely in the control of ADT and the contract obligated ADT only to provide a service, system maintenance. Id. In Steiner, the court held U.C.C. did not apply because the contract was not a contract for the sale of goods, but was a service contract. Because the U.C.C. did not apply, there was no cause of action for implied warranties under that statute. Id. at 438.
The Court finds that the agreement between ADT and LEE to install and maintain a protective alarm system was not a sale and therefore is not subject to the U.C.C. Ford v. Rollins Protective Services Company, 171 Ga.App. 882, 322 S.E.2d 62 (1984) (Since the installation-service agreement was not a sale, the U.C.C. and comparable Georgia statutes do not apply). As a result, the implied warranty and other U.C.C. considerations are not applicable.
Warranties
Defendant claims, in the alternative, that even if Plaintiffs' action is not barred by the limitation of actions, the Plaintiffs' warranty *1580 claims are barred as a matter of law by a warranty disclaimer provision in the ADT/ LEE contract. The disclaimer reads:
ADT MAKES NO GUARANTY OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, THAT THE SYSTEM OR SERVICES SUPPLIED, WILL AVERT OR PREVENT OCCURRENCES OR THE CONSEQUENCES THEREFROM, WHICH THE SYSTEM OR SERVICE IS DESIGNED TO DETECT. (Def.['s] Consol. Mot. Summ. J. Ex. A) (emphasis in original).
As shown, this warranty disclaimer is in bold typeface and capitalized on the back of the contract. On the front of the contract above the customer's signature, the contract states:
ATTENTION IS DIRECTED TO THE WARRANTY, LIMIT OF LIABILITY AND OTHER CONDITIONS ON REVERSE SIDE. (Def.['s] Consol.Mot.Summ.J. Ex. A) (emphasis in original).
Warranty disclaimers are upheld if conspicuous. O.C.G.A. § 11-1-201(10) provides:
"`Conspicuous': A term is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it." A printed heading in capitals (as: Nonnegotiable Bill of Lading) is conspicuous. Language in the body of a form is "conspicuous" if it is in larger or other contrasting type or color. But in a telegram any stated term is "conspicuous." Whether a term or clause is "conspicuous" or not is for decision by the court.
The Court finds that, as both paragraphs regarding the warranty are bolded and in all capital letters, the warranty disclaimer is conspicuous as a matter of law. See generally Leland Industries, Inc. v. Suntek Industries, Inc., 184 Ga.App. 635, 362 S.E.2d 441, 443 (1987) (Language in the body of a form is conspicuous if it is in larger or other contrasting type or color.).
Having found that ADT made no explicit warranty to LEE by the terms of the contract, the Court examines whether ADT could be liable to LEE under an implied warranty. Assuming arguendo that the U.C.C. was applicable, the warranty disclaimer was conspicuous as a matter of law; therefore, the disclaimer is valid and the claims are dismissed. Leland Industries, Inc., 362 S.E.2d 441.
Magnuson-Moss Act Claims
Plaintiff claims that the warranty provisions of the contract are in violation of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301, et seq. (hereinafter "Act"). Specifically, Plaintiff claims that the provisions violate 15 U.S.C. § 2308 which states:
(a) No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if (1) such supplier makes any written warranty to the consumer with respect to such consumer product, or (2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product.
(b) For purposes of this chapter (other than section 2304(a)(2) of this title), implied warranties may be limited in duration to the duration of a written warranty of reasonable duration, if such limitation is conscionable and is set forth in clear and unmistakable language and prominently displayed on the face of the warranty.
(c) A disclaimer, modification, or limitation made in violation of this section shall be ineffective for purposes of this chapter and State law.
Defendant ADT claims that the Act is not applicable to this case because the transaction between ADT and LEE was not a sale. There must be an identifiable purchase and sale before the provisions of the Magnuson-Moss Act apply. Sellers v. Frank Griffin AMC Jeep, Inc., 526 So. 2d 147, 156 (Dist.Ct. Fla.1988).
The Act applies to the "sale" of "consumer products." The Magnuson-Moss Act applies to a "supplier" and a "buyer" of any "consumer product" and certain qualified nonbuyers. *1581 15 U.S.C. § 2301 et seq. The term "consumer" means a
buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract). 15 U.S.C. § 2301(3).
Courts have held that a contract for the installation and service of a fire and burglary alarm system was not a sales transaction involving a consumer product subject to the express warranty provisions of the Magnuson-Moss Act. Corral v. Rollins Protective Services Co., 240 Kan. 678, 732 P.2d 1260, 1266 (1987). In Corral, the supreme court of Kansas affirmed the trial court's granting of summary judgment stating that in the absence of a sale there were no warranties that were protected by the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act. Id. Similar to the case at bar, the Corral contract stated that the protective system was to remain the personal property of Rollins, that title was to continue in Rollins, that Rollins was not an insurer, and that the charges paid to Rollins were based solely on the cost of installation and service of the fire and burglar alarm system. Id. 732 P.2d at 1262-63. The court also stated:
Warranties on service are not covered under the Act. 16 C.F.R. § 700.1(h) (1986). Also, the Act does not apply to leases of consumer products since a "written warranty" under the Act only arises in connection with the "sale" of a consumer product. 15 U.S.C. § 2301(6). Thus, the Act literally covers only warranties on a consumer product "sold" to a consumer. Clark and Smith, The Law of Product Warranties, ¶ 15.08 (1986 Supp.). Id. at 1267.
The Corral court discussed several other cases which held the Act would apply to leases or service agreements; however, the Corral court found them distinguishable. Id. at 1267; Henderson v. Benson-Hartman Motors, Inc., 41 U.C.C.Rep.Serv. 782, 1983 WL 160532 (Callaghan 1983) (The court extended the Act to an automobile lease which had most of the characteristics of a sale); Freeman v. Hubco Leasing, Inc., 253 Ga. 698, 324 S.E.2d 462 (1985) (A forty-eight month lease with a final lump sum payment at end of lease in which plaintiff would own the car was an installment sale contract rather than a lease; therefore, the Act applied.); Business Modeling v. GMC, 123 Misc. 2d 605, 474 N.Y.S.2d 258 (1984) (The court allowed the lessee of an automobile to proceed against the lessor under the terms of the Act.). Because the case at bar is distinguishable from these cases, this Court finds that the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act does not apply. Like the Corral contract, the LEE/ADT contract shows no characteristics of a sale.
Given the option of contracting for a direct sale or for the system to remain in property of ADT, the parties chose for the transaction not to be a sale.[1] The parties were free to contract for the direct sale but they did not; therefore, the transaction between ADT and LEE was not a sale. Tahoe-Vinings v. Vinings Partners, 205 Ga.App. 829, 424 S.E.2d 30, 31 (1992). Because this transaction was not a sale, the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act is not applicable. Defendant's Motion for Summary Judgment regarding violations of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act is granted.
III. Merger Clause Claims
Plaintiff asserts claims of fraudulent inducement, misrepresentation, and gross negligence. Defendant contends that these claims should be dismissed due to the *1582 merger clause in the contract.[2] A clause in a contract limiting liability for negligent acts does not serve to limit liability for wilful and wanton conduct. Peck v. Rollins Protective Services, Inc., 189 Ga.App. 381, 375 S.E.2d 494, 496 (1988). A merger clause can have no bearing where fraud in procuring the signing of the instrument is the issue. Lenny's Inc. v. Allied Sign Erectors, Inc., 170 Ga.App. 706, 318 S.E.2d 140, 141-42 (1984).
Because there has been no evidence produced that ADT fraudulently induced LEE to sign the contract[3], summary judgment on this issue of the merger clause claims is granted.
IV. Limitation of Liability
Defendant claims that it is exempt from any liability as mandated by paragraph "E" of the contract at issue. In the pertinent part, paragraph "E" states:
IT IS UNDERSTOOD THAT ADT IS NOT AN INSURER, THAT INSURANCE, IF ANY, SHALL BE OBTAINED BY THE CUSTOMER AND THAT THE AMOUNTS PAYABLE TO ADT HEREUNDER ARE BASED UPON THE VALUE OF THE SERVICES AND THE SCOPE OF LIABILITY AS HEREIN SET FORTH AND ARE UNRELATED TO THE VALUE OF THE CUSTOMER'S PROPERTY OR PROPERTY OF OTHERS LOCATED IN CUSTOMER'S PREMISES.... THE CUSTOMER DOES NOT DESIRE THIS CONTRACT TO PROVIDE FOR FULL LIABILITY OF ADT AND AGREES THAT ADT SHALL BE EXEMPT FROM LIABILITY FOR LOSS, DAMAGE OR INJURY DUE DIRECTLY OR INDIRECTLY TO OCCURRENCE, OR CONSEQUENCES THEREFROM, WHICH THE SERVICES OR SYSTEM IS DESIGNED TO DETECT OR AVERT; THAT IF ADT SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE OR INJURY DUE TO A FAILURE OF SERVICE OR EQUIPMENT IN ANY RESPECT, ITS LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO 10% OF THE ANNUAL SERVICE CHARGE OR $250.00 WHICHEVER IS GREATER, AS THE AGREED UPON DAMAGES AND NOT AS A PENALTY, AS THE EXCLUSIVE REMEDY. (emphasis in original) (Def.['s] Consol.Mot.Summ.J. Ex. A).
In the event of the Court's denial Defendant's motion for summary judgment, Defendant asserts that partial summary judgment must be granted so as to limit ADT's liability to 10% of the annual service charge or $302.70, as specificized in the contract.
Limitation of liability clauses involving fire and burglar alarms are commonly ruled enforceable by courts. Leon's Bakery, Inc., 990 F.2d 44, 48 (2d Cir.1993)[4] (Limitation of liability clause upheld because the monitoring fee was not high enough to include theft insurance premium.); E.H. Ashley & Co. v. Wells Fargo Alarm Services, 907 F.2d 1274, 1278-79 (1st Cir.1990) (Not inappropriate to place on user the onus of buying insurance on user); Accord Shaer Shoe Corp. v. Granite *1583 State Alarm, Inc., 110 N.H. 132, 262 A.2d 285, 286-87 (1970) (applying New Hampshire law and citing cases from Texas, California, and Alabama); Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 583 N.Y.S.2d 957, 962-63, 593 N.E.2d 1365, 1370-71 (1992) (Limitation of liability clauses in fire alarm contract enforceable as to claim of ordinary negligence but not as to claim of gross negligence.); Abel Holding Co. v. American District Telegraph Co., 138 N.J.Super. 137, 350 A.2d 292, 296-302 (Law Div.1975), aff'd, 147 N.J.Super. 263, 371 A.2d 111 (App.Div.1977); E.H. Ashley & Co. v. Wells Fargo Alarm Services, 907 F.2d 1274, 1278 (1st Cir.1990) (listing cases from six states holding that contract clauses limiting liability of burglar alarm services were enforceable); Accord Schrier v. Beltway Alarm Co., 73 Md.App. 281, 533 A.2d 1316, 1319 (1987) (listing cases from 14 jurisdictions).
In Leon's Bakery, the Second Circuit reasoned that the rationale for permitting the provider of a burglar alarm system to limit its liability is equally applicable to the provider of a fire alarm system. Id. at 49. The court stated that the supplier of either type of system is paying for its equipment and service, and the price does not generally include a sum designed to anticipate the possible need to pay the purchaser the value of the property that the system is to protect. Id. "The owner or custodian of the property is in a far better position than the alarm system seller to know the property's value and to bargain with an insurance company for appropriate coverage and an appropriate premium...." Id. The court noted that the alarm seller's ability to limit liability helps keep alarm services affordable. Id.
A limitation of liability clause identical to the clause at issue was upheld in Lazybug Shops, Inc. v. American District Telegraph Co., 374 So. 2d 183 (Ct.App.La.1979). The court held that the limitation of liability provision applied and the service provider's liability was restricted in accordance with the contract. Id. Because the contract was clear, specific, and would not lead to an absurd result, the limitation of liability clause must be given effect. Id. at 185.
An ADT contract with a similar limitation of liability clause was held to be enforceable by the Supreme Court of Idaho. Steiner Corp. v. American District Telegraph, 106 Idaho 787, 683 P.2d 435 (1984).[5] Because the court found that the plaintiff was effectively precluded from recovery by the limitation clause, ADT's liability could not be based upon any of the Plaintiffs' theories, i.e., negligence, breach of express and implied warranties, and strict liability in tort. Id. 683 P.2d at 437. Upholding the trial court's granting of summary judgment, the Idaho supreme court held that the limitation of liability clause must be given full force and effect, thus, limiting ADT's liability to the amount specified in the contract. Id. at 439-440.
A clause in a contract limiting liability for negligent acts does not serve to limit liability for wilful or wanton conduct. Lenny's Inc., 318 S.E.2d at 142 (Allegations of Defendant's wilful and wanton conduct precluded granting of motion for summary judgment.); Hawes v. Central of Ga. R. Co., 117 Ga.App. 771, 162 S.E.2d 14 (1968); Corral, 240 Kan. *1584 678, 732 P.2d 1260, 1265 (1987) (Limitation of liability clause upheld due to lack of evidence of fraud, mistake, duress or wanton or wilful negligence, and contravention of public policy.); Factory Insurance Association v. American District Telegraph Co., 277 So. 2d 569, 570 (Fla.1973) (Limitation of liability clause would not preclude claims of gross, wanton and wilful negligence.).
Because the Court finds that there is no evidence of wilful or wanton conduct or gross negligence, summary judgment on the issue of limiting ADT's liability pursuant to paragraph "E" of the contract is granted.
V. Subrogation
Plaintiff AMM has paid LEE $9,012,734.00 pursuant to a LEE/AMM insurance policy. (Pls.['] Opp. to Def.['s] Consol.Mot.Summ.J. Ex. 28). As a result, AMM asserts a subrogation interest for the monies it paid LEE in connection with the fire damage sustained. Defendant ADT claims that AMM's claim of subrogation must fail; alternatively, ADT argues that Plaintiff AMM is limited by the ADT/LEE contract.
The right of subrogation can arise from one of three sources. First, it is an equitable principle founded on the proposition that an insurer ought not to collect damages for his loss from both his insurer and the tortfeasor, a double recovery. Carter v. Banks, 254 Ga. 550, 330 S.E.2d 866, 867-68 (1985). Secondly, it may arise out of the contract between the insurer and the insured; this is sometimes referred to as conventional subrogation. Id. 330 S.E.2d at 868. Thirdly, the right may be declared by statute. Id.
In the case at bar, there is a subrogation agreement between LEE and AMM which states in pertinent part:
I. Transfer of Rights of Recovery Against Others To Us
If any person or organization to or for whom we make payment under this Coverage Part has rights to recover damages from another, those rights are transferred to us to the extent of our payment. That person or organization must do everything necessary to secure our rights and must do nothing after loss to impair them. (Pls.[']. Opp. to Def.['s] Consol.Mot.Summ.J. Ex. 28).
Subrogation is the substitution of another person in the place of a creditor, so that the substituted party succeeds to all the rights of the creditor. Travelers Insurance Co. v. Commercial Union Insurance Co., 176 Ga.App. 305, 335 S.E.2d 681, 684 (1985). A subrogee is placed in the same position as the subrogor including the disabilities as well as the rights. Id. A subrogee cannot escape a limitation of liability clause in the service contract between the subrogor and the alarm company. E.H. Ashley & Co. v. Wells Fargo Alarm Services, 907 F.2d 1274, 1277 (1st Cir.1990).
Having examined the LEE/AMM contract, the Court finds that AMM would be entitled to assert its right of subrogation. However, since a subrogee is placed in the same position as the subrogor, including the disabilities as well as the rights, all claims asserted by AMM as subrogee are dismissed pursuant to this Court's granting of summary judgment as to all claims asserted by ADT.
Conclusion
For the foregoing reasons, the Court finds that Defendant's Consolidated Motion for Summary Judgment is GRANTED.
SO ORDERED.
NOTES
[1] There were two types of transactions available to ADT and LEE in the contract:
Direct Sale (equipment to become property of the customer upon payment of Selling Price indicated below in full).
or
System to remain property of ADT.
[2] N. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER AND ADT. IN EXECUTING THIS AGREEMENT, CUSTOMER IS NOT RELYING ON ANY ADVICE OR ADVERTISEMENT OF ADT. CUSTOMER AGREES THAT ANY REPRESENTATION, PROMISE, CONDITION, INDUCEMENT OR WARRANTY, EXPRESS OR IMPLIED, NOT INCLUDED IN WRITING IN THIS AGREEMENT SHALL NOT BE BINDING UPON ANY PARTY, AND THAT THE TERMS AND CONDITIONS HEREOF APPLY AS PRINTED WITHOUT ALTERATION OR QUALIFICATION, EXCEPT AS SPECIFICALLY MODIFIED IN WRITING. THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL GOVERN NOTWITHSTANDING ANY INCONSISTENT OR ADDITIONAL TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY THE CUSTOMER. (emphasis in original) (Def.['s] Consol.Mot.Summ.J. Ex. A).
[3] See discussion supra pp. 1577-1579.
[4] In making a determination limiting liability, a federal court is free to consider all of the resources to which the highest court of the state could look, including decisions in other jurisdictions on the same or analogous issues. Leon's Bakery, Inc. v. Grinnell Corp., 990 F.2d 44, 48 (2d Cir.1993).
[5] The clause states:
D. It is understood that the Contractor is not an insurer, that insurance, if any, shall be obtained by the Subscriber and that the amounts payable to the Contractor hereunder are based upon the value of the services and the scope of liability as herein set forth and are unrelated to the value of the Subscriber's property of others located in Subscriber's premises. The Subscriber does not desire this contract to provide for full liability of the Contractor and agrees that the Contractor shall be exempt from liability for loss or damage due directly or indirectly to occurrences, or consequences therefrom, which the service is designed to detect or avert; that if the Contractor should be found liable for loss or damages due to a failure of service or equipment in any respect, its liability shall be limited to a sum equal to ten percent of the annual service charge on [sic] $250, whichever is the greater, and that the provisions of this paragraph shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly to person or property from performance or nonperformance of obligations imposed by this contract or from negligence, active or otherwise, of the Contractor, its agents or employees. The Department or other organization to which the connection is made may invoke the provisions hereof against any claims by the Subscriber due to any failure of such Department or organization. |
1,516,381 | 2013-10-30 06:32:53.875885+00 | Fogleman | null | 420 S.W.2d 534 (1967)
243 Ark. 351
Robert CABLETON, Appellant,
v.
STATE of Arkansas, Appellee.
No. 5302.
Supreme Court of Arkansas.
October 30, 1967.
Rehearing Denied December 4, 1967.
*535 John W. Walker, Little Rock, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
FOGLEMAN, Justice.
This appeal is taken from the action of the trial court affirming judgments of the Mayor's Court of the City of Gould in two cases and the Justice of the Peace Court of Gould Township in Lincoln County in three cases. All charges were misdemeanors. The first conviction was had in the Mayor's Court on December 18, 1965 upon a charge of disturbing the peace and obstructing justice. In that case a fine of $100.00 and costs of $10.50 were assessed against appellant. All of the remaining convictions were on *536 October 4, 1966 with total fines imposed amounting to $421.50. The costs assessed totaled $43.00. Jail sentences were for a total of nine months. The charges were public drunkenness, resisting arrest, assaulting an officer and disturbing the peace. Timely appeals were taken. Judgments affirming were entered in the Lincoln Circuit Court on the 13th day of February 1967. Each recites that affirmance of the original judgment was entered when appellant failed to appear after having been called three times at the bar of the court by the sheriff. Motions to vacate these judgments and for new trial were timely filed, heard and denied.
Appellant seeks reversal on the basis that in the Mayor's and Justice of the Peace Courts he was not advised of his right to counsel and that no offer was made to appoint counsel if he were unable to afford his own lawyer. The gist of appellant's argument appears to be that the failure to appoint counsel for an indigent charged with a misdemeanor on which a jail sentence may be imposed is a violation of his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States. The records in the original trial courts are silent on the subjects of indigency, advice as to right to counsel and request for representation by an attorney. The cases heard there in October were continued from September 15, 1966, however, at the request of appellant. On the margin of the docket sheet in the case heard December 18, 1965 the names of John Walker and Deactor [Delector] Tiller are listed as attorneys for appellant. No statement as to their appearance or nonappearance is recited in the judgment.
Appellant's contention is based largely on the holding in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799. This court has held that failure to appoint counsel under similar circumstances did not violate the constitutional rights of one charged with a misdemeanor. Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364, cert. denied 385 U.S. 907, 87 S. Ct. 207, 17 L. Ed. 2d 137. It was pointed out in that opinion that the Wainwright case dealt with a felony charge where the defendant had been sentenced to five years in the penitentiary. Appellant urges, however, that the felony-misdemeanor distinction is illogical and should be abandoned, relying on cases from other jurisdictions, at least two of which [McDonald v. Moore, 353 F.2d 106 (5th Cir.) and Harvey v. State of Mississippi, 340 F.2d 263 (5th Cir.)], were decided before the Supreme Court denied certiorari in Winters v. Beck and were obviously considered by that court as they are cited in the dissenting opinion of Mr. Justice Stewart. Not only was the Supreme Court fully aware of the decision of the Fifth Circuit in the McDonald case, but the Circuit Court, even while rejecting the "felony-misdemeanor" rule, the "serious offense" rule[1] and the "peculiar, particular or special circumstances"[2] rule and refusing to adopt a "petty offense" rule, recognized that the Wainwright case did not require the appointment of counsel in all cases, for it said:
"* * * It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the services of an attorney at the expense of the state or the municipality. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state. If the Constitution requires that counsel be provided in such cases it would seem that in many urban areas there would be a requirement for more lawyers than could be made available. Even with the assistance of law students, whose services may be requested under some of the Criminal Justice plans, the demand might come near exceeding the supply."
*537 It should be noted that the Harvey case is relied on as precedent in the McDonald case.
In considering Gideon v. Wainwright, there are factors to be weighed other than the fact pointed out in the Winters case that it involved a felony conviction. That decision did not declare that the Fourteenth Amendment made the guarantees of the Sixth obligatory, as such, upon the states. Its rationale was that those pledges and guarantees contained in the Bill of Rights of the Federal Constitution, which are implicit in the concept of ordered liberty, are fundamental principles of liberty and justice which are the bases of our political and civil institutions and are fundamental and essential to a fair trial, are made obligatory upon the states by the Fourteenth Amendment. In arriving at its conclusion, the court relied upon Powell v. State of Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527, as well as Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (the result of which it overruled) and Palko v. State of Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288, (in which the double jeopardy provision of the Fifth Amendment was held not to be obligatory upon the states). Thus, the statement with reference to right to counsel "[i]n all criminal prosecutions" is not obligatory upon the states, having never been considered fundamental to a fair trial or basic concepts of liberty and justice in any cases other than felonies. The United States Supreme Court has long recognized that a valid distinction can be made between serious and petty offenses in application of Sixth Amendment guarantees. District of Columbia v. Clawans, 300 U.S. 617, 57 S. Ct. 660, 81 L. Ed. 843.
Appellant also relies on cases such as People v. Witenski, 15 N.Y.2d 392, 259 N.Y.S.2d 413, 207 N.E.2d 358. This decision was by a court divided four to three. It can be distinguished. In New York there was a statute (Code of Criminal Procedure, § 699) requiring a magistrate to immediately inform a defendant of his right to aid of counsel at every stage of the proceedings and before any further proceeding is had. The court said that it had previously decided there was so little real difference in that statute and Code of Criminal Procedure, § 308, requiring that when a defendant appears upon arraignment on indictment, he must be asked if he desires the aid of counsel and that the court must assign counsel if he does. Of course, our statutes only require the appointment of counsel in felony cases. Ark.Stat.Ann. § 43-1203 (Repl.1964). Subsequently, the New York Court of Appeals recognized that the Wainwright case did not extend the right to assigned counsel to all crimes, in an opinion holding that these constitutional requirements were not applicable where a defendant was charged with a traffic law violation. People v. Letterio, 16 N.Y.2d 307, 266 N.Y.S.2d 368, 213 N.E.2d 670.
Another case cited by appellant is People v. Mallory, 378 Mich. 538, 147 N.W.2d 66. An examination of that decision leads to the conclusion that it is based upon peculiar language of the Michigan Constitution, the rule making power of that court, and statutes of that state. The opinion recognizes that the decisions of the United States Supreme Court may not be controlling of the question of right to counsel in misdemeanor cases.
We choose not to anticipate that the Supreme Court of the United States will extend the rule of the Wainwright case to misdemeanor cases. We rather choose to hold that the public policy of this state on the right to appointed counsel is expressed in our statutory law. While the statute requiring appointment of counsel in felony cases was adopted long before the decision in Gideon v. Wainwright, supra, we take judicial notice that the General Assembly of our state has met in regular session twice subsequently. We cannot assume that, in failing to extend our law to require appointment of counsel in cases other than felonies, they were ignorant of that decision. Any *538 change in the law of Arkansas, after certiorari was denied in the Winters case, should either come through legislative enactment or by an express decision of the United States Supreme Court.
Our decision in the Winters case does not stand alone. It has been followed or cited with approval in other jurisdictions. See, e. g., City of Toledo v. Frazier, 10 Ohio App. 2d 51, 226 N.E.2d 777; State v. Sherron, 268 N.C. 694, 151 S.E.2d 599; City of New Orleans v. Cook, 249 La. 820, 191 So. 2d 634.
In Florida, the arena in which at least five of the "constitutional right to counsel" cases have been originally contested, the Supreme Court has also held that the Wainwright case did not apply to misdemeanors. They based their holding that an indigent defendant accused of a misdemeanor was not entitled to appointed counsel on the action of their legislature providing for a public defender for indigents in non-capital felony cases. This, they said, constituted a declaration of the state's public policy. Fish v. State, 159 So. 2d 866 (Fla.); Watkins v. Morris, 179 So. 2d 348 (Fla.). The Ohio court has also found a declaration of public policy in its statutes. City of Toledo v. Frazier, supra. It is suggested by the Supreme Court of North Carolina that the United States Supreme Court has not put a responsibility upon a state in this field any greater than that imposed by its own statutes. State v. Sherron, 268 N.C. 694, 151 S.E.2d 599.
Practical considerations must enter into these policy determinations. As stated by the District Court of the Eastern District of North Carolina, it must be recognized that the right to counsel is not an end in itself, but a means for achieving the most perfect justice possible in a given situation, which requires the striking of a balance between an ideal situation and what is humanly possible to achieve. Creighton v. State of North Carolina, D.C., 257 F. Supp. 806. Practical consideration of the impact of application of abstract constitutional principles on the administration of justice is not without precedent. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882; Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601; Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453; State v. Zucconi, 93 N.J.Super. 380, 226 A.2d 16. Most misdemeanor cases are tried in Arkansas in municipal courts, justice of the peace courts, police courts and mayor's courts. According to the Second Annual Report of the Judicial Department of Arkansas, the 61 municipal courts had 108,040 criminal charges and 201,867 traffic charges[3] filed in the year 1966. According to the same report, there were 2,267 justices of the peace in Arkansas in 1967, and there is no reason to believe that the number was any less in 1966. We have no record of the number of the police and mayor's courts in Arkansas of which we can take judicial notice, nor of the number of cases brought before them. We recognize that some of the criminal charges before the municipal courts are felony cases in which the judges sit only as committing magistrates.
The practical impossibility of implementing a system such as appellant urges is obvious when we consider that there are more justices of the peace[4] in Arkansas than there are resident practicing lawyers and that there are counties in which there are no practicing lawyers.[5] The impact of such a rule would seriously impair the administration *539 of justice in Arkansas and impose an intolerable burden upon the legal profession.
It has also been held that constitutional rights are not invaded in misdemeanor cases in which counsel is not appointed for indigent defendants, even though otherwise required, where the defendant has a right to trial de novo on appeal where he is represented by counsel. Doss v. State of North Carolina, D.C., 252 F. Supp. 298. In the case at bar, appellant was provided that right. Ark.Stat.Ann. § 26-1308 (Repl.1962); § 19-1204 (Repl. 1956); § 44-509 (Repl.1964). Appellant took appropriate steps to avail himself of this right and was represented by counsel. By his failure to make timely appearance in the circuit court, however, he forfeited this right. The cases stood for trial at any time after the transcripts were filed in the circuit court. Ark.Stat.Ann. § 44-506 (Repl.1964). Upon his failure to appear when the case was set for trial, the circuit court was authorized to affirm in the absence of good cause shown. Ark.Stat.Ann. § 44-507 (Repl.1964). Appellant does not really question this, but contends that his constitutional rights under the Sixth and Fourteenth Amendments were also violated because he was not granted a continuance. At any rate, if appellant did appear in court on the date set (as advised to do by his attorney) and was only a few minutes late, as he contends, there is nothing in the record to indicate that he made his presence known to the trial court.
Appellant's request for a continuance was made to the prosecuting attorney, not the court. This being so, appellant has no standing to complain. Be that as it may, the excuse given for the requested continuance is not ground for reversal. The granting for refusal of a continuance is within the sound discretion of the trial court and reversal is not authorized unless the trial court abused its discretion. Jackson v. State, 54 Ark. 243, 15 S.W. 607; Perez v. State, 236 Ark. 921, 370 S.W.2d 613. Appellant says the continuance should have been granted because his attorney had what the latter considered a more important case set for trial in Camden on the same day. It has been held that the failure to grant a continuance on this account is not an abuse of discretion. The following language of Brickey v. State, 148 Ark. 595, 231 S.W. 549, is applicable here:
"* * * Counsel who are employed to represent clients having cases pending in courts must so arrange their business as to be able to appear to represent their clients when those cases are called for trial. The business of the courts can not be controlled, interrupted, or made to conform to the business interests of attorneys. The fact that an attorney may have cases for clients pending in different courts whose terms convene at the same time, and which condition may render it impossible for the attorney to be in attendance at one of the courts, is no imperative reason for the continuance of the causes in which he is employed in the court which he does not attend. These are matters addressed to the sound discretion of the presiding judge of the court, who must conduct the public business entrusted to him in a manner most conducive to the interests of the public whom he serves. It is never an abuse of discretion for the court to refuse to grant a continuance in a cause on account of the absence of employed counsel, unless such counsel is absent by reason of sickness or some other unavoidable casualty. The absence of an attorney from a court where causes are pending in which he is employed as counsel, because of causes pending in other courts in which he is also employed as counsel, is not an unavoidable casualty."
Appellant's remaining point for reversal is that he was denied due process of law in violation of Article II, Section 8 of the Arkansas Constitution and the Fourteenth Amendment to the United States Constitution, contending that the Mayor of *540 Gould, being interested in the maintenance of the city treasury into which fines were paid, could not give him a fair trial. As a further basis he contends that the Mayor had an interest in avoiding demonstrations which might tend to excite the inhabitants of the city or disrupt the public peace. Nothing in the record shows that any such demonstration was involved, contemplated or feared by anyone. While we find no merit in either contention, this question was first raised on appeal, not having been incorporated into the motion for new trial. This question, then, cannot properly be considered on this appeal. Randall v. State, 239 Ark. 312, 389 S.W.2d 229; Clayton v. State, 191 Ark. 1070, 89 S.W.2d 732; Fain v. State, 189 Ark. 474, 74 S.W.2d 248. Here again, however, the alleged prejudice would have been unimportant if appellant had availed himself of a trial de novo.
The judgments are affirmed.
NOTES
[1] Announced in cases such as State v. Anderson, 96 Ariz. 123, 392 P.2d 784.
[2] This was the rule announced in Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595.
[3] This did not include 108,094 non-moving traffic charges in the City of Little Rock. In some of the courts, traffic offenses are included in the criminal cases rather than being listed separately.
[4] All have jurisdiction of misdemeanors except those in townships where municipal courts sit. Ark.Stat.Ann. § 22-709 (Repl.1962) and §§ 43-1405, 43-1408 (Repl.1964); Logan v. Harris, 213 Ark. 37, 210 S.W.2d 301 (1948).
[5] This is indicated by records in the office of the clerk of this court, of current licenses to practice. |
1,516,384 | 2013-10-30 06:32:53.950015+00 | De Ment | null | 916 F. Supp. 1539 (1996)
Sandra DOUGLAS, Plaintiff,
v.
James H. EVANS, etc, et al., Defendants.
Civil A. No. 94-D-327-N.
United States District Court, M.D. Alabama, Northern Division.
January 25, 1996.
*1540 *1541 *1542 *1543 Algert S. Agricola, Jr., Montgomery, AL, Ann K. Wiggins, Robert L. Wiggins, Jr., C. Paige Williams, Birmingham, AL, for plaintiff.
Robert D. Segall, Montgomery, AL, Kenneth Lamar Thomas, Montgomery, AL, for defendants.
MEMORANDUM OPINION[1]
DE MENT, District Judge.
Before the court is defendant James H. Evans ("Mr. Evans") and defendant Jeff Sessions' ("Mr. Sessions") motions for summary judgment filed October 2, 1995. Mr. Sessions' motion adopts and incorporates the arguments and positions set forth in Mr. Evans' motion and also addresses the issues arising from the plaintiff's allegations of age and race discrimination. Thus, because the motions involve similar issues and arise from the same set of facts, the court will address them simultaneously. The plaintiff, Sandra Douglas ("Ms. Douglas"), filed a response to both motions on November 6, 1995. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendants' motions are due to be granted.
JURISDICTION AND VENUE
Jurisdiction is proper, as the plaintiff alleges violations of 42 U.S.C. §§ 1981 and 2000e et seq. (hereinafter "Title VII"), the Equal Protection and Free Speech clauses of the United States Constitution as made applicable to the states by the Fourteenth Amendment, and 29 U.S.C. §§ 621 et seq., the Age Discrimination in Employment Act.[2] Personal jurisdiction and venue are not contested.
SUMMARY JUDGMENT STANDARD
On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "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). As the Supreme Court has explained the summary judgment standard:
[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. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also *1544 Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).
The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [his] 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, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e).
In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
FINDINGS OF FACT
The plaintiff, Ms. Douglas, has served over thirteen years and under three Attorney Generals during her tenure with the Alabama Attorney General's Office. Ms. Douglas has served with distinction as is evidenced by the evaluations she received during her employment. Ms. Douglas has, at all times, worked in the Attorney General's Consumer Utility Section. Ms. Douglas has served as acting director of that section for ten years and supervised attorneys who were assigned to the Consumer Utility Section. Although she is unaware of any writing by which she was named permanent director of the Utility Section, she assumes that she became permanent in that assignment. Dep. of Douglas at 31-37. In addition, although she is not a lawyer, the job description of the Utilities Division chief includes preparing briefs for the Supreme Court of Alabama. Dep. of Douglas at 238-39. In fact, Ms. Douglas admits that she has drafted pleadings, written legal appellate briefs and supervised lawyers in connection with such legal work. Dep. of Douglas at 238-39.
From the beginning of his administration, Mr. Evans wanted a lawyer to serve as head of the Utilities Section.[3] Dep. of Evans at 21-22, 26 & 162; Aff. of Turner; Aff. of Pitt. Mr. Evans desired a lawyer because: (1) he believed that only a lawyer could represent the state before the Public Service Commission (Dep. of Evans at 51); (2) the head of the Utilities Section needed to know how to develop a record (Dep. of Evans at 194-96); (3) the head of the Utilities Section needed to know how to present evidence and cross-examine witnesses (Dep. of Evans at 194-96 & 198-200); and (4) the Utilities Section often dealt with legal issues (Dep. of Evans at 88, 91, 162, 194-96 & 198-200). As such, in 1991, shortly after Mr. Evans became Attorney General and months before any issue arose concerning South Central Bell or Bell Advertising and Publishing Corporation, Mr. Evans offered the Utilities Division chief's position to Redding Pitt. Aff. of Pitt. Mr. Pitt, who currently is the United States Attorney for the Middle District of Alabama and who had experience in utilities under Mr. Evans' predecessor, declined the offer. Aff. of Pitt.
In August of 1991, based on an audit conducted by the SEARUC Southern Task Force on BellSouth Corporation and its affiliates, the staff of the Public Service Commission ("PSC") believed that revenues realized by South Central Bell's affiliate, Bell Advertising and Publishing Corporation ("BAPCO"), had not been attributed in the proper amount to South Central Bell. Accordingly, *1545 on September 20, 1991, the PSC issued an order directing South Central Bell to show cause why it should not refund alleged overcharges and reduce rates in the future. Dep. of Douglas at 97-99.
In October of 1991, Ms. Douglas, in her role as acting chief of the Utilities Division, recommended to Mr. Evans that the Attorney General intervene in this matter. Dep. of Douglas at 99-101; Dep. of Evans at 47-48 & 79-80. Allegedly, the audit substantiated the conclusion reached by Ms. Douglas that Alabama South Central Bell consumers were entitled to a refund of possibly as much as forty million dollars. After consulting with Mr. Evans, regarding this concern, Mr. Evans agreed to take the necessary action to resolve the matter and directed Ms. Douglas to intervene. Dep. of Douglas at 101-103; Dep. of Evans at 79-81. Accordingly, Ms. Douglas filed a notice on Mr. Evans' behalf manifesting his intent to intervene in the action, which was set for hearing in October, 1991. However, the hearing never took place as the PSC canceled the meeting unexpectedly.
In December, 1991, Ms. Douglas claims to have learned that South Central Bell and the PSC were clandestinely engaging in settlement negotiations regarding the BAPCO matter. Dep. of Douglas at 103-04. Consequently, Ms. Douglas requested, and Mr. Evans granted her, permission to take all necessary actions to halt the covert discussions. Dep. of Douglas at 103-04; Dep. of Evans at 133. However, Ms. Douglas never received the opportunity to place her plan into work because the PSC settled the case on January 16, 1992. Ms. Douglas believes that this settlement was not in good faith.
Also in December of 1991, William Mayer ("Mr. Mayer") was hired by the Attorney General's office. Aff. of Mayer. While Mr. Mayer served in the military, he had gained experience in utility-related matters. Id. In addition, he had attended a course on utility rate making. Id. Mr. Mayer had previously worked with Mr. Evans in the Montgomery County District Attorney's office as a litigator. Dep. of Evans at 36 & 197-98. Mr. Mayer became involved with utility matters in the Attorney General's office, and by January 1992, he was well involved in the BAPCO issues. Aff. of Mayer; Dep. of Douglas.
In early January of 1992, Mr. Evans asked Mr. Mayer to give him an independent evaluation of the BAPCO matter. Aff. of Mayer; Dep. of Evans at 88, 91-92 & 95. In particular, he wanted to know whether there was a good basis for bringing a fraud claim against South Central Bell, as Ms. Douglas contended. Dep. of Evans at 88-89 & 91-92; Aff. of Mayer. Mr. Mayer conducted said evaluation, and determined that there was not a reasonable basis for pursuing a fraud claim against South Central Bell. Dep. of Evans at 92; Dep. of Douglas at 106-08, 115-16, & 95-97. During this time, lawyers for South Central Bell met with Mr. Evans on one or two occasions. Dep. of Evans at 84 & 141; Aff. of Mayer. Although these representatives maintained that South Central Bell had accounted for BAPCO revenue in exactly the manner they should have, Mr. Evans tried to get them to agree to the remedy set forth in the PSC's show cause order; however, this effort was unsuccessful. Dep. of Evans at 84-86, 109, 112-17 & 123.
On January 16, 1992, the PSC issued an order that reflected negotiations conducted between South Central Bell and PSC staff. Dep. of Douglas at 104-06. That order directed a four million dollar reduction in rates and called for no refund. Dep. of Douglas 105-06.
On January 29, 1992, Ms. Douglas asked Mr. Evans about appealing the PSC's order. Aff. of Douglas. Meetings were conducted in which discussions of the issue of whether Mr. Evans should appeal the PSC's order transpired. Mr. Mayer took the position that although the PSC staff might not have performed appropriately, the PSC's decision probably was a correct one (Dep. of Douglas), while Ms. Douglas maintained that further action should be taken (Dep. of Douglas at 164-65). Despite Ms. Douglas' arguments, Mr. Evans decided not to challenge the PSC's order. Aff. of Douglas.
Ms. Douglas strongly disagreed with Mr. Evans' position and began to assemble information which she believed would convince him to change his mind. Aff. of Douglas. In *1546 early February of 1992, Ms. Douglas wrote a memorandum to the Attorney General, with copies to other high level individuals within the Attorney General's office and within the Utilities Division, setting out her position. Dep. of Douglas at 138-39, 215, exh. 7. On February 5, 1992, a meeting was held in Mr. Evans' office to discuss Ms. Douglas' position and the positions held by other people within the Attorney General's office. Dep. of Douglas at 169-72, exh. 6. In this meeting, Ms. Douglas, Mr. Evans and members of Mr. Evans' staff discussed Ms. Douglas' memorandum. Aff. of Douglas. At the conclusion of this meeting, Mr. Evans told Ms. Douglas that he did not feel there was sufficient evidence to proceed and asked her to bring him more evidence. Dep. of Evans at 129 & 135; Dep. of Douglas at 169, vol. 2, 151-52; Aff. of Douglas.
Following these meetings, Ms. Douglas believed that Mr. Evans would not appeal from the PSC's order. Aff. of Douglas. Therefore, within one or two days following the February 5th meeting, she contacted outside counsel to see if anything could be done about the BAPCO issue. Dep. of Douglas at 129, 132-40, 154-59, 166-68 & 219; Dep. of Baxley, Dillard; Dep. of Wise; Aff. of Johnson; Aff. of Douglas. Ms. Douglas told private attorneys that Mr. Evans had wrongfully declined to pursue the matter further. Dep. of Douglas at 156-58. Ms. Douglas also presented her memorandum dated February 3, 1992, to Ronald W. Wise, Esq. Aff. of Douglas. After several meetings with Ms. Douglas, Mr. Wise and several other attorneys concluded that the BAPCO matter merited judicial review. On March 11, 1992, Mr. Wise and several other attorneys then filed an action in the Circuit Court of Montgomery County, Alabama.[4]
On February 5, 1992, Mr. Mayer replaced Ms. Douglas as director of the Consumer Utility Section a position Ms. Douglas had held for ten years. In making this decision, Mr. Evans had no knowledge that Ms. Douglas had disregarded his direction to bring him more evidence. Mr. Evans also had no knowledge that Ms. Douglas had consulted with outside counsel and had given internal Attorney General documents to private attorneys. In fact, sometime in late March or early April, Mr. Evans first became aware that Ms. Douglas had taken internal Attorney General documents to private attorneys and that a lawsuit had been filed in the Circuit Court of Montgomery County involving the BAPCO matter. Dep. of Evans at 155, 158-160, 165, 174-75 & 203-04; Aff. of Mayer; Aff. of Johnson.
On March 13, 1992, Ms. Douglas was allegedly told that if she did not accept a transfer to the Consumer Protection Division of the office, Mr. Evans would abolish her position. Mr. Evans told Ms. Douglas that she would have supervisory responsibility in the Consumer Protection Division, with an opportunity ultimately to become director of Consumer Protection. Dep. of Evans at 200; Aff. of Pitt. However, Ms. Douglas refused to transfer voluntarily, and Mr. Evans did not cause her to transfer. Dep. of Douglas, vol. 2, at 212; Dep. of Evans at 168.
Ms. Douglas contends that harassment ensued and has persisted since that day. Ms. Douglas contends that the harassment culminated in her transfer to the isolated surroundings of the Alabama Statehouse basement, where she is allegedly deprived of the congeniality associated with the professional rapport of her colleagues. The alleged harassment has also caused a purported deprivation of meaningful job assignments, ostracism by Mr. Evans, repayment of sick and annual leave before their accrual, loss of reserved parking space and loss of a personal computer at work. Ms. Douglas contends that the aforementioned acts are the fruits of retaliation for voicing her opinion on a matter of public concern.
Mr. Mayer vacated the director of Consumer Utility position in January, 1993. However, Ms. Douglas was not promoted to her former position despite her qualifications. Instead, Anita Young, a newly licensed, younger, black, female attorney, was hired for the position. Thereafter, in June, 1993, *1547 Ms. Douglas filed a charge of race and age discrimination against Mr. Evans for failure to promote her to the newly vacated position in January, 1993. Ms. Douglas alleges that the filing of the EEOC charge led to intensified retaliation.
On March 15, 1994, Ms. Douglas instituted the above-styled action and thereafter, amended her complaint on May 3, 1995. She alleges that Mr. Evans' acts amount to violations of the following federal constitutional and statutory provisions: procedural and substantive due process, First Amendment right to engage in free political speech, equal protection clause of the United States Constitution, 42 U.S.C. §§ 1981 and 2000e et seq., and Age Discrimination in Employment Act ("ADEA"). Ms. Douglas also claims that Mr. Evans violated §§ 36-26-10 and 36-26-23 of the Alabama Code because the alleged adverse employment decision was not predicated on merit and competition. Ms. Douglas seeks declaratory and prospective injunctive relief against Mr. Sessions in his official capacity and pecuniary damages against Mr. Evans in his individual capacity. Subsequently, Mr. Evans filed a motion to dismiss. On May 12, 1995, the court entered an order dismissing the substantive due process claim and dismissing the Title VII, ADEA and § 1981 claims against Mr. Evans in his individual capacity. The remaining claims consist of: (1) a procedural due process claim; (2) freedom of speech cause of action; (3) Title VII, ADEA and § 1981 claims against Mr. Sessions in his official capacity; and (4) claims arising under Ala.Code §§ 36-26-10(f) and 36-26-23.
DISCUSSION
A. Procedural Due Process
Mr. Evans and Mr. Sessions argue that Ms. Douglas' procedural due process claim is due to be dismissed as she has no cognizable property or liberty interest at stake. When reviewing a due process claim, the initial inquiry is whether the plaintiff was deprived of a protected property or liberty interest. Faucher v. Rodziewicz, 891 F.2d 864, 869 (11th Cir.1990).
"Property interests are not created by the [United States] Constitution but are `defined by existing rules or understandings that stem from an independent source such as state law' and arise only where the plaintiff demonstrates a `legitimate claim of entitlement.'" Polenz v. Parrott, 883 F.2d 551, 555 (7th Cir.1989) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972)). Moreover, "[a] public employee enjoys a property interest in his [or her] employment only if he [or she] has an expectation of continued employment created by legislation, contract, or policy." Lassiter v. Covington, 861 F.2d 680, 682 (11th Cir.1988) (citing Board of Regents v. Roth, 408 U.S. 564, 577-78, 92 S. Ct. 2701, 2709-10, 33 L. Ed. 2d 548 (1972)). There must be a state statute or ordinance that creates a public employment contract, or there must be some clear practice or mutual understanding that an employee can be terminated or transferred only for "cause." Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974). If the employee holds his position only at the "will" of the employer, there is no property interest in continued employment. Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976).
Here, Ms. Douglas states that her expectation in continued employment as the chief of the Utilities Division is rooted in the merit system rules of the State of Alabama. However, it is undisputed that no one has ever held merit system rights to the position of division chief within the Attorney General's office. Dep. of Evans at 24; Dep. of Sessions at 22-24; Aff. of Turner; Aff. of Sessions; Aff. of Ballard. In fact, the Attorney General has always had the prerogative to name whomever he wanted to the division chief positions and to remove whomever he wanted from such positions. Dep. of Evans at 20-24; Dep. of Sessions at 20-24; Aff. of Turner. In general, it is the prerogative of any constitutionally elected officer to choose his staff. Dep. of Sessions at 24.
The court is convinced that the division heads are internal titles that have nothing to do with the merit system. As such, although Ms. Douglas is a merit system employee in the classification of Public Utilities Rate Analyst *1548 II, she had no merit system status in the position she occupied as chief of the Utilities Section of the Attorney General's office. In other words, Ms. Douglas' argument focusing on her status as a merit employee is misplaced, because the merit system does not give her an entitlement to the position of chief of the Utilities Division.
Assuming that Ms. Douglas anticipated that she would be made permanent chief of the Utilities Division, the law is clear that a prospective promotion or recommendation for a promotion does not give rise to a property or liberty interest, even for a tenured employee. Oladeinde v. City of Birmingham, 963 F.2d 1481, 1486 (11th Cir.1992), cert. denied, 507 U.S. 987, 113 S. Ct. 1586, 123 L. Ed. 2d 153 (1993); Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir.1988), cert. denied, 490 U.S. 1006, 109 S. Ct. 1641, 104 L. Ed. 2d 156 (1989). Furthermore, "`property' ... [does not extend] to the purely dignitary or nonpecuniary dimensions of employment." Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir. 1993) (citing Versarge v. Township of Clinton, 984 F.2d 1359, 1370-71 (3d Cir.1993)); see also Hardiman v. Jefferson County Bd. of Educ., 709 F.2d 635, 638 (11th Cir.1983). For the foregoing reasons, the court finds that Ms. Douglas has not been deprived of a protected property interest.
While property interests exist in entitlement provided for by independent sources of law, liberty interests are broader. 980 F.2d 1354, 1357. As succinctly summarized in Bank of Jackson County v. Cherry, 980 F.2d 1354 (11th Cir.1992), cert. denied, ___ U.S. ___, 114 S. Ct. 73, 126 L. Ed. 2d 42 (1993), the Supreme Court of the United States has stated:
[Liberty] denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed. This broad conception of liberty encompasses a person's interest in his or her reputation, coupled with the more tangible benefits or entitlement which rest upon a person's good name.
Id. at 1357-58 (internal quotations and citations omitted); see Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042 (1923); Roth, 408 U.S. at 572, 92 S.Ct. at 2706; Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 1160, 47 L. Ed. 2d 405 (1976). In addition, the Eleventh Circuit has stated that it is reluctant to conclude that "a transfer of an employee, which involves no loss of pay and no loss of rank, deprives [that employee] of a protected liberty or property interest." Oladeinde, 963 F.2d at 1485. As stated by the court in Moore v. Otero, 557 F.2d 435 (5th Cir.1977),[5]
[t]he internal transfer of an employee, unless it constitutes such a change of status as to be regarded essentially as a loss of employment, does not provide the additional loss of a tangible interest necessary to give rise to a liberty interest meriting protection under the due process clause of the Fourteenth Amendment.
Moore, 557 F.2d at 438 (citations and internal footnote omitted).
Thus, to establish a liberty interest, Ms. Douglas must establish that her change in position amounts to a loss of employment and "was attended by stigmatizing charges which `might seriously damage [her] standing and associations in [her] community' or foreclose `[her] freedom to take advantage of other employment opportunities.'" Sullivan v. School Bd. of Pinellas County, 773 F.2d 1182, 1187 (11th Cir.1985) (quoting Clemons v. Dougherty County, 684 F.2d 1365, 1371 (11th Cir.1982)). More importantly in this case, even assuming that Ms. Douglas was stigmatized by Mr. Evans' action, she must, "in order to establish a violation of the due *1549 process clause, [provide evidence] that the stigmatizing fact was `substantially false.'" McElwee v. Todd, 581 F.2d 1182, 1184 (5th Cir.1978) (quoting Codd v. Velger, 429 U.S. 624, 627, 97 S. Ct. 882, 884, 51 L. Ed. 2d 92 (1977)); see also Sims v. Fox, 505 F.2d 857, 864 (11th Cir.1974) (en banc) (Basic proposition is that the government has not infringed liberty unless it perpetuates untrue charges), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 678 (1975); Ortwein v. Mackey, 511 F.2d 696, 698 (5th Cir.1975); Estes v. Tuscaloosa County, 696 F.2d 898, 900 (11th Cir. 1983) ("A liberty interest is infringed only when the government's untrue charges might seriously damage a person's standing and associations in the community or when such charges impair some other protected interest such as employment or first amendment rights."); Wells v. Doland, 711 F.2d 670, 676 n. 7 (5th Cir.1983) (As part of the plaintiff's claim that he or she was stigmatized, he or she must show that the charges were false); Blanton v. Griel Memorial Psychiatric Hosp., 758 F.2d 1540, 1544 (11th Cir.1985). For instance, in Codd, the plaintiff claimed that the New York City Police Department violated the due process clause in discharging him without a hearing because of a suicide attempt. 429 U.S. at 626-27, 97 S.Ct. at 883-84. The court held that a hearing was not required since the plaintiff did not allege that the employment records concerning the suicide attempt were substantially false. Id. at 628-29, 97 S.Ct. at 884-85.
Ms. Douglas fails to present any evidence that Mr. Evans made a false charge concerning her employment with the Attorney General's office, and in fact, she does not even assert that Mr. Evans or Mr. Sessions made untrue charges concerning her employment with the Attorney General's office. Her only allegation of wrongful conduct by Mr. Evans was that he improperly demoted her in her job duties in retaliation for her position in the BAPCO matter. She also contends that being asked to train her supervisor by Mr. Sessions held her out to ridicule. Dep. of Douglas at 13-15. Even taking these allegations as true, they do not set forth a false charge made by Mr. Evans or Mr. Sessions. Also, they are not evidence of stigmatizing information. The only information from which the court finds stigmatizing was Ms. Douglas' unauthorized release of internal Attorney General documents. However, she admits doing so. Moreover, the court is not convinced that Mr. Evans knew about the release of documents before he reassigned Ms. Douglas. Consequently, the court finds that Ms. Douglas has not been deprived of a liberty interest.
Based on the foregoing, the court finds that Mr. Evans and Mr. Sessions' motions for summary judgment concerning the procedural due process claim are due to be granted.
B. First Amendment
Ms. Douglas' First Amendment claim, as alleged in her complaint, is that the PSC issued a show cause order to South Central Bell related to BAPCO, postponed the hearing, engaged in secret negotiations with South Central Bell, and issued an order paring down the amount of the rate reduction proposed by the commission staff. Ms. Douglas disagreed with the order and urged Mr. Evans to appeal or take some other action. As a result of her advocacy of pursuing action against South Central Bell, Ms. Douglas alleges that six weeks later she was removed from her position as acting chief of the Utilities Division and suffered other forms of retaliation.
It is established in the Eleventh Circuit that "[a] state may not demote or discharge a public employee in retaliation for public speech." Tindal v. Montgomery County Comm'n, 32 F.3d 1535, 1539 (11th Cir.1994) (quoting Morgan v. Ford, 6 F.3d 750, 753-54 (11th Cir.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 2708, 129 L. Ed. 2d 836 (1994)). However, "a public employee's right to freedom of speech is not absolute." Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989) (citing Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987)). Consequently, the Eleventh Circuit employs a four-prong analysis to determine whether a public employee experienced an adverse employment action predicated on the employee's speech. Bryson, 888 F.2d at 1565 (citing Kurtz v. Vickrey, 855 F.2d 723 (11th Cir.1988)).
*1550 The initial tier of the Bryson test asks whether the employee's speech may be "fairly characterized as constituting speech on a matter of public concern." Bryson, 888 F.2d at 1565 (quoting Rankin, 483 U.S. at 384, 107 S.Ct. at 2897) (citation omitted). If the plaintiff's speech is a matter of private concern and does not address issues of public relevance, it warrants no First Amendment protection. Tindal, 32 F.3d at 1539 (citing Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708 (1983)). No First Amendment safeguards are affixed to dialogue that exposes personally experienced adversity for personal benefit. See, e.g., Morgan, 6 F.3d at 754-55 (citations omitted). The court must scrutinize the content, form, and context of the employee's speech to assess its public worth. Bryson, 888 F.2d at 1565 (citing Rankin, 483 U.S. at 384-85, 107 S.Ct. at 2897).
The second part of the Bryson test inquires whether a public employee's interest in his or her speech outweighs the state's interest in promoting efficient service. Bryson, 888 F.2d at 1565 (quoting Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968)). The analysis at this prong hinges on the magnitude of disruption Ms. Douglas' speech would have on the efficiency of government activity. Therefore, Ms. Douglas is entitled to no First Amendment protection if her speech "so severely impeded [her] own effectiveness and the effectiveness of [the Attorney General and his staff] that the governmental interest at stake in this case clearly outweigh[ed Ms. Douglas'] speech interest." Morales v. Stierheim, 848 F.2d 1145, 1151 (11th Cir.1988), cert. denied sub nom. Leon v. Avino, 489 U.S. 1013, 109 S. Ct. 1124, 103 L. Ed. 2d 187 (1989).
The third stage of analysis in the Bryson test is a determination by the fact-finder as to "whether the employee's speech played a `substantial part' in the government's decision to demote or discharge the employee." Bryson, 888 F.2d at 1565 (citing Mt. Healthy City School Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977)). Thus, while the court must determine the first two stages as a matter of law, to survive summary judgment on the third stage, Ms. Douglas need only present sufficient evidence to raise a question of fact to be settled by a jury. Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1564 (11th Cir.1995).
The fourth and final determination which needs to be made under Bryson is whether the employer would have made the same decision even in the absence of the protected speech. Bryson, 888 F.2d at 1566 (citing Mt. Healthy, 429 U.S. at 286, 97 S.Ct. at 575). However, whether the employer has met this burden is a question for the trier of fact. Beckwith, 58 F.3d at 1564; see also Pullman-Standard v. Swint, 456 U.S. 273, 102 S. Ct. 1781, 72 L. Ed. 2d 66 (1982) (issues of discriminatory intent and actual motivation are questions of fact for the trier of fact).
Concerning the first component of the Bryson test, Mr. Evans and Mr. Sessions contend that Ms. Douglas' speech was not a matter of public concern because it was expressed only to individuals within the Attorney General's office. Def. Evans' Mot. for Summ. J. at 25-26. However, as noted above, the court must look to whether the content, form, and context of a given statement addresses a matter of public concern. Rankin, 483 U.S. at 384-85, 107 S.Ct. at 2897. In Rankin, the Supreme Court of the United States concluded that a remark, regarding an attempt on the President's life made by a clerical employee in a county constable's office to another clerk whom she was dating, addressed a matter of public concern. Id. at 386, 107 S.Ct. at 2897. The fact that the statement was not made publicly did not alter the Court's determination.
The court finds that Ms. Douglas' speech is as much a matter of public concern as that of the plaintiff in Rankin. In Rankin, the public employee was merely stating her personal opinion while at work. Although her specific job-related responsibilities in no way concerned the object of her voiced opinions, her statements, if true, would affect the interests of the citizens of the United States. Thus, it addressed a matter of public concern. Here, Ms. Douglas was chief of the Utilities Division of the Attorney General's office, which *1551 obligated her to protect the public interest. As such, the content of her speech also concerned protecting the interests and rights of the citizens of Alabama. Moreover, her remarks were made to individuals with the authority to proceed on behalf of the public.
Once the court is satisfied that the speech addresses a matter of public concern, its next task is to weigh "the employee's [F]irst [A]mendment interests against `the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Bryson, 888 F.2d at 1565 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1734). The more substantially a public employee's speech involves matters of public concern, the greater the disruption of the state's interests is required to justify an adverse employment decision. Connick, 461 U.S. at 152, 103 S.Ct. at 1692.
Ms. Douglas argues that Mr. Evans has not even attempted to identify a disruption in the Attorney General's office caused by her opinion regarding the BAPCO matter. Ms. Douglas does not dispute the fact that Mr. Evan's was not aware of her communication with outside attorneys prior to her demotion. However, she does contend, and in fact Mr. Evans admits, preventing her from receiving confidential information because she communicated with outside attorneys about the BAPCO matter.
The court is persuaded by the Eleventh Circuit's reasoning set forth in Bates v. Hunt, 3 F.3d 374 (11th Cir.1993), where the First Amendment was addressed in the employment context between the Governor of Alabama and a member of his staff:
The Governor of Alabama is elected to lead and to serve the state and its people a mission of extraordinary importance. If he is to be successful in this difficult mission, he must make effective use of his limited staff. And the Governor need not allow events to unfold to the point where disruption and inefficiency in the Governor's office become open and obvious, before he constitutionally can discharge an employee. See Connick, 461 U.S. at 151-52, 103 S.Ct. at 1692.
3 F.3d at 378 (internal footnote omitted) (holding plaintiff had no right to continue as Governor's assistant because her acts were hostile to the Governor). Similarly, the Attorney General is elected to "lead and to serve the state and its people."
Here, the court finds that Ms. Douglas' First Amendment interest as a citizen does not outweigh the interest of the Attorney General, as an employer, in promoting the efficiency of the services he provided to the public or in superintending all litigation involving the interests of the state. It is undisputed that Ms. Douglas presented one or more internal Attorney General documents that Mr. Evans considered confidential to outside counsel. See Def. Evans Mot. for Summ. J. at ¶¶ 18-21. It is also undisputed that Ms. Douglas failed to follow Mr. Evans' direct instruction to bring him further evidence. Instead, she secretively met with private attorneys asking that they pursue the BAPCO matter. Moreover, she falsely told the private attorneys that Mr. Evans had wrongfully declined to pursue the matter further. Dep. of Douglas at 156-58. In addition, during the time she was distributing confidential Attorney General information to the private attorneys, she discussed with one of those attorneys the possibility of going to work for him. Aff. of Johnson; Dep. of Baxley, Dillard Custodian at 1; Dep. of Douglas at 114 (according to Ms. Douglas, said attorney was lead attorney in the private PSC court action).
The court finds that the conduct engaged in by Ms. Douglas disrupted the efficient operation of the Attorney General's office. It clearly interfered with the order that must prevail in a law enforcement agency. In fact, the court believes that such acts could destroy the morale of the Attorney General's office by holding the Attorney General up for ridicule and disrespect i.e., lending support that the Attorney General is not the ultimate decision-maker or the one in charge. Hence, the subversion of the Attorney General by one division chief could encourage similar actions by other division chiefs. Because the court finds that Ms. Douglas' actions disrupted the efficient operation and order of the Attorney General's office, the court concludes that Mr. Evans' precautions in providing Ms. *1552 Douglas access to confidential information were fully justified under the circumstances.
Moreover, the court finds that even if there were evidence showing that Ms. Douglas was removed from her position because of serious disagreements with Mr. Evans about the BAPCO matter, her removal would not implicate the First Amendment. As succinctly stated in Bates, supra, from which the court quotes: "For some categories of employees such as those in a confidential or policy-making relation to their public employer, First Amendment constitutional protection is often slight." 3 F.3d at 378. Here, it is abundantly clear that the chief of the Utilities Division is a policy making position, which entails a confidential relationship with the Attorney General. It is important, therefore, that the person who occupies the position of chief of the Utilities Division share a common vision with the Attorney General on policy issues. Hence, Mr. Evans could have discharged Ms. Douglas even before disruption and inefficiency became open and obvious. See id. Since Ms. Douglas' employment could have been terminated as a result of her misconduct, the court finds that merely limiting her involvement in particular cases and changing her office space does not implicate the First Amendment.
For the foregoing reasons, Mr. Evans and Mr. Sessions' motions for summary judgment are due to be granted concerning Ms. Douglas' First Amendment claim. Therefore, the court need not reach the remaining components in the Bryson test.
C. Employment Discrimination Claims
1. Title VII
Title VII forbids discrimination on the basis of sex, race, or national origin in a wide range of employment practices, including hiring, discharge, and promotion. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994) (citing Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992)).[6] The theory of "disparate treatment" has been stated by the Supreme Court of the United States as follows:
[Disparate treatment is] the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. [citation omitted]. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.
International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S. Ct. 1843, 1854 n. 15, 52 L. Ed. 2d 396 (1977). Thus, the essence of disparate treatment is different treatment: that blacks are treated differently than whites; women differently than men.
In order for Ms. Douglas to prevail on a Title VII claim she must show that Mr. Evans intentionally discriminated against her when making the employment decisions which gave rise to the suit. In reverse discrimination actions, the plaintiff need not adduce evidence of direct discrimination, but, instead, may construct a prima facie case, which raises a presumption of unlawful discrimination. See generally, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The McDonnell Douglas test requires a reverse discrimination plaintiff to demonstrate: 1) that he or she belongs to a class; 2) that he or she was qualified for a job; 3) that he or she was removed from the job/position; and 4) that said position was filled by a minority. See Wilson v. Bailey, 934 F.2d 301, 304 (11th Cir.1991).[7]
*1553 Once the Ms. Douglas satisfies her burden by demonstrating a prima facie case of discrimination, a presumption of impermissible discrimination arises. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). The burden of production then shifts to Mr. Sessions[8] to articulate a legitimate nondiscriminatory reason for the adverse employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 248, 101 S.Ct. at 1090. Should Mr. Sessions fail to meet his burden of production once Ms. Douglas demonstrates prima facie discrimination, "the unrebutted presumption of discrimination stands." Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir.1994) (citing Joshi v. Florida State University Health Ctr., 763 F.2d 1227, 1236 (11th Cir.), cert. denied, 474 U.S. 948, 106 S. Ct. 347, 88 L. Ed. 2d 293 (1985)).
The Eleventh Circuit has determined that this intermediate burden is "exceedingly light." Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir.1994) (quoting Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir.1983)). Thus, to overcome the presumption of discrimination demonstrated by the plaintiff-employee, the defendant-employer "need only offer admissible evidence sufficient to raise a genuine issue of material fact as to whether it had a legitimate reason for not hiring the plaintiff." Turnes, 36 F.3d at 1061 (citing Hill v. Seaboard Coast Line R.R. Co., 767 F.2d 771, 774 (11th Cir.1985)).
In the case at bar, the court acknowledges that Ms. Douglas belongs to a class Caucasian. The court also finds that she was denied a position and that said position was filled by a black female. However, the court fails to find that Ms. Douglas was qualified for the position.
It is undisputed that Ms. Douglas holds a Bachelor's degree and two Master degrees, and also has been a teacher. It is also undisputed that Ms. Douglas received, routinely, above average evaluations. However, the chief of the Utilities Division must submit briefs, analyze appellate cases, understand statutes and case authority cited by utility lawyers, present witnesses and conduct hearings before the PSC. Dep. of Sessions at 52-54. In addition, the job description of the Utilities Division chief includes preparing briefs for the Supreme Court of Alabama. Def. Evans' exh 16 at 238-39. It is the court's opinion that only a licensed attorney can legally perform these functions. In fact, from the beginning of his administration, Mr. Evans wanted a lawyer to serve as the head of the Utilities Section (Dep. of Evans at 21-22, 26 & 162; Aff. of Turner; Aff. of Pitt.), and the present Attorney General, Mr. Sessions, agrees. Dep. of Sessions at 33 & 49-54.
Ms. Douglas admits that she has drafted pleadings, has written legal appellate briefs and has supervised lawyers in connection with such legal work. Dep. of Douglas at 238-39. The court notes that, if true, this activity by a non-lawyer constitutes the unauthorized practice of law, which, if assisted by a lawyer, is a violation of Rule 5.5 of the Alabama Rules of Professional Conduct. Because Ms. Douglas was not an attorney, the court finds that she was not qualified for the position of Chief of the Utilities Division.
Moreover, the Chief of the Utilities Division holds a policy-making position, which bears a relationship of trust and confidence to the Attorney General. Dep. of Evans at 204; Dep. of Douglas at 42-47 & 285-86; Aff. of Sessions; Aff. of Mayer; Aff. of Turner. The chief of the Utilities Division answers directly to the Attorney General, (Dep. of Douglas at 39-40, 56-57), and advises him on policy decisions related to matters pending before the PSC. Dep. of Douglas at 39-45 & 285-86; Dep. of Evans at 48, 80-81 & 88. As emphasized, supra, if the Attorney General is to be successful in his difficult mission to lead and serve the state and its people, he must make effective use of his limited staff.
Ms. Douglas has, by her own admission, taken sensitive material prepared for the Attorney General to unauthorized private attorneys because she disagreed with the decision of the Attorney General regarding a sensitive *1554 and ongoing matter. In fact, she disobeyed the Attorney General's orders to bring him more evidence. Her action in so doing precipitated a futile lawsuit, which foreclosed further action by the Attorney General in the matter. Clearly, Ms. Douglas cannot function as a high-level advisor to the Attorney General in whom he can repose trust and confidence.
Because Ms. Douglas did not make out a prima facie case, she cannot prevail merely by showing that the articulated reason for her termination was probably not the true reason. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984). However, notwithstanding Ms. Douglas' failure to establish a prima facie case, the court also finds that Ms. Douglas has failed to produce any evidence that demonstrates her race was the motivation for the decision to discharge her from employment.
Mr. Sessions' articulated, legitimate reason is that the job was offered to an employee who was more qualified than Ms. Douglas. As revealed in her response to the motion for summary judgment, Ms. Douglas disagrees and believes that the reasons given for her denial of promotion are unworthy of credence.
In fact, Ms. Douglas claims that the Supreme Court of the United States in St. Mary's permits the trier of fact to infer intentional discrimination upon the rejection of the defendant's proffered reasons. Pl.'s Br. in Opp. to Mot. for Summ.J. at 28-29. As a result, Ms. Douglas concludes that the evidence presented by her demonstrates that Mr. Sessions' explanations given for the denial of promotion are false and, thus, are sufficient to establish pretext and avoid summary judgment.
St. Mary's slightly modified the Title VII disparate treatment framework. Previously, a plaintiff could satisfy his or her Title VII burden of proof "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of belief." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; see Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir.1992) (plaintiff satisfied burden by showing that employer's reasons were unworthy of credence); Caban-Wheeler v. Elsea, 904 F.2d 1549, 1554 (11th Cir.1990) (same). In other words, "the falsity of the employer's explanation [was] alone enough to compel judgment for the plaintiff." St. Mary's, 509 U.S. at 517, 113 S.Ct. at 2752 (emphasis supplied). In St. Mary's, however, the Supreme Court of the United States ruled that if "the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework with its presumptions and burdens is no longer relevant." Id. at ___, 113 S.Ct. at 2749. Instead, the only inquiry becomes "whether [the] plaintiff has proven `that the defendant intentionally discriminated against [him]' because of his [age]." Id. (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093).
Thus, Ms. Douglas must show "both that the reason was false, and that discrimination was the real reason" ... and "it is not enough ... to disbelieve the employer...." Id. at 511 n. 4, 113 S.Ct. at 2749 n. 4 (emphasis supplied). Here, Ms. Douglas presents no evidence from which the court could infer racial discrimination. She only asserts that the time during which Mr. Evans chose to demote her and the manner in which he did so raise at least an inference of intent. First, Mr. Evans demoted Ms. Douglas well before the black female, Anita Archie, was promoted to the position that Ms. Douglas sought. Second, at the time Ms. Douglas was allegedly demoted, a white male, William Mayer, was appointed chief of the Utilities Division.
Because the court finds that race played no role whatsoever in the decision not to promote Ms. Douglas to chief of the Utilities Division, Mr. Sessions' motion for summary judgment addressing Ms. Douglas' allegation of a Title VII violation is due to be granted.
2. Section 1981
Ms. Douglas also alleges that she was racially discriminated against in violation of 42 U.S.C. § 1981. Section 1981 prohibits race discrimination in making and enforcing contracts and is a statutory remedy available *1555 in both private and public sectors.[9]Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95 S. Ct. 1716, 1719-20, 44 L. Ed. 2d 295 (1975). Prior to the 1991 amendments to the Civil Rights Act of 1964, the United States Supreme Court narrowly construed the right "to make and enforce contracts" clause of § 1981(a). In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), the Court held that § 1981 "covers conduct only at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through the legal process." Thus, conduct affecting "the terms and conditions of continuing employment" was not actionable. Goldsmith v. City of Atmore, 996 F.2d 1155, 1160 (11th Cir.1993) (quoting Patterson, 491 U.S. at 179, 109 S.Ct. at 2374).
In 1991, the Civil Rights Act (hereafter the "Act") was amended, expanding the coverage of 42 U.S.C. § 1981 to include claims of racial discrimination based upon wrongful termination. Pub.L. No. 102-166, S. 1745, 102d Cong., 1st Sess. (1991) (Congress passed the Act on November 7, 1991, which was signed into law on November 21, 1991, by former President George Bush.). The Act effectively reverses Patterson and its progeny and now permits claims for intentional racial discrimination in "... the making, performance, modification, and termination of [employment] contracts," as well as "... the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Hence, the Act maximizes the overlap between Title VII and § 1981 and allows an aggrieved party alleging intentional discrimination to alternatively seek recourse under both statutes. Thus, § 1981 protects all persons, Caucasian and non-Caucasian alike, from racially motivated abridgments of the right to contract equally. See Robertson v. Maryland State Dep't of Personnel, 481 F. Supp. 108 (D.Md. 1978).
Ms. Douglas' claim under § 1981 requires proof of intentional discrimination. General Bldg. Contractors Ass'n., Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S. Ct. 3141, 3150, 73 L. Ed. 2d 835 (1982); Washington v. Davis, 426 U.S. 229, 246-48, 96 S. Ct. 2040, 2050-52, 48 L. Ed. 2d 597 (1976); Baldwin v. Birmingham Bd. of Educ., 648 F.2d 950, 954 (5th Cir.1981). The court recognizes that the test for intentional discrimination in suits under § 1981 is the same as the frame-work used in Title VII discriminatory treatment cases. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 656-57 (11th Cir.1993), cert. denied, ___ U.S. ___, 115 S. Ct. 69, 130 L. Ed. 2d 24 (1994); Brown v. American Honda Motor Co., 939 F.2d 946, 949 (11th Cir. 1991), cert. denied, 502 U.S. 1058, 112 S. Ct. 935, 117 L. Ed. 2d 106 (1992) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 185-87, 109 S. Ct. 2363, 2377-78, 105 L. Ed. 2d 132 (1989)). Since the Title VII and § 1981 are inextricably intertwined, the court will not conduct a separate analysis of the § 1981 claim. Therefore, based on the above Title VII analysis, the court finds that Ms. Douglas has failed to establish a prima facie case of a § 1981 violation.
3. ADEA
In an action alleging disparate treatment under the ADEA, a plaintiff must prove an intentional discriminatory motive by presenting either direct or circumstantial evidence of age discrimination. St. Mary's, 509 U.S. at 519-20, 113 S.Ct. at 2754; see e.g., Lee v. Russell County Bd. of Educ., 684 F.2d 769, 771-72 (11th Cir.1982). Essentially, "[a] plaintiff may establish a prima facie case of age discrimination in one of three ways: (1) with direct evidence, (2) with circumstantial evidence, or (3) with statistical evidence." Corbin v. Southland Int'l Trucks, 25 F.3d 1545, 1548 (11th Cir.1994) (citing Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1500 (11th Cir.1991)). Absent direct or statistical evidence, as is the case here, a plaintiff can establish intentional discrimination under a variation of the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 *1556 (1973)[10] and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
Under this framework, Ms. Douglas must first raise an inference of discrimination by establishing a prima facie case. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994) (citation omitted). Prima facie proof of age discrimination in promotion cases requires Ms. Douglas to show: (1) that she belongs to a protected group; (2) that she applied for and was qualified for the position for which the employer was seeking applicants; (3) that she was denied the promotion; and (4) that another equally or less qualified individual outside the protected class received the promotion. Batey, 24 F.3d at 1334 n. 11 (citing Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.1988), cert. denied, 490 U.S. 1006, 109 S. Ct. 1641, 104 L. Ed. 2d 156 (1989)); see Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990).
Under the ADEA, as opposed to Title VII race and sex claims, Ms. Douglas does not necessarily have to show that the employer filled the position with someone outside the protected age group. As explained in Corbin, supra: "The plaintiff in an age discrimination case may establish a prima facie case merely by establishing that his [or her] replacement was younger than he [or she but over forty years old], provided that the discrepancy between the ages, along with any other relevant evidence, is sufficient that a fact finder could reasonably infer age discrimination." Id. at 1549 (brackets added).
It is undisputed that Ms. Douglas is a member of a protected group (i.e., over the age of forty) and that she applied for, and was refused, the position of chief of the Utilities Division. However, as discussed supra, the court finds that Ms. Douglas was not qualified for the position she sought.[11] Notwithstanding this determination, the court also finds that the record is devoid of any evidence inferring age discrimination. Age must be "a determinative factor in the employer's decision, though it need not have been the sole factor." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir.1987); see also Monroe v. United Air Lines, Inc., 736 F.2d 394, 402 (7th Cir.1984), cert. denied, 470 U.S. 1004, 105 S. Ct. 1356, 1357, 84 L. Ed. 2d 378 (1985) (circuit approval for "a determining factor" jury instruction); Cuddy v. Carmen, 694 F.2d 853, 857-58 (D.C.Cir.1982) (Plaintiff must "show by a preponderance of the evidence that age was `a determining factor' in the employer's decision" or that age "made a difference."). Ms. Douglas has not presented any evidence that the articulated reason for the failure to promote her is actually a cover-up for age discrimination. Because age was not a factor in the decision not to promote Ms. Douglas, the court finds that Mr. Sessions' motion for summary judgment concerning age discrimination is due to be granted.
D. State Law Claim
Because the foregoing reasons are sufficient to support summary judgment, the court need not address the remainder of the defendants' contentions regarding the statute of limitations and qualified immunity. However, the court will address whether it will exercise supplemental jurisdiction over the remaining state claim, which is brought under Ala.Code §§ 36-26-10(f) and 36-26-23. Mr. Evans and Mr. Sessions contend that the court should decline jurisdiction and permit the state courts of Alabama to consider the state claim.
The Judicial Improvements Act of 1990, Pub.L. No. 101-650, 104 Stat. 5089, substantially altered the law concerning ancillary and pendent jurisdiction. The Act creates, as 28 U.S.C. § 1367, a new provision concerning "supplemental jurisdiction." This *1557 provision codifies and revises the law that had developed under the labels "pendent" and "ancillary" jurisdiction. Specifically, subsection (a) of § 1367 dictates that as long as a federal district court has original jurisdiction of a claim, the court
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.
The court stresses that the Act makes supplemental jurisdiction mandatory unless there is a specific statutory exception. One such exception provided in subsection (c) of § 1367 states:
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, where there are other compelling reasons for declining jurisdiction.
In accordance with the foregoing authority, since no claims remain from which the court had original jurisdiction, the court shall dismiss the remaining state claim without prejudice.[12]
CONCLUSION
For the foregoing reasons, the court finds that defendants James H. Evans and Jeff Sessions' motions for summary judgment relating to the federal claims are due to be granted. The court further finds that the remaining state claim in this case is due to be dismissed without prejudice. A judgment in accordance with this memorandum opinion will be entered separately.
NOTES
[1] Sandra Douglas brought this action against James Evans in both his individual and official capacity, as Attorney General of Alabama. Jeff Sessions defeated James Evans in his bid for reelection. Therefore, the action against James Evans in his official capacity passes to Jeff Sessions, as Rule 25 of the Federal Rules of Civil Procedure, instructs:
When a public officer is a party to an action in his [or her] official capacity and during [his or her] pendency ... ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party.
Fed.R.Civ.P. 25(d) (brackets added).
[2] Pursuant to 28 U.S.C. § 1331, the federal district courts have "original jurisdiction of all civil actions arising under the Constitution, laws ... of the United States."
[3] Mr. James Evans served as Alabama's Attorney General from 1990 to 1994.
[4] The lawsuit charged South Central Bell with fraud and deceit in its accounting methods in connection with BAPCO's revenues. However, the Circuit Court of Montgomery County dismissed the lawsuit. Dep. of Douglas at 176-80; Aff. of Johnson.
[5] The Eleventh Circuit, in the en banc decision of Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1, 1981.
[6] 42 U.S.C.A. § 2000e-2(a)(1) (West 1981) provides: "It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin."
[7] The Eleventh Circuit has repeatedly emphasized that an overly strict formulation of the components of a prima facie case is to be avoided. Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1555 n. 12 (11th Cir.1995); Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir.1989). The analysis is fact specific: "would an ordinary person reasonably infer discrimination if the facts presented remained unrebutted?" Id.
[8] As stated earlier, pursuant to Rule 25 of the Federal Rules of Civil Procedure, the action against Mr. Evans in his official capacity passes to Mr. Sessions.
[9] 42 U.S.C. § 1981 provides in part: "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens."
[10] While McDonnell Douglas involved a discrimination claim under Title VII, a variant of its analysis applies to claims under the ADEA as well. Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1500 (11th Cir.1991) (citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990)); see also Corbin v. Southland Int'l Trucks, 25 F.3d 1545, 1549 (11th Cir.1994).
[11] Since Title VII and the ADEA are inextricably intertwined, the court will not conduct a detailed analysis of Ms. Douglas' qualifications in connection with her ADEA claim.
[12] The court does not consider whether the statute of limitations has run on Ms. Douglas' state law claim as "subdivision (d) of § 1367 recognizes the serious statute of limitations problems a claim may face after it has been `declined' in a federal action." 28 U.S.C. § 1367 (quoting Practice Commentary at p. 836). Specifically, subdivision (d) recognizes that "it may now be too late under the state statute of limitations to bring a state action on the claim." Id. Therefore, subdivision (d) provides "that the [plaintiff] shall have at least a 30-day period [to file] the state action after it is dismissed by the federal court." Id. |
9,645,504 | 2023-08-22 21:27:14.656347+00 | Morrison | null | OPINION
MORRISON, Judge.
The offense is murder without malice; the punishment, five years.
Appellant’s first ground of error is the exclusion by the court of certain testimony from Officer Alvarez. From counsel’s statement to the court it appears that such was an oral declaration made by appellant thirty-five minutes after the homicide and while he was in custody. We are not called upon to pass upon the question of whether the statement was a part of res ges-tae, because nowhere in this record do we find what the witness would have testified to had he been permitted to testify. Counsel offered certain numbered pages from what was purported to be a statement of facts on a former trial, but the same were not made a part of this record on this appeal. Vistal v. State, Tex.Cr.App., 402 S.W.2d 195, and Johnson v. State, Tex.Cr.App., 379 S.W.2d 329, are authority for the rule that a bill of exception to the court’s action in sustaining the State’s objection to questions propounded to a witness without a showing of what the answer of the witness would have been, presents nothing for review.
Appellant’s next ground of error relates to the admission of the testimony of Officer Althoff concerning a test conducted by him and his partner at appellant’s home on the night following the homicide relative to the visibility and ability to recognize a person in an automobile where deceased had been found on the night preceding. Appellant clearly waived any objection he may have had to Officer Althoff’s testimony when he permitted Officer Lattimer (Al-thoff’s partner) to testify as to the same test and results without objection. Autry v. State, Tex.Cr.App., 264 S.W.2d 735, is authority for the rule that the admission of improper evidence is not error if the same facts are proven by other testimony not objected to.
Appellant’s third ground of error is-that the Court erred in failing to grant his-motion for instructed verdict because the State had introduced what he contends was-an exculpatory statement and had not discharged its burden of disproving the same. The statement in question was elicited without objection from Officer Fisher who arrived upon the scene and who went to the assistance of deceased while his partner went into appellant’s house. He stated that he overheard appellant yelling in his house as follows: “He yelled something about he shot his wife; he thought she was stealing the car.” We are met at the outset with a determination of whether such statement *416was exculpatory. This Court has held that a statement is not exculpatory unless it exculpates. McGowan v. State, 159 Tex.Cr.R. 10, 259 S.W.2d 218, and Perez v. State, 160 Tex.Cr.R. 376, 271 S.W.2d 281. A literal interpretation of the words quoted above would clearly be that appellant knew that it was his wife and shot at her to prevent her from “stealing” the automobile. This would not be exculpatory.
While it is true that appellant offered in evidence the testimony of Edward Putty presumably given at a former trial where he testified that appellant’s explanation was “He said that he thought she was a car thief”, this Court has uniformly held that where the accused offers the statement, the State is under no obligation to disprove the same. Johnson v. State, 167 Tex.Cr.R. 162, 319 S.W.2d 397, and Marion v. State, Tex.Cr.App., 387 S.W.2d 56.
Appellant’s ground of error #4 relates to the court’s order refusing him permission to file additional record or transcript. Notice of appeal was given on May 27, 1966. The record before us contained no written designation of the matter to be included in the record as is required by Article 40.09, Sec. 2, Vernon’s Ann.C.C.P. We do find, however, that on December 14, 1966, counsel for the State and appellant approved “the foregoing 466 pages” as “the complete record in this cause.” Such record was approved by the court on December 16, 1966.
The record contains no copy of a motion which formed the basis of the court’s order entered February 6, 1967, but the order itself refers to appellant’s motion for extension of time to file brief and motion for permission to file additional transcript. Such order granted the first motion and denied the second.
Article 40.09, Sec. 2, provides:
“Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the clerk within sixty days after notice of appeal is given.”
Since counsel filed no designation of the matters he desired to be included within the record and since he approved the 466 page record on appeal on December 14, 1966, the court did not err in refusing him permission to file additional record thereafter. Conerly v. State, Tex.Cr.App., 412 S.W.2d 909.
Finding no reversible error, the judgment is affirmed. |
9,645,505 | 2023-08-22 21:27:14.66043+00 | Dice | null | OPINION
ON APPELLANT’S MOTION FOR REHEARING
DICE, Judge.
Appellant insists that we erred in our original opinion in refusing to consider his ground of error # IV, in which he complained of the court’s refusal to grant a new trial because of alleged jury misconduct.
He concedes that the records of the proceedings on the hearing of the motion were not included in the record on appeal, and requests this court to issue its writ of certio-rari directing the trial court to complete the record on appeal by certifying such proceedings to this court.
In our original opinion we upheld the court’s action in refusing appellant permission to file the additional record, because no written designation of the matter to be included therein had been made by appellant, as required by Art. 40.09, subd. 2, supra, and the record on file had been approved by him.
Under such facts we will not direct the trial court, by writ of certiorari, to do that which we correctly held on original submission he did not err in refusing to do.
*417Our conclusion in Clewis v. State, 415 S.W.2d 654, cited by appellant, to accept the belated entry and filing of a trial court’s findings in passing upon the admission of a written confession under the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, is not here applicable.
Remaining convinced that a correct disposition was made of the case on original submission, the motion for rehearing is overruled. |
1,516,397 | 2013-10-30 06:32:54.18877+00 | Davis | null | 916 F.Supp. 528 (1996)
Andrejs V. STRAUSS, M.D., et al., Plaintiffs
v.
PENINSULA REGIONAL MEDICAL CENTER, et al., Defendants
Civil A. No. AMD95-1949.
United States District Court, D. Maryland.
February 29, 1996.
*529 Jack C. Tranter, Peter E. Keith, Thomas C. Dame and Gallagher, Evelius & Jones, Baltimore, Md., for plaintiffs.
Roger D. Redden, Michael F. Brockmeyer, Kurt J. Fisher and Piper & Marbury, L.L.P., Baltimore, Md., for defendant Peninsula Regional Medical Center.
Robert B. Kershaw, John A. Bourgeois and Quinn, Ward & Kershaw, Baltimore, Md., for defendants Drake, Blumberg, Brookland and Zinreich, M.D., P.A., and Albert L. Blumberg, M.D.
DAVIS, District Judge.
This action, instituted by two physicians against a hospital which terminated their staff privileges, requires this Court to explore the implications of Anne Arundel General Hospital, Inc. v. O'Brien, 49 Md.App. 362, 432 A.2d 483 (1981), which recognized a breach of contract claim under some such circumstances.
I. INTRODUCTION
Plaintiffs, Andrejs V. Strauss, M.D. ("Strauss"), Vincenzo DeMasi, M.D. ("DeMasi"), and Drs. Strauss, DeMasi & Associates, P.A. (the "Strauss/DeMasi group"), instituted this action against defendants, Peninsula Regional Medical Center ("Peninsula Regional") Drake, Blumberg, Brookland & Zinreich, M.D., P.A. (the "Drake/Blumberg group"), and Albert L. Blumberg, M.D. ("Blumberg"), alleging violations of federal and state antitrust laws, breach of contract, and defamation, as a result of the termination of their medical staff privileges at Peninsula Regional. This Court has federal question jurisdiction over the federal antitrust claim and supplemental jurisdiction over the state claims. 28 U.S.C. §§ 1331, 1367(a). Pending before the Court are cross motions for partial summary judgment on the breach of contract claim.[1] The parties have fully briefed the *530 issues; no hearing is deemed necessary. See Local Rule 105.6 (D.Md.1995).
For the reasons set forth below, the motions for summary judgment shall be denied because the Court is not allowed at this stage to draw inferences supportive of the ultimate facts on which this case turns. As an aid to the parties in future proceedings in this case, the Court will set forth a detailed version of the historical events underlying this dispute, and will endeavor to note those areas where the possibility of conflicting inferences are present. As will become apparent, in the Court's estimation, the outcome of the breach of contract claim turns largely upon the ultimate motivation and intent the fact-finder elects to ascribe to the actions constituting the undisputed historical facts.
II. SUMMARY JUDGMENT STANDARDS
Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "Summary judgment is not appropriate when there is an issue of fact for a jury to determine at trial, which is the case when there is sufficient evidence favoring the non-moving party upon which a jury can return a verdict for that party." Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991).
A party opposing a properly supported motion for summary judgment "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985); see O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 545 (4th Cir.1995). "When a motion for summary judgment is made and supported as provided in this rule, an adverse 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 in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). See also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Shealy, 929 F.2d at 1012. Furthermore, the facts, as well as the inferences to be drawn from the facts, must be viewed in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587-88, 106 S.Ct. at 1356-57; United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). The burden is on the moving party to demonstrate the absence of any dispute of material fact. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
When both parties file motions for summary judgment, as here, the court applies the same standards of review. ITCO Corp. v. Michelin Tire Corp., Com. Div., 722 F.2d 42, 45 n. 3 (4th Cir.1983), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985) ("The court is not permitted to resolve genuine issues of material facts on a motion for summary judgment even where ... both parties have filed cross motions for summary judgment.") (emphasis omitted); Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991).
The role of the court is to "rule on each party's motion on an individual and separate basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard." Towne Management Corp. v. Hartford Acc. and Indem. Co., 627 F.Supp. 170, 172 (D.Md.1985) (quoting 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice *531 and Procedure: Civil 2d § 2720). See Federal Sav. and Loan Ins. Corp. v. Heidrick, 774 F.Supp. 352, 356 (D.Md.1991). "[C]ross-motions for summary judgment do not automatically empower the court to dispense with the determination whether questions of material fact exist." Lac Courte Oreilles Band, Etc. v. Voigt, 700 F.2d 341, 349 (7th Cir.), cert. denied, 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983). "Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987). Both motions may be denied. See Shook v. United States, 713 F.2d 662, 665 (11th Cir.1983).
"[B]y the filing of a motion [for summary judgment] a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary's theory is adopted." Nafco Oil and Gas, Inc. v. Appleman, 380 F.2d 323, 325 (10th Cir.1967); see also McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (Fed.Cir.1982) ("neither party waives the right to a full trial on the merits by filing its own motion"). However, when cross motions for summary judgment demonstrate a basic agreement concerning what legal theories and material facts are dispositive, they "may be probative of the non-existence of a factual dispute." Shook, 713 F.2d at 665. In the instant case, a careful review of the voluminous record establishes that, although there is no genuine dispute of material historical fact, there is a very substantial dispute as to the inferences (as to institutional intent, motivation and importantly, good faith) which arise from those facts. Thus, viewing the facts (and the inferences based thereon) most favorably to the non-movant as to each motion, each motion must be denied.
III. FACTS
Peninsula Regional is an acute and tertiary care facility located in Salisbury, Maryland.[2] In 1981, Peninsula Regional established a hospital-based radiation therapy facility equipped with two linear accelerators and a simulator.[3] Peninsula Regional recruited plaintiff Strauss, a board certified radiation oncologist then practicing in Florida, to provide radiation oncology services at the new radiation therapy facility.
Strauss and Peninsula Regional entered into an exclusive contract for radiation oncology services, effective June 1, 1981. Pursuant to the contract, Strauss was appointed Director of Radiation Therapy within the Department of Radiology, and was granted active medical staff privileges, as provided by the Peninsula Regional Medical Staff Bylaws ("Medical Staff Bylaws"). As Director, Strauss exercised supervisory authority over the planning, staffing and daily functions of the radiation oncology program. As a consequence of his exclusive contract with Peninsula Regional, Strauss effectively had the authority to designate physicians who would receive medical staff privileges in radiation oncology.
In 1987, Strauss invited DeMasi, who was then a fellow at the University of Chicago Medical School, to join the radiation oncology medical group at Peninsula Regional. DeMasi was hired, and he also was granted active medical staff privileges pursuant to the Medical Staff Bylaws, and later became Strauss's business partner and a shareholder of the Strauss/DeMasi group, a professional association incorporated under the laws of Maryland. In 1990, the Strauss/DeMasi group hired Catherine North, M.D., a radiation oncologist, who also received active medical staff privileges at Peninsula Regional. At a later date, the group hired Gail C.S. Anderson, M.D.
*532 Strauss's exclusive contract with Peninsula Regional to provide radiation oncology services was continuously renewed until May 31, 1992, when the parties failed to agree on renewal terms. Consequently, the radiation oncology program at Peninsula Regional began to function with an "open" medical staff; it was no longer a "closed" medical staff composed exclusively of members and employees of the Strauss/DeMasi group.[4] As a result of the "open" medical staff policy, North left the Strauss/DeMasi group in early June 1992 and established her own competing radiation oncology practice at Peninsula Regional. North hired Scott Edwards, M.D., as her employee.
Disputes between plaintiffs and North arose over such issues as patient referrals, scheduling of patients on the available equipment and the peer review process. Members of the two competing practice groups also experienced "interpersonal difficulties." Less euphemistically, the relationships were wracked by charges of patient stealing, assault and battery, intimidation and the like. In a letter to Louis Himes, Vice President of Medical Affairs, dated October 19, 1993, North reported that "the atmosphere is extremely charged as there is considerable animosity between the two radiation oncology groups." Akin Aff. Ex. 3. On December 29, 1993, in an effort to resolve the "interactive problems of the [r]adiation [o]ncologists," the Professional Review Committee of the Medical Staff reviewed the entire radiation oncology program and made several recommendations to the Executive Committee of the Medical Staff (the "Medical Staff Executive Committee"). The Professional Review Committee recommended that the radiation oncology program be reorganized into an independent division of the Department of Radiology, and that members of the division elect its leadership.[5] The Professional Review Committee also recommended that steps be taken to separate the two practice groups physically, since the vitriol between the physicians had also infected their respective office staffs. In April 1994, the Board of Trustees of Peninsula Regional (the "Board") formally created the Division of Radiation Oncology and approved the rules and regulations for the new division. At the first division meeting on April 19, 1994, Strauss was elected Division Chief, and DeMasi was elected Assistant Division Chief, essentially because the Strauss/DeMasi group controlled a majority of the voting members of the division. North refused even to attend the meeting.
On June 20, 1994, plaintiffs informed Dan H. Akin, President and Chief Executive Officer of Peninsula Regional, that they were in the process of building a free-standing, for-profit radiation therapy facility in Berlin, Maryland, approximately twenty-five miles from Peninsula Regional (the "Berlin facility"). This news caused the President and the Board considerable concern. At its regular monthly meeting on July 7, 1994, members of the Board expressed concern over the Berlin facility "competing directly" with Peninsula Regional for patients. The Board was also concerned about the fact that "a significant amount of Medical Center resources in time and dollars [had] been expended" in preparing for a multi-million dollar bond issue, in cooperation with the Maryland Health and Higher Educational Facilities Authority, to finance the expansion of the hospital-based radiation facility. Furthermore, the Board was disturbed by the fact that while plaintiffs were building the Berlin facility, they were also members of the Radiation Oncology Design Team, advising Peninsula Regional on the need to expand the hospital-based radiation facility. The minutes of the July 7 Board meeting reveal that the Board decided to "put on hold" the radiation facility expansion plans, while its Executive Committee *533 "develop[ed] a plan of action/recommendations." Akin Aff.Ex. 10.
On July 28, 1994, the Board held a special meeting to discuss what action should be taken, if any, in light of the recent disclosure that the plaintiffs were "secretly and deceptively constructing a radiation oncology unit at Berlin while encouraging [Peninsula Regional] ... to expand [its] radiation oncology capability by 50%." Akin Aff.Ex. 11, Minutes of Special Meeting, Board of Trustees, at 2. In executive session, legal counsel presented a "Statement of Facts" regarding Strauss's and DeMasi's activities, and proposed certain Board action. The Board discussed, inter alia, (1) the effect that the Berlin facility would have on the expansion of the hospital-based facility, and (2) the manner in which the Board should participate, if at all, in the development of the Berlin facility. At the end of the meeting, the Board adopted a resolution, which provided:
(1) The Board is morally offended and disgusted by the actions taken by Drs. Strauss and DeMasi[;]
(2) The Board finds on the basis of report [sic] there is reasonable cause to believe that the Statement of Facts is true[;]
(3) The Board directs the Chairman of the Board to appoint a special committee of the Board, which consists [sic] of members of the Executive Committee of the Board, plus the President of the Medical Staff, to meet with Drs. Strauss, DeMasi, and Anderson for the purpose of affording Drs. Strauss, DeMasi and Anderson an opportunity to address and respond to such relevant findings of facts as the committee may believe to be true[;]
(4) The Board declares a moratorium on accepting applications of new physicians on Medical Staff in the Division of Radiation Oncology for a period not to exceed one year[;]
(5) The Board directs the Administration to promptly investigate the advisability and feasibility of closing the Division of Radiation Oncology and awarding an exclusive contract to a physician or physicians to provide professional services within the hospital format.
Akin Aff.Ex. 11.
At the same meeting, an unidentified person "emphasized" that the Board would unavoidably have to address the complete issue of whether Peninsula Regional is "willing to compete with the Berlin facility and at the same time subsidize the competing facility by allowing the involved physicians to maintain Medical Staff privileges." Id.
The Special Committee of the Board (the "Special Committee"), created by the July 28, 1994, Board resolution, made an effort to meet with members of the Strauss/DeMasi group. Strauss and DeMasi did not meet with the Special Committee in the summer of 1994. However, Anderson, the sole physician-employee of the Strauss/DeMasi group, attended the August 17, 1994, Committee meeting together with her attorney. The details of Anderson's statement to the Special Committee were not recorded in the minutes of the meeting, but the Committee concluded that Anderson was not involved in the plans to open the Berlin facility. The Special Committee then had "extended discussion" on recruiting radiation oncologists and appointing a Medical Director for Radiation Oncology. The Committee formed a subcommittee (the "Search Committee"), composed of three physicians, one Board member, and two administrative personnel, to begin the "active recruitment of an outside radiation oncologist(s)" who has "recognized medical and administrative abilities to take over operation of the radiation oncology unit." Akin Aff.Ex. 12.
The Search Committee met with two radiation oncology groups: (1) the Division of Radiation Oncology of The Johns Hopkins Health System, and (2) the Drake/Blumberg group, which operated the radiation oncology program at Greater Baltimore Medical Center. The two groups examined the radiation oncology services provided at Peninsula Regional and discussed the possibility of an exclusive contract and other compensation alternatives, which included: (1) salary plus incentives; (2) fee-for-service; (3) combination of fee-for-service and a medical directorship contract.
*534 On November 2, 1994, the Special Committee met with plaintiffs. The Special Committee told plaintiffs that Peninsula Regional would only consider buying 100% ownership of the Berlin facility at fair market value, and that there could be no partial ownership. The Committee also told plaintiffs that Peninsula Regional was negotiating an "exclusive" contract with a new management group, with the aim of establishing a single group of physicians in the Division of Radiation Oncology with a new medical director.[6] On the following day, Strauss responded in a letter stating, inter alia, that his practice group stood "ready to enter into meaningful discussion and negotiations which would lead to a joint approach to the Berlin facility." However, he continued, "good faith negotiation can only be had if the proposed `new leadership' mentioned at our prior meeting, which you advised meant the importation by [Peninsula Regional] of physicians from outside of the Eastern Shore into [the] Department [of Radiology], is removed." Akin Aff. Ex. 17. Further negotiations between plaintiffs and the Board did not take place immediately.
On January 11, 1995, the Executive Committee of the Board convened to consider recommendations of the Special Committee of the Board and of the Medical Staff Executive Committee. The Executive Committee unanimously approved a resolution, which inter alia accepted the Special Committee's recommendation that the Drake/Blumberg group be awarded an exclusive contract for radiation oncology services at Peninsula Regional. The resolution stated that the decision to enter into an exclusive contract was, in part, based on:
a documented history of repeated instances of disruptive physician behavior, sometimes in the presence of patients and Hospital staff; inadequate quality assurance programs; and an inability of current Staff physicians to cooperate and work effectively with one another and Hospital employees, all adversely affecting Hospital staff, the orderly operation of the Division, and the quantity and quality of services delivered therein.
Pls.' Mot.Part.Summ.J., at Ex. 6.
The Executive Committee also considered the Medical Staff Executive Committee's recommendations to: (1) grant DeMasi and Anderson medical staff privileges for a two year term,[7] and (2) appoint Strauss as Chairman of the Division of Radiation Oncology. The Committee rejected both recommendations. The Committee instead resolved that the medical staff privileges of DeMasi and Anderson would be granted only on a temporary basis for 90 days, in order to provide DeMasi and Anderson with "a reasonable opportunity to enter into mutually acceptable arrangements" with the Drake/Blumberg group. Pls.' Mot.Part.Summ.J., Ex. 6. The Committee's primary reason for rejecting the Medical Staff Committee's recommendations was based on the fact that approving such recommendations would have prevented Peninsula Regional from entering into the "exclusive" contract with the Drake/Blumberg group for radiation oncology services.[8]
*535 On January 12, 1995, the Board approved the Executive Committee's resolution and formally informed plaintiffs and the other radiation oncologists of the decisions to grant an exclusive contract for radiation oncology services to the Drake/Blumberg group and to provide them with an opportunity to make "acceptable arrangements with the new Medical Directorship." At the next Board meeting on February 2, 1995, a delegation of physicians presented to the Board a unanimously-adopted motion of the Medical Staff to request that the Board rescind its decision to deny DeMasi and Anderson full two-year medical staff privileges. The Board rejected the unanimous recommendation, reaffirmed its prior decision and executed an exclusive contract with the Drake/Blumberg group.[9]
Under the terms of the exclusive contract, Blumberg became Medical Director of the Division of Radiation Oncology. The contract also provided that Blumberg was obligated to "utilize reasonable and appropriate efforts" to hire the existing physician staff of the Division of Radiation Oncology Strauss, DeMasi, Anderson, North and Edwards as employees of his practice group. If the incumbent radiation oncologists were unable to become physician-employees of the Drake/Blumberg group, however, their medical staff privileges would terminate on the following dates: Strauss, January 4, 1996; DeMasi, April 15, 1995; Anderson, April 15, 1995; North, January 4, 1996; and Edwards, July 6, 1995. Pls.' Mot.Part.Summ.J., Ex. 5, at Art. 13. In due course, Blumberg made employment offers to all of the radiation oncologists, however, for reasons that are unclear, Blumberg was unable to negotiate agreements with any of them.
There is substantial evidence in the record that Blumberg was perceived by the Medical Staff in general, and by the incumbent radiation oncologists in particular, as an interloper from "across the Bay" and an "out-of-towner" whose presence and managerial control might adversely affect the environment for medical practitioners at Peninsula Regional.
Pursuant to DeMasi's (and presumably Anderson's) request, on March 24, 1995, a hearing began on the issue of whether DeMasi's and Anderson's medical staff privileges were appropriately renewed for only 90 days. DeMasi, Anderson and Peninsula Regional were represented by counsel. Four witnesses testified at the hearing: (1) Gregory W. Lewis, a cancer program consultant; (2) Louis H. Himes, II, M.D., Vice President of Medical Affairs; (3) Sherrie Quillen, Director of Quality Review; and (4) Donald W. Mabe, Chairman of the Board. DeMasi Aff. Ex. 4. After one day of testimony, the hearing was suspended, ostensibly because the issue was moot, in light of the decision to enter into the exclusive contract with Blumberg.
Meanwhile, in a remarkable rapprochement between Strauss, De Masi and North which came to a head on April 6, 1995, the former combatants jointly proposed to the Board that Peninsula Regional purchase the Berlin facility from Strauss and DeMasi and integrate that facility into the hospital's treatment regime, and that Strauss, DeMasi and North be permitted to form a unified practice group to operate the division of radiation oncology. In an effort to assuage concerns over a continuation of earlier incivilities, the Strauss/DeMasi/North proposal included expression of a willingness on their part to accept an "outside" medical director who would not, himself or herself, see patients. This not-so-veiled attempt to oust Blumberg was rejected by the Board, which seemingly rested its decision to reject the proposal on the fact that financially, it would be imprudent to undertake responsibility for the fledgling Berlin facility.
*536 At its May 4, 1995, meeting, the Board did not specifically address renewing DeMasi's and Anderson's staff privileges. Instead, the Board's discussion focused on Blumberg's failure to enter into employment agreements with any of the current radiation oncologists. Blumberg attended the meeting and stated that he was willing to renegotiate his contract so that the current radiation oncologists could be "grandfathered" into his contract. Board members discussed the possibility of "grandfathering" Anderson, Edwards and North "under the provision that they work under [Blumberg's] medical directorship." Akin Aff.Ex. 25. Moreover, an unidentified person at the meeting suggested that Strauss and DeMasi should also be given the opportunity to be grandfathered. Id. at 3. However, the Board adopted a motion which authorized the Board to offer only Anderson, North and Edwards an opportunity to be "grandfathered" as practicing radiation oncologists. In late May, Anderson, North and Edwards entered into separate agreements with Peninsula Regional, in which they were allowed to continue their separate practices within the Division of Radiation Oncology "without becoming employees of, or otherwise economically affiliated with, [] Blumberg or his associates." Akin Aff.Ex. 26. However, as a cost of this arrangement, these physicians relinquished some indeterminate quantum of protection afforded by the Medical Staff Bylaws; disciplinary actions, including termination, were left within the authority of Blumberg and the Executive Committee of the Board of Trustees.
On June 1, 1995, the Board adopted a resolution which terminated Strauss's and DeMasi's staff privileges effective July 15, 1995 (the "June Resolution"). In the June Resolution, the Board noted that continued exercise of privileges by Strauss and DeMasi would be inconsistent with Peninsula's "goals and objectives." Furthermore, the June Resolution stated that privileges were being terminated because Strauss and DeMasi:
a. Developed a competing facility in Berlin, Maryland;
b. Withheld information concerning the development of such facility from Hospital Administration and Board;
c. .... [U]ndertook to advise the Hospital concerning expansion of its radiation oncology facility without disclosing their adverse economic interest(s), all to the detriment of the Hospital's interest and in furtherance of their own interests; [and]
d. Since completion of their Berlin facility, have operated the same in a manner adverse to the Hospital's interests and in furtherance of their own interests.
Pls.' Mot.Part.Summ.J., Ex. 2. Accordingly, the Board refused to extend DeMasi's privileges and it "suspend[ed], revoke[d], and terminate[d]" Strauss's privileges. Id.
IV. DISCUSSION
Under Maryland law, "it is well settled that hospital bylaws have the force and effect of an enforceable contract." Anne Arundel Gen. Hosp., Inc. v. O'Brien, 49 Md. App. 362, 370, 432 A.2d 483, 488 (1981); Sibley v. Lutheran Hosp. of Maryland, 709 F.Supp. 657, 661-62 (D.Md.1989), aff'd, 871 F.2d 479 (4th Cir.1989); see also Hrehorovich v. Harbor Hosp. Center, Inc., 93 Md. App. 772, 789, 614 A.2d 1021, 1030 (1992).[10] This rule establishes that both the hospital's corporate and Medical Staff bylaws are enforceable contracts. See O'Brien, 49 Md. App. at 370, 432 A.2d at 488; Ziegler v. Mercy Health System Corp., No. 94-2905, 197 Wis.2d 117, 541 N.W.2d 838, 1995 WL 525250, at *2 (Wis.App. Sept 7, 1995); Bartley *537 v. Eastern Maine Medical Center, 617 A.2d 1020, 1021 (Me.1992); Islami v. Covenant Medical Center, Inc., 822 F.Supp. 1361, 1370 (N.D.Iowa 1992); Lewisburg Comm. Hosp., Inc. v. Alfredson, 805 S.W.2d 756, 759 (Tenn.1991); Terre Haute Regional Hosp. v. El-Issa, 470 N.E.2d 1371, 1377 (Ind.App. 1984); Berberian v. Lancaster Osteopathic Hosp. Ass'n, Inc., 395 Pa. 257, 263, 149 A.2d 456, 458 (1959); St. John's Hosp. Medical Staff v. St. John Regional Medical Center, Inc., 90 S.D. 674, 679, 245 N.W.2d 472, 475 (1976). Cf. Gianetti v. Norwalk Hosp., 211 Conn. 51, 57-59, 557 A.2d 1249, 1252-53 (1989) (holding that governing board of hospital has pre-existing duty to adopt medical staff bylaws, therefore bylaws do not create a contract, per se). Contra Munoz v. Flower Hosp., 30 Ohio App.3d 162, 166-67 507 N.E.2d 360, 364-66 (1985) (medical staff bylaws do not create an enforceable contract).
In their motion for partial summary judgment, plaintiffs contend (correctly) that the Medical Staff Bylaws constitute a contract between Medical Staff members and Peninsula Regional. Plaintiffs further contend that, by terminating their medical staff privileges while failing to comply with the requirements of the Medical Staff Bylaws, Peninsula Regional breached its contractual obligation. In adopting the Medical Staff Bylaws, plaintiffs assert, Peninsula Regional "bargained away its ability to terminate [m]edical [s]taff privileges without" holding a hearing to find cause. Plaintiffs argue that a refusal to renew privileges or a termination of privileges for alleged "disruptive and inappropriate physician behavior" is specifically addressed in the Medical Staff Bylaws, which afford them certain procedural protections.
Plaintiffs argue they should have been afforded a hearing, in consequence of the termination of their privileges based upon criteria found in Article V of the Medical Staff Bylaws, which governs the evaluation of applications for medical staff privileges. Article V, Section 1 provides enumerated criteria that are considered "[i]n addition to the basic qualifications" of a physician and are "applied to all [physicians] to determine the appointment and reappointment for Medical Staff membership." The list of criteria includes: (i) "[t]he moral character and professional competence of the [physician];" and (ii) "[t]he ability [of the physician] to work compatibly with patients, Medical Staff members, and hospital personnel." Pls.' Mot.Part. Summ.J., Ex. 1, Medical Staff Bylaws, Art. V, Sec. 1, pt. C, ¶ 1, 2.
Plaintiffs maintain that these criteria are identical to the reasons provided in the June Resolution of the Board, which terminated their privileges. The June Resolution stated that plaintiffs had "developed a competing facility," "withheld information," and advised Peninsula Regional's radiation oncology expansion committee "without disclosing their adverse economic interest(s)." Further, the Resolution provided that "for several years" the Board had "attempted to address multiple problems with the Hospital's Division of Radiation Oncology." Hence, plaintiffs argue that because Peninsula Regional decided to terminate plaintiffs' privileges based on criteria which are mirrored in the Medical Staff Bylaws, plaintiffs have a right to a hearing and other review procedures afforded to all Medical Staff members facing such adverse action.
Peninsula Regional does not contest plaintiffs' assertions that the Medical Staff Bylaws constitute a contract and that their medical staff privileges were terminated without a hearing. Rather, Peninsula Regional contends that the Medical Staff Bylaws do not apply to management decisions made by the Board, as the governing body responsible for the operational and financial management of Peninsula Regional.[11] In the *538 view of Peninsula Regional, the Medical Staff Bylaws "apply only to those situations where a physician's privileges are being restricted or revoked due to specific acts or omissions ... related to such issues as professional competence or the provision of patient care." Def.'s Mem.Supp. Cross Mot.Part.Summ.J. & Opp'n Pls.' Mot.Part.Summ.J., at 18. Defendant argues that, in this case, the Board made a "reasonable management decision" to close the medical staff of the Division of Radiation Oncology and to bring in new leadership. Therefore, Peninsula Regional maintains, the hearing and appeal provisions of the Medical Staff Bylaws are inapplicable and plaintiffs were not entitled to an evidentiary hearing to establish cause before the termination of their medical staff privileges.
Simply put, Peninsula Regional contends that plaintiffs misinterpret the Medical Staff Bylaws, arguing: "Were Peninsula Regional to initiate a process either to not re-new staff privileges or to terminate staff privileges under such stated criteria, the physician involved would have certain procedural rights provided by the Medical Staff Bylaws, including an evidentiary hearing." Def.'s Mem. Supp.Mot.Part.Summ.J. & Opp'n Pls.' Mot. Part.Summ.J., at 20. According to Peninsula Regional, a hearing is required only when a physician's privileges are being restricted or revoked due to specific allegations of professional incompetence or neglect which must be reported to federal and state regulatory agencies. The Court concludes for the reasons stated infra that Maryland law does not support such a narrow interpretation of medical staff bylaws.
Peninsula Regional contends that plaintiffs' privileges were terminated after the Board made a "reasonable management decision" to solve the problems in the Division of Radiation Oncology by bringing in new leadership and closing the medical staff of the Division. To support its basic contention that it is entitled to summary judgment because of its "management decision" prerogative, Peninsula Regional relies heavily on Anne Arundel General Hospital v. O'Brien, 49 Md.App. 362, 432 A.2d 483 (1981), as standing for the proposition that provisions in its Medical Staff Bylaws requiring an evidentiary hearing do not apply to management decisions made by a hospital's governing body. Id. at 371, 432 A.2d at 488.
In O'Brien, five radiologists[12] brought suit against Anne Arundel General Hospital ("Hospital") alleging breach of contract and other state and federal violations, due to the termination of their medical staff privileges. The radiologists provided "radiology services to the Hospital pursuant to an exclusive contract which expired on June 30, 1980 and pursuant to medical staff privileges granted by the Hospital." Id. at 365, 432 A.2d at 485. Before the exclusive contract expired, the Hospital Board decided to create an "imaging department" which was a consolidation of the radiology and nuclear medicine departments. After a formal selection process, the Hospital Board selected an outside physician, Friedman, as the exclusive provider for the imaging department and also appointed Friedman chief of the department. The terms of the contract became effective July 1, 1980.
Friedman was unable to negotiate a contract with the incumbent radiologists and therefore contracted with other physicians. When the incumbent radiologists later submitted applications for medical staff privileges in radiology, the hospital administrator returned the applications to them citing the exclusive contract the Hospital had with *539 Friedman. The radiologists then requested and were permitted to appear before the Medical Board to state their concerns about the status of the radiology department. The concerns raised by the radiologists were communicated to the Hospital Board, which had the matter investigated. The radiologists' exclusive contract and medical staff privileges were nonetheless terminated on June 30.
In their breach of contract suit, the five radiologists "challenge[d] the termination of their privileges[,] which they contend[ed] exist separate and apart from the exclusive contract entered into between [the new radiologist] and the Hospital." Id. at 370, 432 A.2d at 488. The radiologists argued, as plaintiffs argue in the instant case, that their privileges could not be terminated without affording them the protections provided in the Hospital's corporate and Medical Staff bylaws. The Hospital, however, argued that the radiologists' staff privileges terminated along with their exclusive contract. Moreover, the Hospital insisted that the radiologists' privileges could not be renewed as a result of the two following Hospital policy decisions: (1) to create the consolidated imaging department, and (2) to appoint Friedman as chief of the new department and as the exclusive provider. Id. at 368, 432 A.2d at 487.
The Maryland Court of Special Appeals, in O'Brien, found no merit to the argument that the exclusive contract and medical staff privileges were separate and distinct. More important, the court held that the procedure for a hearing and appeal set forth in the Medical Staff Bylaws did not apply. A hearing, the court observed, "contemplates the initiation of an adverse recommendation as to a practitioner which would result in an unfavorable decision on his status as a member of the staff or his right to exercise clinical privileges at the Hospital." Id. at 371-72, 432 A.2d at 488. The court added:
The facts are that an exclusive contract with [the radiologists] has expired and a new exclusive contract has been negotiated with Friedman's P.A. The requirement that the Hospital hold a hearing on what is essentially a management decision vested in the several governing boards of the private hospital was not contemplated by the charter and bylaws of the Hospital.
Id. at 373, 432 A.2d at 489. Moreover, the court found that the radiologists received all of the process to which they were arguably entitled by appearing before the Medical Board to discuss the substantive issues concerning the consolidated imaging department. Id. at 377, 432 A.2d at 491.
Here, Peninsula Regional maintains that O'Brien, as the controlling Maryland case, supports its contention that plaintiffs were not entitled to a hearing, as a result of the management decisions to enter into an exclusive contract with the Drake/Blumberg group and to appoint Blumberg medical director of the division. The Court disagrees with Peninsula Regional's application of O'Brien to the facts here, where the facts are viewed in the light most favorable to the plaintiffs.
Although O'Brien is instructive in deciding the present case, it is more useful in showing what decisions are excluded from the constraints of due process protections otherwise afforded by Medical Staff Bylaws than it is in instructing what decisional environments mandate that those protections must be afforded to individual practitioners.[13] This case is substantially different in several material *540 respects from O'Brien. First, the court in O'Brien found that the radiologists were not entitled to a hearing on the termination of their medical staff privileges because they did not have medical staff privileges independent of their exclusive contract. See id. at 373, 432 A.2d at 489. Once the radiologists' exclusive contract expired, the court stated, "the Hospital had no obligation to grant privileges to radiologists who might compete" with the new exclusive provider. Id., 49 Md.App. at 371, 432 A.2d at 488. In the instant case, plaintiffs only had an exclusive service contract prior to June 1992. After that time, the radiation oncology program operated with an open medical staff policy and the North group began competing with plaintiffs' group. Therefore, plaintiffs, in this case, had medical staff privileges independent of an exclusive contract.
Second, unlike the hospital in O'Brien, Peninsula Regional did not enter into an "exclusive" contract and close the medical staff of a particular department. Although a "closed" staff was the Board's objective, that objective was not achieved. At the May 4, 1995, meeting, the Board passed a motion providing the existing radiation oncologists with an opportunity to be "grandfathered," and thereby continue practicing within the Division of Radiation Oncology. Viewing the facts in favor of the plaintiffs, it appears that the Board specifically decided not to grant plaintiffs this opportunity. As a result, all of the other radiation oncologists, Anderson, North and Edwards, were permitted to continue practicing at Peninsula Regional, although Peninsula Regional exacted certain concessions from them in consideration for the continuation of their privileges. These concessions, amounting to a relinquishment of rights guaranteed under the very Bylaws plaintiffs here attempt to vindicate, constitute a high price to pay. Whether there was justification for exacting such a high price is open to debate, but no such factor was present in O'Brien.[14]
A third difference between the instant case and O'Brien is specific to Strauss. In O'Brien, the radiologists' medical staff privileges expired on June 30, 1980, along with their exclusive contract. Here, however, Strauss's medical staff privileges did not expire before the Board terminated them. Strauss held privileges for a two year term, expiring on January 4, 1996. The Board unilaterally decided to terminate Strauss's medical staff privileges five months before they expired.[15] This was done after the Board had entered into the illusory "exclusive" contract with Blumberg, which was predicated on the expectation that Strauss's privileges would terminate on January 4, 1996.
Finally, and perhaps most important, in O'Brien, "[n]o suggestion [was] made that the radiologists ... failed to conduct themselves properly while their contract with the *541 Hospital was in effect. There [was] nothing to defend." Id. at 373, 432 A.2d at 489. Here, despite Peninsula Regional's contention that "plaintiffs were not terminated for disruptive or dishonest behavior," the record (viewed in the light most favorable to plaintiffs) indicates otherwise.[16] As previously discussed, the June Resolution speaks for itself. The Resolution provides that the termination of plaintiffs' medical staff privileges was based, in part, on allegations of dishonesty, concealment of material facts, and self-dealing. See p. 536, supra.[17] Even the Board's seemingly innocuous decision to award the contact for radiation oncology services to the Drake/Blumberg group was based on "a documented history of repeated instances of disruptive physician behavior ... and an inability of current Staff physicians to cooperate and work effectively with one another." Pls.' Mot.Part.Summ.J., at Ex. 6. It would appear self-evident to this Court that "a doctor faced with charges of this kind must be given a due process opportunity to defend himself." O'Brien, 49 Md. App. at 371, 432 A.2d at 488.[18] Accordingly, if the fact-finder were to draw the inferences supported by plaintiffs' contentions as to the true motivations underlying Peninsula Regional's actions toward plaintiffs, O'Brien could be interpreted and applied quite justifiably to afford relief to plaintiffs.[19]
As to plaintiff DeMasi, there is further reason to apply O'Brien to afford a hearing. The provision of the Medical Staff Bylaws entitled "Review and Action by the Board," states:
*542 In the event that the recommendation of the Executive Committee of the Board of Trustees is not identical to either (a) that of the Executive Committee [of the Medical Staff], or
(b) the applicant's request, such recommendation shall give rise to a right to a hearing.
Id. at Art. V, Sec. 2, pt. E, ¶ 3. Based on the undisputed facts surrounding DeMasi's nonrenewal, DeMasi had a right to a hearing under this provision. On January 11, 1995, the Executive Committee of the Board considered the recommendation of the Medical Staff Executive Committee to grant DeMasi privileges for a two year term.[20] The Executive Committee of the Board rejected this recommendation, and instead recommended to the Board that DeMasi be granted privileges on a temporary, 90-day basis. The Board adopted its Executive Committee's recommendation. These facts alone appear to give rise to DeMasi's right to a hearing under Article V, Section 2. As the facts developed, DeMasi requested and was granted a hearing, which commenced on March 24, 1995. DeMasi's hearing was suspended after one day of testimony because, according to Peninsula Regional, the incipient decision to "close" the division of radiation oncology made his request for renewal of privileges "moot." The hearing was never resumed.
Of course, the division was not closed, as North, Anderson and Edwards were "grandfathered" notwithstanding the ostensible "exclusive contract" between Peninsula Regional and Blumberg.[21] Furthermore, it is incomprehensible how the propriety of a hearing could have been "moot" after one day of testimony but not on that same day before the hearing began. It must be recalled that the decision to enter into an exclusive contract with Blumberg was made in January. Thus, the timing of the aborted hearing that was offered DeMasi, and the asserted post hoc justification for pretermitting it, support plaintiffs' allegations of pretext. The fact-finder could well conclude, therefore, by a preponderance of the evidence, that DeMasi was improperly denied the opportunity to exercise his due process rights under the Medical Staff Bylaws.[22]
Peninsula Regional seems to argue in the alternative that the "disruptive behavior" that necessitated new leadership in the Division of Radiation Oncology involved physicians other than plaintiffs. The Court, however, has not been provided with even a scintilla of evidence to support this argument. In any event, the record provides ample evidence to support the inference that plaintiffs, especially DeMasi, had been guilty of "disruptive behavior" and therefore that Peninsula Regional intended to discipline on that basis. On two occasions, North wrote letters to Peninsula Regional administration, complaining that plaintiffs were uncooperative and that DeMasi had assaulted her in front of patients. Akin Aff.Ex. 3, 4. These incidents were the impetus which led to the creation of the Division of Radiation Oncology. Despite several structural changes to separate the two competing groups, "the problems with the Division continued." Def.'s Mem.Supp.Mot.Part.Summ.J. & Opp'n Mot.Part.Summ.J., at 8. Even viewing the facts and the inferences to be drawn from the facts in favor of defendants, the Court concludes that the "disruptive behavior" referred to in the June Resolution (and other *543 documents) involved plaintiffs. Therefore, if that were the actual motivation for plaintiffs' termination, rather than the benign management decision urged by Peninsula Regional, then pursuant to the Medical Staff Bylaws, plaintiffs must be afforded the opportunity to defend themselves against these allegations, because they constitute allegations that they "failed to conduct themselves properly" under O'Brien, 49 Md.App. at 373, 432 A.2d at 489, and that each "has failed in his duties to" Peninsula Regional. Id. at 371; 432 A.2d at 488.
Peninsula Regional also argues that an evidentiary hearing is not required in this case because the termination of plaintiffs' medical staff privileges cannot be considered an adverse professional review decision under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. Additionally, it claims that no hearing was necessary because it was not required to report the terminations to the State of Maryland Board of Physician Quality Assurance as an action reflecting adversely on plaintiffs' ability to practice medicine. This Court is not persuaded by this question-begging. The flaw in the contention lies in the fact that the question of whether to report the termination of plaintiffs' privileges to federal and state agencies in compliance with governing standards is irrelevant to defendant's obligation to follow the procedures set forth in the Medical Staff Bylaws, a contractual duty. No reason is evident why there should be any such equivalence in these areas; the indisputable need for due process in one context is scant reason to refuse to find it provided in a less harmful context. If Peninsula Regional wanted such a standard embodied in the Medical Staff Bylaws, it could have bargained for such a provision, but it did not, settling instead for a broadly-worded provision extending protection to an attack on a physician's "moral character" and his or her ability to "work compatibly with patients, Medical Staff members, and hospital personnel." See p. 537, supra.
Finally, Peninsula Regional contends that if the Court accepts plaintiffs' theory of the case, the logical extreme would be that physicians would have a "vested interest" in their medical staff privileges and that Peninsula Regional would not be able to make management decisions without being subject to the hearing requirements of the Medical Staff Bylaws. However, as the court stated in Redding v. St. Francis Medical Center, 208 Cal.App.3d 98, 255 Cal.Rptr. 806 (1989):
There is ... a definite distinction in the case law between the intentional actions of a hospital directed specifically toward the exclusion of a particular physician or groups of physicians, and the actions of a hospital which may, as a practical matter, result in the exclusion of individual practitioners but were undertaken for less personally directed reasons. Cases in the first category have protected physicians; cases in the latter category have often balanced the equities in favor of the hospitals.
Id. at 104, 255 Cal.Rptr. at 809. (emphasis added) The instant case very likely falls within the first category, however, only factfinding can disclose whether it does.[23]
V. CONCLUSION
For the aforementioned reasons, this Court concludes that the presence of disputed material factual inferences as to whether Peninsula Regional culpably failed to comply *544 with applicable procedures set forth in the Medical Staff Bylaws in terminating plaintiffs' medical staff privileges without affording plaintiffs a full and fair hearing precludes summary judgment for either party. There can be little question but that the Board of Trustees made what on its face is a "management decision" when it elected to bring order to the radiation oncology program by undertaking to reorganize it. However, the summary judgment record establishes as a matter of law that the Board acted on the basis of mixed motives. The potential for harm arising from the Board's undisputed actions to plaintiffs' reputational, professional and economic interests was real and substantial; the Bylaws are intended, in part, to protect those interests.
Moreover, the Court believes that the evidence that has been included in the summary judgment record generates a genuine issue of the Board's "good faith." See O'Brien, 49 Md.App. at 373, 432 A.2d at 490 (quoting Lewin v. St. Joseph Hospital of Orange, 82 Cal.App.3d 368, 385, 146 Cal.Rptr. 892 (1978) (emphasis added)). Reasonable persons might disagree whether on this record the Board acted from an animus specific to plaintiffs. Plaintiffs have the burden to persuade by a preponderance of the evidence that the mixed motives and methods resorted to by the Board in terminating their privileges fall on the permissible or the impermissible side of the line sketched by O'Brien, that is, between the legitimate, good faith exercise of a hospital board's fiduciary duties, on the one hand, and mischievous, pre-textual decision-making animated by a desire to avoid due process hearing procedures where in fairness those procedures should be invoked, on the other hand. This determination cannot be achieved in the summary judgment context. Accordingly, plaintiffs' cross motion for partial summary judgment and Peninsula Regional's cross motion shall be denied.
NOTES
[1] On July 18, 1995, the Court issued an Order denying plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction under the antitrust laws. That Order is currently pending before the United States Court of Appeals for the Fourth Circuit upon plaintiffs' appeal. This Court retains jurisdiction notwithstanding the interlocutory appeal. Taylor v. Sterrett, 640 F.2d 663, 667-668 (5th Cir.1981); Georgine v. Amchem Products, Inc., 160 F.R.D. 478, 487-488 (E.D.Pa.1995). On November 3, 1995, the Court denied a motion to intervene filed on behalf of the Medical Staff of Peninsula Regional, on the ground that the interests of the Medical Staff were adequately represented in this action.
[2] Peninsula Regional Medical Center, formerly known as Peninsula General Hospital Center, serves patients in Wicomico, Somerset and Worcester counties. Peninsula Regional is a non-profit corporation organized under the laws of the State of Maryland. Its governing body is the Board of Trustees.
[3] Radiation therapy is a widely used form of modern cancer treatment. It makes use of ionizing radiation, deep tissue-penetrating rays which destroy cancer cells.
[4] A "closed medical staff" is created under the terms of an exclusive arrangement, under which a hospital enters into a contract with a particular physician group for certain services, and thereby "closes" a practice area to other physicians who are not members or employees of the contracted physician group.
[5] The Review Committee also recommended to the Medical Staff Executive Committee that:
The physicians in Radiation Oncology should be advised that we will no [sic] tolerate shouting or arguing in front of patients in the Department and that such activities could bring on disciplinary action.
Akin Aff.Ex. 5
[6] On November 3, 1994, the Board approved a motion that the Special Committee:
(1) be allowed to execute an exclusive contract with a new leadership [sic] for radiation oncology and the establishment of a single medical unit under a new medical director of Radiation Oncology;
(2) be given authority to select the group, negotiate, and finalize the exclusive contract; and
(3) if Drs. Strauss and De Masi are interested in [Peninsula Regional] Medical Center buying their Berlin operation at fair market value[,] that the Committee proceed with appraisals, etc., and finalize [sic] sale based on Board approval.
Akin Aff.Ex. 16.
[7] Plaintiffs contend: "On or before October 15, 1994, Dr. DeMasi applied for reappointment to the Medical Staff [of Peninsula Regional]. Dr. DeMasi satisfied all qualification and other criteria for Medical Staff membership." Pls.' Mot. Part.Summ.J., at 6 n. 6. Defendant does not dispute this contention.
[8] The January 11 resolution of the Executive Committee also provided:
Although the Executive Committee of the Board has been advised by counsel that provisions of the Medical Staff By-Laws relating to appeals by physicians from adverse recommendations or actions concerning privileges may not be applicable in the circumstances, the Executive Committee recommends to the Board that such appeal and hearing rights be afforded Drs. DeMasi and Anderson as if such By-Law provisions were applicable. Pls.' Mot. Part. Summ.J., Ex. 6.
[9] In a contemporaneous February 2, 1995, "Open Letter" to the Peninsula Regional community, the Board alleged, inter alia, that plaintiffs had engaged in "a long history of disruptive behavior" which "adversely affected the Medical Center's ability to deliver high quality, efficient care" and had caused "employee stress and morale problems" and that such behavior was continuing. Although plaintiffs were not directly named in connection with these allegations, the Board's intent to impute these behaviors to plaintiffs seems inescapable. However, on summary judgment, plaintiffs are not entitled to the benefit of this inference.
[10] The law governing plaintiffs' breach of contract claim is that of the forum state, Maryland. See Erie R.R. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 822-23, 82 L.Ed. 1188 (1938). In West v. American Telephone & Telegraph, 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940), the United States Supreme Court held:
Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.
Id. at 236-37, 61 S.Ct. at 183-84. See also Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir.1981) (holding that district courts may look to intermediate state appellate court for substantive law).
[11] To support the contention that the Medical Staff Bylaws do not apply to the decisions made by the Board in this case, Peninsula Regional points to its corporate bylaws provision which provides:
Nothing in [the Medical Staff] Bylaws ... shall restrict the power of the Board, or its duly authorized representative, to take such action with respect to the Medical Staff, or any member thereof, as the Board, or its duly authorized representative, shall deem necessary in the interest of the Hospital and its patients.
Akin Aff.Ex. 30, Governing Body Bylaws, Art. VI, Sec. 2. However, the above-quoted provision must be evaluated in light of that portion of the bylaws which states:
no doctor of medicine shall be denied appointment to the Medical Staff, or reappointment ... nor shall privileges previously granted ... be cancelled by the Board of Trustees without prior consultation ... with the Staff. In the event that the Board shall determine to take any action with respect to privileges against recommendation of the Staff, the Board shall again confer with the Staff before its action shall be finally taken. Any affected doctor shall have the privilege of appeal provided by the Staff Bylaws.
Id. at Sec. 3. Thus, the provisions of the Medical Staff Bylaws concerning medical staff privileges and the right to a hearing are indisputably enforceable against the Board.
[12] Four radiologist were shareholders of Frazier, P.A., the association that had the exclusive contract with the Hospital. The remaining radiologist, O'Brien, provided radiology service under an agreement with Frazier, P.A. The court treated all five radiologists alike. See O'Brien, 49 Md.App. at 365, 432 A.2d at 485.
[13] The usefulness of other cases relied upon by Peninsula Regional similarly is limited on their facts. In Dutta v. St. Francis Regional Medical Center, 254 Kan. 690, 867 P.2d 1057 (1994), for example, the Kansas Supreme Court upheld a hospital's decision to exclude a radiologist based upon a "management decision" to enter into an exclusive contract with another radiologist. Id., 867 P.2d at 1062. The court ruled that the medical staff bylaws did not apply in that case because the purpose of the bylaws provision was to deal with matters bearing on professional competency or improper conduct, and no improper conduct was implicated. Id. See also Gonzalez v. San Jacinto Methodist Hosp., 880 S.W.2d 436, 440 (Tex.App.1994) ("The context of the bylaws' procedural requirement indicates that these procedures do not involve matters of administrative decision, but rather deal with matters of professional competence and ethical conduct."); Bartley v. Eastern Maine Medical Center, 617 A.2d 1020, 1021 (Me.1992) (holding that hospital bylaws did not apply to emergency room physician's termination because there had been no allegation of unprofessional conduct or privilege reduction).
[14] It is also worth noting that in O'Brien, the radiologists were "granted an opportunity to be heard on the substantive decision by the Hospital ... and given an opportunity to apply for the position as chief of the department." Id. at 377, 432 A.2d at 491. The court concluded that, according to the hospital's bylaws, the radiologists had the hearing to which they were entitled. Id. The court held that the radiologists were only entitled to a hearing on the substantive issue of the Hospital Board's decision to create the imaging department; the radiologists were not entitled to a hearing on the termination of their medical staff privileges. Id.
In the present case, a similar conclusion cannot be drawn from the facts. On November 2, 1994, plaintiffs met with the Special Committee of the Board. The substantive issue discussed there involved Peninsula Regional purchasing the Berlin facility and the "exclusive" contract for radiation oncology services. Plaintiffs did not discuss the termination of their medical staff privileges at this meeting. Akin Aff.Exs. 14-17. Indeed, on November 2, 1984, plaintiffs' privileges had not yet been terminated and the right to a hearing had not yet been implicated. Moreover, the meeting with the Special Committee plainly is not the procedure contemplated by the Medical Staff Bylaws. See Pls.' Mot.Part. Summ.J., Ex. 1, Medical Staff Bylaws, at Art. V, Sec. 3.
[15] A resolution of the Medical Staff suggests that the Board terminated plaintiffs' privileges without consulting with the Medical Staff, as required by the Governing Bylaws of Peninsula Regional. A "Statement of the Medical Staff" reads: "we cannot support the Board's decision to revoke the privileges of Dr. Andrejs Strauss nor its failure to renew those of Dr. Vincenzo DeMasi." The Board's action may have violated the consultation requirement found in Art VI, Sec. 3 of the Governing Bylaws. See supra, n. 11.
[16] The Medical Staff Bylaws provide: Any information which indicates that the applicant does not meet standards of performance established for the D[ivision or Department] in which the applicant requested privileges ... shall be the basis of denial of a request for Medical Staff membership. Art. V, Sec. 1., pt. D.
[17] In point of fact, Peninsula Regional seems to argue that it had the option under the circumstances, either to "discipline" the plaintiffs or to achieve the same result through a "management decision." This might be interpreted as a concession that plaintiffs' interests protected under the Medical Staff Bylaws were indisputably implicated. In any event, as indicated in text, O'Brien's concern for the rights of physicians facing allegations that they "failed in their duties to" a hospital, or "failed to conduct themselves properly" compels the conclusion that where, as here, a dual purpose discipline and improved operations constitute the objective of a recision of privileges, and where as here, the documentation of the action arguably rests so heavily upon its disciplinary aspect, then a hearing probably ought to be afforded. This, of course, was the approach that the Board commenced as to DeMasi. See infra p. 541-42.
[18] The Court notes that the Medical Staff Bylaws require a physician applying for privileges to submit any information concerning whether the physician's "membership status and/or privileges have ever been denied, suspended, diminished, revoked, not renewed in any other hospital or institution, or voluntarily or involuntarily relinquished." Art. V. Sec. 1, pt. A, ¶ 1. Such an inquiry illustrates the need for a hearing in which plaintiffs could defend themselves against the Board's allegations; future consequences to a terminated physician could be severe.
The suggestion that Peninsula Regional's termination of Strauss and DeMasi on the ground of "management decision-making" was pretextual is amply supported in the record. For example, Dr. North, a former adversary of Strauss and DeMasi, is apparently prepared to testify that she was assured in advance that Strauss and DeMasi would not have their privileges renewed and that she, North, would not "go down with Strauss and DeMasi."
[19] Peninsula Regional suggests that because the Board's decision was based on "purely management" concerns, plaintiffs have nothing to defend. In their memorandum, plaintiffs provide the following disputed assertions (made by Peninsula Regional during the relevant period) that they intend to defend:
(1) Plaintiffs engaged in disruptive behavior after the recommendations of the Professional Review Committee were implemented in April, 1994 and that disruptive conduct continued into 1995.
(2) Plaintiffs improperly and secretly developed a competing radiation oncology facility.
(3) Peninsula Regional determined to close the Division of Radiation Oncology based upon ongoing problems and self-dealing by plaintiffs, but did not terminate plaintiffs' Medical Staff privileges due to individual disruptive or unprofessional conduct.
(4) Plaintiffs' medical staff privileges were terminated because they failed to submit to the supervision of Dr. Blumberg.
(5) Peninsula Regional's decision to close the Division of Radiation Oncology followed two years of management problems and followed several months of careful deliberation.
Pls.' Reply Mem.Supp.Mot.Part.Summ.J., at 11-16. The Court agrees that the course of dealing between the parties as documented in the summary judgment record fairly generates these issues for resolution at a "cause" hearing.
[20] At this meeting, the Executive Committee of the Board also rejected the recommendation to appoint Strauss chairman of the Division of Radiation Oncology. Plaintiffs do not challenge this decision of the Board. See Hrehorovich, 93 Md.App. at 789, 614 A.2d at 1030-31 (holding that hospitals are not required to follow the "due process" provision of medical staff bylaws when terminating administrative positions).
[21] Neither party has offered expert evidence as to whether the hybrid arrangement ultimately accepted by Blumberg in respect to North, Anderson and Edwards is fairly characterized as a "closed staff."
[22] Article V, Section 3 of the Medical Staff Bylaws also provides that, at a hearing, the physician involved has the right to call, examine and cross-examine witnesses; to present evidence determined to be relevant by the hearing panel, regardless of its admissibility in a court of law; to submit a statement at the close of the hearing; to receive the written recommendation of the panel, including a statement of the basis for the recommendation, upon completion of the hearing; to file an appeal to the Board of Trustees. Art. V. Sec 3, pts. A-C.
[23] Defendant also maintains:
By failing to come to acceptable terms with Dr. Blumberg and Peninsula Regional under which they would submit themselves to Dr. Blumberg's leadership, plaintiffs placed the Board in a position of having to make the necessary management decision to terminate plaintiffs' privileges in order to meet the goals and objective of the policy of requiring a closed staff for the Division of Radiation Oncology.
Mem.Supp.Def.'s Mot.Part.Summ.J. & Opp'n Pls.' Mot.Part Summ.J., at 17. The facts underlying this argument are clearly in dispute. In their affidavits, plaintiffs testify that they "submitted" themselves to Blumberg's leadership from January 1995 through their termination in July 1995 without any problems. According to plaintiffs, the only reason they did not reach agreement with Blumberg and Peninsula Regional was because, unlike Anderson, Edwards and North, they were never offered the opportunity to be "grandfathered." Whether plaintiffs and defendant engaged in good faith negotiations throughout their dealings is not for this Court to decide on the present record, as a matter of law. |
9,645,506 | 2023-08-22 21:27:17.088065+00 | Onion | null | OPINION
ONION, Judge.
The offense is Robbery by Assault; the punishment, thirty (30) years confinement in the Texas Department of Corrections.
The appellant was tried on October 6, 1965, and gave notice of appeal on October 29, 1965, prior to the effective date of the 1965 Code of Criminal Procedure. On November 14, 1966, appellant attempted1 to file an affidavit that he was a pauper and asked the trial court to appoint him an attorney on appeal and further requested “that I be accorded all rights and privileges pertaining to such appeal by an indigent.” On this date the trial judge entered an order denying “the relief sought herein by defendant” on the ground that the affidavit was untimely filed. The transcript was received by this Court on December 9, 1966. The cause was subsequently removed from the submission list at the personal request of the appellant. On March 2, 1967, this appellant, now being represented by counsel on appeal, filed a motion in this Court to require the trial court to order a statement of facts. Said motion asserted that appellant had been represented by court appointed trial counsel, though the record indicates that the question of indigency was presented to the trial court for the first time on November 14, 1966. On April 26, 1967, in view of the record before us, this Court entered an order suspending the appeal pending receipt of a transcription of the court reporter’s notes or a finding of the trial court of facts showing that appellant waived or was not denied his right to such transcript or to effective aid of counsel in regard thereto.
The transcription of the court reporter’s notes is now before us, and we shall consider the appeal on its merits.
Appellant’s brief complains solely of the admission into evidence of an oral statement made by appellant while under arrest without any warning being given which appellant contends was not a part of the res gestae.
Christine Canipe testified that at approximately 9 p. m. on July 28, 1965, she was assaulted and robbed by appellant in the City of Dallas. She related that appellant took from her at the time her purse or Choo-Choo bag which contained, among other things, a billfold, a $10.00 bill and a sales slip from Sears and Roebuck in her former name of Christine Horton.
Approximately one hour and ten minutes later appellant was arrested by city police officers at a bus station in downtown Dallas. After questioning appellant for “a minute to a minute and a half” at the scene of the arrest, police officers placed him in a squad car and took him to the basement of the City Hall, which trip consumed “two or three minutes.” Officer Kennedy, who had discovered Mrs. Canipe’s billfold and the Sears and Roebuck sales slip on appellant’s person at the time of his arrest, testified that “when we entered the ramp going into the (City Hall) basement” he inquired of the appellant who Christine Horton was and that the appellant stated that she was his sister. It is this statement the *947admissibility of which appellant questions. The State made no effort to show that the appellant did not in fact have a sister named Christine Horton.
The record reflects little or no evidence with regard to spontaneity of appellant’s statement in response to the officer’s question, but we need not determine whether it was a part of the res gestae.
“A confession is defined as a voluntary declaration by one person to another that the declarant has committed a crime.” 24 Tex.Jur.2d, Sec. 646, p. 240. It is this type of statement which is prohibited by Article 727 (now Article 38.22), V.A.C.C.P., unless its requirements are met. The article has been held to relate solely to “confessions” and does not include exculpatory statements. See Article 38.22, Note 1, supra. We do not view appellant’s declaration to be in the nature of a confession. It was neither a direct acknowledgment of responsibility for a crime or an admission of incriminating facts. Robinson v. State, 142 Tex.Cr.R. 636, 155 S.W.2d 811.
We conclude therefore that the trial court did not err in the admission of such testimony under the law in effect at the time of appellant’s trial (October 6, 1965).
We call attention however to the recent holding of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which holding is applicable to all trials commencing after June 13, 1966. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
In Miranda, the Court, concerned with statements stemming from custodial interrogation,2 said:
“No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.”
In discussing such holding Professor B. James George, Jr., in his book on “Constitutional Limitations on Evidence in Criminal Cases” 3 said:
“It has not been clear under earlier Supreme Court decisions, or in state appellate cases, whether the constitutional protection extended only to ‘confessions,’ in the sense of a complete revelation of criminality, and not to ‘admissions,’ defined as isolated statements which do not themselves delineate a criminal act but which later prove useful to the state in proving its case. There was an assumption collateral to this that if the suspect’s statement was ‘exculpatory’ in nature, intended to explain away the allegations *948made by police against him, but later proved to have statements in it useful to the prosecution, the statement could be used against him.
“The Miranda decision sweeps away both bases of distinction. There is no ■difference between confessions and admissions : * * *.
“Nor does the purpose of the suspect in ■explaining away the charges make his statement admissible if the Miranda code has not been complied with. If they prove by the time of trial to be incriminating, and were obtained without warning and waiver, they are inadmissible for any purpose, including, apparently, impeaching the defendant’s testimony if he desires to testify at his trial, p. 193. The warning to law enforcement officials is clear: before soliciting any statement, no matter how brief or self-serving its contents, comply fully with the Miranda code or tear up the resulting statement.”
It should be observed, however, that recently in Hill v. State, 420 S.W.2d 408 (November 8, 1967) this Court said:
“Further, we do not interpret the rule laid down in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, as excluding res gestae statements such as the one made under the circumstances here described.” 4
Finding no reversible error, the judgment is affirmed.
. The “affidavit” does not appear to have been sworn to before a person authorized by law to take oaths. Appellant’s signature on the “affidavit” is followed by “Sworn to and subscribed before me by Jack Dunn on this the 14 day of Nov., 1966.” No other signature or seal follows such sentence in the “affidavit.”
. In Miranda, the Court said:
“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." In Footnote 4 the Court added, “This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.” Cf. Gaudio v. State, 1 Md. App. 455, 230 A.2d 700.
. Institute of Continuing Legal Education, Ann Arbor, Mich., 1966, pp. 121, 122.
. The 1967 amendment to Article 38.22, V.A.O.O.P. (Acts 1967, 60th Leg., Oh. 659, pp. 1732, 1740, 1741) provides in part as follows:
(f) Nothing contained herein shall preclude the admissibility of any statement made by the defendant in open court at his trial or at his examining trial in compliance with Articles 16.03 and 16.04 or of any statement that is res gestae of the arrest or of the offense. (Emphasis Supplied) |
1,516,387 | 2013-10-30 06:32:54.025772+00 | Dice | null | 420 S.W.2d 954 (1967)
George Earl ZYBURA, Appellant,
v.
The STATE of Texas, Appellee.
No. 40808.
Court of Criminal Appeals of Texas.
November 29, 1967.
James F. Moore, Lubbock, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
DICE, Judge.
The conviction is under Art. 802b, P.C., for the subsequent offense of drunk driving; the punishment, three months in jail and a fine of $750.
Probation was granted appellant and imposition of sentence was suspended upon certain terms and conditions.
This is an appeal by appellant under the authority of Art. 42.12, Sec. 8, of the 1965 Code of Criminal Procedure, at the time he was placed on probation.
In charging the offense, the indictment alleged a prior conviction of appellant on June 1, 1964, in Cause No. 2591, in the County Court of Hale County, for the misdemeanor offense of driving while intoxicated.
The state, in making proof thereof, offered in evidence as state's exhibit #3 certified copies of the complaint, information, and judgment in said Cause No. 2591, which showed that on March 1, 1965, the defendant was convicted in said court of the misdemeanor *955 offense of driving while intoxicated.
Appellant duly objected to the exhibit on the ground of a variance between the allegations of the indictment and the proof as to the date of the prior misdemeanor conviction.
Such objection was by the court overruled.
In such ruling the court erred.
We sustain appellant's first ground of error, which is that the evidence is insufficient to sustain the conviction because of the material variance between the pleading and the proof as to the date of the prior misdemeanor conviction. See: Goodale v. State, 146 Tex. Crim. 568, 177 S.W.2d 211; Green v. State, Tex.Cr.App., 219 S.W.2d 687; Colvin v. State, 172 Tex. Crim. 310, 357 S.W.2d 390; and Clopton v. State, Tex.Cr. App., 408 S.W.2d 112.
In the event of another trial the court should, in submitting the state's case and applying the law to the facts, present the converse thereof and give application to the law of reasonable doubt. McCracken v. State, 168 Tex. Crim. 565, 330 S.W.2d 613.
The judgment is reversed and the cause is remanded. |
1,516,419 | 2013-10-30 06:32:54.490494+00 | Cullen | null | 420 S.W.2d 563 (1967)
Daniel HARMON, Jr., etc., Appellant,
v.
Richard J. RUST, M.D., Appellee.
Court of Appeals of Kentucky.
November 3, 1967.
*564 Howell W. Vincent, R. Barry Wehrman, Stuard Wegner, Covington, for appellant.
John J. O'Hara, Covington, for appellee.
CULLEN, Commissioner.
In this suit against appellee doctor for damages for alleged malpractice the trial court directed a verdict for the defendant at the close of the plaintiff's evidence. The plaintiff has appealed, contending that his evidence was enough to create a jury issue.
The alleged malpractice was in the treatment of a severe burned condition of the appellant's right leg, which involved transplanting some skin from the left leg. Both legs became infected and for a long period they did not heal.
Appellant introduced no expert testimony that the appellee in any respect failed to meet the applicable standards of care. In fact, the only expert witness he employed testified that the appellee in every respect conformed to the applicable standards of knowledge, skill, diligence and care. The rule in malpractice cases is that negligence must be established by medical or expert testimony unless the negligence and injurious results are so apparent that laymen with a general knowledge would have no difficulty in recognizing it. Johnson v. Vaughn, Ky., 370 S.W.2d 591. We do not believe laymen have sufficient general knowledge to "recognize" that infection and slow healing, in treating severe burns and making transplants, are the results of negligence.
Appellant suggests that an inference of negligence can be drawn from the fact that the left leg as well as the right leg became infected. However, the rule in this and other jurisdictions is that the presence of infection following an operation or in an area under treatment is not prima facie evidence of negligence (i. e., does not warrant an inference of negligence). See Stacy v. Williams, 253 Ky. 353, 69 S.W.2d 697; Annotation 82 A.L.R. 2d 1298.
The judgment is affirmed.
All concur except OSBORNE, J., who did not sit. |
1,516,421 | 2013-10-30 06:32:54.519672+00 | Allen | null | 519 A.2d 680 (1986)
In re ANDERSON, CLAYTON SHAREHOLDERS LITIGATION.
C.A. 8387 Consolidated.
Court of Chancery of Delaware, New Castle County.
Submitted: May 27, 1986.
Decided: June 6, 1986.
*681 A. Gilchrist Sparks, III, Lawrence A. Hamermesh, and Edmond D. Johnson, of Morris, Nichols, Arsht & Tunnell, Wilmington, and Dennis J. Block, and Joseph S. Allerhand, of Weil, Gotshal & Manges, New York, Joseph A. Rosenthal, and Kevin Gross, of Morris & Rosenthal, Wilmington, and Stuart D. Weschsler, Robert I. Harwood, and Zachary A. Starr, of Goodkind, Wechsler, Labaton & Rudoff, New York, for plaintiffs.
Charles F. Richards, Jr., Samuel A. Nolen, Thomas A. Beck, Gregory P. Williams, and Nathan B. Ploener, of Richards, Layton & Finger, Wilmington, and Stephen G. Tipps, and Paula M. Desel, of Baker & Botts, Houston, Tex., for defendant.
ALLEN, Chancellor.
Pending in these consolidated actions brought as class actions by shareholders of Anderson, Clayton & Co. is an application to enjoin preliminarily the consummation of a recapitalization of that firm presently scheduled to be effectuated on June 10, 1986. I assume that the recapitalization proposal was approved by the Anderson, Clayton (the "Company") shareholders at a special meeting held on June 3.
*682 The recapitalization under attack is the most significant part of an effort to restructure Anderson, Clayton, which effort has already entailed the sale for cash of the Company's substantial international operations and certain of its domestic businesses. The recapitalization contemplates the marshalling of additional cash through substantial borrowing and the termination of certain overfunded pension plans. The cash so generated or most of it would be distributed to current shareholders pro rata (on a preferred, capital gains basis) as part of the recapitalization. In addition the recapitalization would establish an Employee Stock Ownership Plan ("ESOP") to which would be sold, in effect, a 25% equity interest in the company that emerges from the transaction.
Stated more technically, the recapitalization would involve (1) the sale by the Company from its treasury of 730,202 shares of its common stock for $45 per share to the newly-formed ESOP; (2) the contribution of such shares by the ESOP to a corporation wholly owned by it ("ESOPCO") and (3) a merger of ESOPCO with and into the Company pursuant to which each outstanding share of common stock (other than those held by ESOPCO and shareholders who perfect their appraisal rights under 8 Del.C. § 262) will be converted into the right to receive $37 in cash plus .1778 of a share of new common stock of the Company. As part of the recapitalization, the new common stock will be split three shares for one. Thus, as a result of the recapitalization, each shareholder will receive $37 in cash and .5334 (i.e., .1778 × 3) of a share of new common stock for each share of common stock cancelled in the merger.
In essence, the transaction will, if effectuated, provide for an aggregate cash distribution to present shareholders of $456 million and a continuing equity interest by such shareholders in 75% of the resulting, smaller company. The remaining 25% interest in the Company would be held by the ESOP. The resulting corporation will be a smaller, much more highly leveraged entity.
Three identical complaints in these consolidated actions allege (1) that the proposed recapitalization is solely an attempt to make the Company an unappealing takeover target in order to entrench existing management and serves no proper business purpose; (2) that the sale of a 25% interest in the reorganized company contemplated by the recapitalization is for a grossly inadequate consideration and constitutes a fraud on the shareholders; (3) that the directors of the Company did not, before approving the proposed recapitalization, adequately evaluate the Company's worth "as a potential merger or acquisition candidate or take adequate steps to enhance Anderson, Clayton's value or attractiveness as a merger or acquisition candidate; or effectively attempt to dispose of Anderson, Clayton's assets, or act so that the interests of public shareholders were protected"; and (4) in summary, that "the proposal will deny class members their right to fully share proportionately in the true value of Anderson, Clayton ... while usurping the same for the benefit of defendants, at a fraudulently unfair and inadequate price."
In addition, while the complaints contain no specific allegations of inadequate proxy disclosure, a major portion of plaintiffs' argument on the currently pending application for preliminary injunction was premised upon an assertion of that kind.
Defendants defend the merits of the proposed recapitalization as a prudent plan to maximize current as well as longer-term values to all shareholders. They point out that the proposal is one that treats all shareholders equally; that it permits a very significant cash distribution on a favorable tax basis, while leaving all shareholders with a substantial continuing equity interest in the Company's continuing business and that the ESOP, which makes the favorable tax treatment of the cash distribution possible, cannot sensibly be *683 viewed as an entrenchment device on the facts here presented.
The transaction proposed, defendants have asserted, has been the subject of lengthy consideration and testing by the market. Not only has the First Boston Corporation, the Company's investment banker with respect to this transaction, unsuccessfully sought a buyer for the whole Company, but the present proposal has been publicly announced for some time without engendering any higher or better proposals from third parties. Thus, measured against this background, defendants have said that claims of inadequacy of consideration must be viewed as unsupportable. The effectiveness of this argument has, however, been substantially eroded by developments since the May 27 date of the argument on the pending motion.
Finally, defendants assert that the proxy materials fully meet any obligation the directors have to disclose all germane facts with candor.
I.
Anderson, Clayton is a diversified company founded originally in 1904 as a cotton merchandising partnership and incorporated under the laws of Delaware in 1929. Over the years, the Company has engaged in a number of different businesses, including the processing and marketing of consumer and institutional foods, pet foods, oilseed products, and animal and poultry feeds, both domestically and internationally. In addition, it has conducted operations in the areas of property and casualty insurance, life insurance, general merchandise warehousing and distribution services, materials handling equipment, and the manufacture of a line of ice chests and beverage coolers. Currently it would best be known to the public through its various branded consumer products such as Gaines dog foods, Chiffon margarine, Seven Seas salad dressings and Igloo ice chests.
In the early part of 1984 senior management of the Company undertook to review this amalgam of tenuously related businesses and to consider steps that might be taken to enhance the Company's profitability. As a result of that review, it was concluded that projected profits from the Company's international operations, from its insurance subsidiaries and from its public warehousing operations were not satisfactory and were unlikely to be significantly improved. Accordingly, senior management decided that those businesses should be sold, permitting the Company to focus on what has been called its core businesses principally its domestic food and food processing businesses.
This 1984 review of the Company's profitability was part of a strategic evaluation of the firm stimulated in part by knowledge that trusts holding some 27.3% of the Company's outstanding stock were scheduled to terminate in February of 1986. Those trusts had been established some twenty years by the Company's founder, William L. Clayton, for the benefit of his four daughters, who are now of advanced years.
The termination of the Clayton trusts had significant potential effects for the Company's Clayton-family stockholders, for the Company itself, and for other shareholders. Specifically, since the beneficiaries of the Clayton trusts are all of advanced years, the freeing of their Anderson, Clayton stock from the restrictions of the trusts created the prospect of the public sale of such stock for estate planning or estate tax purposes. The availability for sale of such a significant portion of the outstanding stock raises the obvious possibility, for good or for ill, of an attempted takeover of the Company. That, of course, is not the only possible outcome of the availability of such stock. If there were no firm interested in acquiring Anderson, Clayton and the trust beneficiaries were forced, for estate tax reasons or otherwise, to liquidate their position on the public market, one might expect a downward pressure on the price of the Company's stock which may be detrimental to the Company itself as well as to its *684 shareholders. In all events, it seems plain that the termination of the Clayton trusts was an event of significance to the Company and all of its shareholders and was the proper subject of management attention.
The beneficiaries of the Clayton trusts were themselves concerned to plan appropriately for action that would be possible upon the termination of the trusts. At the suggestion of Mr. T.J. Barlow, then Chairman of the Board of Anderson, Clayton, the Clayton family members in late 1984 retained the investment banking firm of Morgan Stanley to advise them concerning their Anderson, Clayton holdings. Morgan Stanley prepared a report dated January 30, 1985, on that subject and a report dated February 14, 1985. These studies reviewed the various possible courses of action open to the Clayton stockholders or to the Company including, among others, a secondary stock offering, a sale of the family's minority interest to a third-party corporation, sale of the entire Company and a liquidation of the Company. In its February 14, 1985, advice to the trustees, Morgan Stanley concluded as follows:
[W]e recommend that the Trustees recommend to the Company's Board of Directors (the "Board") that the Board explore the sale of the Company both as an entire entity and in separate components pursuant to a plan of liquidation under Section 337 of the Internal Revenue Code; we also recommend that the Trustees recommend to the Company that the Board be prepared to entertain a possible proposal from the Company's management for an Employee Stock Ownership Plan sponsored leveraged buyout of some of the Company's domestic businesses pursuant to a plan of liquidation under Section 337.
We would expect that such a sale of the Company, either as a single entity or in separate components, would realize pre-tax values in the range of $44-$50 per share, with some possibility of values above $50 per share. We cannot opine at this time as to whether the sale of the Company as a whole or in components pursuant to a Section 337 plan of liquidation will realize the higher value per share either pre-tax or after-tax.
The trustees furnished a copy of Morgan Stanley's February, 1985 conclusion to the Company's board.
Management itself had by that time, however, already begun active exploration of one possible form of restructuring. In January, 1985 senior management of Anderson, Clayton had retained the investment banking firm Kelso & Company to look into the feasibility of a management sponsored leveraged buy-out of the Company through the use of an ESOP. At a May 8, 1985 meeting of the board of directors of the Company, management was formally authorized to proceed with an evaluation of such a transaction.
Also in May, 1985, Anderson, Clayton, acting upon the decision to sell off the least profitable operations and pursue some form of restructuring, retained First Boston Corporation to act as its financial advisor. First Boston came to perform several important tasks including arranging for the sale of substantial assets, exploring restructuring options and fashioning, in important respects, the recapitalization now under consideration.
On September 5, 1985, the Company's management presented to the board for discussion purposes a possible management-sponsored leveraged buy-out transaction. Under this plan, the Company would have adopted a plan of complete liquidation, sold certain of its assets to third parties and sold its remaining businesses to an investment group including members of management, an ESOP and Kelso, the investment banking firm. All other shareholders, including beneficiaries of the Clayton trusts, would have been cashed out, receiving proceeds in a range of $40 to $42 per share. After exploring this transaction further, however, management finally concluded that a going-private transaction of that kind was not feasible.
*685 In October, 1985, the Company's senior management met with the Company's outside directors and recommended that First Boston be directed to solicit indications of interest from parties who might be interested in acquiring the entire company or its non-insurance domestic operations. In that same month, First Boston was directed to solicit indications of interest from parties who might be interested in acquiring some or all of the Company's businesses. In pursuing that directive, First Boston solicited such indications from potential buyers including food companies, firms specializing in leveraged buy-outs and firms specializing in tax-advantaged investments. Although some fourteen potential purchasers were solicited, and detailed information was provided to eleven, no "firm offers" were received and, on December 2, 1985, First Boston so informed the Company's board. It is interesting to note, however, in light of later developments, that First Boston did not apparently approach the Quaker Oats Company a company that owned a branded pet food subsidiary approximately equal in sales to the Company's Gaines subsidiary.
On November 22, 1985, before the management-sponsored leveraged buy-out transaction was abandoned, First Boston was asked by some members of the board to report to the Company on alternatives. In a December 2, 1985 report, First Boston discussed not only a recapitalization similar to that eventually approved by the board, but also other financial alternatives. First Boston was directed to further explore the feasibility of these alternatives. This seems to have been done throughout January, 1986, with First Boston apparently being in frequent contact with management and various directors during this period.
Meanwhile, First Boston was pursuing sales of divisions or operations that were to be eliminated by the Company. In September, 1985, the Company entered into an agreement, consummated in January, 1986, for the sale of its American Founders Life Insurance Company subsidiary for $58,669,000. In December, 1985 the Company entered into an agreement for the sale of its 75.7% interest in a Brazilian subsidiary and a separate agreement with the same purchaser for the sale of the Company's 60.8% interest in a Mexican subsidiary. These sales were consummated in April, 1986, for an aggregate purchase price of $109,100,000. The sale of the Company's public warehousing and trucking operations was closed in March, 1986 for $22,100,000. In all, the record suggests that the operations that have been sold (not considering revenues generated by insurance operations) apparently accounted for approximately 40% of the Company's 1985 sales and close to 50% of its 1984 sales. (See Proxy Statement, p. 69).
Also during this period the Company decided to terminate two tax-qualified defined benefit retirement plans thereby making available to itself approximately fifty million (after tax) dollars of excess funding held in those plans.
On February 7, 1986, First Boston presented to the board a recapitalization program for its consideration and approval. First Boston indicated at that time its opinion that the transaction being presented was fair from a financial point of view. The presentation took approximately an hour and one-half. At that meeting the board adopted a resolution reciting that the recapitalization was fair to the shareholders and authorized the submission of the transaction to the shareholders for their approval. The board voted unanimously to recommend such approval. The best opinion available to the board at that time and disclosed to shareholders now is that the consideration offered to shareholders in the recapitalization has a current value of between $43 and $47 per share. The Company's stock, which is traded in the New York Stock Exchange, has, over the last six months, traded at prices well over $50 per share.
II.
On April 22, 1986 the Company distributed to its record shareholders a notice of a *686 June 3, 1986 special meeting of shareholders called to vote on the recapitalization, together with a proxy statement/prospectus.
On April 30, 1986, plaintiffs orally indicated a desire to move for an order preliminarily enjoining effectuation of the recapitalization. After hurried but fairly wide-ranging discovery was had, that motion was presented to the Court on May 27, 1986. Defendants at that time volunteered not to effectuate the recapitalization until June 10, 1986, even if it were approved by the shareholders thus providing the Court with a few additional days to consider the arguments advanced. As happens in matters of this kind, however, events did not remain static.
On May 29 the investment banking firm of Bear Stearns & Co., Inc., together with the firm of Gruss & Company, delivered to the Company a letter expressing an interest in making an offer for all shares of the Company's stock at $54 per share cash. This development, which was publicly disclosed on the same day, caused plaintiff to move once more for an order this time enjoining the holding of the June 3 meeting.
In response to the Bear Stearns offer, the board took several steps: it distributed on June 2 to record shareholders by mail-gram (and published that day in the national editions of the New York Times and the Wall Street Journal) a supplemental proxy statement containing the text of the Bear Stearns letter; it established a toll-free phone line for proxy revocation or voting; it extended until 5:00 p.m. June 5 the time in which proxies could be voted; and, it is asserted, that it authorized substantive discussions with Bear Stearns. The board elected not to postpone the June 3 meeting.
Finding no threat of irreparable injury arising from the taking of the vote alone, I declined on June 2 to enjoin the meeting scheduled for the following day. In Re Anderson, Clayton Shareholders' Litigation, Del.Ch., 519 A.2d 694 (1986).
On June 4, Bear Stearns filed a complaint in this court, arising from these same facts, seeking to enjoin the recapitalization. That complaint raises several issues principally arising from developments since the May 27 argument on the pending motion. Most significantly, it charges that the Anderson, Clayton board is not attempting in good faith to arrange the most advantageous transaction for the shareholders (which it alleges its $54 per share "offer" to be) and that, indeed, the board is attempting to keep the opportunity that the alternative offers from the shareholders. In all events, the Bear Stearns plaintiffs have themselves moved for a preliminary injunction against effectuation of the recapitalization asserting grounds not treated in this opinion. That motion is now scheduled to be heard on June 9. It will be treated in a separate opinion.
III.
The frequently reiterated test for the issuance of a preliminary injunction requires the Court to assess on the limited record available the probability that plaintiff will ultimately prevail on the claims asserted and the consequences to each of the parties or to others with legitimate interests in the matter of the granting or withholding of the provisional remedy. Specifically, the remedy will issue only when plaintiff has established (1) a reasonable probability of ultimate success; (2) that he or she is threatened with irreparable injury before decision on final hearing is likely; and (3) that in granting the remedy the Court will not be doing a greater injury to defendant, the public or others than the injury for which plaintiffs seek to be protected. See, Revlon, Inc. v. MacAndrews & Forbes Holdings, Del.Supr., 506 A.2d 173 (1986).
Related to the legal standard for issuance of the remedy sought are the facts concerning the make-up of the board of directors whose actions are here under attack. When judicial review of corporate action is sought, our law draws an important *687 distinction between the acts of disinterested directors in managing the business and affairs of the enterprise and acts of directors having a personal interest in the transaction that conflicts with the interests of the corporation and its shareholders.
Plaintiffs contend that a majority of the directors who approved the recapitalization had a personal financial interest in the transaction since eight of the fifteen directors were officers of the Company who would be eligible to participate in, and benefit from, the ESOP. Additionally, three other directors had been affiliated with the Clayton trusts and, according to plaintiffs, had a special interest in seeing the recapitalization approved. Thus plaintiffs contend that defendants will bear the burden ultimately (indeed they seem to contend that defendants bear a burden on this motion) to demonstrate the intrinsic fairness of the recapitalization. Defendants, on the other hand, assert that only five of the fifteen directors had a personal financial interest in the ESOP at the time the recapitalization was approved.[1] First, Mr. Barlow, who plaintiffs apparently count as an officer, had retired as a Company employee effective January 1, 1986 and therefore was and is not eligible to participate in the ESOP. Second, Messrs. Wilson and Under-wood, although employees at the time the recapitalization was approved, knew that they would soon be leaving the board and their employment with the Company upon the imminent consummation of the sale of the Company's Brazilian and Mexican operations and therefore would not be ESOP participants.
For purposes of this motion, I regard the directors that were affiliated with the Clayton trusts as disinterested since the financial interest that the beneficiaries of the Clayton trusts have is an interest as shareholders in the Company. Aronson v. Lewis, Del.Supr., 473 A.2d 805 (1984). While their personal situation may include them during a shareholders' vote to vote for the recapitalization, that interest qua shareholder does not establish a disabling conflict for such persons qua directors in a transaction that will treat all shareholders equally. Shields v. Shields, Del.Ch., 498 A.2d 161 (1985). Nor do I think that the three officers who either had resigned as Company employees or knew that their resignation was imminent had or thought they had a personal financial interest in the ESOP at the time the board approved the recapitalization. Therefore, I conclude that the February board was not infected by a conflicting financial interest with respect to the transaction it then recommended to the shareholders.
Equally important for purposes of deciding this motion (except for the disclosure claims) I assume shareholder approval of the recapitalization since on the alternative assumption the questions presented are moot. On that assumption, it will be plaintiffs' burden to establish either that such approval was ineffective for some reason and the transaction constitutes a breach of fiduciary duty; or that the transaction constitutes a waste or is otherwise invalid. Gottlieb v. Heyden Chemical Co., Del.Supr., 92 A.2d 594 (1952); Michelson v. Duncan, Del.Supr., 407 A.2d 211 (1979); Gerlach v. Gillam, Del.Ch., 139 A.2d 591 (1958).
For the reasons that follow, I conclude that plaintiffs have not established a reasonable likelihood of success on their claim that the sole or principal purpose of the recapitalization is the entrenchment of encumbent management, that the transaction constitutes a fraud or waste of corporate assets or that the disclosures made were, when considered in their totality, less fulsom or candid than our strict standards require.
IV.
Argument on the pending motion was directed almost entirely to the adequacy of *688 disclosure, but the substantive fairness and motivation of the defendants was touched upon as well.
The principal non-disclosure argument advanced by plaintiffs is that the recapitalization is the product of an alliance between encumbent management and members of the Clayton family for the purpose of perpetuating control of the Company in themselves, while distributing sufficient cash to the Clayton shareholders to permit them to engage in prudent estate planning. The entire course of conduct over the last year or so the sale of business segments, the termination of the pension fund in order to re-capture excess funding, the leveraging of the Company contemplated by the recapitalization and most importantly the cash distribution and creation of the ESOP are all, on this view, illicit attempts simply to make Anderson, Clayton a less appealing, indeed an unpalatable, takeover target.
Creation of the ESOP must be viewed as the critical element in plaintiffs' theory. Without that element of the recapitalization, plaintiffs would have no argument since assuming fair disclosure one could hardly argue that approval of a transaction that marshals cash for pro rata distribution to shareholders upon shareholder approval and has no effect on proportionate ownership of the corporation, constituted a breach of the directors' duty of loyalty.
Plaintiffs attack the ESOP on two bases. First, it is assertedly an entrenchment device, solely or principally motivated for an impermissible purpose. Secondly, it is said to constitute a fraud or a waste, in that twenty-five percent of the resulting Company is being conferred upon the ESOP for no consideration or for inadequate consideration. While the stated consideration for the ESOP stock is $45 a share, that consideration will be borrowed by the ESOP from the Company and repaid from future compensation payments made to the ESOP by the Company.[2]
Neither argument, however, on the present record persuades me that plaintiffs have shown a reasonable probability of success on the merits of this aspect of their claim.
As to the entrenchment contention, I need not spend too much time on this motion. The test, of course, is whether the board's action is motivated solely or principally for the impermissible purpose of retaining office for personal reasons and not for reasons relating to the corporation's welfare. See, Bennett v. Propp, Del.Supr., 187 A.2d 405 (1962); Cheff v. Mathes, Del. Supr., 199 A.2d 548 (1964); Unocal Corp. v. Mesa Petroleum Co., Del.Supr., 493 A.2d 946 (1985). In these circumstances (see, pp. 686-687, supra), it is plaintiffs' burden to establish a reasonable likelihood of their demonstrating such a motive. They surely have not done so.
While it seems clear that the recapitalization, if effectuated, will in fact make Anderson, Clayton a less likely and, perhaps, an unlikely takeover candidate, that consequence alone cannot be thought to render corporate action subject to legitimate challenge. All manner of transactions may have such an effect.
Defendants say that the ESOP was motivated by two proper purposes: it was necessary to permit the cash distribution in the recapitalization to be on a capital gains basis and it is an attractive technique (from a tax point of view) to provide a form of compensation to officers and employees. These effects appear to be demonstrably true and I cannot now say that it appears likely that they did not provide the principal motivation in the board's recommending *689 a plan with an ESOP component. Such purposes clearly are proper. Edelman v. Phillips Petroleum Co., Del.Ch., C.A. No. 7899, Walsh, V.C. (February 12, 1985) [Available on WESTLAW, DE-CS database].
Indeed, certain aspects of the ESOP seem inconsistent with the notion that it is merely a device to protect control of the Company. First, the trustee is apparently an independent bank with no significant relationship with the Company. Second, voting of all shares owned by the ESOP will be directed by the trusts' beneficiaries but only 2.5% of that stock will thus be directed by the five officers-directors who served on the board in February, 1986. Third, in all, those interested officer-directors will, after effectuation of the recapitalization, control the voting of only 1.3% of all outstanding stock. Compare, Norlin Corp. v. Rooney, Pace, Inc., 2d Cir., 744 F.2d 255 (1984).
As to plaintiffs' second basis for attack upon the ESOP that it constitutes a fraud, a waste or a giveaway the supporting argument is likely to fail on final hearing, in my view, as it seems predicated upon an erroneous assumption: that the board has an obligation to sell stock to an ESOP only at fair market value. (I leave aside for present purposes any federal tax law requirement that ESOPs may not pay more than fair market value.) Even if the fair value of the stock which the ESOP will buy has a fair value of more than $45 (i.e., the price per share it will, in some sense, pay), that fact would not constitute a wrong to the Company or its shareholders so long as the board reasonably believed that the corporation would receive some consideration in exchange for the conveyance of the treasury shares here involved. See, 8 Del.C. § 153(c); Michelson v. Duncan, Del.Supr., 407 A.2d 211, 222-223 (1979).
First, the determination of the appropriate price was made or approved by a vote of a disinterested board and, as plaintiffs have not shown a basis to think that board did not, in making that decision, go through an appropriately attentive process, that judgment is entitled to the presumptive validity accorded to such decisions by the business judgment rule. See, Aronson v. Lewis, Del.Supr., 473 A.2d 805 (1984). Even if there is a real (rather than a theoretical) outer limit beyond which such judgments may be substantively reviewed, the fixing of the consideration in this instance involves no such extreme judgment. Thus, the fixing of the consideration is unlikely to be shown to constitute a wrong of any kind to the Company.
Secondly, and equally fundamentally, insofar as the ESOP represents a form of future compensation for the Company's qualifying employees, the stock with which it is funded (together with the expenses of establishing it) really seem to represent a form of pre-paid employment expense. The transfer of the treasury shares to the trustee may have a diluting effect on the remaining equity just as the payment of any substantial sum may decrease, pro rata, the value of a share. The test as to whether either such transaction is wise or not is whether what the Company expects to secure in return justifies the expenditure. For the reasons outlined above, that, however, is not an inquiry for this Court on these facts.
Accordingly, I conclude for present purposes that the attack upon the ESOP as merely an entrenchment device, as a fraud, or as a waste of assets has not been shown to have a reasonable probability of ultimate success in this action.
V.
As indicated, the principal arguments pressed by plaintiffs at the argument on the pending motion were devoted to the adequacy of the proxy disclosures. I turn now to a discussion of those issues.
It is established by our law that one element of the fiduciary duty that directors of a Delaware corporation owe to shareholders is the duty to provide full and *690 honest disclosure of material facts relating to any transaction that requires shareholder approval. Lynch v. Vickers, Del.Supr., 383 A.2d 278 (1977); Smith v. Van Gorkom, Del.Supr., 488 A.2d 858 (1985). In deciding that a fact is material and must be disclosed there must be:
A showing of a substantial likelihood that, under all of the circumstances, the omitted fact would have assumed actual significance in the deliberations of a reasonable shareholder. Put another way, there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the "total mix" of information available. Rosenblatt v. Getty Oil Co., Del.Supr., 493 A.2d 929, 944-45 (1985) (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 [96 S. Ct. 2126, 48 L. Ed. 2d 757] (1976)).
Plaintiffs claim that they have met this standard with respect to at least three separate alleged defects in the April 22, 1986 Proxy Solicitation. First, defendants failed to disclose certain aspects of the Morgan Stanley study which plaintiffs claim are material. Second, defendants did not disclose the results of appraisals of the Company's fixed assets conducted by American Appraisal Associates, Inc. Third, the Houlihan Report, a report prepared by an investment banking firm retained by Republic Bank, the prospective ESOP trustee, was not disclosed in the original proxy materials.[3]
A.
Plaintiffs contend that the proxy statement omits material information contained in the report prepared by Morgan Stanley in connection with its advice to the Clayton trusts in early 1985. That firm was asked by the Clayton trusts to examine alternatives available to the trusts with respect to their holdings of the Company's stock. Morgan Stanley's conclusions were stated in a February 14, 1985 letter accompanied by a report setting forth supporting materials. Its conclusion is quoted above at p. 9.
In the proxy statement, Morgan Stanley's role and conclusions were treated as follows:
In late 1984 and early 1985, Morgan Stanley & Co., Incorporated ("Morgan Stanley") prepared certain analyses of the Company for and on behalf of the Clayton Trusts. These analyses were based on a wide variety of assumptions and estimates, and ultimately suggested potential values for a sale of the Company, either as a single entity or in separate components, in the range of $44 to $50 per share, with some possibility of values above $50 per share. The studies prepared by Morgan Stanley for the Clayton Trusts did not relate to a transaction such as the Recapitalization and, to the knowledge of the Company, Morgan Stanley has not prepared any study of the Recapitalization for the Clayton Trusts or anyone else associated with the Company. (See Proxy Statement pp. 34-35).
The contention is that this disclosure is insufficient and misleading since within the text of an earlier version of Morgan Stanley's supporting study (dated January 30, 1985) there is a valuation of the Anderson, Clayton stock between $46 and $60. That range of values was thought possibly achievable under one form of transaction: a liquidation without an ESOP leveraged buyout.
Defendants respond to this contention in three ways. First, the proxy statement recounts verbatim the passage of Morgan Stanley's opinion letter dated February 14, 1985 containing their estimates of value. Second, the January 30, 1985 report in which the higher range appears was merely *691 a draft opinion and the higher range of value was adjusted downward in the final opinion dated February 14, 1985 (to a range of $44-$57 for the same form of transaction). Finally, the values expressed by Morgan Stanley are dated since much has happened to the Company since the opinion was rendered in early 1985.
As to the specific matter alleged as being material, I cannot conclude that it satisfies the legal test of materiality when considered in context. The proxy statement discloses Morgan Stanley's final opinion. Many elements of a firm's value and various alternative means of achieving value are considered by professionals in reaching an opinion as to a range of achievable value. While facts concerning the firm or its businesses which support or justify an opinion as to value may themselves be material to a shareholder required to evaluate a proposal, to go beyond disclosure of the opinion itself (where that is appropriate) and require disclosure of intermediate opinions would, in my view, risk far more mischief than it would promise benefit. In the circumstances here presented, I conclude that a reasonable shareholder would not likely find the omitted matter significant in evaluating the proposed recapitalization.
B.
Plaintiffs also contend that defendants have breached a duty to disclose all germane facts in failing to disclose the results of an appraisal of Anderson, Clayton's fixed assets by American Appraisal Associates, Inc. ("AAA"). In sum, that organization concluded preliminarily that the cost to reproduce the Company's assets was $856,937,000; the fair market value of those assets was $440,251,000 and the orderly liquidation value was $195,581,000.
Defendants respond by asserting that the information complained about is not material for any of several reasons. First, defendants argue that the document was created solely for financing and insurance purposes and represented merely the application of standardized indexing factors to historical costs derived from Anderson, Clayton's records. Consequently, the values derived are not representative of the values actually obtainable by the Company for its assets. Second, the document constituted only a preliminary report. Finally, due to their subjectivity, it is urged that appraisals are inherently unreliable and consequently it would have been misleading to disclose it.
The AAA fixed asset appraisal was to be used in arranging bank financing for the recapitalization. Completed in three weeks, AAA performed a preliminary appraisal of Anderson, Clayton. Using a cost approach, AAA began by reviewing asset records or ledgers provided by Anderson, Clayton which reflected the original cost of the fixed assets. AAA then applied generally available cost indices to account for inflation and depreciation to this internally generated data and adjusted its results after an inspection of approximately 70-80% of Clayton's fixed assets values. (Hallmark Aff. ¶ 5). In conducting its appraisal of the improved and unimproved real estate AAA employed standard real estate appraisal techniques on major sites. However, importantly, AAA made no efforts to review Anderson, Clayton's financial condition nor did it make any determinations with respect to the Company's level of profitability. (Hallmark Aff. ¶ 7).
Upon completion, AAA's report was forwarded to Bank of America who is the lead bank in the lending group involved in the proposed recapitalization. That bank put that report in an information package that was sent to banks interested in financing Anderson, Clayton's recapitalization.
The special nature of appraisals, that is, that they are essentially opinions and therefore inherently of limited utility, has caused the Securities and Exchange Commission and the courts interpreting the federal proxy disclosure rules to regard disclosures of them as creating as many, if not more, risks of misleading investors as benefits. See, South Coast Services Corp. v. Santa Ana Valley Irrigation Co., 9th Cir., *692 669 F.2d 1265 (1982); Gerstle v. Gamble-Skogmo, Inc., 2d Cir., 478 F.2d 1281 (1973). Based on these risks, many courts have held that asset appraisals need not be disclosed in proxy materials. However, this is by no means a blanket rule. See, e.g., Alaska Interstate Co. v. McMillian, D.Del., 402 F. Supp. 532 (1975); Denison Mines Ltd. v. Fibreboard Corp., D.Del., 388 F. Supp. 812 (1974).
There are some exceptions to the general approach that discourages the disclosure of asset appraisals in proxy materials. First, for example, where one appraisal is disclosed, disclosure of another appraisal done with the same degree of care and with the approval or knowledge of management will be necessary to make that which is disclosed meaningful. See, Lynch v. Vickers, Del.Supr., 383 A.2d 278 (1977). Another occasion that would suggest a different approach was treated in a 1980 release by the SEC. That release authorizes disclosure of good faith appraisals of asset valuations made on a reasonable basis in proxy contests in which a principal issue is the liquidation of all or a portion of a target company's assets. SEC Release No. 34-16833, Fed.Sec.L.Rep. (CCH) ¶ 24, 117 (May 23, 1980) (codified at 17 C.F.R. § 241.16833). See also, Speed v. Transamerica Corp., D.Del., 99 F. Supp. 808 (1951).
In determining whether an appraisal of asset values should be disclosed it is not feasible to set forth a single test; that determination must of necessity be made on a case by case basis. In making that determination, one court has suggested consideration of the following factors:
[T]he facts upon which the information is based; the qualifications of those who prepared or compiled it; the purpose for which the information was originally intended; its relevance to the stockholders' impending decision; the degree of subjectivity or bias reflected in its preparation; the degree to which the information is unique; and the availability to the investor of other more reliable sources of information. Flynn v. Bass Brothers Enterprises, Inc., 3d Cir., 744 F.2d 978, 988 (1984).
This checklist seems reasonably complete as an intermediate guide in attempting to assess whether a shareholder would likely find the appraisal results of actual significance.[4] Absent special circumstances, the key factor will relate to the form of transaction under consideration. Thus, for example, an appraisal done with a professionally acceptable degree of care would be most likely to be found material where shareholders are asked to authorize liquidation of the firm.
In this instance I cannot conclude that the results reported by the AAA asset valuation were sufficiently pertinent to the decision that the shareholders have been asked to make as to likely have been material to a reasonable shareholder. First, the replacement value figure, aside from its reliability, is wholly irrelevant to this transaction. Secondly, as to the fair market value, it is clear that AAA did not engage in a discounted cash flow or other form of financial analysis, so its fair market value figure (to the extent it differs from its orderly liquidation value) is of very little, if any, utility. The fair market value of income producing assets is typically determined by resorting to the financial productivity, so to speak, of such assets. Moreover, the opinion reached on that basis, $440,251,000, even if it were one reached in a final, thorough job, would hardly be regarded as significant where the total mix of available information discloses the cash portion of the recapitalization is $456,000,000. *693 Nor do I consider the orderly liquidation value which was likely the number that the lending banks reviewed of $195,581,000 would likely have actual significance to a shareholder asked to vote on the proposed recapitalization of this firm.
Given the particular techniques employed to reach these appraised fixed asset values, the time constraints under which the appraisal was done, the particular transaction subject to shareholder consideration, the attenuated pertinence to such a transaction of liquidation values, and the total mix of information relating to the transaction, I cannot conclude that defendants failed their duty in not disclosing in the April 22 proxy solicitation the AAA results.
C.
The third piece of information purportedly omitted from the proxy materials was the Houlihan report, a report prepared for RepublicBank, the trustee of the ESOP. Houlihan, Lokey, Howard & Zukin, Inc., "valuation consultants", were retained by RepublicBank to prepare a valuation presentation of Anderson, Clayton to determine whether the consideration to be paid by the ESOP for the Company's securities as a result of the transaction is in excess of the fair market value of the securities to be received by the ESOP and to determine whether the transaction is fair and reasonable from a financial point of view to the ESOP when it is compared to, among other things, the investment of the other stockholders. Houlihan valued the ESOP shares at between $40 million and $50 million. Since the ESOP will pay only $33 million for the shares, Houlihan concluded that the consideration to be paid by the ESOP is less than the fair market value of the securities to be received by the ESOP. Consequently, the transaction is fair and reasonable from a financial point of view to the ESOP when it is compared to the investment of the other shareholders.
In arguing against its disclosure defendants assert that they had no knowledge of the range of value attributed to the ESOP's shares by Houlihan at the time the proxy statement was disseminated. Instead, this information was only obtained by the defendants during discovery for this litigation.
It is true that under federal law proxy solicitors have a continuing obligation to disclose material facts to shareholders even after a proxy statement has been disseminated. Aegis Corp. v. Goldman, S.D.N.Y., 523 F. Supp. 1273 (1981); Ronson Corp. v. Liquifin Aktiengesellschaft, D.N.J., 370 F. Supp. 597 (1974). However, this Court has held that any such obligation under state law does not necessarily extend to opinions not authorized or obtained by defendants and upon which the defendants did not rely in formulating their judgment to recommend that recapitalization plan. Such a requirement would impose an unreasonable burden upon defendants in distinguishing material facts from unsupported opinions. Edelman v. Phillips Petroleum Co., Del.Ch. C.A. No. 7899, Walsh, V.C. (February 12, 1985) [Available on WESTLAW, DE-CS database]. Obviously, defendants may not be faulted for not disclosing an opinion of which they were unaware, even if one assumes its materiality which on the facts I am inclined to doubt. As indicated below, some disclosure of this matter was made in the June 2 supplemental proxy solicitation. Accordingly, it currently appears unlikely that the Houlihan report may be a predicate for a finding of liability on the part of defendants for a breach of their duty of candor.
D.
As indicated above, the June 2, 1986 proxy supplement occasioned at the last moment by the Bear Stearns proposal to the board, contained supplemental disclosures as well as the text of the Bear Stearns May 29, 1986 letter to the Company.
In part such supplemental disclosure provided as follows:
At [the hearing on the pending motion] plaintiffs contended, among other things, *694 that the Company should have disclosed in its Proxy Statement/Prospectus (i) that a draft report dated January 30, 1985, prepared by Morgan, Stanley & Co., Incorporated ("Morgan Stanley") for and on behalf of the Clayton Trusts (the "Morgan Stanley Report") contained analyses suggesting potential values for a sale of the Company, either as a single entity or in separate components, of $46 to $60 per share; (ii) that a report dated November 23, 1985, prepared for the Company by American Appraisal Associates, Inc. (the "American Appraisal Report"), showed estimated values of certain of the assets of the Company on "Cost of Reproduction New", "Fair Market Value" and "Orderly Liquidation Value" bases of $856,937,000, $440,251,000 and $195,581,000, respectively; and (iii) that a "Valuation Presentation" dated March 13, 1986, prepared by Houlihan, Lokey, Howard & Zukin, Inc. for and on behalf of RepublicBank Dallas, N.A., the ESOP trustee (the "Houlihan Report"), suggested a range of values for the shares to be issued to the ESOP as part of the Recapitalization of $54 to $68.50 per share.
This disclosure was followed by a statement of defendants' contentions as to why the foregoing does not reflect a material fact required to be disclosed.
While I have determined for the above-stated reasons that I believe defendants to be essentially correct in arguments concerning the substance of the Company's disclosures treated in this opinion[5], that determination has been made somewhat easier by the circumstance of this later disclosure on these points. In so indicating, however, I address only the quality of those disclosures and not the adequacy of the circumstances (i.e., timing) in which they were made. That issue i.e., "whether, despite what appears to be diligent efforts of defendants, this material information [there referring to the Bear Stearns "offer"] has been disseminated in a way that in fact provides record shareholders with a reasonable opportunity to vote on the important recapitalization proposal on an informed basis", In re Anderson, Clayton Shareholders' Litigation, at p. 699 is one that I expect to be raised on the motion of Bear Stearns scheduled to be heard on June 9 seeking to enjoin the recapitalization.
VI.
For the foregoing reasons, the application for a preliminary injunction shall be denied.
IT IS SO ORDERED.
NOTES
[1] Anderson, Clayton's board of directors has changed since the February 7, 1986 vote on the recapitalization. Today the board comprises sixteen members, eight of whom are officers. The relevant board for present purposes is the board that was in existence on February 7.
[2] Consideration of what the ESOP will get for its $45 per share requires a moments consideration to avoid confusion. The ESOP stock will not participate in the $37 per share cash distribution contemplated by the recapitalization. Since thereafter there will be a three-for-one stock split, the ESOP is, in essence, buying, for $45, three shares of the reduced company. On the (informal) First Boston view that each .5334 of a share may be worth between $6 and $10 a share, it would appear that the ESOP would get between $33.72 and $56.20 per share in value (i.e., 3 ÷ .5334 × $6 = $33.72) for its $45 consideration.
[3] Plaintiffs have raised additional disclosure arguments but rely principally upon the three points referred to. I have considered the other points raised and have concluded that, in the circumstances presented, none of them appear likely to ultimately be found to constitute a breach of duty to fully and fairly inform shareholders.
[4] The Sixth Circuit has considered and rejected adoption of this test. It has clung to the not unreasonable view that appraisals based upon projections must be disclosed "only if the predictions regarding future ... events are substantially certain to hold." In making this decision the court stated that, "this sort of judicial costbenefit analysis [involved in the Flynn approach] is uncertain and unpredictable, and it moreover neglects the role of the market in providing shareholders with information regarding the target's value through competing tender offers." Starkman v. Marathon Oil Co., 6th Cir., 772 F.2d 231, 242 (1985).
[5] This opinion does not treat, and I reserve for later decision, claims relating to the alleged inadequacy of the proxy solicitation's treatment of the appraisal remedy option. |
9,645,510 | 2023-08-22 21:27:27.983227+00 | Brosky | null | BROSKY, Judge:
This is an appeal taken from the entry of an order on March 10, 19861 vacating judgment of non pros. Appellant contends that the trial court abused its discretion in so vacating, alleging: (1) that the ninety-seven (97) day filing delay between the entry of non pros and the petition to vacate was never reasonably explained, making the petition untimely; (2) that the failure of appellee’s former counsel to appear at the Philadelphia call of the list, which resulted in the entry of non pros, was unreasonable; and (3) that the facts alleged in support of appellee’s cause of action were legally insufficient to support vacation of non pros.
Upon review of the record, we are in agreement with appellant that the behavior of appellee’s former counsel, with respect to (1) and (2) above, was not reasonably explained, and, as such, we now reverse the trial court and reinstate the judgment of non pros.
Appellee’s original complaint was filed as a major jury2 defamation action on January 7, 1982, naming General Bindery Co., Inc., the City of Philadelphia, and Joseph Kots (herein “appellant”) as party defendants. During the pleadings stage, both the City of Philadelphia and appellant Kots *575filed preliminary objections, and an amended complaint was filed.3 The City of Philadelphia’s preliminary objections were granted, but appellant Kots’ were denied; Kots then filed an answer.
According to the docket entries, the last action taken connected to this claim, by any party, was in December, 1982. The case was then silent until July 7, 1985, when a letter was dispatched to appellee’s former counsel from the court administrator’s office in Philadelphia, stating, in relevant part:
Dear Counselor,
It is contemplated that the above case will be assigned for trial on the individual judge program in the very near future.
Accordingly, it will be necessary for you as counsel for plaintiff, to fill out and return the enclosed information sheet no later than two (2) weeks from this date. ***** *
Very truly yours,
Harry A. Takiff, J.
Court Administrator
However, prior to any “contemplated” assignment to an individual judge, the case was assigned to the major jury list, and, on October 4, 1985, appeared on the list under the “New Listings” heading. By October 7, the case had moved into the older listings, at number 87. The case proceeded to move up the list until, on October 16, the case was at number 11, or within the top fifteen, and was called for trial. On each day the case was listed on the major jury list, the following “Notice to the Bar” appeared on the front page of Philadelphia’s Legal Intelligencer, the official publication for all notices to the Bar.4
*576Civil Trial Pool
To assure maximum effectiveness of the Civil Individual Judge Program, we are supplementing it with a master pool from which cases will be assigned to judges who are available from time to time for assignments when their individual lists permit, as well as judges who will be assigned cases from the master pool list only.
There will appear daily in The Legal Intelligencer a list of approximately 360 cases consisting of 105 major jury, 105 general jury, 75 major nonjury and 75 general nonju-ry cases, selected in chronological order based on first filing date. Based on the procedure described above, it is anticipated that these lists will move actively.
The call of the list will be held in Courtroom 907, Five Penn Center, promptly at 9 a.m. Counsel in the first 15 cases on each list must appear to answer. The rules governing continuances will be strictly enforced.
Edward J. Bradley
President Judge
Judge Harry A. Takiff
Court Administrator
(Emphasis supplied). Despite this notice, appellee’s former counsel was not present at the October 16 call of the list. Appellant’s counsel, who was present, motioned that a judgment of non pros be entered. The Honorable Harry A. Takiff, who was presiding at the call of the list, granted the motion.
Ninety-seven (97) days later, on January 21, 1986, appel-lee, represented at that time by present counsel, filed a petition to vacate the entry of non pros. The petition, which included an affidavit from former counsel, averred that: (1) former counsel, upon receipt of the July 7 letter from the court administrator’s office, had begun to monitor the individual judge calendars, as printed in the Legal Intelligencer, exclusively, and never saw the major jury listing; (2) former counsel, who was in the process of an employment and address change, did not receive notice of *577the entry of non pros until December 11, 1985; and (3) present counsel had just been transferred the case as of January 21, 1986, and was entering his appearance and filing the petition to vacate in as prompt a fashion as could be expected under the circumstances. Both General Bindery Co., Inc. and appellant Kots opposed the petition as unreasonable. The petition was granted on March 10, and appellant only filed this timely appeal.
A petition to open a judgment of non pros is addressed to the court’s equitable power, and the exercise of those powers will not be disturbed absent an abuse of discretion. Hutchinson v. Hutchinson, 492 Pa. 118, 123, 422 A.2d 501, 503-04 (1980). However, before a court may open a judgment, the party seeking vacation must demonstrate that: (1) the petition to open was timely filed; (2) the default which occasioned the entry of judgment can be reasonably explained; and (3) the facts constituting grounds for a cause of action are alleged. Horan v. R.S. Cook and Associates, Inc., 287 Pa.Super. 265, 268, 430 A.2d 278, 279 (1981); Corcoran v. Fiorentino, 277 Pa.Super. 256, 260, 419 A.2d 759, 761 (1980); Dupree v. Lee, 241 Pa.Super. 259, 262, 361 A.2d 331, 333 (1976). In his attack upon the vacation of non pros, appellant alleges that appellee failed to satisfy any of the above criteria. With respect to criteria (1) and (2), the history of this case supports appellant’s allegations.5
With regard to the initial criterion, which specifies that a petition to vacate must be promptly filed, the trial court found that appellee’s former counsel had been in the midst of an office relocation, and, as such, appellee had reasonably explained the delay in the filing of the petition now at issue.6 However, a review of the relevant factual background simply does not support the trial court’s finding of a reasonable delay. While it is undisputed that former *578counsel was in the process of an office relocation at some point in time prior to December 11, 1985, it is also admitted that counsel received notice of the entry of non pros on December ll.7 No further action was taken until the January 21, 1986 filing of a petition to vacate. There is simply no support in the record that the relocation in any way precluded former counsel from filing the petition to vacate well in advance of the January 21, 1986 filing by present counsel.8 Accordingly, we are confronted, by this appeal, with an unexplained delay of forty-one (41) days. While a delay of this length is not, in and of itself, so terribly long as to defy any attempt at explanation, it has not been explained at all, and, as such, cannot be deemed reasonable. See Hatgimisios v. Dave’s N.E. Mint, Inc., 251 Pa.Super. 275, 276-277, 380 A.2d 485, 486 (1977) (unexplained delay of thirty-seven days “too long”); also see Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 538, 375 A.2d 368, 371 (1977) (unexplained forty-seven day delay in petitioning to open default judgment “unreasonable”). We hold, therefore, that the trial court abused its discretion in finding that the present petition was promptly filed.
Furthermore, were we to defer to the trial court’s finding that the petition was prompt, we would, nonetheless, be confronted with the second criterion for vacation: the giving of a reasonable explanation or excuse for the incident that occasioned the default. We feel that appellee has failed to demonstrate any reasonable excuse for the absence of counsel from the call of the list, and hold that the second requirement for vacation has also not been met.
*579The trial court found that the absence of former counsel was occasioned, primarily, from some “confusion” created by the language of the July 7, 1985 letter from the court administrator, and that the absence, hence, was “reasonable”. We disagree.
The Legal Intelligencer is the official periodical for publication of all notices to the Philadelphia Bar. Philadelphia Local Rule of Civil Procedure 100(A); Triangle Pacific Philadelphia Corp. v. Trident Enterprises, Inc., 495 Pa. 427, 429, 434 A.2d 1165, 1166 (1981). It is incumbent upon a Philadelphia practitioner to be familiar with the Intelligencer and its contents, particularly those sections which govern the practice of litigation in the Philadelphia courts. The letter received from the court administrator’s office by former counsel merely indicated that an assignment to an individual judge was being “contemplated.” Though potentially confusing, it did not excuse counsel from her duty to be knowledgeable concerning other portions of the Intelligencer, which clearly stated, in its “Notice to the Bar”, that individual judge assignments were only being made on occasion from the master lists. As such, former counsel was not excused from her duty to monitor the master lists; it was her duty, as a diligent practitioner, to monitor the master major jury list and the individual judge calendars.
Her duty to have so performed is further buttressed by Philadelphia Local Rule of Court 200, which governs the assignment of cases for trial:
(A) Civil Case Categories.
Until such time as Civil Cases are assigned to an Individual Judges upon the commencement of an action, they shall be placed on one of the following lists as appropriate:
(1) Major Jury List — consisting of all cases not in Arbitration in which a jury trial has been demanded.
(2) General Jury List — consisting of all cases in which a jury trial demand has been properly filed and a jury listing fee paid: (a) on appeal from Arbitration determinations to the Common Pleas Court; or (b) *580which may not be submitted to Arbitration because of substantive or procedural legal principles.
(3) Equity/Non-Jury List — consisting of all equity cases and all cases in which a jury trial has been waived.
(4) Asbestos Cases after appeal from Non-Jury verdicts.
All cases shall be placed on such lists in chronological order according to the term and number of the case.
(B) Assignment of Cases.
(1) The Civil Cases on the Lists shall be assigned to individual judges for all pre-trial and post-trial purposes on a random basis until such time as all of the cases are assigned. Such assignments shall be made to participating Judges four times yearly. Each assignment shall consist of one hundred cases, in chronological order, taken from the trial lists set forth in Section A of this Rule.
(2) Upon exhaustion of the Civil Cases on the Lists, all Civil Cases shall be assigned on a random basis to an individual judge for all pre-trial, trial and post-trial purposes upon institution of suit.
(Emphasis supplied).
Clearly, Local Rule 200 outlines in no uncertain terms that cases are to be placed on the appropriate master lists prior to any assignment to an individual judge’s calendar and that only “upon exhaustion” of the master lists are the individual judge assignments made. As such, the rule imposes upon a Philadelphia practitioner a need for watchfulness with respect to the civil trial listings in the Intelli-gencer, as opposed to the type of limited scrutiny which was applied by appellee’s former counsel.
In light of the foregoing, it is inconceivable to this Court that former counsel’s excuse for non-appearance, i.e. the letter, can be deemed reasonable. A litigator is under an obligation to keep abreast of publications to the bar, such as the Intelligencer, as well as local rules of court. While we may be somewhat sympathetic to the difficulties *581former counsel may have encountered in relocating her practice and resuming work, these considerations simply do not permit us to find that a reasonable excuse for the mistake has been given. A counsel’s preoccupation with dissolving his law firm and establishing his own practice has never constituted a reasonable excuse for default, see Horan, supra, 287 Pa.Super. p. 279, 430 A.2d 278, nor have the “burdens of litigation” excused counsel from proceeding diligently, see King v. Fayette Aviation, 226 Pa.Super. 588, 590, 323 A.2d 286, 287 (1974). To permit former counsel to advance such neglect of her duties as “reasonable excuses” would merely interfere in the “orderly administration of justice”, Dupree, supra, 241 Pa.Superior Ct. p. 266, 361 A.2d p. 335, as viewed by the appellate courts of this Commonwealth.
Accordingly, the Order is vacated. Judgment of non pros is reinstated.
MONTEMURO, J., files a dissenting statement.
. An amended order was entered on May 16, 1986, which was merely intended to correct a formal error with respect to the date upon which the judgment of non pros was entered. Such amendment is authorized by Pa. Rule of Appellate Procedure 1701(b)(1), and does not affect the time for the filing of an appeal. Appellant filed the instant appeal on March 12, 1986. This filing was timely, and appellant was not required to refile after the May 16 amended order.
For purposes of clarity, we wish to point out that the amended order again misstates the date of the entry of non pros, which was, in reality, October 16, 1985. We assume the error to be merely typographical, as the amended order gives the date as October 6, 1985.
. Appellee claimed damages in excess of the compulsory arbitration limits, and demanded a jury trial. As such, the action qualified as a major jury case under Philadelphia Local Rule of Court 200(A)(1).
. General Bindery Co. Inc. chose to file an answer to the amended complaint, and has remained, throughout, a party to these proceedings.
. See Philadelphia Local Rule of Civil Procedure 100(A).
. Because of our resolution of the issues raised by the first two criteria for vacation, we needn’t address the third, concerning the sufficiency of the facts alleging the grounds for the cause of action.
. R.R., p. 4.
. Brief for appellee, p. 2.
. As former counsel was already receiving her forwarded mail as of December 11, 1985, we can only conclude that counsel’s relocation was sufficiently complete to permit counsel resumption of her affairs. This conclusion has not been disputed by appellee either below or on appeal to this Court. Rather, appellee has been totally silent with respect to the conduct of former counsel's affairs between December 11, 1985 and January 21, 1986. |
9,645,511 | 2023-08-22 21:27:27.987869+00 | Montemuro | null | MONTEMURO, Judge,
dissenting:
I dissent. Finding no abuse of discretion, I would affirm on the Opinion of the Honorable Harry J. Takiff. |
1,516,437 | 2013-10-30 06:32:54.790525+00 | Koeltl | null | 916 F. Supp. 332 (1996)
PI, INC., Plaintiff,
v.
QUALITY PRODUCTS, INC., James S. Renaldo and Lee Ogle, Defendants.
No. 95 Civ. 1723 (JGK).
United States District Court, S.D. New York.
February 26, 1996.
Elliot I. Miller, Kleban & Samor, P.C., Southport, CT, for plaintiff.
Richard W. Cohen, Robinson Borg Leinwand Reich Genovese & Gluck, P.C., New York City, for defendant Quality, Inc.
OPINION AND ORDER ON RECONSIDERATION
KOELTL, District Judge:
By letter dated January 10, 1996, the plaintiff PI, Inc. ("PI") seeks reargument, rehearing and renewal of the motion by defendant Quality Products, Inc. ("Quality") seeking the dismissal the plaintiff's fraud claim pursuant to Fed.R.Civ.P. 12(b)(6). The Court granted Quality's motion in an opinion dated December 22, 1995, holding that the plaintiff's fraud claim against Quality was duplicative of its breach of contract claim because it alleged merely that Quality had not intended to fulfill its express contractual obligations at the time of contracting.
PI asserts that the Court should reconsider its decision because it failed to follow the recent New York Court of Appeals decision in Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112, 629 N.Y.S.2d 1009, 653 N.E.2d 1179 (1995). The plaintiff contends that this Court should have interpreted Graubard in the same way that decision was interpreted in Symonds v. Westdeutsche Landesbank Girozentrale, a January 8, 1996 decision by the New York State Supreme Court, New York County IAS Part 14.
This Court was well-aware of the Graubard decision at the time it rendered its opinion in the present case and in fact cited Graubard in its December 22 opinion. See 907 F. Supp. 752, 760-61. The recent Symonds decision the plaintiff cites is not a controlling decision for this Court and thus does not require a rehearing in the present case. Moreover, in Symonds itself, despite some rather broad language, the court found that "more than a general allegation of lack of intent to carry out a contractual promise is necessary." The court went on to find that there were allegedly specific fraudulent pre-contractual representations, all of which do not appear to have been reflected in the resulting contract.
Accordingly, because PI has not suggested any controlling decisions or factual matters that the Court overlooked or misapprehended, see Local Civil Rule 3(j), the plaintiff's motion for reargument, rehearing, and renewal is DENIED.
SO ORDERED. |
1,516,438 | 2013-10-30 06:32:54.794492+00 | Barbieri | null | 103 Pa. Commw. 180 (1987)
519 A.2d 1103
Michael Weimer, Petitioner
v.
Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, Respondent.
No. 1933 C.D. 1986.
Commonwealth Court of Pennsylvania.
Submitted on briefs November 14, 1986.
January 14, 1987.
*181 Submitted on briefs November 14, 1986, to Judges CRAIG and PALLADINO, and Senior Judge BARBIERI, sitting as a panel of three.
W. Hamlin Neely, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
OPINION BY SENIOR JUDGE BARBIERI, January 14, 1987:
This is a parole revocation appeal wherein Michael Weimer, parolee, appeals here an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a Board parole revocation order. That revocation order recommitted him to prison as a convicted and a technical parole violator to serve thirty-six months on backtime. We reverse and remand.
*182 Weimer was granted parole by the Board effective June 30, 1982 on a sentence of five to twelve years imposed by the Court of Common Pleas of Northampton County as a result of his conviction for Robbery[1] and Criminal Conspiracy.[2] On September 3, 1984, Weimer approached one William Cox, who was installing a stereo in his vehicle, grabbed him, told him he was going to cut out his heart, and stabbed him in the upper right chest with what Cox described as a hunting knife. Weimer was subsequently arrested by Bethlehem Police and charged with Aggravated Assault[3] and Recklessly Endangering Another Person.[4] He eventually entered a negotiated plea of guilty to Aggravated Assault in Lehigh County Common Pleas Court and was subsequently sentenced to two to four years imprisonment.
On July 9, 1985, Weimer appeared before a Board hearing examiner at the Lehigh County Prison for a parole Violation/Revocation Hearing. The Board charged he violated 37 Pa. Code §63.4(5)(ii), requiring parolees to refrain from owning or possessing any firearms or other weapons, 37 Pa. Code §63.4(5)(iii), requiring parolees to refrain from assaultive behavior, as well as committing a crime for which he was convicted within the meaning of Section 21.1(a) of the Act of August 6, 1941 (Parole Act), P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, 61 P.S. §331.21a(a). After the hearing, the Board, by order dated July 29, 1985, revoked his parole and recommitted him to prison as a convicted parole violator to serve twenty-four months on backtime and as a technical parole violator to serve twelve months on backtime, for a *183 total of thirty-six months on backtime, when available. The Board amended that order on January 21, 1986, after Weimer was sentenced on the new Lehigh County conviction, to calculate a tentative reparole date and extended the maximum term of his original sentence to October 28, 1992. He filed an administrative appeal which the Board partially granted by deleting the finding he violated 37 Pa. Code §63.4(5)(iii), pertaining to assaultive behavior, but denied his appeal pertaining to the finding he violated 37 Pa. Code §63.4(5)(ii), pertaining to possession of a weapon. The Board did not alter the twelve months backtime imposed for the technical parole violations. He subsequently filed a timely petition for review with this Court.
In this appeal, Weimer contends the Board erred as a matter of law when it recommitted him as a technical parole violator for possessing a weapon, to-wit the knife, when that same conduct constituted an element of the offense, Aggravated Assault, for which he was subsequently convicted. He argues under the Pennsylvania Supreme Court's interpretation of Section 21.1(b) of the Parole Act, 61 P.S. §331.21a(b), set forth in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), the Board is without power to recommit him as a technical violator for conduct which also formed an element of a crime of which he was convicted. We agree.
Weimer was convicted, pursuant to his guilty plea, of the offense of Aggravated Assault. The pertinent provisions of Section 2702(a) of the Crimes Code, 18 Pa. C. S. §2702(a), define the offense of Aggravated Assault as follows:
(a) Offense defined. a person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, *184 knowingly or recklessly under circumstances manifesting extreme indifference to human life;
....
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; or
....
The record indicates Weimer pleaded guilty to one count of Aggravated Assault, graded as a felony of the third degree, on April 8, 1985. Under Section 2702(b) of the Crimes Code, 18 Pa. C. S. §2702(b), only a conviction under subsections (a)(1), (a)(2) and (a)(5) may be graded as felonies. Accordingly, Weimer's conduct must have fallen under subsection (a)(1), involving serious bodily injury to another, for his conviction to be graded as a felony.
The Board argues since a deadly weapon is not a necessary element to a conviction of Aggravated Assault under 18 Pa. C. S. §2702(a)(1), it may properly recommit Weimer as a technical parole violator for possession of the alleged hunting knife without violating Rivenbark. While we agree with the Board that use of a deadly weapon is not required to constitute an aggravated assault under 18 Pa. C. S. §2702(a)(1), see e.g. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978) (striking victim in the face with a fist sufficient intent to cause serious bodily injury to sustain conviction for aggravated assault); Commonwealth v. Russell, 313 Pa. Super. 534, 460 A.2d 316 (1983) (act of choking victim sufficient to constitute aggravated assault), the use of a deadly weapon to cause, or attempt to cause, serious bodily injury to another can also constitute aggravated assault under Section 2702(a)(1). See e.g. Commonwealth v. Boettcher, 313 Pa. Super. 194, 459 A.2d 806 (1983) (use of gun to strike victim on head coupled with defendant firing several shots in *185 the air sufficient proof of intent to cause serious bodily injury to sustain conviction for aggravated assault); Commonwealth v. Chance, 312 Pa. Super. 435, 458 A.2d 1371 (1983) (victim's injury to her hand occurring while shielding her head from blow from defendant's gun sufficient proof of intent to cause serious bodily injury to sustain conviction for aggravated assault). Thus, when a deadly weapon is used to commit, or attempt to commit, serious bodily injury to another, it becomes a necessary element of the offense of Aggravated Assault as defined by 18 Pa. C. S. §2702(a)(1). Such is the case at bar.
The evidence presented by the parole agent to support Weimer's alleged violation of 37 Pa. Code §63.4(5)(ii), possession of a weapon, consisted of the following:
MR. KOLAR (Parole Agent): The violations specified were Special Condition 5 (b); you shall refrain from owning or possessing any firearms or other weapons. Supporting evidence for that violation was or is stated from the victim, the victim is present. The victim, Mr. William Cox allegedly threatened and stabbed with a knife on 9/3/84 by the client [Weimer]. Mr. Cox, can you give a brief statement as to what happened on that date?
HEARING EXAMINER BIGLEY: Just tell us in your own words exactly what happened and summarize it for us and try and stick to the point.
MR. COX: I put a tape deck in my car, Mike came up to me.
HEARING EXAMINER BIGLEY: This was on September 3rd, '84?
MR. COX: It was Labor Day or something like that. That's really about it. Then the next *186 thing I knew he was coming after me trying to scare me to keep away from his girlfriend, I guess. The next thing I knew I was bleeding. It happened so fast.
HEARING EXAMINER BIGLEY: Well, did you have a discussion or some kind of argument or something, or did something precipitate this?
MR. COX: Not really, he just told me he was going to cut my f--king heart out. That was it.
HEARING EXAMINER BIGLEY: Okay, threatened you over some girl?
MR. COX: Yes.
HEARING EXAMINER BIGLEY: Whose girlfriend was it, his or yours?
MR. COX: I guess it was his at the time. [K]now I didn't know what the hell was going on. That was it, got out of the car, went in the house.
MR. KOLAR: Did Mr. Weimer have a weapon in his possession at the time?
MR. COX: When, afterwards?
MR. KOLAR: During the time he was threatening you. Did he have anything in his possession?
MR. COX: Yes, he had a knife in his hand.
MR. KOLAR: Describe the knife?
MR. COX: It was like a hunting knife, I guess.
MR. KOLAR: What kind?
MR. COX: A hunting knife.
MR. KOLAR: Approximately how big was it?
MR. COX: It wasn't a folded knife, it was a regular pull out sheath knife.
MR. KOLAR: That's all the evidence that we have for Violation of Condition 5(b)....
N.T. (7/9/85) 2-4; R.R. 14-16. It is clear from the hearing transcript the only evidence the parole agent *187 presented pertaining to Weimer's possession of a weapon is in connection with the assault on William Cox, of which he was subsequently convicted. His possession of the knife is an integral part of the commission of that assault and an element of his conviction. Accordingly, the Board may not base a technical parole violation upon his possession of a weapon during the assault on Cox. Rivenbark.
In its Notice of Charges and Hearing, Board form PBPP-340, dated June 26, 1985, the Board also asserts two witnesses other than Cox, namely one Gregg Sigley and one Denise Hertzog, had observed Weimer with a knife prior to his assault upon Cox. Those observations, being separable from the assault upon Cox, could have formed the basis of a technical parole violation for possessing a weapon had either Sigley or Hertzog testified to that effect at the July 9, 1985 parole Violation/Revocation Hearing. See Threats v. Pennsylvania Board of Probation and Parole, 102 Pa. Commw. 315, 518 A.2d 327 (1986); Keough v. Pennsylvania Board of Probation and Parole, 95 Pa. Commw. 252, 505 A.2d 378 (1986). However, the parole agent called neither Sigley nor Hertzog to testify and relied solely upon Cox's testimony to establish Weimer's violation of 37 Pa. Code §63.4(5)(ii). Since Cox testified only about the use of the knife in the assault, Rivenbark precludes the Board from basing a violation of 37 Pa. Code §63.4(5)(ii) on that same conduct.
The Board's finding that Weimer violated 37 Pa. Code §63.4(5)(ii) by possessing a knife is hereby reversed and the corresponding twelve months backtime imposed by the Board for that violation must be deleted from the Board's parole revocation order of July 18, 1986. Accordingly, the Board's parole revocation order of July 18, 1986, shall be modified by deleting any *188 reference to technical parole violations and the backtime imposed shall be modified to twenty-four months as a convicted parole violator.
ORDER
NOW, January 14, 1987, the Order of the Pennsylvania Board of Probation and Parole at Parole No. 4157-M, dated July 18, 1986, is hereby modified to delete the finding that Michael Weimer violated 37 Pa. Code §63.4(5)(ii) and the imposition of twelve months backtime as a technical parole violator. The order of July 18, 1986, thus modified to require Michael Weimer to serve twenty-four months on backtime as a convicted parole violator, is affirmed. The matter is remanded to the Pennsylvania Board of Probation and Parole for recomputation of a tentative reparole date consistent with this opinion.
Jurisdiction relinquished.
NOTES
[1] Section 3701 of the Crimes Code, 18 Pa. C. S. §3701.
[2] Section 903 of the Crimes Code, 18 Pa. C. S. §903.
[3] Section 2702 of the Crimes Code, 18 Pa. C. S. §2702.
[4] Section 2705 of the Crimes Code, 18 Pa. C. S. §2705. |
9,645,512 | 2023-08-22 21:27:32.578045+00 | O'Quinn | null | O’QUINN, Justice.
Appellant is Spring Branch Savings and Loan Association of Harris County, and ap-pellees are the Savings and Loan Commissioner of Texas, defendant in district court, and Houston First Savings Association and Benjamin Franklin Savings and Loan Association, intervenors.
' Two questions are presented by this appeal. First, do the findings of the Savings and Loan Commissioner, denying appellant’s application for a branch office in downtown Houston, have support in substantial evidence? Second, is appellant estopped to prosecute this suit because the case is a stale demand and laches precludes assertion of appellant’s right?
Appellant, with its principal office at 8224 Long Point Road in Houston, sought to establish a branch office, to be located at 720 Milam Street in downtown Houston. Appellant’s application was denied by the Savings and Loan Commissioner in an order entered February 25, 1963. On March 22, 1963, appellant filed its original petition in district court seeking judicial review of the order of the Commissioner and for mandamus to compel granting of the branch office.
The trial court heard this cause October 17 and 18, 1966, and in a final judgment October 21, 1966, sustained a plea of stale demand and laches urged by the Commissioner and intervenors. In the alternative, the court held that the order of the Commissioner of February, 1963, refusing application for the branch office, was reasonably supported by substantial evidence adduced at the trial.
*621Appellant’s original application was filed, the hearing before the Commissioner was held, the order of the Commissioner was entered, and petition for judicial review was filed prior to January 1, 1964, the date Article 852a, Vernon’s Ann. Civ. St., became effective. (Savings and Loan Act, Acts 1963, 58th Leg., ch. 113, sec. 1, p. 269). This appeal is governed by provisions of the prior savings and loan law found in Article 881a-l through 69, Vernon’s Ann. Civ. St., and cases decided under these statutes.
Linder Article 881a-2, Vernon’s Ann.Civ. St., the Commissioner was required to grant a savings and loan charter if, upon finding that the required minimum capital had been paid in cash and that the incorporators were of such fitness and integrity as to justify belief they would conduct an honest and efficient operation, it also appeared to the Commissioner that:
“ * * * the public convenience and advantage will be promoted by allowing such proposed building and loan association to be incorporated and engaged in business, and [that] * * * the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed * * * association.”
The same basic statutory standards governing the creation of savings and loan associations control establishment of their branch offices. Southwestern Savings and Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917; Falkner v. Gibraltar Savings Association, Tex.Civ.App., Austin, 348 S.W.2d 467 (writ ref., n. r. e.).
In refusing appellant’s application for the branch office, following a hearing held December 18, 1962, the Commissioner in his order of February 25, 1963, found that
“The public convenience and advantage will not be promoted by the establishment of the additional office in the neighborhood proposed to be served and in the surrounding country and the volume of business there is not such as to indicate that a profitable operation is probable within a reasonable period of time.”
Since this appeal was brought pursuant to provisions of Article 881a-3, Vernon’s Ann.Civ.St., and the case law applicable to the savings and loan statutes prior to enactment of Article 852a, the Commissioner’s order is subject to judicial review under the substantial evidence rule as applied by the courts of this State to administrative orders including those of the Savings and Loan Commissioner. Gerst v. Cain, Tex.Civ.App., Austin, 379 S.W.2d 699, affirmed 388 S.W.2d 168 (Tex.1965).
For the reason that if the trial court was correct in sustaining the plea of stale demand and laches, the question of substantial evidence need not be decided, we give attention first to deciding whether the doctrine of laches is applicable to this case.
In support of the trial court’s action sustaining the plea of stale demand and laches, appellees argue change of conditions and a want of diligence on the part of appellant in prosecuting this suit to set aside the Commissioner’s order. Ap-pellees urge that appellant should be relegated to the Commissioner to allow “the Commissioner to consider the application upon the basis of conditions actually existing, instead of upon the basis of purely fictitious conditions.” Appellant denies it unreasonably delayed in asserting and prosecuting its claim in court and contends appellees failed to show that delay resulted in a good faith change of position to their detriment.
After the Commissioner denied appellant’s application for a branch office February 25, 1963, appellant brought suit for judicial review the following month, on *622March 22. The Commissioner answered April 8, and Benjamin Franklin Savings and Loan Association intervened June 28, 1963. The intervention of Houston First Savings Association was not filed until April 25, 1966.
On April 6, 1963, L. D. Cain and others filed application with the Commissioner seeking a charter for Metropolitan Savings and Loan Association to be located in downtown Houston. On June 21, 1963, American Savings and Loan Association applied to the Commissioner for a branch office to serve downtown Houston. The Commissioner denied both applications, the Metropolitan order being in July and the American order in November, 1963. Both Metropolitan and American filed and successfully prosecuted appeals in court.
With the two cases of Metropolitan and American pending, appellant, acting on advice of counsel representing the association, decided to await the outcome of the other two cases before proceeding with its own appeal. The Metropolitan appeal became final March 10, 1965, after decision by the Supreme Court in Gerst v. Cain, 388 S.W.2d 168 (Tex.1965). The American appeal was final in April, 1965, with disposition by the Supreme Court of application for writ of error from decision of this Court in Gerst v. American Savings and Loan Association, Tex.Civ.App., Austin, 384 S.W.2d 352 (writ ref., n. r. e.).
The attorney in active management of appellant’s appeal withdrew from the case, within a short time after the Metropolitan and American cases became final, to accept a place in Washington on the staff of the President of the United States. Management of the case was left in the hands of an associate who died in November, 1965, following which the present attorneys were employed by appellant to prosecute this cause.
In January, 1966, appellant, through its attorneys, obtained a trial setting for March 21, 1966. On March 11, the Attorney General as counsel for the Commissioner, advised the trial court in writing that the case had been reset by agreement for May 2, 1966. On April 25 Houston First Savings Association intervened and aligned itself in support of the order of the Commissioner. Shortly thereafter, on April 29, Houston First and the Attorney General filed motion for continuance. The motion was granted and the cause was reset for trial June 6, 1966.
On June 1 the Attorney General filed a first amended original answer and pleaded for the first time stale demand and laches. When the cause came to trial June 6, both intervenors, Houston First and Benjamin Franklin Savings, interposed a second motion for continuance. The motion was granted by the trial court, and subsequently the cause was set down for trial October 17, 1966, when the case was beard.
After the close of evidence, Houston First and Benjamin Franklin Savings filed jointly, on October 21, amended pleas in intervention adopting the Commissioner’s plea of stale demand and laches. The trial court entered its judgment the same day, October 21, 1966.
From April, 1963, when the Attorney General answered appellant’s suit, until final disposition of the Metropolitan and American cases, two years elapsed during which appellant did not actively pursue its cause. Appellant delayed this period on advice of its attorney who recommended waiting to see what the courts would decide in the Metropolitan and the American cases.
Following this two-year period, and until the case was heard in district court about eighteen months later, the delays occurring appear to have been beyond the control of appellant. After the attorney in charge of the case withdrew in 1965 and upon the death of the attorney who succeeded him in the case, appellant employed the present *623attorneys who promptly set about to bring the case to trial. Any delay in prosec-cution of appellant’s case for the next ten months was occasioned by appellees through postponement and continuances. The cause was finally heard in October, after being set for trial four times at the instance of appellant, beginning in January.
Appellees point out that when the Commissioner heard appellant’s application for a location in downtown Houston in February, 1963, there were seven savings and loan offices operating in downtown Houston, and that when the case was tried in 1966, there were nine such facilities in downtown Houston. The increase, of course, was occasioned by the addition of Metropolitan and American, whose applications, as already pointed out, were considered and denied by the Commissioner in 1963 shortly after appellant was refused a branch office.
“But the trial court,” appellees argue, “was required to test the validity of the Commissioner’s order upon the basis of the facts that existed when the order was entered and for that reason could give no consideration to the change in condition caused by the two additional offices.”
“On the other hand,” appellees assert, “when the Commissioner acted he could not and did not consider the change in conditions caused by the opening of two additional offices because at that time such offices were not in existence. In other words, neither the Commissioner nor the trial court has ever considered whether or not appellant is entitled to the branch office sought by it considering the fact that there are nine savings and loan facilities in the central business district of Houston.”
In addition to the change from seven to nine installations, appellees argue that conditions in the savings and loan industry underwent a radical change between February, 1963, when the Commissioner acted, and October, 1966, when this case was tried in district court. Testimony was introduced to show that 1963 was a period of rapid growth and a time when money was readily available, but that in 1966 the period of growth had come to a halt and “money was tight.”
It was because of these changed conditions, appellees argue, that the trial court “abated appellant’s suit, thereby relegating appellant to the Commissioner.”
We do not agree that these changed conditions pointed out by appellees are properly chargeable to appellant so as to constitute proof of the affirmative plea of stale demand and laches.
Any changes in conditions subsequent to the order entered by the Commissioner in February, 1963, would be irrelevant to the issue of whether the order was reasonably supported by substantial evidence. On the question of whether the doctrine of laches is applicable, the changed conditions shown by appellees relate to economic growth and changes in the city of Houston, and are unrelated to what appellant did or failed to do that could have caused appellees to change their position to their detriment.
Evidence of changed conditions in downtown Houston, between the period in which the Commissioner denied appellant’s application in 1963 and the time of trial in 1966, actually shows remarkable growth in the banking and in the savings and loan industries, favorably affecting the two inter-venors.
In this period deposits in downtown banks increased by $288,000,000. Between the time of the Commissioner’s order and the beginning of 1966 savings in Harris County savings and loan associations increased $327,000,000, from $431,000,000 to $758,000,000. Savings in Harris County banks went up $250,000,000 in a two year period ending in June, 1964.
*624The workday population in downtown Houston increased by 30,000 persons between early 1963 and October, 1966, when the case was tried, being a gain from 170,-000 to 200,000 workers. Off-street parking spaces rose 4,000, from 30,000 to 34,000, in this period. Downtown office space at the beginning of 1963 was 17,700,000 square feet, and at the time of trial these accommodations had grown by 2,200,000 square feet to a total of 19,900,000. More office space was constructed in downtown Houston from 1955 to 1966 than had been constructed in the entire history of Houston prior to 1955.
Changed conditions in the savings and loan industry, appellees assert, support the action of the trial court in sustaining the plea of laches.
William George Richards, chief executive officer of Benjamin Franklin Savings, testified regarding changed conditions in the industry since 1963. It was his testimony that although there had been increased competition for savings from the banking industry, this competition in 1966 had “largely been erased” through governmental regulation. Benjamin Franklin Savings on a capital investment of $1,150,-000 made a net profit in 1965 of $523,000, being a return in excess of 45 percent on the investment for that year. Accounts of this association increased from 13,931 late in 1962 to 16,914 by July, 1966, a growth of 2,983 accounts. Savings deposits of the association in the same period increased $19,463,000, a growth from $26,647,000 to $46,140,000. In the same period capital, undivided profits, surplus and loss reserves rose $1,420,294, from $957,573 to $2,377,867.
Houston First Savings, the other inter-venor, from early 1963 to the middle of 1966 increased its savings accounts 6,991, a growth from 17,960 to 24,951 accounts. The savings deposits of this association in the same period achieved a gain of $48,-908,000, an increase from $81,594,000 to $130,502,000. Growth in the association’s capital, undivided profits and surplus and loss reserves in this period was $6,171,000, a climb from $4,853,000 to $11,024,000.
Appellees rely upon Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207, in arguing that changed conditions support remand of this cause to the Commissioner for further consideration. In that case the Supreme Court found that the Interstate Commerce Commission in its order did not state any rational connection between the facts it found and the choice of remedies made in disposing of the application and the order was not supported by substantial evidence. The Court noted that Congress about four months after the Commission’s order had passed a statute outlawing the type of agreement involved in the case, making the order of the Commission moot in that case. The Court remanded the case to the Commission for proceedings consistent with the opinion.
In the case before this Court there has been no legislation rendering the order of the Commissioner moot. There are no intervening facts, created or brought about by the parties, the courts, or the legislature, requiring or justifying that this case be remanded to the Commissioner for further consideration in the light of changed conditions. The Burlington Truck Lines case is not in point.
The basic rules controlling application of the doctrine of laches by the courts of this State have been settled by the Supreme Court in three cases, the most recent of which was decided in 1964. Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167 (Tex.Com.App., opinion adopted by Sup.Ct., 1944); Gulf, Colorado and Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959); City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex.1964).
In City of Fort Worth v. Johnson, supra, the Supreme Court held that laches is an affirmative defense, with the burden *625on the pleader to prove the essential elements. (388 S.W.2d 400, 403, col. 2). The Court described laches as being akin to the defense of estoppel, and, citing Culver v. Pickens, supra, stated two essential elements of laches:
“Two of the essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay.” (388 S.W.2d 400, 403, col. 2).
The burden to prove both these elements was on appellees, they having asserted the doctrine as an affirmative defense. If they failed to prove either element, this defense fails.
It is apparent under the rule announced by the Supreme Court that there must be an unreasonable delay by one party that has worked injury to another party. In this case there is want of proof adequate to show inconvenience, prejudice, or injury to either the Commissioner or the inter-venors, and the mere lapse of time will not raise a presumption of such detriment.
We can find nothing in the record tending to show that the Commissioner or the intervenors have changed their positions to theft- detriment by reason of any delay occasioned in this cause. We believe there is no basis upon which any of the appellees could have concluded at any point that appellant had abandoned its effort to procure a branch office in downtown Houston.
On the other hand, appellant was able to show that it was not solely at fault for the delays that did occur. In support of the argument that appellant did not prosecute this appeal with diligence, appellees rely upon several cases in which the courts applied the doctrine of laches or stale demand. In each of these cases, the delay was shown to be the sole fault of the party bringing the suit and in each case the delay itself was the cause of the other party’s detriment.
In Flanagan v. Smith, 21 Tex. 493, suit on a promissory note was brought in 1851, and plaintiff waited “nearly five years” before demanding judgment. The principle announced in this case has been summarized as follows:
“ * * * where a plaintiff in a case pending on the docket of a court fails to take action therein for four years, in which time the cause of action would be barred by limitation, the defendant should be held to be released from further attention to or defense of the case.” Brooks Supply Co. v. Hardee, Tex.Civ.App., Beaumont, 32 S.W.2d 384, 386, col. 2 (writ ref.).
In Reese v. Carey Bros., Tex.Civ.App., Amarillo, 286 S.W. 307 (writ dsmd.), claim to an interest in an oil development was withheld awaiting outcome of the enterprise in which others were spending money and incurring obligations for the benefit of the project. After matters took a decided turn in favor of claimant, the interest was asserted. The court held that the claim should have been asserted at the earliest possible time, especially since it was a mining property of fluctuating character in which the claimant had deliberately avoided risks of the enterprise.
An injunction suit was filed in Stoewer v. Porcelain Enamel, 199 Md. 146, 85 A.2d 911 (1952) in 1939, but plaintiff “allowed the matter to rest until 1950,” at which time the whole business of the plant plaintiff complained of had changed. The plant was under different management and its business was not the same, nor was the plant engaged in the practices alleged to be a nuisance.
A contractor, claiming to be the actual low bidder on a construction job, brought suit in New Jersey (Somers Const. Co. v. *626Board of Education, D.C., 198 F.Supp. 732), filed for a preliminary injunction which was denied, and before final hearing and opinion on the merits were reached, the contractor voluntarily withdrew his complaint. He waited until another contractor had completed the construction before seeking money damages from the school board. The court held that it would “not allow a contractor who is aware of an improper award to voluntarily and intentionally delay in seeking determination as to the validity of such an award and only after construction is completed seek money damages.” (198 F.Supp. 732, 737).
In none of these cases can we find authority controlling the facts of this case. Appellees have not shown that appellant delayed unreasonably in asserting its rights, nor have they made proof of any change of position by the Commissioner or the intervenors to the detriment of any of them because of the delay.
We sustain appellant’s assignment that the trial court erred in sustaining appellees’ affirmative plea of stale demand and laches.
Whether the Commissioner’s order, denying appellant’s application for a branch office in downtown Houston, has support in substantial evidence must he decided by this Court under the principles of review prescribed by the Supreme Court of Texas in Gerst v. Cain, 388 S.W.2d 168 (Tex.1965); Gibraltar Savings and Loan Association v. Falkner, 371 S.W.2d 548 (Tex.1963) ; and Phillips v. Brazosport Savings and Loan Association, 366 S.W.2d 929 (Tex.1963).
This Court will presume that the order of the Commissioner was valid. The discretion of this Court may not be substituted for that of the Commissioner. This Court must sustain the Commissioner if his order is reasonably supported by substantial evidence. The evidence that this Court may consider under the presumption of validity includes proof made at the trial of facts in existence at the time the Commissioner entered his order, whether or not the Commissioner is shown to have been aware of those facts. Phillips v. Brazosport Savings and Loan Association, supra, 366 S.W.2d 929, 936, cols. 1 and 2, 937, col. 1.
As previously stated, the Commissioner in 1963, following his order in February denying appellant’s application for a branch office in downtown Houston, also denied American Savings a branch office in downtown Houston in July and refused a charter to Cain and others to establish Metropolitan Savings in downtown Houston in November. The action of the Commissioner later was overturned by the courts with respect to American Savings and Metropolitan Savings. These cases were decided upon facts existing in downtown Houston in July and November, 1963, and the case before this Court must be decided upon facts existing in downtown Houston in February of that year.
The Supreme Court in Gerst v. Cain, supra, observed that “Each substantial evidence case must be decided on its own facts, and the facts in two such cases will rarely be the same.” 388 S.W.2d 168, 171, col. 2.
Certain facts, however, with reference to the economic growth of Houston are common to all three cases growing out of the Commissioner’s orders in 1963. In the American Savings case, supra, this Court observed that “ * * * the evidence indicates phenomenal growth of all associations concerned, whether applicant or protestant, which are located in a city such as Houston whose growth in the past has been equally phenomenal and whose projected growth portends the same.” (Emphasis added) 384 S.W.2d 352, 357, col. 2. In the Metropolitan Savings case (Gerst v. Cain, 379 S.W.2d 699, Tex.Civ.App., Austin, affirmed in 388 S.W.2d 168), this Court declined to recite or discuss “the mass of evi*627dence produced * * * bearing on the population, growth or economic status of Houston, except to say that it appears to he phenomenal." (Emphasis added) 379 S. W. 699, 701-702.
Ralph Ellifrit, formerly director of city planning for the city of Houston, qualified at the trial of this case as an independent planning consultant, and testified concerning the growth and development of Houston, its population trends, its land use, patterns and trends, and economic base. It was his testimony that in 13 years prior to 1963 Houston’s population increased by 533,876, and that during the last three years of this period the growth was 107,701 persons, or more than twenty percent of the total growth for the 13-year period.
From prepared exhibits, Ellifrit testified about the freeway system in Houston and the effect of the system upon the growth of downtown Houston. It was shown that the central loop of Houston’s freeway system in early 1963 afforded traffic access to and from the central business district on all sides. The freeway system so greatly improved traffic access that in 1963 the central business district had a great growth potential. It was Ellifrit’s testimony that downtown Houston in early 1963 had, and in the future will have, the best access by automobile of any city in the United States within the same population bracket with Houston. Ellifrit testified that for this reason the Houston central business district will for many years remain dynamic, in contrast to other cities where the downtown streets are narrow and not connected to a satisfactory system of freeways leading to other areas of the city. All of the streets in the Houston central business district are parts of a one-way street system, with most of the streets feeding into or out of one of the major expressways.
The site proposed for appellant’s branch office is at the corner of Rusk and Milam Streets, two blocks west of Main Street, in the central business district of Houston. Rusk Street affords access to Memorial Freeway on the east, and Milam Street ties into the freeway system to the north and extends south and feeds into the Southwest Freeway. All of the adjacent streets, Travis one block east, Louisiana one block west and Smith two blocks west, tie into the Houston freeway system. Ellifrit testified that left-turn movements may be made easily, since all streets are one-way, with the result that the proposed location for appellant’s branch office is near the center of downtown traffic flow emanating from the freeways into downtown Houston.
With reference to growth in office building space in downtown Houston, Ellifrit testified that between 1955 and early 1960 a total of 1,560,000 square feet of office floor space was added to that part of downtown Houston surrounding the proposed location, and by early 1963 an additional 3,200,000 square feet had been constructed. Included in the newest increase was the Tennessee Building with 33 stories containing 950,000 square feet of floor space and the Federal Building with 450,000 square feet. The Federal Building with 1400 employees, is located one and a half blocks from the proposed site, and the Tennessee Building is two blocks south of the location.
From a study of parking spaces available in February, 1963, in the area surrounding the proposed branch office, Elli-frit found that in eight blocks along Rusk Street nearest the proposed site, 1,279 parking spaces were available. As a result of the parking spaces in the area and movement of people from parking sites to the central shopping district on Main and Travis Streets, Ellifrit concluded that appellant’s proposed site was located in the central business area with a large foot-traffic passing the location. He also found that foot traffic flowed past the site from the Federal Building.
Future growth of the central business district in Houston, as viewed by Ellifrit *628and the city planning department in 1963, is best described by the following testimony :
“Q (by counsel) * * * as of February, 1963, according to the studies which you had made of the City of Houston and the downtown area, had you formed a judgment as to whether or not the downtown area had peaked out in growth as a whole or whether it would continue to develop or did you have any judgment about that at all, as of that time?
A (Ellifrit) * * * No, we thought and felt that it had every reason to keep on growing because, in the first place, the trends of growth have been continuous almost, except for the normal peaks and valleys that you find in economic conditions, and also as the floor area tends to be flooded a little and then office space becomes scarce; and we felt that the trends and growth of the entire metropolitan area, which would normally be reflected in the Central Business District, that it would continue to grow, and we felt because of the access to the Central Business District and its wide street system and the fact that for some years to come traffic access, ingress and egress, will actually improve, would cause the central area and the Core Area to continue to grow and expand. And this has been borne out since that time.”
Further testimony as to growth and economic development of Houston was received at the trial from Dr. Francis S. Yeager, who qualified as an independent economic expert. It was shown that Dr. Yeager, professor of economics and finance at the University of Houston, had engaged in independent consulting work in connection with chartering of banks and savings and loan associations for a number of years, and had conducted ten economic feasibility studies in the past five years.
Dr. Yeager testified that in 1946, after the close of World War II, the city limits of Houston incorporated about 70 square miles, which by 1960 had grown to 350 square miles. Dr. Yeager defined the Houston downtown area as the region between Gray Avenue on the south and Buffalo Bayou on the north, bounded on the east by Crawford Street and on the west by the large freeway interchange. “In other words,” Dr. Yeager testified, “that is, in my view, where the action is in downtown Houston.”
Dr. Yeager considered the downtown area in 1950 to consist of about 100 square blocks, increasing to 160 or 170 blocks in 1958. The area described by Dr. Yeager as downtown Houston “where the action is” comprises 225 square blocks.
Dr. Yeager placed the workday population of downtown Houston in 1950 at 80,000 to 85,000 persons, which increased to 116,000 by 1958. In 1962 the workday population reached approximately 170,000, an increase of more than 50,000 downtown workers in five years.
Off-street parking spaces in 1950 totaled 11,000 in downtown Houston, increasing to more than double that number in 1958, with 22,300 spaces. In 1962 the number of spaces exceeded 30,000. Between 20,000 and 30,000 cars were parked during all or part of the day in downtown Houston in 1950, and eight years later, in 1958, this number had climbed to 40,000 to 45,000. Dr. Yeager estimated the parked cars in 1962 to be about 70,000. By prepared exhibits, appellant showed all downtown parking in the vicinity of its proposed branch office and demonstrated that about 30 percent of downtown parking would be conveniently situated with respect to appellant’s location to serve prospective customers.
Dr. Yeager testified extensively as to other economic indicia relative to the *629growth in the Houston economy and its effect on the savings and loan industry.
This portion of Dr. Yeager’s testimony is condensed in the following twelve excerpts from appellant’s brief:
1
“As of December 31, 1950, the total personal financial savings in Harris County amounted to $1.25 billion; by 1955, they totaled $2.1 billion; and by the end of 1960, they had grown to $3.2 billion. At the end of 1962, total personal financial savings amounted to $3.9 billion, a dramatic increase of $1.8 billion since 1955.”
2
“Plaintiff’s Exhibit 6 shows the increase in deposits in the downtown Houston banks. In 1955, there was approximately $1.7 billion in deposits, but in December, 1963, those deposits had grown to $2.6 billion, an increase of almost $1 billion.”
3
“Plaintiff’s Exhibit 7 shows the growth in demand deposits and the growth in savings deposits of all Harris County banks. * * * Demand deposits of individuals, partnerships, and corporations grew from $1.1 billion in 1954 to $1.45 billion in 1963. Savings deposits grew from $150 million in 1954 to $775 million in 1963. This dynamic increase in savings in banks of $600 million in nine years * *
4
“Those impressive increases in demand deposits and savings deposits were irrefutable proof of Houston’s rapidly growing population, together with rising family incomes and increasing employment in the city. In December, 1958, there were approximately 483,000 people employed in Harris County. By December, 1962, this had increased to approximately 560,000 people.”
5
“ ‘Disposable income’ is the income remaining to persons after payment of income taxes. Dr. Yeager estimated disposable income in Harris County at $2.3 billion per year in 1958. By 1962, this had risen to $3 billion per year.”
6
“Downtown office space showed explosive growth in the years in question. * * * In December, 1955, there were only 9 million square feet of office space in downtown Houston. At the end of 1960, there were approximately 10 ½ million square feet. However, only two years later, as of December, 1962, 7.7 million more square feet had been added to the office space in downtown Houston.”
7
“Plaintiff’s Exhibit 13 shows the new office space built in downtown Houston from 1950 to 1959, from 1960 to 1962, and from 1963 to 1966. The bars on the chart show again that from 1960 to 1962, there were more than 7 million square feet of new office space constructed in downtown Houston, which was more office space than was constructed in downtown Houston from 1930 to 1959.”
8
“The fact that the new office space constructed in downtown Houston from 1960 through 1962 was greater than all of the office space constructed in downtown Houston during the previous thirty years is dramatic and convincing evidence of the *630explosive growth in downtown Houston immediately prior to the order of refusal issued by the Savings and Loan Commissioner in this case.”
9
“The dramatic surge in growth in the Houston economy is reflected in the growth of Harris County savings and loan associations.
“Plaintiff’s Exhibit 8 * * * shows the growth in total savings in Harris County savings and loan associations from 1935 through 1965. In 1952, there were $44 million in savings deposits in savings and loan associations in Harris County; in 1955, there were $97 million; in 1958, there were $170 million; in 1960, $263 million. As of December 31, 1962, there were $431 million. Although savings deposits in Harris County savings and loan associations increased spectacularly by $334 million from December, 1955, to December, 1962, there were still only seven savings and loan facilities in downtown Houston in December of 1962, just as there had been seven savings and loan facilities in downtown Houston as of December, 1955.”
10
“All of the foregoing evidence indicated to Dr. Yeager that the economy in Houston and Harris County had grown at a much faster rate than had downtown savings and loan facilities. In his opinion, the growth in savings and loan deposits, while spectacular, has in no wise satisfied the public need for additional savings and loan offices when one considers the total personal savings available in the expanding economy of Harris County and the dynamic growth in savings in commercial banks.”
11
“In Dr. Yeager’s view the principal tool that savings and loan companies have with which to achieve growth is the location of their offices in places that make them convenient to the people they are trying to serve. In view of economic conditions as they existed in Houston and Harris County in February, 1963, Dr. Yeager testified that the public convenience and advantage would have been promoted by allowing appellant’s proposed branch office to be placed at the corner of Rusk and Milam. There were no associations located on Milam Street at that time, and there was none at the time of the trial. There were no associations located on Louisiana Street at that time, and none at the time of the trial.”
12
“Based upon the foregoing economic data, it was Dr. Yeager’s opinion that the population in the neighborhood of the place where this office was to be located and in the surrounding country afforded a reasonable promise of adequate support for the proposed facility at the proposed location in February, 1963. He stated that the statutory phrase ‘the neighborhood and surrounding country’ includes all of appellant’s depositors who have business coming into town on the freeway system. The site was picked in relation to the parking lots and in relation to the feeder streets that feed into and out of the downtown area to make it convenient and easy for appellant’s present customers to do business at the downtown office. He stated that the phrase ‘neighborhood and surrounding country’ also included the thousands of downtown office workers who use the neighborhood during the day while there are no savings offices on Milam Street or Louisiana Street or Smith Street, and none on Rusk Street. The downtown population in 1962 was large and growing. It was large whether it was measured in terms' of area or whether it was measured vertically in terms of people in office buildings on Milam, Louisiana, and Travis Streets. *631Thus, the proposed savings office would be serving the convenience of the people ‘in the neighborhood and the surrounding country.’ ”
In February 1963, when the Commissioner’s order was entered denying appellant’s application, five savings and loan associations and two branch offices, a total of seven savings facilities, were operating in downtown Houston. The nearest office to appellant’s proposed site was Benjamin Franklin Savings, one of the intervenors, with an office on Travis Street, about one to one and a half blocks from the proposed location. The other intervenor, Houston First Savings, had its office on Fannin Street, about five blocks from appellant’s proposed site.
Through James Lammers, executive vice president of appellant association, appellant introduced evidence of growth and vigor of the savings and loan associations in downtown Houston. It was shown that figures were not available with regard to the two branch offices in downtown Houston, but testimony as to the five main savings and loan offices was adduced through exhibits and an officer of one association.
The Lammers’ testimony, shown by exhibits, may be summarized in part as follows :
“Association Savings Deposits Reserves
Dec. 1957 Dec. 1962 Dec. 1957 Dec. 1962
Benjamin Franklin $ 6,000,483 $26,641,277 $ 300,876 $ 957,672
Houston First (12-58) 41,244,000 80,829,727 2,821,056 5,018,563
San Jacinto 1,609,759 16,538,176 220,075 770,069
Home Savings 3,799,578 13,769,162 326,246 636,391
With respect to all the above listed associations, ‘reserves’ represent permanent reserve stock of the association, surplus, loss reserves, and undivided profits. The generic term ‘reserves’ is used to denote the capital structure of the association.”
The summary based on the Lammers’ testimony included four of the five principal savings offices in downtown Houston. The fifth association, Surety Savings Association, was the newest savings facility in downtown Houston in February, 1963, having commenced business March 28, 1962. J. Keith Lewis, president of Surety Savings, testified that by the end of February of the following year, the association had 1,509 savings accounts, representing total deposits of $4,222,410.14. By the end of 1963, Surety Savings had 2,855 accounts, aggregating $7,193,841.62 in savings deposits. At the close of 1965, savings deposits totaled $14,415,355.03. At the close of business for 1962, the capital, undivided profits, surplus and loss reserves, referred to in general as “reserves,” amounted to $449,527.15.
Appellant argues that the testimony of Lammers and Lewis demonstrates that all savings and loan associations having main offices in downtown Houston were in a strong financial condition in February .of 1963. Appellant avers that from this evidence the associations were shown to have had dramatic, even spectacular, growth in savings during the five-year period prior to appellant’s application and that all five associations had substantially added to their retained reserves.
The two intervenors, Benjamin Franklin Savings and Houston First showed substantial profits - for years immediately preceding appellant’s application. Benjamin Franklin showed a profit of $130,832.53 in 1961 and $65,189.27 in 1962. Houston First had a net profit of $470,606 in 1962. Richards, president of Benjamin Franklin, testified that in February, 1963, his associa*632tion had just gone through a period of strong and vigorous growth, with $26,000,-000 to $27,000,000 in deposits, a profitable operation, and adding, as always, to its reserves, and that as far as he knew the other savings associations operating in downtown Houston were in a strong financial condition.
Lammers, executive vice president of appellant Spring Branch Savings, testified that the association commenced business in June, 1957, with its home office about nine to ten miles west of downtown Houston. The proposed site for its branch office was chosen because of its convenient location in the downtown traffic pattern, with the major traffic arteries from west, southwest, and northwest leading into the downtown area near the proposed location. Lammers stated that much of the population in the area surrounding appellant’s home office is composed of junior executives employed in downtown Houston, and that many of the housewives living in the home office area shop in the downtown area. The proposed downtown location would serve the convenience of appellant’s present customers who work or shop downtown.
At the beginning of 1963 appellant had $10,300,000 in savings deposits, acquired in four and a half years of operation. Appellant during this period had established one branch office in Houston which had been a profitable operation. It was the opinion of Lammers that the proposed branch office in downtown Houston would offer services of the association to the public as a whole in the downtown area because its location was readily accessible to the principal business area downtown and because the location was easily reached from many parking areas in downtown Houston. Both Lammers and Richards testified that Benjamin Franklin Savings prior to 1963 acquired a site five blocks south of its location on Travis Street as a future new home office, at a cost, Richards stated, of about one million dollars.
It was shown at the trial that Benjamin Franklin Savings maintained office hours from 9 o’clock a. m. until 4 o’clock p. m., Monday through Friday. Appellant operates Monday through Friday from 8:30 o’clock a. m. to 5 o’clock p. m. and on Saturday is open from 8:30 a. m. to 3:30 p. m. Appellant proposes the same hours for its branch office. This difference in hours of operation, appellant contends, shows that public convenience and advantage would be greatly served by appellant’s proposed branch office, even if Benjamin Franklin Savings did not move to its new location five blocks south.
Although Benjamin Franklin Savings is the downtown association whose office is located nearest to the proposed location of appellant’s branch office, this intervenor declined to inject the issue of harm in this case. Richards testified that “ * * * very frankly I don’t think we would have lost any substantial amount of deposits because of the very fact that we are more convenient * * *.”
Appellant contends that the public convenience and advantage would be served by its branch office “ * * * for the further reason that Richards testified that in the last quarter of 1962, Benjamin Franklin reduced its dividend rate from four and a half percent to four percent because, at the time, the association was attracting savings at a faster rate than the association could loan money out in the type of loans they desired to make.”
“It was that lowering of dividend rates,” appellant asserts, “that caused Benjamin Franklin’s savings deposits to decrease by $3,000,000 in the last quarter of 1962.”
Lammers testified that in the last quarter of 1962 appellant was paying four and a half percent on savings deposits and continued the rate in the first quarter of 1963. “Clearly that segment of the public,” appellant argues, “which withdrew $3,000,-000 from Benjamin Franklin would have been well served by the existence of a nearby savings facility paying a rate of four *633and a half percent, or one half percent higher than * * * Benjamin Franklin desires to pay its savers.”
Testimony in rebuttal to the showing made by appellant was introduced through Richards of Benjamin Franklin Savings. It was his opinion that the most important source of savings in a downtown office was the people who work in the office buildings immediately adjacent to the savings and loan facility. Richards said that he had made no actual survey of the Benjamin Franklin accounts to determine whether this opinion with respect to source was accurate. It was his position that Benjamin Franklin Savings was readily accessible to people in buildings surrounding the savings office, and that this association was closer to some buildings than would be the proposed branch office for appellant. Richards recognized that appellant’s proposed branch office would not be inconvenient for persons working in the Tennessee Building, who could walk two blocks to transact business with Spring Branch Savings at the proposed location.
Richards testified that Benjamin Franklin was conveniently located for serving vehicular traffic, as well as pedestrian traffic, and in some instances he considered his association office more conveniently located to vehicular traffic than appellant’s proposed site. It was his testimony that the facilities of Benjamin Franklin Savings were adequate for receiving savings accounts and its quarters were ample and attractive. Richards said that his association offered every service and every facility that a savings and loan association could offer to the public and that Benjamin Franklin Savings was fully equipped to take care of the needs of its present customers and future customers as well. It was Richards’ view that the savings and loan offices serving downtown Houston in February, 1963, were sufficient to take care of all the business that might come to such institutions. Richards did believe that if shoppers were shopping in downtown Houston, and wanted to transact business with Spring Branch Savings at its proposed branch office, the site would be a convenient location for the shoppers.
Mere sufficiency of existing savings and loan facilities in the neighborhood to take care of the business that usually comes to such offices is not of itself adequate basis for upholding the Commissioner’s order denying appellant a branch office in downtown Houston. This Court followed this principle in reviewing an order with respect to chartering an additional bank in Chimney Rock National Bank of Houston v. State Banking Board, 376 S.W.2d 595, (Tex.Civ.App., Austin, no writ). The principle is applicable to the facts of this case with respect to the savings and loan facilities.
The general economy of the city of Houston, and of its downtown area, for the five-year period immediately preceding the Commissioner’s order, experienced phenomenal growth, with remarkable advances of population and economic resources. During this period there was no increase whatever in the number of savings and loan facilities in downtown Houston. The existing savings and loan associations in the downtown area, during this same period, prospered and grew as never before.
It was under this state of economy, growth, and potential in downtown Houston that the Commissioner found the public convenience and advantage would not be promoted by establishment of appellant’s branch “in the neighborhood proposed to be served and in the surrounding country,” and that “the volume of business there” was not such .as to “indicate that a profitable operation” was probable within a reasonable period of time.
We hold that these findings by the Commissioner in his order of February 25, 1963, are not reasonably supported by substantial evidence. We have decided that the trial court erred in sustaining the plea of stale demand and laches asserted by appellees and in finding that the Com*634missioner’s order was reasonably supported by substantial evidence. We, therefore, reverse and render the judgment of the district court.
Reversed and rendered. |
9,645,513 | 2023-08-22 21:27:32.584778+00 | Hughes | null | DISSENTING OPINION
HUGHES, Justice.
The Commissioner in his answer pleaded the long delay, March 1963 to January 1966, by Spring Branch in prosecuting its suit for a judicial review of his order denying the application of Spring Branch for a branch office in downtown Houston as being detrimental to the public interest and welfare and as constituting laches and a stale demand. In its primary ruling, the trial court sustained this pleading. The majority has overturned this ruling, and it is from this action of the court that I respectfully dissent.
The only excuse offered by Spring Branch for the long delay was, on advice of counsel, that it await the outcome of the Metropolitan 1 and Great American 2 cases in each of which cases establishment of a downtown Houston office for a savings and loan association was upheld. It is my opinion that this is an invalid excuse.
The rule to be applied in this case is stated in Vol. 30A C.J.S. Equity § 114 as follows:
“A party is required to exercise diligence and not inaction when seeking to challenge the legality of a proceeding involving a public interest, and failure to do so constitutes laches.”
Cited in support of this statement is Somers Constr. Co. v. Board of Education, 198 F.Supp. 732, D.C.N.J.
Savings and loan associations operate in the field of public interest and are considered as quasi-public institutions. Brazosport Savings and Loan Association v. American Savings and Loan Association, 161 Tex. 543, 342 S.W.2d 747.
The interest of the public here is obvious. Just how many savings and loan associations does the public interest require in downtown Houston? This is a matter primarily for the determination of the Commissioner. When the Commissioner entered his order in this case there were seven downtown Houston savings and loan offices. Now there are nine. The Commissioner should, in the first instance, be allowed to exercise his discretion in deciding whether there should be ten savings and loan offices in downtown Houston.
Presumably, under the majority opinion, if there were a dozen denied applications for savings and loan association offices in downtown Houston on appeal to this Court under the same conditions as exist in this case we would have to consider each case separately and without regard to each other and if one application was entitled to be granted then all would have to be granted. This would create an intolerable situation and one which I have no doubt the courts would resolve in a sane manner.
If appellant had prosecuted its appeal with dispatch it would have undoubtedly been successful since the later applications of Metropolitan and Great American were finally granted. Surely, since appellant was first in time and the facts identical it would not have been unjustly treated. Due to its inaction, however, the situation is changed. It is no longer first. It is third.
I believe Spring Branch should, if it desires, renew its application to the Commissioner and establish, if it can, its right to establish a savings and loan association office in downtown Houston under conditions as they exist at the time of such renewal.
I would affirm the judgment of the trial court.
. 388 S.W.2d 168 (Tex.S.Ct.1965).
. 384 S.W.2d 352, Tex.Civ.App. Austin, writ ref. n.r.e. |
1,516,440 | 2013-10-30 06:32:54.82383+00 | Gettleman | null | 916 F. Supp. 817 (1996)
UNITED STATES of America, Plaintiff,
v.
Rufus A. CUNNINGHAM, Defendant.
No. 95 CR 438.
United States District Court, N.D. Illinois, Eastern Division.
February 26, 1996.
*818 Lynn C. Hartfield, Federal Defender Program, Adam P. Merrill, Kirkland & Ellis, Chicago, IL, for defendant.
Patrick M. Collins, United States Attorney's Office, Chicago, IL, for U.S. Attys.
MEMORANDUM OPINION AND ORDER
GETTLEMAN, District Judge.
After deliberating all of ten minutes, the jury in this case returned a verdict finding defendant, a former U.S. Postal Service mail carrier, guilty of possessing stolen mail in violation of 18 U.S.C. § 1708. Defendant has renewed his motion for judgment of acquittal under Fed.R.Crim.P. 29, which was originally filed at the close of the government's case, and has also moved for a new trial pursuant to Fed.R.Crim.P. 33. The issue presented is whether the government proved beyond a reasonable doubt that defendant had constructive possession of the mail within the five year statute of limitations period preceding the indictment. For the reasons set forth below, the court grants defendant's motion for acquittal.
FACTS
Defendant was a mail carrier from May 1986 until September 1991. From 1986 until June 1988, defendant and his wife resided at a two-unit home located at 1834 South Troy, Chicago, Illinois (the "House"). The House was sold by defendant and his wife in 1993. While defendant resided at the House, his family occupied the first floor unit and rented the second floor. When defendant moved from the House in 1988, the second floor tenant moved to the first floor, and the second floor was rented to a new tenant. Thereafter, until he sold the house in 1993, defendant continued to store personal property in locked rooms in the basement and in the first floor back porch, which was also locked. Defendant had the only key to these locks. He would visit the house monthly to collect rent and mail that had been delivered to him,[1] and at other times to retrieve some of the personal property that was kept in the locked areas.
On April 13, 1994, a quantity of mail was discovered beneath the back porch of the House. The mail bore postmarks from October 17, 1987, and March 23, 1988, and was from routes for which defendant was to have delivered on those dates. The evidence establishes that defendant was responsible for *819 failing to deliver this mail, and that instead he put it under his back porch. According to photographs introduced by the government at trial, the porch is approximately three to four feet off the ground, and the opening had a light chicken wire fence tacked around it during the time defendant lived at the House.[2] The photograph reveals that the area under the porch is exposed to the elements, that anyone could easily obtain access to it, and that items of personal property have been discarded under the porch.
On March 23, 1995, the Grand Jury indicted defendant for unlawfully secreting, detaining and delaying the United States mail, in violation of 18 U.S.C. § 1703(a). This court dismissed that indictment, holding that the conduct proscribed by § 1703(a) is not a "continuing offense," and that the five year statute of limitations contained in 18 U.S.C. § 3282 expired in 1993. United States v. Cunningham, 891 F. Supp. 460 (N.D.Ill.1995) ("Cunningham I").
On July 26, 1995, the Grand Jury returned a second indictment against defendant, this time charging him with possession of stolen mail in violation of 18 U.S.C. § 1708. This court denied defendant's motion to dismiss the second indictment, holding that possession of stolen mail is a continuing offense. The court further held that the government would be required at trial to prove beyond a reasonable doubt that defendant "knowingly possessed stolen mail ... later than July 26, 1990," and that this burden would require proof that defendant "knew he had the power, and intended to exercise dominion and control over, the mail that allegedly lay under the porch of the [H]ouse." United States v. Cunningham, 902 F. Supp. 166, 169 (N.D.Ill.1995) ("Cunningham II"). The final instructions to the jury conformed to this ruling.
At the close of the government's case, defendant moved for acquittal pursuant to Fed. R.Crim.P. 29(a). The court reserved ruling until after the verdict, pursuant to Rule 29(b). Defendant did not testify at the trial. Ten minutes after retiring for deliberation, the jury announced that it had reached a verdict of guilty. Thereafter, defendant timely moved for acquittal notwithstanding the verdict, pursuant to Rule 29(c).
DISCUSSION
To set aside a verdict of guilty pursuant to Rule 29, the defendant must demonstrate that no rational juror, viewing the evidence in the light most favorable to the government, could have found defendant guilty beyond a reasonable doubt. United States v. Klein, 910 F.2d 1533, 1538 (7th Cir.1990). In determining whether defendant has met this heavy burden, the court must bear in mind that "it is the exclusive function of the jury to determine the credibility of the witnesses, resolve evidentiary conflicts and draw reasonable inferences." Id.
In the instant case, the facts are not seriously in dispute. There is no question in the court's mind that defendant stole the mail, threw it under his porch, continued to reside in the House until 1988, had the power to control the House, the porch and the stolen mail until 1993, and in fact exercised control over certain areas and aspects of the House until that year. The government has never contended that defendant exercised actual possession of the stolen mail, arguing instead that the evidence demonstrates beyond a reasonable doubt that he had constructive possession within the five years preceding the date of the indictment, July 26, 1995. At this stage in the proceedings, with the Rule 29 standards firmly in mind, the court accepts as fact that, at and after that date, defendant had the power to exercise control over the mail lying beneath the porch. The issue, therefore, is whether there was sufficient evidence, if any, that defendant intended to exercise that power. United States v. Taylor, 728 F.2d 864, 868 (7th Cir.1984); Cunningham II.
As defendant points out in its motion for acquittal, intent "may not ordinarily be proved directly because there is no way of *820 directly scrutinizing the workings of the human mind. In determining ... what a person intended at a particular time, [it is appropriate] to consider any statements made or acts by that person and all other facts and circumstances received in evidence...." Edward J. Devitt, et al., Federal Jury Practice and Instructions § 17.07 (1992). The court has searched the record in vain for any evidence to support a reasonable inference that defendant intended to exercise control over the stolen mail within the five years preceding the indictment. Indeed, the record indicates the contrary.
There is certainly no direct evidence that defendant intended to exercise control. No witness testified that defendant ever did or said anything to indicate that he was mindful of where the mail had been discarded or intended to return to it after he disposed of it in 1987 and 1988. More important, defendant did keep property at the House over which he intended to exercise control, but that property was kept under lock and key. The only inference that can be drawn from this undisputed evidence is that when plaintiff recognized that he had property worth preserving that he kept at the House, he secured that property.
The stolen mail, which was discovered in a deteriorated condition, obviously did not fit into the category of property defendant wished to secure. It was abandoned under an open porch which, taking the government's evidence at its best, was secured by a flimsy chicken wire fence that the photograph indicates was easily removed by natural or human forces. Although the government is correct in pointing out that anyone wishing to access the area beneath the porch would have had to trespass on defendant's property, that would appear to have been an easy matter. Certainly, no one wishing to secure property or exercise control over it would throw it under an open porch as defendant did with the stolen mail. Defendant no more wished to control this mail than if he had dumped it in a river or buried it in the woods out of sight, out of mind, abandoned to the elements.
It should also be noted that defendant never used any of this mail. Although there were checks, train tickets and, perhaps, other valuables contained within the mail, none of the mail was opened, and there is absolutely no evidence that defendant converted any of it to his personal use. Nor is there any evidence that defendant ever revisited the area where he dumped the mail, as he did with the secured portions of the House that he visited to retrieve and peruse personal property he intended to control.
The court does not lightly disturb the verdict of a jury that heard the evidence and the witnesses. In the instant case, unlike most, there are several factors which impugn the verdict in addition to the lack of evidence noted above. First, the witnesses' credibility was never a serious issue in this case. The facts are basically uncontested, and the defendant the only person who knows the truth exercised his Fifth Amendment right not to take the stand.
In addition, the court is disturbed by the extraordinarily short time taken by the jury to reach its decision. In the ten minutes or so between the time the jury left the courtroom and the time the court security officer informed the court that a verdict had been reached, the jury would hardly have had enough time to choose a foreperson and review the instructions. It was not possible especially in light of the relatively complicated nature of the evidence relating to constructive possession that the jurors actually "deliberated" the evidence, as they were instructed to do.[3] It appears to the court that the jury convicted defendant of stealing the mail in 1987 and 1988 of which there was little doubt rather than of possessing the *821 mail after July 26, 1990. Although brief jury deliberation is not, in itself, sufficient basis to disturb a verdict, "[w]hen brief jury deliberation is coupled with a verdict that is contrary to the great weight of the evidence ... it creates a situation where the district court has an affirmative duty to set aside the verdict." Kearns v. Keystone Shipping Company, 863 F.2d 177, 182 (1st Cir.1988). Such is the case here.
In reluctantly reaching its decision, the court does not wish to minimize in any way the maliciousness of defendant's conduct. It is hard to imagine a more personal crime than stealing someone's mail. In the instant case, the stolen mail included welfare and Medicare checks, bills and overdue notices, wedding responses, personal correspondence, tax documents, and a scholarship nomination letter, among other items. The intended recipients have never received this important mail, no doubt causing great inconvenience and embarrassment, and most likely actual damage, to these innocent postal patrons. Defendant should be condemned for his dereliction of the sacred duty assumed by all postal carriers.
This condemnation, however, cannot overcome the fact that we are bound by the law, including the statute of limitations, that governs all criminal proceedings. That defendant has escaped the punishment he so richly deserves is not as important as the observance of the law. While it is disturbing that anyone can beat the rap by the passage of enough time to invoke the statute of limitations, the principles underlying limitations of criminal and civil actions have been deemed for generations to supersede the possibility that the guilty may indeed go free. The law "protect[s] individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of the acts in the far-distant past." Toussie v. United States, 397 U.S. 112, 114-115, 90 S. Ct. 858, 860, 25 L. Ed. 2d 156 (1970). Thus, statutes of limitation applying to criminal prosecutions should be "liberally construed in favor of repose." United States v. Scharton, 285 U.S. 518, 522, 52 S. Ct. 416, 417, 76 L. Ed. 917 (1932).
By enacting 18 U.S.C. § 3282, Congress has determined that a person cannot be prosecuted if the crime for which he or she is charged took place more than five years before the indictment was returned. The jury in the instant case was presented with no evidence from which it could have determined that defendant had constructive possession of the stolen mail after July 26, 1990. Its verdict of guilty, therefore, cannot stand.
CONCLUSION
For the foregoing reasons, the court grants defendant's motion for acquittal, and denies defendant's motion for a new trial as moot.
NOTES
[1] Defendant did not change his address with the Post Office after moving from the house.
[2] The first floor tenant testified that the fence was up during the period she lived there (from sometime before June 1988 until 1993), although the fence had been torn down by the time the government photographed it in 1994. It is unclear whether the fence was intact during the entire period the tenant lived at the house.
[3] The court gave Seventh Circuit Instruction 7.06, which required the jury to "give fair and equal consideration to all the evidence and deliberate with the goal of reaching an agreement which is consistent with the individual judgment of each juror." (Emphasis added.) Webster's Third New International Dictionary (1993) defines "deliberate" as "[c]haracterized by or resulting from slow, careful, thorough calculation and consideration of effects and consequences; not hasty, rash or thoughtless." Based on the court's observation of the witnesses, testimony, and other evidence presented at the trial, the court concludes that the jury failed to follow the instruction to deliberate and consider all the evidence. |
1,516,441 | 2013-10-30 06:32:54.829383+00 | Per Curiam | null | 420 S.W.2d 137 (1967)
Ex parte Wesley HOFMAYER, Relator.
No. B-530.
Supreme Court of Texas.
November 1, 1967.
*138 Sam Houston Clinton, Jr., Austin, for relator.
PER CURIAM.
This is a petition for writ of habeas corpus filed on behalf of Wesley Hofmayer, a minor, who is allegedly restrained of his liberty by being confined at the Mountain View School for Boys in Coryell County, Texas, by George B. Adams, Superintendent thereof, by virtue of a void order entered by the judge of the 98th District Court of Travis County, Texas, sitting as a Juvenile Court in cause No. J-3568. It is asserted that in the proceedings which resulted in the rendition of the allegedly invalid order, the relator was not afforded due process as required by the Fourteenth Amendment to the Constitution of the United States. See, In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527; Hegwood v. Kindrick, 264 F. Supp. 720 (U.S.D.C., S.D. Tex.1967).
Under the provisions of the Texas Constitution and the pertinent Texas statutes relating to the original jurisdiction of this Court and the Court of Criminal Appeals, the circumstance that the cause out of which a restraint of a person's liberty arises may be classified as a civil case, is not sufficient to vest this Court with habeas corpus jurisdiction. Under Article 1737, Vernon's Ann.Tex.Stats., our jurisdiction to issue an original writ of habeas corpus extends only to those causes in which "a person has been confined for violating an order, judgment or decree in a civil cause, and we are without power to inquire into the legality of restraint imposed for some other reason." Ex parte Morris, 162 Tex. 530, 349 S.W.2d 99 (1961).
Under our Constitution, we do not have general original jurisdiction to grant the writ of habeas corpus as does the Court of Criminal Appeals. Article 5, §§ 3 and 5, Constitution of Texas, Vernon's Ann.St.
The petition is dismissed for want of jurisdiction. |
9,645,514 | 2023-08-22 21:27:33.473728+00 | Stein | null | The opinion of the Court was delivered by
STEIN, J.
This case and Ruff v. Weintraub, 105 N.J. 233 (1986), which we also decide today, require the Court to determine whether the effect of federal and state income taxes on personal-injury damage awards may be addressed by expert witnesses or *225included in the jury charge. The specific issue in this case is whether the trial court must instruct the jury, upon request, that personal-injury damage awards are not subject to federal or state income tax. We agree with the Appellate Division that such an instruction is proper and should be given when requested. 204 N.J.Super. 288 (1985). However, we conclude that the failure to give an instruction on the taxability of the award in this case was not reversible error. Accordingly, we reverse the judgment of the Appellate Division and reinstate the judgment in favor of plaintiff.
I
On June 27, 1980, plaintiff, Guy Bussell, an employee of the Suburban Fence Company, was operating a radial saw made by defendant, DeWalt Products Corporation. Plaintiff held the wood he was cutting with his left hand. As he drew the saw inward with his right hand, a co-worker bumped his left elbow, pushing his left hand into the saw and severing his thumb and first three fingers.
Bussell filed suit alleging that DeWalt was strictly liable for his injuries. At trial, plaintiff called a number of experts to testify as to damages. An employability expert testified that due to his disability, limited education, and work experience, Bussell was not likely to find employment. He also projected what plaintiffs probable work-life would have been had he not been disabled. Based on this testimony, an economics expert testified about calculations that could be made to determine the lifetime earnings lost to plaintiff as a result of his injuries.
On direct examination, plaintiffs attorney asked the economist if he had adjusted his calculations to take into account the effect of income taxes. The expert testified that he had not, explaining that the computation of future income tax liability would be extremely difficult. He conceded, however, that the gross-wage calculation should be reduced to reflect the likely *226impact of income taxes, and estimated that a 15 to 20 percent reduction would be appropriate.
Defendant’s attorney did not specifically object to the testimony regarding gross wages and did not explore this point further on cross-examination. He did, however, move to have the entire testimony of the economist stricken as speculative. That motion was denied.
Before the trial court instructed the jury, defense counsel requested that the following charge be given:
If you arrive at a verdict under the court’s charge in favor of plaintiffs, you will not add any sum of money to the amount of the verdict on account of federal or state income taxes, since the amount awarded to a plaintiff by your verdict is not taxable income to the plaintiff within the meaning of these tax laws.
In response to the concern of plaintiff’s attorney that the requested charge could prompt the jury to reduce its verdict, the trial court agreed to give a general charge on the nontaxability of personal-injury awards but not the specific charge requested by the defendant.
However, when the jury was charged, no instruction was given as to the taxability of the verdict. Defense counsel brought this omission to the court’s attention. The trial court then gave a supplemental charge to the jury but again omitted the instruction that personal-injury damage awards are not taxable. Defense counsel did not raise the issue again.
The jury returned a verdict for plaintiff of $600,000. On appeal, the Appellate Division held that a jury must be instructed upon request that personal-injury damage awards are not subject to federal and state income tax. 204 N.J.Super. at 293. The court found that the failure to give the instruction in this case was “clearly capable of producing an unjust result,” and remanded the case for a new trial on damages. Id. at 294.
II
The Internal Revenue Code, 26 U.S.C. § 104(a)(2), excludes from gross income “the amount of any damages received * * * on account of personal injuries or sickness.” The New Jersey *227Gross Income Tax Act, N.J.S.A. 54A:6-6, also excludes from gross income damages for personal injury or sickness. The reason advanced for instructing juries regarding these provisions is that while juries are conscious of taxes, they are generally not aware that damage awards are exempt from taxation. Thus, they may be inclined to increase their verdicts on the mistaken assumption that the award will be subject to taxes. See Domeracki v. Humble Oil, 443 F.2d 1245 (3d Cir.), cert, denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971). It is therefore urged that an instruction be given to avoid improperly inflated damage awards.
In determining that such an instruction is proper, our analysis is guided by the basic principle that the goal in setting damages is to compensate the plaintiff fairly and accurately for his losses. See Tenore v. Nu Car Carriers, 67 N.J. 466, 477 (1975); New Jersey Power & Light Co. v. Mabee, 41 N.J. 439, 441 (1964); Deemer v. Silk City Textile Mach. Co., 193 N.J.Super. 643, 651 (App.Div.1984). We recognize that precision is unattainable, but we are convinced that fair and accurate verdicts are more likely to result when the instructions to the jury are clear and complete.
The plaintiff argues that an instruction on taxability, rather than clarifying the factors to consider in computing damages, will only confuse the jury and lead to unwarranted speculation. This position is not without support. See, e.g., Gorham v. Farmington Motor Inn, 159 Conn. 576, 271 A.2d 94 (1970); Henninger v. Southern Pac. Co., 250 Cal.App. 2d 872, 59 Cal.Rptr. 76 (1st Dist.1967); Hall v. Chicago & Northwestern R.R. Co., 5 Ill.2d 135, 125 N.E.2d 77 (1955); Annotation, “Propriety of taking income tax into consideration in fixing damages in personal injury or death action,” 16 A.L.R. 4th 589 (1982).
We find this argument unpersuasive. As the Third Circuit explained in Domeracki v. Humble Oil, supra, 443 F.2d at 1251:
*228The instruction requested * * * would not require the introduction of any additional evidence. No reference to any IRS regulation or to any specific statute would be necessary. No tax expert would need be summoned as a witness. No tax tables would be hauled into the courtroom. No additional computation would be required. In brief, such an instruction would not open the trial to matters irrelevant to traditional issues in personal injury litigation, and thus would in no way complicate the case or confuse the jury.
This view is consistent with our previous decision in Tenore v. Nu Car Carriers, supra, 67 N.J. at 493. In Tenore, we examined the propriety of an instruction on the nontaxability of a damage award in a wrongful-death action. We found that a general instruction on the tax exemption for damage awards is proper because it “imposes no new burden on the jury and there is nothing speculative about it.” Id. at 489 (quoting McWeeney v. New York, N.H. & H.R.R., 282 F.2d 34, 39 (2d Cir.), cert, denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93 (1960)). Our holding in Tenore is also consistent with the recent trend in federal law. See Norfolk & Western Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980); Fanetti v. Hellenic Lines Ltd., 678 F.2d 424 (2d Cir.1982), cert. denied, 463 U.S. 1206, 103 S.Ct. 3535, 77 L.Ed.2d 1387 (1983). Several other states have also adopted this rule. See, e.g., Looft v. Missouri P.R. Co., 104 Ill.App.3d 152, 60 Ill.Dec. 253, 432 N.E.2d 1152 (Ill.App.Ct.1982); Blanchfield v. Dennis, 292 Md. 319, 438 A.2d 1330 (1982); Abele v. Massi, 273 A.2d 260 (Del. Super.Ct.1970).
Although we specifically limited our holding in Tenore to wrongful-death cases, 67 N.J. 466, 494 n.27, we agree with the Appellate Division that there is “no reason why the Tenore rule in wrongful-death actions in New Jersey should not also apply in personal injury actions.” 204 N.J.Super. at 293.1 We there*229fore apply our reasoning in Tenore and hold that, when properly requested, the trial court should instruct the jury that damage awards in personal-injury cases are not subject to federal or state income taxes.
Although the precise wording of the instruction will vary, depending on the evidence presented and the circumstances of the case, we concur with the Appellate Division’s observation that instructions on taxability should be “brief and easily understood.” 204 N.J.Super. at 293. For example, we note the charge that was approved by the United States Supreme Court in Norfolk & Western Ry. Co. v. Liepelt, supra, 444 U.S. at 492, 498, 100 S.Ct. at 759, 62 L.Ed.2d at 693, 696:
Your award will not be subject to any income taxes, and you should not consider such taxes in fixing the amount of your award.
Because of its clarity and simplicity, the charge upheld in Liepelt is unlikely to confuse a jury, and is therefore preferable to the charge requested in this case.
In sum, we hold that, upon request, the trial court in a personal-injury case should instruct the jury that personal-injury damage awards are not subject to federal or state income taxes. We are confident that such a charge can be given without creating unnecessary confusion. We are also convinced that it will contribute to the accuracy of jury verdicts by preventing the inflation of damage awards on the mistaken assumption that the judgment will be taxable.2
*230III
The Appellate Division found that the failure of the trial court in this case to instruct the jury that the damage award is not taxable was “clearly capable of producing an unjust result.” 204 N.J.Super. at 294; see R. 2:10-2. The court based this determination on the effect of the testimony given by plaintiffs economics expert, finding that the jury may have increased the verdict in the mistaken belief that the award would be taxable.
However, we find no evidence that the jury inflated the damage award to account for taxes. The only reference to taxes that occurred during the trial was in the testimony of plaintiffs economics expert regarding formulas to use in calculating the plaintiffs future lost wages. On direct examination, the expert testified that his calculations were based on gross-wage figures, but conceded that net wages were the proper measure of damages. The expert then estimated that a fifteen to twenty percent deduction in the gross-wage figure would be appropriate.
It is not likely that this limited reference to taxes would lead the jury to inflate its damage award. If this testimony did *231alert the jurors to the issue of taxes, the thrust of the testimony was to suggest that the jury should decrease rather than increase the award.
Moreover, the trial court carefully charged the jury on the proper measure of damages. Two methods for computing future lost wages were given. We are convinced that either of these methods, combined with plaintiffs proofs regarding the other elements of damages, could reasonably have supported a verdict of $600,000.
We therefore find no indication that the jury inflated the damage award because of the economist’s testimony or a mistaken belief that the award was taxable. The trial court’s failure to include the instruction on nontaxability, in the context of its otherwise careful instructions on the proper measure of damages, did not have the clear capacity to lead to an unjust result. See State v. Macon, 57 N.J. 325, 337-38 (1971); Dorn v. Transport of N.J., 200 N.J.Super. 159, 166 (App.Div.1984). Accordingly, we reverse the judgment of the Appellate Division and reinstate the judgment in favor of plaintiff.
In limiting our holding in Tenore to wrongful-death cases, we expressly declined to reexamine the decision in Scalise v. Central R.R., 129 N.J.Super. 303 (App.Div.1974). Scalise was a personal-injury action brought under the Federal Employer's Liability Act (FELA), 45 U.S.C. §§ 51-60. The Appellate Division in that case declined to follow the Third Circuit’s opinion in Domeracki v. Humble Oil, supra, 443 F.2d 1245, and upheld the trial court’s refusal to charge *229the jury on the tax exemption for damage awards. Since that time, the United States Supreme Court has held, in Norfolk v. Western Ry. Co. v. Liepelt, supra, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689, that a jury charge on taxability should be given when requested in wrongful-death actions brought pursuant to the FELA. In Fanetti v. Hellenic Lines Ltd., supra, 678 F.2d at 431, the Second Circuit extended the holding in Liepelt to all claims for future wages based on federal law, effectively overruling Scalise. We now take this opportunity to overrule Scalise to the extent that it has been applied to claims based on state law.
Our decisions in this case and in Ruff v. Weintraub, supra, 105 N.J. 233, where we hold that damages for lost future wages should be based on net *230income, are aimed at ensuring that jury verdicts in personal injury cases are as accurate as possible. We believe this goal is furthered when a jury is generally aware of the tax implications of its award.
We note that although damage awards are not subject to income tax, the interest earned on an award after it is invested is presently taxable. In wrongful-death cases, this factor is taken into account in the context of an instruction on the method of discounting the award to present value. See Model Jury Charges, Civil § 6.15; Feldman v. Allegheny Airlines, 524 F.2d 384 (2d Cir.1975). The jury is told that an after-tax interest rate should be used to calculate the appropriate discount rate. Id. We are of the view that this instruction is also appropriate in personal-injury cases. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 537, 103 S.Ct. 2541, 2550, 76 L.Ed.2d 768, 783 (1983). In the event other significant tax issues are raised in particular cases requiring further instructions to the jury, we entrust to the trial courts the task of fashioning the appropriate charge. |
9,645,527 | 2023-08-22 21:27:51.465644+00 | Hill | null | OPINION
HILL, Chief Justice.
This case arose out of a divorce action. In 1984, Robert Stafford sued Margarita Stafford for divorce. Margarita filed a counterclaim to recover personal injury damages alleging that Robert transmitted a venereal disease to her. Although the case was not severed, the divorce proceeding was tried by the district court, while the personal injury case was tried before a jury. The jury found issues supporting Margarita’s personal injury claim and found that she should recover compensatory and exemplary damages. In the divorce action, the trial court determined that Robert and Margarita’s marriage had become insupportable and rendered a judgment that (1) awarded Margarita in damages for personal injuries and (2) granted the divorce and (3) divided the marital estate equally between Margarita and Robert.
Both parties appealed from the trial court’s judgment. Margarita contended that the trial court abused its discretion when it divided the marital estate equally, while Robert argued that Margarita should receive nothing on her personal injury claim. In an unpublished opinion, the court of appeals affirmed the trial court’s division of the marital estate and rendered judgment that Margarita take nothing from her personal injury suit because there was no evidence to support such judgment. We affirm the division of the marital estate and we reverse and remand Margarita’s personal injury action to the court of appeals for further proceedings.
JURISDICTION
Robert argues that this is a “case of divorce” over which this Court lacks jurisdiction absent a dissent or conflict. See TEX.GOV’T.CODE ANN. § 22.225(b)(3) & (c) (Vernon 1987). This, however, is not solely “a case of divorce” because Margarita has joined and carried forward on appeal an additional claim against Robert for personal injury upon which she prevailed before the jury and upon which verdict a judgment was rendered in the trial court thereby permitting assumption of jurisdiction by this Court. TEX.GOV’T.CODE ANN. § 22.001(a)(6) (Vernon 1987). We granted writ to review the court of appeals holding that there is no evidence to support judgment for Margarita on her personal injury claim, and “under the writ of error practice, it is generally held that when our jurisdiction is properly invoked as to one point set forth in the application for writ of error, we acquire jurisdiction of the entire case.” Harry Eldridge Co., Inc. v. T.S. Lankford & Sons, Inc., 371 S.W.2d 878, 879 (Tex.1963).
INTERSPOUSAL IMMUNITY
The jury found that Robert transmitted a venereal disease to Margarita, that he was negligent and grossly negligent, and that she was injured by the disease. Based on these findings, the trial court awarded Margarita compensatory and exemplary damages. While Robert argues that this part of the trial court’s judgment must be reversed because the doctrine of interspousal immunity bars, as a matter of law, a negligence action between spouses, he did not plead or raise inter-spousal immunity as a defense in the trial court.
Unless fundamental error is involved, a party cannot raise an issue on appeal if the issue was not raised in the party’s pleadings or during trial. E.g., Gray-Taylor, Inc. v. Tennessee, 587 S.W.2d 668 (Tex. 1979); State of California Department of Mental Hygiene v. Bank of the Southwest National Association, 163 Tex. 314, 354 S.W.2d 576 (1961); Willis v. Titan Contractors Corp., 625 S.W.2d 69 (Tex.Civ.App. — Houston [14th Dist.] 1981, writ ref'd n.r.e.); Smith v. Davis, 453 S.W.2d 340 (Tex.Civ.App. — Fort Worth 1970, writ ref’d *16n.r.e.). Robert therefore waived that defense and we need not reach the issue of whether the doctrine of interspousal immunity continues to bar negligence actions between spouses.
EVIDENTIARY ISSUES
Robert further argues that there is no evidence to support the jury’s findings that (1) he transmitted a venereal disease to Margarita, (2) he was negligent, (3) he was grossly negligent and (4) Margarita sustained actual damages of $254,320. In the alternative, Robert contends that there was factually insufficient evidence to support the jury’s findings. Robert also maintains that the damages assessed against him should be remitted. The court of appeals agreed that there was no evidence to support the jury’s finding that Robert transmitted a venereal disease to her and reversed the judgment of the trial court. The court of appeals did not address Robert’s other points of error.
In determining whether there is any evidence to support a jury’s findings, “an appellate court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary.” Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We have carefully reviewed the record in this case and find that it contains more than a scintilla of evidence that during this marriage Robert had adulterous relationships; that he contracted a venereal disease; that he transmitted to Margarita such venereal disease; that the venereal disease was a proximate cause of injury to Margarita; that such injury caused her to suffer mental anguish; and, that such injury caused her to lose several thousand dollars in lost wages. Thus, there is some evidence to support the jury’s findings, and the court of appeals erred in its holding of no evidence.
Robert also argues that the jury’s findings were not supported by factually sufficient evidence or, in the alternative, that the damages awarded by the jury should be remitted. The court of appeals found it unnecessary' to address these points because the court decided that there was no evidence to support the jury’s finding that Robert transmitted a venereal disease to Margarita. Because we have concluded that there is some evidence to support all of the jury’s findings, we remand Margarita’s personal injury action to the court of appeals to consider Robert’s factual sufficiency and remittur points of error. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986).
DIVISION OF THE MARITAL ESTATE
In essence, Margarita argues that the trial court abused its discretion by dividing the marital estate equally between her and Robert. She contends that the court must give her a greater share of the marital estate, and award her attorney’s fees, because Robert committed adultery and because he earned a substantially higher income than her. We disagree. Fault and disparity in the parties’ incomes are only two of the many factors the trial court should consider when dividing a marital estate. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). An appellate court will not reverse and remand a trial court’s property division unless the trial court clearly abused its discretion. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974). Considering all the facts of this case, we cannot say that the trial court abused its discretion. Accordingly, we affirm the trial court’s division of the marital estate and reverse and remand Margarita’s personal injury action to the court of appeals for proceedings consistent with this opinion.
MAUZY, J., files a concurring opinion in which GONZALEZ, J., joins. WALLACE, J., notes his dissent. |
9,645,515 | 2023-08-22 21:27:33.478734+00 | Pollock | null | POLLOCK, J.,
concurring in part and dissenting in part.
I agree substantially with the majority opinion, except for the result. Like the majority, ante at 223, and the Appellate Division, 204 N.J.Super. 288, 292-94 (1985), I believe that the trial court committed reversible error in failing to charge the jury that personal injury awards are not subject to federal or state income tax. Unlike the majority, ante at 229, but still like the Appellate Division, I conclude that the failure to so instruct the jury was “clearly capable of producing an unjust result.” Id. at 294; see R. 2:10-2.
My difference with the majority arises from our varying perceptions of the importance of jury instructions, a difference that has significant practical implications in this case. The *232verdict was $600,000, which together with prejudgment interest of $192,000 led to the entry on March 21, 1984, of a $792,000 judgment. Interest continues to accrue at 1%, or $6,000 per month, a total of $198,000 to date, which when added to the judgment produces a grand total to date of $998,000, nearly $1,000,000. While remaining sensitive to the value to the plaintiff of preserving the award, I cannot ignore the impact on the defendant of so substantial a judgment. The erroneous charge bears a direct relationship to the size of the verdict and is too important to disregard.
Because it was not instructed that the award was tax free, “[t]he jury may, for example, have increased a planned $480,000 verdict by $120,000 in the mistaken belief that 20% of the total of $600,000 would be withheld for federal income taxes.” Id. at 294; see also Tenore v. NuCar Carriers, 67 N.J. 466, 495 (1975) (instruction on taxation should have been given “to prevent a jury which might think otherwise from improperly increasing the verdict to protect plaintiff from the impact of such taxes”). Although the correct charge was twice requested by defense counsel and agreed to by plaintiffs counsel, it was not given to the jury. Insofar as plaintiffs damages are concerned, the failure to give that charge cannot, in my opinion, be considered harmless error. The error, however, should not affect the determination of liability in plaintiffs favor. Like the Appellate Division, I would remand for a new trial on damages only.
For reversal — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, O’HERN, GARIBALDI and STEIN— 6.
POLLOCK, J., concurring in part and dissenting in part. |
1,516,449 | 2013-10-30 06:32:54.927892+00 | Williams | null | 916 F. Supp. 735 (1995)
C & F PACKING CO., INC., Plaintiff,
v.
IBP, INC. and Pizza Hut, Inc., Defendants.
No. 93 C 1601.
United States District Court, N.D. Illinois, Eastern Division.
September 26, 1995.
*736 *737 *738 Raymond P. Niro, William L. Nero, Samuel L. Alberstadt, John C. Janka, Niro, Scavone, Haller & Niro, Chicago, IL, for Plaintiff.
Alan L. Unikel, Denise M. Serewicz, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Roger Pascal, Patricia J. Thompson, Chicago, IL, for Defendants.
ANN CLAIRE WILLIAMS, District Judge.
The court adopts Magistrate Ashman's Report and Recommendation in full. The court has carefully considered defendant's objections and finds no reason to disturb Judge Ashman's Report and Recommendation. Therefore, plaintiff's motion to strike defendants' reply and defendants' response to C & F's 12N Statement is denied, defendants' motion for summary judgment on infringement is denied, and defendants' motion for summary judgment as to inequitable conduct is denied.
REPORT AND RECOMMENDATION
ASHMAN, United States Magistrate Judge.
This case is presently before the Court on Defendants', IBP, Inc. ("IBP") and Pizza Hut, Inc. ("Pizza Hut"), motion for summary judgment and Plaintiff's, C & F Packing Co., Inc. ("C & F"), motion to strike Defendants' reply briefs and response to C & F's 12(N) Statement. C & F filed its original complaint on March 17, 1993 against IBP, and subsequently filed a nine-count second amended complaint on May 14, 1993 against IBP and Pizza Hut seeking injunctive relief in addition to compensatory and punitive damages. At issue in this motion is Count V wherein C & F alleges that IBP infringed on C & F's Patent No. 4,800,094 entitled, "METHOD FOR PROCESSING A COOKED FOOD PRODUCT" ("'094 patent"). Specifically, C & F alleges that IBP made and sold meat products in the United States using a process that practices the inventions claimed in the '094 patent. Additionally, in Count V, C & F alleges that Pizza Hut induced and aided this infringement.[1] The pending motions were fully briefed on November 30, 1994 and December 8, 1994, respectively; this case was reassigned to this Court on February 17, 1995 and oral argument took place on May 12, 1995.
I. FACTS
The relevant and undisputed facts follow:[2]
C & F is an Illinois corporation with principal place of business in Elk Grove Village, *739 Illinois which makes and sells a variety of meat products, including Italian sausage. In the early 1970's, C & F began to supply Pizza Hut with uncooked Italian sausage for Pizza Hut restaurants in the Chicago area. Pizza Hut is a Delaware corporation with corporate headquarters in Wichita, Kansas which operates fast food franchises throughout the United States. C & F eventually became an officially-approved national supplier for Pizza Hut.
C & F is assignee of the '094 patent, which was issued on January 24, 1989.[3] The '094 patent is directed to an "apparatus and method for processing a cooked food product and producing a plurality of cooked food product portions." As the '094 patent specification discusses, there are several patented devices relating to the extrusion and formation of food product portions from raw or frozen food mixtures. These processes and devices have been found to be slow and expensive. Further, the '094 patent specification identifies a recognized market for precooked food products of predetermined size which are readily usable in preparing specific food products (i.e., serving portions of meat or cheese for pizza toppings).
The '094 patent states that the "present invention has reduced or eliminated the problems associated with devices and processes heretofore known." ('094 patent, Col. 1, Ins. 67-68). This invention, as described in the specification, details a step by step method for producing a cooked food product which, when processed through an extrusion apparatus, can be divided into a plurality of cooked food portions having a predetermined weight.
According to the specification's description of the invention, an emulsion is first formed from a combination of ingredients (i.e., food product, seasonings and liquid). This emulsion is then put into a mold and subsequently heated for the specific time at the specific temperature required to cook the food product. When cooked, the food product is cooled to a temperature between 35°-40° F. to form a cooked food product loaf. This loaf is then placed in an extrusion apparatus wherein the loaf is forced at selectively variable pressures through an extrusion plate and subsequently extruded to form a plurality of elongated continuous lengths of cooked food product. Immediately on the other side of the extrusion plate these lengths of cooked food product are cut by a reciprocating blade whose rate of reciprocation, when coupled with the rate of extrusion, determines the thickness of cooked food product portions. These portions are then finally frozen for shipment. The result is a "unique, cost-effective, time saving method and apparatus" for processing a plurality of different shapes and sizes of cooked food products with very close weight tolerances which have the appearance of being hand formed. ('094 patent, Col. 1, Ins. 59-64).
The patent specification presents several embodiments of the invention which provide for the formulation of cooked food product portions having a variety of shapes, "including, but not limited to, randomly shaped portions, uniformly shaped portions and the like; and which may take on a hand formed appearance." ('094 patent, Col. 8, lns. 35-41). The specification further provides for variable adjustment of certain operational parameters to vary the thickness and weight of these portions. The specification expressly asserts that "no limitation with respect to the specific apparatus illustrated herein is intended or should be inferred." ('094 patent, Col. 8, Ins. 48-51).
The '094 patent specification concludes with some 25 claims of which five are classified as independent claims relating to the production of precooked food products: Claim Nos. 1, 7, 11, 20 and 25. Each of these claims sets forth a "method" for producing a precooked food product as above described and details an extrusion process wherein the *740 food product is "extruded" or "forced" or "compressed" through an "extrusion plate" or "plurality of restrictive orifices" to form "a plurality of irregularly shaped continuous lengths of [cooked product or cooked emulsion]" or "lengths of irregularly shaped precooked sausage product". The final step in each claim is the "continuous," or "simultaneous," "dividing," or "cutting," of "said lengths" into "randomly shaped irregular" "portions" or "pieces."[4] (See '094 patent, Cols. 8-12).
C & F produced precooked sausage pizza toppings and supplied them to Pizza Hut. However, in 1993 Pizza Hut terminated C & F's contract as a supplier.
IBP is a Delaware corporation with corporate headquarters in Dakota City, Nebraska which operated a service center in Illinois and supplies meat products to a variety of customers throughout Illinois. IBP supplies meat products to Pizza Hut including precooked sausage pizza toppings. From November 1990 to January 26, 1994, IBP engaged in commercial production of precooked Italian sausage pizza topping. This process included the creation of "chubbs" comprised of raw meat and other ingredients stuffed into a sausage casing. The chubbs were then cooked, chilled, removed from the casing and halved. Subsequently, the chubbs were inserted into an extrusion apparatus wherein a hydraulic ram forced the chubbs through a dicing plate comprised of six columns and five rows of orifices shaped like equilateral triangles with rounded edges. The chubbs were thereby extruded into thirty separate continuous lengths of precooked sausage which were immediately cut by one wing of a three wing blade into individual Italian sausage pizza topping pieces. For the extrusion process, IBP used a Holac dicer with specially made extrusion plates.
II. THE CLAIMS AT ISSUE
The claims at issue in this suit are Claims 1, 7 and 20-22. (C & F Response, p. 16). Claim 1 is the first independent claim contained in the '094 patent and reads as follows:
A method for forming, cooking and processing a meat or poultry containing food product comprising the steps of:
reducing the size of the food product by grinding, chopping, milling or comminuting said product to create a formable mass;
forming a defined product loaf from said formable mass;
cooking said product loaf through the application of heat;
positioning the cooked product loaf in an extrusion location on one side of an extrusion plate;
compressing at least a portion of said cooked product loaf to thereby extrude the cooked product loaf through said extrusion plate to form a plurality of irregularly shaped continuous lengths of cooked product; and
dividing said lengths of cooked product into a plurality of cooked product portions which have a handformed, randomly shaped irregular appearance and have a predetermined weight.
Claim 7 is the second independent claim contained in the '094 patent and provides as follows:
A method for producing a plurality of pre-cooked meat product portions comprising the steps of:
forming a meat-containing emulsion from a meat product [sic]
placing said emulsion into a container having a defined shape;
cooking said emulsion in the container to thereby produce a cooked product loaf;
positioning said cooked product loaf in an extrusion location on one side of an extrusion plate;
maintaining force on said cooked product loaf such that said cooked product loaf is compressed and moved toward said extrusion plate;
extruding said cooked product loaf through said extrusion plate forming a plurality of elongated irregularly shaped continuous lengths of cooked product; and
*741 continuously cutting said elongated continuous lengths of cooked product on a second side of said extrusion plate thereby producing a plurality of randomly shaped irregular cooked product portions which have a predetermined weight.
Claim 20 is the fourth independent claim contained in the '094 patent and states as follows:
A method for making a precooked sausage product suitable for use as a pizza topping comprising the steps of:
preparing an emulsion containing at least meat or poultry;
mixing a seasoning into said emulsion;
stuffing said emulsion into a sausage casing at a pressure sufficient to fill said casing and form a loaf of predetermined shape;
applying heat to the loaf for a time at a temperature sufficient to cook it;
cooling the cooked loaf;
removing the sausage casing from the cooked loaf;
forcing the cooked loaf by application of compressive forces through a plurality of restrictive orifices to form lengths of irregularly shaped precooked sausage product; and
simultaneously cutting said lengths of extruded precooked sausage product to form a plurality of randomly shaped irregular precooked sausage portions which have a predetermined weight.
Claims 21 and 22 are dependent claims which incorporate all of the limitations of Claim 20 and provide as follows:[5]
21. The method of claim 20 wherein said orifices are formed in an extrusion plate and said cutting is carried out by a blade that simultaneously cuts said extruded lengths of precooked sausage product.
22. The method of claim 21 wherein the cooked loaf is cooled to temperatures of about 30° F. to 40° F. before being forcing through the plurality of restrictive orifices.
III. DISCUSSION
A. C & F'S MOTION TO STRIKE DEFENDANTS' REPLY
C & F moves to strike Defendants' Reply memorandum, or, in the alternative, it seeks leave to file a Sur-Reply. C & F argues that Defendants' Reply is improper because raises new issues, makes new arguments, and presents new evidence and caselaw not previously introduced in the opening memoranda. This motion was accompanied by C & F's Motion to Strike Defendants' Response to the 12(N) statement. As previously discussed in Footnote 1, C & F's later motion should be denied.
C & F's Motion to Strike Defendants' Reply should also denied. The three issues classified as "new" were actually raised by C & F in its Response. Defendants were responding to C & F's arguments and supporting them with evidence and caselaw, an action for which they have every right. C & F's motion appears to be an attempt to get in the "last word" with a sur-reply. The Court feels that, with over one hundred pages of briefs, nearly one hundred pages of "undisputed facts," six inches of supplemental materials between the parties, and 1½ hours of oral argument, it is only appropriate that, mercifully, the "last word" on Defendants' Motion for Summary Judgment come from the Bench itself.
B. DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
1. Standard for Summary Judgment
Summary judgment is proper only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment *742 as a matter of law." FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). In determining whether summary judgment is appropriate, we must view the evidence, and draw all reasonable inferences from the evidence, in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986); Kennedy v. United States, 965 F.2d 413, 417 (7th Cir.1992).
2. Infringement
Although infringement is a question of fact, summary judgment remains appropriate in a patent case where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. Townsend Engineering Co. v. HiTec Co., Ltd., 829 F.2d 1086, 1089 (Fed.Cir.1987). However, summary judgment on the issue of infringement must be approached with great care. Palumbo v. Don-Joy Co., 762 F.2d 969, 974 (Fed.Cir.1985).
In Count V of its complaint, C & F alleges that both IBP and Pizza Hut violated 35 U.S.C. § 271(a) and (b) when IBP produced precooked sausage pizza topping using a process that practices the inventions claimed in the '094 patent.[6] IBP and Pizza Hut contend that the undisputed facts show no genuine issue of material fact and that they are entitled to summary judgment. Defendants argue that C & F cannot prove by a preponderance of the evidence that IBP's process of manufacturing precooked sausage pizza topping either literally infringed or was substantially equivalent to the process covered by the '094 patent.
To establish infringement of a patent, a plaintiff must show by a preponderance of the evidence that every limitation set forth in the a claim is found in the accused product or process exactly or by a substantial equivalent. Johnston v. IVAC Corp., 885 F.2d 1574, 1577 (Fed.Cir.1989). "Infringement, literal or by equivalence, is determined by comparing the accused product not with a preferred embodiment described in the specification, or with a commercialized embodiment of the patentee, but with the properly and previously construed claims in suit." SRI Intern. v. Matsushita Elec. Corp. of America, 775 F.2d 1107, 1121 (Fed.Cir.1985) (en banc), citing ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 1578 (Fed.Cir.1984).
Therefore, patent infringement analysis requires a two-step inquiry: a threshold question of claim interpretation followed by a determination of whether the properly interpreted claim encompasses the accused product or process. Texas Instruments Inc. v. United States Intern. Trade Com'n, 988 F.2d 1165, 1171 (Fed.Cir.1993). The first is a question of law while the second is a question of fact. Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed.Cir. 1995), citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 977 (Fed.Cir.1995) (en banc) ("Notwithstanding the apparent inconsistencies in our opinions, the Supreme Court has repeatedly held that the construction of a patent claim is a matter of law exclusively for the court.").
a. Claim Interpretation
A patent is a government grant of rights which allows the patentee to exclude others from making, using, or selling the invention as claimed. 35 U.S.C. § 154. Claims are the metes and bounds of a patent and must be interpreted in light of the claim language and specification. Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251 (Fed.Cir.1989). There are two types of claims in a patent: independent claims and dependent claims. An independent claim stands on its own and does not refer to any other claim in the patent; thus, it must be read separately from the other claims when determining its scope. A dependent *743 claim includes a reference to at least one other claim in the patent and incorporates all of the elements of the claim to which it refers. For example, in this case the '094 patent claims in issue include independent Claims 1, 7 and 20 and dependent Claims 21 and 22. Claims 21 and 22 refer to Claim 20 and include an additional element or limitation, and these claims must be interpreted to encompass each element of Claim 20 as well as their own additional elements. However, the additional limitations of a dependent claim must not be read or implied into an independent claim if said independent claim does not contain the same limitation. See D.M.I. Inc. v. Deere & Co., 755 F.2d 1570 (Fed.Cir.1985). In other words, "the dependent claim tail cannot wag the independent claim dog." North Am. Vaccine, Inc. v. American Cyanamid Co., 7 F.3d 1571, 1577 (Fed.Cir.1993).
In construing a claim the court essentially defines the federal legal rights created by the patent document. Markman, 52 F.3d at 978. Courts must neither narrow nor broaden the scope of a claim to give the patentee something different than what he has set forth. E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed.Cir.), cert. denied, 488 U.S. 986, 109 S. Ct. 542, 102 L. Ed. 2d 572 (1988). Claim interpretation requires consideration of the claims, the specification, and the prosecution history as well as testimony from experts or those skilled in the art as to their interpretations. Markman, 52 F.3d at 979.
A patent's specification contains a written description of the invention that must enable one of ordinary skill in the art to make and use the invention. Markman, 52 F.3d at 979. The specification must conclude with "one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 U.S.C. § 112. Claims are, therefore, part of the specification and must be read with that in mind. Ultimately, however, the claim measures the invention and the fundamental difference between a specification and a claim is that "claims are infringed, not specifications." SRI Intern., 775 F.2d at 1121. Consequently, not everything in a specification must be read into a claim, and the court cannot read into a claim a limitation that appears in the specification, but not in the claim. Minnesota Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 1566 (Fed.Cir.1992); SRI Intern., 775 F.2d at 1121. In other words, simply because "claims are interpreted in light of the specification does not mean that everything expressed in the specification must be read into all the claims." Raytheon Co. v. Roper Corp., 724 F.2d 951, 957 (Fed. Cir.1983). In addition, references to a preferred embodiment, such as those in the specifications or drawings, are not claim limitations. Laitram Corp. v. Cambridge Wire Cloth Co., 863 F.2d 855, 865 (Fed.Cir.1988), cert. denied, 490 U.S. 1068, 109 S. Ct. 2069, 104 L. Ed. 2d 634 (1989).
Yet, for claim interpretation purposes, the description in the specification can act as a dictionary explaining the invention and defining terms critical to the claims. Markman, 52 F.3d at 979. For this reason, the specification has generally been considered "the primary basis for construing the claims" of a patent. Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 452 (Fed.Cir.1985). An oft-repeated concept in these cases is that the "patentee is free to be his own lexicographer." Markman, 52 F.3d at 980, citing Autogiro Co. of America v. United States, 384 F.2d 391, 397, 181 Ct. Cl. 55 (1967). However, any special definitions must be clearly defined in the specification and words of the claim should be given their ordinary and accustomed meaning, unless it appears that the inventor used them differently. ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1579 (Fed.Cir.1988). Ultimately, the Markman court held, that, "in a case tried to a jury, the court has the power and obligation to construe as a matter of law the meaning of language used in the patent claim." Markman, 52 F.3d at 979.
Another source relevant to claim construction is the prosecution history (also known as the file wrapper). The prosecution history contains the entire record of proceedings in the Patent and Trademark Office ("PTO") including express representations *744 made by or on behalf of the applicant to induce the granting of the patent. Often among those representations are amendments and arguments made to convince the patent officer that the claimed invention complies with the statutory requirements of novelty, utility and nonobviousness. The prosecution history, therefore, can provide a record of the applicant's disclaimed or disavowed interpretations which can be excluded by the court in any subsequent claim interpretation. See Standard Oil Co., 774 F.2d at 452. However, just as with the specification, the prosecution history should be used to understand the meaning of the claim language, but cannot alter the limitations contained in the claims. Markman, 52 F.3d at 980.
Extrinsic evidence provides a final source of information helpful for claim interpretation. Extrinsic evidence encompasses all material external to the patent and prosecution history, including expert testimony. Such evidence cannot vary or contradict the terms of the claims but can help to explain scientific principles, the meanings of technical terms and terms of art which may appear in the patent or prosecution history. In other words, while expert testimony can provide evidence as to the meaning of claim language from which the Court can then determine claim construction, experts cannot provide testimony as to the actual construction of the claim itself. See Markman, 52 F.3d at 980, 981.
The claims at issue in this case are independent Claims 1, 7 and 20 and dependent Claims 21 and 22. The parties agree that the critical parts of each independent claim are the final two steps, simply known as the "extrusion step" and the "division step." The parties further agree that the critical elements for this case are essentially the same in that each claim requires that the food product be extruded through an extrusion plate to form a plurality of irregularly shaped lengths and further that these irregularly shaped lengths be divided into a plurality of randomly shaped irregular portions. There is no dispute that "irregularly shaped" and "randomly shaped" must be accorded their ordinary and customary meanings of "not uniform" and "lacking perfect symmetry or form." (see IBP Memorandum, pp. 12-17, Pizza Hut Memorandum, p. 10, and C & F Response, p. 7).[7]
However, the parties differ as to how these terms affect the ultimate construction of each claim. C & F contends that these claims should be read as teaching a method of processing cooked food products into random, irregular or nonuniformly shaped portions with a predetermined weight. On the other hand, Defendants urge an interpretation which involves the same method but constructs the claims as utilizing an extrusion plate with irregularly shaped apertures.
In light of the pertinent evidence, the specification, the prosecution history and extrinsic evidence, this Court finds that the methods of processing cooked food products expressed in independent Claims 1, 7 and 20 teach methods of producing nonuniform portions which are not limited by the type of extrusion plate used in the extrusion step.
Defendants suggest, based on their analysis of the specification and prosecution history, that each of the '094 claims contain the additional limitation that the extrusion plate must have a plurality of randomly shaped apertures. Defendants conclude that since the critical limitation is `irregularly shaped lengths' and `randomly shaped portions,' there must be a limitation on the type of extrusion plate. First, Defendants cite language in the specification which states that "an extrusion plate with a plurality of randomly shaped apertures will extrude randomly shaped lengths of food product." ('094 patent, Col. 2, Ins. 20-25). Defendants further emphasize distinctions highlighted in the drawings contained in the specification. Therein the specification notes the differences *745 between an extrusion plate with a plurality of randomly shaped apertures ('094 patent, FIG. 10), whose use is desirable if food portions are to take on a hand formed appearance ('094 patent, FIG. 9), and an extrusion plate with uniform apertures ('094 patent, FIG. 12), which produces food portions (FIG. 11) more uniform in shape than that of FIG. 9.
Second, Defendants rely on parts of the prosecution history in support of its claim construction. Specifically, Defendants cite the numerous amendments required by the Examiner which have the effect of narrowing the claims to `irregularly shaped lengths' and `randomly shaped irregular portions.' Said amendments were necessary to avoid prior art, especially the Grant patent (for a butter-cutting machine) and the Greenspan patent (for cooking meatloaf). Defendants contend that the specification language and the prosecution history mandate a finding that the '094 patent claims include a limitation that the extrusion plate have randomly shaped apertures.
This Court rejects Defendants' argument and interpretation. First, Defendants urge the Court to read into the claims limitations found only in the specification. Nowhere in Claims 1, 7 or 20 are there any limitations on the type of extrusion plate; the only limitations concern the lengths and the final portions. A full reading of the '094 patent reveals that several factors impact on the food product: the cooked nature of the product, the temperature of the loaf when extruded, the rate of extrusion, the rate of division and the type of extrusion plate. The specification and drawings clearly enumerate several embodiments of the extrusion plate (see '094 patent, FIGS. 10 and 12). However, such embodiments cannot be read as limitations on the claim. See Laitram Corp., 863 F.2d at 865. Second, while the prosecution history documents amendments made to the application prior to approval of the '094 patent, these amendments concern the food product not the apparatus used. Nothing in the prosecution history helps to define the type of extrusion plate.
Therefore, independent Claims 1, 7 and 20 should be interpreted as describing a method of processing precooked food products into irregularly shaped lengths which are then divided into randomly shaped portions of predetermined weight. Additionally, Claim 1 requires the food portions to have a hand formed appearance. These claims should not be construed as limiting the type of extrusion plate.
Dependent Claims 21 and 22 refer only to Claim 20 and contain specific self-explanatory limitations. Specifically, Claim 21 directs extrusion through an extrusion plate and "simultaneous" cutting of the lengths; and Claim 22 requires that the food product loaf be cooled to 30°-40° F. before extrusion. As no party argued for an alternate interpretation, these claims must be accorded their ordinary and customary meanings.
Having thus construed the claims in issue without reference to accused device or product, these claims are then applied to the accused device or product to determine infringement. SRI Intern., 775 F.2d at 1119. To establish infringement, a patentee must prove by a preponderance of the evidence either that every limitation set forth in the claim is found in the accused product or process exactly or by a substantial equivalent. Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed.Cir.1991).
b. Literal Infringement
Literal infringement requires that the accused device embody every element of the claim. Townsend Engineering, 829 F.2d at 1090. Where a claim does not "read on" an accused device exactly, there can be no literal infringement. Johnston, 885 F.2d at 1580. All elements of the claim are material and essential, and must be considered, to determine whether a patent has been literally infringed. Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1533 (Fed.Cir.1987).
Defendants contend that they are entitled to summary judgment on the grounds that IBP did not infringe upon the '094 patent because it neither produced "lengths of irregularly shaped precooked sausage product" nor did it cut extruded lengths "to form a plurality of randomly shaped irregular precooked sausage portions." C & F counters *746 with testimony that supports its contention that IBP's product is in fact irregular in length and random in shape.
There appears to be a genuine issue of material fact regarding the classification of IBP's precooked sausage product. On one hand, C & F has expert testimony that the IBP's process produced random irregularly shaped portions. (See Ingegno Decl., Severini Decl. and Clark Decl.). On the other, the Defendants have testimony that the portions produced were not random or irregular. (Leising Dep., Layhee Dep.). Resolution of the literal infringement issue requires weighing this testimony which is improper on a motion for summary judgment. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511 ("at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial"). As no undisputed conclusions can be reached from the evidence regarding IBP's product, there is a genuine issue of fact whether or not IBP literally infringed on the claims of the '094 patent.[8]
c. The Doctrine of Equivalents
Under the doctrine of equivalents, an accused product which does not literally infringe a claim may nevertheless infringe "if it performs substantially the same function in substantially the same way to obtain the same result." Southwall Technologies, 54 F.3d at 1579, citing Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S. Ct. 854, 856, 94 L. Ed. 1097 (1950). For a process to work in "substantially the same way" all of the limitations of the claim must be satisfied at least equivalently. Becton Dickinson and Co. v. C.R. Bard, Inc., 922 F.2d 792, 798 (Fed.Cir.1990). The doctrine of equivalents is limited in that it will not extend to cover an accused device in prior art or to allow a patentee to recapture through equivalence that coverage given up during prosecution. Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931 (Fed. Cir.1987), cert. denied, 485 U.S. 961, 108 S. Ct. 1226, 99 L. Ed. 2d 426, cert. denied, 485 U.S. 1009, 108 S. Ct. 1474, 99 L. Ed. 2d 703 (1988).
Defendants argue, in the alternative, that:
1. prosecution history estoppel precludes C & F from invoking the doctrine of equivalents; and
2. even if prosecution history estoppel is not appropriate, IBP's process and product does not infringe even under the doctrine of equivalents.
Prosecution history estoppel applies as a limitation on the range of equivalents if, after the claims have been properly interpreted, no literal infringement has been found. Southwall Technologies, 54 F.3d at 1578. Courts have consistently held that the issue of prosecution history estoppel is a question of law; therefore, it will be addressed first. Hoganas AB v. Dresser Industries, Inc., 9 F.3d 948, 952 (Fed.Cir.1993).
1) Prosecution History Estoppel
Under the doctrine of prosecution history estoppel, a patentee may not "obtain, through the doctrine of equivalents, coverage of subject matter that was relinquished during prosecution to procure issuance of the patent." Hoganas, 9 F.3d at 952. "The legal standard for determining what subject matter was relinquished is an objective one, measured from the vantage point of what a competitor was reasonably entitled to conclude, from the prosecution history, that the applicant gave up to procure issuance of the patent." Hoganas, 9 F.3d at 952.
Defendants suggest that, as a competitor, IBP was "reasonably entitled to conclude" that C & F's method requires the use of an extrusion plate with randomly shaped apertures and did not include an extrusion plate with uniform apertures. Specifically, *747 Defendants argue that the prosecution history shows that the applicants gave up any claims to extrusion plates with uniform apertures given the types of amendments and statements made to get the patent approved. However, as noted in the claim interpretation section, most of these amendments and statements were made in an effort to differentiate this invention from prior art like the Grant patent, the Greenspan patent and the Holac dicer. This Court certainly finds that the product lengths and portions were expressly limited to "irregularly shaped" and "randomly shaped" but there is no express or implied disavowal of the use of an extrusion plate with uniform apertures. As discussed above in the claim interpretation section, this Court finds that the '094 claims are not limited by the type of extrusion plate used. C & F's method involves a number of factors, i.e., temperature of the cooked food loaf, amount of force of extrusion, speed of the cutting blade, which must be considered in addition to the type of extrusion plate. The critical limitations in the '094 patent for purposes of this case are the requirement that the extruded lengths be irregular and the requirement that these lengths be divided into randomly shaped irregular pieces.
This Court finds nothing in the prosecution history as provided which supports a finding that C & F relinquished any claims based solely on the type of extrusion plate. Therefore, Defendants' arguments for prosecution history estoppel are not well-taken.
2) Applying the Doctrine of Equivalents
Defendants argue that the undisputed facts reveal that IBP's process and product did not practice the critical limitations of the '094 patent:
a) extruding a cooked food product into irregularly shaped lengths, and
b) dividing said lengths into randomly shaped irregular pieces.
Specifically, Defendants assert that IBP's process could not have worked in "substantially the same way" because IBP used a Holac dicer, which was a commercially available product expressly distinguished as prior art in the '094 patent, fitted with a special extrusion plate with regularly shaped apertures. Defendants further argue that IBP's process did not achieve substantially the same results as the '094 claims in that IBP did not produce the necessary irregularly shaped lengths of extruded food product nor did it divide such lengths into the necessary randomly shaped irregular pieces.
C & F counters that the "uncontroverted statistical evidence still demonstrate infringement" regardless of what equipment IBP used because IBP's produced the same result: a product with a random, irregular shape.
Considering all of the testimony in the light most favorable to C & F, this Court finds that genuine issues of material fact exist which preclude summary judgment. Specifically, both Defendants and C & F have provided compelling testimony in the form of affidavits, depositions and declarations which support their divergent analyses of IBP's product. Determination of infringement in this case, therefore, requires a weighing of this testimony to determine whether or not IBP's precooked sausage product was extruded into irregular lengths and subsequently divided into randomly shaped irregular pieces.
For these reasons, Defendants' motion for summary judgment on the issue of infringement should be denied.
3. INEQUITABLE CONDUCT
Alternatively, Defendants seek summary judgment on the theory that C & F allegedly engaged in inequitable conduct during the prosecution of the '094 patent. It is well settled that inequitable conduct renders all claims of the issued patent unenforceable. Hewlett-Packard Co. v. Bausch & Lomb, Inc., 882 F.2d 1556, 1563 (Fed.Cir.1989), citing Kingsdown Medical Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 877 (Fed.Cir. 1988). While case precedent urges caution when granting summary judgment regarding a defense of inequitable conduct, summary judgment is nonetheless appropriate if the proper criteria are satisfied. Paragon Podiatry Laboratory, Inc. v. KLM Laboratories, Inc., 984 F.2d 1182, 1190 (Fed.Cir.1993). However, a summary judgment in these cases "ought to be, and can properly be, rare *748 indeed." Burlington Industries, Inc. v. Dayco Corp., 849 F.2d 1418, 1422 (Fed.Cir.1988).
Inequitable conduct includes affirmative misrepresentation of a material fact, failure to disclose material information, or submission of false material information, coupled with an intent to deceive. Molins PLC v. Textron, Inc., 48 F.3d 1172 (Fed.Cir. 1995).[9] Under PTO rules, this duty to disclose and of good faith and candor rests with those substantively involved in the prosecution of the patent application, typically the patent applicants and their attorneys. 37 C.F.R. § 1.56(a) (1988).
Generally, a patent is presumed valid and enforceable and such presumption may only be overcome if there is clear and convincing evidence establishing invalidity. ACS Hospital Systems, Inc., 732 F.2d at 1574; Jones v. Hardy, 727 F.2d 1524, 1528 (Fed.Cir.1984). Therefore, the party who alleges inequitable conduct arising from a failure to disclose prior art must offer clear and convincing proof of the materiality of the prior art, knowledge chargeable to the applicant of that prior art and its materiality, and the applicant's failure to disclose the prior art, coupled with an intent to mislead the PTO. Molins, 48 F.3d at 1178, citing FMC Corp. v. Manitowoc Co., Inc., 835 F.2d 1411, 1415 (Fed.Cir.1987). Therefore, there are two threshold issues: materiality and intent. Once the findings of materiality and intent are established, the court must then make an equitable judgment, in light of all the circumstances, whether the applicant's conduct is so culpable that the patent ought not be enforced. Molins, 48 F.3d at 1178.
Defendants contend that the '094 patent applicants made numerous misrepresentations in the 31 material references presented in the Information Disclosure Statement ("IDS") provided to the PTO on August 3, 1989. Specifically, Defendants allege that the applicants made material misrepresentations relating to four references: 1) an illustrated Holac dicer brochure ("Holac Brochure"); 2) a letter discussing the Holac dicer ("Kierzl Letter") with attached materials ("Reinert Brochure"); 3) an advertisement for the Holac dicer from a trade magazine ("National Provisioner Ad") (hereinafter these documents will be referred to collectively as the Holac Documents); and 4) a prior art patent ("Van Werven patent").
C & F responds that the applicants did not misrepresent the relevance of either the Holac Documents or the Van Werven patent, and, in the alternative, that such references were either not material or were fully considered by the PTO Examiner. Finally, C & F asserts that there is no evidence of an intent to deceive. In fact, C & F suggests that the undisputed facts support a finding of judgment in its favor on this issue.
1. Materiality
Information is considered material if there is a substantial likelihood that a reasonable examiner would consider it important in deciding whether to allow the application to issue as a patent. Merck & Co., Inc. v. Danbury Pharmacal, Inc., 873 F.2d 1418, 1421 (Fed.Cir.1989). Defendants contend that there is no question as to the materiality of the Holac Documents and Van Werven patent because the applicants specifically listed them among the information which in the applicants' own estimation was "believed material to the examination of the referenced application." (IDS, Defendants' Exh. L, B003140). C & F challenges the materiality of the Holac Documents and Van Werven patent on the grounds that they could not constitute prior art. This Court finds that both the Holac Documents and Van Werven patent were material information to the prosecution of the '094 patent.
This is a case where inequitable conduct is raised as a defense based on alleged misrepresentations of information provided to the Examiner in the IDS. C & F relies on cases where the alleged inequitable conduct involved the non disclosure of material information. See Northern Telecom, Inc. v. Datapoint Corp., 908 F.2d 931 (Fed.Cir.1990); *749 Akzo N.V. v. U.S. Intern. Trade Com'n, 808 F.2d 1471 (Fed.Cir.1986). Since an applicant's duty to the PTO is one of good faith and candor it is apparent that an applicant may not misrepresent information it supplies. Thus, the relevant inquiry in this case is not whether the applicants failed to disclose relevant information but whether the applicants failed to adequately represent the information they did provide. The Holac Documents and Van Werven patent were included on the IDS therefore they are material.
The Court thus turns the inquiry to the issue of alleged misrepresentations to the Holac Documents and Van Werven patent which will each be addressed individually.
a. Holac Documents
Defendants argue that the Holac Documents actually disclosed, among other things, that the Holac dicer could extrude and cut cooked meat products and could produce irregularly shaped food products with a "hand-made appearance." Defendants suggest that this information directly contradicts the applicants' assertions that their invention differed from prior art because it involved a method of manufacturing "irregular, randomly shaped" pieces of cooked food product by extruding and cutting a cooked and cooled food product. Specifically, Defendants contend that the applicants misrepresented the information contained in the Holac Documents and thereby misled the Examiner.
In the IDS the applicants attached a copy of the Holac Brochure ('094 IDS, Defendants' Exh. L, B003159-B003160) with the following description:
Illustrates and describes a Holac dicer which can be used to produce uniform cubes, strips or slices of meat or similar food products.
('094 IDS, Defendants' Exh. L, B003142).
Defendants argue that this description misrepresents the brochure because it doesn't state that the Holac dicer could produce different sized pieces of cooked food product using various rates of extrusion and grid size. (Marbeck Decl., pp. 5-6, Defendants' Exh. P; Quigg Decl., ¶ 1, Defendants' Exh. Q).
The applicants also attached a copy of the Kienzl Letter and Reinert Brochure (IDS, Defendants' Exh. L, B003152-B003157) with the following description:
Illustrates and describes various meat and poultry products that can be diced on a Holac dicer. The meat or poultry products would be placed in a Holac dicer and cut into pieces conforming generally to the shape of the fixed grid cutting die illustrated in the photograph.
(IDS, Defendants' Exh. L, B003143).
Defendants argue that this description is a misrepresentation because it fails to inform that the Holac dicer could create pieces with a handmade appearance or that the letter attaches a photograph of an extrusion grid with irregular apertures. (IDS, Defendants' Exh. L, B003143).
The applicants further attached a copy of a past advertisement from NATIONAL PROVISIONER Magazine with the following description:
Illustrates a dicing apparatus having a moveable lateral wall which acts as a loading chamber for meat, poultry or cheese products. The food product is subsequently cut into strips, cubes, slices or like regular shapes.
(IDS, Defendants' Exh. L, B003142).
Defendants contend that this description also misrepresents the relevance of this ad in that it failed to disclose that cooked foods, including meat and poultry, could be diced on a Holac dicer. In sum, Defendants allege that the applicants failed to make a candid description of these documents which led the Examiner away from their true relevance such that the Examiner failed to consider these documents in his review of the prior art.
C & F argues that these descriptions did not misrepresent or mischaracterize any information included in the IDS. First, none of the Holac Documents disclose a process. Second, the Holac Brochure and NATIONAL PROVISIONER and concern only production of uniform cubes, strips or slices. Third, the Kinzel Letter and Reinert Brochure do not disclose the production of irregularly shaped *750 pieces. Finally, C & F argues that, since these documents were referenced in the IDS, the Examiner had a duty to make an independent analysis of each reference. (See Banner Decl., Clark Decl.).[10]
Considering the evidence in the light most favorable to the nonmovant, C & F, this Court finds that the evidence does not support a clear and convincing finding that the applicants misrepresented the Holac Documents or misled the Examiner.
b. Van Werven Patent
Defendants assert that the Van Werven patent actually disclosed a process wherein a cooked food product at a temperature of 5°-15° C. is extruded and then cut into random shapes with a cutter. In the IDS the applicants listed patent number 3,852,487 (Van Werven patent) and described its relevance thusly:
Discloses a meat paste product and process for preparing such a product. A shaped consolidated meat paste suitable for canning, freezing or drying can be made by mixing finely divided raw meat and separated muscle fiber bundles in extruding the mixture after deaeration.
(IDS, Defendants' Exh. L, B003146).
C & F argues that Van Werven, in fact teaches away from the '094 patent in that it describes a warmer temperature for extrusion, it uses a nozzle rather than an extrusion plate and it produces pieces of food product for soups and entrees rather than hand formed pizza toppings. As to both the Holac Documents and the Van Werven patent, C & F contends that they were merely cumulative, and no more material than the information related by the rest of the references in the IDS.
Considering the evidence in a light most favorable to the non-movant, C & F, this court finds that there is not clear and convincing evidence that the applicants misrepresented or mischaracterized the Van Werven patent in the IDS.
2. Intent
The second threshold issue in inequitable conduct cases is intent. In inequitable conduct cases, intent "need not, and rarely can be, proven by direct evidence." Merck, 873 F.2d at 1422. Rather, intent is most often proven by a "showing of acts the natural consequences of which are presumably intended by the actor." Kansas Jack, Inc. v. Kuhn, 719 F.2d 1144, 1151 (Fed.Cir.1983).
Defendants argue that intent to mislead in this case can be inferred from "the way in which C & F brought the references to the examiner's attention." (Defendants' Reply, p. 12). Specifically, Defendants suggest that the applicants "buried the Holac Publications and Van Werven [patent] in a list of 31 references" and failed to describe them in the same detail as the other references. (Reply, p. 12).
The facts of this case do not support a finding of a "damning" "pattern of misrepresentation" as found in Merck. Merck, 873 F.2d at 1422. An examination of the IDS at issue in this case does not support a finding that the applicants buried the Holac Documents or the Van Werven patent or provided any less detailed descriptions than the surrounding references. In addition, the IDS recites that the applicants attached copies of all the referenced items, including the Holac Documents and the Van Werven patent, thus providing the Examiner with ample opportunity to review the actual documents for himself. Considering the evidence in the light most favorable to the nonmovant, C & F, this Court finds that Defendants have failed to prove either of the threshold issues required for an inequitable conduct finding by clear and convincing evidence and that, therefore material issues of fact exist on this subject.
*751 IV. CONCLUSION
For all the reasons previously delineated, this Court finds that there are genuine issues of material fact which preclude summary judgment for Defendants on the issue of infringement and the court finds that the undisputed facts fail to support a finding of inequitable conduct. For these reasons, the Court therefore recommends that Plaintiff's Motion to Strike Defendants' Reply and Defendants' Response to C & F's 12N Statement be denied, that Defendants' Motion for Summary Judgment on Infringement be denied, and that Defendants' Motion for Summary Judgment as to Inequitable Conduct be denied.
NOTES
[1] The only remaining count against Pizza Hut is Count V as Judge Williams dismissed Counts I-IV and VIII by Memorandum Opinion and Order dated January 26, 1994.
[2] C & F has filed a Motion to Strike Defendants' Response to C & F's 12(N) Statement asserting that "that paper is not authorized by this Court's Local Rules, which provide only for a 12(m) statement from the moving party and a 12(n) statement from C & F, the opposing party." (C & F Motion to Strike, p. 4). C & F's motion is denied. Even the most cursory reading of Local Rule 12 demonstrates the total lack of merit of C & F's motion. Local Rule 12(M) expressly directs:
If additional material facts are submitted by the opposing party pursuant to section N of this rule, the moving party may submit a concise reply in the form prescribed in section N for a response. All material facts set forth in the statement filed pursuant to section N(3)(b) will be deemed admitted unless controverted by the statement of the moving party. (Emphasis added).
(Local Rule 12(M)(3)(b)). Therefore, not only does IBP have the right to respond to any additional facts presented by C & F in the 12(N) Statement, it must do so or else those additional facts will be admitted. C & F's 12(N) statement contained many "additional facts" to which Defendants responded such response is fully within the contemplation of Local Rule 12.
The Court further notes that, pursuant to Local Rule 12(M) and 12(N), the parties have submitted a statement of undisputed facts, a response and a reply to additional facts. However, instead of the "short numbered paragraphs," "concise repl[ies]" or "concise response[s]" mandated by Local Rule 12, both parties have favored the Court with often lengthy paragraphs filled with legal conclusions and arguments. Consequently, of IBP's 94 "material facts to which there is no genuine issue," fewer than 10 were admitted by C & F and of C & F's 104 "additional facts," fewer than 20 were admitted by IBP to some extent. The result is that, instead of a clear set of undisputed facts, the Court has been forced to perform a laborious winnowing to discern what, in fact, the undisputed facts actually are. These 12(M) and 12(N) submissions, plus C & F's Motion to Strike Defendants' Response discussed above, exhibit at best a misunderstanding of, and at worst a patent disregard for, the clear language of Local Rule 12. The Court exhorts counsel for the parties to read the Local Rules and spare the courts of the Northern District of Illinois future wastage of time.
[3] C & F filed its application for the '94 Patent on September 15, 1986. The 1986 application was based on an earlier patent application filed on August 6, 1985.
[4] Only Claim 1 directs that the portions should have a `handformed' appearance.
[5] The Court notes that while C & F alleges that IBP infringed on the '094 patent by making and selling "meat products" (see Second Amended Complaint, ¶ 67), the only product referred to throughout this litigation has been precooked sausage pizza topping. Furthermore, the Court notes that only independent Claims 20 and 25 detail a "method for making a precooked sausage product suitable for use as a pizza topping." ('094 patent, Col. 10, Ins. 50-52, Col. 12, Ins. 1-3).
[6] Section 271 provides in pertinent part:
(a) Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.
(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
(35 U.S.C. § 271(a) and (b)).
[7] This usage is consistent with the definitions contained in WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY (1994) ("WEBSTER'S II") wherein `irregular' is defined as "not uniform, straight or symmetric." WEBSTER'S II at p. 645. `Random' is defined as "having no specific pattern, purpose, organization or structure." WEBSTER'S II 973. Finally, `uniform' is defined as "1.a. Always the same; b. being without variation or fluctuation; 2. being the same as another or others; 3. consistent in appearance." WEBSTER'S II at p. 1261.
[8] Both sides spend an inordinate amount of time alleging and fending off allegations that IBP engaged in a plan to copy C & F's process. This evidence and argument, while undoubtedly critical regarding other counts and regarding the issue of attorney's fees, are not helpful or persuasive for this infringement count the issue at hand is not whether the defendants set out to infringe, the issue is whether they in fact infringed just as merely attempting or desiring to infringe does not constitute infringement, so, too, unconscious or inadvertent infringement is still infringement.
[9] Patent and Trademark Office Rules, Section 1.56, expressly forbids 1) the suppression of material facts known to the applicant which are inconsistent with the statement made in pursuit of the patent; 2) the omission of any material information; and 3) any affirmative misrepresentations of material information. 37 C.F.R. § 1.56(a) (1988).
[10] The Court notes that C & F also supplied the declaration of Michael Warnecke as a patent law expert. The Court wishes to disclose that about the time this decision was being finalized it came to our attention that a summer extern in our office, Michael Warnecke, is the son of the aforementioned Michael A. Warnecke. Throughout his tenure Mr. Warnecke worked exclusively on two cases Ra Chaka v. Givens, 90 C 130 (a prisoner's rights suit) and Capaldo v. Shalala, 94 C 4150 (a social security disability appeal). Mr. Warnecke, the extern, was not apprised of the facts of this case or the ultimate recommendation nor has he performed any research on the issues involved. Further, the Court has determined that the declaration of Mr. Warnecke, the attorney, was not necessary for this recommendation. |
9,645,516 | 2023-08-22 21:27:37.04992+00 | Montemuro | null | MONTEMURO, Judge:
This appeal is before us on remand from the United States Supreme Court, Paulussen v. Herion, 475 U.S. 557, 106 S.Ct. 1339, 89 L.Ed.2d 521 (1986).
The underlying cause of action is a petition in paternity and child support filed by appellant on February 17, 1980, on behalf of her daughter, born out of wedlock on March 5, 1972. The petition designated appellee, George Ronald Herion, as the father of the child, and as a voluntary contributor to her support until April, 1975, at which point *522appellee’s assistance ceased. In his Answer ánd New Matter, appellee raised as a defense the six year statute of limitations for such actions prescribed by 42 Pa.C.S.A. § 6704(e),1 and moved for summary judgment. Appellant countered with an allegation as to the unconstitutionality of the statute on grounds of equal protection.
The lower court entered summary judgment in favor of appellee, finding that appellant’s claim was in fact untimely, and that the constitutionality of § 6704(e) had been upheld by the Pennsylvania Supreme Court decision in Astembor-ski v. Susmarski, 502 Pa. 409, 466 A.2d 1018 (1983), thus invalidating appellant’s equal protection thesis. This court affirmed. Appellant’s allocatur petition to our Supreme Court was denied, and further appeal was brought in the United States Supreme Court, which noted probable jurisdiction, Paulussen v. Herion, 474 U.S. —, 106 S.Ct. 224, 88 L.Ed.2d 223 (1985). Before a ruling was made, however, the statute of limitations for filing paternity actions was enlarged by the Pennsylvania legislature to eighteen years, effective as of January 28, 1986. 23 Pa.C.S.A. § 4343(b).2 In February, 1986, on the basis of that statute, appellant filed a second petition for support and paternity which is still pending. During the interim, the Supreme Court remanded to this court for a determination of the new statute’s effect upon the old, that is, “the legal consequences of the enactment of the new 18 year statute of limitations.” Paulussen v. Herion, 475 U.S. 557, 106 S.Ct. 1339, 89 L.Ed.2d 521 (1986).
*523Appellant seems to suggest that we have before us the task of choosing between alternatives: either we declare § 6704(e) unconstitutional, or we find § 4343 retroactive. In this, appellant misapprehends the nature of the case. We need not rule upon the constitutional validity of the six year statute because our Supreme Court has already adjudged it sound. We may not, as appellant suggests, “take notice of the anticipated ruling of the United States Supreme Court,” (Appellant’s brief at 24) for to do so is tantamount to overruling Astemborski, supra. Nor are we compelled to apply § 4343 retrospectively. Precedents, even those most sympathetic to appellant’s case, direct us otherwise.
In this regard, a brief survey of the development of the law respecting filiation actions is instructive.
Until the 1963 amendment to the Civil Procedural Support Law, 62 P.S. § 2043.31, et seq, the only avenues of relief for determination of paternity and support questions relating to out of wedlock children were through criminal actions for fornication and bastardy, 18 P.S. § 4506, or wilful neglect to support an illegitimate child, 18 P.S. § 4732. Because this court held, in Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968), that the civil statute in no way affected a putative father’s absolute right to a (criminal) jury trial where paternity was contested, enforcement of the act was possible only where a prior determination of paternity had been obtained through the criminal system within the two year limitation period of the criminal statute. Once the two years had elapsed without a ruling on the criminal side as to the paternity issue, the civil right to support was obliterated. Id.
In 1978, the criminal statutes affecting paternity and support were repealed, and 62 P.S. 2043.31 was passed extending the statute of limitations for commencement of such actions from two years to six years from the birth of the child, and not incidentally placing all questions relating to filiation strictly within the civil area. In 1980, the standard of proof in these cases was legislatively altered to require a preponderance of the evidence.
*524The motivating factor for passage of § 4343(b) is contained in the 1984 Child Support Enforcement Amendment to the Social Security Act, 42 U.S.C.A. § 666(a)(5), which mandated the institution in all states of “procedures which permit the establishment of the paternity of any child at any time prior to such child’s eighteenth birthday.” Id.
For guidance in the instant dilemma, we must look to cases concerned with the 1978 transition between the two and the six year statutes. Paramount among these is Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982), in which this court held that a paternity suit filed after the passage of the six year statute was not barred by the expiration of the two year criminal limitations period, which had been repealed. Implicit in the Williams rationale is the notion, later made explicit in Commonwealth ex rel. Pugh v. Callahan, 312 Pa.Super. 246, 458 A.2d 607 (1983), and Hatfield v. Hazelbaker, 306 Pa.Super. 555, 452 A.2d 863 (1982), that the statute in force when the complaint is filed is controlling as to timeliness.
We are bound by this conclusion, as there is no persuasive theory available to justify the application of a statute of limitations effective in 1986, to an action commenced in 1980. The court in Astemborski, supra, declined to address the wisdom of a legislative scheme which “prevented forever [a child] from asserting a successful claim for support.” Id. 502 Pa. at 417-18, 466 A.2d at 1022, simply because its mother neglected to protect its rights. We are in much the same position.
The legislative scheme has, however, been amended, and appellant has sought relief under the altered statute. We note in this regard that appellee has consistently, since the institution of the first petition, denied both paternity and any coterminous financial obligation to the child. Contemporaneous with appellant’s institution of the second claim, however, appellee admitted both physical and financial responsibility, limiting the latter to the filing of the 1986 complaint. These issues are not before us, as no adjudication has been made below.
Order granting summary judgment is affirmed.
*525CIRILLO, President Judge, and WICKERSHAM, McEWEN, OLSZEWSKI, BECK and JOHNSON, JJ., join in this opinion by MONTEMURO, J. BROSKY, J., files a concurring opinion by BROSKY, J. KELLY, J., joins Judge BROSKY’s concurring opinion and also files a concurring opinion by KELLY, J.
. 42 Pa.C.S.A. § 6704(e)
Limitation of actions. — All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgment by the reputed father.
. 23 Pa.C.S.A. § 4343(b)
Limitation of actions. — An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child. |
9,645,517 | 2023-08-22 21:27:37.055656+00 | Brosky | null | BROSKY, Judge,
concurring:
I concur in the decision to remand this case to the Court of Common Pleas of Bucks County for further proceedings, but for other reasons. I question seriously the propriety of what I consider to be this court’s sua sponte entertainment of a legal argument not heretofore addressed by a Pennsylvania trial court.
Our court is not possessed of original jurisdiction except in cases of mandamus and prohibition ancillary to its appellate jurisdiction and in the issuance of writs of habeas corpus. 42 Pa.C.S.A. § 741.1 The instant matter does not fall within any of these exceptions. Accordingly, as I see it, we are without jurisdiction presently to hear the issue presented in this case which was not ruled upon in the first instance by a trial court.
The General Assembly of this Commonwealth, pursuant to Article 5, Section 3 of the Pennsylvania Constitution, has clothed us with “exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas ... except such classes of appeals as are ... within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.” 42 Pa.C.S.A. § 742. (emphasis added). We are further empowered to “affirm, modify, vacate, set aside or reverse any order brought before [us] for review.” 42 Pa.C.S.A. § 706. (emphasis added). In doing so, we may remand and direct the entry of an appropriate order or require further proceedings. Id.
*526Thus, we are a court without plenary or extraordinary jurisdiction, this power having been bestowed by the Pennsylvania Legislature, in its wisdom, upon our Supreme Court. See 42 Pa.C.S.A. § 726. Similarly, since we have no powers beyond that granted to us by the Legislature, we cannot, accordingly, enlarge our jurisdiction. See Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981), affirmed, 498 Pa. 536, 448 A.2d 1379 (1982).
Our Rules of Appellate Procedure prescribe the complete and exclusive means by which matters come before us. (Historical Note following Pa.R.App.P. 103.) Rules 341 and 702 authorize appeals as of right from final orders of lower courts or administrative agencies, and Rule 902 prescribes the manner by which an appeal is taken as of right from a lower court to an appellate court.
The instant case is before us on remand by the United States Supreme Court because of an intervening change in the law on commencement of paternity actions since the decision of this court, Paulussen v. Herion, 334 Pa.Super. 585, 483 A.2d 892 (1984), affirming the bar of appellant’s action on behalf of her minor child because of the lapse of the six-year statute of limitations period in effect at the time of the proceeding in the lower court2 and the denial of review by our Supreme Court (1985).
The United States Supreme Court, on appeal, Paulussen v. Herion, 475 U.S. 557, 106 S.Ct. 1339, 89 L.Ed.2d 521 (1986), refused to reach appellant’s constitutional claim that the statute {see supra note 2) violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution because of this legislative change. The pertinent language of its remand order reads as follows:
Our examination of Pennsylvania law leaves us uncertain as to the legal consequences of the enactment of the new 18 year statute of limitations. If, however, Pennsylvania were to interpret § 4343(b) to require sup*527port payments dating back to the filing of the original petition, the constitutionality of the 6-year statute of limitations would be irrelevant. Because Pennsylvania should have an opportunity in the first instance to resolve this issue of state law, and because we are reluctant to address a federal constitutional question until it is clearly necessary to do so, we vacate the judgment below and remand for further consideration in light of the intervening change in state law.
Id. at —, 106 S.Ct. at 1340. (Emphasis added).
This order is a clear and unequivocal mandate to us to remand this matter directly to the Court of Common Pleas of Bucks County to determine what effect, if any, the new legislation has upon the instant case.
To reiterate, the directive from the United States Supreme Court says that “Pennsylvania should have an opportunity in the first instance to resolve this issue ...” Id. at —, 106 S.Ct. at 1340. This means that the judicial process of determining conflicts or issues should be followed. That begins with the trial court. Then, from a final order of that court, comes the review by the appellate court. By assuming jurisdiction, our court is being deprived of the wisdom of counsel and the trial judge who, in the first instance, should rule on the issue involved.
Indeed, entertainment of issues sua sponte by this court has found disfavor with our Supreme Court. In Wiegand v. Wiegand {Wiegand I), 226 Pa.Super. 278, 310 A.2d 426 (1973), this court addressed sua sponte the constitutionality of Sections 11 and 46 of the then Divorce Law, 23 P.S. §§ 11 and 46, which allowed women, but not men, to obtain divorces from bed and board, reasonable alimony pendente lite, counsel fees and costs, in light of the adoption of Article I, § 27 (the Equal Rights Amendment) to the Pennsylvania Constitution. We never considered the issues properly preserved for appeal, which were whether the trial court had erred in refusing husband’s counsel’s request to cross-examine the wife concerning disposition of her own estate and whether the trial court abused its discretion in awarding counsel fees of $5000.
*528The Supreme Court granted review, 461 Pa. 482, 337 A.2d 256 (1975). Justice Roberts, writing for a unanimous Court, clearly outlined the function of this court:
The Superior Court by sua sponte deciding the constitutional issue exceeded its proper appellate function of deciding controversies presented to it. The court thereby unnecessarily disturbed the processes of orderly judicial decisionmaking. Sua spdnte consideration of issues deprives counsel of the opportunity to brief and argue the issues and the court of the benefit of counsel’s advocacy.
Id., 461 Pa. at 485, 337 A.2d at 257.
Because the constitutionality of these provisions was never questioned by the parties either in the trial court or in their briefs in the Superior Court, we conclude that this issue was not properly before that court. We therefore reverse and remand to the Superior Court for consideration of the issues properly presented by the parties.
Id., 461 Pa. at 483-84, 337 A.2d at 257.
It must therefore be concluded that the Superior Court should not have considered an unpresented issue, but instead resolved the appeal on the basis of the issues raised by the parties.
The order of the Superior Court is reversed and the cause remanded to the Superior Court for consideration of the issues raised at trial and properly preserved for appellate review.
Id., 461 Pa. at 485, 337 A.2d at 257-58.
On remand, (Wiegand II), 242 Pa.Super. 170, 363 A.2d 1215 (1976), this Court, in properly addressing the issue of whether the trial court had erred in disallowing cross-examination of the wife regarding the disposition of her own estate, reversed on the basis of Judge Watkins’ dissent in Wiegand I, supra.
Therefore, as I see it, the posture which we erroneously adopted in Wiegand I is no different from the position the majority has taken in the instant case.
*529Pennsylvania Rule of Appellate Procedure 2573 provides for direct remand from our appellate courts to the trial court specified in the order of remand if, as is the case with the majority’s disposition here, a direction for further proceedings in the lower court is included in the order.
When an intervening change in a law relevant to the disposition of a matter on review before the U.S. Supreme Court occurs, the practice of that High Court, as provided for in § 2106 of the Judicial Code of the United States, 28 U.S.C.S. §§ 1 et seq. (Law.Coop.1977), is to remand the cause for appropriate action in deference to state courts on questions of state law. Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964); see also Watts v. Seward School Bd., 381 U.S. 126, 85 S.Ct. 1321, 14 L.Ed.2d 261 (1965); Missouri ex rel. Wabash R.R. v. Public Service Comm’n, 273 U.S. 126, 47 S.Ct. 811, 71 L.Ed. 575 (1927).
I take issue with the majority’s observation that we face a dilemma instantly. The issue concerning the effect of the new statute, 23 Pa.C.S.A. § 4343(b), upon the proceeding at bar is not before us, nor can it be in light of the language of the mandate of the U.S. Supreme Court vacating the judgment, supra 475 U.S. at —, 106 S.Ct. at 1340, and our consequent lack of jurisdiction to hear a matter not yet ruled upon by any lower tribunal of this Commonwealth. Our determination of the retrospective effect of the new statute is tantamount to the rendition of an advisory opinion. This would be presumptive of the lower court’s determination upon remand. Cf. Mt. Lebanon v. County Bd. of Elections, 470 Pa. 317, 368 A.2d 648 (1977) (a court cannot rule on constitutionality of legislation not yet adopted by the electorate); Pennsylvania R.R. v. Pub. Util. Co., 187 Pa.Super. 590, 146 A.2d 352 (1958).
I perceive no basis for us to become embroiled in a legal debate weighing the potential effects of 23 Pa.C.S.A. § 4343(b) at the present time. I agree with the result insofar as remand of the matter to the Court of Common Pleas of Bucks County is proper. However, in light of my *530foregoing exposition, I believe that the lower court should be directed to proceed consistent with the mandate issued by the U.S. Supreme Court, supra.
KELLY, J., joins in this concurring opinion.
. Section number references to Title 42 Pa.C.S.A. are to the Judicial Code, 42 Pa.C.S.A. §§ 101 et seq.
. 23 Pa.C.S.A. § 6704(e). The new statute, 23 Pa.C.S.A. 4343(b), now provides for commencement of paternity actions within 18 years of birth. |
9,645,518 | 2023-08-22 21:27:37.059664+00 | Kelly | null | KELLY, Judge,
concurring:
I join Judge Brosky’s concurring opinion. I heartily agree that this Court is not possessed of original jurisdiction to decide either the constitutionality of 42 Pa.C.S.A. Section 6704(e) or the retroactivity of 23 Pa.C.S.A. Section 4343(b). The trial court is the proper forum for the parties to address their arguments, and for the initial decision of law to be issued.
I write separately to note my concern that a child’s fundamental interest in obtaining a paternity determination, and financial support from both parents, should not be forever foreclosed because of a mother’s failure to seek a paternity determination within the applicable statute of limitations.
... [I]mposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).
The preceding statute, 42 Pa.C.S.A. § 6704, provided that in a suit to determine paternity, the moving party may be any person “to whom a duty of support is owing, or ... on behalf of a minor child, ... without appointment of a guardian ad litem ...” 42 Pa.C.S.A. § 6704, repealed 1985, Oct. 30, P.L. 264 No. 66 § 3. Thus, an illegitimate child, as one to whom a duty of support may be owing, had the right to bring suit on his or her own behalf, within six years of birth. However, few, if any, children of such tender years were in the position to bring suit on their own behalf by age six; consequently, their right to a determination of paternity and to support was dependent on the ability of the custodial parent to institute suit. I note that such a dependency often operated to leave a child without any effective *531opportunity to exercise his or her legal rights.1 Accordingly, the law operated to impose a disability on the child without regard to responsibility or wrongdoing. Weber, supra.
The child in this case may be denied years of paternal support due to her inability to bring suit on her own behalf by age six. Cases in this jurisdiction have so far failed to address the issue of the child’s interest in bringing suit, as distinguished from the mother’s interest. The child’s needs and rights must be viewed as separate from the mother’s, as there are numerous financial, social and emotional problems which “may inhibit a mother from filing a paternity suit on behalf of the child ...” Pickett v. Brown, 462 U.S. 1, 13, 103 S.Ct. 2199, 2206, 76 L.Ed.2d 372, 382 (1983).
Therefore, I remain concerned that even if the issues we send to the trial court for argument, consideration and disposition are decided in appellant’s favor, the vital issue of the illegitimate child’s individual right to seek paternity determination and support has been heretofore ignored.
. Recently, a Michigan Court has held a statute which denied a child the right to commence an action was in violation of the Equal Protection Clauses of both the U.S. and Michigan Constitutions. Spa-da v. Pauley, 149 Mich.App. 196, 385 N.W.2d 746 (1986). While Pennsylvania has allowed a child a right to commence suit, it nonetheless operated, in a practical sense, to deny the child effective exercise of that right, by reason of its six year statute of limitations. |
1,516,456 | 2013-10-30 06:32:55.034509+00 | Walls | null | 916 F. Supp. 423 (1996)
Mark WALDORF, Plaintiff,
v.
Edward J. SHUTA, et al., Defendant.
Civ. No. 84-3885 (WHW).
United States District Court, D. New Jersey.
February 26, 1996.
*424 *425 Warren W. Wilentz, Michael J. Barrett, Wilentz, Goldman & Spitzer, Woodbridge, New Jersey, for Plaintiff Mark Waldorf.
Richard A. Amdur, Amdur, Boyle, Maggs & McDermott, Eatontown, New Jersey, for Defendant Borough of Kenilworth.
George B. Henkel, Soriano, Henkel, Biehl, Matthews & Marinello, Bloomfield, New Jersey, for Defendant Edward J. Shuta.
Richard M. Tango, McDermott & McGee, Millburn, New Jersey, for Defendant Kenneth C. Spence.
Steven Backfisch, Whipple, Ross & Hirsh, P.A., Parsippany, New Jersey, for Defendant Joseph Rego.
Thomas V. Manahan, Satterlee, Stephens, Burke & Burke, Summit, New Jersey, for Certain Former Public Officials of Kennilworth.
OPINION
WALLS, District Judge.
In the latest trial in this case, a jury rendered a verdict of $3,086,500 for plaintiff Mark Waldorf ("Waldorf"), including $2,500,000 for pain and suffering and $586,500 for past and future lost earnings. Waldorf argues that these amounts were shockingly low and against the weight of the evidence. Hence, he moves for a new trial. In the alternative, Waldorf moves for additur.
I. Background
On November 17, 1982, Mark Waldorf was involved in a motor vehicle accident in Kenilworth, New Jersey. As a result, he became a C6-C7 quadriplegic. Waldorf then sued defendant Borough of Kenilworth (the "Borough") as well as numerous other parties.
In 1988, the case was tried to determine liability and damages. The jury awarded Waldorf $8,400,000. The Borough and one of its police officers appealed several issues. Waldorf appealed partial summary judgments in favor of the Borough on two issues. Our Court of Appeals affirmed in part, reversed in part, and remanded for a new trial.
On July 28, 1992, the Borough admitted liability in the case. On August 4, 1992, the magistrate judge incorporated this admission into a case management order.
In September 1992, the case was retried. This time, the jury awarded Waldorf $16,135,716, of which $15,000,000 was for pain and suffering. The defendants moved for a mistrial on the grounds that the jury had been inadvertently exposed to media coverage of a $30,000,000 verdict awarded in a similar case. The trial judge denied the motion. The Third Circuit vacated the verdict and remanded for a new trial.
In October 1995, the case was tried yet again, this time before me. Here, the jury awarded $3,086,500. Of this amount, $2,500,000 was for pain and suffering, $195,000 for past lost earnings and $391,500 for future lost earnings.
II. Standard for granting a motion for a new trial
A court may set aside a jury verdict as contrary to the preponderance of the evidence even though a judgment notwithstanding the verdict would not be justified. DePascale v. Penn R. Co., 180 F.2d 825 (3d Cir.1950). A motion for a new trial may be based, among other things, on the grounds that a verdict is against the weight of the evidence, that an award of damages is excessive or inadequate, or for other reasons the trial was not fair to the moving party. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 194, 85 L. Ed. 147 (1940). A court may grant a new trial if one is needed to prevent injustice or to correct a verdict that was against the weight of the evidence. American Bearing Co. v. Litton Indus., Inc., 729 F.2d 943, 948 (3d Cir.1984), cert. denied, 469 U.S. 854, 105 S. Ct. 178, 83 L. Ed. 2d 112 (1984).
The authority to grant a new trial rests within the sound discretion of the court, Allied Chemical Corp. v. Daiflon, Inc., 449 *426 U.S. 33, 36, 101 S. Ct. 188, 190-91, 66 L. Ed. 2d 193 (1980) (per curiam), but if the judge is not convinced that there has been a miscarriage of justice, then it is his or her duty to respect the jury's verdict. See Magee v. General Motors Corp., 213 F.2d 899, 900 (3d Cir.1954). For a court to disturb a jury verdict, the damages assessed by the jury must be so unreasonable as to offend the conscience of the Court. Murray v. Fairbanks Morse, 610 F.2d 149, 152 (3d Cir.1979).
III. Analysis
A. Motion for a new trial
Waldorf moves for a new trial on the ground that the verdict was shockingly low and against the weight of the evidence. In this regard, he first attacks the award of $2,500,000 for pain and suffering "on its face." Waldorf then directs his fire against the awards for past and future economic losses. These, he claims, were inadequate and contrary to the weight of the evidence because of "unfairly prejudicial evidence and erroneous court rulings...." Pl.'s Br., at 21. Specifically, he points to three events during the trial: 1) the Court's decision to permit Dennis Rizzo ("Rizzo") to testify; 2) the Borough's misuse of the testimony of James Pascuitti; and 3) the Borough's closing remarks regarding occupational therapy.
The Court now considers these arguments.
1. The award for pain and suffering
Waldorf claims that the $2,500,000 award for pain and suffering was inadequate. In support of this argument, he provides a short history of his injuries, medical and rehabilitative treatment, and related problems. He also cites three cases where plaintiffs won larger monetary judgments.
First, the Court disagrees that the $2,500,000 award for pain and suffering was, "on its face," against the weight of the evidence. While clearly Waldorf is a sympathetic figure, this is not a basis for the Court to substitute its judgment of the facts and the credibility of the witnesses for that of the jury.
Moreover, there is no evidence that the jury was swayed by any passion or prejudice that might have made it disregard the weight of the evidence. Nor is there any proof that the jury ignored the issue of pain and suffering or otherwise gave it short shrift. Indeed, the jury had ample opportunity to consider this question. Waldorf's counsel raised the issue of the plaintiff's pain and suffering repeatedly during the trial in their opening and closing arguments as well as in their examinations of him, Kristjan Ragnarsson ("Dr. Ragnarsson"), Joshua Feibusch, and others. Moreover, and importantly, the jury had the chance to observe Waldorf on the stand, in the courtroom seated at or next to his counsels' table, in a day-in-the-life-of video, and even performing a short demonstration of his exercise routine. After closing arguments, the jury deliberated approximately seven hours.
The Court finds no reason to second-guess the jury and its decision on the pain and suffering award. The Court determines that this decision was not, on its face, against the weight of the available evidence.
The Court turns now to the issue of the adequacy of the pain and suffering award. In this regard, the Third Circuit has noted that the examination of awards in other cases involving similar injuries serves as a helpful guide to whether a particular award is excessive. Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir.1989). Nonetheless, it has also suggested that courts remain mindful that each verdict revolves around a unique set of facts and circumstances. Id.
The first case Waldorf cites, Harrigan v. Ford Motor Co., 159 Mich.App. 776, 406 N.W.2d 917 (1987), involved an automobile accident victim who became a C6-C7 quadriplegic. He won $12,000,000. The second one, Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99 (Mo.1985), pertained to a 34-year-old C4 quadriplegic. She won $15,000,000. The third, Fleck v. KDI Sylvan Pools, Inc., 1991 WL 261659 (E.D.Pa. Dec. 6, 1991), aff'd in part, rev'd in part, and remanded, 981 F.2d 107 (3d Cir. 1992), represents a claim for a diving accident victim who became quadriplegic. He won $10,000,000.
These cases are not particularly apposite here. First, the damages in Harrigan and *427 Firestone include both pain and suffering and economic losses. Because Waldorf is only attacking the sufficiency of the pain and suffering award, it is misleading to compare the $2,500,000 figure he won to the $12,000,000 and $15,000,000 figures the plaintiffs received in these other two cases. In Firestone, for example, Firestone's expert estimated that her economic losses, including medical expenses to time of trial plus necessary future medical expenses and lost earnings, were about $7,000,000 (discounted to present value). If the jury relied on this figure, presumably its pain and suffering award was around $8,000,000.
Harrigan and Firestone are also misleading here because the $12,000,000 and $15,000,000 figures presumably include medical expenses, whereas in Waldorf's case, medical expenses were not ingredients of the verdict (a statute provides for all of his necessary medical expenses for life without limitation). In addition, the court in Fleck simply refers to a $10,000,000 verdict; it is unclear whether this includes economic damages, or if it is limited to pain and suffering.
Second, a closer look at the three cases relied upon by Waldorf indicates that they differ in significant respects from the one tried in this Court. In Harrigan, Harrigan, a truck driver, was involved in a truck accident, and became a C6-C7 quadriplegic. He was paralyzed from the collarbone down. According to the court, "[h]e has no function of the muscles of his lower extremities, his hands, his trunk or his abdomen. He has very limited control of some arm and shoulder muscles." Harrigan sued Ford in a products liability action. The jury found that he was 75 percent negligent, and he received a judgment for about $3,000,000.
In Firestone, Firestone was injured when a skywalk she was on collapsed. She became a C5 quadriplegic. The court noted that "she has no movement below the shoulder level with the exception of some use of her biceps enabling her to lift her arms but leaving her without control to lower them." Firestone, 693 S.W.2d at 109. Firestone suffered a horrible myriad of ills as a result of the accident. Among other things, she lost 80 percent of her blood, requiring massive blood transfusions, and broke both of her legs. She also developed respiratory distress syndrome, which required a tracheotomy and attachment to a respirator; had extreme difficulty in breathing as her airway passage frequently clogged with phlegm; had surgery to stabilize her neck; and suffered gastric hemorrhage, bladder infections and pneumonia. She spent three months in the hospital, 2.5 months of which was in intensive care. Most of the time she could not speak, and she had to take anti-seizure drugs which caused hallucinations. After leaving the hospital, she spent four months at a rehabilitation center.
In Fleck, Fleck was a young man who became a quadriplegic after diving into a three-and-one-half foot above-ground swimming pool and breaking his neck. The pool and its replacement pool liner did not have depth markers or "No Diving" signs. The jury, in comparing Fleck's negligence to that of the pool owner, found Fleck 64 percent negligent (although the court did not reduce the amount of Fleck's damages since the jury found he could also recover on a strict products liability theory).
Plainly, Waldorf's injuries are horrific and his medical treatment and rehabilitation involved a great deal of pain. They must not be minimized. However, the Court is not convinced, even in light of the cases he has cited, that the jury's pain and suffering award is inadequate on its face.
The Court's conclusion in this regard is reinforced by a survey of other cases involving facts similar to this one. The Court first considers cases decided by courts in this circuit. However, research only indicates one such case. In Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir.1980), a policeman who was rendered a quadriplegic in an automobile accident brought a products liability action against Chrysler. The jury awarded him $2,064,863 for his expenses, disability, and pain and suffering. Chrysler moved for judgment notwithstanding the verdict or, alternatively, for a new trial. The district court denied both motions. The Third Circuit affirmed.
*428 The Court now looks at cases from other jurisdictions. In Moore v. Subaru of America, 891 F.2d 1445 (10th Cir.1989), Moore, a rear-seat passenger in an automobile, was injured in an automobile accident. He became a quadriplegic. After Moore (and another) sued, the trial was bifurcated. The jury first found for Moore on the issue of liability and then, later, rendered a verdict for him in the amount of $1,500,000. On appeal, Moore argued that the verdict was inadequate. He claimed that since there was evidence that his past and future medical expenses would be over $4,700,000, the jury could not have considered any damages for pain and suffering. The Tenth Circuit upheld the award. It ruled that, "[a]bsent an award so grossly inadequate as to raise an irresistible inference that bias, prejudice, or passion invaded the trial or so as to shock the court's conscience, a jury's determination of damages will be upheld." Id. at 1451-52. The court noted that the jury may simply not have been convinced by the testimony of Moore's expert concerning medical expenses. It refused to alter the jury's verdict without further proof of jury passion or prejudice.
A trio of Louisiana cases is also relevant. The plaintiff in Bernard v. State, 563 So. 2d 282 (La.App.1990), for example, was injured when he was a passenger in an automobile owned by one person and driven by another, and became a C5-C6 quadriplegic. After a bench trial, the trial judge entered an award for pain and suffering. According to the appellate court, the trial court
stated that it had previously made an award in a C5-C6 level quadriplegic case. It compared the case of Jeffrey Bernard with the other case, it considered the video submitted by Jeffrey Bernard, and all other quadriplegic cases and determined that an award of $3,000,000 was reasonable.
at 287. The appellate court went on to note that
[i]n the context of an award for pain and suffering, extremely great leeway must be granted to the trial fact-finder, who has been afforded the best opportunity to observe first-hand the evidence showing plaintiff's anguish and agony and the prospect of continued pain and suffering.
Id. (citing Hatcher v. State, 467 So. 2d 584 (La.App.1985)) The court then affirmed the pain and suffering award.
In Hatcher v. State, 467 So. 2d 584, the plaintiff became a quadriplegic as a result of an automobile collision at an intersection. The jury awarded him a verdict of $1,250,000 for pain and suffering. On appeal, the court upheld the award.
Hardy v. State, 412 So. 2d 208 (La.App. 1982), involved a plaintiff with a life expectancy of 31.6 years who was rendered physically helpless from a brain stem injury sustained in an automobile accident. He was awarded $1,500,000 for pain, suffering, and disability. The court reduced this amount to $750,000.
In Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672 (Minn.1977), the Minnesota Supreme court upheld the trial court's award of $1,000,000 to 34-year old truck driver who suffered organic brain damage and was rendered a spastic quadriplegic in a motor vehicle accident.
For other cases, see Heitzenrater v. United States, 930 F.2d 33 (10th Cir.1991) (reducing $2,000,000 award for pain and suffering for psychiatric patient who fell seven stories and became quadriplegic to $1,000,000); Siverson v. United States, 710 F.2d 557 (9th Cir.1983) (upholding award of $1,000,000 for pain and suffering for man with arthritic spinal condition who fell and became a C6-C7 quadriplegic); Stratis v. Eastern Air Lines, Inc., 682 F.2d 406 (2d Cir.1982) (finding that award of $3,510,000 for future pain and suffering plus disability to seaman who was rendered quadriplegic as a result of airplane crash was excessive by at least one half); Griffin v. United States, 500 F.2d 1059 (3d Cir.1974) (affirming trial judge who awarded woman $1,200,000 for pain and suffering after she became quadriplegic from ingesting an oral live virus polio vaccine); Mesick v. State of New York, 118 A.D.2d 214, 504 N.Y.S.2d 279, leave denied, 68 N.Y.2d 611, 510 N.Y.S.2d 1025, 502 N.E.2d 1007 (1986) (reducing an award of $2,500,000 for pain and suffering to a young man rendered a quadriplegic to $1,000,000); Kunz v. Kunz, 135 Wis. 2d 542, 401 N.W.2d 27 (1986) (noting *429 that ski hill employee who was rendered quadriplegic received $1,750,000 for pain and suffering and disability in a separate lawsuit); and Chrisler v. Holiday Valley, Inc., 580 S.W.2d 309 (Mo.App.1979) (affirming a total award of $2,300,000 to plaintiff who was rendered a quadriplegic in diving accident).
Having completed this survey, the Court determines that the $2,500,000 pain and suffering award is not inadequate on its face. Nor is it contrary to the weight of the evidence. And it is certainly not so unreasonable as to be a miscarriage of justice or to offend the conscience of the Court. Therefore, the Court denies Waldorf's motion for a new trial on this ground.
2. The award for past and future economic losses
Waldorf claims that "notwithstanding the uncontroverted testimony that the clear majority of quadriplegics do not return to work, the jury found that plaintiff had failed to mitigate his damages, and the jury went on to drastically reduce plaintiff's past and future lost wage claims." Pl.'s Br. at 21. "[T]he likely answer for [this] erroneous conclusion," he avers, lies with the following: 1) the Court's decision to permit Rizzo to testify; 2) the Borough's misuse of Pascuitti's testimony; and 3) the Borough's closing remarks regarding occupational therapy. Id.
As a threshold matter, Waldorf's emphasis on the supposedly uncontradicted testimony that only 15 to 30 percent of quadriplegics are able to return to work is somewhat beside the point. This is so because the evidence is also undisputed that Waldorf can and should work. As Waldorf's own expert, Dr. Ragnarsson, responded:
Q. Do you believe ... that Mark Waldorf can work?
A. Yes....
Q. Do you believe that he should work?
A. I believe that it would be I believe that in general its [sic] good for all people to work. I think that it helps with physical and mental health, and I think in particular that people who have a physical disability, if they are fortunate to find a job and be active on it and successful, that they will fair [sic] better, not just socially and financially, but also health wise.
(T4.115:25-116:9). This testimony was also bolstered by Waldorf's vocational expert, Dr. David Stein, who opined that there was no physical or mental reason why Waldorf could not take college correspondence courses from home. See T4.145:3-9.
In other words, the supposed fact that most quadriplegics may not be able to return to work is relevant only in the absence of uncontroverted evidence that Waldorf can and should work. Because Waldorf's own doctor suggested that Waldorf could and should work (and could continue his education), it would be unreasonable for the jury not to consider whether Waldorf had failed to mitigate his damages.
To help it make this determination, the jury heard and saw evidence about Waldorf's physical capabilities and limitations. It listened to testimony about activities he had been involved in since the accident, about whether he had been employed or sought work during this period, and about what opportunities there were for people in his position. The jury also observed Waldorf during most of the trial and also had plenty of chance to evaluate his credibility and that of the other witnesses.
Evidently, after hearing and seeing all the evidence, the jury decided that Waldorf had failed to mitigate his damages. That is, the jury determined that it would ignore or discount the figures for past and future earnings offered by Waldorf's economic expert. And, as this Court clearly pointed out in its charge, the jury was free to do so. It was not bound by anything this or any other witness said. Instead, the jury had a duty to find the facts and judge the credibility of all the witnesses, including the plaintiff. To my mind, it did so.
a. The Court's decision to permit Rizzo to testify
Rizzo testified as an expert witness for the defense. Apparently, Waldorf argues that Rizzo lacked sufficient qualifications to testify as an expert witness in the field of vocational rehabilitation. He also argues *430 that some of Rizzo's testimony was outside his expertise and prejudicial.
On the stand, Rizzo stated that he is "an employment development specialist and business development specialist for the State of New Jersey." T6.15:20-21. He has a master's degree in sociology and social organization. From 1973 to 1976, he worked as a social worker, helping handicapped persons find employment. He also worked to help people who were being deinstitutionalized under a state program. In 1980, he started a non-profit corporation to assist people with disabilities to obtain community services. Later, he did social work with severely handicapped individuals. In 1990 of 1991, he began work with the Developmental Disabilities Counsel, starting as a contract manager. In the past three years or so, he has administered a non-profit disability loan fund pool which enables people with disabilities in New Jersey to start their own businesses.
In examining whether the Court properly qualified Rizzo as an expert, the Court looks first to Rule 702 of the Federal Rules of Evidence. This rule states that
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Fed.R.Evid. 702. Rule 702 has two requirements. First, a witness offered to testify to specialized knowledge must be an expert. This requirement is read liberally. See In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 741 (3d Cir.1994). A broad range of knowledge, skills, and training qualify an expert as such. Courts in this circuit "have eschewed imposing overly rigorous requirements of expertise and have been satisfied with more generalized qualifications." Id. A court may not exclude expert testimony just because an expert lacks the degree or training which the district court thinks most appropriate. Id.
In Hammond v. International Harvester Co., 691 F.2d 646, 652-53 (3d Cir.1982), for example, the court held that an engineer, whose only qualifications were sales experience in the field of automotive and agricultural equipment and teaching high school automobile repair, could still testify in a products liability action involving tractors. In Knight v. Otis Elevator Co., 596 F.2d 84, 87-88 (3d Cir.1979), the court held that an expert could testify that unguarded elevator buttons constituted a design defect despite the expert's lack of specific background in design and manufacture of elevators.
The Court finds that it properly qualified Rizzo as an expert on vocational rehabilitation. While his formal credentials may be a little thin, he certainly had sufficient substantive qualifications to be considered an expert under the liberal standard of Rule 702.
The second requirement of Rule 702 is that the expert must testify to specialized knowledge that will assist the trier of fact. The Supreme Court recently dealt with the implications of this requirement in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Essentially, the Court found that an expert's testimony is admissible so long as the process or technique she uses in formulating her opinion is reliable. Id. at ___, 113 S.Ct. at 2794-95. In addition, the proffered connection between the research to be presented must "fit" with the particular disputed factual issues in the case. Id. at ___, 113 S.Ct. at 2795-96.
To prove the reliability of Rizzo's opinions, the Borough did not need to demonstrate by a preponderance of evidence that his opinions were correct, but, rather, by a preponderance of evidence, that such opinions were reliable. Under Daubert, the Court should find an expert opinion reliable under Rule 702 if it is simply based on "good grounds," that is, if it is based on the methods and procedures of science. Even if a judge considers an expert's opinion to be incorrect, the judge may still believe that the expert has good grounds to hold the opinion. "The focus ... must be solely on principles and methodology, not on the conclusions they generate." Id. at ___, 113 S.Ct. at 2797.
In this regard, Waldorf specifically challenges two of Rizzo's opinions: 1) his chart of various jobs Waldorf might obtain, including *431 possible salary ranges and 2) his statements about rehabilitation technology in Florida. With regard to the chart, the information Rizzo presented seems clearly derived from his own experience in the field of vocational rehabilitation and from recognized sources with which Rizzo would be expected to be familiar. Rizzo has significant background in finding employment for quadriplegics and other handicapped individuals. He would be expected to know what types of jobs they could do and how much they might earn. In addition, Rizzo apparently relied on appropriate sources such as the New Jersey Job Listing Book to glean the information which he presented to the jury. While the Court found some of the data Rizzo presented faintly absurd, at least as applied to someone in Waldorf's situation, the Court finds that Rizzo had good grounds for his opinions. In other words, it determines that Rizzo's opinions are reliable and "fit" the contested facts at issue in the case.
With regard to the Florida rehabilitation technology, the Court finds this argument without merit. Rizzo clearly had good grounds for his opinion here.
In short, the Court determines that the Borough met the second requirement of Rule 702, as explained by Daubert. It finds that those parts of Rizzo's testimony to which Waldorf objects are clearly admissible. Therefore, the Court rejects Waldorf's argument that the decision to permit Rizzo to testify as an expert was erroneous and unfairly prejudicial. Accordingly, the motion for a new trial on this ground is denied.
b. The Borough's alleged misuse of Pascuitti's testimony
One of the Borough's experts, James Pascuitti, was a quadriplegic. Waldorf insists that the Borough repeatedly compared the life of Pascuitti to the plaintiff, thereby trying to cast Waldorf in an unflattering light. This, the plaintiff claims, confused the issues and unfairly prejudiced him.
Waldorf concedes that this Court admonished the Borough not to do this, but evidently maintains that the Borough still "took every opportunity to" do so. Pl.'s Br. at 28. Waldorf cites two examples: 1) the Borough asked Pascuitti on redirect about the wedding band he wore on his finger and 2) the Borough stated in its summation that Pascuitti enrolled in college the year after his injury and then completed college in four years.
With regard to the band, the following colloquy occurred:
Q. ... [W]hat is that ring you are wearing on your left hand
A. Wedding band.
The Court: What?
Mr. Amdur: Wedding band.
T6.170:4-8. After this exchange, the Court promptly issued a curative instruction. It said: "I ask the jury to disregard whether he wears a wedding band is immaterial to the case ... I specifically instruct you whether this witness wears a wedding bank in wholly irrelevant to the issues in this case." T6.170:14-20. While charging the jury, the Court again instructed the jury to disregard the reference to the band. It said "two things I told you disregard, there was a reference made by the plaintiff to his desiring to be ... a lawyer, and the other thing was the reference by the expert of the defendant's [sic] to his wedding band. Remember that? You're not to use either in deciding any issue in this case." T7.746-11. Given these instructions, it is difficult to see how the jury could have been confused about whether to consider the wedding band as evidence, or how Waldorf could have been prejudiced by this issue.
With regard to the Borough's reference to Pascuitti's college enrollment, Waldorf did not object to these statements at trial. It is well-settled that a party who fails to object to errors or to raise issues at trial waives the right to complain on appeal. Fleck, 981 F.2d at 116. Even if Waldorf had objected, though, the Court would still have permitted these statements. The Borough was simply restating information that had already been presented to the jury.
Hence, the Court denies Waldorf's motion for a new trial on this ground.
*432 c. The Borough's closing remarks regarding occupational therapy
Waldorf attests that during closing arguments, the Borough argued that he was entitled to free job training for the rest of his life, which it termed "occupational therapy." T8.24. Earlier in the trial, however, Dr. Ragnarsson had defined occupational therapy differently. He had noted that "occupational therapy" does not refer to "getting back into an occupation." T4.82-83. Rather, it refers to "extremities skills, like hand function and dexterity and training in what we call activities of daily living." Id. Waldorf argues that the Borough's misuse of the term "occupational therapy" misled the jury, leading them to give Waldorf a smaller amount of economic damages than it might otherwise.
The Borough essentially concedes that it misused the term "occupational therapy." However, it notes that there was evidence that Waldorf had certain free vocational services available to him both in Florida (where he now lives) and New Jersey. Hence, it argues that the "thrust" of its comment about free job training was correct.
While the Court agrees that the Borough's use of "occupational therapy" was sloppy and incorrect, it does not think that such use unduly prejudiced the jury or ignited its passions. See Smith v. National R.R. Passenger Corp., 856 F.2d 467, 470 (2d Cir.1988). Certainly, it was hardly shocking to the conscience or a miscarriage of justice. It does not warrant a new trial in this case.
B. Additur
While New Jersey and some other states permit additur in cases where the amount of damages is disputed, federal practice does not. As the Supreme Court has made clear, additur is prohibited in the federal courts by the Seventh Amendment's guarantee of a jury trial. Dimick v. Schiedt, 293 U.S. 474, 486-87, 55 S. Ct. 296, 301, 79 L. Ed. 603 (1935).
To avoid this constitutional impediment, Waldorf seeks to waive his Seventh Amendment right to a jury trial, a right he originally exercised when he filed his complaint. The defendants, though, do not consent to such waiver. See Fed.R.Civ.P. 38(d). And permitting additur would impair the defendants' right to a jury trial. See Estes v. Southern Pac. Trans. Co., 598 F.2d 1195, 1199 (10th Cir.1979). The attempted "waiver" by the plaintiff is an exercise in practical futility.
The motion for additur must be denied.
IV. Conclusion
For the foregoing reasons, the Court finds that the jury's verdict of $3,086,500, including $2,500,000 for pain and suffering and $586,500 for past and future lost earnings, was not inadequate or against the weight of the evidence. Hence, the Court denies Waldorf's motion for a new trial. In addition, the Court determines that additur will not be permitted here. Therefore, it denies Waldorf's motion in the alternative for additur.
SO ORDERED. |
9,645,519 | 2023-08-22 21:27:39.55752+00 | Tamilia | null | TAMILIA, Judge:
This appeal was taken by the former wife from the dismissal of an equity complaint to enforce a separation agreement.
Appellant alleges the agreement was not incorporated into the divorce decree and concerns matters agreed upon other than support of the children as the support matters were subject to court order. The court granted appellee/husband’s preliminary objection, agreeing with the appellee the issues were being considered in a pending support proceeding.
The age old issue presented here is whether matters subject to a separation agreement, and overlapping with issues involving a support order, should be heard in different branches of the court. Judge John Meade determined that the issues presented by a complaint in equity were more properly issues of law to be determined in an action in assumpsit. Further, he indicated that since issues raised in the equity complaint, relating to college expenses, medical expenses and arrearages, were the same issues subject to *68disposition in a concurrent proceeding before Judge Rosenwald in the Family Court, the equity action should be consolidated with the support action. He failed, however, to produce an Order to that effect and simply granted the preliminary objection and dismissed the complaint.
While no Opinion was filed by the trial court, nor did we receive a brief from appellee, the issues are clearly raised by appellant/wife and thoroughly discussed on the record during hearing on the preliminary objection.
While the agreement provides for its enforcement in equity, parties cannot confer jurisdiction by their own action. The proper remedy to enforce a separation agreement is an action in assumpsit. In Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985), we said:
... [Agreements, whether they be separation, antenuptial, postnuptial or support, are instruments of contract in which the court has no involvement. None of the elements of due process, court review and appealability are involved in agreements such as these, which are private undertakings between two parties, each having responded to the “give and take” of negotiations and bargained consideration. As such, they are governed by the law of contracts. Steuart v. McChesney, [498 Pa. 45, 444 A.2d 659 (1982) ], Brown v. Hall, [495 Pa. 635, 435 A.2d 859 (1981) ], Litwack v. Litwack, [289 Pa.Super. 405, 433 A.2d 514 (1981)], VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). This means, of course, they are not modifiable unilaterally; a court cannot remake or modify such an agreement as it would be the taking of property without due process of law. Also, such an agreement is solely enforceable by an action in assumpsit, (citations omitted)____
Id. 347 Pa.Superior Ct. at 300, 500 A.2d at 843.
... Thus, it is apparent there are three types of agreements possible in Pennsylvania law: 1) separation agreements unrelated to any court involvement, 2) support agreements inherent in the support procedures and resulting in a court order incorporating an agreement (Pa. *69R.C.P. 1910.11, 1910.12), and 3) voluntary alimony agreements, entered into prior to the divorce but incorporated in the divorce decree. (See 23 P.S. § 401, 502, 503 and Pa.R.C.P. 1920.31, allowing support proceedings, and Pa. R.C.P. 1920.52, which follow rules as to civil actions and not support).
The effect is that a separation contract is not enforceable pursuant to court procedures under the support rules or the Divorce Code; support agreement orders are enforceable pursuant to the support rules, and alimony agreements incorporated in a decree are enforceable through the Divorce Code. This includes in personam actions for support under 48 P.S. § 132, which are enforced by proceedings pursuant to § 1910.20-1910.23, as with other civil support actions. There is one exception in that any order for support, against either husband or wife, can be enforced by an in rem proceeding pursuant to 48 P.S. § 133, 136-141. See Stein v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979).
Id. 347 Pa.Superior Ct. at 305, 500 A.2d at 845.
If the action had properly been captioned in assumpsit, the overlapping jurisdiction between the matters complained of and the proceeding in the Family Court Division on the same issue would require, for the sake of judicial economy and to avoid conflicting and unreasonable orders, that they be consolidated in one court to be determined by one judge. Since we do not have before us the record in the support proceeding, we cannot determine if there is an overlap which would require an election of remedies.
We have experienced similar, almost insoluable, difficulties with other facets of family law. See Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (1986) (partition and equitable distribution to be consolidated); Gantz v. Gantz, 338 Pa.Super. 528, 488 A.2d 17 (1985) (bifurcation in divorce and property distribution); Hollman, supra (jurisdiction in separation agreements). The legislative intent, derived from Article Y of the Pennsylvania Constitution, establishing divisions of the court through which jurisdic*70tion shall be exercised, as reflected by the Divorce Code of 1980, 23 P.S. 101 et seq. and Pa.R.C.P. 1910 et seq., requires that we consolidate such matters whenever possible. While the Divorce Code speaks of the jurisdiction for matters relating to divorce, custody and property rights lying in the Court of Common Pleas, § 101, § 301 and § 1910.4 of Pa.R.C.P. require all actions of support to be brought in the Domestic Relations Section. The Constitution and accompanying schedule to the Judicial Article assigns that jurisdiction to the Family Court Divisions of the Court of Common Pleas of Philadelphia provides:
Sched. Art. 5
§ 16
(q) The court of common pleas through the family court division of the court of common pleas shall exercise jurisdiction in the following matters:
(i) Domestic Relations: desertion or nonsupport of wives, children and indigent parents, including children born out of wedlock; proceedings for custody of children; divorce and annulment and property matters relating thereto.
The Family Court Division has all the powers that can be exercised by a court of common pleas. The need to have all matters relating to family problems directed to this specialized division is obvious, particularly when there are different claims relating to the same issue, as is the case here. Obviously, the Family Division judge is equally competent to decide the action in assumpsit, if properly brought, relating to support, medical expenses and education, founded on contract law under a separation agreement, as he is to determine the same matters under statutory and common law, pursuant to a complaint in support.1
*71The request of the court below, by letter dated March 14, 1986, to have the case remanded to the court below for further consideration, is denied, as consolidation of the equity (assumpsit) action with the support action pending in the family court, will provide an adequate review of all matters complained of. We are, however, remanding the case to the court below with directions that the complaint be transferred to Judge Rosenwald to be considered on its merits as an assumpsit matter with appropriate consideration being given to the effects, if any, of the pending support action.
Case remanded for further consideration consistent with this Opinion.
Jurisdiction relinquished.
WIEAND, J., files concurring and dissenting opinion.
. While, in Hollman, supra, we have limited our discussion to matters which sound in assumpsit, we do not mean to limit the application of our findings to that form of action. Many matters subject to separation agreements and domestic relations court proceedings are based in equity, as indicated here, and they are equally cognizable in Family Court Division as opposed to Civil Division proceedings. |
9,645,520 | 2023-08-22 21:27:39.563316+00 | Wieand | null | WIEAND, Judge,
concurring and dissenting:
Joni Magee filed a complaint in equity seeking to enforce against Richard Magee the terms and provisions of a separation agreement. Richard Magee, the defendant, filed preliminary objections raising questions of jurisdiction in which he alleged that the plaintiff had an adequate remedy at law. In response to these preliminary objections, the trial court dismissed the complaint. The plaintiff appealed.
The trial court’s order was clearly erroneous and must be reversed.1 Pa.R.C.P. 1509(c) provides as follows:
(c) The objection of the existence of a full, complete and adequate nonstatutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived.
This rule is controlling of the issue now before us. In accordance therewith, I would reverse the order dismissing the complaint and remand for further proceedings.
*72Having reached this conclusion, I find it unnecessary— and also inadvisable — to establish a general rule, as the majority appears to do, that “[t]he proper remedy to enforce a separation agreement is an action in assumpsit.” (Opinion at p. 68). In some instances a money judgment may be an entirely inadequate remedy. Similarly, I do not join the majority’s direction to the trial court to order consolidation of the assumpsit action with the support action pending in the Family Court Division. Consolidation of actions is discretionary with the trial court, see Pa.R.C.P. 213(a), and I would not attempt to advise the court in advance with respect to the manner in which that discretion should be exercised.
. Even the trial judge has suggested that the case should be remanded for further consideration. |
1,516,463 | 2013-10-30 06:32:55.127926+00 | Robertson | null | 726 S.W.2d 742 (1987)
STATE of Missouri, Respondent,
v.
Thomas O'CONNELL, Appellant.
No. 68668.
Supreme Court of Missouri, En Banc.
March 17, 1987.
Rehearing Denied April 14, 1987.
*743 Donald L. Wolff, Clayton, for appellant.
William L. Webster, Atty. Gen., Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for respondent.
ROBERTSON, Judge.
Appellant, Thomas F. O'Connell, was convicted in a jury-waived trial, Cause No. 491084, of one count of stealing $150 or more by deceit in violation of § 570.030, RSMo Cum.Supp.1984, for which he received a two-year sentence. Subsequently, appellant waived jury trials in three additional causes, Nos. 493426, 497928, and 511542, involving a total of 28 counts of stealing by deceit from other victims.[1] The *744 parties stipulated that the evidence for these causes would be the same as that presented to the court in Cause No. 491084. Appellant was found guilty on all counts and sentenced to two years confinement in each of the three causes. His appeal from this and the first judgment and sentence were consolidated for disposition in the Court of Appeals for the Eastern District.
On appeal, appellant contends, among other things, that the information charging him with stealing by deceit was insufficient because it failed to state all of the essential facts necessary to comprise the offense. The Eastern District noted a conflict between its case, State v. Doering, 708 S.W.2d 792 (Mo.App.1986), and the Southern District's State v. Voyles, 691 S.W.2d 452 (Mo.App.1985). Based on this conflict, the Eastern District transferred the case to us. Rule 83.02. We affirm the judgment in Cause No. 491084 and dismiss and remand Cause Nos. 493426, 497928, and 511542 with directions.
I.
In two of his four points on appeal, appellant contends that the trial court erred in overruling his motion for judgment of acquittal for the reason that the State failed to make a submissible case of stealing by deceit.
When a criminal defendant waives trial by jury, the findings of the court have the force and effect of a jury verdict. Rule 27.02(b); State v. Ruff, 618 S.W.2d 722, 723 (Mo.App.1981). On review, we accept as true the evidence supporting the verdict, together with all reasonable inferences therefrom and ignore evidence and inferences to the contrary. State v. Williams, 623 S.W.2d 552, 553 (Mo.1981); Ruff, 618 S.W.2d at 723. Under this standard, we conclude that the State made a submissible case.
The evidence presented in Cause No. 491084 showed the following: On September 20, 1982, appellant purchased a 1980 brown two-door Ford Mustang Ghia from Norbert Ruch, co-owner of Midwest South County Auto Sales in St. Louis. At the time of the sale, a title and odometer statement were prepared. Mr. Ruch testified that he was well acquainted with appellant from previous business transactions, and that appellant signed the odometer statement in his presence. The odometer statement listed the Mustang's mileage as 58,750.
On December 16, 1982, Mr. Jack Carlson, responding to a newspaper advertisement, visited appellant's residence in Kirkwood, Missouri, to look at the 1980 Ford Mustang Ghia. Appellant was not home, and Carlson spoke to Mrs. O'Connell, who told him that the Mustang had belonged to her father in Indiana and was obtained from an estate sale after his death. Shortly thereafter, appellant arrived in the Mustang. The car bore Indiana license plates. Carlson test drove the Mustang for 10-15 minutes and noticed that the odometer registered approximately 31,000 miles. After discussing the price, Carlson paid appellant $4,575 for the car and drove it off. Carlson experienced trouble with the Mustang immediately and subsequently spent approximately $1,000 on repairs.
The State introduced certified copies of Indiana and Missouri title histories of the Mustang.[2] The Indiana history included an application for certificate of title in Indiana, showing the applicant's name to be Tom O'Connell, with a Carmel, Indiana address; the lien owner to be Tom O'Connell of Kirkwood, Missouri; and the seller to be South County Auto of St. Louis. The application indicated that the Mustang had been inspected by a Patrolman Dierdorf, of the Terre Haute, Indiana Police Department on September 20, 1982. Patrolman Dierdorf testified, however, that he never inspected the Mustang, that he did not sign a certificate of title for appellant, and that the signature on the title application was *745 not his. The odometer reading was stated on the application as 31,543. The Indiana history was accompanied by a Reassignment by Registered Dealer form, showing that on the date of sale from South County Auto, the odometer reading was listed as 58,713 miles.
The Missouri title history showed that the Indiana certificate of title was assigned from a Tom O'Connell to a Jack R. and/or Virginia Carlson on December 16, 1982. The odometer reading on the assignment papers was 31,543 miles.
Appellant argues that the evidence was insufficient in that the State failed to prove: 1) that appellant knew or should have known that the mileage on the Mustang was incorrect; 2) that appellant made a representation to Jack Carlson concerning the mileage; and 3) that appellant appropriated currency of $150 or more as a result of any misrepresentation.
Appellant relied on the testimony of Gordon Pleus, Administrative Systems Manager for the Federal Bureau of Prisons at the U.S. Penitentiary in Terre Haute, Indiana, to show that appellant was in federal custody from June 30, 1982, until November 18, 1982, and therefore could not have been in St. Louis to purchase the Mustang from Norbert Ruch, to sign the odometer statement, or to make out the application for title in Indiana on September 20, 1982.
Accepting the State's evidence as true, appellant's signature on the odometer statement raises a strong inference that he knew the actual mileage of the Mustang was 58,750. As to the Indiana title application, Patrolman Dierdorf testified that if his signature for an inspection was forged, an Indiana certificate of title could be obtained through the mail without ever transferring the car itself to Indiana. This evidence indicates that whether appellant was actually in federal custody or not is irrelevant to the fact that he signed an application for and received an Indiana certificate of title showing an odometer reading of 31,543 miles for the same car he had just purchased which he knew registered 58,750 miles. Further, the evidence showed that appellant was present when Carlson purchased the Mustang, and that the assignment papers signed by appellant indicated the mileage to be 31,543. The knowledge element was established.
Appellant contends that the evidence was insufficient to prove that he made a representation to Jack Carlson concerning the mileage on the Mustang because again, he did not know that the mileage had been altered, and because he did not discuss mileage with Carlson. We have found the evidence sufficient to prove appellant's knowledge. Jack Carlson testified that while he did not remember whether the advertisement indicated the mileage on the Mustang, he did remember discussing the subject while at appellant's residence. Even assuming that appellant did not directly state to Carlson that the car had only 31,000 miles on it, he did not reveal to him that the car actually registered 58,750 miles when he bought it from South County Auto months before. He did, in fact, sell a vehicle registering a mileage that was incorrect. The evidence is sufficient to prove that a representation was made.
On the issue of the amount appropriated by appellant from Carlson, the State relied on testimony from Carlson, Ruch, and Detective Donald Hearst. Ruch and Hearst were both experienced in determining the value of used cars. Ruch testified that a Mustang Ghia would be worth $1,000 less with 58,000 miles as opposed to 31,000. Detective Hearst also indicated $1,000 as the price difference. Accepting this evidence as true, the court could find that appellant appropriated at least $150 from Carlson.
II.
Appellant next challenges the sufficiency of the State's information charging him with stealing by deceit under § 570.030.
The information upon which appellant was tried[3] read as follows:
*746 The Grand Jurors of the County of St. Louis, State of Missouri, charges [sic] that the defendant in violation of Section 570.030, R.S.Mo., acting with others, committed the class C Felony of stealing, punishable upon conviction under Sections 558.011.1(5) and 560.016, RSMo in that, on or about December 16, 1982, at approximately 12:00 noon, at 447 Windsor Spring, Kirkwood, in the County of St. Louis, State of Missouri, the defendant appropriated U.S. Currency, which said property was in the possession of Jack Carlson, and defendant appropriated such property from Jack Carlson and with the purpose to deprive victim thereof by deceit, to wit: in that the defendant and another made a material representation to said victim, to wit: that an automobile had mileage of 31,543 when in fact this was not true, and in reliance thereon, said victim purchased said automobile from defendant and others.
Appellant contends that the information is inadequate to charge him with stealing by deceit under § 570.030 because it contains no specific allegation that he did not believe the mileage shown on the odometer to be true,[4] and thus failed to state all the essential facts necessary to comprise the offense. Appellant relies on State v. Kesterson, 403 S.W.2d 606 (Mo.1966), to support his argument. The issue presented to this Court on transfer is whether the Kesterson requirement that all elements of "deceit" be specifically charged is still controlling in light of the fact that the term "deceit" is now statutorily defined. We hold that it is not.
The purpose of an indictment or information is to inform the accused of charges against him so that he may prepare an adequate defense and to prevent retrial on the same charges in case of an acquittal. State v. Gilmore, 650 S.W.2d 627, 628 (Mo. banc 1983); State v. Lewis, 642 S.W.2d 627, 630 (Mo. banc 1982). The test for sufficiency of an indictment is "whether it contains all essential elements of the offense as set out in the statute [creating the offense] and clearly apprises defendant of facts constituting the offense." State v. Brown, 660 S.W.2d 694, 698 (Mo. banc 1983). As a general rule, it is enough "to charge the offense in the language of the statute alleged to be violated if the statute states all the constituent elements of the offense." Kesterson, 403 S.W.2d at 609. If, however, the statute uses generic terms in defining the offense, it is necessary to recite sufficiently the conduct constituting the offense in order to accomplish the purpose of the indictment or information. Kesterson, 403 S.W.2d at 611. A term is generally said to be generic when it does not proscribe specific conduct by which the offense is perpetrated. State v. Ladner, 613 S.W.2d 951 (Mo.App.1981).
In Kesterson, the challenged information charged only that "[defendant] did then and there unlawfully, feloniously, and intentionally steal, by means of deceit, certain property ..." 403 S.W.2d at 607. At the time, the term "deceit," used in the statute creating the offense "theft by deceit"[5] was not defined anywhere. An allegation of "deceit" alone therefore did not apprise the defendant of the means by which the theft was accomplished. Thus, "deceit" was a generic term, and independent specification of the conduct constituting the offense was required. Kesterson, 403 S.W.2d at 611.
In 1977, the Missouri General Assembly adopted a statutory definition of "deceit" at § 570.010(6), RSMo 1986 (effective January 1, 1979). Now, when a defendant is charged with "stealing by deceit" under § 570.030, application of the statutory definition immediately informs him that he is specifically charged with "purposely making a representation which is false and which the actor does not believe is true and upon which the victim *747 relies, as to a matter of fact, law, value, intention or other state of mind." § 570.010(6). We find that when accompanied by specification of the alleged representation made by the defendant, the term "deceit" is not generic, but proscribes specific conduct by which the offense is perpetrated. A requirement that the indictment or information specifically allege all the elements of deceit when those elements are already specified by statute is redundant. By reference to § 570.010(6), a defendant charged with stealing by deceit under § 570.030 is sufficiently notified of the particulars of the offense to enable him to prepare an adequate defense and to plead former jeopardy in the case of an acquittal. Accordingly, we find that the information in this case was sufficient.[6]
III.
Finally, appellant argues that the trial court erred in overruling his motion to suppress evidence obtained by a warrantless search and seizure.
In reviewing the trial court's ruling on the motion to suppress, our inquiry is limited to whether the court's decision is supported by substantial evidence. State v. Johns, 679 S.W.2d 253, 261 (Mo. banc 1984), cert. denied 470 U.S. 1034, 105 S. Ct. 1413, 84 L. Ed. 2d 796 (1985).
The evidence adduced at the hearing on the motion to suppress showed the following: On August 19, 1983, appellant reported the theft of property from his rented storage lockers to the St. Louis County Police Department. On August 24, 1983, police officers recovered the property from a nearby storage locker not rented to appellant. A Mr. Moore, the man in whose name the locker was rented, provided police with a key and consented to the search; his son was present as police removed the contents of the locker.
The locker contained 119 miscellaneous items, including furniture, household goods, clothing and papers. Most of the items were boxed; some of the boxes were sealed, some were not. Detective Schunzel, one of the investigating officers, testified that because the boxes were not marked to indicate their content or ownership, there was no way of knowing at the time which property, or how much of the property in the locker belonged to appellant. Therefore, following standard department procedure, the police officers seized all the property in the locker and inventoried it prior to transporting the property to another location.
Three unmarked, unsealed boxes inspected during the inventory procedure were found to contain license plates, title applications, records of sales and other papers relating to automobile sales. Detective Schunzel testified that he was aware at the time of the inventory that appellant was under investigation for an alleged odometer rollback scheme. The three boxes were therefore taken to the police station and examined more thoroughly. Records recovered from the boxes were subsequently introduced into evidence at appellant's trial.
The Fourth Amendment and Mo. Const. art. I, § 15, prohibit only unreasonable searches and seizures. State v. Collett, 542 S.W.2d 783, 787 (Mo. banc 1976); State v. Mills, 671 S.W.2d 437, 440 (Mo.App. 1984). Whether a search and seizure is unreasonable within the meaning of the Fourth Amendment is not determined according to a rigid standard, but depends on the facts and circumstances of each case. State v. Gibeson, 614 S.W.2d 14, 15 (Mo. App.1981); State v. Oberg, 602 S.W.2d 948, 950 (Mo.App.1980). We find that if indeed the inventory procedure in this case may be *748 characterized as a "search" at all,[7] the intrusion was constitutionally permissible.
Inventory searches conducted pursuant to standard police procedure have been upheld in other contexts for reasons including protection of the owners's property and protection of the police against claims of lost property. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S. Ct. 3092, 3097, 49 L. Ed. 2d 1000 (1976) (impounded automobile); State v. Friend, 711 S.W.2d 508, 510 (Mo. banc 1986) (listing of an arrestee's effects); State v. Valentine, 584 S.W.2d 92, 98 (Mo. banc 1979) (towed automobile); State v. Ferguson, 678 S.W.2d 873, 877 (Mo.App.1984) (impounded vehicle).
It is not unreasonable, and thus not a violation of the Fourth Amendment, for the police to protect themselves and the owners of the storage facility against false claims of theft. Colorado v. Bertine, ___ U.S. ___, ___, 107 S. Ct. 738, 742, 93 L. Ed. 2d 739 (1987). The same justifications exist where police locate property believed to be stolen. In this case, the police officers were lawfully on the premises by consent of Mr. Moore. While engaged in an unobjectionable identification and caretaking function, they discovered the incriminating records. The scope of their search cannot be found unreasonable by the fact that the unmarked boxes were opened for inventory of the contents. Without so doing, the police would have been remiss in their duty with regard to caretaking and location of the property appellant himself reported to be stolen.
Appellant's claim that the inventory search was a pretext for investigation is without merit. Detective Schunzel testified that the department routinely inventories recovered property and that inventory sheets were properly prepared. While Schunzel admitted that he was aware that appellant was under investigation for a rollback scheme, the mere suspicion that contraband or other evidence will be found does not invalidate an otherwise valid inventory search conducted pursuant to proper police procedure. Friend, 711 S.W.2d at 511. We find no constitutional violation under the circumstances presented here, and hold that the evidence was properly admitted.
IV.
This case involves consolidated appeals. The trial court entered a finding of guilt on one count in Cause No. 491084 and sentenced appellant to two years on that count. In Cause Nos. 493426, 497928, and 511542, the trial court sentenced appellant to two years on each of these causes, entering no judgment or sentence on any of the counts contained in the separate causes. The trial court approved a stipulation[8] which reads in pertinent part:
3. Based upon the evidence presented to this Court in Cause number 491084, the Court finds defendant guilty of the charge of stealing over $150 by deceit, a Class C felony, in Cause No. 493426, 497928, and 511542.
4. Defendant is sentenced to serve a term of imprisonment of two (2) years in the custody of the Department of Corrections & Human Resources for the offense of stealing over $150 by deceit, a Class C felony, in Cause No. 493426, is further sentenced to a term of two (2) years imprisonment in the custody of the Department of Corrections & Human Resources for the offense of stealing over $150 by deceit, a Class C felony, in Cause No. 497928, and is further sentenced to serve a term of imprisonment of two (2) years in the custody of the Department of Corrections & Human Resources for *749 the offense of stealing over $150 by deceit, a Class C felony, in Cause No. 511542, said sentences to be served consecutive to the sentence imposed in Cause No. 491048 and consecutive for each sentence imposed herein.
A trial court must assess separate punishments for each offense charged. State v. Bursby, 395 S.W.2d 155, 161 (Mo. 1965); Ex parte Morgan, 280 S.W. 1038, 1039 (Mo.1926). Here, the trial court did not assess a sentence for each of the 28 counts contained in Cause Nos. 493426, 497928, and 511542. Nor from the record does it appear that trial court entered a judgment or sentence in Cause Nos. 493426, 497928, and 511542 as required by Rule 29.07. We must, therefore, dismiss these three causes on appeal, there being no final judgment from which appeal can be taken, and remand them to the trial court with directions to sentence the appellant on each count pursuant to the findings of guilt previously made. State v. Chase, 415 S.W.2d 731, 732 (Mo.1967); State v. Taylor, 324 S.W.2d 725, 727 (Mo.1959); State v. Gonterman, 588 S.W.2d 754, 755-56 (Mo.App.1979).
V.
The judgment of the trial court in Cause No. 491084 is affirmed. The appeal in Cause Nos. 493426, 497928, and 511542 is dismissed and the causes remanded with directions.
All concur.
NOTES
[1] In Cause No. 493426, appellant was charged with eight counts of stealing by deceit; in Cause No. 497928, he was charged with seven counts of stealing by deceit; in Cause No. 511542, he was charged with thirteen counts of stealing by deceit.
[2] Both the Indiana and Missouri title histories referred to a 1980 Ford, vehicle identification number OF04A113258. There is no dispute that the same automobile is referred to in both title histories.
[3] Following original indictment, appellant filed a motion for a bill of particulars; the State amended the information by interlineation. Appellant was tried on the resulting charge.
[4] The indictments in causes 493426, 497928, and 511542 additionally failed to allege that the mileage on the vehicles was falsely stated.
[5] § 560.165, currently § 570.030.1.
[6] MACH-CR 24.02.2 (1979) provides that a "concise statement of the means employed and essential elements of `deceit' ... as defined in § 570.010" must be included in an information charging stealing by deceit. In this regard, by failing to allege that appellant did not believe the odometer reading to be true, the information did not fully comply with MACH-CR 24.02.2. However, the use of pattern charges is not mandatory, but only recommended. Failure to follow a MACH-CR form does not alone render an information or indictment defective. State v. Michell, 611 S.W.2d 223, 225-26 (Mo. banc 1981).
[7] See South Dakota v. Opperman, 428 U.S. 364, 370 n. 6, 96 S. Ct. 3092, 3097 n. 6, 49 L. Ed. 2d 1000 (1976); State v. Williams, 654 S.W.2d 238, 241 (Mo.App.1983).
[8] The parties appear to have intended that the trial court find appellant guilty on each count of each cause, the sentences on the counts to run concurrently within each cause, and the sentences imposed under each cause to run consecutively, for a total of eight years. Obviously, the judgment entered by the trial court failed to achieve this result. |
9,645,521 | 2023-08-22 21:27:42.368905+00 | Terry | null | TERRY, Associate Judge:
Appellant appeals from his conviction of rape, in violation of D.C. Code § 22-2801 (1981). On appeal he contends that the trial court erred in refusing to admit into evidence portions of a written statement allegedly made by the victim to a defense investigator which contained comments about the victim’s prior sexual relations with men; in prohibiting cross-examination of the victim about her prior sexual conduct with other men; and in refusing to admit a medical examination form describing the physical condition of the victim shortly after the rape. We reject all of appellant’s arguments and affirm his conviction.
I
In May 1983 Mary Smith (not her real name) returned to her childhood home on Madison Street, N.W., to visit her aunt for a few days and to celebrate her nineteenth birthday. On the evening of May 17, the day after her birthday, her aunt sent her on an errand to a nearby store at Colorado Avenue and Kennedy Street. As she walked in that direction, Smith saw appellant standing on the corner in front of the store. She recognized him at once, for she had known him since childhood. They had lived only a few blocks apart, had attended the same schools, and had often played together. She had not seen him, however, since she moved away from the neighborhood a few months earlier, so she stopped to chat. After a brief conversation, the two of them agreed to smoke some marijuana together. They went to appellant’s house a block away, at Colorado Avenue and Longfellow Street, where they sat on the porch, smoked one joint, and talked about old times. Smith denied that any discussion of sex occurred at this point. While they were there, appellant’s father came outside and spoke with both of them.
Smith then walked back to her aunt’s home to get a warmer jacket before proceeding downtown to a bar. Appellant accompanied her back to the house, riding alongside her on a bicycle. She went inside to get the jacket, and when she came out, appellant was still there. The two of them walked to the intersection of 14th and Longfellow Streets, where appellant left her and rode east on Longfellow Street on his bicycle. Smith continued down 14th Street, intending to walk until she could catch a bus.
After walking for about six blocks, Smith encountered appellant again in front of a building known in the neighborhood as “the mansion.” He rode up on his bicycle and placed his arm around her, saying that he wanted a kiss. She told him she was not interested because she “like[d] the same thing he like[d],” meaning women. At that appellant became angry. He grabbed Smith and pushed her behind some bushes bordering the grounds of the mansion. Then he threw her to the ground, fell on top of her, and began to pull her clothes off. She fought back at first, but stopped when appellant threatened to kill her and punched her several times. Appellant pulled Smith’s underpants and jeans down to her ankles, totally removing both garments from one leg. He inserted his penis into her vagina, saying that he was “going to bring the gayness out of [her], [that she] *1250shouldn’t be this way,” and calling her a “gay bitch” and a lesbian. Smith started squirming to get closer to the sidewalk in the hope that someone might see her, but evidently no one did. After appellant completed the sex act, he began to choke her with his hands. She responded by screaming and struggling, trying to stick her fingers into his eyes. Finally she broke away and ran out into 14th Street, shouting for help and yelling that she had been raped. Her jeans were still down at her ankles. Several ears drove past without stopping, but soon a taxicab stopped and picked her up.1
The cab driver took Smith to her aunt’s home on Madison Street. During the assault, Smith’s house keys had fallen from her pocket, so she had to bang on the door to get in. As soon as her aunt let her inside, Smith fell to the floor, screaming that she had been raped. Another relative who lived in the house testified that Smith’s jeans were “partly on and partly off” and that she was wearing only one sneaker. Her aunt immediately called the police.
Metropolitan Police Officers Mark Gilkey and Monroe Reid arrived within minutes. Officer Gilkey testified that even before he went inside the house, he “could hear a person that was crying and emotional — terribly emotional state of mind.” Once inside, he found Smith lying on the living room floor, partially undressed and crying, with “a couple of bruises underneath the eyes.” Smith told the officers that a person she had gone to school with, Troy Meaders, had raped her and that Meaders lived on Longfellow Street. She said that he had been wearing a brown cap, a black leather jacket, and blue jeans. After some detectives from the Sex Squad arrived, Officers Gilkey and Reid went to the scene of the crime, where they and other officers found a cap that matched Smith’s description, a sneaker, some keys, some pocket change (which Smith said she had lost), and some pieces of paper bearing the name Troy Meaders and the address 1325 Longfellow Street, Northwest. The police also found a pair of woman’s underpants lying in the middle of 14th Street. At trial Smith identified the keys, the sneaker, and the underpants as hers.
Officers Gilkey and Reid drove to Mead-ers’ home at 1325 Longfellow Street. After being admitted by Meaders’ father, they found appellant asleep in his bed. The officers placed him under arrest and seized a black leather jacket and a pair of blue jeans, which were in plain view in the bedroom. They took appellant to the crime scene, where Smith, who had been brought there by other officers, identified him as her assailant. Smith was then taken to a hospital for an examination, while appellant was taken to police headquarters, where sample pubic and head hairs were taken from him. Detective Michael Vaccaro testified that while this was being done, he noticed scratch marks on appellant’s side and forehead.
On direct examination Smith testified that she had no present romantic interest in men, that her sexual preference was for women, and that on May 17, 1983, she was not romantically involved with any men. She stated that she and a woman were living together at an address in Southeast Washington and that they were lovers. She also said that appellant knew that she was gay and that she made no attempt to hide her preference for women from people in her neighborhood. She acknowledged that she had had a romantic interest in men in grade school and junior high school.
Appellant’s defense was consent. He testified that when he met Smith on May 17, the two of them talked briefly about old times and then agreed to go to his house to “get high.” Appellant said that he also suggested to Smith, “Maybe we can get *1251into something,” meaning sex. He admitted that Smith did not specifically reply to this comment, but he believed that she understood his meaning and that, by accompanying him to his house, she indicated her willingness to engage in sex.
When they arrived at appellant’s house, he went inside to get some PCP and marijuana while Smith waited on the porch. Shortly after appellant returned, his father, who thought Smith “was a guy,” came outside. Appellant and Smith then left, since they could not go into the house because his father was home. She said she wanted him to accompany her downtown, so they walked over to 14th Street and headed south.
During their three-block walk, appellant testified, the two of them smoked three joints containing PCP and marijuana. Smith then remarked that “she was hot for a man” and that “she wanted to be pleased.” When he asked what she wanted to do about it, she replied, “Let’s go behind [those] bushes.” They walked onto the grounds of the mansion and proceeded to the darkest spot. Smith lay down on the ground and dropped her pants and underwear to her ankles. The two of them attempted intercourse, but appellant could not penetrate her fully. After five minutes, he said that he was “sore” from his efforts and that it “won’t work.” He got up and put on his pants, but Smith protested that “she wanted to get pleased somehow.” She became upset and said he “didn’t know how to please a woman.” When he then refused to accompany her downtown, she stood up, still partially undressed, and started calling him names. He grabbed her and tried to calm her down, but she broke free and ran through the bushes onto the street, shouting for help. She then pulled up her pants and started to flag down passing cars, and when a car finally stopped, she jumped inside. Appellant remained hidden behind the bushes so that he would not appear to be “suspicious of anything.” Then, after looking in vain for his cap, which he had lost, he got on his bicycle and rode back up 14th Street. He went first to Smith’s house to see if she had gotten home safely. Seeing the lights on, he concluded that she had, so he went home.
On cross-examination, appellant admitted that he knew Smith was gay and that since she had left school this fact was “public knowledge.” He also said that on May 17 Smith’s dress and haircut made her appear to be a man. On redirect appellant said he had engaged in intercourse with Smith on three or four occasions before that night. When asked if he knew she was “going with other men” even though she was gay, he responded, “Yeah.”2 On recross-examination, appellant stated that his prior sexual encounters with Smith had taken place five or six years earlier, when they were in school together. All of them had occurred at his house except one, which had happened at an “orgy off Madison Street.”
II
Appellant contends that the trial court committed error- in limiting the scope of his counsel’s cross-examination of Smith about her prior sexual activity with other men because such evidence would have “brought directly in issue her credibility.” Appellant’s point is not entirely clear. He may be arguing that the court erred in ruling that Smith could not be questioned about certain statements she gave to a defense investigator, or he may be suggesting that the trial court’s ruling precluded all questions regarding Smith’s prior sexual relations with any other men, not just questions relating to her comments to the defense investigator. Under either inter*1252pretation, the trial court’s ruling was proper.
At the beginning of his cross-examination of Smith, defense counsel told the court that he wanted to ask her about a statement she allegedly made to Sherman Hogue, a defense investigator. Counsel proffered that he wanted “to use as much of [the statement] that has to do with her testimony here today, excluding any reference to any past chastity or unchastity on her part, or any other alleged offenses that she may have committed.” In particular, he wanted to ask her about certain parts of the statement in which she allegedly said that she “used to be a freak.”3 Counsel argued that this was relevant because Smith had testified that “she had always been gay and not desiring men.”4 The court ruled that counsel could ask the witness if she used to be a freak and what the term meant. However, because the prosecutor questioned the authenticity of the statement (Smith had denied making it), the court ruled that defense counsel could not cross-examine Smith about it unless he proved first that it was in fact her statement. Consequently, defense counsel did not ask Smith about the statement at that time.
Later, during the defense case, defense counsel advised the court that he was ready to call Hogue as a witness to testify that Smith had indeed given a statement. The prosecutor objected, arguing that before Hogue could take the stand, defense counsel had to confront Smith with the statement in the jury’s presence. The court agreed and directed defense counsel to recall Smith if he wished to have Hogue testify.
Defense counsel then called Smith as his own witness and showed her the statement she had allegedly given to Hogue. Smith said that although she had signed a statement, the signature on the document shown to her in court was not hers; in fact, her name as it appeared in the signature was not even spelled correctly. Before any further questions could be asked, the prosecutor requested the court at a bench conference to direct defense counsel not to ask Smith about the comments in the statement about prior sexual conduct with other persons or prior drug usage. The court told defense counsel to confine his questioning to “this case.” Counsel asked Smith several more questions, but made no reference to the written statement. The prosecutor then showed her the statement again and asked, “Is this the statement that you gave to Mr. Hogue?” She replied, “I gave him a statement, but that is not it, that is not the one.”
The next witness was Sherman Ho-gue, who testified that the document which had been shown to Smith moments earlier was in fact the statement she had signed. Defense counsel then sought to move the statement into evidence in its entirety, arguing that the comments about prior sexual contact with other men were admissible because “the government has made a central issue of the fact that the complaining witness wanted nothing but [women],” and that such comments were material to Smith’s credibility on the central issue of whether she desired only women and not men. The court pointed out that the jury had already heard testimony that Smith had engaged in sex with appellant — a man — before May 17, 1983,5 and ruled that portions of the statement concerning her *1253prior sexual contact with other men would not be admitted.
The extent of cross-examination on an appropriate subject of inquiry is a matter within the sound discretion of the trial court. Mitchell v. United States, 408 A.2d 1213, 1214 (D.C.1979); see Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931). The court “may always limit cross-examination ‘to preclude repetitive and unduly harassing interrogation,’ ... to prevent unnecessary degradation or humiliation of witnesses ... or to prevent inquiry into matters having little relevance or probative value to the issues raised at trial.” Springer v. United States, 388 A.2d 846, 854-855 (D.C.1978) (citations omitted); accord, e.g., Ramirez v. United States, 499 A.2d 451, 454 (D.C. 1985). The trial court also has considerable discretion to limit cross-examination about matters which are beyond the scope of a witness’ direct testimony. See Smith v. United States, 330 A.2d 519, 520-521 (D.C. 1974); United States v. Stamp, 147 U.S. App.D.C. 340, 354, 458 F.2d 759, 773 (1971), cert. denied, 409 U.S. 842, 93 S.Ct. 104, 34 L.Ed.2d 81 (1972). Although restrictions on cross-examination must be imposed “with the utmost caution and solicitude for the defendant’s Sixth Amendment rights,” United States v. Houghton, 554 F.2d 1219, 1225 (1st Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977), we will reverse a decision to limit the scope or extent of cross-examination only when the appellant convinces us that there has been an abuse of trial court discretion. See Springer v. United States, supra, 388 A.2d at 855. We find no such abuse in this case, because we hold that the matter about which defense counsel sought to cross-examine the witness was not an appropriate subject of inquiry in the first place.
In McLean v. United States, supra note 5, this court held that evidence of prior sexual acts by the prosecutrix in a rape case had “no relevance whatsoever to her credibility as a witness and therefore defense counsel should be precluded from asking the prosecutrix questions concerning her past sex life.” 377 A.2d at 78 (citation omitted). We also said, however, that “[tjhere can be unusual circumstances where the defense may inquire into specific sexual acts by the prosecutrix when the probative value of the evidence is clearly demonstrated and is shown to outweigh its prejudicial effect.” Id. at 78 n. 6 (emphasis in original). Appellant vigorously argues that such unusual circumstances are present in this case. We do not agree.
Appellant asserts that cross-examination of Smith about the comments in the written statement concerning her prior sexual activity with men6 was “critical to the defense” because it directly affected her credibility. He bases this argument on the premise that Smith said on direct examination that she was gay and interested only in women. The transcript reveals, however, that Smith testified only that she was gay and had no present interest in men, whereas the comments in the statement concerned her past sexual behavior with men.7 Thus her testimony on direct was not inconsistent with the written statement, and any inconsistency that might arguably have been developed on cross-examination would be of limited probative value. Furthermore, by the time counsel sought to *1254question Smith about the statement, other evidence had already been admitted showing that Smith had previously had a sexual interest in men,8 which was one of the points counsel wanted to make by cross-examining her. We note also that counsel said only that he wanted to inquire generally about Smith’s prior sexual behavior with men, not about any specific sexual acts. Finally, the government’s thesis that because Smith was a lesbian, she would not have consented to intercourse with appellant was a minor aspect of the government’s case. We therefore conclude that appellant did not “clearly demonstrate[ ]” the probative value of his proposed cross-examination of Smith concerning her comments in the written statement about her prior sexual relations with men. McLean v. United States, supra note 5, 377 A.2d at 78 n. 6.
Appellant claims nevertheless that the probative value of the proposed cross-examination clearly outweighed its prejudicial effect. He asserts that “there can be no prejudice where [the] prosecutrix affirmatively admits her lesbian lifestyle.” We disagree. Prejudice results when cross-examination probes into the private life of a rape victim, regardless of her sexual orientation. See McLean v. United States, supra note 5, 377 A.2d at 77. The fact that a rape complainant may have engaged in promiscuous sexual activity in the past does not prove that she consented to sexual relations with the defendant; indeed, as we noted in McLean, it “ ‘may indicate the contrary.’ ” Id. (citation omitted). Thus we hold not only that the proposed cross-examination was prejudicial, but also that it was totally devoid of probative value. McLean is dispositive in both respects.9
Ill
Appellant contends that the trial court erred in refusing to admit into evidence a Metropolitan Police Department Medical Examination Form (PD-124). He asserts that the report was admissible under the federal shopbook rule10 because it was kept in the ordinary course of business by the police. We find no error.
During the presentation of appellant’s case, defense counsel sought to question Detective Yaccaro about the PD-124. The prosecutor objected, arguing that even *1255though Vaccaro had co-signed the form, a doctor had actually prepared it, and Vacca-ro had no knowledge of its contents. The court ruled that if the detective did not prepare the document, counsel could not question him about it. Further testimony established that Vaccaro had not prepared the form.
After the last defense witness had testified, defense counsel asked leave of court to recall Vaccaro, saying that he was unable to locate the doctor who had prepared the PD-124. He argued that the form was admissible under the federal shopbook rule because it was kept as a police record in the ordinary course of business. The court refused to admit it on that theory because the police did not have anything to do with its preparation, and denied permission to recall Vaccaro.
Both parties agree that the form was hearsay. Appellant contends, however, that it falls within the shopbook rule —or, more precisely, within the business records exception to the hearsay rule embodied in Super.Ct.Civ.R. 43-I(a). We hold that appellant has failed to carry his burden of demonstrating that the form is a business record.
The party seeking admission of a document under the business records exception must demonstrate, through a competent witness, (1) that the record was made in the regular course of business, (2) that it was the regular course of business to make such a record, and (3) that the record was made at, or within a reasonable time after, the act, transaction, occurrence, or event which it reports. In re D.M.C., 503 A.2d 1280, 1282 (D.C.1986); Smith v. United States, 337 A.2d 219, 222 (D.C.1975); see Martini Hairdressers, Inc. v. Potomac Beauty Supply Co., 203 A.2d 200, 201 (D.C.1964); Gass v. United States, 135 U.S.App.D.C. 11, 15-16, 416 F.2d 767, 771-772 (1969). “In addition, the party must also prove that the maker of the record had personal knowledge of the facts set forth in that record or, if not, that the facts were communicated to the maker, directly or indirectly, by one who was acting in the regular course of business and who had such personal knowledge.” In re D.M. C., supra, 503 A.2d at 1282-1283 (citations omitted).
The PD-124 is unusual in that it is a police department form, but almost all the information on it is recorded by the physician examining the victim of a sexual assault. Under the business records exception, each participant in its preparation must be acting in the course of a regularly conducted business. “The reason underlying the business records exception fails if any of the participants is outside the pattern of regularity of activity.” 4 J. Wein-stein & M. Berger, Weinstein’s Evidence 11803(6)[04], at 803-186 (1985) (footnote omitted); see United States v. Plum, 558 F.2d 568, 572 (10th Cir.1977); Kehm v. Procter & Gamble Co., 580 F.Supp. 890, 903-904 (N.D.Iowa 1982); Dell Publishing Co. v. Whedon, 577 F.Supp. 1459, 1464 n. 5 (S.D.N.Y.1984); see also United States v. Baker, 224 U.S.App.D.C. 68, 73, 693 F.2d 183, 188 (1982). Therefore, before a PD-124 may be admitted into evidence as a business record, the party seeking its admission must establish that both the portion of the form filled out by the police officer and the portion filled out by the doctor meet the requirements of the business records exception to the hearsay rule.11 See United States v. Plum, supra, 558 F.2d at 572. Appellant failed to establish that the portion of the form filled out by the doctor met those requirements.12
To make the doctor’s portion of the form admissible, a knowledgeable witness had to testify about the record-keeping *1256practices of the doctor’s organization — the hospital. 4 J. Weinstein & M. Berger, supra, 11 803(6)[02]; see, e.g., United States v. Phillips, 515 F.Supp. 758, 763 (E.D.Ky. 1981). The person who actually writes the information on the document does not need to testify so long as other evidence establishes its trustworthiness. Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253, 1259 (11th Cir.1983). The requisite foundation for admission of the document, however, “must be laid through the testimony of someone who is sufficiently familiar with the practices of the business involved to testify that the records were made in the regular course of business, and thus to verify their authenticity.” United States v. Leal, 509 F.2d 122, 127 (9th Cir.1975) (citations omitted); accord, e.g., United States v. Veytia-Bravo, 603 F.2d 1187, 1191-1192 (5th Cir.1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 686, 62 L.Ed.2d 658 (1980); United States v. Jones, 554 F.2d 251, 252 (5th Cir.), cert. denied, 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142 (1977). “A qualified witness must be one with knowledge of the declarant’s business,” El-izarraras v. Bank of El Paso, 631 F.2d 366, 374 n. 24 (5th Cir.1980), although the witness need not be an officer or employee of the business, so long as he or she “understands the system.” 4 J. Weinstein & M. Berger, supra, ¶ 803(6)[02], at 803-178 (footnote omitted); see also United States v. Phillips, supra, 515 F.Supp. at 763.
Appellant attempted to introduce the PD-124 through the testimony of Detective Vaccaro. Vaccaro, however, could not testify (1) that the medical form was made in the hospital’s regular course of business, (2) that it was the regular course of the hospital’s business to fill out the form, (3) that the record was made at, or within a reasonable time after, the medical examination of the victim, or (4) that the person who filled it out had personal knowledge of the facts stated in the form or, if not, that the facts were communicated to that person, directly or indirectly, by someone who was acting in the regular course of business and who had such personal knowledge. See In re D.M.C., supra, 503 A.2d at 1282-1283. The record makes clear that Vaccaro simply was not sufficiently familiar with the practices of the hospital to give such testimony. United States v. Leal, supra, 509 F.2d at 127. Without it, the form was not admissible as a business record. Id.; United States v. Plum, supra, 558 F.2d at 572; see also United States v. Ordonez, 737 F.2d 793, 805 (9th Cir.1984). Thus we hold that the trial court did not err in refusing to admit the PD-124 into evidence.
Affirmed.
. Two witnesses who lived nearby testified that they heard a woman screaming. When they went outside to see what was the matter, they saw Smith in the street, yelling and flagging down cars. They also saw a man in the bushes near the mansion who got on a bicycle and rode away, but they could not identify him.
. At this point the prosecutor objected to the question and answer concerning "other men,” and the court sustained the objection. At a bench conference which followed, defense counsel asserted that his question was "not designed to show any unchastity, but to show that she was bisexual.” The court responded that appellant's testimony that he had previously had sex with Smith established that she was bisexual, and that therefore the question about associations with other men was “out.”
. The record indicates that a freak is "someone who likes to engage in all manner of sex acts.”
. Counsel’s recollection of the testimony was not correct; Smith never said that she had always preferred women.
. Appellant had testified that he and Smith had previously engaged in sex on three or four occasions. This evidence was properly before the jury. In McLean v. United States, 377 A.2d 74 (D.C.1977), this court held that "evidence of specific acts of sexual intercourse with the defendant himself should be admitted ... [to enable the defendant] to rebut the government’s evidence that the prosecutrix did not consent to sexual intercourse on the particular occasion.” Id. at 78 n. 5 (citations omitted; emphasis added).
. The pertinent portion of the statement was as follows:
I used to be a freak ... and had lots of men before. I even got pregnant when I was in ninth grade at Paul Jr. High. ... I have had a whole lot of men before, but they were young. My mother caught me lots of times having sex with boys in the house, garage and all but she clamped down on me. Most people are jealous of me because I have a new car and can get anything I want.
. The trial court did not prevent defense counsel from questioning Smith about her present romantic interest in men. Thus we have no occasion to consider whether appellant was denied his right to cross-examine the complainant about a subject raised upon direct examination. See Smith v. United States, supra, 330 A.2d at 520.
. Smith had admitted that she previously had a romantic interest in men, and appellant had testified that he had engaged in intercourse with her on three or four occasions when they were in school.
. For the same reasons we find no merit in appellant’s corollary argument that the trial court abused its discretion in refusing to admit into evidence the actual comments about Smith’s prior sexual behavior (see note 6, supra ), as well as refusing to allow cross-examination about them. McLean is dispositive on this point as well.
It should be pointed out that the court did not prohibit all questions about Smith’s prior sexual contact with other men, but only questions based on the written statement. Defense counsel never sought to ask her about any such activities other than those to which the statement referred. Not surprisingly, then, counsel did not “clearly demonstrate[ ]” the probative value of such inquiry independent of the written statement. McLean, supra note 5, 377 A.2d at ' 78 n. 6.
. The federal shopbook rule, formerly codified at 28 U.S.C. § 1732(a) (1970), was repealed by Congress when the Federal Rules of Evidence were enacted in 1975. It was replaced in the federal courts by Fed.R.Evid. 803(6). Since the Federal Rules of Evidence are not applicable in the Superior Court, Super.Ct.Civ.R. 43-I(a) was promulgated at the same time to govern the admission of business records. Rule 43-I(a), which is substantially identical to the former 28 U.S.C. § 1732(a), provides in part:
Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum of record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.
This rule is made applicable to criminal cases by Super.Ct.Crim.R. 57(a).
. Appellant does not contend that the statements on the form were admissible under any other exception to the hearsay rule.
. We therefore need not consider whether the portion of the form filled out by the police officer fell within the business records exception, or whether part of the form may be admissible if a proper foundation is laid for that part. |
9,645,522 | 2023-08-22 21:27:42.374139+00 | Gallagher | null | GALLAGHER, Senior Judge,
concurring in part and dissenting in part:
The majority opinion comes to the conclusion that “the proposed cross-examination was prejudicial, [and] also ... it was totally devoid of probative value.” Yet, appellant’s only “mistake” was that he sought to cross-examine the government witness on a subject testified to by her on direct examination. This is because, says the majority, it was precluded by our decision in McLean v. United States, 377 A.2d 74 (D.C.1977).
But McLean simply held that the trial judge there had properly excluded testimony that the complaining witness had engaged in sexual relations with others on prior occasions and, also, excluded testimony that she had a reputation for unchastity. This court stated that the prejudicial effect outweighed its probative value. Id. at 79. The court went on to say that the credibility of the complaining witness should revolve around evidence relating to whether the complainant consented to the act and not on evidence of her prior sexual relations. Id.
This is all well and good, but it is not to say that McLean prevails over the right to cross-examine a witness on what she has volunteered on direct-examination about her sexual life. It is almost too obvious to mention that — where consent is the issue (as here) — if the complaining witness offers on direct examination, among other things, *1257that she is a lesbian, this may seriously impair a defense of consent to the charged rape.1
Furthermore, in a criminal case one should be given adequate scope on cross-examination to avail oneself of the elementary right of confrontation. Naturally, the trial judge is vested with discretion to limit reasonably the cross-examination. But this is not to say that the trial court should be supported where, as here, it is begrudging about the right to cross-examine. It is the most fundamental right a criminal defendant has — the right to confront the accuser. Any doubt should be resolved in favor of allowance of the cross-examination. It is no place to be hyper-technical.
While I would find error, I believe that on this particular record — where there was considerable disinterested testimony on the rape — the constitutional error does not require reversal here, under the harmless beyond a reasonable doubt test. See Delaware v. Van Arsdall, — U.S.-, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).2
. The majority opinion states:
On direct examination Smith testified that she had no present romantic interest in men, that her sexual preference was for women, and that on May 17, 1983, she was not involved romantically with any men. She stated that she and a woman were living together at an address in Southeast Washington and that they were lovers. She also said that appellant knew she was gay and that she made no attempt to hide her preference for women from people in her neighborhood. She acknowledged that she had had a romantic interest in men in grade school and junior high school. (Emphasis added.)
While the majority in its discussion draws certain refinements, e.g., n. 2 and n. 5 of majority opinion, the fact remains that the majority s recitation of the record situation on its face establishes a clear right to cross-examine on the subject matter.
. I also disagree with the majority on the exclusion of the proffered Metropolitan Police Department Medical Examination Form (PD-124). It is essential only that the offering witness (the officer) be able to identify the record as authentic and made and preserved in the regular course of police business. It seems unwarranted to exclude this police form containing the results of the complainant’s medical examination after the incident. |
1,516,468 | 2013-10-30 06:32:55.198475+00 | Reynolds | null | 726 S.W.2d 618 (1987)
Raymond BENHAM, Appellant,
v.
D.E. BENHAM, et al., Appellees.
No. 07-85-0276-CV
Court of Appeals of Texas, Amarillo.
March 17, 1987.
Rehearing Denied April 15, 1987.
*619 Marilyn Phelan, Phelan, Moreland & Goff, Levelland, for appellant.
Cecil Kuhne and Brad Crawford, Crenshaw, Cupree & Milam, Lubbock, for appellees.
Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
*620 REYNOLDS, Chief Justice.
Raymond Benham perfected this appeal from a take-nothing judgment rendered after a jury trial on his action. Raymond, suing individually and as a shareholder, as well as on behalf of other shareholders, of B & B Cattle Company, brought the action against D.E. (Gene) Benham, W.C. (Mutt) Benham, B & B Cattle Company, and Morton Leasing, Inc., d/b/a Baileyboro Farms, to rescind the conveyance of the assets and liabilities of B & B Cattle Company to Morton Leasing, Inc., to compel the return of the properties, to impose a constructive trust on the real property conveyed to Morton Leasing, Inc., and for other relief. Upon the following explication, we affirm.
Raymond, Gene, and Mutt each owned one-third of the shares, and were officers and directors, of B & B Cattle Company, a Texas corporation. Gene owned 50% and Mutt owned 35% of the shares, and were the principal officers and directors, of Morton Leasing, Inc. On 1 May 1975, a noticed annual meeting of B & B Cattle Company's shareholders was held without attendance by Raymond, who sent his agent with a power of attorney. During the meeting, Gene, Mutt, and Raymond were elected as directors for the ensuing year. At a following board of directors meeting, B & B Cattle Company, acting through Gene and Mutt in the absence of Raymond, transferred its assets and liabilities to Morton Leasing, Inc. The conveyance of B & B Cattle Company's land, together with its mineral and royalty interests in other land, located in Bailey County was evidenced by a deed dated 1 May 1975 and recorded 2 January 1976. Thereafter on 16 March 1981, the charter of B & B Cattle Company was forfeited by the Texas Secretary of State for its failure to pay franchise taxes.
Raymond filed his original petition on 13 May 1983. In his live trial pleadings, Raymond alleged, inter alia and in brief, that the 1 May 1975 transaction, which he did not learn about until 15 July 1981, was, in effect, illegal for the lack of authorization, not fair, and constituted fraud by Gene and Mutt to deprive him and B & B Cattle Company of their entire interest. By his action, Raymond sought to secure for B & B Cattle Company damages, the rescission of the 1 May 1975 sale and the return of all assets, an accounting of the revenues and expenses accruing from B & B Cattle Company's assets since 1 May 1975, and the imposition of a constructive trust upon the real property for the benefit of B & B Cattle Company and its shareholders. He also sought exemplary damages, together with his expenses and reasonable attorney's fees, from Gene, Mutt, and Morton Leasing, Inc.
Gene, Mutt, Morton Leasing, Inc., and B & B Cattle Company answered. In their answer, they included special exceptions, a general denial, and affirmative defenses, which embraced limitations and, on behalf of Morton Leasing, Inc., adverse possession.
The jury affirmatively found, in response to the first five special issues submitted, (1) the elements of false representation by Gene and Mutt; (2) that the 1 May 1975 transaction was not fair, honest and reasonable; and that, had the 1 May 1975 transaction not taken place, the sum of money to fairly and reasonably position (3) Mutt, (4) Gene, and (5) Morton Leasing, Inc. was "None." Special issue no. 6 was submitted and answered in this language:
Do you find from a preponderance of the evidence that Raymond Benham knew or should have known by or prior to May 12, 1979, of the transactions whereby the assets of B & B Cattle Company were conveyed to Morton Leasing, Inc.?
You are instructed that any knowledge that the agent of Raymond Benham has, is knowledge to Raymond Benham. You are further instructed that actual notice means those things of which the one sought to be charged has express information. You are further instructed that notice also includes those facts which reasonable inquiry would have disclosed, the duty of inquiry extending only to matters that are fairly suggested by the facts really known. In other words, whatever fairly puts a person upon inquiry is actual *621 notice of the facts that would have been discovered by reasonable use of the means at hand.
Answer "He did know" or "He did not know."
ANSWER: He Did Know
By special issue no. 7, the court inquired whether, and the jury found that, Morton Leasing, Inc. held peaceable and adverse possession of the land in controversy for a consecutive period of five years prior to 20 August 1981. In answering the eighth special issue, the jury found that $18,000 should be assessed against Gene as exemplary damages. And, lastly, the jury fixed, by its special issue no. 9 answer, $18,750 as Raymond's reasonable attorney's fees.
After all litigants moved for judgment, the court, reciting that the verdict of the jury was against Raymond, rendered judgment decreeing that Raymond take nothing by his suit. The court made no recorded response to Raymond's requests for findings of fact and conclusions of law and motion to modify the judgment, by which he sought the court to declare the basis for the judgment.
In appealing with nine points of error, Raymond mentions that while the trial court refused to state why it ruled, it could have based its decision on the jury's affirmative answer to special issue no. 6. The answer was a finding of the submitted, pleaded defense of bar to Raymond's action by the four-year statute of limitation, then expressed as:
Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.
Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958) (repealed 1985).[1]
Nevertheless, Raymond challenges both the applicability of article 5529 and the form of its submission. The latter challenge is noticed first.
With his third point of error, Raymond presents his trial court objections that special issue no. 6 is erroneous because (1) the inquiry whether he "knew or should have known" of the transaction lessened the defendants' burden of proof, and (2) the jury was not specifically instructed that the burden of proof was on defendants to prove that he had notice of the transaction. However, the presentation, consisting only of a general argument without citation of any authority to maintain the point, is not in minimal compliance with the briefing rules and, therefore, the point can be considered waived. Tex.R.App.Proc. 74(f); Estate of Blardone v. McConnico, 604 S.W.2d 278, 283 (Tex.Civ.App.Corpus Christi), writ ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex.1980).
Moreover, since Raymond alleged a fraudulent conveyance that he did not learn about until 15 July 1981, the pleaded defense of limitation raised the question when he knew or in the exercise of reasonable diligence should have known of the conveyance. Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 879 (1962). The framing of the defensive issue to inquire if the jury found from a preponderance of the evidence that Raymond knew or should have known by or prior to 12 May 1979 of the transaction properly placed the burden of proof on the defendants. Lloyds v. Hale, 405 S.W.2d 639, 643 (Tex.Civ.App. Amarillo 1966, writ ref'd n.r.e.). The third point of error is overruled.
By his second point, Raymond submits that the four-year statute of limitation does not bar his recovery because article 5529 expressly does not apply to his suit to recover land. This results, he contends, because in the earlier appeal from a venue ruling, we held, in an unpublished opinion issued in Benham v. Benham, No. 07-83-0230-CV (Tex.App.Amarillo, Jan. 4, 1985, no writ), that his action is a suit to recover land. Therefore, he declares, our holding became the law of the case. Terrell v. *622 Lomas & Nettleton Financial Corp., 496 S.W.2d 669, 672 (Tex.Civ.App.Tyler 1973, writ ref'd n.r.e.). We do not agree with the declaration.
In the venue appeal, our attention was focused upon the privilege of Raymond to compel the trial of his action in Bailey County under the then existing authorization of subdivision 14 of article 1995, Texas Revised Civil Statutes Annotated (Vernon 1964) (repealed 1985).[2] At the time of the action, subdivision 14 provided that:
Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.
Then, upon invocation of this venue provision and proof that the land is located in Bailey County, where Raymond filed his action, the only issue before us was whether Raymond's petition showed the other necessary venue fact of subdivision 14 subject matter so as to defeat defendants' plea of privilege. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (1945). Although defendants interposed the objection that Raymond did not allege he individually owns or is entitled to any interest in the land, we determined that his petition, albeit joining distinct causes of action, was formally sufficient to show venue under subdivision 14, for he was not required to establish title in the venue hearing. Id. at 72.
In making the determination, we gave no consideration to the merits of Raymond's pleaded causes of action, comprehending that the statutory hearing upon the issues made by defendants' plea of privilege and Raymond's controverting affidavit was a trial on the question of venue, not a trial on the merits of the action. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1304 (1936). Thus, the venue proceedings were, and considered to be, merely to determine whether the defendants were suable in Bailey County, but the trial there upon the merits and underlying this appeal was to determine whether they were liable. Farmers' Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675, 677 (1935). Given this distinction of considerations and proof, we agree, contrary to the holding of Terrell v. Lomas & Nettleton Financial Corp., supra, that the finding of a venue fact in a venue proceeding does not become the law of the case or in any way bind the court or jury in a subsequent trial on the merits. Middleton v. Palmer, 601 S.W.2d 759, 766 (Tex. Civ.App.Dallas 1980, writ ref'd n.r.e.).
To reiterate, our focus in the venue appeal was upon the form of Raymond's pleading; however, the entertainment of his second point in this appeal focuses our attention upon the nature of the title he asserted. This results since the title asserted determines whether his action is one for the recovery of lands within the exception to the applicability of the four-year statute of limitation. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62, 69 (1959).
To be an action for the recovery of lands within the exception to the four-year statute of limitation, the title asserted must be one that will support an action in trespass to try title. Id.; Carl v. Settegast, 237 S.W. 238, 241-42 (Tex. Comm'n App. 1922, judgmt. adopted and holding approved). And to recover in trespass to try title, the plaintiff must rely upon the strength of his own title, not upon the weakness of the defendant's. Hunt v. Heaton, 643 S.W.2d 677, 679 (Tex.1982). But even then, if the equitable powers of the court must be invoked to cancel a deed before an action can be maintained at law to recover the land, the four-year statute of limitation applies, except where the deed is absolutely void, Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 674 (1942), or when the grantor has not parted with equitable title because he was fraudulently *623 induced to sign the deed. Miles v. Martin, supra.
In his pleadings, Raymond did not assert his own claim of title to or interest in the land, and rightly so, for it is undisputed that the only ownership interest he has or claims is that of a shareholder of B & B Cattle Company, the former owner and conveyor of the land to Morton Leasing, Inc. He, therefore, did not position himself at the trial on the merits to claim that his action was for the recovery of lands within the exception to the four-year statute of limitation, or, alternatively as he does, that his action is a trespass to try title for recovery of either equitable title or because of a void deed. It follows that Raymond's pleaded causes of action are subject to the four-year statute of limitation. The second point is overruled.
Still, Raymond, who does not challenge the jury's special issue no. 6 answer, contends in his sixth point that, assuming the four-year statute of limitation applies, article 7.12 of the Texas Business Corporation Act expressly permits him three years after B & B Cattle Company was dissolved on 16 March 1981 to bring his action, which was filed before the three-year period elapsed. On the contrary, the article is not equal to the task Raymond assigns to it.
As pertinent to the contention, the statute provides that:
The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, or (2) by a decree of court when the court has not liquidated the assets and business of the corporation as provided in this Act, or (3) by expiration of its period of duration, shall not take away or impair any remedy available to or against such corporation, its officers, directors, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within three years after the date of such dissolution....
Tex.Bus.Corp. Act Ann. art. 7.12(A) (Vernon 1980).
By its specific language, and interpretation, the statute applies only to existing pre-dissolution claims by or against a dissolved corporation, its officers, directors, or shareholders. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 549 (Tex.1981). With this character, the statute can have no application in this cause, for B & B Cattle Company was not dissolved by one of the means statutorily specified to effect a dissolution, and the forfeiture of its charter for the failure to pay franchise taxes did not effect a dissolution of the corporation. Stephens County v. McCammon, 40 S.W.2d 67, 69 (Tex. Comm'n App.1931, opinion adopted); Federal Crude Oil Co. v. Yount-Lee Oil Co., 35 S.W.2d 111, 114 (Tex. Comm'n App.1931, opinion adopted). Accord, Isbell v. Gulf Union Oil Co., 147 Tex. 6, 209 S.W.2d 762, 764 (1948). The sixth point of error is overruled.
In a similar vein, Raymond presents his seventh-point contention that article 5523a of the Texas Revised Civil Statutes Annotated (Vernon 1958) (repealed 1985)[3] applies to grant him ten years after the 2 January 1976 recordation of the 1 May 1975 deed "to recover his interest in the land." As the statute existed, it provided, as bearing on Raymond's contention, that:
Any person who has the right of action for the recovery of land because of any one or more of the following defects in any instrument ... because the record does not show authority therefor by the Board of Directors and Stockholders (or either of them) of a corporation ... shall institute his suit therefor not later than 10 years next after the date when such instrument has been ... actually recorded in the office of the County Clerk of the county in which such real estate is situated and not afterwards....
*624 The statute controls, Raymond argues, because the record fails to show authority by the directors or shareholders for the transaction, a technical defect. We cannot agree the statute is applicable.
The operation of the statute is conditioned on an "action for recovery of land." As earlier explicated, Raymond does not assert that he has any title to the land; instead, his action is to rescind the 1 May 1975 sale, secure the return of all assets, real and personal, to B & B Cattle Company, to impose a constructive trust on the properties conveyed to Morton Leasing, Inc. for the benefit of B & B Cattle Company and its shareholders, to force an accounting, and to recover damages. Just as his action is not one for the recovery of lands within the exception to the four-year statute of limitation, for the same and further reasons, his action is not one for recovery of land within the purview of the ten-year statute of limitation.
B & B Cattle Company's deed conveying the land to Morton Leasing, Inc. was signed by Gene as president, attested to by Mutt as secretary, and recorded, thereby constituting prima facie evidence that the conveyance was duly authorized. Tex.Bus.Corp. Act Ann. art. 5.08 (Vernon 1980). Then, as it has been long recognized, even though the deed was a transaction involving the same principal officers and directors of both corporations, the deed was not void, but at most only voidable for the pleaded fraud and unfairness. Tenison v. Patton, 95 Tex. 284, 67 S.W. 92, 95 (1902). Accord, Popperman v. Rest Haven Cemetery, Inc., 162 Tex. 255, 345 S.W.2d 715, 717 (1961).
As we previously held, Raymond, sans asserted title to the land, does not possess a title that permits him to recover the land in a trespass to try title action, but he seeks to establish the superiority of B & B Cattle Company's right to the land over that of Morton Leasing, Inc., the record owner. However, before he can establish B & B Cattle Company's superior right to the land, he must first secure a decree setting aside the deed under which Morton Leasing, Inc. holds title. This being the situation, it was long ago determined that his action is not one for the recovery of land in the sense of a limitation statute, Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025, 1031 (1923), and thus his action is barred by the four-year statute of limitation. McCampbell v. Durst, 40 S.W. 315, 321 (Tex.Civ.App.), writ dism'd w.o.j., 91 Tex. 147, 40 S.W. 955 (1897). The seventh point is overruled.
Because the four-year statute of limitation bars Raymond's recovery of his pleaded causes of action, Miles v. Martin, supra, it is unnecessary to address his remaining points of error by which he complains of the inapplicability and submission of the five-year statute of limitation, and asserts his right to a constructive trust and the recovery of monetary awards commensurate with the jury's verdict. Accordingly, the points are overruled.
The judgment is affirmed.
NOTES
[1] Article 5529 was repealed upon enactment of the Texas Civil Practice and Remedies Code, effective 1 September 1985. Act of June 16, 1985, ch. 959, § 9(1), 1985 Tex.Gen. & Spec. Laws 3242, 3322. The enactment of the Code expresses the limitation in slightly different language. See Tex.Civ.Prac. & Rem.Code Ann. § 16.051 (Vernon 1986).
[2] Article 1995, as it existed in amended form, was also repealed upon enactment of the Texas Civil Practice and Remedies Code, effective 1 September 1985. Act of June 16, 1985, ch. 959, § 9(1), 1985 Tex.Gen. & Spec. Laws 3242, 3322. The enactment of the Code expresses the venue for land actions in similar language. See Tex. Civ.Prac. & Rem.Code Ann. § 15.011 (Vernon 1986).
[3] Article 5523a was another one of the statutes repealed upon enactment of the Texas Civil Practice and Remedies Code, effective 1 September 1985. Act of June 16, 1985, ch. 959, § 9(1), 1985 Tex.Gen. & Spec. Laws 3242, 3322. The enacted Code contains the subject matter of the repealed statute in its section 16.033. |
1,516,469 | 2013-10-30 06:32:55.212108+00 | Sporkin | null | 916 F. Supp. 32 (1996)
Robert W. MOORE, Plaintiff,
v.
Les ASPIN, et al., Defendants.
Civil Action No. 93-1797.
United States District Court, District of Columbia.
February 22, 1996.
*33 *34 Robert W. Moore, Chandler, AZ, pro se.
Suzanne Claire Nyland, U.S. Attorney's Office, Washington, DC, for defendants.
OPINION
SPORKIN, District Judge.
This matter comes before the Court on defendant United States Department of Defense's motion to dismiss the complaint as moot, or in the alternative, for summary judgment. Plaintiff Robert W. Moore, who appears before this Court pro se, opposes the Department of Defense's motion.
Plaintiff brings suit under the Freedom of Information Act, 5 U.S.C. § 552. Specifically, plaintiff seeks two distinct items of information from the Department of Defense: 1) the Stock Transfer Book of the Panama Railroad Company and 2) information relating to the transferability of stock to and from the United States Government. The Department of Defense contends, through the Declaration of Stewart Aly, Associate General Counsel for the Department of Defense, that it completed all required searches for the requested documents and that none of the searches yielded records responsive to plaintiff's FOIA request. The Department of Defense asks this Court to dismiss the case as moot, or in the alternative, to grant summary judgment.
FACTUAL BACKGROUND
The following facts are undisputed. By a letter dated July 6, 1993 to then-Secretary of Defense Les Aspin, plaintiff made a Freedom of Information Act (FOIA) request. The FOIA request was for records relating to certain stock transactions occurring between 1895 and 1904 involving shares in the Panama Railroad Company, as well as information pertaining to who the stockholders were as of June 15, 1993. Plaintiff also requested information relating to the transferability of stock to and from the United States Government. The Department of Defense issued an interim response, dated July 16, 1993, explaining that there was a backlog of FOIA requests and informing plaintiff that processing his request would take an unspecified amount of time.
Plaintiff then appealed to the President of the United States, sending an appeal letter to the White House. In plaintiff's appeal, he claimed that Aspin was the President's subordinate and, therefore, the President's office was the appropriate place to file an FOIA appeal from a decision made by the Secretary of Defense. The plaintiff received no response from the President.
When plaintiff filed suit in October 1993, the Department of Defense had not completed plaintiff's FOIA request. In December 1993, the Department of Defense informed plaintiff that it had completed its search and found no records responsive to plaintiff's FOIA request. Accordingly, the Department of Defense filed a motion to dismiss, or in the alternative, for summary judgment. This Court found that the Department of Defense had fulfilled its obligations under FOIA by conducting a reasonable search for responsive documents, and the case was dismissed without prejudice. Plaintiff was given thirty days to request another search for the specified documents. The search was to be conducted at plaintiff's expense. Plaintiff agreed to pay and timely reinstated his FOIA request.
The Department of Defense completed the second search and again found no documents responsive to plaintiff's request. The Department of the Army, the Executive Agent for the Department of Defense in matters relating to the Panama Canal, also conducted an independent search for responsive records. Among the offices searched were the Department of the Army Headquarters at the United States Garrison in Panama, Headquarters at the United States Army Southern Command (including the office of the Staff Judge Advocate and the Command Historian) in Panama, the Secretary of the *35 Army, and the Assistant Secretary of the Army. Upon completing a second search and finding no documents responsive to plaintiff's FOIA request, defendant now moves to dismiss the case as moot, or in the alternative, for summary judgment.
MOTION TO DISMISS AND SUMMARY JUDGMENT STANDARDS
In reviewing a motion to dismiss, a court must accept all well-pleaded allegations of the complaint as true and construe them in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). A court may dismiss the complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King and Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232-33, 81 L. Ed. 2d 59 (1984).
Summary judgment is available to the defendant in an FOIA case when the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester. Miller v. United States Department of State, 779 F.2d 1378, 1382 (8th Cir.1985), citing Weisberg v. U.S. Department of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983). The adequacy of the agency's search for requested documents is judged by a standard of reasonableness, i.e., the agency must show that it conducted a search reasonably calculated to uncover all relevant documents. Id. at 1383. The agency must show that it made a good faith effort to conduct a search for the requested records, using methods which reasonably can be expected to produce the information requested. Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). There is no requirement that an agency search every record system. Id.
ANALYSIS AND DECISION
The issue in an FOIA case is not whether the agencies' searches uncovered responsive documents, but rather whether the searches were reasonable. Fitzgibbon v. U.S. Secret Service, 747 F. Supp. 51, 54 (D.D.C.1990) citing Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986). The Declaration of Stewart F. Aly, Associate Deputy General Counsel for the Department of Defense, indicates that the Department of Defense searched offices at the Department of Defense's Office of General Counsel and found no responsive documents. The declaration also states that the Department of the Army, the Executive Agent for the Department of Defense in matters relating to the Panama Canal, conducted an independent search for responsive records in the Office of the General Counsel of the Army, the Office of the Staff Judge Advocate, Headquarters at the United States Army Southern Command in Panama, and the Mobile District Office of the Army Corps of Engineers. The search did not uncover any responsive documents.
Plaintiff proffered nothing to indicate that the Department of Defense's searches were unreasonable. Indeed, plaintiff appears to concede that the Department of Defense has made a reasonable search. In plaintiff's proposed findings of fact, he states that the "Panama Railroad Company share certificates and stock book were not produced, because they have not been found, although widespread and sincere search has been made."
Based on the Aly Declaration and the plaintiff's acknowledgment of a widespread and sincere search, the Court finds that the defendant has conducted a diligent search for the documents requested and has fulfilled its obligations under FOIA to conduct a reasonable search. The standard of reasonableness which we apply to agency search procedures does not require a detailed examination of every document maintained by the agency. See Oglesby, 920 F.2d at 68. The standard only requires a search that is reasonably calculated to uncover the requested material. Id. The scope of the search appears to have been reasonably calculated to reveal the items plaintiff sought.
Once the agency has shown that its search was reasonable, the burden is on the requester to rebut that evidence by a showing that the search was not conducted in good faith. Miller, 779 F.2d at 1383. This *36 can be done either by contradicting the defendant's account of the search procedure or by raising evidence of the defendant's bad faith. Id. at 1384. Here, plaintiff does neither. Instead, plaintiff admits the Department of Defense has made a "sincere" search. Even if Plaintiff did not concede that the defendant acted in good faith, the good faith of the agency's search is not materially disputed on the record. There is nothing in the record that contravenes the supported declarations of the Department of Defense establishing that the Department of Defense conducted a good faith, adequate search for agency records responsive to plaintiff's FOIA request and found nothing.
Plaintiff requested that the Department of Defense conduct a search of the Office(s) of the President of the United States, the public and private records of William Howard Taft, as well as other offices and agencies. As this Court indicated in its previous Order, and now reiterates, the Department of Defense is not required to respond to an FOIA request directed at other agencies.
Plaintiff also claims the President of the United States should have searched records under the possession and control of the President. However, the President never received a proper FOIA request. Plaintiff sent his initial FOIA request to the Secretary of Defense, although he later appealed the response to the President. This is inappropriate since an appeal must be made to the head of the agency to which the original request was sent. See 5 U.S.C. § 552(a)(6)(A)(i).
Sending an appeal to a different agency does not initiate a proper FOIA request for that agency to conduct a search. For an FOIA request to be processed, it must be directed to the appropriate office within an agency. If plaintiff wishes the Executive Office of the President to conduct an FOIA search for responsive documents, plaintiff must properly submit an FOIA request to that agency.[1]
Plaintiff opposes dismissal in this case because he claims the criminal as well as political implications of the materials he seeks pursuant to the FOIA are too great. There is nothing in the FOIA, however, that requires a court to evaluate the importance of requested information. The only issue before this Court is whether or not the search was reasonable.
Plaintiff claims that defendants' counsel have a conflict of interest in this case because of an association between Department of Defense attorneys and Attorneys General Russell and Day.[2] Plaintiff claims that Attorneys General Russell and Day are defense counsels' "predecessors in office" since defense counsel are "receiving their pay [in] one form or another [as] Attorneys General." Plaintiff argues there is an inherent conflict of interest because it was Attorneys General Russell and Day who allegedly received in 1904 the stock which is the subject of plaintiff's FOIA request. The Court fails to see the conflict between the defendants' counsel here, and two Attorneys General from 1904.
Plaintiff also contends that the Judge in this case should recuse himself due to a conflict of interest. Plaintiff claims that because the Judge was once employed by two separate government agencies, the Judge "never ceases to represent the government" and should recuse himself in this case. Merely because this judicial officer once worked, over ten years ago, for the Executive Branch of the government does not mean he is precluded from deciding cases under the Freedom of Information Act. Although this Court would not be adverse to higher authority accepting plaintiff's argument and excusing this Court from hearing and deciding cases brought under the FOIA, that event has not yet occurred.
*37 The Court finds the defendants conducted a search that was reasonably calculated to uncover relevant documents, and the search was made in good faith. Defendant's motion for summary judgment will be granted.
NOTES
[1] The term "agency" within the meaning of 5 U.S.C. § 552 does not include the White House. It does, however, include the Executive Office of the President. Nixon v. Sampson, 389 F. Supp. 107 (D.D.C.1975), stay granted 513 F.2d 430 (D.C.Cir.1975).
[2] Special Assistant Attorney General Charles W. Russell and Assistant to the Attorney General William Alonzo Day were allegedly sent to France in May of 1904 by the Justice Department to receive shares of the Panama Railroad Company. |
1,516,473 | 2013-10-30 06:32:55.259798+00 | Bell | null | 69 Md. App. 631 (1987)
519 A.2d 743
DOUGLAS E. LARIMORE
v.
THE AMERICAN INSURANCE COMPANY, ET AL.
No. 425, September Term, 1986.
Court of Special Appeals of Maryland.
January 9, 1987.
Robert W. King, Greenbelt, for appellant.
James S. Wilson (James M. Brault and Brault, Graham, Scott & Brault, on the brief), Rockville, for appellee, American Ins. Co.
Argued Before GILBERT, C.J., and ROSALYN B. BELL and POLLITT, JJ.
ROSALYN B. BELL, Judge.
Douglas E. Larimore brought suit against his employer's automobile liability carrier, American Insurance Company,[1] seeking a declaratory judgment that a provision in his employer's insurance policy which excluded him from coverage is contrary to the express public policy of the State of Maryland. The Circuit Court for Prince George's County entered judgment for American Insurance. Larimore presents two questions on appeal:
____Whether the fellow employee exclusion contained in the policy of automobile liability insurance issued by American Insurance Company is contrary to the provisions of Md.Transp. Code Ann. § 17 (1977, 1984 Repl. Vol.), and thus is contrary to the general public policy of the State of Maryland and therefore void.
____If the fellow employee exclusion is void, whether American Insurance Company is liable for payment up to the stated policy limits or only to the extent of the statutorily required minimums.
American Insurance Company is licensed to issue insurance policies which comply with the compulsory automobile insurance laws of the State of Maryland. Moving Masters, Incorporated is a corporation licensed to do business in the State of Maryland. In April of 1983, American Insurance issued a business automobile policy to Moving Masters effective April 15, 1983 through August 15, 1984. The policy covered motor vehicles used in the course of Moving Masters's business operations. While the combined bodily injury and property damage limit of the policy was $500,000, the policy contained a provision excluding from liability coverage any employee who injured a co-worker while operating a covered vehicle. This fellow employee exclusion,[2] located within the liability insurance provisions of Moving Masters's policy, provided:
"C. WE WILL NOT COVER EXCLUSIONS.
This insurance does not apply to:
* * * * * *
4. Bodily injury to any fellow employee of the insured arising out of and in the course of his or her employment."
Section D of the policy's liability insurance provision described who qualified as an insured under Exclusion 4. That section provided in pertinent part:
"D. WHO IS INSURED.
1. You are an insured for any covered auto.
* * * * * *
3. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow . .. ."
On May 31, 1983, Douglas E. Larimore and Joseph Benjamin Williams, both employees of Moving Masters, were involved in an accident while in the course of their common employment. Williams was operating a 1970 GMC Model DS Tractor owned by Moving Masters and covered under its business automobile policy. Williams seriously injured Larimore when he backed the tractor over Larimore's legs.
Larimore filed a worker's compensation claim for which he received $25,781.44 in benefits. Larimore also filed suit in the Circuit Court for Prince George's County against Williams on the ground of negligence. Because Williams qualified as an insured under Section D of the liability provision in Moving Masters's policy, a copy of Larimore's Declaration was sent to a claims adjuster for American Insurance advising that Williams was being sued. American Insurance denied coverage based on Exclusion 4 and three other separate exclusions also enumerated under Section C of Moving Masters's policy. Accordingly, it refused to defend Williams. Larimore obtained a default judgment against Williams in the amount of $200,000.
Larimore then brought an action against American Insurance seeking a declaratory judgment that American Insurance was required to provide coverage for Williams, and further that the insurer was liable for payment of the judgment to the extent of its policy limits. American Insurance moved for summary judgment on the grounds that there was no dispute of any material fact and that under Section C of the liability provision of the policy in question, Exclusion 4 exempted the insurer from liability for "[b]odily injury to any fellow employee [Larimore] of the insured [Williams] arising out of and in the course of his [Larimore's] ... employment." In response, Larimore filed a motion for summary judgment contending that the fellow employee exclusion on which American Insurance relied was contrary to Maryland's policy of requiring minimum liability coverage for automobile accidents.
The court entered judgment in favor of American Insurance. Larimore filed this appeal. Since we agree with the circuit court that Exclusion 4, even though not expressly authorized by Maryland's compulsory insurance law, is valid, and that it applies to Larimore, we do not decide whether any of the remaining policy exclusions in Moving Masters's policy apply to Larimore. Nor need we reach Larimore's second question concerning the extent of American Insurance's liability.[3]
In 1972 the Legislature mandated that all owners of automobiles registered in Maryland insure their vehicles. 1972 Md. Laws Ch. 73, § 2. "This legislative policy has the overall remedial purpose of protecting the public by assuring that operators and owners of motor vehicles are financially able to pay compensation for damages resulting from motor vehicle accidents." Pennsylvania Nat'l Mut. Casualty Ins. Co. v. Gartelman, 288 Md. 151, 154, 416 A.2d 734 (1980). A policy must contain personal injury protection (PIP) up to $2,500, liability coverage up to $20,000 for one injured person and up to $40,000 for two or more injured persons, and uninsured motorist (UM) coverage to the same extent as the minimum liability insurance. Md.Code. Ann. Art. 48A, § 539(a) (1957, 1986 Repl.Vol.) (PIP); Md. Code Ann. Art. 48A, § 541(c)(2) (1957, 1986 Repl.Vol.) (UM); Md. Transp.Code Ann. § 17-103(b) (1977, 1984 Repl.Vol.) (liability insurance). Certain exclusions from the required coverages are specified in the statute. The case sub judice concerns an exclusion from liability coverage not expressly authorized by Maryland's mandatory insurance law. Thus, to resolve whether that exclusion is permissible, we will review the treatment by the Court of Appeals of other exclusions which similarly do not appear in the statute.
In Gartelman, the Court considered the validity of exclusions from the coverage required for PIP and UM insurance, where those exclusions were not expressly authorized in the Maryland Code. The PIP requirement provides that an automobile insurance policy must afford minimum medical, hospital and disability benefits to certain persons injured in an accident involving the insured's vehicle and to persons insured under the policy who are injured in an accident involving any other vehicle. Art. 48A, § 539(a). The purpose of requiring PIP is to guarantee some compensation to motor vehicle accident victims without regard to their fault. Gartelman, 288 Md. at 154, 416 A.2d 734. Section 545 of Article 48A permits a policy to exclude from PIP any person insured under the policy who, among other things, intentionally caused the accident, was injured while operating or riding in a stolen vehicle, or was injured while committing a felony. Art. 48A, § 545 (1957, 1986 Repl.Vol.).
The Legislature also mandated minimum UM coverage but specified permissible exclusions to it. An automobile insurance policy must provide coverage "for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle." Art. 48A, § 541(c)(2). The purpose of UM coverage is to provide compensation for "innocent victims of motor vehicle accidents who are unable to recover from financially irresponsible uninsured motorists." Gartelman, 288 Md. at 157, 416 A.2d 734. The policy may exclude from UM coverage the named insured and family members residing in his or her household when one of them operates an uninsured motor vehicle he or she owns, and in addition to these parties any other person injured when the vehicle insured is operated by a named excluded driver. Art. 48A, § 541(c)(2)(i), (ii).
The policy at issue in Gartelman excluded from PIP an insured injured while occupying an uninsured motor vehicle owned by a named insured, and excluded from UM coverage an insured injured while occupying an uninsured motor vehicle owned by another insured. Neither of these exclusions were among those expressly authorized in the Maryland Code. In holding these exclusions invalid, the Court applied the rule of statutory construction that "[w]here a statute expressly provides for certain exclusions, other [sic] should not be inserted." Gartelman, 288 Md. at 156, 416 A.2d 734. The Court refused to validate exclusions from PIP and UM coverage in addition to those listed in the statute "which would be contrary to the remedial legislative purpose of assuring compensation for damages to victims of motor vehicle accidents without regard to fault." Gartelman, 288 Md. at 156, 416 A.2d 734.
In Jennings v. Government Employees Insurance Company, 302 Md. 352, 488 A.2d 166 (1985), the Court invalidated a household exclusion from the required liability coverage. The household exclusion involved in Jennings excluded liability coverage to an insured operating a covered vehicle where that person's negligent operation caused injury to a member of his or her family residing in the same household. The Court noted that under Maryland's mandatory insurance scheme, there was no household exclusion from mandatory liability coverage although one was authorized under the required UM insurance. Jennings, 302 Md. at 358-60, 488 A.2d 166. In declining to allow an exclusion that would deprive benefits to a large class of persons injured in automobile accidents, the Court explained:
"Recently in DeJarnette v. Federal Kemper Ins. Co., supra, 299 Md. [708] at 725, 475 A.2d 454, Judge Couch for the Court, after quoting from Gartelman that `"[w]here a statute expressly provides for certain exclusions, others shall not be inserted,"' stated that `we are still in accord with the sound reasoning of Gartelman in light of the remedial purpose of Article 48A, §§ 538-547.' In our view, [the insurer] has offered no sound reason why this principle should not be applied to invalidate the household exclusion...."
Jennings, 302 Md. at 359, 488 A.2d 166.
Appellant would have us apply the reasoning of Gartelman and Jennings to invalidate the fellow employee exclusion at issue in the instant case. Appellant argues that the Legislature did not authorize the insurer to exclude from liability coverage an employee, driving a covered vehicle with permission, where that employee injures a co-worker. Thus, this Court should not insert a fellow employee exclusion into the statute.
Unlike in Gartelman and Jennings, however, there is a compelling reason to permit the fellow employee exclusion in this case. Moving Masters's policy provides coverage to all non-employees injured by an employee's negligent operation of the employer's automobile in the course of employment. An employee engaged in an activity outside of his or her employment who is injured by a co-worker's negligent operation of the employer's vehicle is also covered under the language of the policy. The only class of persons not protected under the automobile liability provision is that comprised of employees whose injuries arise "out of and in the course of [their] employment" due to a co-worker's negligent operation of a covered vehicle. This latter class of injured employees, however, is guaranteed, without litigating any issue of fault, worker's compensation benefits that may exceed the statutorily required $20,000 minimum motor vehicle liability coverage.[4] Thus, Exclusion 4 is in harmony with the legislative purpose behind mandatory insurance of assuring at least a minimum recovery for damages incurred by victims of automobile accidents. It is one of those "many exclusions in automobile insurance policies [that] do not conflict with legislative policy and are therefore valid." Jennings, 302 Md. at 362, 488 A.2d 166.
In 1914 Maryland enacted its Workmen's Compensation Act as a scheme of protection both to provide employees injured while in the course of their employment with a definite and expedient method for payment of compensation and to protect employers from large monetary awards in civil suits brought against them by their employees. See 1914 Md. Laws 1429; Liggett & Meyers Tobacco Co. v. Goslin, 163 Md. 74, 80, 160 A. 804 (1932); Pressman, Workmen's Compensation in Maryland § 1-1 (1970). All employers with one or more employees subject to the Act are required to provide some form of worker's compensation. Md.Code Ann. Art. 101, § 16 (mandatory clause and permissible methods of insurance), § 19(f) (penalty for employer's failure to secure compensation), § 21(a) (employers subject to the Act), § 31 (certificate of compliance requirement) (1957, 1985 Repl.Vol., 1986 Supp.).
Generally, under Maryland's Workmen's Compensation Act, an employee who has suffered an accidental injury may receive approximately two-thirds of his or her average weekly wages, payment of all medical bills, vocational rehabilitation, additional compensation for the loss of the use of a part of the employee's body, and benefits to his or her dependents in the case of death. Md. Code Ann. Art. 101, § 36 (1957, 1985 Repl.Vol., 1986 Supp.). The employee may receive benefits "for injury ... arising out of and in the course of his employment without regard to fault," except where the injury is a result of either the willful intention of the employee or of his or her self-induced intoxication while on duty. Md. Code Ann. Art. 101, § 15 (1957, 1985 Repl. Vol.). In exchange for these benefits, worker's compensation serves as the employee's exclusive remedy against the employer, although he or she may bring civil suit against third-party and co-employee tort-feasors. Md. Code Ann. Art. 101, § 36 (exclusive remedy), § 58 (third-party and co-employee civil liability) (1957, 1985 Repl.Vol.).
In the case sub judice, Moving Masters paid its premiums for the maintenance of statutorily required worker's compensation. Appellant submitted claims for his benefits and received compensation in excess of the amount statutorily mandated for automobile liability coverage. The public policy under mandatory motor vehicle insurance of protecting victims of automobile accidents is satisfied where an employer provides, and an injured employee is covered under, worker's compensation.
Moreover, even if an injured employee was able to collect on his or her judgment from the employer's motor vehicle liability carrier, the employer's compensation insurance carrier would be reimbursed for any worker's compensation benefits paid. Md.Code Ann. Art. 101, § 58. Double recovery is not permitted and the worker's compensation insurer has a right of subrogation. Great Coastal Express, Inc. v. Schruefer, 34 Md. App. 706, 731, 369 A.2d 118, cert. denied, 280 Md. 730 (1977). Hence, to require employers to provide fellow employee coverage would force the employer to pay two separate premiums in order to compensate the employee for injuries resulting from his or her employment. We find persuasive the holding of the Arizona Court of Appeals in a similar case which allowed the fellow employee exclusion. Atkins v. Pacific Indemnity Ins., 125 Ariz. 46, 607 P.2d 29 (1980). The Court held that the exclusion "permits an owner having workmen's compensation to contract for automobile liability insurance which excludes his employees. He thereby obtains the benefit of a lower premium, but his policy still conforms fully to the purpose of the [mandatory motor vehicle insurance law]." Atkins, 607 P.2d at 31, quoting Farmers Ins. Group v. Home Indemnity Co., 108 Ariz. 126, 493 P.2d 909, 912 (1972).
While the interrelation of worker's compensation and a fellow employee exclusion is one of first impression before this Court, prior to the passage of this State's mandatory minimum insurance law, two federal courts applying Maryland law held the exclusion valid. In Bevans v. Liberty Mutual Insurance Company, 356 F.2d 577 (4th Cir.1966), and Travelers Corporation v. Boyer, 301 F. Supp. 1396 (D.Md. 1969), each Court determined that the fellow employee exclusion before it did not conflict with this State's limited insurance law that required an owner of a motor vehicle, only after certain convictions and upon failure to satisfy certain judgments, to demonstrate financial responsibility by depositing security or obtaining insurance in order to maintain a registered vehicle.[5] The only federal case to deal with the fellow employee exclusion since passage of Maryland's mandatory minimum insurance law did not evaluate the State's changed public policy but assumed the validity of the exclusion since in Bevans it had considered and permitted an exclusion identical to the one before it. See Riviera Beach Volunteer Fire Co. v. Fidelity & Casualty Co. of New York, 388 F. Supp. 1114, 1123 (D.Md. 1975).
In all three of these federal cases applying Maryland law each Court was persuaded in part by the fact that benefits were available to the injured employee under worker's compensation. See Bevans, 356 F.2d at 581; Riviera Beach Volunteer Fire Co., 388 F. Supp. at 1122; Travelers Corp., 301 F. Supp. at 1406. In Bevans particularly, the Court concluded that by allowing the fellow employee exclusion, "the injured employee is properly relegated to his claim for workmen's compensation." 356 F.2d at 581. We too are persuaded that this alternative coverage renders Exclusion 4 valid, even under Maryland's current mandatory insurance scheme.
Appellant contends that the growing trend in the law is to invalidate fellow employee exclusions from liability provisions in insurance contracts. Appellant's reliance on those cases cited in 12 Couch, Cylopedia of Insurance Law § 45:545 (Anderson ed. 1981), is misplaced. The treatise initially states:
"Provisions excluding from the coverage of automobile liability policies liability for injury or death of the insured's employees have generally been recognized as a valid attempt to limit the coverage of the policy by excluding therefrom the special hazards incident to the master-servant relationship, coverage for which is usually available through workmen's compensation or employer's liability insurance...."
The two cases cited in the treatise which appellant contends support a trend toward invalidating fellow employee exclusions are factually inapposite. In Makris v. State Farm Mutual Automobile Insurance Company, 267 So. 2d 105 (Fla. 1972), the employer's motor vehicle insurance policy excluded liability coverage for injuries suffered by an employee in the scope of his employment. Makris is not helpful to appellant's argument for three reasons: first, the exclusion at issue in Makris was much broader than a fellow employee exclusion; second, there the tort-feasor was the employer, not a co-worker; and third, there was no mention in the case that worker's compensation was available.
Bellafronte v. General Motors Corporation, 376 A.2d 1294, 1298, cert. denied, 384 A.2d 513 (N.J. 1977), is also of no assistance to appellant. There the predecessor law to New Jersey's Compulsory Motor Vehicle Insurance Coverage Act expressly exempted from coverage victims' claims that were covered under New Jersey's Workers' Compensation Act. The new mandatory insurance law did not contain a similar exemption. Based on this, the New Jersey Court on Motion for Rehearing simply stated that "[s]ince the [mandatory motor vehicle insurance] statute does not exempt the workers' compensation victim, the policy may not exempt him either, and indeed [the insurer's] policy does not appear to have attempted to do so." Bellafronte, 376 A.2d at 1298. Hence, the validity of a fellow employee exclusion from required liability insurance was not at issue in Bellafronte. The insurer merely attempted to escape coverage under an outdated statutory exemption.
Appellant next argues that holding Exclusion 4 valid would contravene the mandate from the Court of Appeals in Jennings that "[t]he exclusion of a large category of claimants, suffering bodily injury arising from accidents, is not consistent with [mandatory liability coverage]." 302 Md. at 360, 488 A.2d 166. We disagree.
Exclusion 4 does not eliminate liability coverage to all employees who through the negligent use or operation of a covered vehicle injure third parties. It only excludes coverage when an employee injures a co-employee. Hence, non-employee third parties are not an excluded class of claimants. They can seek recovery from the insurer of the vehicle for a judgment entered against the tort-feasor employee. The only "category of claimants" excluded from recovery is that comprised of employees injured by their co-worker's negligent operation of the employer's covered vehicle. Members of this group, however, unlike their injured non-employee counterparts, have access to immediate benefits under worker's compensation. Although ordinary tort damages, including pain and suffering, future lost wages, and loss of consortium, are not available under worker's compensation, the injured employee does not face common law defenses such as assumption of risk and contributory negligence. Absent cases where the employee injures himself or herself intentionally or as the result of self-induced intoxication, the employee is completely free from having to litigate any issue of fault. See Md. Code Ann. Art. 101, § 15. This is a sound balancing of interests.
Long ago this State made a policy choice
"to withdraw from litigation common law actions brought by employees against employers for accidental injuries growing out of and sustained in the course of the employment, and to substitute in the place of the right of action in such cases certain definite and specified amounts to be paid to the injured party, and to his dependents ... in case the injured party died as a result of the injury...."
Cambridge Mfg. Co. v. Johnson, 160 Md. 248, 251, 153 A. 283 (1931). The employee injured by his or her co-worker's negligent use or operation of the employer's covered vehicle receives compensation that is immediate, that cannot be eliminated due to his or her own contributory negligence, and that may provide benefits well in excess of $20,000. In addition, the injured employee retains the right to sue his or her co-worker in tort. See Leonard v. Sav-A-Stop Services, Inc., 289 Md. 204, 208, 424 A.2d 336 (1981). While this "category of claimants" may be excluded from benefiting under the employer's business automobile policy, the remedial purpose of mandatory insurance is not thwarted; the employee receives reparation for his or her injuries through worker's compensation.
We recognize that the employer owes no duty under tort law to provide employees with liability coverage for suits brought against them by their co-workers. Leonard, 289 Md. at 219, 424 A.2d 336. This compounded with our holding leaves the tort-feasor employee potentially uninsured[6] from civil liability when his or her negligent operation of an employer's vehicle has injured a co-employee. Maryland's mandatory motor vehicle insurance law, however, does not state and the Court has never interpreted the purpose of that statute to be for the protection of a tort-feasor's assets. Section 17 of the Transportation Code is not concerned with protection for the negligent user or operator of an automobile. Rather it is concerned with "the payment of claims for bodily injury or death." Md.Transp. Code Ann. § 17-103(b). As Jennings makes clear, the Legislature's sole purpose in requiring liability coverage is for the compensation of injured victims of automobile accidents. 302 Md. at 360, 488 A.2d 166.
In the case of injuries resulting from serious accidents, even the assets of an insured tort-feasor are at risk beyond the mandatory minimum liability insurance requirement unless he or she contracted for coverage sufficient to settle the claims against him or her. We do not believe that permitting a fellow employee exclusion such as Exclusion 4 significantly alters the financial burden to which all users and operators of motor vehicles are exposed.
In view of the purpose of mandatory motor vehicle insurance the protection of automobile accident victims we see no reason not to hold valid Exclusion 4 in Moving Masters's business automobile policy. Thus, since Moving Masters provided liability coverage to its employees that injure non-employee third parties by their negligent operation of the employer's vehicle, and made available worker's compensation benefits to appellant, Exclusion 4 does not violate the public policy of this State.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
NOTES
[1] Larimore also named Moving Masters and Joseph Williams as defendants. Neither of them has filed a brief on appeal.
[2] We will use the term "fellow employee exclusion" to refer to a general standard exclusion. To denote the particular fellow employee exclusion in Moving Masters's business automobile policy, we will refer to "Exclusion 4."
[3] We recognize that the recent holding of the Court of Appeals that a household exclusion provision in a motor vehicle insurance policy is void as against public policy only to the extent of required minimum liability insurance would probably be dispositive of this issue. See State Farm Mut. Auto. Ins. Co. v. Nationwide Mut. Ins. Co., 307 Md. 631, 516 A.2d 586 (1986).
[4] In the instant case, Larimore received worker's compensation benefits totaling $25,781.44, including $9,840.00 in indemnity benefits and $15,941.44 in medical payments. This amount exceeds the $20,000 required minimum liability insurance coverage for motor vehicles.
[5] Md. Code Ann. Art. 66 1/2, §§ 118, 119, 122 (1957).
[6] The tort-feasor employee may well have his or her own coverage. |
1,516,481 | 2013-10-30 06:32:55.395338+00 | Ellis | null | 916 F. Supp. 555 (1996)
Thomas E. GIATTINA, Plaintiff,
v.
Shirley S. CHATER, Commissioner of Social Security, Defendant.
Civil A. No. 94-1263-A.
United States District Court, E.D. Virginia, Alexandria Division.
February 28, 1996.
Dallas K. Mathis, Mathis & Mathis, Falls Church, Virginia, for plaintiff.
Helen F. Fahey, United States Attorney, Richard Parker, Assistant United States Attorney, Alexandria, Virginia, Charlotte Hardnet, Chief Counsel, Region III, Nora P. Koch, Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, Philadelphia, PA, for defendant.
MEMORANDUM OPINION
ELLIS, District Judge.
This Social Security appeal presents the question whether one who became entitled to Disability Insurance benefits ("DIB") for blindness in 1988 should have those benefits offset pursuant to 42 U.S.C. § 424a(a)(2)(b); 20 C.F.R. 404.408(a) because of that person's federal disability retirement annuity, where that person previously received DIB for blindness from 1966 to 1968.
I
Plaintiff Thomas Giattina suffers from retinitis pigmentosa, a progressive eye condition that causes blindness. In March 1966, he was found to be legally blind and eligible for Social Security DIB. He continued to receive these benefits until May 1968, when, despite his blindness, he began to work for the federal government. Although his blindness persisted, he continued to work for the government until May 1988, when he retired from civil service. Upon his retirement, he *556 once again sought DIB. Because he was still legally blind and then no longer working, he was again awarded DIB. His benefits, however, were reduced by the amount of his federal disability retirement annuity pursuant to 42 U.S.C. § 424a and 20 C.F.R. § 404.408(a), the public disability offset provision of the Social Security Act ("Act") and its implementing regulation.
Giattina challenged the applicability of this offset provision, triggering a lengthy and byzantine administrative process that bids fair to become known as the Jarndyce v. Jarndyce of social security law. He first requested that the Social Security Administration reconsider its determination, but that reconsideration resulted in an affirmance of the applicability of the offset provision. He then sought a hearing before an Administrative Law Judge ("ALJ"), who remanded the case to the Commissioner for reconsideration. The reconsideration confirmed that Giattina's benefits were subject to offset, and Giattina again requested a hearing before an ALJ. This time, a second ALJ found that the offset provision did not apply to Giattina. Next, the Appeals Council decided, sua sponte, to review the ALJ's decision, but when it discovered that no tape had been made of the hearing before the second ALJ, it remanded the case for yet another ALJ hearing. Thereafter, following yet another hearing presumably one for which a tape was made and preserved a third ALJ found that the offset provision did not apply.[1] The Appeals Council again decided to review the case, and then reversed the third ALJ, finding that the offset provision did apply to Giattina. This constituted the final decision of the Commissioner and Giattina sought judicial review of the agency's determination in this Court. The matter was then referred to a magistrate judge, and the parties filed cross-motions for summary judgment. The magistrate determined that the offset provision did not apply and recommended that Giattina receive benefits effective November 1988.[2] The Commissioner objected to the magistrate's recommendation, and the matter is now before the Court on that objection. This Court must therefore "make a de novo determination of those ... recommendations to which an objection is made." 28 U.S.C. § 636(b)(1).
II
Because this is a dispute about the meaning of a regulation, analysis properly begins with a consideration of the pertinent regulatory language. In pertinent part, the regulation provides that:
(a) [DIB is subject to reduction if]:
(1) The individual first became entitled to [DIB] after 1965 but before September 1981 based on a period of disability that began after June 1, 1965 and before March 1981, and
(i) The individual entitled to the [DIB] is also entitled to periodic benefits under a workers' compensation law ... or
(2) The individual first became entitled to [DIB] after August 1981 based on a disability that began after February 1981, and
(i) The individual entitled to the [DIB] is also, for that month, concurrently entitled to a periodic benefit (including workers' compensation or any other payments based on a work relationship)....
20 C.F.R. § 404.408(a). Giattina and the Commissioner agree that this regulation controls this case, but they interpret the regulation quite differently.
Giattina focuses on the phrase "first became entitled to [DIB]." He argues that he "first" became entitled to DIB in March 1966, when he initially received DIB for his blindness. Thus, his case, as he sees it, falls squarely within subsection (a)(1). From this, he argues that because he does not receive benefits under a workers' compensation law or plan as discussed in (a)(1)(i), his benefits *557 are not subject to offset. He concedes he receives a federal pension related to his disability that is included in the "periodic benefits" referred to in subsection (a)(2)(i) of the regulation. But that provision, he contends, does not apply to him because he did not "first become entitled to [DIB] after August 1981 based on a disability that began after February 1981." 20 C.F.R. § 404.408(a)(2). To read the provision otherwise is to render the word "first" superfluous.
The Commissioner responds that Giattina's reading of the regulation is incorrect because it renders the language "based on a disability that began after February 1981" in subsection (a)(2) redundant. If the regulation referred to whether a person first received DIB after August 1981, those benefits would of course be based on a disability that began after February 1981. It would be impossible for someone to receive DIB for a disability one did not yet have. Thus, according to the Commissioner, to interpret "first become entitled to [DIB]" to mean simply the first time that one received any DIB would violate the familiar and well-settled principle of statutory construction that "courts are obliged to give effect, if possible, to every word used by the legislature." Crestar Bank v. Neal (In re Kitchin Equipment Co., Inc.), 960 F.2d 1242, 1247 (4th Cir.1992); see also Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S. Ct. 2326, 2331, 60 L. Ed. 2d 931 (1979) (holding that courts must give effect to every word when interpreting a statute); United States v. Hunter, 459 F.2d 205 (4th Cir.1972) (same).
The Commissioner argues, in effect, that the key to construing and applying the regulation to these facts lies in recognizing that Giattina experienced two distinct "disabilities" in the circumstances. This follows, the Commissioner points out, from the regulation's definition of a blindness "disability" as an "inability by reason of such blindness to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time." 42 U.S.C. § 423(d)(1)(B). It further follows, the Commissioner argues, that Giattina has therefore experienced two separate "disabilities" for purposes of the statute, one lasting from 1966 to 1968 and the second beginning in May 1988. Based on the most recent "disability," Giattina first became entitled to benefits in November 1988 and therefore comes under the plain language of subsection (a)(2). Giattina's DIB, the Commissioner concludes must be reduced by the amount of his federal annuity benefits.
Clearly, there is a contest between the parties as to the proper interpretation of the regulation, and neither interpretation is without some merit. But the relevant inquiry here is not which interpretation is best, but instead whether the Commissioner's interpretation is a reasonable or permissible one. If so, the Commissioner's interpretation is entitled to deference here. See Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984); United States v. Jefferson-Pilot Life Insurance Co., 49 F.3d 1020 (4th Cir.1995) (applying Chevron deference to judicial review of an agency's interpretation of its own regulations).
By this standard, the Commissioner prevails, for her reading of the regulation, focusing on the statutory meaning of "disability," is not only reasonable, but indeed more persuasive than Giattina's. Moreover, her interpretation, unlike Giattina's, is consistent with the language and purpose of the underlying statute. Prior to 1981, DIB were subject to offset only by workers compensation plan payments. The statute was amended in 1981 to provide that DIB shall be reduced by the amount of a disability benefit under any other law or plan of the United States for "individuals who first become entitled to benefits ... for months beginning after [August 1981], but only in the case of an individual who became disabled within the meaning of [42 U.S.C. § 423(d)] after [February 1981]." Pub.L. No. 97-35, § 2208(b). It is this language that the regulation construes and implements, and it is the plain meaning of this language that compels the conclusion that Giattina's benefits should be offset. His case fits squarely within this language. Thus, as discussed above, he "first became entitled to benefits" for months beginning with November *558 1988. He also "became disabled within the meaning of" 42 U.S.C. § 423(d) after February 1981 because the statute provides that "disability" in the case of blindness means an "inability by reason of such blindness to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time." 42 U.S.C. § 423(d)(1)(B). And thereafter, in May 1988, he became unable to engage in substantial gainful employment. In short, Giattina's case fits within the plain language of the 1981 amendment, which subjects DIB to offset by federal annuity plans.
This conclusion is also in accord with the purpose of the statute. When Congress expanded the offset provision to include federal payments from disability plans other than workers compensation plans, it chose to do so in a way carefully designed to avoid any unfairness to those who had already been receiving benefits. It would be unfair to begin suddenly to offset the DIB of one who had been receiving DIB before the enactment of the amendment and who had reasonably relied on receiving the full amount of DIB. The amendment therefore was not made applicable to those who became entitled to benefits before the enactment of the amendment. Applying the offset provision to Giattina's case, on the other hand, would not be unfair. Although he had received DIB for his blindness some twenty years in the past, he was working at the time the Act was amended and was not entitled to any DIB at that time. He therefore cannot contend that he in some way relied on the limited scope of the offset provision.
For the foregoing reasons, the Commissioner's final decision that Giattina's DIB are subject to offset to account for his federal pension annuity was correct. An appropriate order will issue.
NOTES
[1] The third ALJ decided, however, that Giattina's benefits were subject to the windfall elimination provision, 42 U.S.C. § 415(a); 20 C.F.R. § 404.213(a)(2)-(3) (1994). This decision was upheld by the Appeals Council, and Giattina has not challenged it.
[2] The Commissioner determined that Giattina met the Act's definition of disability on May 9, 1988. However, because the Act mandates a five-month waiting period, the Commissioner ruled that Giattina was not entitled to benefits until November 1988. See 42 U.S.C. § 423(c)(2). |
9,645,523 | 2023-08-22 21:27:51.200151+00 | Nix | null | *207OPINION
NIX, Chief Justice.
The instant discretionary appeal requires this Court to pass upon the claim of Dr. David Shuman, an original defendant in a personal injury action who was unable to testify at the trial due to injuries sustained in the accident in question, that the trial court was required to charge the jury of a presumption of due care that arose in his favor. We granted this appeal to pass upon the broader question of the continuing vitality of a presumption of due care arising in the favor of a deceased or incapacitated defendant in view of the enactment of a comparative negligence system. 42 Pa.C.S. § 7102.
On August 21, 1979, at the intersection of Henry Avenue and DuPont Street in the City of Philadelphia, a motor vehicle collision occurred. Just prior to impact, Dr. David Shuman, appellant, was operating a vehicle in a southerly direction on Henry Avenue with Mrs. Anna Rickenbach as his passenger. The other driver, Mr. Kurt Rice, had been proceeding in a northerly direction on Henry Avenue and was making a left-hand turn to proceed in a westerly direction on DuPont Street. Margaret Rice was a passenger in the vehicle operated by her husband, Kurt Rice.
As a result of the accident, Anna Rickenbach sustained multiple injuries to her extremities and forehead which rendered her unable to work, and which markedly diminished the quality of her life. Margaret Rice suffered fractures of the right tibia and fibula which permanently rendered her right leg 3/8" shorter than her left leg. Kurt Rice incurred injuries to the right knee and left hand. These injuries resulted in permanent disability in that he has a limited range of motion in the left hand and lacks the ability to straighten his knee all the way. Appellant Shuman sustained severe head injuries which rendered him incompetent to testify at the time of the jury trial.
As a result of this occurrence, a number of lawsuits were instituted. Kurt and Margaret Rice entered suit against *208Dr. Shuman, Anna Richenbach and Bertolet Rickenbach entered suit against Kurt Rice and Dr. Shuman, and Margaret Rice instituted an action against Kurt Rice and Dr. Shuman. These matters were consolidated for trial and heard before a jury, which returned a verdict on May 27, 1982 determining that both Mr. Rice and Dr. Shuman were responsible in varying degrees for the accident. The jury assigned 70% of the negligence to Dr. Shuman and 30% to Mr. Rice. The jury’s damage award provided: for Anna Rickenbach, in the amount of Six Hundred Fourteen Thousand Dollars ($614,000); for Bertolet Rickenbach, in the amount of Fifty Thousand Dollars ($50,000); for Margaret Rice, in the amount of Four Hundred Thousand Dollars ($400,000); and for Kurt Rice, in the amount of Two Hundred Fifty Thousand Dollars ($250,000). The verdict was molded by the learned trial judge to reflect the apportionment of negligence pursuant to the jury’s finding and to reflect the settlement that had been reached with Kurt Rice prior to trial. Post-verdict motions were argued and final judgments were entered against appellant, Dr. Shuman, in the amount of Four Hundred Twenty-nine Thousand Eight Hundred Dollars ($429,800) in favor of Anna Rickenbach; in the amount of Thirty-five Thousand Dollars ($35,000) in favor of Bertolet Rickenbach; in the amount of Two Hundred Eighty Thousand Dollars ($280,000) in favor of Margaret Rice; and in the amount of One Hundred Seventy-five Thousand Dollars ($175,000) in favor of Kurt Rice.1
Following the jury’s verdict, appellant raised numerous issues as the basis for a new trial, all of which were overruled by the trial court. Although the trial court explained to the jury that Dr. Shuman’s absence was due to incompetence which resulted from the injuries sustained in the accident and that no adverse inference could be drawn from his failure to testify, the court refused a requested point of charge that provided:
*209When a person injured in an accident is rendered incompetent by his injuries or has lost his memory as a result of his injuries so that he is unable to testify as to how the accident occurred, the law presumes that at the time of the accident that person was using due care for his own safety.
Relying upon the Superior Court’s decision in Yandrich v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981), appeal dismissed, 499 Pa. 271, 453 A.2d 304 (1982), the trial judge in his opinion justified his decision to reject the requested point of charge noting, “in light of the advent of comparative negligence in Pennsylvania, an instruction on the presumption of due care can only cloud or confuse the issues. It is sufficient to instruct properly and adequately regarding the burden of proving negligence and contributory negligence.” Slip op. at 10, filed March 12, 1984, at Nos. 4187 Feb. Term 1980, 5057 Jan. Term 1980, and 339 August Term 1981, Court of Common Pleas of Philadelphia County.2 Upon appeal to the Superior Court, 346 Pa.Super. 640, 499 A.2d 405, argued before a three-member panel, that court affirmed with one of the members of the panel dissenting and expressing the view that the record required the requested point of charge to be given.3
A definitive resolution by this Court of the impact of comparative negligence upon the continuing viability of the presumption of due care in this jurisdiction has heretofore proven elusive. See, e.g., Waddle v. Nelkin, 511 Pa. 641, 515 A.2d 909 (1986); Yandrich v. Radic, supra, (Larsen and McDermott, JJ., dissenting). The difficulty arose because of our failure to first focus upon the role that the presumption was perceived to fulfill and then to examine its *210success in achieving the anticipated result. Utilizing such an analysis it becomes obvious that the limited benefit derived from the use of the presumption under prior law is clearly no longer present as a result of the adoption of a system of comparative negligence within this jurisdiction. The instant appeal provides an illustration of a fair and clear instruction to the jury with respect to the burden of the respective parties without resort to the presumption of due care. Moreover, we are satisfied that the use of the presumption in this case would have obfuscated rather than clarified the issues the jury was called upon to resolve. We therefore hold that the trial court’s refusal to give the requested point of charge was not error.
After the denial of the requested point of charge the trial judge gave the following jury instructions applicable to the respective burden of proof and the effect of comparative negligence.
First off, Dr. David Shuman can’t be here today and no inference should be taken adversely to him because he can’t be here today. You’ve heard that he has been declared to be incompetent by the Court of Common Pleas, of which this is a part, and therefore, his [nonjappearanee is unavoidable____
Comparative Negligence is primarily involving adjustment of the figures where two people are involved in an accident and there’s a different degree of negligence, a different weight to be given to the negligence, both of them. Consequently, the comparative negligence will apply to all the plaintiffs in this case if you find that there was negligence on the part of Kurt Rice. But again, that does not change and it does not affect your dollar figures. All adjustments are made by the Court once you put down what you believe the verdict should be.
If you find that there was some negligence, then you determine whether or not the weight of that negligence is to be defined percentagewise. You must do that, and when you do that the Court will then adjust the verdict according to what you’ve done. You have to first find *211negligence and then apply the Doctrine of Comparative Negligence.
R. at 713a-715a.
The proper use of a presumption is either to direct a party to come forward with the evidence, i.e., the burden of production, or to direct a party to assume the burden of persuasion, i.e., the burden of proof.4 Waugh v. Commonwealth, 394 Pa. 166, 146 A.2d 297 (1958); MacDonald v. Pennsylvania Ry. Co., 348 Pa. 558, 36 A.2d 492 (1944); Watkins v. Prudential Insurance Co., 315 Pa. 497, 173 A. 644 (1934). See 9 Wigmore, Evidence § 2487 (Chadbourne Rev. 1981). Regrettably, the law of presumptions has been unnecessarily confused by court decisions equating the term with “fact” or “evidence.” See Potochnik v. Pittsburgh Ry. Co., 379 Pa. 154, 108 A.2d 733 (1954) (where this Court, affirming per curiam on the opinion of the trial judge, implicitly accepted the trial judge’s statement that the presumption of due care was a factual one); Susser v. Wiley, 350 Pa. 427, 39 A.2d 616 (1944) (presumption of due care is a factual one). Clarity is served in this area by stressing that a presumption is designed merely to allocate the respective responsibilities between the antagonists in the lawsuit. With this perspective it becomes apparent that there is no need for a presumption of due care running in the favor of the defendant.
The plaintiff has the burden of proving the negligence of the defendant as the legal cause of the accident. This therefore places upon the plaintiff the obligation of both coming forward with the evidence of the defendant’s negligence and persuading the factfinder on this issue. Mapp v. Wombucker, 421 Pa. 383, 219 A.2d 681 (1966); Fegely v. Costello, 417 Pa. 448, 208 A.2d 243 (1965); Cushey v. Plunkard, 413 Pa. 116, 196 A.2d 295 (1964).
Conversely, the defendant has the burden of establishing the contributory negligence of the plaintiff. Heffer*212nan v. Rosser, 419 Pa. 550, 215 A.2d 655 (1966); Stegmuller v. Davis, 408 Pa. 267, 182 A.2d 745 (1962); Brown v. Jones, 404 Pa. 513, 172 A.2d 831 (1961); McKniff v. Wilson, 404 Pa. 647, 172 A.2d 801 (1961). Thus, it is incumbent upon the defendant to produce the evidence and to persuade the jury on this issue. Id.
The respective burdens as to production and persuasion are clearly defined and easily explained to a jury charged with the fact-finding function. Thus the imposition of the presumption of the deceased or incapacitated defendant would not only serve no purpose, its use is more likely to confuse a jury as to their responsibility. The presumption is not evidence and thus cannot be used to offset the defendant’s negligence introduced by the plaintiff against him.5 See Hodge v. Me-Bee Co., 429 Pa. 585, 240 A.2d 818 (1968); Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967); Richmond v. A.F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 218 A.2d 303 (1966); Lescznski v. Pittsburgh Ry. Co., 409 Pa. 102, 185 A.2d 538 (1962). For the same reasons the presumption may not serve to establish the plaintiff’s contributory negligence. Id. The obvious motive for the application of the presumption to a defendant was to prevent a surviving competent plaintiff from taking advantage of the death or incapacitation of the defendant. However, the recognized effect of the presumption does no more than prevent a defendant’s absence from lessening the burden upon the plaintiff of establishing the defendant’s negligence. Since the burden upon the plaintiff has been established without regard to the availability of the defendant to personally defend, it serves no purpose in this context. The only concern is that the jury may have improperly drawn an *213adverse inference against the absent party, which was properly addressed by the trial judge.
This concept of a presumption of due care is premised upon the natural instinct of self-preservation which would suggest that an individual has not unduly exposed himself or herself to the possibility of serious bodily harm. It was originally formulated for the benefit of the plaintiff who was either deceased or incapacitated as a result of the injuries that were sustained in the accident. See, e.g., Kmetz v. Lochiatto, 421 Pa. 363, 219 A.2d 588 (1966); Auel v. White, 389 Pa. 208, 132 A.2d 350 (1957); Susser v. Wiley, supra; Heaps v. Southern Pa. Traction Co., 276 Pa. 551, 120 A. 548 (1923). The presumption was designed to overcome the former rule of law that in order to have his or her case reach the jury, the plaintiff was required to present a case free of his or her own negligence. See Good v. City of Pittsburgh, 382 Pa. 255, 114 A.2d 101 (1955) (a plaintiff must set forth a case free from contributory negligence). It relieved the plaintiff, who was unable to testify, of the responsibility of presenting evidence in his or her case-in-chief of the plaintiffs due care. While it did not supply affirmative evidence on that point, it shifted the burden upon the defendant to come forward with evidence of plaintiff’s negligence, thus making it a jury question. Apparently through some sense of fairness the presumption was also made available to the defendant when he or she was either killed or incapacitated as a result of injuries sustained in the accident.6 Freund v. Huster, 397 Pa. 652, 156 A.2d 534 (1959); Newsome v. Baker, 395 Pa. 99, 148 A.2d 906 (1959); Balla v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955). At best, the recognition of the natural instinct of self-preservation should merely be one of the factors that a jury may take into consideration in evaluating the evidence of negligence that is offered against any party so charged. In any event, it is apparent under present law that the *214presumption of due care running in favor of a deceased or incapacitated defendant is a useless appendage which is likely to obfuscate rather than clarify the issues to be resolved in the lawsuit.7
For the foregoing reason, we affirm the Order of the Superior Court.
LARSEN, McDERMOTT and ZAPPALA, JJ., file dissenting opinions.
. Pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure, the trial court also assessed delay damages against Dr. Shuman in each instance. The validity of that action is not presently before this Court.
. The trial court also found that appellant had waived his claim regarding the presumption of due care because he had failed to take exception to the charge as given. We agree with the Superior Court’s conclusion that the claim was preserved by appellant’s exception to the trial judge’s denial of his proposed charge on this issue. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981).
. The panel was composed of Judges Cavanaugh, Beck and Tamilia, with Judge Cavanaugh filing a dissenting statement.
. Conclusive presumptions should be excluded from this analysis because in reality they are not rules of evidence but rather constitute a substantive rule of law.
. It also must be remembered, in this context, that if plaintiff has failed to establish in the case in chief evidence that would support a finding that the defendant’s negligence was a legal cause of plaintiffs injuries a non-suit would be appropriate as there would be no question to present to a jury. Cuthbert v. City of Philadelphia, 417 Pa. 610, 209 A.2d 261 (1965); Idlette v. Tracey, 407 Pa. 278, 180 A.2d 37 (1962); Della Porta v. Pennsylvania R.R. Co., 370 Pa. 593, 88 A.2d 911 (1952).
. The purpose it served for the defendant, even under prior law, is questionable since it was recognized that the plaintiff always had the burden of proving defendant’s negligence and it was accepted that the presumption did not supply evidence.
. We have also reviewed the alleged erroneous trial rulings raised by appellant and found them to be without merit. |
9,645,524 | 2023-08-22 21:27:51.204692+00 | Larsen | null | LARSEN, Justice,
dissenting.
For the reasons expressed in my concurring opinion in Waddle v. Nelkin, 511 Pa. 641, 649-50, 515 A.2d 909, 913-14 (1986) and my dissenting opinion in Yandrich v. Radic, 499 Pa. 271, 272-78, 453 A.2d 304 (1982), I dissent. In my opinion the presumption of due care of a deceased or incapacitated party remains viable and necessary regardless of this Commonwealth’s shift, by statute, from a contributory negligence to a comparative negligence state. 42 Pa.C.S.A. § 7102.
The majority takes an inordinately narrow view as to “the proper use of a presumption ... either to direct a party to come forward with the evidence, i.e., the burden of production, or to direct a party to assume the burden of persuasion, i.e., the burden of proof____ Regrettably, the law of presumptions has been unnecessarily confused by court decisions equating the term with ‘fact’ or ‘evidence.’ ” Majority at 211. In point of fact, this presumption — the presumption that a deceased or incompetent was using due care at the time of the accident — has been and should be given some weight as evidence to be weighed by the jury with any conflicting evidence, and the jury should be instructed to view the presumed fact (of due care) as the equivalent of testimony by the decedent or incompetent that he was using due care at the time of the accident. Yandrich v. Radic, supra at 499 Pa. 277, 453 A.2d 306-07 (and cases cited therein). The value of the presumption of due *215care stems from the general knowledge of human experience and the strength of the instinct of self-preservation and the desire to avoid pain and injury. Id. This human instinct and experience did not disappear when this Commonwealth enacted the comparative negligence statute, nor is it any less viable when applied on behalf of a deceased or incompetent defendant. The respective burdens of proof, production and persuasion are a separate and distinct issue. |
9,645,525 | 2023-08-22 21:27:51.207862+00 | McDERMOTT | null | McDERMOTT, Justice,
dissenting.
I dissent for the reasons expressed in my concurring opinion in Yandrich v. Radic, 499 Pa. 271, 278, 453 A.2d 304, 307 (1982). See also Waddle v. Nelkin, 511 Pa. 641, 515 A.2d 909 (1986). |
9,645,526 | 2023-08-22 21:27:51.210859+00 | Zappala | null | ZAPPALA, Justice,
dissenting.
I dissent on the basis of Waddle v. Nelkin, 511 Pa. 641, 515 A.2d 909 (1986) and would permit the jury charge regarding the presumption of due care. |
9,645,528 | 2023-08-22 21:27:51.470241+00 | Mauzy | null | MAUZY, Justice,
concurring.
I concur with the court's result; however, I respectfully submit that the time *17has come to abolish the legal myth of inter-spousal immunity. The interspousal immunity rule is a “creature of the common law that resulted exclusively from judicial decisions.” Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506, 507 (1983). The rule, as described by Blackstone, is as follows:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.
* * * * * *
If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued without making the husband a defendant.
1 W. BLACKSTONE, COMMENTARIES, Ch. 15, p. 442-443 (emphasis original).
By 1983, some twenty-eight jurisdictions had fully abrogated the rule of interspousal immunity; at least ten jurisdictions had abolished the rule, in part, as to all or some torts; one jurisdiction allowed a cause of action between spouses but because of conflicting statutes, provides no remedy. See Boblitz v. Boblitz, 462 A.2d at 522-524.
The rule emanates from English common law, under which women were chattels. Such a rule has no basis in 20th century reason and should be abolished.
The doctrine of interspousal immunity is more aptly termed “a rule in derogation of married women.” Boblitz v. Boblitz, 462 A.2d at 507. Undoubtedly, the doctrine’s time has come and gone.
GONZALEZ, JJ., joins in this concurring opinion. |
9,645,529 | 2023-08-22 21:27:51.700736+00 | Wieand | null | WIEAND, Judge:
Denise Scheinert was tried and found guilty of driving while under the influence of alcohol. She had previously been arrested and charged with the same offense in 1983, after the effective date of the mandatory sentence provisions of 75 Pa.C.S. § 3731(e). On that occasion, however, she had been accepted into the Accelerated Rehabilitation Disposition program (ARD), where she successfully completed a period of probation. When, on September 30,1985, she appeared for sentencing for the later offense, the sentencing court treated her as a second offender and, consistent with the mandatory sentence provisions of 75 Pa.C.S. § 3731(e)(1)(h), imposed a sentence of imprisonment for not less than thirty days nor more than one year.1 On direct appeal from this judgment of sentence, Scheinert attacks the validity of the statutory provision which required the sentencing court to equate her prior participation in ARD with a first conviction. We find this argument lacking in merit and affirm the judgment of sentence.
*426The legislature, at 75 Pa.C.S. § 3731(e)(2), has provided as follows:
Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.
Appellant contends that this provision is in conflict with ARD rules adopted by the Supreme Court and, therefore, invalid. The adoption of general rules governing practice and procedure, she argues, has been vested exclusively in the Supreme Court by Article 5, section 10(c) of the Pennsylvania Constitution.
The Supreme Court’s rationale for the ARD rules which it adopted was explained as follows:
The purpose of this program is to eliminate the need for lengthy motions, trials and other court proceedings, in cases which are relatively minor or which involve social or behavioral problems which can best be solved by programs and treatments rather than by punishment. In many cases, legal defenses may be available which would result in acquittal or delay in disposition of the charges. When immediate treatment is needed, however, defendant and counsel may be willing to have defendant undergo such treatment without an adjudication of guilt.
PA.R.Crim.P. 185 comment. The rules which the. Court adopted,2 however, are silent with respect to the collateral consequences of a defendant’s participation in ARD. It must be conceded, as appellant calls to our attention, that this Court has held that participation in an ARD program may not be deemed a conviction for purposes of impeaching a witness. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981). On the other hand, in Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982), the Court held that although ARD participation did riot constitute a *427conviction, a sentencing court did not commit error by taking into consideration the defendant’s prior participation in such a diversionary program. Compare: Commonwealth v. McSorley, 335 Pa.Super. 522, 527, 485 A.2d 15,18 (1984) (Cavanaugh, J., with McEwen, J. dissenting and Cirillo, J. concurring in result), aff'd, 509 Pa. 621, 506 A.2d 895 (1986) (“caselaw does not give a clear picture of how ARD affects the status of a criminal defendant”).
These decisions, however, are not controlling of the issue now before us. The law is well-settled that “[i]t is the province of the legislature to determine the punishment imposable for criminal conduct.” Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), affirmed sub nom., Pennsylvania v. McMillan, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). “The legislature has the right to fix the maximum penalty and likewise can, if it sees fit, name the minimum.” Commonwealth v. Glover, 397 Pa. 543, 545, 156 A.2d 114, 116 (1959).
The legislature, at 75 Pa.C.S. § 3731(e)(2), has provided that for the purpose of computing the number of prior convictions for purposes of determining the sentence to be imposed for driving while under the influence of alcohol, participation in ARD shall be considered a first conviction. This was clearly within the province of the legislature to do. When it did so, it did not come into conflict with ARD rules adopted by the Supreme Court. It did not legislate in an area of procedure which had been vested exclusively by Constitution in the Supreme Court of Pennsylvania. It acted solely within its province to determine the punishment for criminal conduct.
Appellant contends additionally that by equating ARD participation with a prior conviction for sentencing purposes, Section 3731(e)(2) violated her right to due process of law under the United States and Pennsylvania Constitutions.3 Fundamental fairness, she argues, commands that a prior charge may not be deemed a conviction for sentencing purposes unless the prior charge has result*428ed in an adjudication of guilt and the imposition of a judgment of sentence. We must reject this argument. Pa.R.Crim.P. 179 permits a defendant to be placed in the ARD program only after he or she has requested acceptance into the program, has indicated an understanding of the proceedings, and has accepted and agreed to comply with the conditions imposed by the trial court. “Defendants who accept ARD for drunk driving are now told that an ARD will be considered a conviction for sentencing purposes in the event of an arrest for drunk driving within the next seven years. Therefore, defendants who have accepted ARD since the effective date of the new drunk driving law have been given notice of the possible consequences of their acceptance.” Commonwealth v. Frost, 342 Pa.Super. 173, 178, 492 A.2d 448, 450 (1985). In light of the voluntary character of ARD participation and the required notice of its collateral consequences, it cannot be said that notions of fundamental fairness are violated because the legislature has directed that a person who has once been on ARD shall be sentenced as a second offender if he or she is convicted of driving while under the influence of alcohol as a result of a second arrest within a seven (7) year period. See: Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985); In re Appeal of Elias, 70 Pa.Cmwlth.Ct. 404, 453 A.2d 372 (1982); Commonwealth Department of Transportation v. McDevitt, 57 Pa. Cmwlth.Ct. 589, 427 A.2d 280 (1981), affd per curiam, 500 Pa. 532, 458 A.2d 939 (1983).
13] Appellant’s contention that she was denied due process by the Commonwealth’s failure to notify her of its intention to invoke Section 3731(e)(2) by an appropriate reference contained in the information is controlled by our decision in Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985) (en banc). In that case, we rejected the notion that due process required the Commonwealth to allege prior drunk driving convictions in a criminal information. See also: Commonwealth v. Kopycinski, 353 Pa.Super. 387, 510 A.2d 365 (1986); Commonwealth v. Potts, 352 *429Pa.Super. 299, 507 A.2d 1239 (1986); Commonwealth v. Hess, 348 Pa.Super. 600, 502 A.2d 707 (1985) (en banc).
Appellant contends finally that 75 Pa.C.S. § 3731(e)(2) is a bill of attainder and, therefore, is in violation of Article I, Section 9 of the Constitution of the United States. A bill of attainder is defined as a legislative enactment which determines guilt and inflicts punishment upon an identifiable person or group without a judicial trial. See: Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 2803, 53 L.Ed.2d 867, 907 (1977); United States v. Brown, 381 U.S. 437, 445, 85 S.Ct. 1707, 1713, 14 L.Ed.2d 484, 490 (1965); United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252, 1259 (1946). However, appellant misperceives the effect of 75 Pa.C.S. § 3731(e)(2). The statute does not, as appellant suggests, inflict punishment upon persons who choose to participate in ARD programs when charged for the first time with driving while under the influence of alcohol. Rather, the statute prescribes the punishment to be imposed for a later conviction of driving while under the influence of alcohol after one has previously accepted the terms and conditions of ARD following an earlier arrest for driving while under the influence of alcohol. The conviction for which appellant was sentenced was imposed only after an adjudication of guilt. The sentence was not imposed for an unadjudicated charge which had resulted in her participation in an ARD diversionary program. The provisions of 75 Pa.C.S. § 3731(e)(2), therefore, do not require punishment Where there has been no prior adjudication of guilt by trial or guilty plea. The provisions of 75 Pa.C.S. § 3731(e)(2) do not constitute a bill of attainder; they are not proscribed by constitution.
The judgment of sentence is affirmed.
KELLY, J., joins this opinion and files a concurring opinion. CAVANAUGH, J., joins this opinion and also the concurring opinion of KELLY, J.
. The sentencing court also directed Ms. Scheinert to pay a fine of three hundred ($300) dollars and the costs of prosecution.
. Pa.R.Crim.P. 175 to 185.
. See: U.S. Const, amend. 14; Pa. Const, art. 1, § 9. |
9,645,530 | 2023-08-22 21:27:51.706268+00 | Kelly | null | *430KELLY, Judge,
concurring:
I join in the well-reasoned opinion of the majority. I write separately to address the apparent conflict between our finding that Accelerated Rehabilitation Disposition (ARD) participation must be considered the equivalent of a prior conviction under 75 Pa.C.S.A. § 3731(e)(2), and the statement in Commonwealth v. Knepp, 307 Pa.Super. 535, 541, 453 A.2d 1016, 1019 (1982), that “admission into an ARD program is not equivalent to a conviction under any circumstances.”
Once a district attorney decides to move a defendant’s admission into ARD,1 notice is sent to defendant explaining the program. A hearing is held in open court where prosecution, defense, and the victims, if any, may present testimony to the court regarding the appropriateness of ARD. If the judge determines that ARD should be permitted, the judge then informs the defendant of the conditions of the program. If the defendant accepts the conditions and agrees to yraive áll applicable statutes of limitation and speedy trial rights, then the record is closed and the charges are held in abeyance pending completion or termination of the program. See Pa.R.Crim.P. 175-185.
If the defendant successfully completes the ARD program, the charges are dismissed and no conviction results. Pa.R.Crim.P. 185. The appellant may petition to have the record of the arrest and ARD participation expunged. Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981).2 Because there has been no conviction, ARD partic*431ipation provides no basis for impeaching a witness. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981).3
In Commonwealth v. McKellin, 9 Pa. D. & C. 3d 572, 576 (1979), the court stated, “[t]he disburdening effect of successful ARD completion is not tantamount to a finding of innocence.” The learned trial judge was correct. While ARD participation does not result in conviction, neither does it result in an acquittal. Consequently, an unexpunged ARD record may result in collateral consequences even though the direct consequences of arrest were avoided by ARD participation.
In Pennsylvania, prior unadjudicated arrests may properly be considered at sentencing provided the arrests are not regarded as establishing criminal conduct. Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973). Even arrests which resulted in acquittals may be considered at sentencing so long as the judge is aware of the acquittal. Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975). Likewise, ARD participation may be considered by the sentencing judge as an appropriate sentencing factor. Commonwealth v. Knepp, supra.
Pursuant to 75 Pa.C.S.A. § 3731(e)(2), all ARD cases arising after January 15, 1983 shall be construed as being equivalent to a conviction in determining whether the minimum mandatory sentence applies. See Commonwealth v. Frost, 342 Pa.Super. 173, 492 A.2d 448 (1985); Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985). In Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986), this Court stated that “[f]or sentencing purposes, an ARD acceptance is identical to a conviction for violating the drunk driving act.” These statements are in apparent conflict with Knepp, supra.
*432However, in Commonwealth v. Potts, 352 Pa.Super. 299, 301, 507 A.2d 1239, 1240 (1986), this Court explained that “75 Pa.C.S.A. § 3731(e)(2) defines the term conviction for sentencing purposes under the act____” In other words, the term “conviction” has a special meaning under the act which is separate and distinct from the ordinary meaning of the word in other contexts. See also Commonwealth, Dept. of Trans, v. McDevitt, 57 Pa.Cmwlth. 589, 427 A.2d 280 (1981), aff'd 500 Pa. 532, 458 A.2d 939 (1983) (“participation in ARD program shall be considered a conviction for purposes of determining whether a person is a habitual offender under Section 1542 of the Vehicle Code”).
The legislature has not turned the nonadjudicatory ARD into a conviction. Rather, it has designated two separate sentencing factors (A.R.D. participation or a prior conviction) as being equally adequate to trigger the imposition of a mandatory minimum sentence.4 That the triggering factors are of unequal weight as sentencing factors is of no consequence. See 42 Pa.C.S.A. § 9714 (prior felonies of varying degrees of severity are equally effective in triggering mandatory sentence provisions). Thus, the conflict was one of semantics and not substance.
CAVANAUGH, J., joins this opinion and also the opinion of WIEAND, J.
. District attorneys have the sole discretion to move a defendant’s admission into ARD. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). Appellate review of the district attorney’s discretion is quite limited. Id., 508 Pa. at 311-312, 495 A.2d at 935; see also Pyle v. Court of Common Pleas, 494 Pa. 323, 431 A.2d 876 (1981); but see Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986) (remand for hearing at which district attorney may place reasons for denying ARD on the record).
. Although the Commonwealth bears the burden of establishing an overriding need for retaining the arrest records, such need is readily apparent in the context of drunk driving cases. See Lutz, supra, 508 *431Pa. at 312-313, 495 A.2d at 936; 75 Pa.C.S.A. §§ 1539(c), 1542(c), and 3731(e)(2).
. "However, it is yet undecided whether the Commonwealth’s right to show bias of a defense witness is sufficient to overcome the prohibition against inquiry into such matters as a juvenile record or admission into an ARD program." Id., 290 Pa.Superior Ct. at 7, 434 A.2d at 101.
. It is important to note that outside of the special context of the mandatory minimum sentence triggering language contained in 75 Pa.C.S.A. § 3731(e)(2) and similar legislative enactments, sentencing courts are not required to give equal weight to ARD participation and prior convictions. See Knepp, supra. Thus, even in a drunk driving case, the sentencing judge may accord ARD participation less weight than a prior conviction in determining whether to sentence the offender to a period of incarceration in excess of the statutory minimum. |
9,645,531 | 2023-08-22 21:27:51.97143+00 | Murphy | null | OPINION
MURPHY, Justice.
Appellant was convicted on a plea of guilty of the offense of driving while intoxicated. Punishment was assessed at thirty days in jail, probated for two years, and a fine of $150.00. Appellant raises four points of error on appeal challenging the trial court’s adverse ruling on his motion to suppress the post-arrest videotape made of appellant and the results of the intoxilyzer test. We affirm.
Appellant was arrested for suspicion of driving while intoxicated. He was taken into a videotaping room. There he was read his legal warning: that he had the right to remain silent, that any statement he made could be used against him, that he had the right to a lawyer to advise him prior to and during any questioning and that he could terminate the interview at any time. Appellant asked to consult with an attorney. He was permitted to call his attorney from the videotaping room. During the telephone conversation, three police officers remained in the room and appellant’s portion of the conversation was recorded. Appellant asked if his attorney could call him back and a police officer told him they could not accept in-coming calls. The officer told him to make his conversation brief, that what he needed to discuss with his lawyer was whether he should participate in the motor skill exercises, whether he should answer any questions and whether he should submit to an intoxi-lyzer test. The appellant was told several times to keep the conversation short. He was finally told that he had only two minutes left. Appellant terminated the conversation. He then consented to perform the motor skills exercises, answered questions and consented to the intoxilyzer test. The result of the intoxilyzer test indicated a breath-alcohol concentration of 0.18 percent. The audio portion of the videotape was suppressed by the trial court.
*233In his first three points of error appellant complains that the trial court erred in admitting the video portion of the videotape, demonstrating his performance on the motor skills exercises and the results of the intoxilyzer test alleging that both were the product of an illegal custodial interrogation under the Fifth and Fourteenth Amendments and under Article I, Section 10 of the Texas Constitution. In support of his contentions appellant cites Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Jamail v. State, 713 S.W.2d 776 (Tex.App. — Houston [14th Dist.] 1986, pet. pending).
In McCambridge v. State, 712 S.W.2d 499 (Tex.Crim.App.1986), the Court of Criminal Appeals, relying on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1969) and Rodriguez v. State, 631 S.W.2d 515 (Tex.Crim.App.1982), held that providing a breath sample for chemical analysis of alcohol concentration is not a testimonial communication which is protected by the privilege against self-incrimination under the Fifth Amendment to the United States Constitution. See 712 S.W.2d at 506-507. In McCambridge, a driving while intoxicated suspect was unsuccessful in his attempt to contact his attorney. See 712 S.W.2d at 500. After the police ignored his repeated requests for an attorney he consented to the intoxilyzer test. See 712 S.W.2d at 501. Police officers are not required to give a suspect Miranda warnings prior to asking him to provide a breath sample. See 712 S.W.2d at 506-507. The court found that McCambridge had no remedy under Edwards and Miranda. See 712 S.W.2d at 506-507. Appellant argues that McCambridge may be distinguished because the court limited its holding to the facts of the case. See 712 S.W.2d at 507, fn. 18. In McCambridge, the court, with regard to the issues before it, stated that: “A different question might be presented if the police officer, in ignoring appellant’s request for counsel under Miranda, had mixed his request for a breath sample with questions that amounted to interrogation.” 712 S.W.2d at 506, fn. 17.
Appellant argues that the facts of his case fall within the above quoted exception to the holding in McCambridge. A review of the record reveals that appellant’s claim is without merit. The officers did not ignore his request for an attorney and they did not mix their request for a breath sample with questions that amounted to interrogation. Appellant was advised before any questioning that he would be requested to perform motor skills exercises, to answer questions, and to submit to a breath test. He was then permitted to telephone his attorney. At his attorney’s request a police officer explained the consequences of refusing or agreeing to perform the exercises and of refusing or taking the intoxilyzer test. The police officer explained that appellant could only have his attorney present during questioning and that they could not wait for his attorney to allow him to be present during the exercises or the intoxilyzer test. Appellant then consented to perform the motor skills exercises. After the exercises were completed the officer reminded appellant of his legal warning and appellant voluntarily answered the officers questions. The answers to those questions were suppressed by the trial court as part of the audio portion of the videotape. Then the officer read to appellant the statutory warning required by Tex.Rev.Civ.Stat.Ann. art. 6701/ -5, § 2(b) (Vernon Supp.1986), and asked if he understood the warning. Appellant responded by asking what role his attorney could play and the officer informed him that his attorney could only advise him whether or not to take the test. Appellant then consented to the intoxilyzer test.
The conduct of the police did not involve a mixing of the request for a breath sample with questions that amounted to interrogation. There was no coercion by the police. Appellant’s acts were voluntary and there is no indication that he was confused. This case does not come within the exception noted in McCambridge.
Appellant also argues that the holding in Jamail v. State, 713 S.W.2d 776, 779 (Tex.*234App. — Houston [14th Dist.] 1986, pet. pending), requires that the breath test and videotape be suppressed. In Jamail, this court distinguished McCambridge, stating: “Under the facts of this- case, we are unable to separate the wrongful custodial interrogation from the consent for a breath or blood sample.” Jamail v. State, 713 S.W.2d at 770. We have determined that the McCambridge decision is controlling in this case. Appellant voluntarily answered questions after being informed of his rights and after being permitted to telephone his attorney. Appellant’s consent to perform the exercises and to take the breath test was knowing and voluntary. Jamail is not applicable. We conclude that the admission of the results of the intoxi-lyzer test did not violate appellant’s rights under the Fifth and Fourteenth Amendments to the United States Constitution.
We also hold that appellant’s Fifth and Fourteenth Amendment rights were not violated by admission of the video portion of the videotape. It has been held in Texas that videotaped recordings of a driving while intoxicated suspect are non-testimonial and their admission into evidence does not involve a defendants rights against self-incrimination under the Fifth and Fourteenth Amendments. See House-wright v. State, 154 Tex.Cr.R. 101, 225 S.W.2d 417, 418 (1949) and Delgado v. State, 691 S.W.2d 722, 723-724 (Tex.App.— San Antonio 1985, no pet.) The videotape is similar in character to the breath test results and thus under McCambridge, appellant’s federal constitutional rights are not violated by their admission. See McCambridge, at 507-508.
Appellant further claims that the admission of the breath test results and the videotape violated his rights under Art. I Sec. 10 of the Texas Constitution. The Court of Criminal Appeals held in Rodriguez v. State, 631 S.W.2d 515, 517 (Tex.Crim.App.1982), that the taking of a breathalizer test is not a testimonial communication that Article I, Section 10, of the Texas Constitution or the Fifth Amendment to the United States Constitution seek to protect. The videotape of the motor skills exercises is of the same character as the intoxilyzer test results, therefore we conclude that appellant’s rights under Article I, Section 10 are not greater than those under the Fifth and Fourteenth Amendments. Appellant’s first three points of error are overruled.
In his fourth point of error appellant claims that the trial court erred in admitting the results of the intoxilyzer test over his objection when the proper predicate had not been established by the state.
In Cody v. State, 548 S.W.2d 401 (Tex.Crim.App.1977), the court described the predicate which must be laid before the results of a breath test may be introduced into evidence: (1) the use of properly compounded chemicals; (2) the existence of periodic supervision over the machine by one who understands scientific theory of the machine; (3) proof of the result of the test by a witness qualified to translate and interpret such result so as to eliminate hearsay. Id. at 404.
In his written motion to suppress appellant argued that the operator of the intoxi-lyzer was incompetent, that the chemicals were improperly compounded and the operator was not under reasonable periodic supervision. He also alleged that the result of the intoxilyzer was invalid because the test did not conform to the Texas Chemical Breath Testing Regulations promulgated by the Texas Department of Public Safety. The record indicates that no evidence was presented on the portion of the motion to suppress complained of on appeal and that appellant never secured a final ruling on that portion of the motion to suppress. The trial court indicated, at the time of the motion hearing, that he did not have enough information before him to rule on the merits of the motion and indicated that he would consider the motion at trial. The prosecutor stated that appellant’s eviden-tiary claims on the validity of the intoxilyzer test results would be addressed at trial.
The Court of Criminal Appeals has held that a pre-trial motion to suppress, supported by evidence, is sufficient to preserve error on appeal. See Writt v. State, 541 S.W.2d 424, 426 (Tex.Crim.App.1976) *235(qualifying the holding in Riojas v. State, 530 S.W.2d 298 (Tex.Crim.App.1975)). The court has also found that oral pre-trial motions to suppress, unsupported by evidence, do not preserve error on appeal when no timely objection is voiced to the admission of the evidence sought to be suppressed at trial on the merits. See Ross v. State, 678 S.W.2d 491, 493 (Tex.Crim.App.1984). We believe the rule stated in Ross v. State is properly applicable to the facts of appellant’s case. Although a written motion to suppress was filed appellant offered no evidence to support his allegations. Additionally, the trial court indicated that it would consider appellant’s objections if raised during the trial on the merits:
THE COURT: for the purpose of the motion to suppress I am ruling it all admissible. On the case in chief it may be something else.
This case involved a plea of guilty pursuant to a plea bargain agreement. Therefore, no further objection was raised to the admission of the breath test. Appellant’s fourth point of error is overruled.
The judgment is affirmed. |
9,645,532 | 2023-08-22 21:27:51.976145+00 | Robertson | null | ROBERTSON, Justice,
concurring.
I concur in the judgment affirming the conviction. However, I believe that addressing the merits of the issues appellant presents in this appeal violates the time honored principle that courts do not academically determine issues not necessary to the disposition of a case, nor issue advisory opinions. As the supreme court stated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968): “The issue is not the abstract propriety of the police conduct, but the admissibility against [appellant] of the evidence.”
Prior to trial appellant filed various motions, including:
1. DWI Motion to Suppress;
2. Motion to Produce Exculpatory and Mitigating Evidence;
3. Motion to Require Witness Statements be Made Available for Cross-Examination;
4. Motion to Shuffle Jurors;
5. Motion to Permit Counsel for Defendant to Make Opening Argument Prior to State’s Case in Chief;
6. Motion to Direct Court Reporter to Record Specified Testimony;
7. Motion to Compel Election;
8. Accused’s Motion for Discovery in DWI Prosecution;
9. Motion for Copies of Court’s Charge to be Made Available to Each Member of the Jury;
10. Motion to Allow Jurors to Take Notes; and
11. Motion for Extension of Voir Dire Time.
A careful examination of the record reveals that the only motion the trial court attempted to rule upon was the DWI Motion to Suppress. In that motion appellant requested the court to suppress: (1) the post-arrest audio and video recorded interview between appellant and the police officers, and (2) the chemical test for intoxication. During a very brief proceeding before the trial court in which both appellant and the state were seeking to solidify the court’s ruling on the motion, the following occurred:
MR. TRICHTER (appellant’s counsel): For the record, if I may, specifically, we are complaining about the introduction of the breath-test, evidence of the breath-test, the result. We are complaining about the introduction of the video-tape that the — is ‘State’s Exhibit Numbers One and Two’. After the time Mr. Garcia hangs up the telephone wherein the video-tape, it’s clear he just finished talking to his counsel, Ron Norwood. Further, we object to any statements made by Mr. Garcia after he invokes his right to have an attorney. Further, we also object to any observation of the officer with reference to the video-taped exercises after he invoked his right to the presence of counsel.
THE COURT: Your objections are overruled.
MS. HAYDEN (state’s counsel): For the record, any of these — substance of the motion he has presented in his motion involving the intoxilyzer will be ad*236dressed at trial if they come up again. As far as the introduction of the intoxi-lyzer result.
THE COURT: Okay. Is it — it’s the Court’s the Court will now rule upon or already ruled upon the admissability [sic] of the defendant. For the purpose of the motion to supress I am railing [sic] it all admissable [sic]. On the case in chief it may be something else.
MR. TRICHTER: The problem — I don’t know how to voir dire the jury unless you tell me which statements are su-pressed [sic] and those which are not supressed [sic].
THE COURT: Alright. In all probability I will rale that all of the audio will be— will not be admitted. None of the audio will be permitted after he exercised his right to the attorney. All of the video will be. Does that answer your question?
MR. TRICHTER: What the Court is saying the entire vieo [sic] ‘State’s Exhibit Number One and Two’ will admitted into evidence. The video and not the audio. That would also include the showing of him, Garcia, doing exercises?
THE COURT: Yes.
MR. TRICHTER: Does the Court’s ruling also including [sic] the statement made by the defendant prior to the video being made?
THE COURT: You’re talking about statements made on the video?
MR. TRICHTER: Of the video-tape.
MS. HAYDEN: At the scene.
MR. TRICHTER: At the scene where he requests counsel.
THE COURT: I don’t have enough on that to rale. If its shown that it was made while under arrest and maybe not res gestae maybe I will deny them.
MR. TRICHTER: I understand, Your Honor. The motion itself is more broad than what you have just ruled upon. There’s also an argument made in the motion with reference to an unreasonable search and seizure.
MS. HAYDEN: No evidence has been presented to that particular part of the motion.
MR. TRICHTER: We would agree there hasn’t been.
THE COURT: I can’t rale on that at this time.
MR. TRICHTER: We would as [sic] the Court for a ruling on that.
THE COURT: Well, it’s denied. Anything else?
MR. TRICHTER: The defendant has nothing further, Your Honor.
MS. HAYDEN: The State has one other position if this is just raised at trial in regards to the statement made by the defendant outside the video. Is the Judge holding now you will wait until trial and more evidence is presented on that issue?
THE COURT: At this time it is not ad-missable or anything else. You will have to hear the facts at that time in order to make a ruling.
MS. HAYDEN: The State has nothing further.
THE COURT: Does that solve everything for today?
MR. TRICHTER: I think it does, Your Honor. I’d like a little time to speak with my client and see what his feelings are, now.
THE COURT: Okay.
Subsequently, appellant entered a plea of guilty and punishment was assessed in accordance with a plea bargain agreement. No evidence, even that which the court refused to suppress, was adduced before the court.
Based upon the above proceeding I have difficulty in finding that the ruling of the trial court was definitive and final, thereby authorizing our review. However, since the state does not challenge it, I will assume the ruling sufficient and address what I consider to be the more basic issue: Whether this court should address the merits of appellant’s contentions.
The information in this cause contained two paragraphs. The first charged the offense by reason of appellant “not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body” and the second *237charged the offense by reason of appellant “having an alcohol concentration of at least 0.10 in his breath.”
Thus, even if the trial court had granted appellant’s motion and suppressed all of the video interview and the results of the chemical test, the state still could have proceeded to trial and secured a conviction on the first paragraph of the information.
During oral argument appellant’s counsel forcefully maintained that Tex.Code Crim.Proc.Ann. art. 44.02 (Vernon 1979) places no restriction upon what “matters which have been raised by written motion filed prior to trial” are appealable. Counsel further argued that there is no requirement that the motion be dispositive of the case. He then asserted that even though appellant entered a plea of guilty and no trial resulted, an adverse ruling on any of the pre-trial motions, even the motions concerning selection of the jury and trial procedure before the jury, would be appeal-able. I do not agree. Article 44.02 is not to be so broadly interpreted.
While the court of criminal appeals has never been presented with this exact issue, it has recognized that one of the purposes of article 44.02 “is to encourage guilty pleas where a search and seizure (or other pre-trial motion) is the only matter that the defendant wishes to pursue.” Isam v. State, 582 S.W.2d 441 (Tex.Crim.App.1979) (emphasis added). Certainly, article 44.02 was not intended to be the vehicle by which an accused can appeal an adverse ruling on any motion filed prior to trial. If the law was as broad as appellant contends the court could not have reached the result it did in Ferguson v. State, 571 S.W.2d 908 (Tex.Crim.App.1978). There, in addressing an adverse ruling on a pre-trial motion to suppress evidence the court relied upon its reasoning in Stiggers v. State, 506 S.W.2d 609 (Tex.Crim.App.1974) and held: “Where no evidence obtained as a result of the search is introduced into evidence, no error with respect to such search is presented for review.”1
I believe the recent unanimous opinion of the court of criminal appeals in McGlynn v. State, 704 S.W.2d 18 (Tex.Crim.App.1986) (en banc) dictates the result we should reach in this case. There, an appellant also asserted error in the trial court’s denial of her motion to suppress evidence. However, the court pointed out that the “record in this case simply does not show that anything the officer seized was methylphe-nidate, much more than it was the same methylphenidate, to which she pleaded guilty to possessing.” The court then concluded: “unless and until we are confident about what fruits of a search have somehow been used, the Court need not decide whether the search was constitutionally permissible.”
This same rationale should apply here. Unless and until it is shown that the evidence sought to be suppressed was essential to, and was used, or would be used, in the resulting trial, the appellate court need not determine whether the trial court ruling was erroneous. To hold to the contrary would leave this court academically to determine non-issues and that is not the intent of article 44.02. Accordingly, we should hold that in order to appeal a ruling on a motion filed prior to trial under the provisions of article 44.02, the ruling complained of must be on a motion that, if granted, would have disposed of the case.
I concur in the judgment affirming the conviction.
. While a portion of Ferguson has been subsequently overruled by Morgan v. State, 688 S.W.2d 504 (Tex.Crim.App. 1985), this rule was left intact. |
1,516,491 | 2013-10-30 06:32:55.54608+00 | Blackmar | null | 726 S.W.2d 723 (1987)
MISSOURI FARMERS ASSOCIATION, Plaintiff-Respondent,
v.
Leonard G. KEMPKER and Rosemary Kempker, Defendants-Appellants.
No. 68607.
Supreme Court of Missouri, En Banc.
March 17, 1987.
Rehearing Denied April 14, 1987.
*724 James F. Crews, Tipton, for defendants-appellants.
Kelly Pool, Craig S. Johnson, Jefferson City, for plaintiff-respondent.
BLACKMAR, Judge.
Plaintiff Missouri Farmers Association (MFA) sued on an account and some notes. Defendant Kempker filed a counterclaim alleging that plaintiff had supplied him with defective feed. The trial court entered judgment for MFA on its claim, and for Kempker on the counterclaim for $20,000. Kempker alone appealed, claiming that the trial court improperly excluded evidence of loss of milk production and of the loss of calves through failure of cows to conceive. The court of appeals reversed on the authority of Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426 (Mo. banc 1985), which it read as allowing damages for loss of milk production and calves, in addition to diminution of value of the individual cows. We granted transfer to consider the proper application of Hoover's Dairy, and, taking the case as on original appeal, affirm the judgment because Kempker has not laid a proper foundation for the admission of the excluded evidence. In reaching our conclusion on the only issue presented we consider the *725 evidence from Kempker's point of view, and give no attention to MFA's witnesses.
Kempker had operated a dairy farm for many years, with approximately 60 milking cows. In 1980 he decided to expand to about 200 head, and purchased pregnant and recently freshened heifers for the expansion.
In April of 1981 he began feeding the milk cows RPS-16 feed, supplied by MFA, in addition to corn and wheat silage and alfalfa produced on his farm. The use of RPS-16 was discontinued in February of 1982, after milk production was found to be disappointing.
A single sample of RPS-16 feed preserved by Kempker was found on analysis to contain approximately 1% urea, which was not an ingredient listed on the label. The time of taking of the sample is not shown. There is a disagreement among authorities as to whether urea is a harmful element in cattle feed. Kempker produced the testimony of Dr. Hersel Robertson, an expert in veterinary nutrition, who expressed the opinion that it should not be used for feeding lactating cattle. The evidence of causation of damages is scanty, but Kempker had a verdict on the counterclaim for $20,000 and MFA did not appeal from this verdict.
Kempker's evidence showed that the cows which had been fed RPS-16 showed symptoms of malnutrition and that their milk production declined. Problems with these cows continued so long as they remained with the herd. Twenty-five cows were sold off in 1982, 48 in 1983, 78 in 1984 and 7 in 1985, because they were no longer useful for milk production. The purchase price of these cows was $144,260 and the selling price $65,886, indicating a claimed loss in value of $78,374. Ten cows, of a value of $1,400 each, died. (There is no evidence as to the cause of death). Kempker was also allowed to prove without objection that he lost 189,807 pounds of milk production in 1981 and 179,468 pounds of production of a value of $210,000 in 1982.
His sole complaint on appeal is that he was not allowed to introduce evidence of lost calf production after 1982 amounting to $10,000,[1] and was not allowed to show loss of milk production in 1983 in the amount of $204,037, in 1984 in the amount of $253,215, and in 1985 in the amount of $60,790. He made an offer to prove these figures, conceding that, because of the fewer number of milk cows, expenses would have been reduced by $52,888 in 1983, and $92,553 in 1984.
MFA argues that the measure of damages for injury to a milk cow is the difference in the value immediately before and immediately after the injury, citing several cases.[2] It goes on to argue that the offered and rejected evidence would permit the duplication of damage, to the extent that it allows recovery for the loss of value of a cow and also for milk and calf production after that same cow has been sold or disposed of. Kempker argues that, under Hoover's Dairy, he may recover both for diminution in value, and for loss of milk and calf production.
We do not accept MFA's broad contention. The rule it cites would be appropriate for injury to a mule or a dog. When cows in a milk producing herd are injured in such a way that their production of calves and milk is interfered with, there may be recovery for loss of milk and calf production until a cow is sold or disposed of, and for loss of subsequent production until a satisfactory replacement cow could be obtained. See Divelbiss v. Phillips Petroleum Co., 272 S.W.2d 839 (Mo.App. 1954). The proprietor need not liquidate a cow simply because her milk production is declining, or has stopped. He may wait to see whether there will be improvement. Any questions as to claimant's having taken reasonable steps to mitigate damages *726 are for the jury. The limiting circumstance is that there may be no recovery for future milk and calf production of a cow which has been disposed of, after a replacement of comparable capacity has been or could have been acquired. State v. Morison, 148 Colo. 79, 365 P.2d 266, 272-73 (1961); Snyder v. Bio-Lab, Inc., 94 Misc. 816, 405 N.Y.S.2d 596 (N.Y.Sup.Ct.1978); Kintner v. Claverack Rural Electric Co-operative, Inc., 329 Pa.Super. 417, 478 A.2d 858, 861-62 (1984).
Our holding on this proposition does not conclude the case. Kempker is entitled to reversal only if he can demonstrate error prejudicial to his rights. When the alleged error consists of the rejection of evidence, the appellant is required to make an offer of proof showing that the rejected evidence is admissible and that any required foundation has been laid. We will not reverse unless persuaded that the trial court erred in rejecting the evidence. We are not confined to the objections made. The trial court's action will be upheld if there is any recognized ground on which the trial judge could have rejected the evidence.[3]
Tested by this standard, Kempker has failed to demonstrate error. He made a lengthy offer to prove additional items of damage, asserting that the figures adduced were supported by his records. The problem, however, is not with the accuracy of the figures but with their relevance and materiality. The appellant must show that the figures represent damages attributable to the feed furnished by MFA which the jury found to be defective. The trial judge is charged with scrutinizing the evidence for relevancy and materiality. Without a substantial evidentiary linkage between the feed and the damage there is no basis for admission.
The first part of the offer of proof sought $10,000 in damages attributed to loss of calf production during the first recycling of the newly purchased heifers. The only testimony which could possibly support a connection between feed and reproduction was that of Dr. Hersel Robertson. He does not recommend that urea be included in a ration for dairy cows because it is a non-protein nitrogen which the cow converts into protein by expending energy, which might otherwise be used in milk production and in building up resistance to disease. If a cow's diet does not provide adequate energy, there can be problems in reproduction. The doctor was not asked to, and did not, express an opinion that the ingestion of RPS-16 feed caused a decrease in the reproduction rate of Kempker's cows. Nor did he express an opinion as to when normal reproduction would resume, after correction of any diet deficiencies.
Dr. Dennis Markway, Kempker's regular veterinarian, was called by Kempker to examine the cows in August of 1981. Some cows were not coming into heat regularly. Some of them were thin but others appeared healthy. He initially attributed the problems to a disease known as bovine viral diarrhea (BVD), and recommended vaccination for this condition. There was also a high incidence of mastitis, which can also affect reproduction. Markway was unable to point to urea as a causal agent in the diminished rate of reproduction. He said that respected authorities on animal nutrition believed that urea was a proper ingredient in the ration of lactating cattle, and that a level of one percent in feed was not improper.
Kempker has failed to lay a sufficient evidentiary foundation for the admission of his computation of reproductive losses. Neither of his experts expressed an opinion on causation, in terms of reasonable veterinary certainty or even reasonable probability. The evidence fails to exclude other possible causative factors, or to provide any basis for apportionment among the several hypotheses. Without such basis the evidence is speculative. See Kane v. Chicago, B. & Q. R.R. Co., 271 S.W.2d 518, 521 (Mo.1954), cert. denied 348 U.S. 943, 75 S. Ct. 365, 99 L. Ed. 738 (1955); Cato v. Modglin, 545 S.W.2d 307, 311 (Mo.App. 1977). Nor is there a scintilla of evidence that problems with a feed which was abandoned early in 1982 could affect calf production *727 in 1983 and later years. Because of these deficiencies, the trial court did not err in rejecting this portion of the offer of proof.
The balance of the offer of proof related to diminished milk production in 1983, 1984, and 1985. Evidence of loss of production in pounds for 1981 and 1982, and for dollar value of loss of production in 1982, had previously been received. The record is barren of evidence that deficiencies in a feed ration which was not fed after February of 1982 could have any effect on milk production ten months later. Dr. Robertson testified that it would take a "considerable length of time" for milk production to start back up after undernourished cows were restored to an adequate feed ration"It didn't start up the same day." He gave no further particulars. Neither of Kempker's experts, furthermore, expressed any opinion going beyond suggestion that deficiencies in the feed supplied by MFA caused any decline in milk production, at any time.[4] Because of these inadequacies in the record, there was no error in rejecting the proffered evidence of loss of future production.
Hoover's Dairy does not mandate a contrary result. That case did not deal with admissibility of evidence of damages. It simply held that remittitur was not available at the appellate level to correct a verdict which was claimed to be excessive because it was based on duplicating items. There was no purpose of changing the law governing damages. It was not intended to hold that there could be recovery of the full loss of value of a cow and also for milk and calf production after that cow could have been replaced.
We need not discuss other inadequacies in the offer at length. Kempker admitted that some of the cows whose production is covered in the offered figures had been sold or had died, but made no effort to show that replacements were not available on the market. He was not experienced in the operation of a 200 milkingcow facility, and the evidence of loss of profits, which was based on the projected production of a herd of this size, is speculative.[5] There is also a question whether a single sampling justifies the conclusion that all of the RPS-16 supplied to Kempker contained urea. Under the totality of the record, we are unable to say that the trial judge erred.
It is also appropriate to consider the jury's verdict of $20,000. Kempker was allowed to introduce evidence of items of claimed damage in an amount exceeding $200,000. The jury necessarily concluded that only a small proportion of his total losses were attributable to the feed supplied by MFA. It is highly doubtful that the award would have been higher if more remote items of damage had been admitted. Counsel complains that he was not permitted to argue loss of production, but admits that nothing in the record shows any limitation of what might be argued, and asserts that the limiting directions were given during an off-the-record conference in chambers. We look only to the record. Counsel who want to preserve claims of error must make sure that any rulings or directions about which they complain are transcribed so that they may be included in the record on appeal.
We reverse only for demonstrated error prejudicial to the appealing party. This record shows none, and the judgment is affirmed.
All concur.
NOTES
[1] Kempker's witness Berhorst, who kept records of calf production, testified that 188 calves were born in 1982. This would indicate that substantially all of the milk cows produced calves during that year. One hundred fifty-two calves were born in 1983, and 133 in 1984.
[2] Wright v. Edison, 619 S.W.2d 797 (Mo.App. 1981); Barber v. M.F.A. Milling Co., 536 S.W.2d 208 (Mo.App.1976); Jasper v. Wabash Ry. Co., 24 S.W.2d 243 (Mo.App.1929); Snyder v. Bio-Lab, Inc., 94 Misc. 816, 405 N.Y.S.2d 596 (N.Y. Sup.Ct.1978).
[3] Sampson v. Missouri Pac. R.R. Co., 560 S.W.2d 573, 586 (Mo. banc 1978); Eller v. Crowell, 361 Mo. 1151, 238 S.W.2d 310, 313 (1951).
[4] An expert's opinion on causation phrased in terms such as "might" or "could" is insufficient to support a finding. Shackelford v. West Central Electric Cooperative, Inc., 674 S.W.2d 58, 62 (Mo.App.1984).
[5] See Coonis v. Rogers, 429 S.W.2d 709, 713-14 (Mo.1968); Tnemec Co. v. North Kansas City Development Co., 290 S.W.2d 169 (Mo.1956). "This court and the courts of appeals of this state have been strict in evaluating the sufficiency of the evidence warranting a recovery of damages for loss of profits. Our courts have refused to permit a jury to speculate, without substantial basis, as to what might be probable or expected profits as an element of damages." Id. at 174. |
1,516,492 | 2013-10-30 06:32:55.560735+00 | Kram | null | 916 F. Supp. 1308 (1996)
Lynn RUDOLPH, Joey Abney, Theodore Toler, Charles H. Hamilton, Kenneth Iniss, Gary Vann, Jeffrey Davis, Robert S. Shaheer, Ronald Gantt, George Lewis, and LeRoy Williams on behalf of Themselves and a Class Consisting of All Similarly Situated Individuals, Plaintiffs,
v.
Mario CUOMO, Governor of New York State, Patrick J. Bulgaro, Director of the New York State Division of the Budget, Thomas A. Coughlin III, Commissioner of New York State Department of Correctional Services, Christopher Artuz, Acting Superintendent of Green Haven Correctional Facility, Cyril Coefield, Acting Deputy Superintendent of Security of Green Haven Correctional Facility, Defendants.
Thomas BERRY, Stanley Punter, and John Lopez, Plaintiffs,
v.
Mario CUOMO, Governor of New York State, Robert Abrams, Attorney General of New York State, Thomas A. Coughlin III, Commissioner of New York State Department of Correctional Services, Charles J. Scully, Superintendent of Green Haven Correctional Facility, and Wallace Oldham, Deputy Superintendent of Green Haven Correctional Facility, Defendants.
Nos. 92 Civ. 3402, 92 Civ. 4735, 92 Civ. 4737, 92 Civ. 5335, 93 Civ. 1414 and 92 Civ. 7365 (SWK) (THK).
United States District Court, S.D. New York.
February 21, 1996.
*1309 *1310 *1311 Debevoise & Plimpton by Rodney W. Ott, New York City, for Plaintiffs.
Dennis C. Vacco, Attorney General of the State of New York by Barbara K. Hathaway, New York City, for Defendants.
KRAM, District Judge.
In these consolidated civil rights actions brought pursuant to 42 U.S.C. § 1983, plaintiffs, a class of inmates including all inmates incarcerated at New York State's Green Haven Correctional Facility ("Green Haven") from January 1, 1992 to the present, who were or are now subject to either of the two policies at issue in this case, challenge as unconstitutional two changes in the regulations of the New York Department of Correctional Services ("DOCS"): (1) a one-time, three-week pay lag of inmate wages; and (2) a mandatory five dollar disciplinary surcharge imposed when an inmate is found guilty of certain violations of prison misbehavior rules. On May 23, 1995, Magistrate Judge Theodore H. Katz issued a Report and Recommendation (the "Report") recommending that defendants' motion for summary judgment dismissing all of plaintiffs' claims be granted. Plaintiffs now seek an order rejecting the Report. For the reasons set forth below, plaintiffs' motion is denied and the Report is adopted in full.
BACKGROUND[1]
I. The Pay Lag Policy
Green Haven is a correctional facility located in Stormville, New York housing state prisoners. According to prison regulations, all able-bodied Green Haven inmates must perform work assignments during their period of incarceration. See Green Haven Inmate Orientation Handbook ("Green Haven Handbook"), annexed to the Affidavit of Rodney W. Ott, dated Feb. 28, 1994 (the "Ott Aff."), as Exh. "11," at 41-42. While inmates may request a particular work assignment, prison officials do not guarantee that such requests will be granted in all instances. Id. The rate of pay ranges from sixty cents to two dollars per day, depending on the nature of the work.[2]See Complaint at ¶ 49; Answer at ¶ 17.
Earnings accumulated in this way are not given directly to inmates, but rather are placed in a special account. Inmates are allowed to deduct earnings from their accounts by sending money home to family members, ordering from approved catalogs or making purchases at the facility commissary. See Defs.' Interrog.Resp. at No. 5. When inmates make a monetary transaction, they fill out a "withdrawal slip" and DOCS debits their accounts accordingly. Under this system, inmates never actually receive or handle cash payments for their work. See Deposition of Russell DiBello, taken on July 19, 1993, annexed to the Ott Aff. as Exh. "4" ("DiBello Dep."), at 111-13.
On January 9, 1992, DOCS implemented a new policy whereby state prison inmates' *1312 compensation for work performed while incarcerated was reduced by twenty percent over a period of fifteen weeks (the "Pay Lag Policy"). In other words, DOCS withheld the equivalent of three weeks pay from each inmate. The Pay Lag Policy provided that inmates would be entitled to receive the withheld funds, known as "lagged payroll," upon release from the prison system, a period of time which varies from inmate to inmate.
II. The Disciplinary Surcharge Policy
Under state law, DOCS' employees are authorized to issue a misbehavior report ("MR") to any inmate who violates prison rules. See N.Y.Comp.Codes R. & Regs. tit. 7, § 270.2. After an MR is entered, the charge is reviewed by an area supervisor and then forwarded to a reviewing officer. See Deposition of Cyril Coefield, taken on Nov. 3, 1993, annexed to the Ott Aff. as Exh. "10" (the "Coefield Dep."), at 18-19. The reviewing officer either dismisses the charge or designates it as a Tier I, Tier II or Tier III violation, depending on several factors, including the frequency of the inmate's violations and the severity of the conduct. See Green Haven Handbook at 14. Because many of the violations allow for hearings in a range of tiers, see N.Y.Comp.Codes R. & Regs. tit. 7, § 270.2, similar MRs are often designated to different tiers, see N.Y.Comp. Codes R. & Regs. tit. 7, §§ 270.1 and 270.2.
After a violation has been assigned to a certain tier, the reviewing officer refers the MR to a hearing officer and a hearing is conducted. The level of due process accorded an inmate at the hearing corresponds to the tier to which the infraction has been assigned. See N.Y.Comp.Codes R. & Regs. tit. 7, § 270. Tier I violations, representing the least severe infractions, are subject to a violation hearing and are adjudicated by a prison sergeant. Tier II violations give rise to a disciplinary hearing and are adjudicated by a lieutenant. Tier III violations, the most severe penalty level, are adjudicated at a superintendent's hearing, presided over by a captain or other high level employee such as a deputy superintendent, senior counselor, steward or education director. See Coefield Dep. at 20-22. In no circumstance may a charging, investigating or reviewing officer serve in an adjudicative role at the hearing. Inmates found guilty of Tier II or Tier III offenses are entitled to an administrative appeal and subsequent judicial review in a state court Article 78 proceeding. See N.Y.Comp. Codes R. & Regs. tit. 7, §§ 253.8 and 254.8; N.Y.Civ.Prac.L. & R. §§ 7801, et seq.
On December 18, 1991, the New York State Commissioner of Correctional Services issued a new order, effective January 1, 1992, requiring inmates convicted of misbehavior in a Tier II or Tier III disciplinary hearing to pay a five dollar mandatory disciplinary surcharge (the "Disciplinary Surcharge" or "Disciplinary Surcharge Policy"). See N.Y.Comp.Codes R. & Regs. tit. 7, §§ 253.7 and 254.7. Monies collected from the Disciplinary Surcharge are deposited in the state general fund and are not allocated specifically to the DOCS budget. See Affidavit of Donald Selsky, dated Apr. 28, 1994, at ¶ 5.
III. The Present Proceedings
On May 11, 1992, plaintiffs brought suit challenging the Pay Lag and Disciplinary Surcharge Policies. In their complaint, plaintiffs claim that the Pay Lag Policy is unconstitutional in that it (1) deprives them of property without due process of law because they possess a property right in the timely payment of their compensation; (2) violates the Takings Clause of the Fifth Amendment; and (3) impairs their rights under the Constitution's Contracts Clause.
With respect to the Disciplinary Surcharge Policy, plaintiffs claim several constitutional violations: (1) violation of inmates' rights to procedural due process based on the introduction of bias into the disciplinary system; (2) infringement of inmates' substantive due process rights when state officials allow forfeitures and confiscations of property without explicit statutory authorization; and (3) violation of the Equal Protection Clause on the ground that the Disciplinary Surcharge does not expressly provide for a waiver in cases of indigence or unreasonable hardship, despite the fact that other mandatory surcharges do provide such a possibility.
On May 23, 1995, Magistrate Judge Katz issued his Report recommending that the *1313 Court grant defendants' motion for summary judgment dismissing the complaint. First, the Magistrate Judge held that the Pay Lag Policy does not violate any of the asserted constitutional protections. The Magistrate Judge found that while inmates have a property interest in wages they have earned, Report at 9-11, they have no such property interest in the timely payment of these wages, id. at 12-15. With respect to the Takings Clause claim, the Magistrate Judge found that since plaintiffs lack a vested property right in the prompt payment of inmate wages, there could be no compensable taking, and, furthermore, plaintiffs lack a reasonable investment-backed expectation in such prompt payment. Id. at 16-18. Finally, the Magistrate Judge determined that the Pay Lag Policy does not impair their contract rights under the Contracts Clause because there is no contract between plaintiffs and the state, and that even if such a contract exists, it does not provide for the timely payment of wages.
Second, the Magistrate Judge dismissed plaintiffs arguments with respect to the Disciplinary Surcharge Policy. Magistrate Judge Katz found that any interest on the part of adjudicating officers is far too remote to give rise to an inference of bias. Id. at 26-35. The Report also concludes that the Disciplinary Surcharge Policy does not involve a forfeiture without due process of law, and that even if such actions constitute a forfeiture, there is adequate statutory authority for the Disciplinary Surcharge Policy. Id. at 35-39. Finally, the Magistrate Judge found that the lack of an indigency waiver in the Disciplinary Surcharge Policy does not violate the Equal Protection Clause because plaintiffs were not similarly situated to those unincarcerated individuals who may obtain indigency waivers for other surcharges. Id. at 40-41. Furthermore, the Magistrate Judge found that the Disciplinary Surcharge is rationally related to a legitimate penological interest, and thus does not run afoul of equal protection guarantees. Id. at 42-44.
On July 7, 1995, plaintiffs filed objections to the Report, arguing that the Magistrate Judge reached incorrect conclusions of law and fact on nearly every issue. With respect to the Pay Lag Policy, plaintiffs argue that the Magistrate Judge erred by: (1) resolving disputed factual issues relating to the significant hardship that the Pay Lag Policy imposes on inmates; (2) holding that DOCS could withhold inmate wages for years without violating the Due Process Clause; (3) finding that no taking occurred within the meaning of the Takings Clause even though inmates are not compensated in any way for their withheld wages; and (4) holding that DOCS' unilateral alteration of the terms of inmate employment is permissible under the Contracts Clause.
As for the Magistrate Judge's findings vis-a-vis the Disciplinary Surcharge Policy, plaintiffs contend that he erred by: (1) resolving disputed factual issues relating to the significant discretion DOCS gives its employees in the operation of the DOCS disciplinary system; (2) holding that DOCS properly clarified the purpose of the Disciplinary Surcharge; (3) finding that DOCS' employment of improper incentives in the disciplinary process does not violate the Due Process Clause; (4) determining that the confiscation of inmate funds without express statutory authorization does not violate the Due Process Clause; and (5) holding that DOCS can deny inmates indigency waivers of the Disciplinary Surcharge without violating the Equal Protection Clause. The Court shall address these objections below.
DISCUSSION
I. Standard of Law
Rule 72(b) of the Federal Rules of Civil Procedure governs determinations by magistrate judges with respect to dispositive motions. See Fed.R.Civ.P. 72(b). Specifically, Rule 72(b) provides that, where a magistrate judge issues a Report and Recommendation that is dispositive of a claim or defense, the court must review de novo those portions to which the parties object.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any *1314 material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence in support of the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 2552-54, 91 L. Ed. 2d 265 (1986). The nonmoving party then must meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S. Ct. at 2552.
The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir.1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 1608-09, 26 L. Ed. 2d 142 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir.1988); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987). But the court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative. Id. at 249-50, 106 S. Ct. at 2510-11; Knight v. United States Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir.1986), cert. denied, 479 U.S. 1088, 107 S. Ct. 1295, 94 L. Ed. 2d 151 (1987). To determine whether the nonmoving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion. See, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.
Once the nonmoving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment must be denied unless the moving party comes forward with additional evidence sufficient to satisfy his or her ultimate burden under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. at 330 n. 2, 106 S. Ct. at 2556 n. 2 (Brennan, J., dissenting). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 1592-93, 20 L. Ed. 2d 569 (1969)).
II. The Pay Lag policy
A. Resolution of Disputed Factual Issues
It is not the role of a judge to resolve disputed issues of material fact on a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S. Ct. at 2510 (in determining whether summary judgment is appropriate, "the judge's function is not himself to weigh the evidence and determine the truth of the matter"); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991); Phillips v. Kidder, Peabody & Co., 782 F. Supp. 854, 859 (S.D.N.Y.1991).
Plaintiffs allege that the Magistrate Judge erred in resolving factual disputes regarding whether the Pay Lag Policy imposed significant hardships on plaintiffs. Specifically, plaintiffs claim that the Magistrate Judge suggested that the effect of the Pay Lag Policy on the plaintiffs was insubstantial because "[p]laintiffs' food and shelter are supplied by the State." See Pls' Objs. at 4 n. 1 (quoting Report at 20). Plaintiffs maintain *1315 that, in fact, DOCS had instituted a system in which inmates are expected to purchase necessities, and that the Magistrate Judge's disregard for this evidence vitiated his analysis of whether plaintiffs possessed a reasonable and legitimate expectation of prompt payment of their wages under the Due Process Clause.
In fact, the Magistrate Judge made no such finding with respect to the due process claim. In formulating their argument, plaintiffs have taken language from a portion of the Report out of context in which the Magistrate Judge was attempting to distinguish various cases relevant to the Contracts Clause claim. There is no evidence that this alleged "finding of fact" contaminated the Magistrate Judge's objectivity with respect to the due process issue in any way, and plaintiffs do not indicate the connection, if any, between this determination and the due process issue. Insofar as the Magistrate Judge could be deemed to have made a finding of fact with respect to this issue, there is no evidence that it has any impact whatsoever on the determination of the summary judgment issue. At any rate, since the Court reviews the Magistrate Judge's Report de novo, this Court will not adopt the Magistrate Judge's determination on this subject.
B. Due Process Claim
In order to sustain an action for the deprivation of property without due process of law, a plaintiff must "first identify a property right, second show that the state has deprived him of that right, and third show that the deprivation was effected without due process." Mehta v. Surles, 905 F.2d 595, 598 (2d Cir.1990) (per curiam). There is, however, no constitutional right to prison wages and any such compensation is by the grace of the state. Hrbek v. Farrier, 787 F.2d 414, 416 (8th Cir.1986). Thus, in order to succeed on their claim, plaintiffs must initially establish a property interest in prison wages protected by the Fourteenth Amendment. Such property interests are, of course, not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings. These rules or understandings stem from an independent source such as state law. Paul v. Davis, 424 U.S. 693, 709, 96 S. Ct. 1155, 1164, 47 L. Ed. 2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S. Ct. 2701, 2708-09, 33 L. Ed. 2d 548 (1972). Thus, the Court must examine whether state law created a property interest in prison wages earned and the timely payment of such wages.
1. Interest in Wages Earned
As a threshold matter, defendants claim that the Magistrate Judge erred in finding that there was any inmate property interest in wages at all. Specifically, defendants argue that since inmates have no right to a job, Gill v. Mooney, 824 F.2d 192 (2d Cir.1987), no right to be paid for their labor, Manning v. Lockhart, 623 F.2d 536, 538 (8th Cir.1980), and state law gives DOCS discretion over whether to pay inmates for their work, there is no property interest in wages at stake, Davidson v. Kelly, No. 92-CV-44S, slip op. at 11 (N.D.N.Y. March 30, 1994).
The Magistrate Judge correctly separated from the question whether, as a general matter, inmates have a constitutional right to be paid wages from the issue implicated here, namely whether inmates have a right to wages already earned. Specifically, the Magistrate Judge found that the present case "does not present the question of whether inmates have a constitutional right to be paid wages. Here, they have already earned the wages and DOCS has acknowledged that this is money owed to the inmates." Report at 11. There is ample statutory guidance on the latter question. New York Correction Law Section 187 states, in part:
1. Every inmate ... may receive compensation for work performed during his or her imprisonment....
2. The department of correctional services shall adopt rules, subject to the approval of the director of the budget, for establishing in all of the state correctional facilities a system of compensation for the inmates confined therein. Such rules shall provide for the payment of compensation to each inmate ... based upon the work performed by such inmates.
*1316 3. The department shall prepare graded wage schedules for inmates, which schedule shall be based upon classifications according to the value of work performed by each.... The rules of the department shall also provide for the establishment of a credit system for each inmate and the manner in which such earnings shall be paid to the inmate or his dependents or held in trust for him until his release.
4. Any compensation paid to an inmate under this article shall be based on the work performed by such inmate....
N.Y.Correct.Law § 187 (McKinney 1987). The statute thus imposes restrictions on the discretion afforded DOCS once a system of compensation for work performed by inmates has been established. This authority, coupled with the longstanding policy of paying inmates and the acknowledgement that inmates were owed the wages in question[3] vest the plaintiffs with some property interest in their wages for work already performed. Cf. Board of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S. Ct. 2415, 2420-21, 96 L. Ed. 2d 303 (1987); Hewitt v. Helms, 459 U.S. 460, 472, 103 S. Ct. 864, 871-72, 74 L. Ed. 2d 675 (1983). Having determined that plaintiffs indeed possess a property interest in earned wages, the Court must next determine whether their interest extends to the timely payment of these wages.
2. Interest in Timely Payment
Plaintiffs argue that the Magistrate Judge mistakenly relied on Christ Gatzonis Elec. Contractor, Inc. v. New York City School Constr. Auth., 23 F.3d 636, 637 (2d Cir.1994), and S & D Maintenance Co. v. Goldin, 844 F.2d 962, 963 (2d Cir.1988), in concluding that there is no property interest in the timely payment of wages. Specifically, they argue that these cases are inapplicable because payment was delayed because of a pending criminal investigation regarding the circumstances of employment.
In Christ Gatzonis, an electrical contractor claimed that the failure of a school construction authority to make prompt payments for work done on a contract constituted a deprivation of due process. In that case, the Court found that the refusal to pay promptly amounts owed under the contract did not constitute a deprivation of property without due process of law. Christ Gatzonis, 23 F.3d at 639-40 (where defendant had substantial latitude in making payments, plaintiff had at best a "claim to the amounts allegedly owed, but not to any `prompt payment' thereof"). In particular, the claim failed because the plaintiff could not establish a constitutionally protected property interest in prompt payment under the contracts. Id. at 640-41. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it.... He must, instead, have a legitimate claim of entitlement to it." Id. at 639 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972)). The Court found that since no property interest was grounded in either the contracts in question[4] or New York statutory law, no such interest in prompt payment existed. Thus, the reason for the delay was not dispositive of the issue of whether there existed a property interest in the prompt payment of wages.
Similarly, in S & D Maintenance, 844 F.2d 962 (2d Cir.1988), a contractor brought an action pursuant to § 1983 claiming a denial of due process in connection with the city's withholding of payments pending criminal investigation of the circumstances under which one of the contracts was obtained. In that case, the Court found that:
A close analysis of the sources of the alleged property right in prompt payment reveals the absence of a clear entitlement. ... In the absence of a prompt payment right grounded in the contracts or in the statutes [plaintiff] relies upon, we see no other basis in New York law on which such a right can be predicated. *1317 Id. at 969. The Court went on to find that since there was no right to prompt payment, there was, a fortiori, no right to prompt payment pending a criminal investigation: "[Absent] a contractual or state law entitlement to prompt payment, we need not consider whether a prompt payment right, if otherwise established, could be interfered with, without some form of due process protection, by the State's power to defer payment pending an investigation to determine legality." Id. at 970 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1492-93, 84 L. Ed. 2d 494 (1985)). The precise reason for the delay of payment is of no moment, since the question is one of the scope of contractual and statutory authority. There was no federally protected right to prompt payment in these cases, and under N.Y.Correct.Law §§ 187(3) and 189, there is no such right here.[5]
Sections 187(3) and 189 of the New York Correction Law give DOCS the discretion to restrict inmates' access to, and use of, their funds until the time they are released:
The amount of such compensation to the credit of any prisoner may be drawn by the prisoner during his imprisonment, only upon approval of the commissioner to aid dependent relatives of such prisoner, or for such other purposes as the commissioner may approve.... provided, however, that at the date of absolute discharge of any prisoner the balance as aforesaid shall be paid to such prisoner.
N.Y.Correct.Law § 189 (McKinney 1987). See also N.Y.Correct.Law § 187(3), supra ("[E]arnings shall be paid to the inmate or his dependents or held in trust for him until his release."). Plaintiffs have pointed to no other state provision that would support a right to prompt payment. Thus, the Magistrate Judge was correct in finding no property interest in the prompt payment of wages.[6]
C. The Takings Clause
The Takings Clause of the Fifth Amendment of the Constitution provides: "[N]or shall private property be taken for public use, without just compensation." U.S. Const. Amend. V. This prohibition is applicable to the conduct of the states through the Fourteenth Amendment. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S. Ct. 446, 450, 66 L. Ed. 2d 358 (1980).
The Takings Clause prevents the legislature from depriving private persons of vested property rights. See Landgraf v. USI Film Prods., ___ U.S. ___, ___, 114 S. Ct. 1483, 1497, 128 L. Ed. 2d 229 (1994). Although there is no fixed formula for deciding when justice and fairness require that economic injuries caused by public action must be deemed a compensable taking, Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S. Ct. 383, 390, 62 L. Ed. 2d 332 (1979) (quoting Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631 (1978)), several factors are considered in determining whether a governmental action constitutes a "taking," including: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 106 S. Ct. 1018, 89 L. Ed. 2d 166 (1986); Ruckelshaus v. Monsanto Co., 467 *1318 U.S. 986, 1005, 104 S. Ct. 2862, 2874, 81 L. Ed. 2d 815 (1984); PruneYard Shopping Center v. Robins, 447 U.S. 74, 83, 100 S. Ct. 2035, 2042, 64 L. Ed. 2d 741 (1980).
Plaintiffs claim that the Magistrate Judge erred in applying these factors. The Magistrate Judge found that plaintiffs lack a "reasonable investment-backed expectation" in bi-weekly payment of their wages, since prompt payment was not statutorily or contractually required, and plaintiffs were on notice that a certain portion of future wages would be withheld until their release. Plaintiffs assert the existence of a historically rooted expectation of timely compensation for their work, based on DOCS' longstanding practice of paying inmates on a bi-weekly basis for their work.
The Court agrees with the Magistrate Judge that this case involves no expectation of prompt payment sufficient to amount to a reasonable investment-backed expectation, and thus the policy does not give rise to a taking. Here, prompt payment was neither statutorily nor contractually constrained. Plaintiffs were on notice that wages could be withheld by the express warning in Section 187(3) of the New York Correction Law that payment of wages could be delayed until release. Plaintiffs can hardly argue that their reasonable investment-backed expectations are disturbed when DOCS acts in a manner expressly authorized by law at the time the policy was instituted. See Ruckelshaus v. Monsanto Co., 467 U.S. at 1006-07, 104 S. Ct. at 2874-75, 81 L. Ed. 2d 815 (1984) (chemical producer had no reasonable investment-backed expectation that trade secrets would not be used and disclosed by the government after the date of enactment of a federal statute that provided for that use and disclosure); see also Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1177 (Fed.Cir. 1994) (reasonable investment-backed expectation requirement "was a way of limiting takings recoveries to owners who could demonstrate that they bought their property in reliance on a state of affairs that did not include the challenged regulatory regime"); Resolution Trust Corp. v. Daddona, 9 F.3d 312, 320-21 (3d Cir.1993) (borrowers had no reasonable investment-backed expectation that they could preserve their interest in encumbered land by asserting defenses based on alleged secret agreements against FDIC, where the law at the inception of the agreements precluded that result). Accordingly, plaintiffs' objections to the Magistrate Judge's Takings Clause analysis are denied.
D. The Contracts Clause
The Contracts Clause of Article I, Section 10 of the Constitution provides that "[n]o State shall ... pass any ... Law impairing the Obligation of Contracts." In evaluating a claim that a state has violated the Contracts Clause, a court must determine whether the change in state law has "operated as a substantial impairment of a contractual relationship." Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411, 103 S. Ct. 697, 704, 74 L. Ed. 2d 569 (1983); Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244, 98 S. Ct. 2716, 2722, 57 L. Ed. 2d 727 (1978). This inquiry has three components: (1) whether there is a contractual relationship; (2) whether a change in law impairs that contractual relationship; and (3) whether the impairment is substantial. General Motors Corp. v. Romein, 503 U.S. 181, 185-86, 112 S. Ct. 1105, 1109, 117 L. Ed. 2d 328 (1992). Where substantial impairment is found, the state must then demonstrate a legitimate public purpose for the regulation, such as remedying broad and general social or economic problems. See Energy Reserves Group, 459 U.S. at 411-12, 103 S. Ct. at 704-05, 74 L. Ed. 2d 569 (1983).
Plaintiffs assert that the Pay Lag Policy impairs their contract rights in violation of the Contracts Clause. Plaintiffs contend that the Magistrate Judge reasoned incorrectly when he determined that: (1) plaintiffs have failed to establish the existence of a contractual relationship; and (2) even if they had an employment contract with DOCS, such contract did not include a term requiring timely payment of, and access to, their wages.
The Magistrate Judge was correct in finding that plaintiffs have failed to establish the existence of a contractual relationship. See Davidson v. Kelly, No. 92-CV-44S, slip *1319 op. at 11 (N.D.N.Y. March 30, 1994) (finding no contractual relationship with the state in inmate's labor: "Plaintiff cannot bootstrap a position he holds at the discretion of the defendants into a contractual relationship protected by the United States Constitution."). The forms signed by inmates consenting to changes in work assignments contain no payment term, nothing about the conditions of the work and no mention of when payment will be made. See Report at 19.
Even if a contract exists, it does not provide for timely payment of wages. Plaintiffs argue that since courts frequently imply missing terms into contracts, a "reasonable time" for payment should be introduced into the present understanding or obligation. Plaintiffs' reliance on Savasta v. 470 Newport Assocs., 82 N.Y.2d 763, 603 N.Y.S.2d 821, 822, 623 N.E.2d 1171 (1993) ("When a contract does not specify time of performance, the law implies a reasonable time."), Total Spectrum Mfg., Inc. v. Frassetto, 172 A.D.2d 747, 569 N.Y.S.2d 133, 133 (2d Dept.1991) (same), and Young v. Whitney, 111 A.D.2d 1013, 490 N.Y.S.2d 330, 331 (3d Dept.1985) (same), is misplaced. Under New York Correction Law Sections 187(3) and 189, DOCS has express discretion to hold the monies inmates earn in trust for the inmates, and DOCS retains discretion over how much and when to pay inmates.[7]
Since plaintiffs have failed to demonstrate that even if they had a contractual relationship with DOCS, such a contract included a provision for timely payment of wages, the Court need not address the issue of whether the asserted impairment was substantial, or whether the policy was supported by a substantial and legitimate governmental interest.
III. The Disciplinary Surcharge Policy
A. Due Process
In the context of individualized disciplinary proceedings, the Due Process Clause requires that there be: (1) advanced written notice of the disciplinary charges; (2) an opportunity to appear at the hearing and, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in defense; and (3) a written statement by the fact-finder of the evidence relied on and the reasons for the disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 563-67, 94 S. Ct. 2963, 2978-80, 41 L. Ed. 2d 935 (1974); Patterson v. Coughlin, 905 F.2d 564, 569 (2d Cir.1990); Freeman v. Rideout, 808 F.2d 949, 951-52 (2d Cir.1986), cert. denied, 485 U.S. 982, 108 S. Ct. 1273, 99 L. Ed. 2d 484 (1988); McCann v. Coughlin, 698 F.2d 112, 122 (2d Cir.1983).
Inmates have the right to have disciplinary hearings conducted by an impartial, independent decision-maker. See Vitek v. Jones, 445 U.S. 480, 495, 100 S. Ct. 1254, 1265, 63 L. Ed. 2d 552 (1980); Russell v. Selsky, 35 F.3d 55, 60 (2d Cir.1994) (citing McKinnon v. Patterson, 568 F.2d 930, 934 n. 3 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978)). However, the decision-maker need not come from outside the prison. Vitek v. Jones, 445 U.S. at 496, 100 S. Ct. at 1265 (decision-maker conducting transfer hearing need not come from outside prison or hospital administration); Powell v. Ward, 542 F.2d 101, 103 (2d Cir.1976) (prison officials not disqualified from adjudicating alleged breaches of prison security solely because of their position).
Further, in the prison disciplinary context, the "degree of impartiality required of prison officials does not rise to the level of that required by judges generally." Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989); see also Russell v. Selsky, 35 F.3d at 60 (although it was a violation of DOCS regulations for a review officer to also sit as a hearing officer in the same case, it did not rise to the level of a federal constitutional due process violation); Ruley v. Nevada Bd. *1320 of Prison Commrs., 628 F. Supp. 108, 112-13 (D.Nev.1986) ("A substantial showing of bias must be made to disqualify a hearing officer in an administrative proceeding or to justify a ruling that a hearing was unfair.").
Plaintiffs claim that their due process guarantees were violated because the Disciplinary Surcharge Policy violated their right to procedural due process by introducing bias into the disciplinary system. Specifically, plaintiffs contend that because of recent staff layoffs and the linking in the media of the Disciplinary Surcharge with the prevention of further layoffs of prison personnel, the Disciplinary Surcharge on Tier II and Tier III infractions gave DOCS employees at all levels of the disciplinary system an improper pecuniary motive to issue more MRs and guilty verdicts at those tiers.
Plaintiffs also contend that the Magistrate Judge erred by resolving disputed factual questions regarding the amount of discretion DOCS grants its employees throughout the disciplinary system. Plaintiffs contend that DOCS employees "can easily channel MRs away from Tier I hearings (where no Disciplinary Surcharge can be assessed) and toward Tier II and III hearings (where the Disciplinary Surcharge must be assessed upon a finding of guilt)." Pls.' Objs. at 16. According to plaintiffs, the Magistrate Judge made a "finding" that the discretion of reviewing officers is limited. The Magistrate Judge stated that "[t]he discretion of the reviewing officer in assigning the tier level is limited by guidelines set forth in [N.Y.Comp. Codes R. & Regs. tit. 7] §§ 270.1 and 270.2...." Report at 22. Taken in context, the Magistrate Judge's statements were not in error. The Magistrate Judge noted in the sentence preceding the one in question that "many of the violations allow for hearings in a range of tiers," and was merely noting that there are some limitations on the tiers to which certain MRs can be assigned, a fact that is clear from N.Y.Comp.Codes R. & Regs. tit. 7, § 270.2, and not contested by plaintiffs.[8] This statement, in itself, was not a finding that officers were incapable of channeling MRs toward hearings where the Disciplinary Surcharge would be imposed. At any rate, this Court reviews the decision of the Magistrate Judge de novo, and chooses not to adopt any broader interpretation of the phrase.
Plaintiffs next assert that the Magistrate Judge erroneously held that DOCS "clarified" how the surcharge proceeds are used, correcting the impression left by news articles indicating that the Disciplinary Surcharge would prevent impending layoffs of DOCS staff. The Magistrate Judge stated that although it was initially unclear whether funds from the Disciplinary Surcharge would be used to prevent layoffs, DOCS subsequently "clarified" the purposes of the Disciplinary Surcharge. Plaintiffs argue that "[t]he relevant fact is not whether the surcharge revenues are deposited in the State's general fund ... but whether DOCS ever told its staff (or encouraged its staff to believe) that the surcharge revenues went to keep their jobs."[9] Pls.' Objs. at 19-20. Finally, plaintiffs assert that even if DOCS employees did not have a pecuniary interest in frequent assessments of the Disciplinary Surcharge, DOCS has an institutional interest in ensuring that the Disciplinary Surcharge is assessed frequently.
The Magistrate Judge correctly found that any interest created by the Disciplinary Surcharge was far too attenuated to give rise to a due process violation. The Magistrate Judge correctly distinguished the cases cited by plaintiffs, Gibson v. Berryhill, 411 U.S. 564, 578, 93 S. Ct. 1689, 1697-98, 36 L. Ed. 2d 488 (1973) (adjudicatory panel of *1321 optometrists would possibly benefit from reduced competition that would result if the panel enjoined a large competitor from practicing optometry in their state), and Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927) (town mayor who levied Prohibition Act fines personally received compensation based on the number of convictions he secured, and his village retained half of the fines he assessed), finding that "the bias that the Supreme Court perceived in these two cases is not at all similar to the remote possibility of bias that is claimed to exist in this action." Report at 32. The Magistrate Judge instead correctly found the present case similar to Dugan v. Ohio, 277 U.S. 61, 48 S. Ct. 439, 72 L. Ed. 784 (1928). In Dugan, a mayor played a role as one of five members of a city commission which voted on appropriations, including the mayor's salary. The mayor also served in a quasi-judicial role in unlawful liquor possession cases, and half the amount of the fines he assessed were paid into the city treasury. This interest was found too remote to raise an inference of impermissible bias, stating that "[t]here is no reason to infer on any showing that failure to convict in any case or cases would deprive him of or affect his fixed compensation." Dugan, 277 U.S. at 65, 48 S. Ct. at 440.
Similarly, in Wolkenstein v. Reville, 694 F.2d 35 (2d Cir.1982), cert. denied, 462 U.S. 1105, 103 S. Ct. 2452, 77 L. Ed. 2d 1332 (1983) (superintendent of a school system made determinations whether strike by teachers was illegal, subjecting them to fines to be paid to the municipality), and Hammond v. Baldwin, 866 F.2d 172, 177 (6th Cir.1989) (state agency's approval of issuance of permits did not violate due process absent direct pecuniary advantage to particular decisions) ("the entire government of a state cannot be disqualified from decisionmaking on grounds of bias when all that is alleged is a general bias in favor of the alleged state interest or policy"), no due process violations were found because the interest in a particular result was too attenuated. The Magistrate Judge correctly found that "there has been no evidence that a single DOCS employee was ever under the impression that frequent, or any, convictions resulting in the imposition of the surcharge would save jobs," Report at 27, and that "plaintiffs have failed to show that DOCS employees at Green Haven even read the articles proffered or, that if they did, that they believed the news reporters' statements with respect to jobs to be true." Report at 29. Thus, the Magistrate Judge correctly found that plaintiffs had failed to meet their burden of establishing a material factual dispute concerning bias in the disciplinary system.
Plaintiffs next argue that the Magistrate Judge erroneously held that DOCS' confiscation of inmate funds without express statutory authorization does not violate due process. Specifically, plaintiffs claim that the Magistrate Judge misanalyzed their argument that state officials violate the Due Process Clause when they impose a forfeiture or confiscation of property without explicit statutory authorization. Plaintiffs rely principally on Sell v. Parratt, 548 F.2d 753, 758-59 (8th Cir.), cert. denied, 434 U.S. 873, 98 S. Ct. 220, 54 L. Ed. 2d 152 (1977), for the proposition that such forfeitures and confiscations violate due process. In Sell, the court stated:
we think that the district court correctly held that an administrative agency has no right without underlying statutory authority to prescribe and enforce forfeitures of property as punitive measures for violations of administrative rules and regulations, and that when an agency does so, it violates the due process clause of the fourteenth amendment.
Id. at 759.
The Magistrate Judge correctly rejected plaintiffs' claim that the Disciplinary Surcharge constitutes a forfeiture without statutory authorization. First, the Magistrate Judge properly found that the scope of the authority of a state agency such as DOCS is a question of state law and therefore not within the jurisdiction of this Court. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 117, 104 S. Ct. 900, 917, 79 L. Ed. 2d 67 (1984) ("[A] federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when ... the relief sought ... has an impact directly on the State itself."). This was recognized in the factually similar Davidson v. Kelly, No. *1322 92-CV-44S, slip op. at 14 (W.D.N.Y. March 30, 1994), where a plaintiff who sought injunctive relief discontinuing the Disciplinary Surcharge, punitive damages and reimbursement of monies taken under the policies, found his claim precluded by the Eleventh Amendment. Only where an agency lacks any delegated power and acts "without any authority whatever" does an exception exist to this Eleventh Amendment jurisdictional bar. See Pennhurst, 465 U.S. at 102-03 n. 11, 104 S. Ct. at 927 n. 11.
Here, there appears to be adequate state authority for the Disciplinary Surcharge. New York Correction Law § 112(1) provides:
The commissioner of correction shall have the superintendence, management and control of the correctional facilities in the department and of the inmates confined therein, and of all matters relating to the government, discipline, policing, contracts and fiscal concerns thereof.
N.Y.Correct.Law § 112(1) (McKinney 1987). New York Correction Law § 138(3) provides: "facility rules shall state the range of disciplinary sanctions which can be imposed for violation of each rule." N.Y.Correct.Law § 138(3) (McKinney 1987). Finally, New York Corrections Law § 137(2) states: "The commissioner shall provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein." N.Y.Correct.Law § 137(2) (McKinney 1987). Given these provisions, the Disciplinary Surcharge cannot be said to have been enacted "without any authority whatever." Pennhurst, 465 U.S. at 102-03 n. 11, 104 S. Ct. at 909-10 n. 11; see also Minotti v. Lensink, 798 F.2d 607, 609 (2d Cir.1986), cert. denied, 482 U.S. 906, 107 S. Ct. 2484, 96 L. Ed. 2d 376 (1987).[10] The statute in Sell placed substantive limits on the penalties which the prison system could impose. Here, however, the statute granting disciplinary authority to the Commissioner places no such limitation on his discretion. Cf. Savko v. Rollins, 749 F. Supp. 1403, 1414 (D.Md. 1990) (broad language of statute authorizing prison officials to promulgate disciplinary rules was sufficient authority under which to promulgate disciplinary rules governing personal property held by inmates), aff'd, 924 F.2d 1053 (4th Cir.1991).
In addition, the Magistrate Judge correctly noted that the Disciplinary Surcharge in the present case is not a "forfeiture" without due process of law. The Disciplinary Surcharge is imposed only after a hearing consistent with due process requirements. Sell, in contrast, involved summary confiscations without a hearing or administrative review.
B. Equal Protection
1. Similarly Situated
The Equal Protection Clause of the Fourteenth Amendment requires that persons similarly situated be treated in the same manner. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985); Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995). While equal protection does not require that all persons be dealt with in an identical fashion, it does require that a distinction made have some relevance to the purpose for which the classification is made. Baxstrom v. Herold, 383 U.S. 107, 111, 86 S. Ct. 760, 762-63, 15 L. Ed. 2d 620 (1966); see also Liberta v. Kelly, 839 F.2d 77, 82 (2d Cir.), cert. denied, 488 U.S. 832, 109 S. Ct. 89, 102 L. Ed. 2d 65 (1988) ("the equal protection clause does not ... `require things which are different in fact ... to be treated in law as thought they were the same'") (quoting Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S. Ct. 1497, 1500, 16 L. Ed. 2d 577 (1966)).
Plaintiffs initially object to the finding by the Magistrate Judge that the regulations in question may provide for a waiver in some cases. To this end, the Magistrate Judge cites N.Y.Comp.Codes R. & Regs. tit. 7, §§ 253.9 (disciplinary hearings) and 254.9 (superintendent's hearings), which provide in identical language: "At any time during which a penalty imposed pursuant to a disciplinary [superintendent's] hearing is in effect, the superintendent may reduce the penalty." *1323 N.Y.Comp.Codes R. & Regs. tit. 7, §§ 253.9 & 254.9. The Magistrate Judge also considered the fact that while plaintiffs have not alleged that a single member of the class ever requested a waiver of the Disciplinary Surcharge because of indigency, defendants have stated that in a particular case of hardship, they might grant such a waiver. Defs.' Interrog.Resp. at 52. Plaintiffs counter that the issue of the regulations in question was raised sua sponte by the Magistrate Judge, and that the term "penalty" mentioned therein does not refer to a Disciplinary Surcharge. Since there appears to be some dispute as to the scope of the term "penalty," we find these provisions an insufficient ground, standing alone, for summary judgment on this point.
Even if the Magistrate Judge's findings with respect to N.Y.Comp.Codes R. & Regs. tit. 7, §§ 253.9 and 254.9 are disregarded, however, no violation of equal protection exists in the present case. The inmates here are clearly not similarly situated to the unincarcerated citizens who may obtain indigency waivers for Motor Vehicle and Parks laws surcharges on whom plaintiffs rely. The constitutional rights of prisoners are necessarily limited by the fact of their incarceration and the goal of safeguarding institutional security. See Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S. Ct. 1861, 1877-78, 60 L. Ed. 2d 447 (1979) ("[t]he fact of confinement as well as the legitimate goals and policies of the penal institution limits [inmates'] retained constitutional rights"); Chesney v. Adams, 377 F. Supp. 887 (D.Conn. 1974), aff'd, 508 F.2d 836 (2d Cir.1975) (prisoners and non-prisoners need not be treated identically). Since the Equal Protection Clause does not forbid states from treating differently situated individuals differently, see Danese v. Knox, 827 F. Supp. 185, 196 (S.D.N.Y.1993), there is no equal protection violation.
2. Legitimate Penological Interest
In order to show that a policy is violative of equal protection guarantees in the prison context, a party must demonstrate that the policy is not reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261-62, 96 L. Ed. 2d 64 (1987); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-40, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985); Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 95, 92 S. Ct. 2286, 2290-91, 33 L. Ed. 2d 212 (1972); Benjamin v. Coughlin, 905 F.2d 571, 575 (2d Cir.), cert. denied, 498 U.S. 951, 111 S. Ct. 372, 112 L. Ed. 2d 335 (1990). When applying this test, "if any state of facts reasonably can be conceived that would sustain [the policy], the existence of that state of facts ... must be assumed." United States R.R. v. Fritz, 449 U.S. 166, 174, 101 S. Ct. 453, 459, 66 L. Ed. 2d 368 (1980) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S. Ct. 337, 340-41, 55 L. Ed. 369 (1911)).
Plaintiffs argue that the differential treatment of inmates and non-inmates violates equal protection. Plaintiffs argue that the Magistrate Judge erred by analyzing whether the Disciplinary Surcharge Policy itself was rationally related to a legitimate penological interest, rather than whether the denial of an indigency waiver to inmates when such waivers are provided to non-inmates for the same offenses bears a rational relationship to legitimate penological interests. This is a distinction without a difference, since the application of a lesser level of scrutiny in prison inmate cases arises from the differences between inmate and non-inmate populations. At any rate, defendants proffer two justifications for the policy: that the Disciplinary Surcharge Policy acts as an incentive for inmates to behave, and that it raises revenue for the state and helps defray the costs of running the disciplinary system. These reasons, which must be accepted as true under Fritz, 449 U.S. at 174, 101 S. Ct. at 459, adequately demonstrate a legitimate penological interest in the policy.
CONCLUSION
For the aforementioned reasons, the Report and Recommendation issued by Magistrate Judge Katz on May 23, 1995 is accepted in accordance with 28 U.S.C. § 636(b), and defendants' motion for summary judgment *1324 dismissing the complaint is granted, pursuant to Federal Rule of Civil Procedure 56.
NOTES
[1] The following statement of facts is taken from the parties' pleadings and Rule 3(g) Statements, unless otherwise indicated. For the purposes of this Memorandum Opinion and Order, only the facts bearing upon plaintiffs' objections will be summarized herein.
[2] DOCS has compensated inmates for work performed while incarcerated since prior to the turn of the century. See Defendants' Answers to Interrogatories, dated Oct. 12, 1993, annexed to Ott Aff. as Ex. "2" ("Defs.' Interrog. Resp."), at No. 1. Inmates have been paid bi-weekly since some time before 1981. Defs.' Interrog. Resp. at No. 2.
[3] Along these lines, the DOCS Budget Director testified that under the Pay Lag, "the State still has the obligation to pay the full amount of money out...." DiBello Dep. at 143.
[4] "Even if the [contracts] could be read to mandate payment to [defendant], they do not furnish a basis for finding a property interest in prompt payment." Christ Gatzonis, 23 F.3d at 640.
[5] Plaintiffs' attempt to distinguish the present case based on the length of delay is unpersuasive. The reasoning of the cases in question is based on the existence of a right to prompt payment, and not the actual time involved. Furthermore, as noted, N.Y.Correct.Law §§ 187(3) and 189 give DOCS adequate authority to delay inmates' use of their funds.
[6] Plaintiffs' contention that the historical practice of paying inmates on a bi-weekly basis gives rise to an interest in prompt payment is incorrect, given the statutory language allowing DOCS to hold inmates' money in trust, to devise a system by which wages will be paid to inmates, and allowing the Commissioner discretion over when and for what purposes inmates may have access to their funds. See Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S. Ct. 2460, 2464-65, 69 L. Ed. 2d 158 (1981) ("A constitutional entitlement cannot `be created as if by estoppel merely because a wholly and expressly discretionary state privilege has been granted generously in the past.'") (quoting Leis v. Flynt, 439 U.S. 438, 444 n. 5, 99 S. Ct. 698, 701 n. 5, 58 L. Ed. 2d 717 (1979)); Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 581 (2d Cir.1989) (no entitlement to benefits where the state retains discretionary authority to provide the benefits).
[7] Plaintiffs' argument that the Magistrate Judge failed adequately to distinguish Association of Surrogates & Supreme Court Reporters v. New York State, 940 F.2d 766 (2d Cir.1991), cert. denied, 502 U.S. 1058, 112 S. Ct. 936, 117 L. Ed. 2d 107 (1992), in which the Court overturned a pay lag, relying on the fact that a specific term in the plaintiffs' collective bargaining agreement required that payment based on ten days work be made bi-weekly, is not persuasive. Here, in addition to the absence of a contractual relationship, there is nothing resembling the bi-weekly payment contractual provision present in that case.
[8] For example, under N.Y.Comp.Codes R. & Regs. tit. 7, § 270.2, violation of the offense described as "Inmates shall not exceed any time limit imposed on any work release or furloughtype program" must be classified as a Tier II or Tier III offense.
[9] Since the relevant inquiry here is the question of potential bias in the disciplinary process, plaintiffs maintain that the belief of DOCS employees regarding use of the funds is more significant than the actual use of the funds. Thus, like testimony admitted because not technically hearsay, it is significant not for the truth of the matter asserted, but as establishing or reflecting the state of mind of the hearer. This claim reflects the truism that decision-makers are motivated by their beliefs about the facts, rather than the actual facts.
[10] The imposition of a Disciplinary Surcharge has been examined by New York courts and found to have adequate justification in state law. See, e.g., Allah v. Coughlin, 190 A.D.2d 233, 599 N.Y.S.2d 651 (3d Dept.1993). |
9,645,533 | 2023-08-22 21:27:54.930544+00 | Davis | null | OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
TOM G. DAVIS, Judge.
Trial was before the jury1 upon appellant's plea of not guilty to a charge of capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After the jury found appellant guilty, the court, acting pursuant to V.T. C.A. Penal Code, Sec. 8.07(d), assessed punishment at life. The Court of Appeals for the Third Supreme Judicial District (Austin) affirmed appellant’s conviction in an unpublished opinion, Hernandez v. State, No. 3-82-370, (Delivered September 21, 1983). We granted appellant’s petition for discretionary review in order to examine the Court of Appeals’ holding that appellant’s trial counsel rendered effective assistance.
Following the Court of Appeals’ decision, the United States Supreme Court handed down its opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The opinion in Strickland established an authoritative federal constitutional standard for determining ineffectiveness of counsel and for ascertain*55ing when such ineffectiveness is prejudicial.
Accordingly, prior to examining the facts of the instant case, we determine whether under Art. I, Sec. 10 of the Texas Constitution and Art. 1.05, V.A.C.C.P. we must apply higher standards than those enumerated in Strickland.
With respect to determining ineffectiveness, the general standard established in Strickland differs little or not at all from this Court’s standard, which in turn is based on Fifth Circuit precedents.
In Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980), and its progeny we stressed that effective counsel is counsel “rendering and likely to render” reasonably effective assistance.
The Supreme Court in Strickland noted: “As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance ... When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.
“More specific guidelines are not appropriate ... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms ...
“ ... A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” 104 S.Ct. at 2064-66.
Since we find that the threshold standard for determining effective assistance of counsel enunciated in Strickland is not substantively different from the standard this Court has propounded in recent years, there is no reason for refusing to apply the Strickland standard to cases arising under Art. I, Sec. 10 of the Texas Constitution or Art. 1.05, V.A.C.C.P.
The test for determining prejudice or reversible error resulting from ineffective assistance of counsel was also spelled out in Strickland:
... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 104 S.Ct. at 2068.2
This test, at least in certain circumstances, differs from the tests devised by our Court to determine prejudice in ineffective assistance cases. See, for example, Ex parte Duffy, supra, where we held, again based on Fifth Circuit precedent, that effective assistance was so important a right to a petitioner condemned to death that its infraction could never be treated as harmless error. Does our recent case law or the language and history of Art. I, Sec. 10, or Art. 1.05, Y.A.C.C.P., suggest that a defendant should be put to a lesser standard of proof in establishing prejudice than the Strickland standard?
Starting with the opinion in Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967), this Court has consistently applied the test for effectiveness of counsel employed by the Fifth Circuit in MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). That is, this Court has consistently and consciously applied a federal constitutional standard in all effectiveness cases and has utilized the standards enunciated by the Fifth Circuit in the absence of an authoritative and comprehensive opinion from the *56Supreme Court. See Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App.1981). In Strickland, the Supreme Court clearly set forth the federal constitutional standard to be followed.
As far as the language of Art. I, Sec. 10 is concerned (as well as the identical language in Art. 1.05, V.A.C.C.P.),3 in no way can it be independently interpreted to provide greater protection for a defendant beset by ineffective assistance of counsel than the protection provided by Strickland. The language of Art. I, Sec. 10, insuring that a defendant “shall have the right of being heard by himself or counsel, or both,” can be traced back to the 1836 Constitution of the Republic of Texas and was obviously modeled on the Sixth Amendment to the federal constitution4 which guarantees the accused’s right, “to have the Assistance of Counsel for his defense.”
The Sixth Amendment right to be heard by counsel was originally understood, and understood throughout all of the 19th and the earlier part of the 20th century, to encompass the right of a defendant to retain counsel of his own choice for the preparation and trial of a case. The provision was not yet understood to include the right of an indigent defendant to have counsel appointed at State expense or the right of any defendant to enjoy effective assistance of counsel.5
The right to effective assistance of counsel as we understand it today was derived from the right to be heard by counsel.6 Accordingly, in no sense can the language or intent of the framers of Art. I, Sec. 10, be interpreted to include a right to effective assistance of counsel greater than that provided by Strickland.
An examination of this Court’s case law regarding effective assistance in the years before the Sixth Amendment was incorporated into the Fourteenth7 and applied to the States only serves to buttress the point.
Ineffective counsel or counsel not permitted by the trial court to be effective was tantamount to no counsel at all and hence a violation of Art. I, Sec. 10. Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116 (1954); Turner v. State, 91 Tex.Cr.R. 627, 241 S.W. 162 (1922). Even “no counsel at all,” however, did not result in reversible error in the absence of a showing of harm. See Fuller v. State, 117 Tex.Cr.R. 558, 37 S.W.2d 156 (Tex.Cr.App.1931). See also Fletcher v. State, 396 S.W.2d 393 (Tex.Cr.App.1965), and Jones v. State, 388 S.W.2d 429 (Tex.Cr.App.1965), two cases decided shortly after Gideon v. Wainwright, supra, where a showing of harm was required of defendants asserting ineffective assistance claims.
In short, our constitutional and statutory provisions do not create a standard in *57ineffective assistance cases that is more protective of a defendant’s rights than the standard put forward by the Supreme Court in Strickland. Accordingly, we will follow in full the Strickland standards in determining effective assistance and prejudice resulting therefrom.
Turning to the instant case, we summarize the facts relevant to appellant’s ineffective assistance claim.
During the evening of June 2, 1977, appellant and two other youths, Michael Castro and Manuel Gonzales, unlawfully entered a habitation at 1607 East 11th Street in Austin. The youths were looking for bullets to use in a rifle they had been firing at fence posts earlier in the day. The youths found and appropriated some .22 caliber bullets during their search. Appellant confessed to loading the rifle, but trial testimony conflicted as to which of the boys loaded the rifle.
At some point during their wanderings in the house the youths came upon Domingo Vasquez, the deceased, and resident of the house, who was asleep under a pile of rags on the kitchen floor. Appellant and his cohorts discussed killing the deceased but decided against doing so.
Some time later, the youths returned to Vasquez and roused him from his sleep whereupon the old man chased the boys out of the house brandishing an ax.
The three youths stopped in the deceased’s front yard. As the deceased came out of the front door, appellant shot him with the rifle.
Testimony differed as to whether Vasquez was still in the process of chasing the boys when shot or was instead in the process of returning to the inside of his home. The fatal shot, however, entered the deceased from the back and the testimony was undisputed that no barrier blocked the retreat of appellant and his friends.
After appellant shot the deceased he took the butt of the rifle and hit the deceased in the head as he tried to get up. The three youths then rifled through the deceased’s pockets. Appellant and his friends were arrested the next day while attempting to burglarize another residence.
According to appellant, his trial counsel rendered ineffective assistance for three reasons: failure to pursue an insanity defense; presentation of evidence that rebutted the defense of self-defense; ignorance of the facts of the case and governing law.
Appellant contends that trial counsel improperly failed to pursue an insanity defense because of incomplete investigation. An insanity defense was purportedly warranted due to a psychological report filed by court psychologist D.I. Goldwater and due to testimony showing that appellant consumed a large amount of beer and sniffed paint on the day of the offense.
Appellant has not proffered any facts showing that trial counsel failed to thoroughly investigate an insanity defense. Admittedly this is often a difficult thing to do on direct appeal. We cannot, however, assume that because a record is silent as to the depth of an attorney’s investigation of the insanity defense, he made no such investigation. Appellant is free to pursue his ineffectiveness claim on collateral review where the facts surrounding trial counsel’s representation may be developed at a hearing.
Dr. Goldwater’s report strongly suggested that with respect to certain of his communicative skills appellant, a fifteen year old, had the mental development of an eight and one half year old, and that appellant often acted impulsively. This alone does not prove that trial counsel failed to further investigate an insanity defense. Not mentioned by appellant are two reports in the appellate record sent to the Travis County District Attorney by Dr. Coons indicating that appellant was sane at the time of the offense and competent to stand trial.
As to appellant’s consumption of beer and sniffing of paint and the relation of these to an insanity defense, V.T.C.A. Penal Code, Sec. 8.04, precludes the use of a voluntary intoxication-insanity defense to the commission of crime. See Hawkins v. State, 605 S.W.2d 586 (Tex.Cr.App.1980).
*58Trial counsel’s purported presentation of evidence that rebutted the defense of self-defense involved the testimony of code-fendant Michael Castro whose trial was severed from appellant’s. Castro testified that he thought the deceased had abandoned his pursuit of appellant and friends at the time appellant shot him.
Trial counsel cross-examined and later called to the stand both Castro and Manuel Gonzales, the other accomplice. In many respects, counsel’s cross-examination of Gonzales was effective, establishing that Gonzales and Castro were as much involved in ransacking the deceased’s house as appellant and showing that Gonzales was afraid when the deceased chased them out of his house wielding an ax. The examination of Castro tended to support Gonzales’ testimony until the former testified that the deceased had turned to go when appellant fired a shot. Medical testimony reflected that the deceased died from a bullet wound to the back.
Given the options available to trial counsel in a case where the evidence against his client was overwhelming, we cannot sit in hindsight and find ineffectiveness due to an error such as this, involving a calculated risk in examining a codefend-ant. The right to effective counsel is not the right to error-free counsel.
Trial counsel’s supposed ignorance of the facts of the case and governing law takes several forms according to appellant.
In order to impeach Manuel Gonzales on cross-examination trial counsel introduced his written confession. The State contended, and the trial court agreed, that certain statements in the confession “opened up” extraneous offenses that the State could elaborate upon. These extraneous offenses were a previous burglary of the deceased’s house and the attempted burglary the youths were engaged in on the day of their arrest. Even if counsel was ignorant of the law and ineffective in allowing these extraneous offenses to come in, there is no reasonable probability that the jury’s verdict would have been different absent the mistake. The underlying burglary in the capital murder was overwhelmingly established and ample evidence supported a conclusion that appellant and his friends were unsavory characters.
Likewise defense counsel’s supposed ignorance of V.T.C.A. Family Code, Art. 51.09’s requirement concerning a proper magistrate’s warning could in no way have affected the jury’s verdict. Defense counsel apparently did not realize that there were two warnings by two different magistrates in the instant case and that only the warnings administered when the defendant signed a waiver of his rights had to be given outside the presence of a police officer. The evidence however unequivocally established that no officer was present when appellant signed his waiver of rights.
Appellant chastises trial counsel for failing to subpoena witness Martin Rodriguez until the morning he was called to testify and witness John Reyes until the afternoon before he was slated to testify. Further, with respect to Rodriguez, trial counsel stated that he did not think his absence was, “really going to hurt the case, but I would like to have his testimony because it—something may come out.” Rodriguez never testified but Reyes’ written statement was admitted into evidence and stipulated to by both parties. Reyes’ letter confirmed that the deceased carried an ax about him in order to protect himself.
Though trial counsel’s behavior with respect to the subpoenas evidenced lack of preparedness, we cannot say on this record that there is a reasonable probability the result of the trial would have been different if counsel had seen to it that Rodriguez testified.
Finally, trial counsel’s attempt to object to the charge revealed ineptness at preserving error.
Counsel’s entire objection to the jury charge was as follows:
“[Defense Counsel]: Your Honor, I have no objections as such. However, I would like to have a charge included in here. And I will, of course, leave this to your discretion, but I’d like to have something *59in here that indicates that if the defendant is not found guilty of the offense of capital murder that he may be reindict-ed — recharged on a charge of voluntary manslaughter.
“THE COURT: That request will be denied.
“[Defense Counsel]: Okay. And I’d move that the charges—
“I object to the charge on the ground that the issue is not sufficiently supported by the pleading and ask you to rule on that.
“THE COURT: All right, it will be overruled.”
The best that can be said about the foregoing performance is that trial counsel was attempting in an inept fashion to obtain a charge on voluntary manslaughter or self-defense.
Once again, however, appellant has failed to establish prejudice. Appellant does not contend that the evidence supported a charge on voluntary manslaughter.8 With respect to his claim of self-defense, evidence to support same was at best extremely weak. It was uncontradict-ed that nothing blocked appellant’s retreat and that the deceased died from a bullet wound to the back. Moreover, appellant and his friends were in the course of burglarizing the deceased’s home.
It is obvious from a review of the entire record that in certain respects trial counsel rendered sub-par assistance. But in the particular instances where this occurred, it has not been shown, as required by Strickland, that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have differed had trial counsel’s assistance been effective.
Appellant is free to develop the facts further in a post-conviction habeas hearing, particularly with respect to counsel’s alleged failure to pursue an insanity defense.
The judgment of the Court of Appeals is affirmed.
CAMPBELL, J., concurs in result.
. Prior to trial the juvenile court waived jurisdiction and certified appellant, a fifteen-year-old juvenile, for criminal prosecution.
. The Supreme Court specifically rejected a stricter test that would have required a defendant to show that his counsel’s deficient conduct more likely than not altered the outcome in the case.
. Art. 1.05, V.A.C.C.P., is in essentially the same form as predecessor statutes which date back to the 1911 Code of Criminal Procedure.
. See G. Braden, et al (Eds), The Constitution of the State of Texas: An Annotated and Comparative Analysis, Pages 35-36 (1977).
. See L. Jayson, et al (Eds.), The Constitution of the United States Of America: Analysis And Interpretation, Pages 1215-1216 (U.S. Government Printing Office) (7th ed. 1972); W. Beaney, The Right to Counsel in American Courts, Pages 22-28 (1955).
. The Supreme Court first used the term "effectiveness” with respect to appointment of counsel in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). That Court made clear in Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), that Sixth Amendment right to counsel included the right to effective assistance of counsel. See S. Krantz, et al, (Eds.), Right to Counsel in Criminal Cases, Page 166 (1976); and Waltz, Inadequacy of Trial Representation As a Ground for Post-Conviction Relief In Criminal Cases, 59 Nw.U.L. Review 289 at 293-295 (1964).
It is clear however that many courts entertained what amounted to ineffective assistance of counsel claims before this time, especially if counsel was appointed. See, for example, Turner v. State, 91 Tex.Cr.R. 627, 241 S.W. 162 (1922). As late as 1948, however, our Court refused to decide whether an accused with retained counsel could complain of ineffective assistance. Ex parte Lovelady, 152 Tex.Cr.R. 93, 207 S.W.2d 396 (1948). Further, we did not always state what constitutional or statutory provision guaranteed the right to effective assistance. See Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116(1954).
. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. Nor would such a contention be correct. Appellant did not testify, and there was no evidence that he indicated to anybody that he had feelings of anger, rage, resentment, or terror at the time of the offense. See Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979). Moreover, we do not believe that “sudden passion” arises from an "adequate cause” under V.T.C.A. Penal Code, Sec. 19.04, when a defendant is in the course of committing one of the underlying offenses delineated in V.T.C.A. Penal Code, Sec. 19.03(a)(2). See Smith v. State, 168 Tex.Cr.R. 102, 323 S.W.2d 443 (Tex.Cr.App.1959); Leza v. State, 149 Tex.Cr.R. 448, 195 S.W.2d 552 (1946); W. La-Fave and A. Scott, Jr., Criminal Law, Sec. 76 (1972). |
9,645,534 | 2023-08-22 21:27:54.935996+00 | Clinton | null | CLINTON, Judge,
concurring.
Discretionary review should not have been granted in this cause. Compounding that initial mistake, the majority decides an issue that is not before us, decides it wrongly, and then improperly applies the standard it has mistakenly adopted. Though the majority has (almost inadvertently) reached the correct result, I must protest virtually every step of the wayward course taken to that goal.
I.
Among several good reasons for refusing review in this cause, most compelling is that appellant has presented no reason for such review. See Tex.Cr.App. Rule 302(c). Appellant does not claim the court of appeals’ opinion is in conflict with that of another court of appeals, this Court, or any other court, statute, or rule of law. Appellant points out no deficiencies in trial counsel’s performance. Instead, he argues to this Court only that “[a] close reading of the Record, Statement of Facts, Briefs, Opinion, and Appellant’s Motion for Rehearing ... clearly demonstrate that Appellant’s trial counsel, Paul Hanneman, was ineffective in his assistance to Appellant.” This is insufficient under 304(d)(5), supra, to invoke this Court’s discretionary jurisdiction, nor is any other reason readily apparent. The petition should be refused. Degrate v. State, 712 S.W.2d 755 (Tex.Cr.App.1986).
II.
The issue seized upon by the majority, whether to “follow in full the Strickland *60standards in determining effective assistance and prejudice resulting therefrom,” is not before this Court. The court of appeals’ opinion was delivered September 21, 1983, and the petition for discretionary review filed little more than a month thereafter, both well before the opinion of the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) [hereafter Strickland ]. Thus the issue decided by the majority has not been briefed or argued by the parties, nor decided by the court of appeals. This not only goes well beyond this Court’s mandate to “review decisions of the eourt[s] of appeals,” Art. 44.45(a) and (b), it also denies the “adversarial testing” called for by Strickland itself. This is not only procedurally incorrect, it forces this Court to take upon itself the roles of both State’s attorney and defense counsel as well as judge. I am compelled to dissent to this headlong rush to answer a question no party to this cause has posed. Lacking the benefits of a properly framed issue, a decision on that issue by the court of appeals, and arguments from both parties, we are in a poor position to decide this important question. It is no wonder, given this posture of the case, that the majority’s conclusions are so weakly supported.
As appellant has been afforded no opportunity to answer the conclusions put forth in the majority opinion, I will point out one or two of the major flaws in its reasoning.
III.
Most disturbing is the majority’s pronouncement that “in no sense can the language or intent of the framers of Art. I, Sec. 10, be interpreted to include a right to effective assistance of counsel greater than that provided by Strickland.” Op. at p. 56. This statement is particularly presumptuous in light of the fact that no one herein has advocated such an interpretation. The majority’s statement therefore amounts to an assertion that it has considered all such arguments that could possibly be made and found them wanting. I make no effort to canvas such sweeping considerations. I do, however, find the majority’s conclusion unsupported.
To begin with, the premise that the language of Art. I, Sec. 10 of the Texas Constitution “was obviously modeled on the Sixth Amendment to the federal constitution” has never been properly demonstrated.1 While it is true that both Sec. 10 and the Sixth Amendment deal with the right to counsel, that alone is not strong indication that the later provision is modeled on the earlier. It is only indicative that forebear-ers insisted on assuring the right, taking statements designed to do so from any other reasonably accepted source. See Brown v. State, 657 S.W.2d 797, 801 (Tex. Cr.App.1983) (Concurring Opinion). It would be equally supportable to say the Texas “right to be heard” provision is modeled on the Connecticut constitution adopted in 1818.2 Our provision is almost identical to the Connecticut provision, whereas our Art. I, § 10 is worded completely differently from the Sixth Amendment.
Detailed exegesis is inappropriate here, but to say that the Texas constitutional *61provision is “modeled on the Sixth Amendment” is irrelevant even if true. The fact that the framers of the Texas Constitution worded the provision differently at all, when they could have simply conformed our Bill of Rights to pertinent provisions of the U.S. Constitution, demonstrates that they had somewhat different guarantees in mind. So when addressing the issue of ineffective assistance of counsel as a matter of state law we need not follow slavishly the Supreme Court’s interpretation of the Sixth Amendment, any more than we need adhere to the Connecticut courts’ interpretation of their constitution. Just because language was once drawn from another source does not mean that we abdicate for all time our historical responsibility to interpret our own laws and Constitution. The majority’s assertion at this late date that the provisions are in essence identical denigrates our own role as well as the efforts of the founders of this Republic and State.
Furthermore, to say that “this Court has consistently and consciously applied a federal constitutional standard in all effectiveness cases” (Maj. opinion, p. 55 •) is misleading at best. In Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967), which the majority cites as the beginning of this adoption of the federal standard, this Court was addressing a claim that the defendant had been denied his right to effective assistance of counsel “guaranteed to him by the 6th and 14th Amendments to the federal constitution.” Id. at 163. No mention was made of the Texas Constitution, Article I, Section 10. In such a case it was of course appropriate to evaluate the claim in light of federal decisions interpreting the federal constitution.
However, when this Court in deciding a claim under state law approvingly cites language from a federal court opinion we do so only because we find the language helpful or the reasoning persuasive. In adopting the “reasonably likely to render and rendering reasonably effective assistance” test from MacKenna v. Ellis, 280 F.2d 592 (CA5 1960), cert. denied, 368 U.S. 877, 86 S.Ct. 121, 7 L.Ed.2d 78 (1961), we in no way bound ourselves to follow future pronouncements on the subject from the Fifth Circuit or any other federal court; not when we are interpreting Texas law. It means simply that we cast about for a “reasonably acceptable definition” of effective assistance of counsel, and having found one, made it our own. Brown, supra, (Concurring opinion). As Justice Hans Linde of the Oregon Supreme Court has stated:
“This court like others has high respect for the opinions of the Supreme Court [of the United States], particularly when they provide insight into the origins of provisions common to the state and federal bills of rights rather than only a contemporary ‘balance’ of pragmatic considerations about which reasonable people may differ over time and among the several states. It is therefore to be expected that counsel and courts often will refer to federal decisions, or to commentary based on such decisions, even in debating an undecided issue under state law. Lest there be any doubt about it, when this court cites federal opinions in interpreting a provision of Oregon law, it does so because it finds the views there expressed persuasive, not because it considers itself bound to do so by its understanding of federal doctrines.”
State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1321 (1983) (footnote omitted). This Court is of course possessed of similar autonomy.
IV.
The first prong of the Strickland standard is the same as our own, whether counsel rendered “reasonably effective assistance.” Strickland, however, represents the first time the Supreme Court of the United States has applied that standard, the first time that Court has “directly and fully addressed a claim of ‘actual ineffectiveness’ of counsel’s assistance in a case going to trial.” 104 S.Ct. at 2062. This Court, by contrast, has been faced often with the question of whether particular trial counsel rendered ineffective assistance. We have a well developed body of caselaw on the subject, applying our stan*62dard of reasonably effective assistance in a wide variety of contexts. We need not look to federal authority for other than “guidance” in applying that standard to the instant case.
Whether counsel rendered effective assistance is the only question before us in this case. The majority’s adoption and application of Strickland’s “prejudice test” is unwarranted when neither appellant, the State, nor the court of appeals has done an analysis of the harm suffered by appellant due to the alleged failures of his trial counsel. Indeed, because the court of appeals found that appellant was rendered effective assistance of counsel, there was no need to address the question of harm. Nor is there a reason for this Court to do so. See, Ingham v. State, 679 S.W.2d 503, 508-09 (Tex.Cr.App.1984), in which this Court though “mindful” of the recent decision in Strickland found that “[w]e need not analyze this case in light of the two-pronged Strickland test, however, because we do not find that appellant’s counsel was ineffective as our prior decisions construe that term or that he was not ‘reasonably effective’ as the Supreme Court construes that term.”
As for the majority’s assertion that our caselaw has never provided a higher standard of effective assistance than that of Strickland, I find the cases cited at page 56 not entirely supportive of that proposition:
Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116 (1954), does not address Art. I § 10 and does not conclude that counsel’s assistance was ineffective or amounted to “no counsel at all.” Turner v. State, 91 Tex.Cr.R., 241 S.W. 162 (1922), does stand for the proposition for which it is cited, that Art. I § 10 was violated when an agent of the State prevented counsel from rendering effective assistance. The case was reversed without a showing of harm. Counsel was not allowed to talk to his client in private. When he finally got the opportunity, defendant told him of some evidence which counsel asked for a continuance in order to investigate. That was denied. What impact the evidence might have had on the case is not shown.
As for the cases cited for the proposition that a showing of harm was required before a conviction would be reversed for ineffective assistance, Fuller v. State, 117 Tex.Cr.R. 558, 37 S.W.2d 156 (1931), did not cite the Texas Constitution. The Court stated, “In a felony case of less than capital, the law does not make the presence of an attorney essential.” Id., 37 S.W.2d at 157. That has not been the law in this state since June 1, 1959, the effective date of an amendment to former Art. 494 of the Code of Criminal Procedure (now 26.04) requiring the appointment of counsel in all felony cases. That occurred four years before the Supreme Court applied this rule to the states through the Sixth and Fourteenth Amendments in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). So for those four years, at least, Texas did provide that protection based solely on state law.
Fletcher v. State, 396 S.W.2d 393 (Tex.Cr.App.1965), as the majority says, came soon after the Sixth Amendment had been applied to the states through the Fourteenth by Gideon, supra. Perhaps for that reason, this Court addressed only a federal standard: “We are unable to agree that appellant was deprived of his constitutional rights as guaranteed by the 6th and 14th Amendments to the Constitution of the United States, or that a different result would have been reached by the jury but for any of the acts or omissions of his court appointed trial counsel.” Id. at 396. There is no showing from the opinion that the defendant even made a claim under the laws or Constitution of Texas.
Jones v. State, 388 S.W.2d 429 (Tex.Cr.App.1965), is the most problematical of all, because it is difficult to tell for what proposition it stands. Among other things the Court there noted that the defendant “was represented at his trial by counsel of his own choosing ...” Id. at 430. This is no longer relevant after Cuyler v. Sullivan, 446 U.S. 335,100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), abolishing the distinction in standards between retained and appointed *63counsel. See also Ex parte Duffy, 607 S.W.2d 507, 509 (Tex.Cr.App.1980). Jones also states that counsel’s failures to object to inadmissible evidence may have been trial strategy, before stating there was an abundance of other evidence to support the jury’s verdict. Again, neither state nor federal law was explicitly cited.
These cases do not stand for the proposition that Texas constitutional and statutory law have never provided a higher standard of effective assistance than federal law. Nor is that issue before us. Until such time as a defendant claims that Texas law does provide such higher protection, we should not issue what is in effect an advisory opinion that it does not.
V.
After its needless effort to justify adopting the Strickland prejudice test, the majority immediately demonstrates the folly of such an effort by improperly applying that test. Point by point, the majority isolates each failing of trial counsel and concludes that that particular failure did not undermine confidence in the result of the trial:
“It is obvious from a review of the entire record that in certain respects trial counsel rendered sub-par assistance. But in the particular instances where this occurred, it has not been shown, as required by Strickland, that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have differed had trial counsel’s assistance been effective.”
Maj. opinion, p. 59.3 But this is not the way to test appellant’s claim of ineffective assistance, even under Strickland. Under that standard, appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 104 S.Ct. at 2068. It is the cumulative effect of counsel’s errors that must be evaluated, not the effect of each individual error. “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” 104 S.Ct. at 2069. The majority’s weighing only of the individual impact of each individual error shows a basic misconception of the test the majority has erroneously followed. Such misconception demonstrates one of the difficulties inherent in applying another court’s test rather than standards this Court has developed itself over the course of years.4
VI.
Our grant of review was no broader than the ground for review. Eisenhauer v. State, 678 S.W.2d 947, 956 (Tex.Cr.App.1984) (Clinton, J., dissenting). We did not grant review to decide whether we should adopt the nebulous standards of the Supreme Court of the United States as the law of this state governing ineffective assistance claims.5 We granted appellant’s petition only to review the court of appeals’ decision, under applicable state law relied on by appellant and the State, that appellant was rendered effective assistance of counsel at trial. I agree with the majority that at least as far as this record indicates, he was. For example, in his supplemental *64brief to the court of appeals appellant argued, “The record is silent with no indication that defense counsel attempted to contact, interview or secure any psychiatric or psychological experts for the trial.” Supplemental Brief, p. 9. But the burden to show that counsel did not thoroughly investigate the possibility of this viable defense is appellant’s. We may not presume such lack of investigation from a silent record. As the majority properly points out, appellant is free to attempt to develop a record that more fully supports his claims by way of writ of habeas corpus.
Accordingly, while the majority has reached the correct result in this case, I deplore its decision of an issue not properly before us, and its gratuitous abdication of the duties and responsibilities of this Court.
Therefore, I concur only in the judgment of the court.
MILLER, J., joins this opinion.
. The only authority cited for this proposition (majority opinion, n. 4) is unpersuasive. Mr. Braden makes just a bare assertion that "the similarity between [the Fifth and Sixth Amendments] and Section 10 is striking.” He does not even claim that our original Texas constitutional provision was modeled on the federal one. Indeed, persuasive historical evidence exists that it was not: that Texians were influenced greatly by their Mexican experience is already documented, and its laws had trial procedures for defendant to be heard by himself and counsel. However, again, this is not a fit occasion to address the matter since it is not properly before the Court.
. Article I, Section 10 of the Texas Constitution provides in pertinent part:
"In all criminal prosecutions the accused shall have ... the right of being heard by himself or counsel, or both ...”
The analogous Connecticut provision, Art. I, § 9, provides:
“In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel ...”
The Sixth Amendment to the Constitution of the United States, on the other hand, provides in pertinent part:
"In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”
. Emphasis here and throughout is supplied by the writer of this opinion.
. The treatment of the individual claims occasionally leaves something to be desired as well, notably the majority's conclusion at p. 58 that "[ejven if counsel was ignorant of the law and ineffective in allowing these extraneous offenses to come in, there is no reasonable probability that the jury’s verdict would have been different absent the mistake. The underlying burglary in the capital murder was overwhelmingly established and ample evidence supported a conclusion that appellant and his friends were unsavory characters.” Surely the majority does not mean to hold that if the State offers sufficient evidence of the charged offense, and also proves incidentally that a defendant and his friends are “unsavory characters," admission of proof of extraneous offenses is harmless. But what else is to be made of this statement?
.Understanding, of course, that the Sixth Amendment to the United States Constitution establishes the minimum standard of effective assistance and that this Court could not interpret Texas law to provide less protection. Butler v. State, 726 S.W.2d 151, n. 2 (Tex.Cr.App.1986), reh. denied June 18, 1986. |
9,645,535 | 2023-08-22 21:27:54.943346+00 | Teague | null | TEAGUE, Judge,
concurring and dissenting.
I reluctantly concur in the result that the majority reaches, that Hon. Paul Hanne-man was not ineffective trial counsel for his client, Paul Hernandez, appellant, to the extent that appellant's conviction should be set aside. I must, however, dissent to the majority’s application to this .case of what the Supreme Court stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
DOES TEXAS HAVE A HIGHER STANDARD THAT GOVERNS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS THAN THE FEDERAL CONSTITUTION MANDATES?
Notwithstanding that it might be true that “our constitutional and statutory provisions do not create [facially] a standard in ineffective assistance cases that is more protective of a defendant’s rights than the standard put forward by the Supreme Court in Strickland,” this Court has in the past interpreted the Texas Constitutional and statutory provisions governing the right to the effective assistance of counsel more broadly than was done in Strickland, see Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Cr.App.1980), which is constitutionally permissible because it is axiomatic that a state is free to interpret its own constitutional and statutory provisions more broadly than the Supreme Court holds to be necessary in construing the Federal Constitution. E.g., Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). But a careful reading of Strickland, and comparing its teachings with what this Court has stated and held in the past, makes it apparent that the real issue presently before this Court is not whether the facial standard the Supreme Court adopted in Strickland should also be adopted by this Court, in making the determination whether Hanne-man was ineffective counsel for appellant; the real issue presently before this Court is whether that standard should be applied differently.
If one will take the time to put the Supreme Court opinion of Strickland v. Washington, supra, alongside the majority’s opinion, and compare the judicial teachings therein, I believe it will become quite apparent to anyone that the majority’s opinion is nothing more than an effort to mimic what the Supreme Court stated in its dreadful and extremely horrifying opinion of Strickland v. Washington, supra, (horrifying to the extent of what dreadful consequences it will have when it comes to judging whether trial counsel was ineffective).
WHAT JUSTICE MARSHALL, WHO WAS A FINE TRIAL LAWYER AND APPELLATE JUDGE BEFORE HE BECAME A JUSTICE ON THE SUPREME COURT, HAS TO SAY ABOUT STRICKLAND
History teaches us that the Supreme Court in Strickland v. Washington, supra, “for the first time (in its entire history), attempt[ed] to synthesize and clarify those standards for distinguishing effective from inadequate assistance of counsel,” but “[f|or the most part, [its] efforts are unhelpful ... To tell lawyers and the lower courts that counsel for a criminal defend*65ant must act like a reasonably competent attorney, ante, at 687 [104 S.Ct. at 2065], is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own institutions regarding what constitutes ‘professional’ representation, and has discouraged them from trying to develop more detailed standards governing the performance of defense counsel.” Marshall, J., dissenting opinion. In my view, this Court’s majority opinion represents an abdication of this Court’s responsibility to interpret the Texas Constitution.
MY PREDICTION
I predict that except in the most egregiously defended criminal cases, the Supreme Court’s decision of Strickland v. Washington, supra, also see United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), which is the companion case to Strickland v. Washington, supra, which the majority opinion does not cite or discuss in this cause, but which I shall, will have deleterious effects in the field of criminal law, regarding the issue of whether trial counsel was effective or ineffective counsel, much like its decision of Dred Scott v. Sandford, 50 U.S. (19 How.) 393, 15 L.Ed. 691 (1857), had on this country. As most of us remember, the Dred Scott decision held that “free” Negroes were not citizens of the United States, notwithstanding the fact that they had been born in the United States. The decision was a major factor in causing the Civil War between the States, which commenced in 1861 and lasted for four tragic years. In the classic words of Charles Evans Hughes, the Dred Scott decision was a “self-inflicted wound” by the Supreme Court that required more than ten years to heal. I fear that it will take ten-score years before the wound that Strickland v. Washington, supra, inflicts in the field of criminal law will heal because, for Sixth Amendment purposes, that decision is the death rattle for ineffective assistance of counsel claims by convicted persons. The representation of persons accused of committing criminal wrongs, especially indigent defendants, will, I predict, long suffer as a result of the action that the Supreme Court took on May 14, 1984, when it handed down Strickland v. Washington, supra. Also see United States v. Cronic, supra.
THE ACCUSATION AGAINST HANNEMAN
The record on appeal in this cause reflects that on direct appeal, in one ground of error, Hon. Michael L. Brandes and Hon. Betty B. Mackey, Austin attorneys, asserted that Hon. Paul Hanneman, another Austin attorney, who was retained to represent and did represent appellant at his trial, “rendered ineffective assistance of counsel” on behalf of appellant at his, appellant’s, trial. The record on appeal also reflects that for a period of time when the case was on appeal Hanneman also represented appellant by court appointment. However, Hanneman withdrew from the case, “in agreement with the State Bar of Texas,” after which Brandes was appointed by the trial court to represent appellant on appeal. How Mackey got into the case is not clear from the record, but such is immaterial to my discussion. In fairness to Hanneman, I must state that I do not find now or then that he was not qualified to practice criminal law in this State.
THERE HAS BEEN NO HEARING ON THE ACCUSATION
I pause to point out that at no time has any type hearing been held on the accusation that Brandes and Mackey, either individually or jointly, have made against Hanneman; thus, in making the determination whether Hanneman was ineffective counsel when he represented appellant at his trial, this Court is without the benefit of Hanneman’s testimony as to the accusation against him. In Ex parte Duffy, supra, this Court pointed out the following: “Experience has taught us that in most instances where the claim of ineffective assistance of counsel is raised, the record on direct appeal is simply not in a shape ... that would adequately reflect the failings of trial counsel ..., (nor, I might add, that would adequately reflect any defenses *66that the charged attorney might have to the accusation of ineffectiveness). [Collateral attack may be just the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record.” (607 S.W.2d 513).
I WOULD, THEREFORE, REMAND THIS CAUSE FOR A HEARING, BUT THE MAJORITY REFUSES TO DO SO
Because we are without the benefit of Hanneman’s testimony, as to his defenses, if any, to the accusation that has been leveled against him, this causes the record to be incomplete to really answer the question whether Hanneman was ineffective counsel when he represented appellant. Therefore, I vote to remand this cause to the trial court for a hearing on the accusation. Not to take this action is, in my view, not being fair to Hanneman, and to render an opinion on such a skimpy record as we have before us is also not being fair to the bench and bar of this State. But, the majority refuses to remand the cause for a hearing.
Notwithstanding this omission from the record on appeal, the court of appeals implicitly found and now this Court implicitly finds that there is a sufficient record to make the determination whether Hanne-man was ineffective counsel. Thus, as the Court does not vote to remand the cause for a hearing, I will do the best I can with the record on appeal that is presently on file in this Court — for purposes of writing my concurring and dissenting opinion.
WHY BRANDES AND MACKEY CLAIM HANNEMAN WAS INEFFECTIVE TRIAL COUNSEL
In their original appellate brief, Brandes and Mackey claimed that Hanneman was ineffective counsel because he “opened the door” to the admission into evidence of an extraneous offense through his introduction of the written confession of Manuel Gonzales, a co-defendant, at appellant’s trial. However, the record does not, as we shall see, support this accusation. In a supplemental brief, Brandes added to why he thought Hanneman was ineffective counsel. He asserted therein that Hanne-man was ineffective counsel because he failed to pursue an insanity defense; presented evidence that rebutted the affirmative defense of self-defense; and was “ignorant of the facts of the case and governing law.” With the exception of the assertion that concerns an extraneous offense, which I find has merit, I find that the other accusations are without merit. However, in light of the overwhelming evidence of appellant’s guilt, and the fact that his punishment was automatically set under our law, I am unable to say that Hanneman’s ineffectiveness regarding the extraneous offense was not harmless error.
Thus, whichever metaphor or label one chooses to use, in describing the standard for an attorney’s trial performance, such as his performance made the trial a “farce and mockery,” he was “grossly incompetent,” his performance was “perfunctory,” his performance was “prejudicial” to the best interests of the accused, he acted in “bad faith,” his representation was a “sham and a pretense,” his performance was “shocking to the conscience,” his performance denied the accused “fundamental fairness,” or his performance made the trial “a farce and mockery,” after having carefully read the record on appeal, I am unable to conclude that Brandes and Mack-ey’s complaints against Hanneman, including the one involving an extraneous offense, have sufficient merit that would warrant this Court to set aside appellant’s conviction. Thus, the majority correctly holds that Hanneman was not ineffective counsel to such an extent that reversal of appellant’s conviction is required.
HANNEMAN DID NOT HAVE MUCH TO WORK WITH
The record on appeal actually reflects that in representing appellant, Hanneman had few, if any, favorable facts with which to muster a defense on behalf of appellant. As every practicing criminal attorney becomes aware in his or her professional career, “There are some cases that cannot be won, (in the sense of obtaining a not guilty *67verdict from the fact finder). An attorney must appraise a case and do the best he can with the facts (with which he is presented).” Rockwood v. State, 524 S.W.2d 292, 293-294 (Tex.Cr.App.1975). Also, but as previously noted, the punishment that the trial judge imposed was automatically set by our law.
BRANDES’ CLAIM THAT HANNEMAN WAS INEFFECTIVE BECAUSE HE PRESENTED EVIDENCE THAT REBUTTED THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE
As to Brandes’ assertion that Hanneman was ineffective because he presented evidence during the trial that rebutted the affirmative defense of self-defense, try as I might, I have yet to find a scintilla of evidence that would support the defense of self-defense on the part of appellant, as provided by V.T.C.A., Penal Code, Section 9.31. To the contrary, it appears to me that if anyone had the right to use deadly force, it would have been Vasquez, the victim. See V.T.C.A., Penal Code, Section 9.41, defense of property. If it be Brandes’ contention that because Vasquez commenced chasing appellant and his two cohorts from inside his residence, after he, Vasquez, was awakened by his unwelcome and uninvited intruders, that this gave appellant the right to shoot Vasquez in the back when he got to his front porch, I believe he misses the mark because, in a sense, it was appellant and his cohorts who, by their mere unlawful presence inside of Vasquez’ residence, provoked Vasquez into chasing them. In any event, because appellant never established the defense of self-defense, this moots Brandes’ contention because I am unable to understand how Hanneman’s actions rebutted what never existed.
As to Brandes’ last contention, regarding his assertion that Hanneman was ignorant of the facts of the case and governing law, I agree in principle with the reasons the majority states as to why this contention is without merit.
BRANDES AND MACKEY’S CLAIM REGARDING AN EXTRANEOUS OFFENSE
The record on appeal reflects that Hanneman was both effective and ineffective counsel regarding the admission into evidence of an extraneous offense. This is because the record reflects that when Hanneman was cross-examining Gonzales, the State’s accomplice witness, the witness unresponsively answered the following question as follows: “Q: Okay, then that morning, (when Gonzales was arrested), y’all were walking down the street and the police picked you up. Is that not correct? A: Yeah, we were going inside this other house.” [My Emphasis]. The latter portion of Gonzales’ answer was unquestionably unresponsive to the question asked, and subject to an objection. However, Hanne-man did not object. Thus, he was ineffective on this point. Thereafter, but based upon an incorrect representation by the prosecuting attorney of Hanneman’s question, the trial judge erroneously overruled Hanneman’s objection to the admission into evidence of the extraneous offense of attempted burglary of another house that occurred the morning after Vasquez was killed. In this regard, Hanneman was effective counsel. However, but without objection, the State later put on the arresting officer, who testified as to his response to a police dispatch about “a burglary then in progress.” Thus, Hanneman’s failure to object to the officer’s testimony caused the error to be harmless. Autry v. State, 159 Tex.Cr.R. 419, 264 S.W.2d 735 (Tex.Cr.App. 1954). In this, he was ineffective counsel.
Notwithstanding this Court’s decision of Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977), that such error on the part of Hanneman might have been “a question of tactic,” I would hold, for the reasons that Judge Phillips stated in the dissenting opinion he filed in that cause, that Hanneman was ineffective for not objecting to the police officer’s testimony concerning the extraneous offense. However, in light of the overwhelming evidence of appellant’s guilt, I am unable to conclude, though not without some difficulty, that this single error causes him to become ineffective *68counsel to such an extent that reversal of appellant’s conviction is required. Although I am loathe to characterize or classify such error as harmless, because I believe that effective assistance of counsel is a “constitutional right so basic to a fair trial that [its] infraction [usually] can never be treated as harmless error,” Ex parte Duffy, supra, 607 S.W.2d at 524, I am compelled to do so in this instance because the evidence in this non-death penalty case establishes beyond any doubt that appellant committed the capital murder of Vasquez, and the error had no affect whatsoever on the punishment that was assessed. See Weatkersby v. State, 627 S.W.2d 729 (Tex.Cr.App.1982); Allen v. State, 552 S.W.2d 843, 844-846 (Tex.Cr.App.1977). E.g., Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1972). Also see Whitsell v. Perini, 419 F.2d 95 (6th Cir. 1969). Cf. Beasley v. United States, 491 F.2d 687 (6th Cir.1974).
BRANDES’ FAULTING HANNEMAN FOR NOT PURSUING AN INSANITY DEFENSE
As to Brandes’ faulting Hanneman for not “pursuing an insanity defense,” other than admitting that he had consumed some beer, appellant himself testified at the pretrial hearing that was held on the admissibility of appellant’s written confession, see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,12 L.Ed.2d 908 (1964), that he had not taken any drugs or sniffed any glue or paint the night before. Brandes, in support of his contention, however, relies upon a “psychological report” that was filed in Juvenile Court by D.L. Goldwater, a psychologist appointed by the Juvenile Court. The report is in the record on appeal. However, we do not have a transcription of the proceedings that occurred in Juvenile Court. Thus, I agree with Brandes that “Since the facts in this case remained covered and undetected, there is no way of telling whether these facts, (relating to the possible defense of insanity), if fully developed, would or would not have established the defense (of insanity) in dispute.” (P. 10 of Supplemental Brief.) And this is another reason why a hearing should be held on the accusation.
Nevertheless, I have carefully searched the record for evidence that would establish that at the time of the commission of the offense the appellant, as a result of severe mental disease or defect, did not know that his conduct was wrong, see V.T. C.A., Penal Code, Section 8.01(a), which evidence is a prerequisite that must be established before the defense of insanity is raised. My search has been in vain. Brandes, in support of his contention that Hanneman was ineffective because he did not pursue the defense of insanity, seizes upon that part of Goldwater’s report that states that appellant was grossly immature for his age, and that the “ ‘Dap’ test, (draw a picture test), was of sufficient detail to yield a developmental age of approximate eight and one-half years.” However, the fact that this might reflect or indicate that appellant might be mentally retarded does not reflect or indicate that he was suffering from mental disease or defect to such an extent that he did not know his conduct was wrong. My research has yet to reveal a single case where simply because the accused was immature, mentally deficient, or mentally retarded, that this, standing alone, is sufficient to raise the defense of insanity. Nor does Brandes cite such a case. By analogy, this Court, as well as the Federal courts, has held many times that a mentally deficient person is capable of waiving his right of self-incrimination. See Grayson v. State, 438 S.W.2d 553 (Tex.Cr.App.1969); Lavallis v. Estelle, 370 F.Supp. 238 (U.S.S.D.Tex.1974). Of course, if the mental subnormality is so great that an accused is incapable of understanding the meaning and effect of his confession, then it would not be admissible. Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.1970). But that is not our case. Brandes’ contention is without merit. Brandes also does not attack the admissibility of appellant’s written confession on the ground that at the time appellant gave the confession he was so mentally defective that he was in*69capable of understanding the meaning and effect of his confession.
The majority, however, tells appellant that he is “free to develop the facts further in a post-conviction habeas hearing, particularly with respect to counsel’s alleged failure to pursue an insanity defense,” (my emphasis), thus implying that Hanne-man had a duty to investigate this defense. In light of the appellant’s express and unequivocal testimony, that, other than beer, his body did not become subject to any other deleterious substance, and the fact that mental retardation, standing alone, is insufficient to raise the insanity defense, I strongly disagree that Hanneman had any duty to make an investigation regarding a possible insanity defense. The majority’s implication will place an intolerable and unnecessary burden upon the bench and bar of this State, as well as the taxpayers of this State, which they can ill afford at this time.
THE BIRTH OF THE RIGHT TO THE ASSISTANCE OF COUNSEL
In light of this Court’s express approval of Strickland v. Washington, supra, I will next address the subject of the right to the effective assistance of counsel.
The birth of the right to the assistance of counsel, as guaranteed by the Sixth Amendment to the Federal Constitution, and made applicable to the States through the Fourteenth Amendment is, of course, a fascinating and interesting event in the history of the development of criminal law in this country. However, although the Sixth Amendment was declared in force on December 15, 1791, it was not until 1932, when the Supreme Court decided Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), that a person charged with committing a capital crime was given the right to the assistance of counsel, as guaranteed by the Sixth Amendment to the Federal Constitution, which right was made applicable to the States through the Fourteenth Amendment.
THE FACTS THAT GAVE RISE TO POWELL V. ALABAMA
The facts that gave rise to the Supreme Court decision of Powell v. Alabama, supra, made it the ideal case for the Supreme Court to rule on such an important issue in our criminal jurisprudence. Eight of the nine defendants in that cause received the death penalty. After conviction, the case itself received an enormous amount of nationwide publicity, which in part was caused by a “fight” between the International Labor Defense of the Communist Party and the N.A.A.C.P., over which group would furnish legal representation for the defendants, which itself is rather interesting when one considers the fact that it appears that no lawyer really wanted to represent the defendants at their trials.
The incident that gave rise to a long series of trials and appeals of the “Scotts-boro Boys” began on March 25,1931, when the police arrested in Paint Rock, Alabama nine young black males, one of whom was 13 years of age and another who was only sixteen years of age, for the rape of a white female. The rape allegedly occurred on a “fast” freight train traveling between Chattanooga, Tennessee and Huntsville, Alabama. The train was stopped at Paint Rock by a deputy sheriff and a posse comi-tatus. The defendants stood trial in nearby Scottsboro, Alabama; thus, the name “Scottsboro Boys.” None of the defendants were residents of the State of Alabama. It was later established that the victim was a well-known prostitute apparently traveling on the train with a “trick,” and that she had fabricated her story that she had been raped to cover up the fact that she was illegally crossing state lines. Because the attitude of the community of Scottsboro, where the defendants were tried, was one of great hostility, to prevent a lynching the National Guard was called out. The National Guardsmen guarded the defendants, who were housed in Gadsden, Alabama during the pretrial and trial proceedings, as well as guarding the courthouse and the courthouse grounds located in Scottsboro, at every stage of the proceedings. See D. Carter, Scottsboro, A Tragedy of the American South (1979).
Six days later, on March 31st, the defendants were indicted and arraigned. The tri*70al judge later stated that at arraignment he had appointed all the members of the local bar for the purpose of arraigning the defendants. He also stated that he anticipated that the members of the bar would continue to help the defendants if no counsel appeared at the defendants’ trials. On April 6th, the trials commenced, after the State’s motion for severance was granted. Before the trials commenced, the trial judge engaged in a long colloquy with a lawyer from the State of Tennessee, who was not a member of the Alabama bar, to see whether he would appear as counsel for the defendants. The Tennessee lawyer stated that he had come “as a friend of the people who are interested and not as paid counsel” and that he was not familiar with Alabama procedure nor had he had a chance to prepare for the cases. He eventually took part in the trials in the capacity of an amicus curiae. A local lawyer volunteered to help the Tennessee lawyer. Another local lawyer, who had said he could not appear as counsel, but was willing to assist, suddenly became lead counsel. He and the Tennessee lawyer were assisted by another local lawyer who the judge apparently drafted into service, sua sponte. The trials then began. The defendants were tried in three separate groups, but apparently before three different juries sitting at the same time. The trials, which were attended by some eight to ten thousand persons, lasted only one day. A parade took place during the time the trials were occurring. The parade, complete with a band, was sponsored by The Ford Motor Company. When verdicts in the Weems and Norris’ case were returned, the band played the tune “There’ll Be A Hot Time In The Old Town Tonight.” There was much applause from the spectators who were watching the parade. See Patterson v. State, 224 Ala. 531, 141 So. 195, 200 (Supr.1932). Also see Jethro K. Liberman, Milestones (1976).
As noted, eight of the defendants were convicted and given the death penalty. The jury which heard the thirteen-year-old’s case was unable to reach a verdict. The prosecutor had asked that jury to assess the thirteen-year-old a life sentence; however, seven of the twelve jurors wanted to impose the death penalty. It appears that this disagreement over what punishment to assess is what caused the jury in that case not to be able to reach a verdict.
On March 24,1932, the Supreme Court of Alabama, in Patterson v. State, supra; Powell et al. v. State, 224 Ala. 540, 141 So. 201 (Supr.1932); Weems et al. v. State, 224 Ala. 524, 141 So. 215 (Supr.1932), affirmed all but the conviction of Williams, the sixteen year old, which it reversed because it held that Williams, a juvenile, should not have been tried as an adult. Only Chief Justice Anderson of the Alabama Supreme Court dissented. He believed that under the circumstances the defendants had been tried too quickly. In Powell et al. v. State, supra, the majority implicitly answered Judge Anderson’s belief in these words: “The appellants complain of the speed of the trial. There is no merit in the complaint. If there was more speed, and less of delay in the administration of the criminal laws of the land, life and property would be infinitely safer, and greater respect would the criminally inclined have for the law.” (141 So. at p. 211).
Analogizing to the trial of Czolgosz, the assassin who shot former President McKinley in Buffalo, New York on September 6, 1901, the majority found support for its holding that the trials were not too speedy. The majority pointed out that in that case only two months passed from the date of the shooting until Czolgosz was executed, and “This verdict, sentence, and execution were approved by good citizens, north, south, east and west, in fact on both sides of the Atlantic.” (141 So. at p. 211).
POWELL V. ALABAMA
With this backdrop, I now turn to the Supreme Court decision of Powell v. Alabama, supra.
On October 10, 1932, almost exactly six months from the day that the Alabama Supreme Court had denied rehearing, the Supreme Court heard oral argument. It decided the case on November 7, 1932, and restricted the issue to be decided to wheth*71er the defendants were in substance denied their right to counsel, “with the accustomed incidents of consultation and opportunity of preparation of trial.” 53 S.Ct. 57. Thus, the focus of attention was not on what occurred during the trial, but on the actual amount of time allotted the attorneys for trial preparation. Cf. United States v. Cronic, supra.
The Court first held, however, that because the designation of counsel for the defendants was either so indefinite or so close upon the trials that such amounted to a denial of the effective and substantial aid of counsel. It further held that “[i]n any event, the [above] circumstance, [the designation of counsel], lends emphasis to the conclusion that during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trials, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were entitled to such aid during that period as at the trial itself.” (Citations omitted.) 53 S.Ct. at 60.
What appears to have troubled the Court the most was that, even assuming there was a proper designation of counsel on the morning of the trial, such would not have permitted counsel a sufficient period of time to investigate before going to trial. “[A] defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.” 53 S.Ct. at 60.
The Court next decided whether the denial of the assistance of counsel contravened the due process clause of the Fourteenth Amendment to the Federal Constitution. After tracing the historical roots of the right to counsel, the Court concluded that “the right to the aid of counsel is ... [a] fundamental right guaranteed by the due process clause of the Fourteenth Amendment ... We think the failure of the trial court to give [the defendants] reasonable time and opportunity to secure counsel was a clear denial of due process ... [I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation of the case.” 53 S.Ct. at 65.
Thus, in order for there to be due process of law, there must be a trial, but, standing alone, without the effective assistance of counsel, the trial would have little meaning or importance. Because the defendants had been denied the effective assistance of counsel, the Supreme Court ordered their convictions reversed.
SUBSEQUENT HISTORY OF POWELL V. ALABAMA’S HOLDING
Notwithstanding that the question, whether a defendant has a constitutional right to the assistance of counsel in a non-capital case, was not answered in Powell v. Alabama, supra, in 1938, the Supreme Court held in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), that a defendant in a federal criminal prosecution was entitled to the assistance of counsel and that, if unable to afford counsel, the trial court had an obligation to appoint him an attorney. Thus, the Sixth Amendment barred a conviction and sentence in a Federal criminal trial if the defendant was not represented by counsel and had not competently and intelligently waived his right to counsel. However, State defendants charged with non-capital offenses did not fare as well.
In Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), the Supreme Court rejected the claim that due process of law required the assistance of counsel in state proceedings as broad as that provided in the federal courts by the Sixth Amendment. “[T]he due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment.” 62 S.Ct. 1252, 1256. Thereafter, whether counsel was re*72quired in a non-capital felony case was decided on a case by case approach. Counsel was required to be appointed only when the particular circumstances of the case indicated that the absence of counsel would result in a lack of fundamental fairness.
In Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948), the question, whether counsel should be appointed, was framed as follows: “Whether the gravity of the crime and other factors— such as the age and education of the defendant, the conduct of the court or prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto — render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair?” Also see Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686 (1949).
In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court put to rest the above distinctions by overruling Betts v. Brady, supra, and held that the Sixth Amendment right to counsel was applicable to the States through the due process clause of the Fourteenth Amendment. Thus, the appointment of counsel was required in a state felony prosecution, as well as in a Federal felony prosecution, when the defendant could not afford to employ an attorney. Also see A. Lewis, Gideon’s Trumpet (1966).
Gideon v. Wainwright, supra, was expanded in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), to misdemeanors where the punishment exceeded six months. In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court held that where there was to be no confinement, the right to counsel did not attach. But in Baldasar v. Illinois, 446 U.S. 222,100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), the Supreme Court held that an uncounseled misdemeanor conviction without a jail sentence could not be used to convert a subsequent misdemeanor to a felony offense that carried a prison term as punishment.
ONE OF THE EFFECTS OF AFFORDING DEFENDANTS IN STATE COURTS THE RIGHT TO COUNSEL IS THE INCREASE IN CLAIMS THAT COUNSEL RENDERED INEFFECTIVE ASSISTANCE
Although the right to counsel in felony cases is now firmly established, the granting of such right to defendants, in particular indigent defendants, has brought on a proliferation of claims from convicted indigent defendants that counsel who represented them at trial were ineffective in defending them.
BUT BARRIERS WERE QUICKLY ERECTED TO SUCH CLAIMS
Although this Court early on agreed that an accused person in a criminal proceeding has a constitutionally protected right to the effective assistance of counsel,1 and the Legislature early on, see supra, statutorily provided indigent defendants with counsel, when it came to whether counsel was ineffective, this Court, as well as many others, succumbed to the early but later held to be erroneous view that the appointment of counsel was state action, whereas privately retained counsel did not implicate state action. See Newton v. State, 456 S.W.2d 939, 941 (Tex.Cr.App.1970); Byrd v. State, 421 S.W.2d 915 (Tex.Cr.App.1967). Thus, in making the determination whether counsel was ineffective, the distinction between retained counsel and court appointed counsel was drawn. Gondek v. State, 491 S.W.2d 676 (Tex.Cr.App.1973); McKenzie v. State, 450 S.W.2d 341 (Tex.Cr.App.1970). Today, however, notwithstanding that the attorney was retained, his effectiveness must meet the same degree of effectiveness as appointed counsel. See Cuyler v. Sullivan, 446 U.S. 335,100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Ex parte Duffy, supra.
*73In this State, court appointed counsel was formerly held to a very high standard in order to be effective. In one of the few cases that this Court reversed on direct appeal in earlier times, involving court appointed counsel, this Court held in Rodriguez v. State, 170 Tex.Cr.R. 295, 340 S.W.2d 61 (1960), that “viewing the case as an over-all picture, we are constrained to conclude that equal justice under law would best be preserved and maintained by awarding appellant another trial.” (64). “[W]hen from the entire record it is apparent that the accused has not been adequately represented the courts should have no hesitancy in so saying.” (63). The answer to the question, whether court appointed counsel was ineffective in that case, turned upon several factors, namely: (1) the inexperience of the attorney in handling serious criminal cases; (2) his actions during the trial which permitted the State to introduce what would have been otherwise inadmissible evidence that was injurious to the defense. Interestingly, the dissent that was filed in that cause by Judge Woodley concluded that the majority was mandating higher qualifications for the representation of indigent defendants than was required for clients who had retained counsel. The dissent also would have held that the errors of commission that were made by court appointed counsel amounted to trial tactics on the part of the lawyer, and lastly would have held that such errors, if any, were harmless. E.g., Fletcher v. State, 396 S.W.2d 393 (Tex.Cr.App.1965). The majority, however, held that the defendant had not received the effective assistance of counsel, and reversed the defendant’s conviction. This decision was hailed in many quarters. However, history and experience teaches us that it was not approved because many trial judges, including the one who had appointed counsel in Rodriguez, supra, refused to appoint other than experienced and older attorneys of the local bar to represent indigent defendants.
Nevertheless, when it came to court appointed counsel, this Court committed itself: “This Court does not hesitate to reverse a conviction where ineffectiveness of [court appointed] counsel is manifestly demonstrated.” This Court also did not appear to apply the harmless error test to such errors of commission or omission on the part of counsel, if it found court appointed counsel ineffective, the conviction would be summarily reversed. See Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968) (On motion for rehearing).
It also appears from the decisions of this Court that this Court has consistently made the determination whether court appointed counsel was ineffective only after it had carefully reviewed the entire record on appeal, i.e., it viewed the claimed errors of commission or omission from the totality of the representation of the accused, rather than dissecting isolated failures by counsel to object, or isolated acts or omissions by counsel. In Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977), this Court stated the following: “Any claim of ineffective assistance of counsel must be determined upon the particular circumstances of each individual case.” Also see Ex parte Robinson, 639 S.W.2d 953 (Tex.Cr.App.1983); Ferguson v. State, 639 S.W.2d 307 (Tex.Cr.App.1982); Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982); Boles v. State, 598 S.W.2d 274 (Tex.Cr.App.1980); Flores v. State, 576 S.W.2d 632 (Tex.Cr.App.1979); Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977); Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973); Nielson v. State, 437 S.W.2d 862 (Tex.Cr.App.1969); Garcia v. State, 436 S.W.2d 911 (Tex.Cr.App.1969); Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967). And this appeared to be a continuing rule of this Court until today. Further, see Ex parte Dunham, 650 S.W.2d 825 (Tex.Cr.App.1983); Burnett v. State, 642 S.W.2d 765 (Tex.Cr.App.1983) (Dally, J., Dissenting opinion); Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Cr.App.1980); Ex parte Scott, 581 S.W.2d 181 (Tex.Cr.App.1979). Cf., however, Ex parte Ybarra, 629 S.W.2d 943 (Tex.Cr.App.1982); Ex parte Diaz, 610 S.W.2d 765 (Tex.Cr.App.1981); Dugger v. State, 543 S.W.2d 374 (Tex.Cr.App.1976).
However, when it came to retained counsel, cf. post, this Court early on held, in deciding whether counsel was ineffective, *74that the question to be answered was whether counsel was guilty of willful misconduct without the knowledge of the client that amounted to a breach of a legal duty to the client that reduced the trial to a farce and a mockery of justice. Boles v. State, supra; Ex parte Scott, supra, at 182; Gondek v. State, supra; Jones v. State, 388 S.W.2d 429 (Tex.Cr.App.1965), whereas, as noted, when it came to court appointed counsel, the question was whether counsel rendered reasonably effective assistance. See Ex parte Duffy, supra, at 513-514.
LABELS: ARE THEY MEANINGLESS UNTIL APPLIED?
As previously observed, courts, and now including the Supreme Court, have attempted to give labels in stating what standard of performance governs, as to whether counsel was ineffective, such as counsel’s commissions or omissions caused the entire proceeding to result in “a farce and mockery of justice,” counsel’s lack of diligence or competence reduced the trial to “a farce or sham,” counsel must be “reasonably likely to render reasonably effective assistance,” and the like.
But, until applied, are these labels not too general or indefinite to distinguish the diligent from the indifferent attorney; acumen from incompetency?
SOME THOUGHT PROVOKING QUESTIONS
Is it not true that until viewed in light of the circumstances of a particular case, general definitional standards are of little assistance in making the determination whether counsel was or was not effective counsel? It has been stated that “[bjecause the cases do not present a unitary theory of the concept of a fair trial, standards for ineffective assistance have been merely extrapolated from the leading cases without any true theoretical link between the various types of misconduct discussed.” Whitebread, Constitutional Criminal Procedure, at 365. When, exactly, does counsel’s acts of commission or omission cause a trial to become “a farce and mockery of justice?” If the record reflects that counsel filed a “ton” of written motions, was vigorous in his cross-examination of the State’s witnesses, gave a full closing argument, and displayed a sagacious election of trial tactics, will he be deemed effective counsel, even when it is established that he did absolutely no pretrial investigation of the case? Never consulted with the client? Has not read a law book since he finished law school over ten years ago? Has not attended a criminal law institute since he finished law school over ten years ago? What if counsel is board certified in criminal law? Is he to be held to a higher standard than counsel who is not board certified?
Or, better yet, in their past efforts to place stringent requirements that must be satisfied before counsel will be held to be ineffective, have appellate courts placed before the defendant what oftentimes are insurmountable barriers in establishing that counsel was ineffective in an effort to protect trial judges? Lawyers, of course, should and must be willing to explain what they did and why they did it. But, what if an attorney cannot explain what facially is a blatant error of commission or omission? If he cannot explain it, how can a trial judge explain why he did not intervene?
THE TEST IN TEXAS
In Texas, the test used for determining the effectiveness of counsel has been the reasonably effective assistance standard, i.e., counsel likely to render and rendering reasonably effective assistance. The test is applied by gauging the totality of the representation rendered, Ex parte Duffy, supra, also see Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967); McKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), modified per curiam, 289 F.2d 928 (5th Cir.1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961), which first announced the test, and the determination whether counsel was effective has always been decided by this Court on a case by case approach.
Although it may be true that the above test this Court has adopted was one origi*75nally announced by the Fifth Circuit in McKenna v. Ellis, supra, nevertheless, it is also axiomatic that this Court is not bound by rulings of lower federal courts on Federal Constitutional questions, because both state and federal courts are of parallel importance in deciding such questions, and both answer to the Supreme Court on direct review. Pruett v. State, 463 S.W.2d 191, 194 (Tex.Cr.App.1971). However, the same is not true when this Court interprets the State Constitution and State statutory provisions, because its interpretation of those laws is supreme.
Furthermore, but as pointed out by Clinton, J., and Wice, in their law review article entitled “Assistance of Counsel in Texas,” 12 St. Mary’s Law Journal 1, 7 (1980), although the Fifth Circuit did originally adopt the above test in MacKenna v. Ellis, supra, it did not continuously adhere to that test, whereas this Court has for the most part continuously adhered to the above test. Judge Clinton and Wice pointed out the following: “While the Fifth Circuit was struggling to explain its applicable standard of competency, the Court of Criminal Appeals was similarly engaged in settling its own ... Accordingly, the ‘reasonably effective assistance’ standard remains viable in ... the Court of Criminal Appeals.”
THE MAJORITY’S ASSERTION The majority asserts that “With respect to determining ineffectiveness, the general standard established in Strickland differs little or not at all from this Court’s standard ...” Using this statement as its linchpin, it is then able to conclude the following:
In short, [Texas] constitutional and statutory provisions do not create a standard in ineffective assistance cases that is more protective of a defendant’s rights than the standard put forward by the Supreme Court in Strickland. Accordingly, we will follow in full the Strickland standards in determining effective assistance and prejudice resulting therefrom.
In light of what I have stated so far, I must totally disagree with the majority’s conclusion.
HAVE PROFESSOR GENEGO AND I READ A DIFFERENT STRICKLAND V. WASHINGTON?
Perhaps, however, Professor William J. Genego, see 22 Am. Cr. L. Rev. 182, “The Future of Effective Assistance of Counsel: Performance Standards and Competent Representation,” and I have read a different Strickland opinion than the one the majority read because he draws this conclusion therefrom: “While adopting the new ‘reasonable competency’ language, the Strickland Court wrote the opinion in a manner which ensures that the courts will still apply the underlying elements of the ‘farce and mockery’ test.” (181).
And yet, at least since Caraway v. State, supra, if not at least since Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974), was decided, this Court has rejected the “farce and mockery test” in passing upon ineffective assistance of counsel claims.
Thus, if Strickland, supra, holds that, for Sixth Amendment purposes, courts must apply the underlying elements of the “farce and mockery” test, then why does the Supreme Court’s standard not differ from this Court’s standard of “reasonably effective assistance?”
STRICKLAND V. WASHINGTON
On May 14, 1984, the Supreme Court, after deciding to venture for the first time in its history into the disorderly accumulation of metaphors, see supra, regarding what standard shall govern when it comes to deciding claims of ineffective assistance of counsel, decided Strickland v. Washington, supra. As pointed out by Professor Genego, see supra, the Supreme Court decided to try its hand at addressing the issue of what standard should govern for Sixth Amendment purposes. It did so only after all the federal circuit courts of appeals had adopted the “reasonably competent” standard.
In my view, the Supreme Court could not have selected a sorrier case to use as its *76vehicle to write on such an important issue in federal criminal law.
The facts reflect that the defendant, Washington, during a ten-day period of time, planned and committed three groups of crimes, which included three brutal stabbing murders, torture, kidnapping, severe assaults, attempted murders, attempted extortion, and theft. The defendant confessed to the police about the third of the criminal episodes and also confessed to the first two murders. Acting against court-appointed counsel’s advice, the defendant pled guilty to three counts of first degree murder, multiple counts of robbery, kidnapping for ransom, breaking and entering and assault, attempted murder, and conspiracy to commit robbery. Also acting against counsel’s advice, the defendant waived his right under Florida law to an advisory jury at his capital sentencing hearing. In short, the defendant placed the decision whether he should live or die in the hands of a trial judge, who had “a great deal of respect for people who are willing to step forward and admit their responsibility.” Although the opinion states that court appointed counsel was “an experienced criminal lawyer,” it does not reflect what, if any, knowledge or experience counsel had with this particular judge regarding his views on punishment and his assessing punishment in different kinds of criminal cases, i.e., the record does not reflect whether the trial judge was “hard-nosed” or “liberal” when it came to assessing punishment, and what he had previously done in a case comparable to this one.
In the trial court, after argument by counsel, and after the trial judge found numerous aggravating circumstances, (and none or a single comparatively insignificant mitigating circumstance, which was apparently the fact that there was no evidence of any prior convictions, and not the fact that the defendant had been willing to step forward and admit his responsibility), he sentenced the defendant to death on each of three counts of capital murder and to prison terms for the other crimes.
WASHINGTON’S ATTACK ON HIS TRIAL COUNSEL COMMENCES AND THE CASE REACHES THE ELEVENTH CIRCUIT COURT OF APPEALS
By way of post-conviction collateral attack on the death sentences that were imposed, it was claimed that trial counsel was ineffective in six respects. None concerned the defendant’s pleas of guilty. On eventual appeal to the Eleventh Circuit, see Washington v. Strickland, 693 F.2d 1243 (11th Cir.1982), the claims were narrowed to the following: (1) whether counsel was ineffective because he failed to investigate, procure, and present character evidence relevant to the sentencing stage of the trial, and (2) whether this failure prejudiced the defendant in the conduct of his defense to the imposition of the death sentence. The Eleventh Circuit ordered the cause remanded to the lower court for a hearing. If the lower court found that “there was more than one plausible line of defense at the expense of another; and if the strategic choice was reasonable, Tunkey (the attorney) did not breach his duty to investigate.” (at p. 1258). Tunkey had testified that he made a strategic choice to introduce limited character evidence during the plea colloquy and thereafter to rely upon expressions of frankness, sincerity, and remorse to persuade the judge to impose a sentence of life imprisonment, (at p. 1251). The Eleventh Circuit held: “In sum, an attorney who makes a strategic choice to channel his investigation into fewer than all plausible lines of defense is effective so long as the assumptions upon which he bases his strategy are reasonable and his choices on the basis of those assumptions are reasonable.” (At p. 1256). The Eleventh Circuit also held that if the defendant established that Tunkey was ineffective counsel, then the lower court should make the determination whether the defendant suffered prejudice of sufficient magnitude to warrant granting the writ of habeas corpus, i.e., the defendant had to show not only “a possibility of prejudice, but that [it] worked to his actual and substantial disadvantage.” If the defendant was successful in satisfying his burden, then the lower *77court was ordered to make the determination whether the prosecution established that the error was harmless beyond a reasonable doubt. In making its holdings, the Eleventh Circuit acknowledged that the Sixth Amendment accorded criminal defendants the right to assistance of counsel, and also held that a vital corollary to this right is that counsel is reasonably likely to render and renders reasonable effective assistance given the totality of the circumstances. (At p. 1250).
WHAT IS LACKING IN STRICKLAND V. WASHINGTON
I believe that the most important thing lacking in Strickland v. Washington, supra, is the fact that the question whether trial counsel was ineffective did not concern the merits of the case itself, either as to pretrial or trial. The Supreme Court concerned itself only with what would be in this State the equivalent of a “capital murder punishment hearing,” that was held, not before a jury, but before a trial judge, and its discussion concerned only counsel’s failure to prepare for the punishment hearing.
As previously noted, no trial, as that term is ordinarily understood by members of the legal community, occurred in Strickland v. Washington, supra, because the defendant pled guilty to the charges. Thus, Washington did not dispute what the State of Florida had accused him of committing. The only issue that was then before the trial judge was what punishment should be assessed.
WHAT LEGAL DEFENSE IS THERE TO THE ASSESSMENT OF PUNISHMENT?
The Supreme Court considered the assessment of punishment as though there is a legal defense to the imposition or assessment of punishment after a defendant has been found guilty. However, I am unaware, except possibly where the defendant becomes insane after he is found guilty, or where there is some legal reason to prevent the assessment of punishment, that a defendant has a legal defense to the assessment of punishment in a criminal case.
TEXAS LAW AND FLORIDA LAW ARE NOT THE SAME
The Supreme Court also overlooked the fact that not all of our States have the same procedure when it comes to assessing punishment where the defendant has been found guilty of a crime for which the death penalty is a possible punishment.
For example, the procedure which governs a capital murder punishment hearing in Texas, see Art. 37.071, V.A.C.C.P., is a far cry from the procedure mandated by the State of Florida. Another major difference between Texas and Florida law is that because of Articles 1.13 and 1.14, V.A.C. C.P., both the State and the defendant are precluded from waiving trial by jury on the issue of guilt or. punishment where the accusation is capital murder. Ex parte Bailey, 626 S.W.2d 741 (Tex.Cr.App.1981); Ex parte Jackson, 606 S.W.2d 934 (Tex.Cr. App.1980); Eads v. State, 598 S.W.2d 304 (Tex.Cr.App.1980); Ex parte Dowden, 580 S.W.2d 364 (Tex.Cr.App.1979); Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976). Cf. Hicks v. State, 664 S.W.2d 329 (Tex.Cr. App.1984). Furthermore, under Texas law, there is no such thing as a presentence investigation report when the jury assesses punishment, whether the case is capital or non-capital. Lastly, but because Texas case law contains so many dangers and disadvantages to putting on any evidence at the punishment hearing after the defendant has been found guilty of capital murder, I believe that almost every defense attorney in this State who has defended a person convicted of capital murder, or even a non-capital murder case, will attest that to do so can be extremely risky and dangerous business for his client because of the doctrine of curative admissibility and waiver of error to errors that occurred at the guilt stage of the trial, as well as the danger of aggravating what was already a bad situation. See Smyth v. State, 634 S.W.2d 721, 724 (Tex.Cr.App.1982) (Teague, J., dissenting opinion).
*78Records of capital murder cases in this Court’s archives also reflect that it is the rare capital murder case where the defendant, who has been found guilty of capital murder, presented any evidence at the punishment hearing.
This, of course, is not to say that the defense attorney in a capital murder case should not consider putting on evidence at the punishment hearing; it is simply to say that if he does he runs many risks that might very well aggravate the situation, which can be costly and even deathly to his client.
WHAT WAS LAWYER TUNKEY’S ERROR?
The opinion in Strickland v. Washington, supra, reflects that the only serious omission by Tunkey, Washington’s trial attorney, was his failure to investigate and find the fourteen friends, former employers, neighbors, and relatives who later attested that they would have testified at Washington’s punishment hearing if they had been asked to do so. However, the majority opinion points out that these persons would have only testified that the defendant was “basically a good person who was worried about his family’s financial problems,” or, as Justice Marshall put it in his dissenting opinion, in the witnesses’ experiences with the defendant, the defendant “was a responsible, nonviolent man, devoted to his family, and active in the affairs of his church.”
I sincerely believe that even the most unskilled and unlearned capital murder prosecutor in Texas would have had a field day with these witnesses during his cross examination of them, if the case had been tried in Texas and the witnesses had gotten up in the face of what the defendant Washington had done and testified as set out above.
THE SUPREME COURT’S TESTS FOR INEFFECTIVE COUNSEL
In deciding whether counsel is ineffective, the Supreme Court held that before counsel can be deemed ineffective, the following question must be answered in the affirmative: “[Did] counsel’s conduct so undermine the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result?” In Strickland v. Washington, supra, in place of the word “trial,” the Supreme Court substituted the phrase, “a capital sentencing proceeding.” Is this, however, not the “farce and mockery” test that this Court has refused to adopt, and so long ago abandoned?
The Supreme Court then enunciated a three-part test to determine whether counsel’s conduct was ineffective under the Sixth Amendment. The first part of the test requires that the defendant must first identify the acts or omissions he claims rendered counsel ineffective. However, he is confronted at the outset with “strong” presumptions that counsel fulfilled his role in the adversary process that the Sixth Amendment envisions and “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” i.e., that he acted reasonable under prevailing professional norms. The acts or omissions must not be subject to reasonable professional judgment. The defendant must next establish by a preponderance of the evidence that (1) counsel’s performance was deficient, i.e., that counsel’s performance fell below an objective standard of reasonableness, and that he made errors so serious that counsel did not function as the “counsel” guaranteed the defendant by the Sixth Amendment, and (2) that the deficient performance prejudiced the defense, i.e., that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is presumed to be reliable. “Unless a defendant makes [these] showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable ... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. The Court also held: “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assist-*79anee; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”
If the defendant hurdles the above presumptions, he still has the burden to establish that the error of commission or omission had an effect on the judgment of conviction or sentence. The defendant must “affirmatively prove prejudice,” i.e., that the error or errors “had an adverse effect on the defense.” In this regard, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” A reasonable probability was defined by the Court to mean “a probability sufficient to undermine confidence in the outcome,” i.e., “[Wjhether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt (or that the factfinder would not have assessed the death penalty).” Or, to put it another way, “the decision reached would reasonably likely have been different absent the errors.”
However, the defendant runs into another presumption when it comes to establishing prejudice or that the error or errors had an adverse effect on the judgment of conviction or sentence. It is also presumed that “absent challenge to the judgment on grounds of evidentiary insufficiency, the judge or jury [is presumed to have] acted according to law ... The assessment of prejudice should proceed on the assumption that the decisionmaker reasonably, conscientiously, and impartially applied the standards that govern the decision.”
TUNKEY WAS NOT INEFFECTIVE COUNSEL
In Strickland v. Washington, supra, for reasons stated in the opinion, many of which I have also set out herein, the defendant Washington did not even get out of the chute in his claim that Tunkey, his trial counsel, was ineffective and the sentencing proceeding was fundamentally unfair. The Supreme Court denied him any relief.
THE LACK OF UNDERSTANDING BY THE SUPREME COURT OF THE ROLE OF THE CRIMINAL DEFENSE ATTORNEY
ANOTHER PREDICTION
For those defendants, especially those who are indigent, the promise guaranteed by the Sixth Amendment, that counsel will be effective, I predict will remain a promise unfulfilled. For those who are now to be subject to what the Supreme Court stated in Strickland v. Washington, supra, in making ineffective assistance claims, they will be confronted with the procedural textbook the Supreme Court has given lower courts in how to dispose of their claims, namely, “apply a strong presumption of competency to everything a lawyer does, a heavy measure of deference to strategic decisions and an uncritical assumption of the reliability of the result of the original proceeding.” Genego, supra, at 201. For these reasons, if no other, a convicted defendant clearly denied effective assistance of counsel at his trial will find it extremely difficult, if not impossible, to obtain relief.
*80See, for example, Larsen v. Maggio, 736 F.2d 215 (5th Cir.1984), in which the Fifth Circuit held that “where the defendant fails to demonstrate prejudice, the alleged deficiencies in counsel’s performance need not even be considered,” (at p. 217); also see Ricalday v. Procunier, 736 F.2d 203 (5th Cir.1984); Gomez v. McKaskle, 734 F.2d 1107 (5th Cir.1984).
In light of what the Supreme Court has stated in Strickland v. Washington, supra, I believe its decision places too heavy a burden upon a convicted defendant who claims that his trial counsel was ineffective. This Court should, therefore, hold that Art. 1, Section 10, of the Texas Constitution and Art. 1.05, V.A.C.C.P., apply higher standards to appointed or retained counsel, than those enumerated in Strickland. Because it fails to do so, I must respectfully dissent.
UNITED STATES V. CRONIC
The majority opinion fails to cite or discuss the companion case to Strickland, namely, United States v. Cronie, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), which reversed the Tenth Circuit Court of Appeals decision of Cronie v. United States, 675 F.2d 1126 (10th Cir.1982), which had held that inadequacy of representation may be inferred without proof of specific prejudice at trial, from the following factors: (1) the time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; (5) the accessibility of possible witnesses to counsel, and ordered the defendant’s conviction reversed where it was established that the defendant’s attorney, whose prior experience in federal criminal practice was limited to “involvement” in one other case, but that this was his first “trial,” and his practice was limited to real estate law; that it took the Government four-and-one half years to prepare the charge, for which the defendant faced a sentence of up to sixty-five years, but the attorney was afforded only 25 days in which to prepare for trial. Counsel put on no defense. The trial lasted four days. The defendant received a twenty-five year sentence. The Supreme Court, however, made short shrift of the decision of the Circuit Court of Appeals, by first holding that “only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.” Because it was not demonstrated that counsel had failed to function “in any meaningful sense as the Government’s adversary,” and in light of the presumptions stated in Strickland v. Washington, supra, the Supreme Court reversed. However, it told the defendant, “Respondent can therefore make out a claim of ineffective assistance of counsel by pointing to specific errors made by trial counsel ... Should respondent pursue claims based on specified errors made by counsel on remand, they should be evaluated under the standards enunciated in Strickland v. Washington, supra.”
I believe that the defendant Cronie will find that in light of Strickland v. Washington, supra, from a legal standpoint, the Federal courthouse door will not only be closed when he gets there, it will be locked tighter than you know what.
MY PROPOSED STANDARD
I believe that the right to counsel is empty unless counsel, whether he be retained or court appointed, adequately and effectively represents his client, the accused. I believe that the proper standard for judging counsel’s effectiveness is the standard of the adequacy of legal services as in any other profession; the exercise of the customary skill and knowledge which normally prevails in the field of criminal law at the time and place where the services are rendered. E.g., Moore v. United States, 432 F.2d 730 (3rd Cir.1970, at 736. I find that such a standard is commendable, and would be acceptable to the members of the bar who practice criminal law in this State and defend persons accused of committing criminal wrongs. This standard, of course, seeks to exact the highest possible level of assistance for the accused. But what is wrong with that? What is wrong with trying to achieve the highest possible legal representation for accused *81persons? What is wrong with trying to upgrade the criminal defense bar? None other than Hon. Warren Burger, recently the Chief Justice of the Supreme Court, has been the leading critic of trial lawyers of these United States. He maintains that large numbers of the trial bars of our States are unqualified and incompetent to try cases, “Ten years ago I suggested that up to one-third or one-half of the lawyers coming into our courts were not really qualified to render fully adequate representation ...” See Burger, “The State of Justice,” 62 American Bar Association Journal 62, 64, in which he points out that he might have been too high; the correct figure being 25 or 30 percentum. Also see Burger, “The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice?”, 42 Fordham L.Rev. 229 (1973). Chief Justice Burger also maintains that “the behavior of some of the more visible advocates is not such as to reflect credit on our profession.” Burger, “The State of Justice,” op. cit. He, of course, does not believe that trial lawyers should represent their clients to the fullest extent allowed by law: “Historically, honorable lawyers complied with traditions of the bar and refrained from doing all that the law or the Constitution allowed them to do.” But, for one who believes that there is such a large number of incompetent members of our trial bars in these United States, isn’t it rather strange that the former Chief Justice did not dissent in Strickland v. Washington, supra. Perhaps, however, it is easier to hold the trial bar up to public ridicule and contempt with references to such as “procurers,” “hired guns,” and “hucksters,” as he has been known to do in the past, see Shrager, “Response to Chief Justice Burger: President’s Page,” 20 Trial, No. 4, April, 1984, than it is to mandate that members of the trial bar be more accountable for their actions and omissions.
Of course, former Chief Justice Burger is the justice who once stated that an attorney who voiced the contention that the “absence of counsel at the police lineup voids a conviction” was acting in a bizarre and “Disneyland” fashion. He has also implied that any unusual suggestion that an indigent client might make as to how to defend his case is “absurd and nonsensical,” and for the attorney to execute any suggestion by the client that might be considered “bizarre” causes the attorney to “stultify himself or prostitute his professional standards.” Williams v. United States, 345 F.2d 733, 736 (D.C.App.1965) (Burger, C.J., concurring).
Under my proposed standard, the defendant, of course, would have to establish a prima facie case of ineffective assistance of counsel by showing that specified acts of commission or omission by the attorney would be considered erroneous by the average criminal lawyer. Once this has been accomplished the State would then have the burden of proving that either no actual prejudice resulted from the attorney’s ineffectiveness, or that such was harmless error.
For the above reasons, I respectfully concur in the result but dissent to the majority’s taking the wrongful step of locking the courthouse doors to those persons who seek relief because they have been deprived of the effective assistance of counsel at their trials.
. Since at least 1948, in capital cases, and since at least 1957, in non-capital cases, Texas has required that, when requested, indigents must be furnished counsel. See 28 Tex.L.Rev. 236 (1949); Morrison, “Requiring the Appointment of Counsel at Trial and on Appeal,” 28 Tex. Bar J. 23 (1965); Onion, “The Right to Counsel,” 28 Tex. Bar J. 357 (1965). |
1,516,496 | 2013-10-30 06:32:55.625106+00 | Bloom | null | 69 Md. App. 645 (1987)
519 A.2d 751
EDWARD A. JACKSON
v.
STATE OF MARYLAND.
No. 429, September Term, 1986.
Court of Special Appeals of Maryland.
January 9, 1987.
W. Michel Pierson, Assigned Public Defender (Alan H. Murrell, Public Defender on brief), Baltimore, for appellant.
John S. Bainbridge, Jr., Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Marshall H. Feldman, Asst. State's Atty. for Baltimore City on brief), Baltimore, for appellee.
Argued Before ALPERT, BLOOM and KARWACKI, JJ.
BLOOM, Judge.
Appellant, Edward A. Jackson, was convicted by a jury in the Circuit Court for Baltimore City of first degree rape, first degree sexual offense, and assault with intent to murder. In an unreported per curiam opinion, we reversed those convictions and remanded the case for retrial. Jackson v. State, No. 1001, September Term, 1983 (filed April 27, 1984). The State petitioned for a writ of certiorari but on October 2, 1984, the Court of Appeals denied the petition. State v. Jackson, 301 Md. 43, 481 A.2d 802 (1984). Some twenty months after our mandate, Jackson was retried and again convicted by a jury of the same offenses, together with a fourth offense, carrying a deadly weapon, as to which no judgment had been entered at the conclusion of the first trial. The court imposed a life sentence for the rape and concurrent lesser sentences for the other offenses.
The principal issue raised by this appeal is whether appellant's constitutional right to a speedy trial was abridged by the lengthy delay in retrying him. Appellant also asserts that the trial court erred in refusing to grant certain jury instructions he requested and that retrial on the weapon charge was barred by the constitutional prohibition against double jeopardy. We reject appellant's speedy trial contention and his assertions of error in the instructions. With respect to his double jeopardy argument, we find that the issue has not been preserved for appellate review.
Background
Despite our mandate and the denial of certiorari by the Court of Appeals, for some unexplained reason, Jackson's case was permitted to languish until 18 December 1985, when it appeared on the circuit court's arraignment docket. Jackson moved for dismissal of the indictments, asserting a denial of his constitutional right to a speedy trial; that motion was dismissed. Trial was held on 29 January 1986 and Jackson was again convicted by a jury.
The court sentenced Jackson to concurrent terms of life imprisonment (rape), twenty-five years (assault with intent to murder), thirty years (sexual offense), and three years (carrying a deadly weapon). The first three sentences were imposed under article 27, section 643B(c), thus rendering Jackson ineligible for parole for twenty-five years.
Speedy Trial
As Judge Moylan stated for this Court in State v. Wilson, 35 Md. App. 111, 371 A.2d 140 (1977): "It is axiomatic, from all of the massive case law upon the subject, that the mere running of the calendar will not be viewed in isolation and has little significance divorced from the questions of reason for delay and prejudice, which are, respectively, its cause and its effect." Id. at 117, 371 A.2d 140. Because there is no constitutional right to be tried within a specific period of time, the determination of whether a defendant has been denied a speedy trial necessarily is made on a case by case basis. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2191, 33 L. Ed. 2d 101 (1972); Epps v. State, 276 Md. 96, 345 A.2d 62 (1975). Although an ad hoc approach is required, we are not without guidance as to the methodology to be employed in assessing a claimed deprivation of a speedy trial. The Supreme Court, in Barker v. Wingo, supra, provided the conceptual framework necessary to arrive at a consistent and principled application of the Sixth Amendment's guarantee: a four-factor balancing test. Those four factors are:
1. Length of delay,
2. Reason for delay,
3. Defendant's assertion of his right,
4. Prejudice to the defendant.[1]
The balancing of the four factors is required only when the length of the delay is of a constitutional dimension. Powell v. State, 56 Md. App. 351, 358, 467 A.2d 1052 (1983), cert. denied, 298 Md. 540, 471 A.2d 745 (1984). Due to the unusual nature of this appeal a claimed denial of a speedy retrial the speedy trial clock is not triggered by the arrest of Jackson or the filing of formal charges. Cf. State v. Gee, 298 Md. 565, 567-72, 471 A.2d 712, cert. denied, 467 U.S. 1244, 104 S. Ct. 3519, 82 L. Ed. 2d 827 (1984). The triggering event in this appeal is the issuance of our mandate on 28 May 1984 which reversed Jackson's first conviction. Coleman v. State, 49 Md. App. 210, 220, 431 A.2d 696 (1981); Tisdale v. State, 41 Md. App. 149, 160, 396 A.2d 289 (1979). Since the State concedes, perforce, that the twenty month delay between 28 May 1984 and 29 January 1986 is of a constitutional dimension, we advance to consideration of the four factors. Barker v. Wingo, supra, [407 U.S.] at 533, 92 S.Ct. at 2193.
1. Length of Delay
As mentioned above, the length of delay is twenty months.
2. Reason for the Delay
The Supreme Court has recognized that degrees of fault should be associated with various causes of delay in bringing an accused to trial. In Barker v. Wingo, the Court stated:
Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Id. at 531, 92 S.Ct. at 2192.
For the purpose of assessing fault we break down the twenty months at issue into three periods:
A. 29 May 1984 to 2 October 1984 (127 days)
B. 3 October 1984 to 18 December 1985 (442 days)
C. 19 December 1985 to 29 January 1986 (42 days).
A. 29 May 1984 to 2 October 1984
During the four months in which the State's application for certiorari was pending, the State chose not to retry Jackson, although it possessed the authority to do so. See Skeens v. Paterno, 60 Md. App. 48, 64-65, 480 A.2d 820, cert. denied, 301 Md. 639, 484 A.2d 274 (1984). That delay is charged to the State. We recognize, however, that it was reasonable for the State to wait until after the Court of Appeals decided not to review our reversal of Jackson's conviction before proceeding with a retrial; therefore, the four months will not be weighted heavily. Cf. Hines v. State, 58 Md. App. 637, 654-56, 473 A.2d 1335 (1984) (delay resulting from reasonable decision to determine whether witnesses were available before attempting to obtain custody of accused from another sovereign was chargeable to State but not given great weight).
B. 3 October 1984 to 18 December 1985
This period encompasses the time which passed between the denial of certiorari by the Court of Appeals and the appearance of Jackson's name on the circuit court's arraignment docket. The State cannot explain how fourteen and one-half months were allowed to pass before Jackson was called to appear before the court. Counsel surmises that a clerical error occurred which permitted the case to fall through the cracks. This 442-day period is charged against the State.
Regarding the weight to be assigned this delay, Barker v. Wingo indicates that a delay resulting from negligence should be weighted less heavily than one resulting from a deliberate attempt to undermine the defense. Barker v. Wingo, supra, [407 U.S.] at 531, 92 S.Ct. at 2192. This does not mean, however, that a negligent delay cannot be weighted heavily. In Wilson v. State, 44 Md. App. 1, 408 A.2d 102 (1979), cert. denied, 446 U.S. 921, 100 S. Ct. 1858, 64 L. Ed. 2d 275 (1980), this Court stated that the degree of weight to be attributed to a delay resulting from negligence increases in direct proportion to the length of the delay. Id. at 10, 408 A.2d 102. That principle has since yielded to the general proposition that a delay which results from prosecutorial indifference or negligence must be weighted heavily against the State. E.g., Ferrell v. State, 67 Md. App. 459, 464, 508 A.2d 490 (1986); Lee v. State, 61 Md. App. 169, 178-79, 485 A.2d 1014, cert. denied, 303 Md. 115, 492 A.2d 616 (1985); Powell v. State, supra, [56 Md. App.] at 361, 467 A.2d 1052.
In Brady v. State, 291 Md. 261, 434 A.2d 574 (1981), a delay of fourteen months was weighted heavily against the State because of what the Court dubbed "prosecutorial indifference." The State was unable to locate the defendant even though he was already incarcerated on an unrelated charge. Despite his being "right under their noses," the authorities made no attempt to inform Brady of the pending charges. Id. at 267, 434 A.2d 574. The Court found the State's lack of diligence to be the determinative factor in its decision to reverse Brady's conviction. "Brady's trial was not delayed because of someone's professional judgment regarding allocation of scarce resources, but because of the inexcusable failure of the State to check for Brady's presence within the correctional system itself." Id. at 269-70, 434 A.2d 574.
We find the unexplained loss of Jackson's case within the criminal justice system to be as much a matter of "prosecutorial indifference" as the State's failure to locate Brady within the correctional system. Accordingly, the 442-day period will be weighted very heavily against the State.
C. 19 December 1985 to 29 January 1986
We find that the 42-day delay between Jackson's appearance before the court on 18 December 1985 and trial was allowable for orderly pretrial preparation and we charge this time to neither party. Cf. Ferrell v. State, supra, [67 Md. App.] at 462, 508 A.2d 490.
Summary
A. 127 days charged to the State not heavily weighted;
B. 442 days charged to State heavily weighted;
C. 42 days neutral.
3. Defendant's Assertion of His Right
The defendant's failure to assert his right to a speedy trial is no longer deemed a waiver of such right. See State v. Jones, 18 Md. App. 11, 16-18, 305 A.2d 177 (1973). The Supreme Court has recognized, however, that the failure to demand a speedy trial does make it difficult for the defendant to prove that he was deprived of his right. Barker v. Wingo, supra, [407 U.S.] at 531-32, 92 S.Ct. at 2192. Of course, "difficult" and "impossible" are not synonymous. Evans v. State, 30 Md. App. 423, 430-31, 352 A.2d 343 (1976).
Over the course of the twenty month delay, Jackson did not file a motion for speedy trial. On 20 January 1986, nine days before his retrial, Jackson filed a motion to dismiss predicated upon a claimed deprivation of speedy trial. When the court heard the motion on 29 January, it inquired of counsel why Jackson had remained silent for so long. Jackson's attorney, with commendable candor, explained that in light of the inability or refusal of the victim, during the first trial, to identify Jackson as her assailant and the ensuing reversal of his conviction, Jackson opted to wait quietly to see if the State would elect to retry him or dismiss the indictment.
We weigh Jackson's failure to demand a speedy trial heavily against him. Cf. Powell v. State, supra, [56 Md. App.] at 365-66, 467 A.2d 574.
4. Prejudice
Whenever the length of a delay is deemed to be of a constitutional dimension, a presumption arises that the defendant has been prejudiced; thus, a defendant need not make an affirmative showing of prejudice in order to prevail on a claimed deprivation of his constitutional right to speedy trial. Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 189, 38 L. Ed. 2d 183 (1973) (per curiam); Jones v. State, 279 Md. 1, 16, 367 A.2d 1 (1976), cert. denied, 431 U.S. 915, 97 S. Ct. 2177, 53 L. Ed. 2d 225 (1977). The presumption is rebuttable and may lose its significance in light of evidence tending to negate the presumption and the weight attributed to other factors. State v. Wilson, supra, [35 Md. App.] at 122-25, 371 A.2d 140.
Prejudice in the context of the denial of speedy trial, whether presumed or actual, comes in two variations: (1) prejudice to the person of the defendant, and (2) prejudice to the conduct of the defense. State v. Wilson, supra, at 127, 37 A.2d 140. There are two facets to the former variety of prejudice: (a) oppressive pretrial incarceration and (b) anxiety and concern. Prejudice to the conduct of the defense may manifest itself through faded memories or lost witnesses. See Barker v. Wingo, supra, [407 U.S.] at 532, 92 S.Ct. at 2192.
Although our reversal of his earlier convictions had reclothed him with the presumption of innocence, appellant was incarcerated throughout the entire twenty month period, during which time he would ordinarily be expected to have suffered anxiety and concern over his situation; yet, had he asserted his right at any time during the delay, the State would have discovered its error in the processing of Jackson's case and the matter presumably would have been resolved. Jackson deliberately chose to remain silent, and thus in jail, in the hope that the victim's failure to recognize him at the first trial and the reversal of his first conviction would prompt the State to drop the indictment against him. Jackson thus made a conscious choice to trade a lengthy period of confinement, along with its attendant anxiety, for the chance that he might not be prosecuted if he did not force the State's hand by demanding to be tried. Under these circumstances, we conclude that Jackson himself placed relatively little weight on the prejudice to his person, and we are certainly not inclined to give it any greater weight than he did.
The circuit court found that Jackson did not suffer significant prejudice to his defense. Appellant asserted that his defense was seriously hampered by the loss of an alibi witness. Ordinarily, the loss of a witness is the most serious form of prejudice, see Barker v. Wingo, supra, at 532, 92 S.Ct. at 2192. In this case, however, the prejudice was mitigated by the fact that a transcript of the witness's testimony at the first trial was available to the court. Although testimony read to the court may have less impact on the jury than testimony offered by a witness in person, it is also true that testimony read to the court is spared the possibility of being discredited by vigorous cross-examination. We cannot say that the court below was clearly erroneous in its finding that the prejudice to the defense resulting from the absence of the alibi witness was minimal. Cf. Hines v. State, supra, [58 Md. App.] at 656, 473 A.2d 1335.
The Balance
Our application of the four factors yields the following analysis:
(1) A delay of twenty months;
(2) Over fourteen and one-half months of delay weighted heavily against the State, four months charged to the State but not heavily weighted and a little over one month neutral;
(3) The failure of the accused to assert his right, weighted heavily against him;
(4) Slight prejudice to the person and minimal prejudice to the conduct of the defense.
As outlined, the factors appear at first glance to be in rough equilibrium. The resolution of Jackson's denial of speedy trial claim, therefore, is dependent upon the relative significance to be attributed to the corresponding heavily weighted factors. To which factor shall we attach greater significance the State's totally unexplained failure to monitor Jackson's case, or Jackson's failure to assert his right? Certainly, Jackson had no obligation to expedite his trial; it is the State that has the duty to bring an accused to trial. Epps v. State, supra, [276 Md.] at 105, 345 A.2d 62. To hold that mere silence outweighs all other factors would be tantamount to reestablishing the demand-waiver rule rejected by the Supreme Court in Barker v. Wingo.
Appellant relies heavily on Evans v. State, supra, a prosecution for selling heroin to an undercover police officer. Approximately eighteen months elapsed between the date an arrest warrant was issued and the commencement of trial. Of that eighteen months, just under fifteen months resulted from repeated postponements at the State's behest due to administrative problems and the recurring absence of the police officer. Even though Evans did not assert his right to a speedy trial during the delay, this Court reversed his conviction. Judge Gilbert wrote, "On balance, in this case, the appellant's failure to demand a speedy trial prior to the date of trial, while weighing against him, does not outweigh what appears to be an air of indifference with respect to the prosecution of this case from its inception." Id. [30 Md. App.] at 431, 352 A.2d 343.
We find the case sub judice to be distinguishable from Evans in one important respect. The delay in Evans resulted from positive actions by the State to postpone the trial; the accused's failure to demand a speedy trial did not cause or contribute to the delay. Even if Evans had demanded a speedy trial, the State was not in a position to accede to that demand. In this case, however, the State did not seek any postponements. There was nothing to suggest that the State had any reason or motive to delay appellant's trial. Indeed, everything pointed to sheer negligence; the State apparently just lost track of the case and forgot that appellant existed. Such being the case, had appellant requested a speedy trial, in all likelihood he would have received one. His tactical decision to remain silent, therefore, was a direct and contributing cause of the delay of which he now complains.
We have indicated, supra, that Jackson's decision to remain silent weighs heavily against him when we balance it against the prejudice to his person, because he himself decided that the benefits of delaying his retrial outweighed the burdens of pretrial incarceration and anxiety. When we weigh that same conscious election not to seek a prompt trial against the State's negligence or indifference, we again find the scales tilted against appellant. His silence and the State's neglect combined to cause the delay in bringing appellant to trial, but the State's inaction was apparently inadvertent while appellant's inaction was the product of a deliberate decision.
In this case, it is not a mere failure to assert the right that outweighs the other factors; it is a deliberate, tactical decision to remain silent, which was a contributing cause of the delay, that outweighs the State's negligence or indifference as well as the relatively slight personal prejudice and minimal prejudice to the defense. Had appellant been able to demonstrate any real, substantial prejudice to the conduct of his defense, the scales undoubtedly would have tilted the other way, but as it is, our weighing and balancing process leads us to the conclusion that appellant was not denied his constitutional right to a speedy trial.
Instructions
Appellant complains that the trial judge erred in refusing to grant requested instructions concerning factors to be considered in assessing identification evidence and concerning credibility of witnesses.
1. Identification Evidence
The instruction concerning identification evidence that appellant wanted the court to read to the jury (three full typewritten pages) contained several references to the burden of proof and listed numerous factors affecting the accuracy of identification, including:
1. Adequacy of opportunity to observe the criminal actor
(a) length of time of observation
(b) distance
(c) whether the criminal's features were visible or disguised
(d) illumination
(e) presence or absence of distractions
2. Capacity of the witness to observe, as affected by
(a) stress or fright
(b) personal motivation, bias or prejudice
(c) uncorrected visual defects
(d) fatigue or injury
(e) drugs or alcohol
3. Attentiveness of the witness (did the witness know a crime was occurring or have any other reason to pay attention to what was occurring?)
4. Whether the identification is actually the product of the witness's observing
(a) time between observation and identification
(b) witness's capacity and state of mind at time of identification
(c) exposure of witness to matters that might influence identification
(d) instances of failure to make a positive identification
(e) inconsistency between description given by witness and the appearance of the defendant
(f) circumstances of identification (lineup, show-up, photo array or single photo, etc.).
The trial judge declined to give that instruction. Instead, he instructed the jury that if it was convinced beyond a reasonable doubt that the defendant had been identified by one or more witnesses as the person who committed the offense, that identification was sufficient for conviction, but if not convinced beyond a reasonable doubt that the defendant was the perpetrator it could not find him guilty. The jury was told to consider the testimony of all the witnesses concerning identification and give the testimony such weight as the jury thought should be given it. The judge instructed the jury that testimony of a single witness was sufficient to convict, provided that testimony was convincing beyond a reasonable doubt, but if not convinced beyond a reasonable doubt the jury must acquit the defendant.
Appellant argues that since the requested instruction was legally correct and necessary to enable the jury to weigh the evidence fairly, it was prejudicial error on the part of the trial judge not to give it to the jury.
Although a party is entitled to have the court give the jury instructions that correctly state the law on every issue that is fairly generated by the evidence, the court need not grant any requested instruction if the matter is fairly covered by the instructions actually given. Harris v. State, 11 Md. App. 658, 663, 276 A.2d 406 (1971); Md. Rule 4-325(c). In England and Edwards v. State, 274 Md. 264, 334 A.2d 98 (1975), one defendant requested an instruction to the effect that identification evidence should be scrutinized with extreme care and referring to possibility of human error. The Court of Appeals upheld the trial court's refusal to grant the requested instruction because the instructions actually given as to the burden of proof and weighing of evidence were deemed to have covered the identification issue.
Appellant would have us distinguish England because the instruction given in that case was more detailed than the one given in this case, and contained some words of caution. We fail to see any significant difference between the instructions, as to identification, that were given in the case sub judice and those given in England. Both stressed the burden of proof and weighing the evidence. Appellant further argues that there has been a shift in authority, toward detailed cautionary instructions concerning identification evidence, since England.
The principal fallacy in appellant's argument is that the instructions he requested are not particularly appropriate to the facts of this case. This was not a case of a brief encounter under conditions of poor illumination. There was no suggestion in the evidence of any of the factors adversely affecting accuracy of identification that were stressed in the requested instruction. In this case the victim testified that the man who raped her and then cut her throat was the same man in whose company she had been for several hours preceding the crime, and she and other witnesses positively identified appellant as the same man who had been with her for a protracted period of time just prior to the rape and slashing. The only suggestion of any basis for doubt as to identification was the failure or refusal of the victim, during the first trial, to identify appellant as her assailant. In the second trial, the victim ascribed that failure to fear of reprisal.
Our holding, therefore, is that the trial judge committed no error in refusing to instruct the jury as requested by appellant because the more general instruction that he did give fairly covered the identification issue that was generated by the evidence.
2. Credibility of Witnesses
Appellant requested the court to instruct the jury that the testimony of an admitted perjurer should always be considered with caution and weighed with great care. He argues that he was entitled to that instruction because the victim, who identified him at this trial as her assailant, admitted that her testimony at the first trial to the effect that appellant was not the assailant or, at least, that she could not identify him as such, was false. The victim explained that she had been afraid to identify appellant.
Instead of giving the requested instruction, the trial judge gave a more general instruction concerning credibility of witnesses.
The instruction that was given cautioned the jury to scrutinize the testimony and all circumstances that tend to show whether a witness is worthy of belief, including such matters as intelligence, motive, state of mind, demeanor and manner of testifying, and the extent to which testimony is supported or contradicted by other evidence. The court specifically referred to inconsistencies and discrepancies as factors that may cause the testimony of a witness to be discredited and advised that in weighing any discrepancy the jury should consider whether it involved an important matter and whether it resulted from innocent error or intentional falsehood. We believe that instruction fully and fairly covered the issue as to credibility of the witnesses, including the victim. Consequently, we find no error in the court's refusal to give the requested instruction. Md. Rule 4-325(c).
Double Jeopardy
At the beginning of the second trial, appellant objected, on double jeopardy grounds, to being retried on the weapons charge. In view of the fact that the sentence he received for that offense was three years concurrent to a life sentence and sentences of twenty-five and thirty years, with no eligibility for parole for at least twenty-five years, the issue does not appear to have much significance.
In any event, our examination of the record reveals that this contention has not been preserved for our review. All that appears in the record of this case is a discussion between counsel and the court to the effect that the judge who presided over the first trial discovered, after the jury had retired, that he had failed to instruct the jury on the elements of the offense of carrying a deadly weapon. Sua sponte he took some action, but the record in this case does not make it clear what that action was. The jury had been given a verdict sheet, and the discussion between counsel and the bench at the beginning of the retrial tends to indicate that the jury found appellant guilty on the deadly weapon charge. There is some confusion on this point, however; during the same discussion a question was raised as to whether that verdict sheet covered the indictment which included the weapon charge. We cannot tell whether the presiding judge at the first trial refused to accept a verdict on the one charge or received the verdict and then refused to pass judgment on it. Consequently, it is not clear from the record whether his action was, as the State contends, tantamount to a declaration of a mistrial. If it was a sua sponte declaration of a mistrial, a new line of inquiry arises because the retrial would be barred only if there was no manifest necessity to declare a mistrial. See Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978); Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); Gori v. United States, 367 U.S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961); Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974 (1949). See also Tabbs v. State, 43 Md. App. 20, 23, 403 A.2d 796 (1979).
Without the pertinent portions of the record of the first trial, which appellant did not introduce into evidence at any point in this case, we simply cannot tell whether there was, in fact, a mistrial and, if so, whether there was manifest necessity for it. Consequently, the lower court's determination that retrial on the deadly weapon charge was not barred by the constitutional prohibition against double jeopardy has not been shown to be erroneous.
JUDGMENTS AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
NOTES
[1] Four years prior to Barker v. Wingo, this Court first employed a four-factor analysis. See Hall v. State, 3 Md. App. 680, 685-86, 240 A.2d 630 (1968). The decision in Barker v. Wingo modified the Maryland approach insomuch as Maryland viewed the third factor defendant's assertion of his right in terms of waiver; if the defendant did not demand a speedy trial, he was deemed to have waived the right absent a showing of actual prejudice. See Fabian v. State, 3 Md. App. 270, 286, 239 A.2d 100 (1968). As recognized by this Court in State v. Jones, 18 Md. App. 11, 16-18, 305 A.2d 177 (1973), this so-called "demand-waiver" rule was rejected by the Supreme Court in Barker v. Wingo. |
9,645,536 | 2023-08-22 21:27:56.876289+00 | Billings | null | BILLINGS, Judge.
The Court granted transfer of this case after the Missouri Court of Appeals, Eastern District, ruled that collateral estoppel barred plaintiffs claims against her former employer because a key fact issue had been ruled adversely to plaintiff in an administrative proceeding.
The trial court entered judgment against plaintiff on her claim for punitive damages but let stand the jury’s award of actual damages in her favor. Both parties appealed. The court of appeals reversed the actual damage award on the collateral estoppel ground and noted the punitive damage issue was without merit and the trial court correctly set aside that award.
The Court agrees with the opinion authored by the Honorable Douglas W. Greene, Special Judge, for the court of appeals. Without quotation marks and with minor modifications, that opinion follows:
Plaintiff Bresnahan, an employee of the Famous-Barr South County store in St. Louis County, was discharged on May 6, 1983, for violation of company work rules. Famous-Barr is a division of the May Department Stores Company.
The incident which led to the discharge occurred on April 22, 1983. Plaintiff ar*328rived for work that morning, prior to the store opening for business, and was observed by the store security manager looking through greeting cards. Shopping before store hours was against the store policy. A security guard was alerted and plaintiff was placed under surveillance. She walked to the toy department, picked up a stuffed toy monkey, and without paying for it, or obtaining proper authorization for removing it from that department, took the toy, placed it in a Famous-Barr sack and placed it in a “lockup” in her department. When her work day was over, plaintiff picked up the sack containing the toy and was leaving the store when she was intercepted by the security manager. Plaintiff twice refused to let the security manager look into the sack, and then said, “I did not leave the building with it. You can't get someone for stealing if they don’t leave the building first.” She then contended that she had made a mistake, and that she thought the sack contained her work shoes. Plaintiff was detained while a search was made of the three lockups in the department and office area where she worked. Her work shoes were not found.
Famous-Barr had work rules for its employees, among which was rule .15C which provided that “[a]ny attempt to remove Famous-Barr property/equipment from the premises without proper documentation or authorization is grounds for immediate dismissal.” After a thorough investigation of the incident, during which it was found that plaintiff had violated additional work rules such as holding the monkey for a future exchange or, if regarded as a purchase, failed to have the purchase sealed, marked, and verified by a sales clerk, plaintiff was fired.
Plaintiff then made a claim for unemployment insurance benefits with the Division of Employment Security, pursuant to Chapter 288, RSMo 1978, as amended, seeking unemployment benefits. Based on the evidence of the incident, a deputy of the Division of Employment Security made the determination that plaintiff was not qualified for benefits because she had been discharged for misconduct connected with her work. The reason given for this determination was that:
The claimant was discharged because she was observed by security leaving the store with a stuffed animal, valued at less than $10.00, she had not paid for. Claimant’s actions constitute aggravated misconduct and wage credits reported by this employer from 1/1/82 through 4/22/83 are cancelled.
Plaintiff filed a notice of appeal with the Appeals Tribunal of the Division of Employment Security. After a hearing at which witnesses testified for the employer and employee, the appeals referee affirmed the deputy’s decision based on the following findings:
On April 22, 1983, before the employer had opened its store and even before it had turned on its lights, the claimant was observed by an employer security manager looking at merchandise outside of her department. The claimant was observed taking a stuffed animal from the employer’s toy department. The claimant was seen putting this item in a bag. The employer’s security manager set up a surveillance on the claimant for the rest of the day. When the claimant left work, the employer’s security manager did a security check of the claimant’s possessions. The claimant willingly gave up two packages in which she was carrying bona fide purchases. The claimant, however, refused to give the employer’s security manager a third package. In this third package was found a stuffed animal valued at approximately $10.00. The claimant at first indicated that she had taken a wrong package and that she had1 meant to take home an old pair of shoes. Once the claimant had been detained, she informed the security manager that she, the security manager, could not do anything about the claimant’s actions because she had not actually left the store. Because the claimant had tried to take merchandise from the employer without purchasing it, the claimant was discharged on April 22, 1983.
The Missouri Employment Security Law provides that a claimant shall be disqualified for waiting week credit or *329benefits for not less than one nor more than sixteen weeks for which he claims benefits and is otherwise eligible if it is found that he has been discharged for misconduct connected with his work. In addition to the disqualification for benefits under this provision the Division may in the more aggravated cases of misconduct cancel all or any part of the individual’s wage credits, which were established through his employment by the employer who discharged him, according to the seriousness of the misconduct.
The claimant was discharged on April 22, 1983. The claimant was discharged because she attempted to take merchandise from the employer without proper payment. It is believed that the claimant did steal from the employer. The claimant’s actions in stealing from the employer violates the fiduciary duty which the claimant owes to her employer. The claimant was entrusted with the employer’s merchandise and money. The claimant’s actions in stealing from the employer not only constitute misconduct but misconduct of the most aggravated nature. Accordingly, I find the claimant was discharged on April 22, 1983, for aggravated misconduct connected with her work.
Plaintiff’s attorney then filed an application for review by the Labor and Industrial Relations Commission. The Commission adopted the findings of fact of the Appeals Tribunal, determined that those findings were supported by competent and substantial evidence, and determined that the decision of the Appeals Tribunal denying benefits was made in accordance with the law. This decision was properly communicated to plaintiff. She did not avail herself of the right to seek judicial review of the commission’s decision, as authorized by § 288.210, RSMo 1986.
Plaintiff then filed a multi-count damage suit against May Department Stores Co., the parent company of Famous-Barr, and several of its employees. She alleged breach of an implied contract of employment, false imprisonment, libel, and other civil wrongs. Some of the counts were dismissed by the trial court prior to, or during trial, for failure to state a claim, or for failure of proof. After trial, a jury returned a verdict for plaintiff and against May Department Stores on the implied contract count and.assessed her actual damages at $116,000 and punitive damages at $10,000. After hearing after trial motions, the trial court set aside the punitive damage award, but affirmed the judgment for actual damages. Both parties appealed, and the cases have been consolidated here.
The record indicates that May Department Stores timely raised the affirmative defense of collateral estoppel, and reasserted that defense at every relevant trial and after trial stage, including their motion for judgment notwithstanding the verdict. Whether an employee’s claim for damages is barred by collateral estoppel is a question of law. The trial court ruled that plaintiff’s claim was not barred for that reason, which ruling is one of the employer’s claims on appeal of trial court error. The issue is dispositive.
As was ably stated in State ex rel. O’Biennis v. Adolf, 691 S.W.2d 498, 501 (Mo.App.1985), collateral estoppel deals with issue preclusion. This means that when a fact is appropriately determined in one legal proceeding, it is given effect in another lawsuit in cases where such fact or facts are a vital part of the evidentiary chain necessary to be established in order to prove a cause of action. In Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979), it was emphasized that the purpose of the doctrine was to prevent the same parties from relitigating issues which had been previously litigated with adverse results. See Hudson v. Carr, 668 S.W.2d 68, 70 (Mo. banc 1984).
The doctrine has been applied by Missouri courts in situations where the fact issue was raised and decided in an administrative proceeding and relitigation later attempted in a circuit court action. In Hines v. Continental Baking Co., 334 S.W.2d 140, 144-46 (Mo.App.1960), the court held that an unappealed final award of the then named Industrial Commission in a workmen’s compensation case which held that an employee *330did not sustain an accidential injury arising out of or in the course of his employment was a bar to his asserting it in any other proceeding in the future that he did, and that such adjudication of the Commission upon a fact issue “as effective and impregnable to collateral attack as a judgment of a court.” Twenty-two years later, in Butcher v. Ramsey Corp., 628 S.W.2d 912, 914 (Mo.App.1982), the court of appeals under a similar factual and legal situation present in Hines specifically held “the un-appealed final administrative determination in a workmen’s compensation proceeding upon a fact issue within the jurisdiction of the administrative body is not subject to collateral attack and constitutes a bar to relitigation of the same fact issue in a subsequent common law action.”
Since plaintiff sought to litigate a disputed fact issue (did she attempt to remove her employer’s property from the store premises without paying for it and, in so doing, did she violate the company work rules, which conduct justified immediate dismissal?) before an administrative tribunal (The Labor and Industrial Commission), and did not appeal its decision, the reasoning of Hines and Butcher applies, and she may not relitigate the issues raised and decided adversely to her in the administrative proceeding, if those proceedings met the four-pronged test set out in Oates v. Safeco Ins. Co. of America, 583 S.W.2d at 719:
The court in reviewing whether the application of collateral estoppel is appropriate should consider: (1) whether the issue decided in the proper adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; and (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication. LaRose v. Casey, [570 S.W.2d 746, 749 (Mo.App. 1978); Bernhard v. Bank of America Nat. Trust & Sav. Ass’n., 19 Cal.2d 807, 122 P.2d 892, 895 (1942) ]. Most courts have added a fourth factor to the three enunciated by Chief Justice Traynor in the Bernhard case: whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. [Cunningham, Collateral Estoppel: The Changing Role of the Rule of Mutuality, 41 Mo.L.Rev. 521, 529 (Fall 1976)]; 860 Executive Towers, Inc. v. Board of Assessors, 53 A.D.2d 463, 385 N.Y.S.2d 604, 612 (1976); Johnson v. United States, 576 F.2d 606, 614 (5th Cir.1978). Fairness is the overriding consideration in determining whether or not to apply the Doctrine of Mutuality. Johnson, at 614; Freeman v. Marine Midland Bank-New York, 419 F.Supp. 440, 448-49 (E.D.N.Y.1976); Read v. Sacco, 49 A.D.2d 471, 375 N.Y.S.2d 371, 375 (1975).
Here, the issue to be decided in the administrative proceeding was identical with that presented in the present action. The prior adjudication by the Labor and Industrial Relations Commission, when not appealed, resulted in a final and conclusive determination of the fact issue. The party against whom collateral estoppel is now asserted was a party to the administrative decision, and she had a full and fair opportunity to litigate the fact issue in the administrative proceeding. This being so, she was barred from relitigating the fact issue of whether she was attempting to remove the stuffed toy monkey from the store premises without proper documentation or authorization in a subsequent breach of contract proceeding.
The trial court erred in failing to grant defendant’s motion for judgment notwithstanding the verdict. The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment for defendant (May Department Stores) on Count I of plaintiff’s first amended petition.
In view of our disposition noted above, plaintiff’s appeal on the punitive damage issue has no merit, and the trial court’s action in setting aside such judgment is affirmed.
HIGGINS, C.J., and DONNELLY and WELLIVER, JJ., concur. *331RENDLEN, J., concurs in result. BLACKMAR, J., dissents in separate opinion filed. ROBERTSON, J., dissents and concurs in separate dissenting opinion of BLACKMAR, J.
. See also Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1283-84 (9th Cir.1986); Hill v. Coca Cola Bottling Co., 786 F.2d 550 (2nd Cir.1986); Moore v. Bonner, 695 F.2d 799 (4th Cir.1982); Lewis v. International Business Machines Corp., 393 F.Supp. 305 (1974). |
9,645,537 | 2023-08-22 21:27:56.882557+00 | Blackmar | null | BLACKMAR, Judge,
dissenting.
The Court seriously errs when it denies the plaintiff a jury trial of her claim for breach of employment contract, on the basis of a decision of the Division of Employment Security. The error consists in the failure to consider the purpose of the administrative proceedings and the nature of the hearing before the appeals tribunal.
Because of the posture of the case as it comes to us, I give no consideration to the other points raised by the appellant May Department Store in arguing for reversal. The court of appeals ceased further inquiry after determining that collateral estoppel applies, and so I write only on the point they reached.
Collateral estoppel properly applied is a salutary doctrine, designed to reduce the volume of litigation and to settle controversies. Hudson v. Carr, 668 S.W.2d 68 (Mo. banc 1984). The doctrine, nevertheless, must be carefully confined so that litigants are not unduly impeded in the pursuit of their rights. There is a need for special care when, as a consequence of applying collateral estoppel, a party is deprived of a jury trial.
Our requirements for applying the doctrine are set out in Oates v. Safeco Ins. Co., 583 S.W.2d 713, 719 (Mo. banc 1979). The principal opinion seeks to apply the rule of that case, but does so mechanically and uncritically, giving no attention to the nature of the proceedings set up in bar in this case. The court ignores the “fourth factor,” of that opinion by making no inquiry as to
Whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit.
Oates listed this fourth factor as one applied by “most courts.” Id. at 719.
Our opinion in Bank Bldg. & Equipment Corp. v. Director of Revenue, 687 S.W.2d 168 (Mo. banc 1985) leaves no doubt that this fourth factor is a part of the law of Missouri. In Bank Bldg., we looked at the nature of hearings before the State Tax Commission, at a time when it had a much broader jurisdiction and handled many proceedings which are now within the province of the Administrative Hearing Commission. We concluded that the decision of that Commission as to one year’s taxes did not operate as an estoppel in subsequent proceedings, even though the identical issue was presented. We gave weight to the informal nature of the Tax Commission’s proceedings and to the fact that the Commissioners were not necessarily legally trained. The teaching of Bank Bldg, is that, in determining whether to give collateral estoppel effect to an administrative agency’s ruling in a subsequent judicial proceeding, the nature of the prior proceedings must be considered. See also State Farm Fire & Casualty Co. v. Emde, 706 S.W.2d 543 (Mo.App.1986) (small claims judgment not given preclusive effect because informal and summary procedures did not ensure a full and fair opportunity to litigate liability).
In accordance with this view, the Restatement (Second) of Judgments § 28 (1982) provides several exceptions to the general rule of issue preclusion. If there are “differences in the quality or extensiveness of the procedures followed in the two courts” relitigation of an issue previously determined is not precluded in a subsequent action between the parties. Restatement (Second) of Judgments § 28(3) (1982). Comment (d) to § 28 elaborates on this exception, as follows:
There may be compelling reasons why preclusion should not apply. Por example, the procedures available in the first court may have been tailored to the prompt, inexpensive determination of small claims and thus may be wholly inappropriate to the determination of the same issues when presented in the context of a much larger claim.... The question in each case should be resolved *332in the light of the nature of litigation in the courts involved and the legislative purposes in allocating jurisdiction among the courts of the state.
Emde, 706 S.W.2d at 546.
The principal opinion gives no consideration at all to the nature of the procedure for making an unemployment compensation claim. It simply embodies the opinion of the court of appeals, without even discussing the circumstances which caused this Court to grant transfer. In what I have to say, I express no criticism of the diligent efforts of the employees of the Division of Employment Security, and particularly the Appeals Referees. They do their jobs well, in compliance with the governing purpose of the law they administer. They do not, however, sit to adjudicate rights outside their narrow sphere.
The Employment Security Law is designed to mitigate the effects of unemployment on individuals who are displaced through no fault of their own, by providing them with a minimal allowance until they have had time to look for other employment. Missouri Div. of Employment Secur. v. Labor & Industrial Rel. Com., 651 S.W.2d 145 (Mo. banc 1983); Section 288.-020, RSMo 1986. The benefits are funded by a surtax on employers, and the employer is an interested party because charges are based on employment experiences. Sections 288.100-.120, RSMo 1986. Thus, an employer with a history of high rate of turnover and layoff bears a heavier burden.
Disputes arise as to coverage, and so provision is made for a hearing procedure at which the employee and the employer may present their points on eligibility. Section 288.190, RSMo 1986. Because of the need for a prompt adjudication of eligibility, the policy of the law is that these proceedings be expedited. The purpose of the statute is defeated if an eligible employee does not receive regular payments. A lump sum at the end of litigation is highly inappropriate.
The initial determination is by a Deputy of the Division of Employment Security, on the basis of statements of the parties. Section 288.070, RSMo 1986; 8 Mo. CSR 10-3.-100.5. If the decision is in favor of eligibility benefits begin immediately, subject to the employer’s right of appeal. Section 288.070.4, RSMo 1986. If the decision is against eligibility the employee may appeal. Section 288.070.4.
The appeal is before an Appeals Tribunal, usually consisting of a single Appeals Referee. Section 288.190, RSMo 1986. This is the only hearing at which evidence is presented. Following this hearing, the Referee renders a written decision. Section 288.190.3, RSMo 1986. If compensation is being paid and the award goes against the employee, it is stopped; if the decision of the deputy has been unfavorable, a favorable decision by the Referee institutes payment. Section 288.070.5, RSMo 1986. Unless the state labor and industrial relations commission decides upon review that additional evidence is necessary, all subsequent proceedings, administrative or judicial, simply consist of a review of the record made before the Referee. Section 288.200, RSMo 1986. In determining the issue of collateral estoppel, the nature of this hearing must be considered.
The governing statute makes it clear that the proceedings for employment benefit claims are not intended to have any effect in other kinds of proceedings. The statute reads as follows:
Any right, fact or matter in issue, directly based upon or necessarily involved in a determination or redetermination which has become final, shall be conclusive with respect to the parties who had notice of such determination, redetermi-nation, or decision for all the purposes of the employment security law in any other proceeding ... (Emphasis supplied).
Section 288.200.2, RSMo 1986.
The statutes and regulations which govern the hearings before Appeals Referees demonstrate numerous departures from the norms of hearing procedure, so that the decision should not be applied as a bar to judicial proceedings. In at least four important particulars, the proceedings are in*333adequate for the determination of other rights.
(1) There is no provision for prehearing discovery. We stressed the importance of discovery in State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861 (Mo. banc 1986). Yet it would defeat the purpose of the unemployment compensation proceedings if they were to be delayed while depositions are taken;
(2) The Appeals Referee is not obliged to follow common law rules of evidence. The technical rules of civil procedure do not apply, so the appeals tribunal can determine on a case-by-case basis the procedure it finds suitable. This too is a concession to the need for expedition. The governing provisions are as follows:
The manner in which disputed determinations, referred claims, and petitions for reassessment shall be presented and the conduct of hearings shall be in accordance with regulations prescribed by the division for determining the rights of the parties, whether or not such regulations conform to common law or statutory rules of evidence and other technical rules of procedure....
Section 288.190.2, RSMo 1986.
An appeals tribunal shall follow in each case that procedure which it believes will best develop all of the pertinent facts with respect to the issues without regard to common law or statutory rules of evidence or technical rules of procedure....
8 Mo. CSR 10-5.015.3.
(3) There is no statutory requirement that the Appeals Referee be a member of the bar, or have any particular experience.
(4) The parties often are not represented by counsel. It is not enough to say that counsel may appear. A litigant who appeared in a court of record without counsel would undoubtedly be encouraged to obtain representation. Before the Appeals Tribunal, pro se appearances are a matter of course.
Unemployment benefits, furthermore, are extremely modest in amount. This claimant had no idea that she was putting her lawsuit in jeopardy by making a claim.
If the result stands, claimants may be positively discouraged from claiming unemployment benefits, if they have potential civil litigation. It would defeat the purpose of the law if claims were discouraged.
What is sauce for the goose, moreover, is sauce for the gander. If decisions of the Division of Employment Security estop the employees, a decision in favor of benefits would likewise estop the employer. I can think of at least four potential civil actions which might be impacted by unemployment compensation proceedings, as follows:
(1) An employee requests a service letter. The employer responds, giving a reason. The Appeals Referee holds that that reason was not established. Does this holding conclude the employer if the employee sues under § 290.140, RSMo 1986?
(2) An employer discharges an employee for alleged theft and causes the employee to be arrested. The Appeals Referee finds that there was no theft. Is the employer estopped in defending a false imprisonment suit?
(3) An employer places the reason for discharge in writing. The Referee finds that these reasons are not established. May the employer prove the truth of the reasons assigned in defending a libel suit?
(4) The employer discharges an employee for alleged misconduct. The employee alleges that the discharge was for racial or sexual discrimination. The Referee sustains the employee’s claim. Is the employer now set up for a discrimination suit?
The proceedings before the Appeals Referee are suitable to provide elemental due process in the speedy determination of the right to benefits. That is their only purpose. The principal opinion greatly enlarges this purpose.
My conclusion is in line with State Farm Fire & Casualty Co. v. Emde, supra. The reason is the same. A proceeding in small claims court has a limited purpose, a limited amount in controversy, and informal procedures. To enlarge the effect would discourage litigants from taking small claims there. By the same token, the enlargement of the effect might discourage *334employees from making unemployment compensation claims, and might impede the employer in resisting claims.
Similarly, the Restatement (Second) of Judgments § 28(5)(c) (1982) carves another exception to the application of collateral estoppel if “the party sought to be precluded, as a result of ... special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.” This includes situations where “the amount in controversy in the first action may have been so small in relation to the amount in controversy in the second that preclusion would be plainly unfair.” Restatement (Second) of Judgments § 28(5) comment j (1982).
This exception has been noted in a case denying collateral estoppel effect to a decision of an employment security tribunal. In Ferris v. Hawkins, 135 Ariz. 329, 660 P.2d 1256, 1260 (App.1983) the court held that a finding of misconduct in a claim for unemployment compensation would not preclude a determination of the propriety of a discharge in an appeal from the decision of the State Personnel Board upholding the termination. The court contrasted the small amount in controversy in the unemployment case ($1,530) with the significant amount in controversy in the personnel matter ($17,715.77 plus reinstatement). 660 P.2d at 1259. It explained that issue preclusion should not apply if the circumstances of the particular case demonstrate some overriding consideration of fairness. Because the rights and remedies in each action were markedly different, the litigant was allowed a full opportunity to present his claims independently in each forum. 660 P.2d at 1260.
Other state cases holding that a proceeding to recover unemployment compensation benefits does not operate as collateral es-toppel in subsequent litigation are as follows: Salida School District v. Morrison, 732 P.2d 1160, (Colo.1987); Robinson v. Hewlett-Packard Corp., 183 Cal.App.3d 1108, 228 Cal.Rptr. 591 (1986); Hahn v. Arbat Systems, Ltd., 200 NJ.Super. 266, 491 A.2d 58 (1985); Kjos v. City of Sioux City, 346 N.W.2d 25 (Iowa 1984).1
Cases taking a contrary position are found in New York,2 Wyoming,3 and in a case with another adequate basis, Indiana.4 Two Ohio courts have reached opposite results.5 The October 1986 issue of the Ford-ham Law Review expresses substantial criticism of the holding of the New York Court of Appeals in the Ryan case. See Carlisle, Getting a Full Bite of the Apple: When Should the Doctrine of Issue Preclusion Make an Administrative or Arbitral Determination Binding in a Court Of Law?, 55 Fordham L.Rev. 63, 69, 80 (1986).
Unemployment compensation proceedings are essentially similar in all states. A degree of uniformity is imposed by federal law, because the federal government supplies substantial funding. Although there are decisions going both ways, a respectable majority of the reported cases support the views I express.
The principal opinion cites workers’ compensation cases in support of its holding.6
*335They are not in point. The nature of hearings before the Division of Workers’ Compensation is markedly different. The workers’ compensation proceedings provide for a full hearing before an Administrative Law Judge, under the civil rules of evidence. 8 Mo. CSR 50.2.010.21. Prehearing discovery is available. Section 287.560, RSMo 1986; State ex rel. River Cement Co. v. Pepple, 585 S.W.2d 122, 125 (Mo. App.1979). The administrative law judges deciding workers’ compensation cases must be duly licensed attorneys. Section 287.-610.1, RSMo 1986. The workers’ compensation proceedings, furthermore, are designed to provide conclusive answers to questions of causation of industrial injuries, and work-relatedness, with a special procedure superseding any right to trial by jury. Given the qualitative difference in the nature of these two tribunals, the extension of the preclusive effect given workers’ compensation cases to unemployment compensation hearings is not warranted.
The case should be retransferred to the court of appeals with directions to determine the other issues raised by the appeal.
. Ryan v. New York Telephone Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984).
. Salt Creek Freightways v. Wyoming Fair Employment Practices Com., 598 P.2d 435 (Wyo. 1979).
. McClanahan v. Remington Freight Lines, Inc., 498 N.E.2d 1336 (Ind.App.1986); but see Cox v. Indiana Subcontractors Assoc., 441 N.E.2d 222 (Ind.App.1982).
. Distelzweig v. Hawkes Hospital of Mt. Carmel, No. 86AP-640, slip op., Tenth Appellate District (December 30, 1986); Pullar v. Upjohn Health Care Services, Inc., 21 Ohio App.3d 288, 488 N.E.2d 486 (1984).
. In Hines v. Continental Baking Co., 334 S.W.2d 140, 144-46 (Mo.App.1960), the Industrial Commission denied workmen’s compensation benefits because the employee had not sustained an accidental injury. In the employee’s subsequent personal injury suit, the court held the unap-pealed workmen’s compensation determination *335estopped the employer from asserting the occurrence was an accident within the scope of the workmen’s compensation laws. The employee collected for work-related injuries not cognizable under workmen’s compensation laws.
In Butcher v. Ramsey Corp., 628 S.W.2d 912, 914 (Mo.App.1982), the Referee denied the employee’s otherwise eligible workmen's compensation claim due to defective proof. The employee was then barred from asserting that the same facts alleged in her personal injury suit were not within the sole province of the workmen’s compensation laws. |
9,645,538 | 2023-08-22 21:27:57.467801+00 | Campbell | null | OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
CAMPBELL, Judge.
Appellant was convicted by a jury of the offense of theft of property of the value of at least $10,000. See V.T.C.A. Penal Code, § 31.03(a) (Supp.1986). Punishment was assessed at ten years confinement in the Texas Department of Corrections. In an unpublished opinion, the Court of Appeals affirmed. Clark v. State, No. 05-82-000893-CR (Tex.App. — Dallas, delivered February 21, 1984) (opinion on rehearing). We granted appellant’s petition for discretionary review to determine 1) whether an extraneous offense should have been admitted and 2) whether the evidence was sufficient to prove ownership as alleged in the indictment.1 We will reverse on the first ground for review but find the evidence sufficient to prove ownership in the second ground for review.
While working as a bookkeeper for Orthopedic Associates of Dallas, appellant endorsed 26 insurance checks payable to Orthopedic Associates and deposited them in her personal bank account. The State presented testimony from the vice-president of appellant’s bank, the business manager of Orthopedic Associates and a document examiner. The vice-president established that appellant was the sole signatory for her bank account and that the 26 checks had been deposited in her account. The business manager established that she hired appellant as a bookkeeper. Appellant’s duties included crediting insurance checks to the proper patient’s account, endorsing the checks and preparing a daily deposit ticket. Appellant did not obtain the business manager’s consent to endorse insurance checks over to herself, and the business manager testified that she (the business manager) had a greater right to possession of the checks than did appellant. The documents examiner established that appellant had endorsed all of the checks in her own handwriting.
In addition, the State offered proof that appellant had worked for a company called Optical Clinic as an accounts payable clerk after leaving Orthopedic Associates and had forged 14 company checks, making them payable to herself. The same documents examiner established that appellant had forged the checks.
*122Prior to introduction of the extraneous transactions involving Optical Clinic, appellant objected and argued that they were inadmissible because the State’s witnesses had not been discredited or impeached on cross-examination. The State argued that the extraneous transactions were admissible to show appellant’s intent, a common plan and scheme, as well as appellant’s identity. The trial court overruled appellant’s objection without further explication. In the court’s charge to the jury, the trial court instructed the jury that it could only consider the extraneous transactions in determining appellant’s state of mind, intent, motive or scheme.2
Appellant cross-examined the State’s witnesses, largely pointing out that there was no direct evidence of appellant taking checks from Orthopedic Associates. However, appellant did not testify. Nor did she present any defensive testimony.
I. Extraneous Offenses
The Court of Appeals held that since the State was relying upon circumstantial evidence, it was entitled to introduce evidence of the extraneous forgery offenses to prove appellant’s intent and motive to commit theft as well as a common system, scheme or plan. Clark, supra, at 3-4.
Appellant argues that the extraneous offenses only served to show appellant’s bad character and should not have been admitted. We agree.
This Court must scrutinize those cases wherein prejudicial evidence of extraneous offenses is admitted to prevent a defendant from being convicted of some collateral crime or for being a criminal generally. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). The test for admitting an extraneous offense requires the following:
First, it must be determined that the extraneous offense evidence is relevant to a material issue in the case other than defendant’s character. Second, the evidence must possess probative value which outweighs its inflammatory or prejudicial effect.
Plante, supra at 491 (Tex.Cr.App.1985) [footnote omitted], citing Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983).
“[W]here intent or guilty knowledge is an essential element of the offense which the State must prove to obtain a conviction, its materiality goes without saying.” Morgan v. State, 692 S.W.2d 877, 880 (Tex.Cr.App.1985). In the instant case, the State was required to prove, inter alia, that appellant knowingly or intentionally appropriated checks from Orthopedic Associates. Therefore, intent was a material issue.
In weighing probative value against prejudicial effect, this Court has consistently held that the State may not introduce extraneous offenses as circumstantial evidence of an element in its case-in-chief if that element can readily be inferred from other uncontested evidence. Morgan v. State, 692 S.W.2d 877, 880 (Tex.Cr.App.1986); Robinson v. State, 701 S.W.2d 895, 898-99 (Tex.Cr.App.1985); Nance v. State, 647 S.W.2d 660, 662, quoting Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Cr.App.1979) and Albrecht, supra, at 101. The State’s evidence may be considered contested if “completely undermined by defense cross-examination.” Albrecht, supra, at 102.
In the instant case, the State introduced the extraneous offenses as circumstantial evidence of appellant’s intent to appropriate the checks from Orthopedic Associates. However, appellant’s intent could be readily inferred from the abundant circumstantial evidence in the State’s case-in-chief. The State offered proof that appellant’s signature, in her own handwriting, was present on Orthopedic Associates’ checks, and had been deposited into appellant’s account. The jury could clearly draw an inference from such evidence that appellant intentionally appropriated the checks for her own use.
*123Although appellant cross-examined the State’s witnesses, she did not undermine its case on the issue of intent. At best, appellant emphasized that there was no direct evidence that she had committed the instant offense. The cross-examination only suggests the possibility that appellant did not commit the offense because no one saw her commit it, thus tangentially challenging the issue of identity. Even that challenge failed to undermine the State’s case because appellant left the State’s circumstantial identification evidence largely untouched.
Additionally, the probative value of an extraneous offense is dependent upon its similarity to the charged offense. See Plante, supra, at 493-94. In fact, a high degree of similarity is required when identity is the issue at bar. Id, at 494. In the instant case, the extraneous offenses are dissimilar from the charged offense in a significant respect. Appellant took the checks from Optical Clinic by forgery. There was no forgery involved in the instant case; instead, the checks were removed by direct appropriation. In the absence of a similar modus operandi, the probative value of the extraneous offenses is severely lessened.
Under these circumstances, we find that the prejudicial effect of admitting the extraneous offenses outweighed their probative value. Therefore, it was error for the trial court to admit the extraneous offenses.
Appellant received a ten year prison sentence, despite being eligible for probation. There is not only a reasonable but distinct possibility that the inadmissible extraneous offenses might have contributed to either the conviction or the punishment assessed. See generally, Maynard v. State, 685 S.W.2d 60, 67 (Tex.Cr.App.1985). Therefore, the error was not harmless.
II. Proof of Ownership
The Court of Appeals, citing Compton v. State, 607 S.W.2d 246, 250-251 (Tex.Cr.App.1980) cert. denied 450 U.S. 997, 101 S.Ct. 1701, 68 L.Ed.2d 197 (1981), and Cross v. State, 590 S.W.2d 510 (Tex.Cr.App.1979), held that there was sufficient evidence for the trier of fact to conclude that the business manager of Orthopedic Associates, Rae Barr, had a greater right to possess the stolen checks than appellant. We agree.
This Court recently reaffirmed Compton, supra, and, implicitly, Cross, supra. Dingier v. State, 705 S.W.2d 144 (Tex.Cr.App.1984) (opinion on rehearing) (adopting dissenting opinion on original submission, which relied upon Compton and Cross). Applying Compton and Cross to the instant facts, we find that the State offered sufficient evidence of Rae Barr’s managerial authority over appellant and the stolen checks to prove that Barr had a greater right to possess the checks than appellant.3
The judgments of the Court of Appeals and the trial court are reversed, and the instant cause is remanded to the trial court.
TOM G. DAVIS and MILLER, JJ., concur in result. ONION, P.J., and W.C. DAVIS, McCORMICK and WHITE, JJ. dissent. CLINTON and TEAGUE, JJ. dissent to overruling second ground for review for reasons stated in Dingier v. State, 705 S.W.2d 144,147 (Tex.Cr.App.1984) (Concurring opinion on original submission) and in Freeman v. State, 707 S.W.2d 597, 606 (Tex.Cr.App.1986) (Dissenting opinion).
Before the Court en banc.
. The indictment, in pertinent part, alleged:
... and thereby deprive Rae Barr, the said owner of said property, in that the said Rae Barr had greater right to possession of the said property than said defendant, and the said defendant exercised control over the said property without the effective consent of Rae Barr, ... [emphasis added].
See V.T.C.A. Penal Code, § 1.07(a)(24) (1974).
. The State did not object to the charge. Nor did the State request, through a special instruction, admission of the extraneous offenses as proof of appellant’s identity. See Art. 36.15, V.A.C.C.P. Cf. Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985)
. The facts showed that Barr was the business manager of Orthopedic Associates and that she had hired and supervised appellant. Thus, Barr had a greater right to possession of the checks under any theory. |
9,645,539 | 2023-08-22 21:27:57.472518+00 | Per Curiam | null | OPINION ON STATE’S MOTION FOR REHEARING
PER CURIAM.
The State argues in its motion for rehearing, that our opinion on original submission incorrectly held the extraneous offenses inadmissible in the instant case. *124We have reexamined this issue and find that our original opinion was correct.
In order for extraneous offenses to be admissible a two-part test must be met. First, the extraneous offense must be relevant to a material issue in the case other than the defendant’s character. Second, if the extraneous offense is relevant, it must possess probative value which outweighs its prejudicial effect. Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985); Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983).
In applying the admissibility test, relevancy has become largely an issue of similarity. See Plante, supra; Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985). The similarity of the extraneous offenses to the instant offense makes them clearly relevant to the material issue of intent.1
Determining whether the probative value of such extraneous offenses is substantially outweighed by their prejudicial effect is more troublesome. However, several guidelines exist. For example, the State may not introduce evidence of extraneous offenses as circumstantial evidence of an element of its case in chief if that element can readily be inferred from other uncontested evidence. Morgan, supra; Robinson v. State, 701 S.W.2d 895 (Tex.Cr.App.1985). This is true because the probative value of the extraneous offenses in such cases is minimal and the introduction of extraneous offenses is inherently prejudicial. Thus, in cases where proof of the act itself provides ample evidence of the element to be proved, and such has not been contested by the defendant, extraneous offense evidence is not generally admissible to prove that element because its probative value is almost always outweighed by its prejudicial effect. Morgan, supra.
In the instant case the extraneous offense evidence was introduced to show intent to commit the offense involved. Appellant’s actions in signing her own name to twenty-two checks made out to her employer and depositing them into her bank account shows the requisite culpable intent. No evidence was introduced, through direct or cross-examination, to offer any other alternative. Thus, the inclusion of the extraneous offenses was not necessary to shore up the State’s case or disprove an otherwise innocent intent. Cf. Morgan, supra. Consequently its comparative prejudicial impact outweighed its mimimal probative value in the instant case.
Further, it is clear that appellant was harmed by this inclusion. The State argues that if the acts themselves show intent introduction of the extraneous offense could not have harmed appellant by contributing to her conviction. We agree. By no means dispositive, the introduction and proof of the extraneous offenses virtually doubled the length of appellant’s trial. Although appellant was clearly eligible for probation, she received a ten-year prison sentence from the jury. With this in mind we think it reasonable that the introduction of the extraneous offenses contributed to the punishment assessed, if not the actual conviction. See Maynard v. State, 685 S.W.2d 60 (Tex.Cr.App.1985).
Accordingly, our opinion on original submission is affirmed, the judgments of the Court of Appeals and the trial court are reversed and the cause is remanded to the trial court for new trial.
ONION, P.J., and McCORMICK and WHITE, JJ., dissent.
. We agree with the State that the extraneous offenses are similar to the instant offense. The evidence in both reflect that appellant, as an employee, came into possession of blank checks or checks payable to her employers. She forged each check in such a way as to make them ultimately payable to her and she cashed the checks. The fact that some checks required her to fill her name in as payee in the front and same required her endorsement on the back is not a significant dissimilarity under the circumstances of the instant case. |
1,516,502 | 2013-10-30 06:32:55.710406+00 | Castillo | null | 916 F. Supp. 729 (1996)
David A. WOJCIK, Plaintiff,
v.
AETNA LIFE INSURANCE AND ANNUITIES COMPANY, Edward F. Bacher, and Edward F. Sommer, Defendants.
No. 95 C 1447.
United States District Court, N.D. Illinois, Eastern Division.
February 20, 1996.
*730 Steven B. Varick, McBride, Baker & Coles, Chicago, IL, for plaintiff.
William Martin Walsh, Sonnenschein, Nath & Rosenthal, Chicago, IL, Thomas R. Kraemer, Charles J. Faruki, Faruki, Gilliam & Ireland, Dayton, OH, Jacqueline A. Criswell, Tressler, Soderstrom, Maloney & Priess, Chicago, IL, Barry H. Wolinetz, Eugene R. Butler, and David C. Levine, Baker & Hostetler, Columbus, OH, for defendants.
MEMORANDUM OPINION AND ORDER
CASTILLO, District Judge.
This is an action brought by plaintiff David Wojcik against defendants Aetna Life Insurance and Annuity Company (Aetna), Edward F. Bacher, and Edward F. Sommer. At the heart of Wojcik's complaint is an alleged conspiracy by the defendants to destroy Wojcik's business as an Aetna insurance agent and annuities representative. Bacher was an Aetna agent and Sommer was an Aetna officer, serving as the regional manager of annuity operations and operating out of Aetna's Columbus, Ohio office. The origins of the alleged campaign against Wojcik date back to 1988 when Sommer asked Wojcik to assign all of his client base to Bacher and to become a Bacher employee. Wojcik alleges that when he refused this request, the defendants set out to destroy him by, among other things, reassigning his client base and not assigning new business to him.
Wojcik's complaint is a five-count complaint that charges all three defendants with tortious interference with prospective business advantage (count II), deceptive business practices (count IV), and civil conspiracy (count V). Additionally, Wojcik charges Aetna with breach of contract (count I) and he charges Bacher and Sommer with tortious interference with contract (count III). Wojcik seeks $11 million in damages for Aetna's alleged breach of contract and he seeks $15 million in compensatory damages and $30 million in punitive damages for defendants' allegedly unfair and tortious conduct.
The facts of this case are amply set forth in this Court's Memorandum Opinion and Order dated August 25, 1995 (docketed August 28, 1995), Wojcik v. Aetna Life Ins. & Annuity Co., 901 F. Supp. 1282 (N.D.Ill.1995), and shall not be repeated here except as necessary. The August 25 Order granted defendant Aetna's motion to dismiss and compel arbitration. Aetna argued that Wojcik's claims against it should be dismissed and arbitration compelled in accordance with Wojcik's agreement to arbitrate, as embodied in his application for registration with the National Association of Securities Dealers (Form U-4) and as delineated by the *731 NASD code. Id. at 1285. This Court's August 25 ruling that Wojcik's claims against Aetna were subject to arbitration, notwithstanding the fact that the amendment to the NASD code requiring arbitration of employment disputes did not become effective until October 1, 1993 (approximately 9¾ years after Wojcik signed the Form U-4), was predicated in large part on the fact that Wojcik brought this action approximately 1½ years after the effective date of the NASD code amendment. Id. at 1288-89. The August 25 Order, however, failed to reflect another fact that was critical to the Court's holding and we take this opportunity to supplement that Order with the following information. At the time that he filed his complaint Wojcik was (and presumably still is) associated with Aetna as an employee, agent, or broker. Moreover, Wojcik's complaint includes allegations of conduct that took place after as well as before the effective date of the amendment. See Compl. ¶ 17. Thus, we now make clear that our earlier determination that Aetna could compel arbitration under the terms of the NASD code was based on the facts that some of the conduct that is the subject of the complaint took place after the effective date of the NASD amendment while Wojcik was employed with Aetna, and that Wojcik filed his complaint after that date.
Having reviewed and clarified our prior Order, we next turn to the motion currently pending before the Court: Bacher and Sommer's motion for clarification of the August 25 Order. Bacher and Sommer note that the August 25 Order (1) dismissed Wojcik's claims against Aetna and concluded that those claims must be arbitrated and (2) stayed the proceedings in this case relating to the claims asserted solely against Bacher and Sommer in count III pending completion of the arbitration. Bacher and Sommer now ask the Court to clarify whether the August 25 Order considered their motion to dismiss and compel arbitration, which was not referred to in the Order. In essence, Bacher and Sommer want to know if Wojcik's claims against them are also subject to arbitration.
We note at the outset that although Bacher and Sommer filed a motion to dismiss and to compel Wojcik to submit the claims alleged in his complaint to arbitration, they did not submit a memorandum of law arguing that the claims directed against them were also subject to arbitration. Instead, they filed a document entitled "Memorandum in Support of Motion to Dismiss and to Compel Arbitration of Defendants Edward Bacher and Edward F. Sommer," which states in pertinent part:
As [Aetna] explained in its Memorandum ..., Plaintiff has agreed to arbitrate any disputes, claims, or controversies arising out of his relationship with [Aetna]. Rather than submit a separate brief that would merely reiterate [Aetna's] arguments, Defendants Bacher and Sommer adopt as their own the arguments advanced by [Aetna].... For the reasons stated by [Aetna], Plaintiff's complaint should be dismissed and Plaintiff should be compelled to arbitrate his claims....
Mem.Supp.Mot.Dis. and Compel of Bacher & Sommer at 1-2.
Aetna's motion to dismiss and accompanying memoranda, however, are silent as to whether Wojcik's claims against the other defendants are subject to arbitration. The only mention of the issue in Aetna's memoranda is to be found in a footnote in their reply brief following a sentence in which Aetna asserts that "Wojcik cannot avoid [his contractual obligation to arbitrate] by adding additional defendants with whom he has no such agreement." Aetna's Resp. to Pl.'s Opp. at 4. The footnote reads, "[Aetna] does not agree that Wojcik is not obligated to arbitrate his dispute with Defendants Edward F. Sommer and Edward Bacher; however, that issue is not relevant to [Aetna's] motion to dismiss and to compel arbitration." Id. at 4 n. 3. So while Bacher and Sommer adopted Aetna's arguments, those arguments strictly related to compelling arbitration of the claims against Aetna and were not helpful to Bacher and Sommer.[1] Pursuant to a supplemental briefing schedule entered in *732 connection with Bacher and Sommer's motion for clarification, the parties have now briefed the issue of whether Wojcik's claims against Bacher and Sommer are also subject to arbitration and hence dismissal in this action.
To answer this question we return to the language of the NASD code in which the contours of the duty to arbitrate are set forth. Part 1, section 1 of the NASD Code of Arbitration Procedure states in pertinent part:
This Code of Arbitration Procedure is prescribed and adopted ... for the arbitration of any dispute, claim, or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of employment of associated person(s) with any member ...:
(1) between or among members;
(2) between or among members and associated persons; [and]
(3) between or among members or associated persons and public customers, or others[.][2]
NASD Code of Arbitration Procedure, Pt. 1, § 1. Construing an earlier version of § 1 in Farrand v. Lutheran Brotherhood, 993 F.2d 1253 (7th Cir.1993), the Seventh Circuit noted, "[t]he text following the colon establishes which matters are arbitrable." Id. at 1254. Thus, on its face, § 1 includes disputes or controversies among members and associated persons, which is precisely what is involved in counts II (alleging tortious interference with prospective business advantage by Aetna, Sommer, and Bacher), IV (alleging deceptive business practices by Aetna, Sommer, and Bacher), and V (alleging civil conspiracy by Aetna, Sommer, and Bacher).
The analysis has been unnecessarily complicated by the parties' insistence on framing the arbitration issue in terms of whether certain "claims" are eligible for arbitration.[3] But, in so doing, the language of § 1, which refers broadly to "disputes, claims or controversies," not simply "claims," has been completely disregarded. In view of § 1's clear and unambiguous language, the Court has little difficulty concluding that Wojcik's allegations in counts II, IV, and V of his complaint constitute disputes among a member and associated persons, and hence are eligible under § 1 for arbitration in toto. To resolve any uncertainty regarding this Court's August 25 Order, we now make it abundantly clear that the arbitration of Wojcik's claims in counts II, IV, and V should encompass Wojcik's claims against Sommer and Bacher.
Count III, however, asserts claims solely against Bacher and Sommer; therefore, it requires a different analysis. Unlike counts II, IV, and V, the tortious interference claim directed against Bacher and Sommer in count III cannot fairly be construed as a dispute, claim or controversy "among members and associated persons." Rather, in view of the parties' consensus that Wojcik, Sommer and Bacher are all "associated persons," count III must be regarded as a dispute, claim or controversy solely among associated persons.[4]
Thus, we must examine whether a dispute solely "among associated persons" falls within the ambit of § 1. As we have seen, § 1 limits the scope of disputes eligible for arbitration to those between or among members; between or among members and associated persons; or between or among members or associated persons and public customers, or others. Thus, this Court cannot conclude that a dispute solely among associated persons falls within the plain language of § 1: it is not a dispute among members, nor among members and associated persons, nor among *733 members or associated persons and public customers or others. Thus, the Court finds that Wojcik's claims against Bacher and Sommer are not claims eligible for submission to arbitration under the terms of the code.
The Court reaches this conclusion notwithstanding the overriding federal policy favoring arbitration, see Matthews v. Rollins Hudig Hall Co., 72 F.3d 50, 53 (7th Cir. 1995); Nielsen v. Piper, Jaffray & Hopwood, Inc., 66 F.3d 145, 148 (7th Cir.1995), because § 1 simply "is not susceptible of an interpretation that covers the asserted dispute." Matthews, 72 F.3d at 53. Section 1(1) plainly and unambiguously refers to disputes solely between or among members. And, in view of § 1(1), it would be unreasonable to read § 1(2)'s reference to disputes "between or among members and associated persons" to refer to anything but disputes in which a member(s) is an adverse party to an associated person(s). In particular, it would be unreasonable to read § 1(2) as referring to either (i) disputes solely between or among members, or (ii) disputes solely between or among associated persons. When the drafters of the code intended to refer to disputes between or among persons (or entities) of only one type, they knew how to do so as in § 1(1). It is reasonable to assume that if the drafters intended to reach disputes solely among associated members, they would have included a provision analogous to § 1(1) that would read "between or among associated persons." Furthermore, a reading of § 1(2) under which that section was understood to refer to either (i) disputes between or among members, or (ii) disputes between or among associated persons, would make § 1(1) wholly superfluous. Thus, such a reading of § 1(2) would be unreasonable; and accordingly, we find that § 1(2) is unambiguous. "A contract is unambiguous if it is susceptible to only one reasonable interpretation." Murphy v. Keystone Steel & Wire Co., 61 F.3d 560, 565 (7th Cir.1995). Section 1(2) unambiguously encompasses only disputes in which, as a threshold, a member(s) is adverse to an associated person(s). So, we conclude that § 1 of the code, which sets out the matters eligible for submission to arbitration, does not encompass disputes solely between associated persons.[5]
Bacher and Sommer's argument to the contrary is unpersuasive. Bacher and Sommer argue that a determination that § 1 does not encompass disputes solely among associated persons renders language in § 8(a) of Part II of the code meaningless in contravention of the familiar interpretive principle that language of a contract should be read in harmony and in such a manner so as to avoid rendering any language superfluous or meaningless. See Mastrobuono v. Shearson Lehman Hutton, Inc., ___ U.S. ___, ___, 115 S. Ct. 1212, 1219, 131 L. Ed. 2d 76 (1995); Nielsen, 66 F.3d at 148. In particular, these defendants note that Part II § 8(a) provides:
Any dispute claim or controversy eligible for submission under Part I of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), shall be arbitrated under this Code, at the instance of:
(1) a member against another member;
(2) a member against a person associated with a member or a person associated with a member against a member; and
(3) a person associated with a member against a person associated with a member.
NASD Code, Pt. II § 8(a). So, defendants argue, if § 1 does not encompass suits among associated persons, § 8(a)(3) becomes meaningless. While we readily acknowledge that the NASD code is far from a model of clarity or consistency, we disagree with defendants' analysis. Part I § 1 of the code sets out the matters eligible for submission, Part II § 8(a) sets out those persons at whose insistence arbitration will be required. For our present purposes, it must be borne in mind that § 8(a)(3) does not purport to serve as a provision defining what disputes *734 are eligible for arbitration. Section 8(a) expressly indicates that it is Part I of the code that determines what matters are eligible for arbitration ("Any dispute ... eligible for submission under Part I ... shall be arbitrated"); § 8 merely serves to identify when an eligible matter will be required to be submitted to arbitration ("at the instance of" ...). Although § 8(a)(3), which provides that an associated person may require another associated member to arbitrate an eligible claim, could be read as contemplating that disputes solely between or among associated persons are eligible for arbitration, this reading is not compelled.[6] Part I § 1 is clear and ambiguous as to what matters are eligible for submission to arbitration; and, there is no indication whatsoever that § 8(a)(3) was intended as a back-door supplementation to § 1. To the contrary, § 8(a)(3) is quite clear that it is only the matters "eligible for submission under Part I" that may be required to be arbitrated.
As we observed in the August 25 Order, determining what matters the parties intended to be eligible for arbitration is a matter of contract interpretation. Wojcik, 901 F.Supp. at 1286; see also Nielsen, 66 F.3d at 148; Kresock v. Bankers Trust Co., 21 F.3d 176, 178 (7th Cir.1994); McCarthy v. Azure, 22 F.3d 351, 355 (1st Cir.1994). In interpreting a contract the Court's fundamental objective is to give effect to the intent of the parties; and, that intent is to be gleaned, in the first instance, from the plain language of the agreement. See, e.g., Church v. General Motors Corp., 74 F.3d 795, 798 (7th Cir.1996) (applying Illinois law); Gadsby v. Norwalk Furniture Corp., 71 F.3d 1324, 1329 (7th Cir.1995) (applying Ohio law). Where the language is unambiguous, the Court cannot substitute its judgment as to what the parties intended for the plainly expressed language of the parties, Church, 74 F.3d at 798; Gadsby, 71 F.3d at 1329, particularly where, as here, giving effect to the parties' language will not render senseless other provisions of the agreement. Finally, we note that although federal and state court opinions are replete with admonitions that arbitration agreements should be construed broadly in accordance with the federal policy favoring arbitration, see, e.g., Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 941-42, 74 L. Ed. 2d 765 (1983); Matthews, 72 F.3d at 53; Nielsen, 66 F.3d at 148, as the Eleventh Circuit has observed, we need not twist language in a contract in order to achieve a reading that would require arbitration. Goldberg v. Bear, Stearns & Co., 912 F.2d 1418, 1419-20 (11th Cir.1990). In the instant case, the Court could only read the NASD code as requiring submission of disputes solely among associated persons by improperly disregarding the plain and unambiguous language of the NASD code. The Court has carefully reviewed the authorities cited by the defendants for the proposition that disputes solely between or among associated persons are arbitrable and do not find them persuasive. For instance, in McDonald v. Mabee, 241 Ill.App.3d 340, 181 Ill. Dec. 519, 608 N.E.2d 592 (3d Dist.1993), the Illinois Appellate Court simply invoked the interpretive principle that arbitration agreements should be liberally construed, to reach the conclusion that the NASD code required arbitration of claims between associated persons. There was no effort to actually consider the language of § 1 and justify the outcome with the language. See id., 241 Ill.App.3d at 344, 608 N.E.2d at 595. Similarly, there is no relevant analysis in the New York district court's unpublished opinion in Moore v. Interacciones Global, Inc., 1995 WL 33650, 1995 U.S.Dist. LEXIS 971 (S.D.N.Y.1995). Although the Moore opinion did contain an analysis of the interrelationship between § 1 and § 8, that analysis bore upon a different issue than that presented here and does not particularly inform the present analysis.[7] Finally, Brennan v. Stanford, *735 236 Ill.App.3d 863, 866-67, 175 Ill. Dec. 473, 475, 600 N.E.2d 404, 406 (1st Dist.1992), does not even mention § 1, let alone attempt to interpret it. Instead, the Brennan court merely looked to § 8, an approach that we respectfully decline to follow. Thus, for all of the foregoing reasons, we hold to our prior conclusion that Wojcik's claims asserted solely against Bacher and Sommer in count III of the complaint are not eligible for submission to arbitration. Accordingly, we deny the defendants' motion to dismiss as to count III. In accordance with the August 25 Order, however, all proceedings relating to that count in this Court will be stayed pending completion of the arbitration. As stated in the August 25 Order, the parties are directed to notify this Court within 21 days of the completion of the arbitration proceedings.
CONCLUSION
Defendants Bacher and Sommer's renewed motion to dismiss complaint and compel arbitration is granted in part and denied in part. Counts II, IV, and V are dismissed. Defendants' motion is denied as to count III. All proceedings relating to count III in this Court are stayed pending completion of the arbitration.
NOTES
[1] We take the time to relate this relevant prior procedural history in the hopes that this type of piecemeal adjudication can be avoided in the future through better coordination among the defendants.
[2] A fourth category of disputants is plainly not applicable and therefore we will not quote it here.
[3] Unfortunately, the Court's August 25 Order also followed this convenient, although imprecise, manner of speaking and has thereby further engendered this confusion.
[4] Consistent with commonly recognized rules of English usage, this Court understands the word "between" as used in § 1 to refer to disputes involving two parties and the word "among" to refer to disputes involving more than two parties. Accordingly, because Wojcik's claims all involve more than two parties, we shall dispense with the cumbersome "between or among" language.
[5] Because no party contends that either of the two other provisions in § 1 is determinative, we need not discuss them.
[6] Indeed, as this case aptly illustrates, there may be cases in which associated members may be named as codefendants in a suit commenced by an associated person against a member; and, in the event that the associated-person plaintiff and member defendant waive their right to arbitrate, § 8(a)(3) enables the associated-person codefendant to require that the plaintiff and defendant submit their dispute to arbitration.
[7] Moreover, the Moore opinion was premised on a rejection of the Seventh Circuit's analysis in Farrand v. Lutheran Bhd., 993 F.2d 1253 (7th Cir.1993). This Court is bound to follow the holdings of our own court of appeals. |
1,516,510 | 2013-10-30 06:32:55.828131+00 | Hoyt | null | 916 F. Supp. 620 (1995)
Ricardo Aldape GUERRA, Petitioner,
v.
James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
Civil A. No. H-93-290.
United States District Court, S.D. Texas, Houston Division.
May 18, 1995.
*621 *622 Scott J. Atlas, Vinson & Elkins, Houston, TX, for Ricardo Aldape Guerra.
Bob Walt, Assistant Attorney General, Austin, TX, Mary Lou Soller, Attorney at Law, Washington, DC, for James A. Collins.
William C. Zapalac, Assistant Attorney General, Austin, TX, for Wayne A. Scott.
AMENDED ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
HOYT, District Judge.
This case is before the Court pursuant to the application for a writ of habeas corpus filed by the petitioner, Ricardo Aldape Guerra. This Court granted the petitioner's motion for an evidentiary hearing and pursuant thereto, received documentary and testimonial evidence. Having reviewed the writ application, the response, the state trial record, the exhibits introduced into evidence and the testimony presented at the evidentiary hearing, the Court is of the opinion that the writ shall be granted.
I.
Factual and Procedural History
On July 13, 1982, J.D. Harris, a Houston police officer, was on a patrol in a Hispanic neighborhood. Around 10:00 p.m. a pedestrian, later determined to be George Lee Brown, waved down officer Harris complaining that a black and burgundy Cutlass automobile had almost run him over while he was walking his dog. Within minutes, officer Harris approached a stalled vehicle fitting the description given to him by the pedestrian.
The vehicle was occupied by Ricardo Aldape Guerra and Roberto Carrasco Flores, undocumented workers, who lived in the *623 neighborhood. Pursuant to officer Harris' command, the occupants approached officer Harris' vehicle. The second occupant pulled a nine-millimeter Browning semi-automatic pistol and shot officer Harris three times. It is undisputed that the weapon was owned by Carrasco. At the time of the shooting, the first occupant had placed or was placing his hands on the hood of officer Harris' vehicle in obedience to officer Harris' command. As the individuals fled the scene of the crime, the second occupant fired a nine-millimeter pistol into an approaching vehicle shooting Jose Armijo, Sr., in the presence of his two children.
It is undisputed that Carrasco wore a maroon shirt and brown pants and that Guerra wore a light green shirt and blue jeans. Carrasco was also known in the neighborhood as "Guero" or "Wero" because of his light-skin. As well, he was clean-shaven and had short hair; Guerra, on the other hand, had black, straight, shoulder-length hair, a mustache, and a beard.[1]
Within an hour of the shooting, Carrasco was killed in a shootout with police, but not before he shot and seriously wounded another police officer with the same weapon used to kill officer Harris and Mr. Armijo. Officer Harris' weapon, a .357 Colt Python, was found in Carrasco's waistband when his body was searched or examined at the morgue. Also discovered was an additional "ammo" magazine for the nine-millimeter pistol in a "military-type" magazine pouch attached to Carrasco's belt.
Guerra was arrested shortly after Carrasco was killed, while hiding beneath a horse trailer. He was unarmed at the time, although a .45-caliber Detonics pistol was found lying under the trailer, wrapped in a bandanna. After he was arrested, he was taken to the crime scene where spectators had gathered and witnesses were being identified and questioned. Later, he was taken to the police station.
Guerra was tried for the offense of capital murder and was convicted on October 12, 1982. On October 14, 1982, he was sentenced to death by lethal injection. His conviction was affirmed on May 4, 1988, by the Texas Court of Criminal Appeals in Guerra v. State, 771 S.W.2d 453 (Tex.Crim.App.1988) (en banc), cert. denied, 492 U.S. 925, 109 S. Ct. 3260, 106 L. Ed. 2d 606 (1989).
On September 21, 1992, the state trial court denied Guerra's application for writ of habeas corpus, as well as his request for an evidentiary hearing and failed to enter findings of fact. Guerra's case was automatically forwarded to the Texas Court of Criminal Appeals, which adopted the trial court's recommendation in an unpublished, per curiam, order. Guerra then filed this application for a federal writ of habeas corpus.
II.
Petitioner's Contention:
In his several arguments, Guerra contends that he was denied a fair and impartial trial because of: (a) pretrial intimidation of witnesses; (b) an improper identification procedure; (c) the prosecutors' failure to disclose materially exculpatory evidence; (d) the prosecutors' use of known false evidence and known illegitimate arguments to the jury; and, (e) the cumulative effect of the prosecutorial error.
Each of these contentions and the relevant evidence will be addressed in turn. To assist the reader in following this discussion, it should be noted that the evidence consists of (a) the statements of witnesses taken on the morning following the shooting; (b) the trial testimony in the underlying conviction; and (c) the testimony taken in this proceeding.
Restated, Guerra complains that he was brought to the crime scene and location of the witnesses in handcuffs; at the police station, he was twice escorted past the witnesses with handcuffs and bags over his hands; at the lineup, he was the sole Hispanic on exhibition with long-hair; before, during, and after the lineup, the witnesses were permitted to communicate amongst themselves, with one particular witness urging the *624 others to identify Guerra as the shooter; at a reenactment of the crime and at a pretrial weekend meeting of the witnesses, the prosecutor told the witnesses that Carrasco was dead and that Guerra was the shooter; at the trial, two life-size mannequins were stationed in front of the jury from the beginning to the end of the trial. Finally, Guerra argues that the prosecution failed to disclose materially exculpatory evidence and used evidence known to be false, or half truths, to convict him. The cumulative effect of all of these actions resulted in a violation of his "due process" rights and the fundamental right to a fair procedure leading up to trial.
III.
Pretrial Intimidation of Witnesses:
III(a) The Petitioner's Contentions:
The petitioner contends that several, if not all, of the witnesses were intimidated by the police and the prosecutors, the result of which was that the witnesses either gave contradictory testimony, or their testimony was presented in a manner that shaded the truth. On the question of intimidation, the petitioner called several witnesses who were under the age of 18 at the time: Patricia Diaz (age 17); Elena Holguin; Frank Perez (age 17); Herlinda Garcia (age 14); Jose Heredia (age 14); and Elvira Flores (age 16).
The evidence is undisputed that the witnesses were brought to the police station before midnight on July 13, 1992. They remained until about 6:30 a.m. the next morning. The petitioner asserts that in addition to lack of sleep, the ability to coerce and intimidate the witnesses was made easy by three other factors common to most of the key witnesses, i.e., their inability to speak fluent English, their lack of education, and their youth.
The native language of all but one of the neighborhood witnesses is Spanish and, at the time, many of the witnesses had little or no command of the English language. These facts, coupled with the lack of formal education, according to the petitioner, created a situation where the witnesses' statements as taken lent themselves to selective interpretations. These circumstances, according to the petitioner, set the tone for how the witnesses were handled.
III(b) Federal Habeas Testimony:
During the federal evidentiary hearing, Patricia Diaz, a minor in 1982, testified that she told police officers at the crime scene that she did not see the shooting, but only got a glimpse of Guerra's profile after she heard the shots. She told them that Guerra's hands looked empty. One of the police officers, using vulgar language, insisted that Diaz had seen more and threatened to take away her infant daughter unless she cooperated. While still at the crime scene, Diaz saw another officer yelling at, handcuffing, and placing her aunt, Trinidad Medina, into a police car.
Diaz also testified that at the pretrial weekend meeting, held shortly before trial, the prosecutors also yelled at her, insisting that she change her testimony in some respects. She also told the prosecutor that she never saw Guerra pointing at officer Harris.[2]
Elena Holguin also testified at the trial and this proceeding. She stated that she was in her home at the time of the shooting. After she told police officers that she had not seen officer Harris get shot, one of the police officers became angry and told her that she had a duty to help them. Because of her alleged uncooperativeness, she was handcuffed, without provocation or justification, *625 and placed into a police car. She was taken to the police station barefoot because the police would not permit her to get her shoes. She further testified that, in total, she was kept in handcuffs for more than two hours and they were not removed until she reached the police station.
Frank Perez testified that shortly after Harris was shot, a police officer pointed a gun at an unidentified Hispanic male, told him to lie down on the ground and yelled: "Why did you kill the cop?" The man on the ground was neither Carrasco nor Guerra. He also testified that at the pretrial weekend meeting, he told the prosecutors that, shortly after officer Harris was shot, a man who looked like Carrasco had run past him and pointed an object at him that appeared to be a nine-millimeter gun. In response, the prosecutor insisted that if Perez was less than "100%" certain that the object was a gun, he should not testify that the object pointed at him was a "gun," just an "object."
Jose Luis Luna was called to testify, as well. He testified that after officer Harris had been shot, but shortly before Carrasco was killed, police officers came to his home at 4907 Rusk, with guns drawn. The police officers ordered J. Luna and Jose Manual Esparza outside, forced them face down on the front porch, pointed guns at their heads, put a foot on them and cursed and screamed at them, while they searched the area.
Roberto Onofre testified that he witnessed this event between the police, J. Luna and Esparza as he was returning to the house that he shared with them. Onofre also testified that after Carrasco was killed, two police officers returned and questioned himself, Jose Luna, Jose Esparza and Enrique Torres Luna. During this exchange, the officers screamed, cursed, and threatened to arrest them if they did not tell what they knew. Several police officers then entered the house and searched it.
Onofre and J. Luna both testified that several times during July, after Carrasco's death and after the arrest of Guerra, police officers came to their home after midnight while they were asleep, entered the house, conducted themselves violently and used abusive language. They would order the residents to sit in the living room while they searched the house, kicking items out of the way and tearing up any newspaper clipping about Guerra. Although Onofre signed a consent to search at the time, he testified that he did so only because of the police officers' conduct, their actions toward the residents, and their mannerisms.
Herlinda Garcia, 14 years old at the time, testified that she told the police that Carrasco was the shooter. At that time, several police officers told her she would be arrested and jailed unless she cooperated. An unidentified police officer stated to her "that she just did not know what all could happen to her and her husband." At the time, Garcia's husband was over 18 years and on parole. She testified that she took these comments as a threat to reincarcerate her husband on rape charges if she did not say what was expected of her.
At the pretrial weekend meeting, after Garcia told one of the prosecutors that Guerra was not the man who had shot officer Harris, the prosecutor told her that she was confused and that she could not now change her mind because she had already made a statement identifying Guerra as the shooter, not only of officer Harris but also Mr. Armijo.[3]
*626 George Brown testified that after Mr. Armijo was shot, he was left in his car, without medical attention, for over an hour. However, officer Harris was immediately taken to the hospital within a few minutes after the ambulance arrived.[4] For the four to six hours leading up to the lineup at 6:00 a.m., Brown was kept separate from the other Hispanic witnesses, they were seated on a bench in a hallway outside the Homicide Division office. He attributes this segregation to the fact that his last name is of European origin. He could, nevertheless, overhear them talking among themselves about the shooting.
Garcia also testified that while at the police station she overheard police officers tell several of the Hispanic witnesses not to discuss the case with anyone, except the police and the prosecutors, and especially warned them not to talk to Guerra's lawyers or "they [the witness] could get in trouble." In addition, Garcia and several of the other witnesses testified that at the pretrial weekend meeting one of the prosecutors pointed to a picture of Carrasco and stated to the witnesses that the man in the picture was the man who died in the shootout with police. They then pointed to a picture of Guerra and said that he was the man who shot and killed officer Harris and Mr. Armijo.
III(c) Discussion and Conclusion:
Intimidation by the police or prosecution to dissuade a witness from testifying or to persuade a witness to change his testimony, when combined with a showing of prejudice to the defendant, violates a defendant's "due process" rights. See United States v. Heller, 830 F.2d 150, 152-53 (11th Cir.1987). This was the case in Heller, where the Court found that threats by a government agent caused a witness to give false, damaging testimony. See also Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972). Thus, the government does not have the unfettered right to interfere with any witness, particularly, in making the choice to testify or not. United States v. Hammond, 598 F.2d 1008, 1012-13 (5th Cir. 1979). Where interference occurs by the police, police actions that intimidate witnesses may be imputed to the state in its prosecution. Cf., Fulford v. Maggio, 692 F.2d 354, 358 n. 2 (5th Cir.1982), rev'd on other grounds, 462 U.S. 111, 103 S. Ct. 2261, 76 L. Ed. 2d 794 (1983). Equally so, the state has a duty to disclose such conduct. This duty is imposed not only upon its prosecutor, but upon on the state as a whole, including its investigative agencies. Therefore, if a confession is in the possession of a police officer, constructively, the state's attorney has both access to and control over the document. Id.
It is clear to this Court that the mood and motivation underlying the police officers' conduct arising out of this case was to convict Guerra for the death of officer Harris even if the facts did not warrant that result. The Court finds and holds that the police officers and the prosecutors intimidated witnesses in an effort to suppress evidence favorable and material to Guerra's defense. Specifically, the written statements that were taken after the line-up are in many respects in significant contrast to those taken before the lineup. The Court attributes this to the fact that Carrasco had been killed and the strong, overwhelming desire to charge both men with the same crime, even if it was impossible to do so.
In addition to the scurrilous conduct exhibited by the police, the Court is confounded by the fact that the police would handcuff two innocent women, threaten to revoke the parole of another's common-law husband, and repeatedly, day after day in the early morning hours, search the residence of innocent people. This conduct alone speaks volumes about the intimidation suffered by these children who were caught up in the police net and the circumstance.
The prosecutors' conduct was equally rank. Before and during the trial, questions to the witnesses were stated in such a manner that the questions stated or implied complicity by Guerra, irrespective of the fact that the answers *627 did not conform. The tone of voice, as well as the artful manner in which the questions were asked, left little room for truthful answers or explanation. When the answers were not to their liking, they resorted to ridicule. Such conduct severely prejudiced Guerra's right to a fair trial and, therefore, violated his right to "due process" of law. See Heller, 830 F.2d at 152-53; United States v. Smith, 577 F. Supp. 1232, 1236-38 (S.D. Ohio 1983); see generally Webb, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972); cf., Hammond, 598 F.2d at 1012-13.
The Court concludes that the pretrial intimidation of the witnesses, most of whom were children, resulted in violating Guerra's right to fundamental "due process" and a fair trial.
IV.
Improper Identification Procedures
IV(a) The Legal Standard:
The Supreme Court has adopted a "totality of the circumstances test" to be utilized in the analysis of identification testimony. Identification testimony is admissible if it appears "reliable," even if it is flawed by improper police behavior. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977). Thus, an unnecessarily suggestive identification is not subject to a "per se" exclusion. Id. The Court must determine whether an identification procedure constitutes a denial of "due process." In doing so it must first be determined whether the pretrial identification was unnecessarily suggestive. Assuming that it was, the Court must then determine whether the identification was so unreliable that the defendant's "due process" right to a fair trial would be precluded if the identifications were permitted. Id.
The factors to be considered in evaluating the reliability of an identification are: (i) the witnesses' opportunity to view the accused at the time of the crime; (ii) the witnesses' degree of attention; (iii) the accuracy of the witnesses' prior description; (iv) the level of certainty demonstrated at the confrontation; and (v) the time between the crime and the confrontation. Id. (citing Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)).
Where the state's use of pretrial identification procedures posed a substantial likelihood of tainting the state witnesses' identifications of the defendant and both their out-of-court and in-court identifications are not shown to be independently reliable, the Court must determine if admission of the identifications into evidence is harmless error. See Young v. Herring, 917 F.2d 858, 864 (5th Cir.1990), superseded on reh'g on other grounds, 938 F.2d 543 (5th Cir.1991) (en banc), cert. denied, 503 U.S. 940, 112 S. Ct. 1485, 117 L. Ed. 2d 627 (1992) (citing Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827-28, 17 L. Ed. 2d 705 (1967)). When the state is the beneficiary of any error, the burden of proving that the error was harmless, beyond a reasonable doubt, rest at the state's door. Thigpen v. Cory, 804 F.2d 893, 897 (6th Cir.1986), cert. denied, Foltz v. Thigpen, 482 U.S. 918, 107 S. Ct. 3196, 96 L. Ed. 2d 683 (1987) (citing Chapman, 386 U.S. at 24, 87 S.Ct. at 828).
IV(b) Discussion:
The facts of this case present a situation that is somewhat peculiar to the Brathwaite case. Here, the facts show that the petitioner was known in and around the neighborhood, therefore, it was logical that the witnesses could identify the petitioner as being at the scene when officer Harris was shot. Moreover, Guerra's presence at the scene is not in dispute. Guerra gave a statement to that effect on the evening of the shootings. What is confounding is that the police took statements shortly after the shooting. Several were essentially exculpatory of Guerra, and others described the shooter in ways that blended characteristics of both men; none pointed unequivocally to Guerra. After learning of Carrasco's death and after the lineup, the police took additional statements that contradicted or impeached the prior statements in some subtle and other not so subtle ways.
In this regard, the record shows that there were at least eight witnesses who claim to have seen officer Harris shot: Hilma G. Galvan, *628 Herlinda Medina Garcia, Jose Francisco Armijo, Jr., Elvira Medina Flores, Patricia Ann Flores Diaz, Jacinto Vega, and Jose and Armando Heredia. When these persons gave their first written statements, between 12:00 a.m. and 1:00 a.m., they stated in relevant part the following:
... "I know the one that shot the officer by sight...." The shooter "was wearing dark brown pants and a dark brown or black shirt. He (sic) tall and thin and has shoulder length straight blond hair." (Hilma G. Galvan at 12:05 a.m., July 14, 1982).
* * * * * *
... "I saw the guy with the blond hair reach into ... his pants and pull out a pistol and shoot the policeman.... He was wearing brown pants and a brown shirt that was open all the way down." (Herlinda Medina Garcia, at 12:12 a.m., July 14, 1992).
* * * * * *
... "The man shot the gun with his left hand.... I didn't see the men that shot the policeman too good and I don't remember what they looked like or what they were wearing...." (Jose Francisco Armijo at 12:15 a.m., July 14, 1982).
* * * * * *
... "Both the driver with blond hair and the passenger ... put their hands on the police car.... At this time the blond-haired driver pulled a pistol ... and started shooting at the police officer.... I don't think I can identify the two persons I saw...." (Elvira Medina Flores at 12:40 a.m., July 14, 1982).
* * * * * *
... "I told the detective that the man that was standing fourth from the left was the same man that I had seen on Walker.... I guess he had a gun in his hand." (Patricia Ann Flores Diaz, second statement, at 6:20 a.m. July 14, 1982).[5]
* * * * * *
... "One of the Mexican[s] ... put his hands on the hood of the police car as if he was under arrest. The other Mexican ... walked up behind the first Mexican ... and all of a sudden ... pulled a pistol out from somewhere and shot at the police officer about four (4) times.... The first Mexican ... was the one who had his hands on the hood of the police car and he would have been the driver of the car.... [T]he one who shot the police was the passenger of the car.... I never got to see their faces so I cannot recognize them if I ever see them again. I cannot remember what they looked like and cannot remember what either one was wearing." (Jacinto Vitales Vega at 12:10 a.m., July 14, 1982).
* * * * * *
... "The man that was driving the car came out of the car and to where the policeman was at.... [T]he other man in the car ... came out of the car and walked up behind the policeman and shot him.... I didn't get to see the man's face that was shooting the policeman." (Jose Angel Heredia at 4:15 a.m., July 14, 1982).
* * * * * *
.... "The man that shot the police officer I know him as Wedo (sic). I have known him about a month. As soon as he got out of the car I recognized him. He was also the man that ... shot the policeman." (Armando Heredia at 4:35 a.m. July 14, 1982).
* * * * * *
Two others gave relevant statements that bear upon the identification issue because of their proximity in time and circumstances to the events. John Reyes Matamoros and George Lee Brown gave statements before the lineup. In relevant part they state:
"I was able to see one of the men that had gotten arrested [after Carrasco was killed] and he was the man that was sitting in the front passenger seat [between 9:45 p.m. to *629 10:00 p.m.]....." (George Lee Brown at 12:40 a.m., July 14, 1982).
* * * * * *
"The man I saw running with the gun was a mexican american (sic) about 20 or 21 years old. He had shoulder length hair that was not as dark as mine and it looked more like hair that a white person would have. He was wearing a button up shirt and brown pants....." (John Reyes Matamoros at 12:10 p.m., July 14, 1982).
Several of the witnesses knew Guerra from the neighborhood. For the police to utilize this familiarity in the reckless manner that it did, is troubling. In fact, the state used a host of improper identification procedures in an effort to manipulate the witnesses' statements and testimony. Notably suggestive were (i) permitting the witnesses to see the petitioner in handcuffs on several occasions while the witnesses were waiting to view the lineup, and (ii) permitting the witnesses to talk about and discuss identification before, during and after the lineup.
The prosecutors joined the hunt by conducting a reenactment of the shooting shortly after the incident with various chosen witnesses participating. This procedure permitted the witnesses to overhear each others view and conform their views to develop a consensus view. At the pretrial weekend conference, the prosecutors presented the two mannequins intended for use during trial. These life-size mannequins, created in the images of Guerra and Carrasco, were utilized then and throughout the trial to reinforce and bolster the witnesses' testimonies. The effect of these impermissibly suggestive procedures also resulted in a denial of "due process", as evidenced by the witnesses' federal habeas testimony.
The habeas testimony reveals that Guerra, handcuffed and with paper bags over his hands, was walked and shoved down the hallway outside the Homicide Division offices past the witnesses. He was then taken from the Homicide Division offices to the photo lab, where his clothes were taken from him. On both occasions, he was escorted along the hall before Diaz, Flores, Garcia, Jose, Jr., Galvan, Medina and Perez.
Before the lineup, witnesses either described the shooter in such a way that the description fit only Carrasco, i.e., he had blond-like hair and wore brown pants and a brown/maroon shirt, described a composite of both men, or described what could have been either man. While both Carrasco and Guerra had dark hair, the use of Carrasco's nickname, "Guero," which means "light-skinned" or "light-colored, blond-like hair," to describe the shooter may have confused the police interviewers. Clearly, the word "blond" did not describe Guerra's dark brown hair. Jose, Jr., who was 10 years old at the time, could only identify the shooter as being left-handed. This description was critical because Carrasco was left-handed. After the lineup and, with the knowledge that Carrasco was dead, several of the witnesses gave a series of second statements declaring, in spite of numerous previous assurances to the contrary, that Guerra was the shooter.
The various testimonies also show that Galvan spent most of her time in the hallway talking to Jose, Jr., and Flores. Although a general instruction or warning against talking was given, Galvan continued. She pointed toward Guerra and said to Jose, Jr., and Jose and Armando Heredia, in Spanish, loud enough for all the witnesses and the officers in the room to hear, that since Carrasco had died, they could blame the man who "looked like God" or the "wetback" from Mexico for the shooting of officer Harris. Based on her various accounts, Galvan's statement, that she actually witnessed the shooting, is suspect. Nevertheless, she encouraged the minors to identify Guerra as the shooter knowing that Guerra did not fit even her own description of the shooter.
She continued by stating that Mexicans only come to the United States to commit crimes and take jobs away from United States citizens. She repeatedly referred to Mexican Nationals as "Mojados" or "wetbacks". She was also heard repeatedly telling Jose, Jr., that Guerra was the killer. This conduct can be attributed only to her prejudice toward Mexican Nationals who, as Galvan stated, "took the jobs from Americans." The Court concludes that these expressions of prejudice against undocumented *630 aliens was, as likely as any, the motivation for the inconsistencies between Galvan's own statement and her testimony.
Galvan's influence also explains how Jose, Jr.'s testimony was so specific and direct when he was overheard in the hallway at the police station admitting that he had not seen Guerra or Carrasco clearly enough to know which had fired the shots. In fact, Jose, Jr. admitted in his trial testimony (pp. 302-03, 307-08) that he had not seen who shot his father because his father had pushed him below the dashboard as the shooting commenced. He repeated his inability to identify the shooter while he was sitting in the hallway outside the Homicide Division upon seeing Guerra during the lineup.[6] It is more likely so than not, that Jose, Jr.'s belief that Guerra was the shooter was a result of seeing Guerra in handcuffs at the police station and hearing Galvan, repeatedly, insist that Guerra was the shooter.
During the trial, the prosecutors placed the mannequins in front of the jury and they remained there during the testimony of the witness. Heredia and Perez testified that during the trial, the positioning of the mannequins helped them identify which of the men was dead. [The Carrasco mannequins' shirt had bullet holes and blood stains, while the shirt on the Guerra mannequin did not.] Donna Monroe Jones, a juror during the trial, also testified. She testified that the jurors noticed that the shirt on the Carrasco mannequin was blood-stained and bullet-riddled. Additionally, she testified that the mannequins made the jurors feel uncomfortable and ill at ease.
Given the undisputed facts leading up to and surrounding the lineup, the identification of Guerra at the lineup was predestined. After all, he was present at the time of the shooting. To then use that fact as the sole basis to prosecute him for capital murder, is more than a stretch. Under the "totality of the circumstances," the identification procedures used by the police and the prosecutors were so corrupting that it caused witnesses, who either knew otherwise, or did not know at all, to testify that Guerra had committed the crime.
It is also relevant that the police officers and the prosecutors did not quiet Galvan and others, as they commented before, during and after the lineup. It is relevant to this inquiry, as well, that the prosecutors misused the identification of Guerra so as to violate his right to a fair trial. So, different from Thigpen and Neil, it is the effects of these draconian procedures and the results attendant to this abuse of power, that are arresting.
The pretrial use of the mannequins in the meeting with witnesses at the prosecutors' office the weekend before trial was certain to reinforce the consensus facts so that there would be complete harmony in the testimony. The unrestricted, incessant presence of the mannequins, one wearing a bullet-riddled, blood-stained shirt that the jurors and witnesses saw daily, violated a constitutional guarantee of a fair trial, by injecting impermissibly suggestive factors into the trial process. Holbrook v. Flynn, 475 U.S. 560, 570, 106 S. Ct. 1340, 1346-47, 89 L. Ed. 2d 525 (1986).
It was no mystery to the state that their entire case against Guerra rested on the witnesses identifying him. The state had to count on the eyewitnesses excluding from their testimony, facts that clearly pointed to Carrasco.[7] Therefore, the state, to seal its victory, deliberately chose to taint the identification process by insisting upon perjured testimony. The physical evidence equivocally pointed to Carrasco as the shooter. The statements taken before the lineup make it abundantly clear that the witnesses either identified Carrasco as the shooter or described a composite of both men. It was *631 only after the unexplained misconduct by the police officers, the permitted misconduct on the part of Galvan, and the reinforcement by the prosecutors, that Guerra was chosen as the shooter.
IV(c) Conclusion:
The state has the burden of proving, beyond a reasonable doubt, that the intentional act of causing to be admitted tainted, unreliable and perjured testimony, identifying Guerra as the shooter, was harmless. Thigpen, 804 F.2d at 897 (citing Chapman, 386 U.S. at 24, 87 S.Ct. at 828). The state has offered no evidence to contradict this point and has failed to discharge its duty.
V.
Failure to Disclose Materially Exculpatory Evidence
V(a) The Legal Standard:
There is long standing authority for the principle that, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). In order to establish that evidence falls within the purview of Brady, a petitioner must establish that the evidence was suppressed and that it was material and favorable. Id. Suppressed evidence is "material" if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383-84, 87 L. Ed. 2d 481 (1985).
V(b) Discussion:
Before the trial, Guerra's attorneys filed motions requesting production of all material inconsistent with the guilt or lawful arrest of Guerra. They also filed an extensive motions for pretrial discovery and inspection. Obviously, the conduct of the police and prosecutors was unknown to the defense attorneys. Yet, it was the type of conduct that the motions sought and the type that the prosecutors were duty bound to disclose.
In the discussion that follows, the Court analyzes the various witness statements and the police's and prosecutors' conduct surrounding the statements. It is the conduct giving rise to and surrounding the statement that is the focus of the petitioner's charge.
According to Garcia, she told the police on the night of the shooting that the short-haired man was the shooter. The first written statement prepared for her described the events and actor as follows:
The blond hair (sic) reach into the front of his pants and pull out a pistol and shoot the policeman ... the man with the blonde hair then shot the man in the read (sic) car ... the man that shot the policeman and the man in the red car had blonde hair and was about 5'8" tall.... He was wearing brown pants and a brown shirt....
She was asked to sign this written statement, which omitted her exonerating reference to the fact that the short-haired man was the shooter and that the long-haired man was the man with the empty hands near the front end of the police car at the time Officer Harris was shot. Garcia, who had attended only seven years of school, asked the police officer to read it to her because she could not read well. The police officer refused and told her to "just sign it." According to Garcia, she then signed it because of the earlier verbal threat that another police officer made concerning revoking her husband's parole for living with her, Garcia, a minor.
After Garcia watched the lineup, she told the police that the man in the number 4 position was not the shooter but, instead, was the man with empty hands near the front of the police car at the time officer Harris was shot. When the second statement was prepared, it omitted the exonerating information provided by Garcia. This second statement was not read to Garcia. She was asked to sign this second statement. She did so, for the same reason that she had signed the first statement.
At the re-enactment, Garcia told one of the two prosecutors that the short-haired man was the one who appeared to have been the *632 shooter, not the long-haired man. This exculpatory evidence was not recorded and not passed on to the defense.
At the pretrial weekend meeting, Garcia told one of the two prosecutors again that the long-haired man wearing the green shirt was not the man who had shot the police officer. This exculpatory evidence was not recorded and not passed on to the defense.
From the Court's perspective, knowledge of this conduct explains the prosecutor's impatience with Garcia during the trial of the case. The prosecutor insisted that Garcia had not seen a blond-haired man shoot officer Harris causing her to testify that she had not. The prosecutor then attributed Garcia's reluctance to testify to fear of reprisal from people in the neighborhood.
According to Diaz, she told the police that when officer Harris was shot, the long-haired man was standing on the driver side of the police car near the front end, facing toward the police car with his arms extended out over the police car, feet spread apart, and that the palms of his hands were facing down toward the police car. In addition, his hands were empty and were positioned as if he were about to place his hands on the hood of the car to be searched. In spite of this, an officer prepared a statement omitting the exonerating information provided by her and inserting the incorrect information that the long-haired man pointed a gun in the direction of the police car and shot four times at the police car. Tired, she signed the statement without reading it, unaware of its true contents.
After the lineup was conducted, Diaz told the police that the man in the number 4 position was the man who had been on the driver side, near the front, of the police vehicle. In spite of hearing this, an officer prepared another statement omitting the exonerating information provided by her. She signed this statement, as well, without reading it, unaware of its true contents.
At the pretrial weekend meeting, Diaz told one of the two prosecutors that she was at the crime scene at the time of the shooting and that it did not look as though Guerra had a gun, because at the time of the shooting Guerra's hands were open with his palms down on the hood of the police car. This exculpatory evidence was not recorded and not passed on to the defense.
During the habeas hearing, Perez testified that he told the police on the night of the shooting that he saw two men running past him that evening after the shooting of officer Harris. The first man ran east on the south side of Walker and turn south onto Lenox. Perez stated that he was too far away to recognize the runner. A second man ran east on the north side of Walker and turned south on Lenox. As the second man ran past Perez, the man, who looked like Carrasco, pointed an object at Perez that he was holding in his left hand. As he ran, the object fell from his hand to the street. It made a metallic sound as it hit the pavement and looked like a handgun with a clip. The runner stopped to pick the object up, and continued running south on Lenox toward McKinney.
When Perez's statement was prepared, it omitted the fact that Perez had identified the object as a handgun. The police officer persuaded Perez to have the description in the statement read that the runner had dropped a metallic object. Later, in discussing his testimony with the prosecutor he was informed that he should describe the "object" as an "object" if he was not "100% certain" that it was a gun.
At the lineup, Perez told the police that he recognized Guerra from having seen him earlier in the hallway, but that Guerra was not the man who had dropped the object as he ran past him earlier that night. He was not invited to the reenactment a week or so after the shooting.
Jose Heredia's testimony in this proceeding and his written statement identifies the passenger as the shooter. He testified that he told the police that when officer Harris was shot, officer Harris was standing just behind his driver's door and that the long-haired man was standing on the driver's side of the police car near the front end. He further stated that the man was facing the police car with his hands on the hood of the police car, a foot apart, palms down and empty. The short-haired man, approaching *633 a few feet southeast of officer Harris and the long haired man (Guerra), pointed a gun at officer Harris and shot him.
After hearing Heredia's version, a police officer prepared a statement that omitted the exonerating information given concerning Guerra; specifically, that Guerra was against the car and empty handed when Carrasco came up behind Guerra and shot officer Harris. Heredia, like several of the other witnesses, tried to read his statement but could not because he could not read English. Like others, he was told to "just sign it." He further testified that he was afraid not to sign the statement, having seen his mother (Holguin) arrested and handcuffed at the scene.
After Heredia viewed the lineup, he told a police officer that he recognized Guerra as the driver of the black car and that Guerra was not the man that shot officer Harris. Heredia was not asked to sign another statement.
Holguin, Heredia's mother, testified that she told the police that she had not seen the shooting at all. In spite of this, a statement was prepared that she was told to sign. Holguin testified that she informed the police officer who prepared the statement that she could not speak English. No one translated the statement for her benefit. Although completely unaware of the contents of the statement, Holguin testified that she signed it because she was ordered to do so. Earlier that evening, she had been handcuffed at the scene for several hours before being brought to the police station.
George Brown testified in this proceeding that he told the police that, after hearing shots that were later determined to have killed officer Harris, he ran west on Walker street from Delmar past Lenox to Edgewood. As he passed Lenox he saw someone running south on Lenox that appeared to be Carrasco. Later, he saw Perez who stated to him that the man who was seen running south on Lenox was carrying a gun and had dropped it. Brown related Perez's statement to the police, that the person handling the weapon had dropped it while running. Brown's written statement omitted the information that he had received from Perez and had related to the police.
V(c) Conclusion:
The Court finds that the testimony of Garcia, Diaz, Holguin, Heredia and Perez is credible. Moreover, it is consistent with the physical evidence that establishes that Guerra did not shoot officer Harris and Mr. Armijo. Specifically, the physical evidence shows that the shooter used a nine-millimeter handgun to kill both officer Harris and Mr. Armijo. It further shows that the weapon had marks on it of the nature and type that would exist had the weapon been dropped to the pavement.[8] Important to these findings is the physical description of the shooter given by the scene witnesses in their initial interviews describing Carrasco and the omission of material exonerating information from the written statements prepared by the police based on the interview descriptions.
As well, the fact that the weapon was found on the body of Carrasco was ample evidence of an exonerating nature to put the police and the prosecutors on notice that Carrasco was the killer. The prosecutors' theory, that Guerra and Carrasco had mistakenly switched weapons in the car before the shooting and had exchanged them later at the house (4907 Rusk), was sheer speculation and no evidence was ever proffered to support this theory. Moreover, it was not even a reasonable hypothesis based on any inference that could have been drawn from the evidence.
The police officers and prosecutors had a duty to accurately record the statements of *634 the witnesses, to fairly investigate the case, and to disclose all exculpatory evidence. Moreover, they had a duty to not prosecute an innocent man. They failed in these duties. These intentional omissions, during the investigation and prosecution, and the inclusion of poisonous speculations during trial, had the effect of suppressing and destroying favorable testimony that the Court finds was material to Guerra's defense. The information that the police and prosecutors failed to disclose, as well as the manner that the investigation and prosecution were conducted, hardly left a paper trail, and intentionally so. The concept of deceit was planted by the police and nurtured by the prosecutors. This conduct by the police and prosecutors could only have been deliberate and, so much so, that even the exonerating evidence was used in such a manner as to create a materially misleading impression.
The prosecutors and officer Amy Parker Heeter, the state's expert on trace metal test, also misled the defense attorneys concerning the trace metal detection test results. Specifically, Guerra's attorneys were not shown or told what the true results of the trace metal detection test were. The prosecutors told the defense attorney only that the test had been positive as to Carrasco's handling of officer Harris' weapon and negative for the murder weapon. According to the defense attorneys, this statement led them to conclude that only one trace metal pattern was found on Carrasco's hands, that of officer Harris' weapon.[9] This was a half-truth.
In fact, the trace metal pattern matching officer Harris' weapon was on Carrasco's right hand. There were also trace metal patterns found on Carrasco's left hand. This revelation could have been utilized by the defense to impeach the expert's testimony and/or impeach the state's theory of the case, that Guerra was the shooter and had, during the course of escaping, returned Carrasco's weapon. More importantly, armed with this knowledge, Guerra's attorneys may have hired their own trace metal expert who could have testified that the trace metal patterns on Carrasco's left hand were consistent with the patterns left by the nine-millimeter weapon found under his body after he was shot and killed by the police.
The state failed to disclose that there were any trace metal patterns on Carrasco's left hand, even though they knew that they, arguably, matched the nine-millimeter weapon. Although the police were told, repeatedly, that the shooter fired the weapon with his left hand, there is no meaningful record of any efforts to identify the trace metal patterns on Carrasco's left hand. The police and prosecutors had a duty to eliminate Guerra as the shooter, if the evidence supported it.
Floyd McDonald, a ballistics expert, testified at the evidentiary hearing that when held and fired, the murder weapon left a discernible trace metal pattern in less than 60 seconds. He testified that neither sweat nor normal washing with soap and water would remove the pattern. Rubbing one's hands with sand or dirt, with less than sustained vigor, would not remove such a pattern. Police records reflect that the police believed that the dirt found on Guerra's hands, when he was arrested, came from his having been on the ground being searched by the police after his arrest. Although the ground was damp from a light rain, contact with the ground would not have erased any trace metal on his hands.
McDonald also testified that the two trace metal patterns found on Carrasco's left hand after his death are consistent with both the type of trace metal pattern left by firing the nine-millimeter weapon and Perez's testimony that Carrasco dropped and retrieved a gun as he ran past him. This dropping and retrieving of the weapon accounts for the double trace metal image found on Carrasco's left hand. It is undisputed that Guerra had no trace metal of any sort on either hand or on his body. So the testimony of Heeter, that the metal comprising officer Harris' weapon does not easily leave trace metal patterns, was a "red-herring." It was of no *635 evidentiary value to the trial and was designed merely to confuse the jury.
The state's theory, that both defendants laid their weapons on the front seat in the vehicle and somehow did not realize that they had exchanged weapons until they met later at which time they switched weapons, in the face of this physical evidence, is beyond belief, particularly when the theory does not rise above the level of speculation.
This evidence, even if it were concealed from the prosecution by the police, is imputed to the state prosecutors because the evidence was material and critical to the case and because an inquiry would have revealed it to them. Williams v. Griswald, 743 F.2d 1533, 1542 (11th Cir.1984); United States v. Antone, 603 F.2d 566, 569 (5th Cir.1979). By dealing in half-truths and innuendo and by suppressing evidence that was favorable and material to Guerra's defense, the prosecutors violated Guerra's right to a fair trial. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97.
The Court concludes that, but for the conduct of the police officers and the prosecutors, either Guerra would not have been charged with this offense or the trial would have resulted in an acquittal. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383-84.
VI.
Prosecution's Use of Known False Evidence And Known Illegitimate Arguments at Trial
Next, the petitioner asserts that the prosecutor used known false testimony and illegitimate arguments in the trial and closing arguments. In this regard, the petitioner asserts that: (a) the prosecutors solicited and encouraged Garcia and Perez to overstate or understate the facts; (b) the prosecutors injected false statements concerning the character of Heredia, the 14 year old, when they accused him of being either drunk or having "smoked something" because he yawned during his testimony; and (c) the prosecutors questioned Heredia about an alleged murder at the cemetery, near the shooting scene knowing that it was a yarn spun by the children.
The Court has previously stated the facts surrounding the testimony of Garcia and Perez and will not restate the fact here. Suffice it to say that the knowing use of false testimony by the prosecutors violates a defendant's "due process" rights under the Fifth and Fourteenth Amendments. See Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959). The Court finds that such violations are abundant in the record.
The prosecutors also committed misconduct by deliberately and knowingly putting into the mouths of witnesses words that the witnesses had not said and did not believe to be true. This was accomplished by persistently cross-examining those witnesses on a false basis and by making improper insinuations and assertions calculated to mislead the jury and discredit unfavorable testimony. During the course of the testimony, the prosecutor inserted in his questions inaccurate statements from Diaz's testimony that were prejudicial to Guerra. The question and answer is as follows:
Q. You say you saw this one man and your saw him "pointing." Was he pointing toward or in the direction of the police car or the police officer?
A. Uh-huh, the direction of the police car.
On no less than five (5) other occasions, the prosecutor included within the question, an incorrect statement of the witness' prior testimony. He repeatedly used the phrase "pointing at the police officer."[10] The use of this untrue information was material and detrimental to Guerra's defense. United States v. Williams, 504 U.S. 36, 59-61, 112 S. Ct. 1735, 1749, 118 L. Ed. 2d 352 (1992) (quoting Berger v. United States, 295 U.S. 78, 84-85, 55 S. Ct. 629, 631-632, 79 L. Ed. 1314 (1935)).
Regarding the questions to Heredia about alcohol and drugs, the prosecutor asked him if he was drunk or had smoked anything. These questions were designed to strike down the young boy because he would dare testify contrary to the prosecutor's case *636 theory. In closing argument, the prosecutor argued to the jury that Heredia was under the influence of either alcohol or narcotics. This improper conduct is rank ridicule and intimidation utilized to its consummate when any witnesses did not testify to this state's liking.
The petitioner also complains about the trial testimony of officer Jerry Robinette. After J. Luna testified that Carrasco had arrived at their home brandishing both the nine-millimeter weapon and officer Harris' weapon, the state called officer Robinette. Officer Robinette testified that J. Luna and Esparza had told him that they were not home in and around the time that the shootings had occurred because they had left earlier and did not return until around 11:30 p.m., when they were questioned. Even if this is true, the testimony is of no value because they were there when Carrasco arrived later.
Officer Robinette's testimony is inconsistent with J. Luna's trial testimony and also with police reports showing that both J. Luna and Esparza were home when Carrasco and Guerra left as well as when they returned later that night. The police reports[11] show that officer Antonio Palos questioned J. Luna at 4907 Rusk just before Carrasco was killed. In spite of this knowledge, the prosecutor argued that J. Luna and Esparza had lied when they testified that they were at 4907 Rusk when Carrasco returned.
Both prosecutors claimed as fact, in closing argument, that five eyewitnesses, who had not conferred with each other, told the police that Guerra killed officer Harris and Mr. Armijo and had identified Guerra at the lineup. Both prosecutors knew that this was factually incorrect because at least one of the prosecutors was at the scene shortly after the shooting and participated in the gathering and interviewing of witnesses. Moreover, both had participated in the reenactment and the pretrial weekend meeting where the various statements of the witnesses were discussed and conformed.
The petitioner also urges, and legitimately so, that there was no justification for informing four jurors, during voir dire, that he was an "illegal alien" and that this fact was something that the jurors could consider when answering the punishment special issues. According to the prosecutors, this fact could help in a determination of whether Guerra should received a life sentence or the death penalty.
The "offense" of unlawful entry into the United States is irrelevant to the issue of a defendant's propensity for future violent and dangerous criminal behavior. No proof was offered that illegal aliens are more prone than citizens to commit violent crimes. Guerra was entitled to have his punishment assessed by the jury based on consideration of the mitigating and aggravating circumstances concerning his personal actions and intentions, not those of a group of people with whom he shared a characteristic. Zant v. Stephens, 462 U.S. 862, 878-79, 103 S. Ct. 2733, 2743-44, 77 L. Ed. 2d 235 (1983).
The prosecutors also appealed to the jury to "let the other residents at 4907 Rusk ... know just exactly what we citizens of Harris County think about this kind of conduct...." This appeal went beyond arguments seeking law enforcement to improperly play to the jury's prejudice by painting all the residents at 4907 Rusk with the broad brush of shared responsibility for the death of officer Harris. Thus, they were in need of being taught a lesson. This "us" against "them" argument is also nothing more than an appeal to ethnic or national origin prejudice which is constitutionally impermissible. McCleskey v. Kemp, 481 U.S. 279, 309 n. 30, 107 S. Ct. 1756, 1776-77 n. 30, 95 L. Ed. 2d 262 (1987); see also McFarland v. Smith, 611 F.2d 414, 416-17 (2d Cir.1979); United States v. Doe, 903 F.2d 16, 24-25 (D.C.Cir. 1990); see United States ex rel. Haynes v. McKendrick, 481 F.2d 152, 157 (2d Cir.1973).
The petitioner's claim of denial of "due process" did not end with the police and the prosecutor, it continued into the Court process. It is asserted that the inaccurate *637 translations of the witnesses' testimony from Spanish to English by the court interpreters prevented a fair trial. The first interpreter, Linda Hernandez, was removed after one of the jurors complained that she was interpreting inaccurately. The second court interpreter, Rolf Lentz, acted inappropriately by making jokes and adopting an improper casual manner, while communicating with several defense witnesses in Spanish. Much of this went unchecked by the court.
The petitioner also questions the propriety of an experienced prosecutor questioning a witness about the witness' participation in a crime that the witness was not under investigation for and had not been criminally charged. One of Guerra's roommates, who testified in Guerra's defense, was questioned about his "participation" in a robbery that the prosecutors well knew had not resulted in a charge. Yet, it was done, in all likelihood, to affect the judgment of the jury in determining the witnesses' credibility. This knowing false accusation by the prosecutors violated Guerra's "due process" rights because the question was not a proper question, even on character.
This type of deliberate violation of oath as a prosecutor and violation of the rules of evidence is incompatible with the rudimentary demands of justice and fair play. This principle remains true even when the state, though not soliciting false evidence, allows it to go uncorrected. Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 765-66, 31 L. Ed. 2d 104 (1972).
VII.
Cumulative Effect of Prosecutorial Error
Finally, the petitioner contends that the cumulative effect of the errors made by the trial court and the prosecutors resulted in an unfair trial. Because the state court, in considering the petitioner's petition for writ of habeas corpus, found no waiver of error, there is no bar to considering the errors found in a cumulative error analysis. Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir.1992) (en banc), cert denied, ___ U.S. ___, 113 S. Ct. 2928, 124 L. Ed. 2d 679 (1993). When the errors of the state infuse a trial with such prejudice and unfairness as to deny a defendant a fair trial, due process has not been enjoyed. Id.
Here, the extent of the prosecutorial misconduct is legion. The number of instances of misconduct as well as the type and degree compel the conclusion that the cumulative effect of the prosecutors' misconduct rendered the trial fundamentally unfair. There is no doubt in this Court's mind that the verdict would have been different had the trial been properly conducted. Kirkpatrick v. Blackburn, 777 F.2d 272, 278-79 (5th Cir. 1985), cert. denied, 476 U.S. 1178, 106 S. Ct. 2907, 90 L. Ed. 2d 993 (1986).
CONCLUSION
The police officers' and the prosecutors' actions described in these findings were intentional, were done in bad faith, and are outrageous. These men and women, sworn to uphold the law, abandoned their charge and became merchants of chaos. It is these type flag-festooned police and law-and-order prosecutors who bring cases of this nature, giving the public the unwarranted notion that the justice system has failed when a conviction is not obtained or a conviction is reversed. Their misconduct was designed and calculated to obtain a conviction and another "notch in their guns" despite the overwhelming evidence that Carrasco was the killer and the lack of evidence pointing to Guerra.
The police officers and prosecutors were successful in intimidating and manipulating a number of unsophisticated witnesses, many mere children, into testifying contrary to what the witnesses and prosecutors knew to be the true fact, solely to vindicate the death of officer Harris and for personal aggrandizement. The cumulative effect of the police officers' and prosecutors' misconduct violated Guerra's federal constitutional right to a fair and impartial process and trial.
Therefore, the petitioner's Writ of Habeas Corpus is GRANTED, the conviction and judgment are set aside.
It is ORDERED that the Writ of Habeas Corpus is conditionally granted unless the state begins retrial proceedings by arraigning the petitioner within thirty days from the *638 date this order becomes final. If the state does not complete the arraignment within the allotted time, the petitioner shall be released from custody.
NOTES
[1] These characteristics and features are important because the identity of the "shooter" was in dispute.
[2] During Diaz' testimony the prosecutor, on several occasions, altered the testimony by question and reaffirmed it again and again. For example:
Q. "Could you see or make out, Patricia, what type of object, if anything, this man had in his hand?" (p. 314, L. 6)
Q. "Could you see which way this man went after he pointed at the police officer like you have shown the jury ...? (p. 315, L. 2)
Q. "Now, could you describe this man you saw pointing at the police officer ...?" (p. 316, L. 12)
Q. "Does that look a lot better, like the way he looked that night he was pointing at the police officer?" (p. 318, L. 4).
The record shows that Diaz never saw either man pointing at the police officer, only at the car. Further, she never saw any object. See also text accompanying note 10 at pp. 40-41 infra.
[3] The statement referred to by the prosecutor states in relevant part:
"This evening sometime after 10:00 p.m. my sister and me (sic) were going to the store.... My sister and I was (sic) walking down the sidewalk when I remembered that I had left my money.... I ran home to get my money.... When I got back to my sister we saw this black car turn off of Walker on to Lenox street rear (sic) fast.... As the car was getting ready to back up a police car ... pulled in behind it."
"... [H]e told the men in the black car to get out of the car.... Both men came out of the car on the driver's side.... [H]e told them to put their hands on the hood...."
"Before I got a chance to move I saw this guy with the blond hair reach into the front of his pants and pull out a pistol and shoot the policeman.... The man with blond hair came after me shooting at me.... [H]e then shot the man in the read (sic) car." [Mr. Armijo]
"... I did not get to see the other man and I do not know what happened to him ... the man that shot the policeman ... was wearing brown pants and a brown shirt that was open all the way down."
[4] Mr. Armijo was still alive during this time and was kept at the scene, according to police, because they thought that he had shot officer Harris. This delay by police quite possibly resulted in the death of a key witness.
[5] Diaz's first statement, given at 1:40 a.m., described the shooter as a Hispanic male with "collar length black hair and was wearing a long sleeve, dark colored shirt." By the time Diaz gave her second statement she was unsure which of the men had shot the officer. For sure she did not know whether Guerra even had a weapon.
[6] It was argued by the state that Jose, Jr. became fearful when he saw Guerra and did not want to tell all that he knew. It was later, when he had gathered himself that he had the courage to come forward. However, the court had the benefit of a news clip in which Jose, Jr. was featured and related the incidents to the news media the day after the shooting.
[7] Richard Bax, one of the prosecutors in the 1982 trial, conceded "the physical evidence ... totally pointed towards Carrasco Flores as being the shooter...."
[8] Floyd E. McDonald, formerly head of the forensic lab for Houston Police Department, the department where Amy P. Heeter worked, testified that the description by Perez of what occurred on that evening concerning the dropping of the weapon, is consistent with the marks that he found on the weapon. Moreover, the positioning of the parties leads to the conclusion that the person whose hands had been placed on the hood of the vehicle was not the shooter. The shooter, because of the location of the bullets found after the shooting, would have stood east of the police officer and the other person. The bullets lodged in the house on the northwest corner of Walker and Edgewood. Officer Harris' vehicle was parallel to this house.
[9] It should be noted that during the testing of the nine-millimeter pistol Heeter held it in her left hand, as was observed and reported about Carrasco by the witnesses. Yet, she failed to disclose that trace metal was found on Carrasco's left hand.
[10] See also note 2 at pp. 7-8, supra.
[11] These reports were not produced or made available to the defendant, pretrial, pursuant to the defendant's discovery request. |
9,645,540 | 2023-08-22 21:28:02.347133+00 | null | null | OPINION OF THE COURT
Appellant was convicted of wanton murder committed during the course of an attempted robbery. While police were investigating appellant’s involvement in another crime, he confessed to them that he had committed the murder and consented to the taping of his confession. At trial appellant pleaded not guilty and objected to the admission in evidence of the confession.
The trial court, after a hearing, ruled that the confession was voluntary and admitted it in evidence. Appellant then sought to introduce evidence concerning the circumstances under which the confession was obtained. The trial court refused to admit such evidence, and it was placed in the record by avowal.
On appeal appellant maintained that the circumstances under which his confession was obtained should have been admitted in evidence because they would have some bearing on the credibility of his confession.
The testimony which was not admitted into evidence was placed in the record by avowal. It consisted of the testimony of two police officers as follows:
“MR. JEWELL: At this time, we would like to put on our avowal evidence, Judge, which we reserved at trial, that being Detective Branham.
“THE COURT: Please take the stand, Detective.
“MR. JEWELL: And we’d also have Detective Burbrink. I’ll not ask that he be separated since this is going in by avowal.
“THE COURT: Detective, you remain under the same oath as was previously administered to you. This evidence is offered into the record by way of an avowal, it having been ruled by the Court that it is not appropriate to have it brought before the jury.”
AVOWAL TESTIMONY OF DETECTIVE WAYNE BRANHAM
“BY MR. JEWELL:
*303“Q 1 Again, state your name.
“A Detective Wayne Branham.
“Q 2 Detective Branham, you were involved in the taking of the statement from the Defendant, Major Crane, were you not?
“A Yes sir.
“Q 3 On August 14th, did you receive a call from the City Police to meet them somewhere in reference to Major Crane?
“A Yes sir, I did.
“Q 4 About what time was this?
“A I believe it was about 6:50. I didn’t bring my report up with me.
“Q 5 And where did you meet the city police at?
“A I first met the city police at the Louisville Police Department Youth Bureau and I proceeded over to the Youth Center.
“Q 6 Did you talk with the Defendant, Major Crane, at the Youth Bureau?
“A No.
“Q 7 Did you talk to him at the Detention Center?
“A Yes sir, I did.
“Q 8 Did you arrive there at approximately 7:00 o’clock?
“A That would probably have been about the correct time, yes sir.
“Q 9 And you then began questioning or talking with Major Crane at that time?
“A Yes sir.
“Q 10 Now you took a waiver of rights at 7:45, correct?
“A Yes sir, I believe so.
“Q 11 And the recorded statement did not begin until 7:50, correct?
“A That is correct.
“Q 12 When you were at the Youth Center with Major Crane, were any of the social workers at the Youth Center present with him during your questioning?
“A During the questioning, no sir.
“Q 13 Was any member of his family present?
“A No sir.
“Q 14 Was anybody present besides Major and the police officers?
“A No sir, there was not.
“Q 15 The room in which you did this questioning at the Youth Center, about how big was it?
“A It is a small office. I’ll estimate it at maybe probably 10' x 10' maybe.
“Q 16 And you were present at the questioning?
“A Yes sir.
“Q 17 And Detective Milbum?
“A Yes sir.
“Q 18 Detective Burbrink?
“A Yes sir.
“Q 19 Detective Highland?
“A Yes sir.
“Q 20 And was there any other persons present?
“A I believe Sergeant Cummings was in the room too, with the Louisville Police Department.
“Q 21 And while you all were in this office, did you have the door open or closed?
“A Sir, I don’t recall whether it was open.
“Q 22 Does this office have any windows in it?
“A No sir.
“Q 23 And this is the office where you first started talking a little after seven until the statement ended at 8:40, correct?
“A That is correct. That was our office that was given to us there by the workers at the Center.
“Q 24 No worker from the Center stayed in there for the questioning, correct?
“A No sir.
“Q 25 Did you request that one stay in there?
“A No sir.
“Q 26 At any time, did you see Major Crane use the phone to call a family member?
“A No sir.
“Q 27 At any time, did you, yourself, talk to the mother of Major Crane that evening?
“A That evening?
“Q 28 While questioning was going on.
“A No sir.
*304“Q 29 Say prior to 8:40?
“A No sir.
“MR. JEWELL: I have no further questions.”
EXAMINATION OF DETECTIVE BRANHAM ON AVOWAL BY MR. DAVID STENGEL
“Q 1 Sir, how was Major Crane being treated during the time you were there?
“A He was treated well. I think at one point, we asked him if he wanted a drink. He was seated at a table, as I recall, or a desk-type table.
“Q 2 Did you get him any sort of soft drinks, potato chips, anything like that?
“A I know he was asked. I don’t remember whether he requested one. If he did, I am sure he got one but I don’t remember.
“Q 3 Would you describe his demeanor at the time.
“A His demeanor was he was calm at the time. It was just a conversation-type situation.
“Q 4 Were you all seated, standing? What was the scene in there? Did you all have enough chairs to go around?
“A As I recall, I was seated and I believe there was a couple of more chairs. I don’t remember the exact arrangements. There may have been one or two officers standing.
“Q 5 Had you had any discussion prior to the time you started tape recording that statement?
“A With?
“Q 6 With Crane.
“A I talked to him briefly before but we went right into the recording.
“Q 7 Were any threats, promises, or anything else made to him there at that time?
“A No sir.
“Q 8 Are you aware of attempts to contact his family?
“A I am not aware, no sir. The workers there at the Center may have been attempting to contact them. I don’t know.
“Q 9 At one time, he requested that he go to the restroom, is that correct?
“A That is correct.
“Q 10 And did he go?
“A Yes sir, he did.
“Q 11 In your presence, was he abused, threatened or anything else in any way?
“A No sir, he was not.
“MR. STENGEL: Thank you, sir.
“MR. JEWELL: I have no further questions.
“THE COURT: Thank you, you may stand down. Other avowal evidence? “MR. JEWELL: Detective Burbrink. “THE COURT: Detective, you remain under the same oath as was previously administered to you.”
AVOWAL TESTIMONY OF DETECTIVE DON BURBRINK
EXAMINATION BY MR. JEWELL:
“Q 1 Please state your name for the record, please.
“A Detective Donald Burbrink, Louisville Division of Police, Fourth District.
“Q 2 Detective Burbrink, what is the first time you came in contact with Major Crane on August 7th?
“A Approximately 1752 hours, 5:52 in the afternoon.
“Q 3 5:52 p.m.
“A Yes sir.
“Q 4 And you all remained at the substation for awhile after that, did you not?
“A We left the substation at 1825. So by the time we got into the district, it was about 1800 or six o’clock, 6:00 p.m. So we were there approximately 25 minutes or enough time for me to type up a slip.
“Q 5 And then you took him to the Youth Bureau which is in Louisville Police Headquarters, correct?
“A Yes sir.
“Q 6 And how long did you remain there?
“A According to my time, we arrived there at 1838 and we left there at 1859.
*305“Q 7 Then you proceeded to the Youth Center, correct?
“A Yes sir.
“Q 8 Where upon arrival after you all went into the Youth Center, you all went to a room for questioning, correct?
“A Correct.
“Q 9 And you had called the County to come meet you at the Youth Bureau, correct?
“A Yes sir.
“Q 10 Now when you arrived at the Detention Center, the room that you went to, was it down a hall from the admissions area?
“A There is a long desk there in the admission area. There is a doorway there. You come out the door; you go to your left and it is about 10 yards down the hall.
“Q 11 And this room — would you agree with the description we had of about 10' x 10' perhaps?
“A 10' X 10', 12' x 12', something like that, yes sir.
“Q 12 And this room had no windows?
“A That is correct.
“Q 13 And during questioning, I am talking about from this time until the tape recorded statement ended at 8:40, was anybody else allowed in? Did anybody else come into the room besides Major Crane and the police officers?
“A No sir, Detective Highland went back and forth getting Major some soft drinks and potato chips, etc., but nobody else entered, no sir.
“Q 14 No worker, no family member, nobody else?
“A No sir.
“Q 15 And you were aware at this time that Major Crane was 16 years old, correct?
“A Yes sir.
“MR. JEWELL: I have no further questions.”
EXAMINATION BY MR. STENGEL:
“Q 1 Sir, did you make any attempts to contact Major Crane’s family?
“A Yes sir, I did, several times. When we first picked him on up and brought him to the Fourth District Substation, I tried to call the mother. I talked to an aunt at that time and told her what was going on with his charges, etc., and where he could be found and she said she would contact the mother and bring her to the Detention Center. I told her about what the timing would be. I called back again at 1912 when we first arrived at the Detention Center and there was no answer at home. And at that time, I assumed the mother and aunt were on the way. We left specific instructions with the people at the front desk, if the mother of Major Crane or an aunt or any family member were to come in, to take them back to the room where we were questioning him.
“I called again before the statement started at 1945 and again there was no answer. After the statement, we tried repeatedly to call and finally talking to his grandmother later on.
“Q 2 Do you have a list of the repeated lies there?
“A Yes. Seven attempts of calling from 2043 until 2128.
“Q 3 And you say Detective Highland was coming and going with soft drinks, etc. for Major?
“A Yes.
“Q 4 Did Major express any sort of discomfort or fear or any other negative feelings while you all were talking to him?
“A No sir.
“Q 5 Describe his demeanor and his— well, first, his demeanor.
“A He was calm just like you or I sitting here, just matter of fact about everything.
“Q 6 Could he be described as talkative?
“A Oh, he was definitely talkative.
“Q 7 You talked about a considerable amount of things other than simply this offense, isn’t that correct?
“A Yes sir, that is correct.
*306“Q 8 And that was freely given or apparently freely given from Major to you?
“A Yes sir.
“Q 9 Do you remember any requests that Major made that weren’t acted upon or weren’t granted?
“A None whatsoever.
“Q 10 Any requests to call home?
“A No sir, never requested to call home or requested to call anybody.
“MR. STENGEL: Okay, thank you, sir.”
REEXAMINATION BY MR. JEWELL:
“Q 1 Detective Burbrink, when you talked to the aunt over the phone, did you tell her that Major was being questioned in regards to a murder charge?
“A He was not being questioned about a murder charge at that time, sir; so we did not have any reason to tell her that.
“Q 2 So as far as you know, at least from yourself, the family did not learn that he was being questioned on a murder charge prior to the statement, correct?
“A That is correct, yes sir.
“MR. JEWELL: I have no further questions.
“THE COURT: Will counsel for the Defendant state upon the record again the purpose of this avowal..
“MR. JEWELL: The purpose of the avowal, Judge, was earlier today, the Commonwealth moved by motion in limine that we not be allowed to go into the facts and circumstances surrounding the confession, such as how long the young man was in police custody, the fact that he had nobody there with him, since they felt that was heard at the suppression hearing and should not be heard in open court. We then stated we felt we had a right to ask the police officers those specific questions as it went to both voluntariness and credibility to be given a confession by a 16-year old in police custody at least a couple of hours with no family member present. The Court sustained the Commonwealth’s motion, overruling our objection. Therefore, we felt we had to get this evidence in by avowal.”
On appeal to this court, no issue was raised as to the ruling of the trial judge as to the voluntariness of the confession. The attack was centered solely on the claim that the excluded evidence was admissible not on the question of the voluntariness but upon the issue of the credibility of the confession.
We concluded that the length of time of questioning, the number of police officers engaged in the questioning, the size of the room in which the questioning took place, and factors of like import would pertain to the credibility of the confession only to the extent that such factors might indicate coercion, ergo involuntariness, and since voluntariness was not a jury issue, the evidence was properly excluded. We affirmed the judgment.
The United States Supreme Court reversed, holding that the excluded evidence was admissible on the issue of the credibility of the confession. The court held, however, that the error is subject to harmless error analysis and remanded to this court for a determination of that matter. Crane v. Kentucky, 476 U.S.-, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986).
In his confession, the appellant made statements which were demonstrably untrue. He said he used a .357 magnum weapon, but the weapon used in the robbery was a .32 caliber pistol. He said he fled from the premises when the owner activated an alarm which created a lot of noise. In fact, the store did not have an alarm system. He said, in his confession, that the robbery occurred in the afternoon during daylight and that $300.00 was taken, when in fact an attempted robbery took place after 10:00 p.m. and no money was reported missing.
These discrepancies might reasonably reflect upon the credibility of the confession, and the defense was allowed to show all these discrepancies. The record further discloses that portions of the excluded testimony came before the jury from other sources.
*307The jury heard testimony that the appellant was questioned by several police officers. The appellant was present at trial, and the jury could observe his youth and appearance. The approximate time of his arrest and the time the officers commenced taping his statement was before the jury.
In the opening statement to the jury, appellant’s counsel claimed the appellant was brought to the detention center for questioning at 7:20 p.m. and was turned over to the custody of the center at 9:00 p.m.
The excluded evidence would have added this additional information from Detectives Burbrink and Branham: that appellant was arrested at 5:50 p.m. and remained at the police substation until 6:25 p.m., just long enough to type up some papers; that appellant was then transported to the youth bureau in Louisville police headquarters, arriving there at 6:38 p.m.; that at 6:59 p.m. he was taken to the detention center where he was met by county officers; that he was questioned in an office approximately 10' X 10' or 12' x 12' square at the detention center until approximately 7:50 p.m., when a recorded statement was taken which ended at 8:40 p.m.; that no member of his family was present, but officers repeatedly attempted to get in contact with his mother and did get in touch with his aunt and requested the family to come to the detention center; that nobody entered the office when appellant was questioned except four or five officers; that one of the officers was in and out of the room getting soft drinks and potato chips for appellant; that appellant was seated during the questioning; that he appeared calm; that the questioning was a conversational-type situation; and that appellant was treated well.
An uncle of appellant who was a participant in the robbery gave a statement to the police that appellant attempted the robbery and shot the store clerk. Geraldine Crane, the mother of appellant, in referring to a conversation with her son, stated to the investigating officers, “He said that he robbed, he killed, he shot a man, but he didn’t know the man was dead until yesterday.” She denied at trial, however, that appellant told her he shot a man.
The test for harmless error is whether there is any reasonable possibility that absent the error the verdict would have been different. Commonwealth v. McIntosh, Ky., 646 S.W.2d 43 (1983). Because the test is phrased in terms of “reasonable possibility,” an error of constitutional proportions must be shown to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967). The question here is not whether the jury reached the right result regardless of the error, but whether there is a reasonable possibility that the error might have affected the jury’s decision.
This jury had knowledge of the many inconsistencies in appellant’s confession, and were aware of appellant’s youth and the fact that he had been questioned by four or more police officers at police headquarters. None of this knowledge caused the jury to discredit appellant’s confession.
In view of the incriminatory testimony of appellant’s uncle and mother, it is inconceivable to us that the jury would have reached any other result in this case had they had the additional testimony concerning the exact length of time appellant was questioned; the exact size of the office where the questioning took place; that none of his family was present, although efforts were made to secure their presence; that appellant was provided with soft drinks, etc.; was questioned in a conversational tone; and treated well by the officers.
It is our view that beyond a reasonable doubt there is no reasonable possibility the verdict of the jury would have been different had the erroneous exclusion of evidence not occurred.
The judgment is affirmed.
STEPHENS, C.J., and GANT, VANCE, and WINTERSHEIMER, JJ., concur. *308LEIBSON, J., dissents by separate attached opinion in which LAMBERT, J., joins. STEPHENSON, J., not sitting. |
9,645,541 | 2023-08-22 21:28:02.352712+00 | Leibson | null | LEIBSON, Justice,
dissenting.
Respectfully, I dissent.
I was the lone dissenter when Crane’s appeal was originally heard in the Kentucky Supreme Court, and his conviction affirmed. The reason for my dissent was that the trial court had improperly suppressed evidence offered to show circumstances of “intimidation surrounding the taking of the confession, ... relevant to its credibility.” 690 S.W.2d 753, 755. The trial judge’s decision that the confession was not coerced, made when he decided to admit it, did “not preempt the jury’s need to consider evidence about coercion in deciding guilt.” Id.
The offered evidence, which was heard at the suppression hearing but suppressed at the trial, served multiple purposes, because the same evidence was relevant to both voluntariness and credibility, and thus “should be admitted when offered for the proper purpose.” Lawson, Kentucky Evidence Law Handbook, § 1.10(A) (2d ed. 1984).
The United States Supreme Court, with a rare showing of unanimity in the decision of a criminal constitutional law question, reversed the Kentucky Supreme Court, applying the same principles and reasoning set out in my previous Dissenting Opinion. See Crane v. Kentucky, 476 U.S. —, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). As stated in the United States Supreme Court’s decision:
“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528 [2532], 81 L.Ed.2d 413 (1984); ... That opportunity would be an empty one if the state were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence.” At _, 106 S.Ct. at 2146, 90 L.Ed.2d at 645.
However, rather than remanding this case back to the trial court for a new trial, the United States Supreme Court elected to remand this case back to the Kentucky Supreme Court for “harmless error analysis.” Id. at -, 106 S.Ct. at 2147, 90 L.Ed.2d at 646. The Court’s decision to do this is rather strange when we consider this statement in its opinion:
“We do, however, think it plain that introducing evidence of the physical circumstances that yielded the confession was all but indispensable to any chance of [Crane’s defense] succeeding.” Id. at -, 106 S.Ct. at 2147, 90 L.Ed.2d at 645.
The Commonwealth had contended in the United States Supreme Court that “the very evidence excluded by the trial court’s ruling ultimately came in through other witnesses.” Id. at-, 106 S.Ct. at 2147, 90 L.Ed.2d at 646. Rather than examine this contention, the United States Supreme Court remanded this case back to our Court to do so.
Since we are confronted with trial error of constitutional magnitude, “harmless error analysis” puts the burden on the Commonwealth to prove that excluding the evidence was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Considering that the evidence excluded was admittedly critical to the defense, its exclusion could hardly be harmless beyond a reasonable doubt unless the same evidence was elsewhere presented to the jury, and in an equally comprehensible form. Such is not the case.
On the contrary, as presented to the jury the evidence concerning the circumstances surrounding the taking of Crane’s confession was partially incomplete, and confusingly presented. Defense counsel had made this point, coercion in the circumstances surrounding the taking of the confession, the principal thrust of his opening statement. After the trial court ordered the evidence suppressed, the jury was left with the impression that the defense was left with a failure of proof. When a jury is told in opening statement what a lawyer *309expects to prove, and he subsequently fails to prove it, this significantly affects the credibility of his entire case. A.S. Julian, Opening Statements, Ch. 2, § 2.03.50 (cum. supp. 1985).
The defense proposed to prove that Crane was a sixteen year old boy who was questioned nearly two hours by five police officers in a small 10' x 10', windowless room in the absence of any family member or social worker. He was questioned about a number of crimes, and a number of things that he stated in his confession as to the present crime were demonstrably untrue. The confession was in error about the type of weapon actually used, about the setting off of an alarm system when there was no alarm system, and about the robbery occurring in daylight hours when in fact it happened at 10:00 p.m. Additionally, in the confession Crane stated that he got $400 in the robbery, when the evidence was that no money was taken.
The evidence related to the boy’s age and the circumstances of his questioning, which supposedly renders the suppression of the avowal evidence harmless, came in only tangentially and by inference. It omitted details and it fell far short of a complete picture of the circumstances of the interrogation as the defendant wished to present them.
In summing up the opinion, the majority opines, “[i]n view of the incriminatory testimony of appellant’s uncle and mother, it is inconceivable to us that the jury would have reached any other result in this case had they had the additional testimony....” However, the evidence introduced during trial from these witnesses to corroborate Crane’s confession was brought out in conflicting testimony with numerous denials.
This in no way suggests that I believe that Crane’s confession was coerced, that it lacked credibility, or that Crane is not guilty. But this is not our decision to make. Crane was entitled to present this claim of coercion in as clear and comprehensible a fashion as the law of evidence permits. It is for the jury to pass on its credibility in deciding the question of his guilt. Crane did not get this chance.
I dissent.
LAMBERT, J., joins in this dissent. |
9,645,542 | 2023-08-22 21:28:03.662109+00 | Davis | null | OPINION
W.C. DAVIS, Judge.
This is an appeal from a conviction for the offense of capital murder. The punishment is death.
The appellant contends that the trial court erred in overruling his motion for new trial. He asserts that the State selectively discriminated against him in violation of the due process and equal protection clauses of the Fourteenth Amendment by prosecuting him for capital murder. The appellant contends that he was sexually discriminated against since females in similar situations received more lenient treatment.
At a hearing on the appellant’s motion for new trial, three attorneys, who had practiced criminal law in the county, testified. One of them stated that he felt it was the prosecution’s practice to seek greater penalties for men than women. Another stated that it was his experience that females got better deals than males. Finally, appellant’s counsel testified that in every case he had seen where the co-defendants are male and female, the female always got the better deal. The State presented no evidence.
In order to establish a constitutional violation by the selective prosecution of a defendant, it is necessary to show more than mere unequal application of a state statute. As the Supreme Court stated in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 466 (1962): Therefore, it is necessary that the accused show an intentional or purposeful discrimination in the enforcement of the statute against him. A discriminating purpose will not be presumed; a showing of clear intentional discrimination is required. Armendariz v. State, 529 S.W.2d 525 (Tex.Cr.App.1975); S.S. Kresge Co. v. State, 546 S.W.2d 928 (Tex.Civ.App., Dallas, 1977); Super X Drugs of Texas, Inc. v. State, 505 S.W.2d 333 (Tex.Civ.App., Houston, 1974); Enntex Oil and Gas Co. (of Nevada) v. State, 560 S.W.2d 494 (Tex.Civ.App., Texarkana, 1977). The appellant has failed to show actual or purposeful discrimination. His ground of error is overruled. Also see U.S. v. Hayes, 589 F.2d 811 (5th Cir.1979); U.S. v. Heilman, 614 F.2d 1133 (7th Cir. 1980); U.S. v. Diggs, 613 F.2d 988 (D.C.Cir. 1979); U.S. v. Larson, 612 F.2d 1301 (8th Cir.1980); U.S. v. Choate, 619 F.2d 21 (9th Cir.1980).
[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case imply a policy of selective enforcement, it was not stated that the selection was deliberately had upon an unjustifiable standard such as race, religion, or other arbitrary classifications. (Emphasis added)
In two grounds of error the appellant argues that the trial court erred by refusing his challenge for cause to a prospective juror. The appellant contends that this prospective juror admitted having a bias or prejudice against a law upon which the defense was entitled to rely. See Art. 35.16(c)(2) V.A.C.C.P. Appellant argues that the juror had a bias against allowing a defendant not to testify or defend himself. During voir dire of venireman Mavis Corderman, the following occurred:
ON BEHALF OF THE DEFENSE BY MR. TAKAS:
Q. Now, you have heard people talk about presumption of innocence. The presumption of innocence that every person is presumed innocent until proven guilty, do you understand that concept or do you believe you understand that concept.
A. Yes, sir.
Q. So to say what it means is that I don’t have to say anything to disprove his guilt. I do not have to take any affirmative action to say I’m not guilty. I do not have to answer accusers because I’m innocent and the law presumes I’m innocent and the Consti*85tution of the State of Texas and United States of America says I am innocent and until they lift that cloak of innocence by fair and competent evidence. Do you have any quarrel with that concept?
A. You are telling me that in other words you don’t have to defend yourself.
Q. If you have a quarrel with that say it. My mother has a quarrel with it.
A. Well, I guess I do. I don’t know if I would call it quarrel, but—
Q. Do you have a bias against the law that says that the Defendant does not have to defend himself?
A. There again, I guess maybe I do. I haven’t thought about that.
Q. Okay.
MR. TAKAS: We challenge for cause, Judge. Bias or prejudice exists on the basic theory of law.
• THE COURT: Do you wish to inquire?
MR. HARRIS: Yes, sir.
* *****
ON BEHALF OF THE STATE
BY MR. HARRIS:
Q. There are a number of ways a defendant can defend himself. One of those ways can be merely asking questions of the witnesses against him, that being cross examination. I think the real question is the 5th Amendment to the United States Constitution says a person shall not be required to testify against himself or offer evidence against himself.
What that means is you will be instructed in a case where a defendant does not testify, you are instructed that you cannot and must not, first of all, it says you are instructed that the Defendant in this case has elected not to testify. You are instructed that you must not and you cannot consider that as any evidence against him. The mere fact that he did not testify. Do you think you could follow an instruction like that?
A. Yes.
THE COURT: What was your answer?
THE WITNESS: Yes. I don’t quite understand what he is saying.
THE COURT: Let me see if I can help you a little, Mrs. Corderman.
BY THE COURT:
Q. The Defendant doesn’t have to prove his innocence. We have talked about presumption of innocence.
A. Right.
Q. The State has the burden of proving his guilt which means they have to put on the evidence. He doesn’t have to put on anything. If he and his attorneys think it’s better for him to just sit there and see what they do, the law permits him to do that and you must reach your verdict based on the evidence that is offered, not the evidence that is not offered.
A. I think I can make a decision.
MR. TAKAS: Judge, I don’t think that is a correct statement.
THE COURT: I will overrule the challenge for cause. You may question.
MR. TAKAS: Note my exception for challenge for cause and you are overruling it.
Article 35.16(c)(2), supra, provides:
A challenge for cause may be made by the defense for any of the following reasons:
* * * * * *
(2) That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof on the punishment thereof.
In order to determine if a venireman was subject to a challenge for cause, we must examine the testimony given by the venireman on voir dire in its entirety. Evert v. State, 561 S.W.2d 489 (Tex.Cr.App.1978). In reviewing the testimony given above, we conclude that the appellant has failed to establish that the prospective juror was *86subject to challenge for cause pursuant to Art. 35.16(c)(2), supra. The testimony of the juror elicited from both the prosecution and the trial court indicate that the juror was capable of following an instruction that she would not consider the appellant’s failure to testify or present evidence as any evidence against him. The record does not support the appellant’s contention. See Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr. App.1978), cert. denied 441 U.S. 888, 100 S.Ct. 190, 62 L.Ed.2d 123; Simmons v. State, 594 S.W.2d 760 (Tex.Cr.App.1980); Barefoot v. State, 596 S.W.2d 875 (Tex.Cr. App.1980). Compare Pierce v. State, 604 S.W.2d 185 (Tex.Cr.App.1980); Cuevas v. State, 575 S.W.2d 543 (Tex.Cr.App.1978); Evert v. State, supra. His grounds of error are overruled.
The appellant in his next ground of error contends that the trial court erred in overruling his motion to suppress evidence seized by Officer Jackley. The appellant argues that a pistol, subsequently shown to be the murder weapon, was unlawfully seized.
Officer Jackley testified that he was a police officer with the Live Oak Police Department. On March 13, 1979, he was clocking the speed of automobiles with radar on a highway. At approximately 10:17 p.m., he noticed a vehicle traveling at eighty-two miles per hour. The officer immediately pulled behind the vehicle and turned on his overhead lights and emergency lights. The automobile did not stop but did slow down to about sixty-five miles per hour. The car was traveling in the left lane of a divided four-lane highway and no attempt was made by the driver to move over to the right lane. Officer Jackley flashed his high beams to attract the attention of the driver. He noticed that the passenger kept turning around to look back at him and that the driver kept adjusting the rear-view mirror. He stated that there was generally a lot of movement in the car. He then turned his spotlight on the car to see the movement and get their attention. Jackley testified that the passenger looked as if she were bending over in the seat and the driver continued to fidget with the mirror.
The officer pursued the vehicle for about one mile when suddenly the vehicle quickly exited the highway to the left onto the grassy median and came to a stop. The area was dark and Officer Jackley was alone. He radioed the dispatcher his location and stepped from his vehicle. The appellant stepped out from the driver’s side and approached the back of his automobile. Officer Jackley then asked the female passenger, Sharon Bell, to also get out of the automobile. She complied with his order and the officer turned them around and began to pat them down for weapons. He stated that the pair acted in a very nervous fashion. Bell asked Jackley what he was doing and he told her that he was checking for weapons. Bell immediately became quiet and then started walking toward their automobile. She walked toward the driver’s side where the door was still open. Officer Jackley ordered her to stop but she continued to walk on toward the open door. Again, he ordered her to stop as she reached the door and she stopped. She started to say something and the officer ordered her to return to the back of the vehicle.
Officer Jackley sat down in the driver’s seat of the appellant’s automobile and felt around the seat. As he was doing this, the pair walked around to see what he was doing and he ordered them to get back. The officer then opened the glove box and found a pistol. The officer stated that he believed the pair was armed and that he was in fear of his life. The pistol was admitted in evidence at trial.
The appellant argues that the weapon was seized pursuant to an unlawful search. We do not agree.
In the present case, there can be no question that Officer Jackley’s initial stop of the automobile appellant was driving was valid and proper. The officer saw that the traffic violation of speeding had occurred. Art. 6701d, § 166, Vernon’s Ann. Civ.St.; Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975). Additionally, the officer saw the appellant fail to stop his vehicle after being given a signal to stop, Art. *876701d, § 186, supra, and appellant improperly stop the vehicle. Art. 6701d, § 75, supra. Therefore, the officer was authorized to stop the vehicle and arrest any person found committing the traffic offenses. Art. 6701d, § 153, supra; Art. 14.-01(b) V.A.C.C.P. Furthermore, since Officer Jackley had seen the commission of a traffic offense other than the offense of speeding, he, in addition to arresting the appellant, was authorized to take the appellant into custody. Christian v. State, 592 S.W.2d 625 (Tex.Cr.App.1980) (opinion on rehearing, cert. denied 446 U.S. 784, 100 S.Ct. 2966, 64 L.Ed.2d 841 (1980); Tores v. State, 518 S.W.2d 378 (Tex.Cr.App.1975).
The Supreme Court, in New York v. Belton, 453 U.S. 2860, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), recently stated the following:
[N]o straightforward rule has emerged from the litigated cases respecting the question involved here — the question of the proper scope of a search of the interi- or of an automobile incident to a lawful custodial arrest of its occupants.
* * * * * *
When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While the Chimel [v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ] case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, the court here found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests that generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evi-dentiary item.’ Chimel, supra, at 763 [89 S.Ct. at 2040]. In order to establish the workable rule this category of cases requires as we read Chimel’s definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
We conclude that Officer Jack-ley’s search of the vehicle was a search incident to arrest and was therefore lawful. Furthermore, we believe that even if the appellant’s arrest at the time of the search was not custodial, it would, nonetheless, be lawful.
We have acknowledged that an officer should be permitted to take every reasonable precaution to safeguard his life in the process of making an arrest, even though the arrest is initially non-custodial. See Lewis v. State, 502 S.W.2d 699 (Tex.Cr.App.1973). If, under the totality of the circumstances presented to the officer, he has reasonable grounds to believe that he is in danger of bodily harm or that the person he encounters is armed and dangerous, only then will justification for such a search exist. Lewis v. State, supra.
In the case at bar, the evidence reflects that the officer had reasonable grounds to believe that he was in danger of bodily injury and the limited search was conducted solely for his own protection. In light of the evidence of the case, the hour of the night, the movement inside the car, and the actions of occupants after the stop, we conclude that the officer was justified in believing he was in danger. The area searched by the officer was one in which the occupants could have easily reached and obtained a weapon. Imhoff v. State, 494 S.W.2d 919 (Tex.Cr.App.1973); Lewis v. State, supra, Borner v. State, supra. Compare Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974); Keah v. State, 508 S.W.2d 836 (Tex.Cr.App.1974). The search was lawful; appellant’s ground of error is overruled.
The appellant in his next ground of error asserts that the evidence is insufficient to *88corroborate the testimony of the accomplice witness, Sharon Bell. The jury was instructed that if an offense occurred, Bell was an accomplice as a matter of law.
Article 38.14, V.A.C.C.P., provides:
A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.
In applying the statute to cases where the sufficiency of the evidence to corroborate the accomplice is challenged we eliminate from consideration the evidence of the accomplice witness and examine the other evidence to ascertain whether there is in-culpatory evidence tending to connect the defendant with the commission of the offense. Moron v. State, 702 S.W.2d 624 (Tex.Cr.App.1985); Cruz v. State, 690 S.W.2d 246 (Tex.Cr.App.1985); Brown v. State, 672 S.W.2d 487 (Tex.Cr.App.1984). Rice v. State, 587 S.W.2d 689 (Tex.Cr.App. 1979) (opinion on rehearing); Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979); Shannon v. State, 567 S.W.2d 510 (Tex.Cr.App.1978); Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968).
In the present case, Sharon Bell, the accomplice, testified that on the morning of March 12, 1979, she and the appellant drove to the Lone Star Ice and Food Store. The pair entered the store and Bell got a Coke. She asked the deceased about some teething medicine and Robitussin for babies. While they were inside, Bell noticed another customer. The customer told the deceased that if she needed anything he would be painting around the corner. The man left. Bell also noticed that another customer, a young Mexican-American male, came in and left.
After he left, the appellant and Bell approached the cash register where the deceased was standing. Bell asked for two or three packages of Kool cigarettes. The deceased placed them on the counter, whereupon the appellant pulled a pistol out, pointed it at the deceased, and demanded that the deceased give him money. The deceased opened the cash register and placed the money in a paper sack. The deceased then volunteered that there was more money in the vault. The three went to the vault where the deceased opened the vault and placed the contents in the sack and handed it to Bell. Bell then headed for the door. When she left the vault area, the appellant was pointing the gun towards the deceased’s temple. As she was leaving the store she heard the deceased ask the appellant not to shoot her. She then heard two or three gunshots. The pair got in the car and left. When she asked the appellant why he shot her, he stated he did not want to leave any witnesses.
Later that day, the appellant, with his brother and Bell, went to a car rental. The vehicle used in the offense was rented and they returned it and exchanged it for a Cougar. The appellant gave his brother cash from the robbery to rent the vehicle.
On the following day Bell, the appellant, and a companion went to Seguin. They returned to San Antonio to drop off the companion and then attempted to return to Seguin. Bell stated that on the return trip, they were stopped by a police officer and the pistol used in the robbery was found. Bell later told the police the pistol was hers and was subsequently convicted of unlawfully carrying a weapon. She testified that she told the police that the gun was hers so that both of them would not have to go to jail. At trial, Bell denied that the gun belonged to her.
Bell admitted that she had been convicted of the offense of murder with malice in 1974. She also stated that she was convicted for theft and was fined.
The non-accomplice evidence reveals that on the day of the offense, Aaron Archter-berg went to the store before 9:00 a.m. He testified that he bought a seventy-nine cent sponge. It was later shown that the next to last purchase appearing on the cash register tape was for seventy-nine cents. He was painting about a block and a half away from the store. He stated he saw a couple in the store and he identified the appellant as the male. He also stated that he had identified the female and was in*89formed that her name was Sharon Bell. He also stated he remembered that Bell was purchasing or was about to purchase cigarettes which were in a green and white package.
Kenneth Rodriguez testified that he visited the store around 8:35 to 8:40 a.m. He saw the deceased and a couple inside the store. He identified the male as the appellant. He heard the female ask for Robitussin. The couple were still there after he left.
Josie Jeffries testified that she visited the store around 8:30 a.m. When she went in, she noticed that the cash register was open and empty. She also noticed keys and change on the floor. There was a package of Kool cigarettes on the counter. She and other persons who had entered the store then began to search the store; they found the deceased, shot, in the bathroom.
Juan Ramirez stated that he entered the store around 9:00 a.m. He stated that the deceased was not there and that after other people arrived, they looked for her. They subsequently found her and the police were called.
Various police officers stated that after they received a radio call they went to the Lone Star Ice and Pood Store. The earliest any of them heard the radio call was 9:10 a.m. They found the deceased with close range bullet wounds in each of her temples. They also found the safe open.
Aric Howorth testified that on March 7 he rented an automobile to Joe Satterwhite. On the afternoon of March 12 Joe Satter-white returned with his brother, the appellant, and exchanged the first car for a blue Cougar. He stated that the appellant picked out the automobile. He also stated that he was paid in cash.
Officer Mark Jackley testified that on March 13 he stopped a blue Cougar driven by the appellant. He found a pistol in the glove compartment of the vehicle.
Eva Castillo testified that on February 29, 1979, she sold a pistol to Lillie Merri-weather. The pistol was the same type and contained the same serial number as the one found by Officer Jackley. Subsequent testimony revealed that the appellant’s mother’s name was Lillie Merriweather.
Two bullets were recovered from the deceased’s body. A balistics expert testified that the bullets were fired from the pistol seized by Officer Jackley.
The non-accomplice testimony is sufficient to corroborate Bell’s testimony. The non-accomplice testimony places the appellant at the scene of the crime with the deceased the time she was last seen alive. See Ayala v. State, 511 S.W.2d 284 (Tex. Cr.App.1974), cert. denied 420 U.S. 930; Edwards v. State, supra. The appellant and the accomplice were found to be in possession of the murder weapon and their attempted journey from San Antonio to Seguin may be considered as flight. See Edwards v. State, supra. The evidence presented is more than a mere showing that an offense occurred. It is not necessary that the non-accomplice evidence directly link the appellant to the crime or be. sufficient for guilt. Rather, all that is required is that the non-accomplice evidence tend to connect appellant with the offense committed. The non-accomplice testimony was sufficient to corroborate Sharon Bell’s testimony; the appellant’s ground of error is overruled.
The appellant in his next two grounds of error asserts that the trial court erred when it denied appellant’s requested jury instructions. The requested instructions would have instructed the jury that if they found that Sharon Bell shot the deceased in furtherance of a conspiracy with the appellant to commit aggravated robbery, they should find the appellant guilty of the offense of capital murder. However, if they found that the murder of the deceased by Sharon Bell was an act of her own volition and not in the furtherance of the conspiracy, they should find him not guilty of capital murder.1 The requested charges *90were in fact instructing the jury on the issue of whether the killing was on an independent impulse by Bell, and not in furtherance of a conspiracy to commit aggravated robbery. V.T.C.A. Penal Code, § 7.02(b) provides that:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
However, before such a charge is given, there must be evidence before the jury raising the issue.
In the present case there is no evidence that Bell did the actual killing. Additionally, there is no evidence that a conspiracy existed between the appellant and Bell. A charge on a defensive theory is only required when the evidence raises that issue. Lopez v. State, 574 S.W.2d 563 (Tex.Cr.App.1978). Furthermore, the evidence presented at trial of the appellant’s conduct alone was sufficient to sustain the conviction; no charge on independent impulse was necessary. Bowers v. State, 570 S.W.2d 929 (Tex.Cr.App.1978); McGuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974). The trial court did not err in refusing appellant’s requested jury instruction; the grounds of error are overruled.
The appellant also contends that the trial court erred in instructing the jury on the law of parties. The trial court, over appellant’s objection, gave an abstract instruction on the law of parties defining criminal responsibility according to V.T.C.A. Penal Code, § 7.02(a)(2).2 The trial court then applied the law to the facts in the instruction. The appellant claims that there was no evidence presented which raised that *91issue and that the trial court improperly-included the instruction resulting in harm to the appellant.
However a review of the record reveals that the appellant in his Requested Instruction No. 10 requested that the following instruction be given:
Beftíre you are warranted in convicting the defendant of capital murder, you must find beyond a reasonable doubt that on March 12, 1979, that the defendant, John T. Satterwhite, either alone, or as a party to the offense, or in the furtherance of a conspiracy to commit a felony offense, as those terms have been above defined to you, was engaged in the commission of the felony offense of robbery, and also during the commission of the robbery, the defendant, John T. Sat-terwhite, either alone, as a party to the offense, or in the furtherance of a conspiracy to commit a felony offense, intentionally shot the deceased, with the intention of thereby killing her.
Therefore, unless you find from the evidence beyond a reasonable doubt that the defendant, on the occasion in question, either alone, or as a party to the offense of robbery, or in the furtherance of a conspiracy to commit the offense of robbery, specifically intended to kill the said deceased, Mary Frances Davis, when he shot her, if he did, you cannot convict him of the offense of capital murder. If you have a reasonable doubt, you must find the defendant not guilty of the crime of capital murder.
You are, therefore, instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendant, John T. Satterwhite, in the County of Bexar, State of Texas, on or about the 12th day of March, 1979, committed or attempted to commit the offense of robbery and that in the course of and in furtherance of or in immediate flight from the commission or attempt to commit the offense of robbery, if any, the defendant, John T. Satterwhite, did or attempted to participate in the offense of robbery knowing that one of the participants to the robbery was in possession of a gun, and that this act was clearly dangerous to human life, if it was, and did thereby cause the death of Mary Frances Davis, if it did, then you will find the defendant guilty of murder, but if you do not so find, or if you have a reasonable doubt thereof, you will find the defendant not guilty of murder and next proceed to determine if he is guilty of any lesser offense.
The instruction requested by the appellant was essentially the same as the instruction subsequently given by the trial court. We also note that appellant’s Requested Instruction No. 1 and No. 11, discussed previously, also dealt with the law concerning criminal responsibility. Two additional instructions requested by the appellant involved the law of parties.3 We therefore conclude that error, if any, in instructing the jury on the law of parties was waived by appellant’s requested instructions. Appellant cannot be heard to complain about instructions given by the trial court where it is essentially the same charge as was requested by appellant. This ground of error is without merit.
Additionally, we note that as the evidence of appellant’s conduct alone was *92sufficient to sustain the conviction, no charge on parties was required. Todd v. State, 601 S.W.2d 718 (Tex.Cr.App.1980). The charge made appellant’s guilt contingent on a finding that he committed the offense either acting alone or as a party. Because the jury was authorized to convict appellant if it found he was acting alone, any error was harmless. Todd v. State, supra. The ground of error is overruled.
Appellant in his next ground of error argues that the trial court erred in admitting into evidence the testimony of a psychiatrist, Dr. Grigson, during the punishment phase of the trial. Appellant maintains that the testimony was obtained in violation of his rights as guaranteed under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Appellant relies upon the recent decision of the United States Supreme Court in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), in which Dr. Grigson once again testified during the punishment phase of a capital murder trial. Dr. Grig-son was the only witness the State presented during the punishment phase, in which he stated that the appellant was a sociopath and a continuing threat to society. See Art. 37.071, V.A.C.C.P. Dr. Grigson’s testimony was based upon an examination of Smith while he was in custody. The Supreme Court held that Dr. Grigson’s testimony was inadmissible because prior to the doctor’s examination, the appellant was not informed that any statement he made could be used against him and that he had the right to remain silent. Thus, the statements made to the psychiatrist were not freely and voluntarily given and were therefore obtained in violation of his privilege against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court also held that Smith’s Sixth Amendment right to assistance of counsel had been violated. The examination in question took place after the appellant had been indicted, meaning that his right to assistance of counsel had attached. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The Court stated that defense counsel was not given advance notice that the examination would encompass the issue of their client’s future dangerousness, and that Smith “was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist’s finding could be employed.” Smith did not waive counsel, therefore the admission of Dr. Grigson’s testimony violated his Sixth Amendment right to assistance of counsel.
In the present case appellant similarly argues that both his Fifth Amendment and Sixth Amendment rights were violated by the admission of Dr. Grigson’s testimony. Before we address the Fifth Amendment issue we conclude that appellant’s Sixth Amendment right to assistance of counsel was violated.
The offense in question occurred on March 12, 1979, and appellant was arrested on March 13. On March 15 or 16 appellant was charged with capital murder.4 Dr. Grigson testified that on March 19, pursuant to a court order, he attempted to examine appellant. He was unable to conduct the examination at that time but did examine the accused on May 3. The record does not contain a court order instructing Dr. Grigson to examine appellant. As in Estelle v. Smith, appellant had already been indicted when this examination took place. Thus, his right to assistance of counsel had attached. Kirby v. Illinois, supra. While the attachment of that right does not mean that appellant had a constitutional right to have counsel actually present during the examination, Estelle v. Smith, supra, it does mean that appellant’s attorneys should have been informed that an examination, which would encompass the issue of future dangerousness, was to take place. Additionally, the attachment of this right meant that appellant could have consulted with his attorney prior to the examination. There is nothing to indicate that appellant gave a knowing, intelligent, and voluntary waiver of his right to counsel, and a waiver will not be presumed from a silent record. We, therefore, con-*93elude that Dr. Grigson’s testimony was improperly admitted into evidence in violation of appellant’s Sixth Amendment right to assistance of counsel.
While we conclude that this admission was error we further hold that in light of other evidence presented, its admission did not constitute reversible error. Unlike in Estelle v. Smith, Dr. Grigson’s testimony was not the only evidence offered by the State during the punishment phase of the trial.
Here, eight peace officers testified that appellant’s reputation for being a peaceful and law abiding citizen was bad. One of the officers stated that he had a confrontation with appellant. He said that after receiving a complaint about appellant, he attempted to question him. As he approached appellant, appellant reached inside his waistband. The officer grabbed his hand and found a loaded pistol inside appellant’s waistband.
Lee Roy Merriweather testified that he used to be married to appellant’s mother. He stated that less than a year before the present offense, he had an argument with appellant. Merriweather locked appellant out of their home and he responded by shooting at Merriweather through the door. The witness was hit twice and was hospitalized for a month.
The evidence presented also showed that appellant had been convicted of aggravated assault, burglary with intent to commit theft, theft under fifty dollars, and robbery by assault with firearms.
Additionally, Dr. Betty Lou Schroeder, a psychologist, testified as to appellant’s future dangerousness. Appellant did not object to Dr. Schroeder’s testimony at trial and does not complain of its admission on appeal. We note that prior to examining appellant, Dr. Schroeder informed him of his rights as outlined in Miranda v. Arizona, supra. Additionally, the doctor obtained a release from appellant so as to allow her to release the information she obtained from the interview.
Dr. Schroeder’s testimony was very similar to Dr. Grigson’s concerning their conclusions about appellant. Both stated that appellant was a cunning individual, very evasive and very guarded. She added that appellant was a user of people, had an antisocial personality and an inability to feel empathy, and would be a continuing threat to society through his acts of criminal violence.
The jury also had the evidence adduced at the guilt stage of the trial for its consideration in answering the special issues at the punishment phase. Bravo v. State, 627 S.W.2d 152 (Tex.Cr.App.1983); O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979). The evidence at the guilt stage was undisputed that appellant committed a brutal and senseless murder during the course of a robbery. Even though he had obtained the money from the cash register and safe, he shot the deceased two or three times in the head at close range so that there would be no witnesses. The facts of this crime show that appellant’s conduct was calculated and remorseless. Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976).
We conclude that the properly admitted evidence was such that the minds of an average jury would have found the State’s case sufficient on the issue of the “probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” even if Dr. Grigson’s testimony had not been admitted. The admission of the testimony was harmless error beyond a reasonable doubt. Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980). The appellant’s Sixth Amendment ground is overruled.5
*94As to his Fifth Amendment claim, appellant maintains that Dr. Grigson failed to properly inform him of rights under Miranda, supra, prior to the examination. In Smith, the Court held that prior to psychiatric interrogation an accused is entitled to be informed of his rights as outlined in Miranda, including that he has a “right to remain silent” and that “anything said can and will be used against the individual in court.” Miranda, 384 U.S. at 467-469, 86 S.Ct., at 1624-1625.
Unlike his examination in Estelle v. Smith, in the present case Dr. Grigson testified that prior to any questioning he explained to appellant that the purpose of the interview was to determine appellant’s competency to stand trial, his sanity at the time of the offense, and whether he presented a continuing threat to society. Dr. Grigson then admonished appellant that he had the “option to remain silent or to simply refuse the examination and no psychiatric examination would take place.” The doctor also told him that the results of the examination “could be harmful or it could be helpful depending upon what the findings would be.” Subsequent to these warnings appellant consented to the examination; Dr. Grigson thereafter concluded that appellant would “present a continuing threat to society by continuing acts of violence.”
We find the warnings given to appellant sufficient under the holdings of Estelle v. Smith and Miranda. No error is presented and appellant’s Fifth Amendment claim is overruled.
Appellant in his final ground of error contends that his conviction was obtained in violation of the Speedy Trial Act, Art. 32A.02, V.A.C.C.P. A hearing on appellant’s motion to set aside the indictment for failure to comply with the Speedy Trial Act was held on August 27, 1979. The State announced ready and the trial court overruled appellant’s motion.
The record reflects that appellant was arrested and charged on either March 15 or March 16, 1979. On April 9 counsel was appointed for appellant and on April 13 he was arraigned. At the arraignment, the State filed a written announcement of ready, a pre-trial hearing was set for May 17, and the trial was set for May 29. On May 29, a hearing was held and several of appellant’s pre-trial motions were ruled upon. At the May 29 hearing, one of the district attorneys stated that he was not completely familiar with the files and anticipated that the case would not be tried that week. The trial court stated that he had the same anticipation and it was later revealed that another capital murder case was set for the next week.
At the hearing on August 27 on appellant’s motion to set aside the indictment, two members of the district attorney’s office testified. Roy Barrera, Jr. stated he subscribed the announcement of ready that was filed on April 13. He testified that he had prepared for the trial prior to April 13 but that the subpoenas had not been sent. However, he had compiled a witness list with their names, addresses and phone numbers so that they could be contacted when needed. He was unsure if all the witnesses had been contacted or whether the psychiatric expert was ready to testify. Barrera, however, testified that he was familiar with the case and the facts and was *95ready to go to trial if necessary. He added that he was ready to go to trial without the subpoenas being issued and without psychiatric testimony if necessary. He concluded that he had no doubt that the State could have begun jury selection on that date.
Bill Harris, also of the district attorney’s office, testified that he had stated he was not familiar with the file in this case in the middle of May.
Appellant contends that this evidence is sufficient to establish that the State was not ready for trial within the time limits required by Art. 32A.02, supra. We do not agree.
An announcement of ready by the State is a prima facie showing of compliance with the Speedy Trial Act. Fraire v. State, 588 S.W.2d 789 (Tex.Cr.App.1979); Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). However, the defendant may rebut such a showing by presenting evidence that demonstrates that the State was not ready for trial during the time limits of the Speedy Trial Act. Barfield v. State, supra. Here, the evidence is insufficient to rebut the State’s assertion of readiness; nothing in the record indicates that the State could not have proceeded to trial during the required time limits. Calloway v. State, 594 S.W.2d 440 (Tex.Cr.App.1980); Compare Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980). Appellant’s ground of error is overruled.
We have also considered the grounds of error raised in appellant’s untimely filed pro se brief. We find these contentions without merit.
The judgment is affirmed.
WHITE, J., not participating.
. The requested instructions were as follows:
Now, therefore, if you find from the evidence beyond a reasonable doubt that on the 12th day of March, 1979, in Bexar County, Texas, as alleged in the indictment that Sharon Rene Bell and the defendant, John T. Sat-*90terwhite had entered into and were attempting to carry out a conspiracy to commit the crime of aggravated robbery as those terms have been defined for you and that Sharon Rene Bell was then and there attempting to carry out said conspiracy between herself and the defendant, John T. Satterwhite, and you further find that Sharon Rene Bell did then and there with a gun intentionally shoot and kill and thereby cause the death of Mary Frances Davis, and you further find that said offense of murder was so committed by Sharon Rene Bell in furtherance of the unlawful purpose of Sharon Rene Bell and the defendant, John T. Satterwhite, and was one that should have been anticipated as a result of carrying out of their conspiracy to commit the offense of aggravated robbery, then you will find the defendant guilty of the offense of capital murder. If you do not so find or if you have a reasonable doubt thereof, you will acquit him.
You are further instructed that if you find the foregoing facts beyond a reasonable doubt from the evidence that the offense of murder was actually committed by the separate act of Sharon Rene Bell acting of her own separate volition, or you believe or have a reasonable doubt that such offense of murder on the part of Sharon Rene Bell was not in furtherance of the original unlawful purpose of Sharon Rene Bell and the defendant, John T. Satterwhite, or was not such an offense as should have been anticipated as a result of the carrying out of the commission of the crime of aggravated robbery, then you will acquit the defendant, John T. Satterwhite, and say by your verdict not guilty of the crime of capital murder and then determine whether or note [sic] the defendant, is guilty of some other offense as herein defined to you.
You are further instructed that if you find the foregoing facts (referring to the direct charge on parties to an offense who in the commission of one conspiracy commit another conspiracy) beyond a reasonable doubt except that you find from the evidence, or you have a reasonable doubt thereof, that in killing MARY FRANCES DAVIS said SHARON RENE BELL was acting outside of the common plan and design of SHARON RENE BELL and JOHN T. SATTERWHITE or that said killing was not in the furtherance of the common purpose and design of both SHARON RENE BELL and JOHN T. SATTER-WHITE and that JOHN T1 SATTERWHITE had no knowledge of the intent of SHARON RENE BELL or that said killing was not one that should have been anticipated by the said JOHN T. SATTERWHITE then you will find the defendant not guilty of capital murder, and then proceed to determine if the Defendant is guilty of some lesser included offense.
. Sec. 7.02(a)(2) provides as follows:
A person is criminally responsible for an offense committed by the conduct of another if:
******
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense, ...
. The appellant’s Requested Instruction No. 2 requested the following instruction be given:
You are further instructed that if you find from the evidence, or have a reasonable doubt, based from the evidence that the offense of murder was actually committed by the separate act of the defendant, John T. Satterwhite acting of his own separate volition, and you believe, or have a reasonable doubt, that such offense of murder on the part of the other defendant, Sharon Rene Bell, was not in furtherance of the original unlawful purpose of both the Defendants and was not such an offense as should have been anticipated as a result of the carrying out of the offense of robbery, if any, then you will find the defendant, John T. Satterwhite, not guilty of the offense of capital murder and then next proceed to determine from the evidence whether or not the defendant, John T. Satter-white, is guilty of any lesser included offense.
His Requested Instruction No. 7 requested the following instruction be given:
Mere presence at the scene of a crime does not constitute conduct sufficient, standing by itself, to make a person criminally responsible as a part to an offense for the conduct of another.
. Appellant was indicted on April 4 and counsel was appointed on April 10.
. The Court recognizes the holding in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), in which the United States Supreme Court stated that, "this Court has concluded that the assistance of counsel is among those ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ Chapman v. California, [386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967)]”. While applicable at first glance, the holding in Holloway is distinguishable from the case at bar.
In Holloway, the Sixth Amendment violation arose through one attorney’s joint representation of co-defendants with arguable conflicting interests. The conviction was reversed on the basis that once the existence of a possible con*94flict is presented to the judge, failure to thereafter appoint separate counsel for each co-defendant violated the Sixth Amendment. It was in this limited context that the Court concluded that a violation of one’s constitutional right to counsel can never be harmless error; a context in which the violation was so fundamentally unfair, it irrevocably tainted the entire proceeding.
The error in the present casé, while just as improper, related only to the admission of Dr. Grigson’s testimony, rather than to the proceeding as a whole.
We feel certain that the evidentiary nature of this error, rendered harmless by the facts of the crime for which he was on trial, his bad reputation, his use of firearms in the past, his four prior convictions and the uncontested testimony of Dr. Schroeder, was a form of Sixth Amendment violation not contemplated by the Court in Holloway. "We decline to follow what one judicial scholar has termed ‘the domino method of constitutional adjudication ... wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation.’" Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). |
9,645,543 | 2023-08-22 21:28:03.66846+00 | Clinton | null | CLINTON, Judge,
dissenting.
For good and sufficient constitutional reasons Article 37.071, § (h), V.A.C.C.P., mandates this Court to review every judgment of conviction for capital murder in which punishment imposed is death. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 ((1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). In a word the objective of our review in any given cause is to assure that a decision to inflict the penalty of death upon the person convicted is free of “arbitrariness.” Gregg v. Georgia, supra, 428 U.S. at 204-206, S.Ct. at 2939-2940; or in two, that it “will not be 'wantonly’ or ‘freakishly’ imposed.” Jurek v. Texas, supra, 428 U.S. at 276, S.Ct. at 2958. That is not to say those terms constitute standards or tests by which to assay particular grounds of error, just that they more or less contribute to an understanding of what to guard against in coming to an ultimate conclusion that the State has shown itself entitled to put a citizen to death.
Aside from specific grounds of errors, to me there is an aspect of this cause that is most troublesome: that at punishment testimony of an “expert” in such matters is presented to the jury in violation of appellant’s constitutional right to assistance of counsel. My concerns go the heart of the verdict of the jury, the first on guilt and then both on punishment.
The ubiquitous James P. Grigson, M.D., testified in his own inimitable fashion, now well known to every experienced practitioner in capital cases. To find that “in light of other evidence presented,” admitting his expert opinion on what is literally a matter of life or death does not amount to reversible error is startling.
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), addressed comments on failure of an accused to testify. However, it drew the basic rule from Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), viz:
“There we said: ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ Id., at 86-87, [84 S.Ct. at 230,] 11 L.Ed.2d at 173.”
Developing that proposition, the Chapman Court squarely concluded:
“An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless.”
*96Id., at 23-24, 87 S.Ct. at 828, 17 L.Ed.2d at 710.
When the issue is punishment, this Court has similarly followed the Fahy test confirmed by Chapman. Clemons v. State, 605 S.W.2d 567 (Tex.Cr.App.1980); also see Jordan v. State, 576 S.W.2d 825, 830 (Tex.Cr.App.1978). Finding we could not say that evidence erroneously admitted was harmless beyond a reasonable doubt “given the number of years assessed by the jury,” we buttressed that conclusion “by the prosecutor’s request to the jury to consider this inadmissible evidence in assessing punishment, .... as well as what seems to us to have been the probable impact of the erroneously admitted evidence on the minds of an average jury during the punishment phase of the trial.” Id., at 571-572.
Here too, the jury’s answer to special issue two patently is based in part at least on testimony of Dr. Grigson, bolstered by argument of the prosecutor reminding jurors that Dr. Grigson is a “Dallas psychiatrist and medical doctor [as compared to as mere psychologist employed by Bexar County],” and then recounting that “Dr. Grigson ... tells you that on a range from 1 to 10 [appellant is] a ten plus,” following that with an iteration of terms Dr. Grigson can explicate so expertly to jurors. Indeed, as in Clemons, supra, one may reasonably believe the State’s case during the punishment hearing “could have been ‘significantly less persuasive’ had the evidence been excluded.” Ibid.
Finally, a few words about voir dire of the lady who exclaimed, “You are telling me that in other words you don’t have to defend yourself. 1 It is obvious that she did not ever recede from her spontaneously revealed bias (or prejudice depending on where one is coming from). When defense counsel asked her directly if she had “a bias against the law that says that the Defendant does not have to defend himself,” she confessed, “I guess maybe I do,” adding, “I haven’t thought about that.” Then came appellant’s challenge for cause.
The prosecutor took over and after he broached the specific subject of the Fifth Amendment privilege in a lengthy discourse followed by a question, Coderman answered, “Yes.” However, when the trial court asked for her answer, she responded, “Yes. I don’t quite understand what he is saying.” So the judge tried to explain burden of proof, ending with “and you must reach your verdict based on the evidence that is offered, not the evidence that is not offered.” Coderman stated, “I think I can make a decision.” Over protest of counsel for appellant, the judge overruled his challenge.
Apparently following questions more than reactions to them, the majority opines that her statement to the court that she did not quite understand what the prosecutor was talking about, and her unresponsive enigmatic thought that she could “make a decision” “indicate that the juror was capable of following an instruction that she would not consider appellant’s failure to testify or present evidence as any evidence against him.” Yet, should we do that which the majority says it must do — examine her voir dire in its entirety — we would have to find that the venireperson herself volunteered, in effect, that she believed the law personally abhorrent that an accused need not defend himself, and she failed to articulate any change in that bias by merely saying she did not understand what the prosecutor was saying and by telling the judge she thought she could “make a decision.”
I would conclude the trial court erred in overruling a challenge for “bias or prejudice exists on the basic theory of law,” which Coverman revealed, then admitted and never recanted.
For those reasons and also disagreeing with treatment of certain other grounds of error,2 I respectfully dissent.
. All emphasis supplied.
. For one instance, while the majority may reach the correct result in approving overruling appellant’s motion to suppress, its reasoning in some particulars is faulty. It is not enough that a peace officer is "authorized” by law to arrest any person found committing traffic offenses. A search or seizure issue will turn on what he actually did in the premises. Unless he makes a lawful custodial arrest, Belton v. New York (see *97majority opinion, at 86), is not applicable, and there can be no search or seizure incident thereto. Linnett v. State, 647 S.W.2d 672 (Tex.Cr.App.1983). |
9,645,544 | 2023-08-22 21:28:03.672133+00 | Teague | null | *97TEAGUE, Judge,
dissenting.
For those readers unfamiliar with the location of the City of Live Oak, Texas, the official highway travel map of Texas that I have reflects that it is contiguous to the City of San Antonio, and its boundaries lie on both sides of Interstate 35 (east). The well known City of Selma, see December, 1974 and November, 1976 editions of Texas Monthly, is located contiguously to the east of Live Oak.
The record reflects that on March 13, 1979, at 10:17 o’clock p.m., Live Oak Police Officer Mark Jackley was “working radar” on Interstate 35, presumably being on the lookout for “speeders” who might then be driving in excess of the posted speed limit of 55 miles per hour. Given the territory and the terrain, Jackley did not have to wait long to catch a speeder. Jackley clocked the speed of the vehicle that was shown to be driven by the appellant at 82 miles per hour.
Art. 6701d, § 166(a), V.A.C.S., provides that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions, having regard to the actual and potential circumstances, then existing. However, driving a motor vehicle at a rate of speed in excess of the posted speed limit shall only be prima facie evidence that the speed is not reasonable or prudent and thus unlawful.
Section 148 of the statute, however, provides that the offense of speeding shall be the only offense in our traffic laws making mandatory the issuance of a written notice to appear in court; thus, the police may not, for this offense, take into custody the accused if he gives his written promise to appear in court, by signing in duplicate the written notice prepared by the arresting officer. Two exceptions, which are not applicable to our facts, are if the speeding vehicle is licensed in a state or country other than Texas or if the speeding vehicle is being driven by a resident of a state or country other than Texas.
Based upon the radar reading, Jackley then pursued the vehicle later shown to be driven by the appellant in order to stop it and presumably to give appellant a speeding ticket, with him then being permitted to proceed on his way.
The appellant, however, did not stop his vehicle and, for reasons not reflected in this record, cut over into the grassy median area separating the north and south lanes of Interstate 35 where he then stopped his vehicle. Between the time when Jackley put on his warning lights, as well as when he was using his spotlight, until the appellant stopped his vehicle, there was much movement inside of the appellant’s vehicle, which was then occupied by the appellant and a female passenger, by both the appellant and his passenger. The appellant then got out of the vehicle he was driving and walked to the rear of his car. Jackley’s vehicle was then parked behind the appellant’s vehicle. After Jackley approached the appellant’s vehicle, he ordered the female passenger to remove herself from the car, which she did. Jackley then “patted down” both appellant and his female passenger “for weapons.” No weapons were found. When asked for a driver’s license, the appellant produced a temporary driver’s license in the name of “Bobby Ted Satterwhite.” The driver’s license apparently did not arouse any suspicion on the part of Jackley. During this time, the female passenger started moving toward the driver’s side of the door, but, after first disputing Jackley’s command to stop, she then complied with his order to return to the rear of the vehicle which she had been riding in. The appellant also commenced getting closer to Jackley, but, upon command, he backed off.
Given the above facts and circumstances, it would appear that a reasonable, prudent police officer would have, when he got the appellant’s vehicle stopped, if not before, called for a police back-up unit, or radioed for possible assistance to other law enforcement agencies, such as the Department of Public Safety, which also patrols *98this location. However, Jackley did no such thing.
Jackley, instead, notwithstanding the previous suspicious movements of the appellant and his passenger, decided to then search the interior of the vehicle that the appellant had been driving. While Jackley was looking under the car seats, “for weapons,” both the appellant and his passenger started moving closer toward him and Jack-ley twice had to order them to back off to the rear of the car, which they did. Jack-ley, undaunted by the strange actions of the appellant and his passenger, continued searching the inside of the car. He eventually got to the glove compartment and after opening same, presumably with his back to the appellant and his passenger, found therein a pistol, which was later shown to be the murder weapon.
The appellant moved in the trial court to suppress the pistol as evidence, but the trial court overruled the motion.
Given the facts and circumstances of this case, as far as the initial stop, and as far as Jackley was concerned, there was only one violation committed, and that was the offense of speeding.
The majority opinion implicitly, but erroneously, holds that Jackley’s stopping the appellant’s vehicle for speeding then gave him the right to conduct a complete war-rantless search of the vehicle, as an incident to the lawful arrest. Such holding flies in the face of our statutory law. As previously pointed out, if a police officer stops a citizen motorist of this State for speeding and the citizen has a valid Texas driver’s license and is driving a vehicle with Texas plates thereon, without more, the arresting officer is not permitted to do anything more legally than to issue a traffic citation and send the driver on his way. The majority opinion also holds that because the appellant failed to stop, Jackley had the right to make a custodial arrest of the appellant for violating the provisions of Art. 6701d, § 186 and 75, V.A.C.S., fleeing or attempting to elude a police officer and, get this, failure to yield to an emergency vehicle, Jackley’s.
Given the facts and circumstances that went to the issue, I find that this kind of legal thinking and reasoning is preposterous and outlandish. Given a cursory reading of the cases cited by the majority opinion to support its position, they will simply not support its holdings.
The majority opinion does not end its ridiculous legal thinking and reasoning at this point; it plods forward and erroneously holds that Jackley had reasonable grounds to believe that he was in danger of bodily injury, thus giving him the right to conduct a complete search of the interior of the motor vehicle, “solely for his own protection.” The majority opinion concludes: “[T]he officer was justified in believing he was in danger.” Given the facts and circumstances of what occurred after Jackley stopped the appellant’s vehicle, this conclusion is totally erroneous. How any rational human being can conclude under the facts that Jackley had a “fear” that his life might have then been in danger is simply beyond my comprehension. The mere expression of a conclusion by a police officer that he was in fear should never be sufficient to authorize a warrantless arrest or a warrantless search of a person or his motor vehicle. Cf. Frazer v. State, 508 S.W.2d 362 (Tex.Cr.App.1974).
Clearly, Jackley’s warrantless search of the glove compartment and the warrantless seizure of the pistol therefrom were unlawful under the Constitution and statutory laws of this State. To the majority opinion’s contrary holding, I respectfully dissent.
MILLER, J., joins. |
1,516,517 | 2013-10-30 06:32:55.942932+00 | De Ment | null | 916 F. Supp. 1179 (1996)
ANDALUSIA CITY BOARD OF EDUCATION, Plaintiff,
v.
David and Deborah ANDRESS, as parents and next friends of Michael Andress, a minor, Defendants.
No. 95-D-1204-N.
United States District Court, M.D. Alabama, Northern Division.
February 9, 1996.
*1180 John M. Peel, Abner R. Powell, III, Andalusia, AL, Donald B. Sweeney, Jr., Birmingham, AL, for plaintiff.
Robbie S. Crook, Matthew C. Lamare, Dothan, AL, for defendants.
MEMORANDUM OPINION AND ORDER
DE MENT, District Judge.
Before the court is the motion of defendants David and Deborah Andress filed September 15, 1995, to dismiss the above-styled cause. Also on September 15, 1995, the defendants filed a counterclaim for attorney's fees, compensatory and punitive damages, costs, and an injunction ordering the plaintiff to comply with the order of the hearing officer. Plaintiff Andalusia City Board of Education ("the School Board") responded in opposition to the Andress' motion to dismiss on October 6, 1995. The plaintiff also filed a motion on October 6, 1995, to dismiss the defendants' counterclaim. After careful consideration of the arguments of counsel, the relevant case law, and the record as a whole, the court finds that the defendants' motion to dismiss is due to be granted and that the plaintiff's motion to dismiss the defendants' counterclaim is due to be granted in part and denied in part.
STANDARD OF REVIEW FOR MOTION TO DISMISS
Lack of subject matter jurisdiction may be asserted by either party or the court, sua sponte, at any time during the course of an action. Fed.R.Civ.P. 12(b)(1). Once challenged, the burden of establishing a federal court's subject matter jurisdiction rests on the party asserting the jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 62 S. Ct. 673, 86 L. Ed. 951 (1942); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S. Ct. 358, 66 *1181 L.Ed.2d 217 (1980).[1] The movant may use affidavits and other materials beyond the pleadings themselves in support of or in opposition to a challenge of subject matter jurisdiction. Land v. Dollar, 330 U.S. 731, 67 S. Ct. 1009, 91 L. Ed. 1209 (1947). In ruling on the motion, the court is to "consider the allegations of the complaint as true." Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S. Ct. 396, 70 L. Ed. 2d 212 (1981). Unlike a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismissals for lack of subject matter jurisdiction do not involve the merits of the claim. Exchange Nat'l. Bank v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir.1976).
STATEMENT OF FACTS
Michael Andress ("Michael") is a special education student in the Andalusia City School System with a disability within the meaning of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. On July 21, 1995, after a six-day hearing, an administrative hearing officer found that the School Board had failed to provide Michael with a free appropriate education as required by the IDEA. On September 8, 1995, the School Board filed an action in the Circuit Court of Covington County, Alabama, appealing the decision of the administrative hearing officer pursuant to the Alabama Administrative Code 290-080-090.[2] On September 15, 1995, the defendants removed the above-styled action to federal court pursuant to 28 U.S.C. § 1441.
Because the plaintiff did not file its action until forty-nine days after the decision of the hearing officer was issued, the defendants contend that the plaintiff's action did not comply with the provisions of the Alabama Administrative Code. Specifically, the defendants contend that the School Board failed to provide a notice of intent to file a civil action within thirty days as required by the Alabama Administrative Code 290-080-090(10)(4)(c)(12).[3] Consequently, the defendants note that the School Board also failed to file a civil action in a court of competent jurisdiction within thirty days after the filing of the notice of intent to file the civil action as required by Alabama Administrative Code 290-080-090(10)(4)(c)(12). The plaintiff contends that the defendant's counterclaim was not timely filed pursuant to these same two provisions of the Alabama Administrative Code because it was filed fifty-six days after the decision of the hearing officer was issued.
DISCUSSION
Congress enacted the IDEA in 1970 to ensure that children born with physical and mental disabilities "have available to them ..., a free appropriate public education which emphasizes special education and related services designed to meet their unique needs...." 20 U.S.C. § 1400(c). An action under the IDEA must be brought in an administrative setting before it can be brought in either federal or state court. See 20 U.S.C. §§ 1415(b)(2) & (c). An "aggrieved" party may then file an action appealing a final judgment of an administrative hearing officer in either a United States District Court or a state circuit court of competent *1182 jurisdiction. 20 U.S.C. § 1415(e)(2). Furthermore, while attorney's fees and costs cannot be awarded at the administrative level, "the court, in its discretion, may award reasonable attorney's fees as part of the costs to ... the prevailing party." 20 U.S.C. § 1415(e)(4)(B).
The IDEA does not address the appropriate statute of limitations for bringing an action in state or federal court subsequent to an administrative hearing decision. In a situation where a federal statute is silent as to the appropriate statute of limitations, the Supreme Court of the United States has held that a court should "apply the most closely analogous statute of limitations under state law." Del Costello v. International Bhd. of Teamsters, 462 U.S. 151, 158, 103 S. Ct. 2281, 2287, 76 L. Ed. 2d 476 (1985). A court should thus "apply a statute of limitations which finds some relevance to the administration of the IDEA itself." Dell v. Board of Educ., Tp. High Sch. Dist. 113, 32 F.3d 1053, 1064 (7th Cir.1994).
Although the Eleventh Circuit has not addressed the question of the relevant Alabama statute of limitations, it has suggested that it would apply Florida's 30-day statute of limitations, as provided by Florida's Appellate Procedure Act, to substantive appeals in the state of Florida under the IDEA. JSK ex rel. JK & PGK v. Hendry County Sch. Bd., 941 F.2d 1563, 1570, n. 1 (11th Cir.1991). The Eleventh Circuit reasoned that a 30-day limitation "assure[s] prompt resolution of disputes over [individualized education plans] or for handicapped children." Id. (quoting Department of Educ., State of Hawaii v. Carl D., 695 F.2d 1154, 1157 (9th Cir.1983)). Several courts have come to the same conclusion, holding that a short statute of limitations period is necessary to fulfill the purpose of the IDEA. See, e.g., Amann v. Town of Stow, 991 F.2d 929 (1st Cir.1993) (30 days); Spiegler v. District of Columbia, 866 F.2d 461 (D.C.Cir.1989) (30 days); Department of Educ. v. Carl D., 695 F.2d 1154 (9th Cir. 1983) (30 days); Adler v. Education Dept., 760 F.2d 454 (2d Cir.1985) (4 months); Bow School Dist. v. Quentin W., 750 F. Supp. 546 (D.N.H.1990) (30 days); Wills v. Ferrandino, 830 F. Supp. 116, 122 (D.Conn.1993) (45 days); Dell, 32 F.3d at 1063 (7th Cir.1994) (120 days).
A. The School Board's Claim
In the present case, both plaintiff and defendants ask the court to adopt the 30-day statute of limitations from Alabama's administrative appeal statute. The court will first address the School Board's appeal of the decision of the administrative hearing officer. In this regard, the First Circuit's decision in Amann is particularly compelling because it discussed at length the reasons that the court decided to adopt the 30-day statute of limitations from the state's administrative appeal statute. Amann, 991 F.2d at 932.
In Amann, the court noted that the role of a federal court reviewing an administrative decision under the IDEA is much the same as a typical administrative appeal because a reviewing court must refrain from substituting its own views of educational policy for those of hearing officers with more expertise in the field. Id. The Amann court also found that a 30-day statute of limitations furthers the goal of the IDEA to have expeditious resolutions of disputes over a student's individualized education program ("IEP"). Id. Furthermore, the court recognized that, even if parents of a student were prejudiced by a shorter statute of limitations, other provisions of the IDEA alleviated much of the harm. Id. For example, the IDEA requires schools to review and revise IEP's for each eligible student at least once a year. 20 U.S.C. § 1414(a)(5). Finally, it is important to note that the only decision that needs to be made within the 30-day time period after an administrative decision is rendered is whether or not to proceed to federal or state court there is no need for additional time to gather evidence or prepare legal briefs, which usually necessitate a longer statute of limitations. Wills, 830 F.Supp. at 120.
Based on the foregoing reasoning, the court finds that the limitations period of the Alabama Administrative Code should be adopted for substantive appeals of the decisions of administrative hearing officers under the IDEA. Accordingly, the School Board's appeal is due to be dismissed for two reasons. *1183 First, the School Board failed to file a notice of filing a civil action within thirty days of the issuance of the administrative officer's appeal as required by the Alabama Administrative Code 290-080-090(10)(4)(c)(12). While this first failure to abide by the procedural requirements of the Alabama Administrative Code is dispositive, the court notes that the School Board also failed to file their appeal within thirty days of filing a notice of filing a civil action as required by the Alabama Administrative Code 290-080-090(10)(4)(c)(12). Instead it filed its appeal directly with the federal court 49 days after the administrative hearing officer issued his ruling.
B. The Defendants' Counterclaims
1. IDEA Counterclaim in Count I.
In Count I of their counterclaim, the Andress' request the court to award them attorney's fees, compensatory and punitive damages, and the cost of providing Michael with a free appropriate public education pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and pursuant to § 504 of the Rehabilitation Act, 29 U.S.C. § 794. The Andress's also ask the court in Count I to issue an injunction ordering the School Board to comply with Michael's current IEP and to further comply with the orders of the hearing officer. The court will first address the request for attorney's fees and costs pursuant to the IDEA.
The court recognizes that a claim for attorney's fees under the IDEA cannot be filed with an administrative officer, but must instead be filed in either state court or federal court subsequent to the decision of the administrative officer pursuant to 20 U.S.C. § 1415(e)(4). Thus, an action for attorney's fees is not an action appealing a substantive decision of an administrative hearing officer pursuant to 20 U.S.C. § 1415(e)(2). It is clear, however, that "any action for attorney's fees is inextricably connected to the administrative proceedings that determine the substance of the child's rights, and suits to recover fees supplement the substantive administrative actions." Zipperer v. School Bd. of Seminole County, Fla., 891 F. Supp. 583 (M.D.Fla.1995). "Although the promptness of the decision may not be as important ... as in other IDEA situations, both the school district and the parents still have an interest along with the attorney in the expeditious resolution of th[e] [issue of attorney's fees]. Dell, 32 F.3d at 1063-64 (7th Cir.1994). Furthermore,
the fact that suits for attorney's fees refer back to administrative hearings is relevant, because in awarding fees the court must review proceedings "in a state administrative environment with which it may not be very familiar. A return to this quagmire months after adjudication of the merits would result in a needless expenditure of judicial energy."
Zipperer, 891 F.Supp. at 586 (quoting Dell, 32 F.3d at 1063). In fact, the Dell court found that "the resolution of all disputes under § 1415 between parents and schools, including cost and reimbursement issues, must be resolved quickly," and thus dismissed the parents claims for reimbursement and attorney's fees because the statute of limitations had run. Dell, 32 F.3d at 1060 (emphasis added).
In Zipperer, the court, relying both on the Eleventh Circuit's suggestion in JSK, 941 F.2d at 1570 n. 1, and the reasoning of the Seventh Circuit in Dell, adopted the 30-day statute of limitations period prescribed by the Florida Appellate Procedure Act for actions brought pursuant to the IDEA. The court finds the Eleventh Circuit's suggestion in JSK along with the aforementioned reasoning in Dell convincing. Thus, the court finds that the provisions of the Alabama Administrative Code apply to the defendant's counterclaim brought pursuant to the IDEA. Accordingly, the court finds that the parents' counterclaim pursuant to the IDEA is due to be dismissed because it was filed fifty-six days after the administrative hearing officer issued his final decision.
Some courts have held that a short statute of limitations period for claims brought pursuant to the IDEA should be equitably tolled under certain circumstances. See Carl D., 695 F.2d at 1158 ("equitable considerations might militate against the rigid enforcement of a thirty-day limitation period where unrepresented parents or guardians are unaware of the availability of review of an adverse *1184 decision"); Barnett v. District of Columbia, 491 A.2d 1156, 1163 (D.C.1985) (resort to technicalities to foreclose recourse to judicial processes is inappropriate, especially when laymen initiate the process without assistance of counsel); Hebert v. Manchester, New Hampshire, School District, 833 F. Supp. 80, 84-85 (D.N.H.1993) (Equitable tolling is appropriate "when parents or guardians are not represented by legal counsel, or were not fully apprised of their rights of appeal, or acted in good faith within the time previously approved by a court of competent jurisdiction"). The court believes the use of equitable tolling to be a better solution to litigants' individual difficulties than a longer statute of limitations because of the need to have disputes under the IDEA resolved expeditiously. See Zipperer, 891 F.Supp. at 587.
The parents in this action, the Andress's, were obviously competently represented by counsel because they raised the issue of the School Board's failure to comply with the provisions of the Alabama Administrative Code. As to the School Board, the court notes that equitable tolling is generally only available to parents, and that the School Board failed to provide the court with any reason to equitably toll the statute regarding its action appealing the decision of the administrative hearing officer. Thus, the court finds that the circumstances of this case do not warrant a tolling of the statute of limitations as to either party for their claims brought pursuant to the IDEA.
2. Rehabilitation Act Counterclaim in Count I and Section 1983 Counterclaim in Count II.
While the defendants' counterclaim brought pursuant to the IDEA in Count I is due to be dismissed for failure to comply with the requirements of the Alabama Administrative Code, the plaintiff's motion to dismiss the defendants' counterclaim brought pursuant to § 504 of the Rehabilitation Act in Count I is due to be denied.[4] Similarly, plaintiff's motion to dismiss defendants' claims in Count II is due to be denied.[5]
Similar to the IDEA, § 504 of the Rehabilitation Act does not provide a statute of limitations period. Thus, as it did for the IDEA counterclaim, the court must adopt the appropriate statute of limitations period for the § 504 counterclaim. A claim brought under § 504 of the Rehabilitation Act is similar to a claim brought under 42 U.S.C. § 1983 because the Rehabilitation Act is a civil rights statute. Board of Educ. of the City of Chicago v. Wolinsky, 842 F. Supp. 1080, 1085 (N.D.Ill.1993); see also Greater Los Angeles Council on Deafness, Inc., v. Zolin, 812 F.2d 1103, 1107 (9th Cir.1987). As such, a claim brought pursuant to the Rehabilitation Act should not be subject to a statute of limitations period under a state's appellate procedure act; rather, a court should apply the state's personal injury statute of limitations. Wolinsky, 842 F.Supp. at 1085.
The Eleventh Circuit has applied Alabama's two-year personal injury statute of limitations, as provided in Ala.Code § 6-2-38(l), to claims brought under 42 U.S.C. § 1983. Owens v. Okure, 488 U.S. 235, 246, n. 9, 109 S. Ct. 573, 580 n. 9, 102 L. Ed. 2d 594 (1989); Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir.1989). Thus, in the present action, the court finds that the two-year statute of limitations should be applied *1185 to the defendants' claim brought pursuant to § 1983. Furthermore, based on the reasoning above, the court finds that it should adopt this same statute of limitations for the defendant's claims brought pursuant to § 504 of the Rehabilitation Act.[6] Thus, the plaintiff's motion to dismiss defendants' counterclaims brought pursuant to § 504 of the Rehabilitation Act in Count I based on their failure to comply with the Alabama Administrative Code is due to be denied. Similarly, the plaintiff's motion to dismiss the defendants' counterclaims in Count II pursuant to § 1983 for failure to comply with the Alabama Administrative Code is due to be denied.
CONCLUSION
Based on the foregoing, it is CONSIDERED and ORDERED that the defendants' motion to dismiss the plaintiff's action be and the same is hereby GRANTED.
It is further CONSIDERED and ORDERED that the plaintiff's motion to dismiss the defendants' counterclaims pursuant to the IDEA in Count I be and the same is hereby GRANTED.
It is further CONSIDERED and ORDERED that the plaintiff's motion to dismiss the defendants' counterclaims pursuant to the Rehabilitation Act in Count I and the defendants' counterclaims pursuant to § 1983 in Count II based on a failure to comply with the Alabama Administrative Code be and the same is hereby DENIED.
NOTES
[1] Decisions of the former Fifth Circuit filed prior to October 1, 1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
[2] Alabama Administrative Code 290-80-090 10(4)(c)(11) states that "[t]he decision of an Impartial Due Process Hearing Officer is final unless a party brings a civil action pursuant to 20 U.S.C. § 1415(e)(2)." Under § 1415(e)(2) of the IDEA,
Any party aggrieved by the findings and decision made [by an impartial hearing officer pursuant to] subsection (b) of this section ... shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any state court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy....
[3] The Alabama Administrative Code 290-80-090(10)(4)(c)(12) provides the following:
An aggrieved party shall file a notice of intent to file a civil action with all parties to the Impartial Due Process Hearing within thirty (30) calendar days upon receipt of the decision of the Impartial Due Process Hearing Officer.... A civil action in a court of competent jurisdiction must be filed within thirty (30) days of the filing of the notice of intent to file a civil action.
[4] The court's decision to address the defendants' counterclaim brought under the Rehabilitation Act separately from the defendants' counterclaim brought under the IDEA is supported by 20 U.S.C. § 1415(f), which provides:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973 [29 U.S.C. § 790 et seq.], or other federal rights of handicapped children and youth, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (c) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
[5] The court notes that its decision to deny the plaintiff's motion to dismiss the Rehabilitation Act claim in Count I and all claims in Count II for failure to comply with the Alabama Administrative Code only addresses the limited question of whether the Alabama Administrative Code bars these claims.
[6] It may seem illogical to apply the Alabama Administrative Code's shorter statute of limitations period to the defendants' claims pursuant to claims under the IDEA and the two-year personal injury statute of limitations period to claims under § 504 of the Rehabilitation Act because both statutes seek to ensure that disabled students obtain a free appropriate education. However, these two periods began running at different times so as to make the practical effect more compatible. While the statute of limitations under the Alabama Administrative Code commences to run at the time the hearing officer's decision is issued, the statute of limitations under the personal injury statute begins running at the time of the injury to the student, i.e., most likely at the time the school district offers or denies a special education program. Wolinsky, 842 F.Supp. at 1085, n. 5. |
1,516,525 | 2013-10-30 06:32:56.07353+00 | Collins | null | 916 F. Supp. 985 (1996)
Frank DIELSI, Plaintiff,
v.
Peter FALK, Chris Seiter, Vince McEveety, MCA Universal City Studios, ABC Television (KABC), and Does 1 through 100, inclusive, Defendants.
No. CV95-8079 ABC (BQRx).
United States District Court, C.D. California.
January 23, 1996.
*986 *987 Salomone & Rapp, Richard T. Ferko, Woodland Hills, CA, for plaintiff.
Leopold, Petrich & Smith, Louis P. Petrich, Los Angeles, CA, for defendants.
ORDER RE:
1.) PLAINTIFF'S MOTION TO REMAND;
2.) DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD, FOURTH, FIFTH, AND SIXTH CAUSES OF ACTION
COLLINS, District Judge.
Plaintiff's motion to remand for lack of subject matter jurisdiction and Defendants' motion to dismiss Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action came on regularly for hearing before this Court on January 22, 1996. After reviewing the materials submitted by the parties, argument of counsel, and the case file, it is hereby ORDERED that Plaintiff's motion is GRANTED in part. Plaintiff's First, Second, Third, and Fourth Causes of Action are hereby REMANDED to state court. Defendants' motion to dismiss is also GRANTED in part. Plaintiff's Fifth and Sixth Causes of Action are hereby DISMISSED without prejudice.
I. Procedural Background
The Plaintiff in this case, FRANK DIELSI, was a speech coach for Defendant PETER FALK on the television series "Columbo." As more fully described below, Plaintiff asserts that he wrote a potential script for "Columbo," entitled "Never Trust a Gambler." Plaintiff then submitted the script to Defendant CHRIS SEITER, then the show's producer. The script was never specifically accepted or rejected. However, as further discussed below, Plaintiff alleges that Defendants later used his script as the basis for an episode of "Columbo" entitled "Strange Bedfellows." On October 20, 1995, Plaintiff filed a Complaint against Defendants Falk, Seiter, VINCE McEVEETY, MCA UNIVERSAL CITY STUDIOS ("Universal"), ABC TELEVISION (KABC) ("ABC"), and DOES 1 through 100, inclusive, for breach of contract, breach of confidence, fraud, negligent misrepresentation, conversion, and negligence. Plaintiff prays for compensatory damages in the amount of $1.25 million, exemplary damages, costs, and attorneys' fees.
Defendant Universal received a copy of Plaintiff's Complaint on October 24, 1995. Defendant Chris Seiter was served with a copy of the Complaint on November 19, 1995. On November 24, 1995, Defendants Universal and Seiter attempted to file a Notice of Removal. The clerk initially accepted Universal's removal notice, assigning the case the file number 95-8051. However, upon further review, the clerk ultimately rejected Universal's filing, because the face of the removal notice differed from the face of Plaintiff's Complaint. In drafting its Notice of Removal, Defendants failed to list "MCA Universal City Studios" as a Defendant in the action (even though Universal drafted the removal notice and was listed at the top of the document).
On November 27, 1995, Defendants Universal and Seiter filed an amended Notice of Removal, listing "MCA Universal City Studios" *988 as a Defendant in the action. On November 28, 1995, Defendant ABC was first served with a copy of Plaintiffs Complaint. Apparently, Defendants Peter Falk and Vince McEveety have never been served with Plaintiff's Complaint. On December 20, 1995, Defendant ABC joined in Defendants Universal's and Seiter's Notice of Removal. On December 20, 1995, Defendants filed a motion to dismiss Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action. On January 8, 1996, Plaintiff filed an Opposition. On January 16, 1996, Defendants filed a Reply. In addition, on December 27, 1995, Plaintiff filed a motion to remand for lack of subject matter jurisdiction. On January 8, 1996, Defendants filed an Opposition. Plaintiff did not file a Reply.
II. Plaintiff's Allegations
In his Complaint, Plaintiff alleges as follows:
1.) Plaintiff was employed as a speech coach for Defendant Peter Falk on the television series "Columbo." (Compl. ¶ 1)
2.) Before April 1994, Plaintiff was told by Defendant Chris Seiter, the producer for "Columbo," that new scripts were needed for the show. (Compl. ¶ 10).
3.) In April 1994, Plaintiff completed a television script specifically for "Columbo," entitled "Never Trust A Gambler." Plaintiff submitted this script to Seiter. (Compl. ¶ 11).
4.) In May 1994, Seiter told Plaintiff that he wanted to speak with Plaintiff about his script. (Compl. ¶ 12).
5.) In June 1994, Seiter told Plaintiff that he "loved" the script, but that he wanted certain changes. (Compl. ¶ 14).
6.) Plaintiff heard nothing from Seiter until September 1994, when he was hired to work as Falk's speech coach for the "Columbo" episode called "Strange Bedfellows." (Compl. ¶ 15).
7.) After "Strange Bedfellows" was completed, Plaintiff realized that the episode was in fact based on Plaintiff's script "Never Trust A Gambler." (Compl. ¶ 16).
8.) "Strange Bedfellows" was copied from Plaintiff's script. Defendants did not have their idea for "Strange Bedfellows" until Plaintiff had submitted his script to Seiter. (Compl. ¶ 17).
9.) After the release of "Strange Bedfellows," Plaintiff demanded that Defendants compensate him for his work and give him proper credit. (Compl. ¶ 18).
10.) Defendants refused to compensate Plaintiff or give him any credit for his work. (Compl. ¶ 19).
11.) Plaintiff, at the request of Seiter, submitted his script to Defendants with the full expectation that he would be compensated for its use if Defendants decided to use it. Also, Defendants clearly understood that Plaintiff would be given credit for his work if they used his script. Accordingly, an implied contract existed between Plaintiff and Defendants, which Defendants breached. (Compl. ¶ 22).
12.) Defendants accepted the submission of Plaintiff's script in complete confidence, and on the understanding that the idea would not be used without Plaintiff's consent. Defendants breached that confidence. (Compl. ¶ 25).
13.) Defendants made many misrepresentations of fact to Plaintiff. Defendants represented to Plaintiff that they would compensate him for his work, when, in fact, they had no intention of compensating Plaintiff for his script. Defendants represented to Plaintiff that they would not use his script, when, in fact, they did use his script for "Strange Bedfellows." Defendants wilfully concealed from Plaintiff that they were developing and producing a "Columbo" episode based on "Never Trust A Gambler." (Compl. ¶ 29).
14.) At the time the misrepresentations were made, Plaintiff was ignorant of the falsity of the representations, believed they were true, and acted in reasonable reliance on them. (Compl. ¶ 30).
15.) Defendants have been guilty of oppression, fraud and malice, and have acted in conscious disregard for Plaintiff's rights. (Compl. ¶ 32).
16.) Defendants have unlawfully and wrongfully converted for their own use the "Never Trust A Gambler" script in producing *989 and distributing the "Columbo" episode "Strange Bedfellows." (Compl. ¶ 37).
17.) The appropriation was without Plaintiff's consent and for Defendant's pecuniary gain and profit. (Compl. ¶¶ 38-39).
18.) Defendants breached their duty of care to Plaintiff by failing to acknowledge that "Strange Bedfellows" is based upon "Never Trust A Gambler," and by failing to account for the monies due to Plaintiff from "Strange Bedfellows." This breach has damaged Plaintiff's reputation and hurt his ability to continue developing his career in the entertainment industry. (Compl. ¶ 43).
19.) Plaintiff seeks compensatory damages from all Defendants. In addition, Plaintiff seeks exemplary damages, costs, and attorneys' fees from Defendant Chris Seiter. (Prayer for Relief).
III. Discussion
As stated above, Plaintiff has filed a motion to remand for lack of subject matter jurisdiction, and Defendants have filed a motion to dismiss Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action. Both motions address the issue of whether Plaintiff's state law claims are preempted by federal copyright law. Because both motions involve interlinking issues of federal jurisdiction, the Court will address both motions together.
A. Timely Removal
Because Defendants did not successfully file their Notice of Removal until November 27, 1995 (more than 30 days after Defendant Universal received a copy of the Complaint), Plaintiff first asserts that removal was not timely.[1]
Under 28 U.S.C. § 1446(b), a notice of removal must be filed "within 30 days after receipt by defendant, through service or otherwise, of a copy of the initial pleading ..." Defendants argue that the 30 day period begins when a Defendant is properly served with a copy of the Complaint. However, a majority of courts hold that the 30 day period begins when a Defendant receives a copy of the Complaint. See, e.g., Tech-Hills Assoc. v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963, 968 (6th Cir.1993) ("We hold that the removal period is commenced when the defendant has in fact received a copy of the initial pleading that sets forth the removable claim."); Lofstrom v. Dennis, 829 F. Supp. 1194, 1196 (N.D.Cal.1993) (the "better reasoned position" is that the 30 day period begins on receipt); Uhles v. F.W. Woolworth Co., 715 F. Supp. 297, 298 (C.D.Cal.1989) (following the receipt rule). The Court concludes that the "receipt rule" is the better reasoned position, for it more closely follows the wording of the statute. Section 1446(b) states that removal must be performed "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading[.]" (emphasis added). Thus, under § 1446(b), the "receipt" need not be by official "service."
Thus, because Universal received a copy of Plaintiff's Complaint on October 24, 1995, its Notice of Removal was due on November 24, 1995. On November 24, 1995, Defendant attempted to file its Notice of Removal. The clerk initially accepted the removal notice, and assigned a case number. However, upon further review, the clerk ultimately rejected Universal's filing, because the face of the removal notice differed from the face of Plaintiff's Complaint. In drafting its Notice of Removal, Defendants failed to list "MCA Universal City Studios" as a Defendant in the action (even though Universal drafted the removal notice and was listed at the top of the document). According to the clerk, Defendants' Notice of Removal violated Local Rule 3.4.9(d), which states that "[t]he names of the parties shall be placed below the title of the Court and the left of center, and single spaced.... In all documents, after the initial *990 pleadings, the names of the first-named party only on each side shall appear[.]"[2]
On November 27, 1995, Defendants Universal and Seiter filed an amended Notice of Removal, listing "MCA Universal City Studios" as a Defendant in the action. Plaintiff contends that this amended Notice of Removal was untimely, and that this Court should remand pursuant to 28 U.S.C. § 1446(b). However, Defendants' amended removal notice was untimely only because the clerk refused to file the original notice, which was tendered on November 24, 1995.
Under Federal Rule of Civil Procedure 5(e), "[t]he clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices." In this case, the clerk refused to file Defendants' Notice of Removal because of a merely technical violation of Local Rule 3.4.9(d). This Local Rule governs the format of the title page of a document, so therefore it falls within the ambit of Federal Rule 5(e). On its face, Rule 5(e) "mandates that the clerk accept pleadings for filing even when the pleading technically does not conform with form requirements of the Federal Rules of Civil Procedure or local rules." McClellon v. Lone Star Gas Company, 66 F.3d 98, 101 (5th Cir.1995); see also Turner v. City of Newport, 887 F. Supp. 149, 150 (E.D.Ky.1995) ("a document is deemed filed when it is in the actual or constructive possession of the Clerk"). The rule is evidently meant to divest the power of clerks to deny filings for reasons of purely technical form. As stated by the Advisory Committee on the Rules, "[t]his is not a suitable role for the office of the clerk, and the practice exposes litigants to the hazards of time bars.... The enforcement of these rules and of the local rules is a role for a judicial officer." Rule 5(e), Advisory Committee Notes.
Therefore, Under Federal Rule 5(e), the clerk's office should have accepted Defendants' Notice of Removal, despite the technical violation of Local Rule 3.9.4(d). Rule 5(e) "usurped the clerk of court's ability to choose to reject or accept" the Notice of Removal. McClellon, 66 F.3d at 102. Therefore, under Rule 5(e), Defendants' Notice of Removal should have been considered filed as of November 24, 1995, "until such time that the court ordered the clerk of court to strike the pleading from the record[.]" Id. at 102. Because of the extremely technical nature of Defendants' violation of Local Rule 3.9.4(d), the Court declines to order the pleading stricken. Accordingly, Defendants' Notice of Removal shall be deemed filed as of November 24, 1995. Therefore, Defendants' Notice of Removal is timely under 28 U.S.C. § 1446(b).
B. Copyright Preemption
Plaintiff also asserts that this Court should remand this case for lack of subject matter jurisdiction. On the face of Plaintiff's Complaint, no federal claim is stated. However, Defendants assert that Plaintiff's state law tort claims are completely preempted by federal copyright law, and therefore actually "arise under" federal law. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 24, 103 S. Ct. 2841, 2854, 77 L. Ed. 2d 420 (1983) ("If a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law.").
Under 17 U.S.C. § 301(a),
... all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... and come within the subject matter of copyright ... whether created before or after that date, and whether unpublished, are governed exclusively by this title.... [N]o person is entitled to any such right or equivalent right in any work under the common law or statutes of any state.
Accordingly, "[c]opyright preemption is both explicit and broad[.]" G.S. Rasmussen & Assoc. v. Kalitta Flying Service, 958 F.2d 896, 904 (9th Cir.1992), cert. denied, 508 U.S. *991 959, 113 S. Ct. 2927, 124 L. Ed. 2d 678 (1993). A state law is preempted by federal copyright law if (1) the work at issue comes within the subject matter of copyright; and (2) the state law rights are "equivalent to rights within the general scope of copyright[.]" Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 977 (9th Cir.1987); see also Trenton v. Infinity Broadcasting Corp., 865 F. Supp. 1416, 1427-28 (C.D.Cal.1994) (stating same standard).
Both parties agree that Plaintiff's First and Second Causes of Action for breach of contract and breach of confidence are not preempted by federal copyright law. However, there is an issue as to Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action for fraud, negligent misrepresentation, conversion, and negligence.
1. Plaintiff's Third and Fourth Causes of Action for Fraud and Negligent Misrepresentation
Plaintiff asserts that because his fraud and negligent misrepresentation causes of action involve the "extra element" of a misrepresentation, they are not "equivalent" to federal copyright claims. In Valente-Kritzer Video v. Pinckney, 881 F.2d 772, 776 (9th Cir.1989), cert. denied, 493 U.S. 1062, 110 S. Ct. 879, 107 L. Ed. 2d 962 (1990), the Ninth Circuit stated that a fraud cause of action founded on an allegation that the defendant "misrepresented its intent to perform [a] contract" was "qualitatively different" from a copyright claim because of the additional element of misrepresentation. See also Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B](1)(e) (1995) (because of the additional element of misrepresentation, "there is no preemption of the state law of fraud"); Goodman v. Lee, 1994 WL 710738, *4 (E.D.La. Dec. 20, 1994) ("courts have consistently held that fraud claims relating to copyright disputes which require plaintiff to establish the element of misrepresentation are not pre-empted by federal copyright law."). In their concurrently filed motion to dismiss, Defendants attempt to distinguish Valente-Kritzer. Defendants argue that Plaintiff's fraud claim really is a disguised copyright infringement claim because Plaintiff alleges that Defendants fraudulently promised not to make unauthorized use or copies of Plaintiff's work. And indeed, "[i]n so far as ... state claims are restatements of ... copyright infringement claims, they are preempted by federal copyright law." Litchfield v. Spielberg, 736 F.2d 1352, 1358 (9th Cir.1984), cert. denied, 470 U.S. 1052, 105 S. Ct. 1753, 84 L. Ed. 2d 817 (1985); see also Wharton v. Columbia Pictures Industries, Inc., 907 F. Supp. 144, 145 (D.Md.1995) (fraud and misrepresentation claims preempted; they were "`equivalent' to the right to prepare derivative works because each concerns the central allegation that Defendants plagiarized [plaintiff's] copy-righted screenplay.").
This is a close case, because Plaintiff's misrepresentation causes of action stray dangerously close to restating copyright claims. Plaintiff's fraud and negligent misrepresentation claims center on three main allegations. First, Plaintiff asserts that Defendants "represented to [him] that they were interested in his submission of a television script and that they would compensate [him] for" his work in developing "Never Trust A Gambler," "when, in fact, at the time of making such representations, defendants never intended to compensate plaintiff for such a script." Compl. ¶ 29(a). Second, Plaintiff asserts that Defendants "falsely represented to plaintiff that they would not use plaintiff's script when, in fact, defendants did develop and produce a television show" that was based upon Plaintiff's script. Compl ¶ 29(b). Third, Plaintiff asserts that Defendants "wilfully concealed from plaintiff that they were developing and producing a `Columbo' episode based upon `Never Trust A Gambler' so as to deprive plaintiff of his fees and credits[.]"
The gravamen of these allegations is that Defendants fraudulently promised to honor Plaintiff's rights as an author his purported copyright rights and then actually violated those rights. Simply alleging that Defendants violated Plaintiff's rights as an author is "equivalent" to a copyright claim under § 301(a). However, Plaintiff adds an additional element that Defendants fraudulently promised not to violate his authorship rights. *992 As such, the Ninth Circuit's ruling in Valente-Kritzer governs this case.[3] Therefore, Plaintiff's fraud and negligent misrepresentation causes of action are not preempted by federal copyright law.
2. Plaintiff's Fifth Cause of Action for Conversion
Plaintiff asserts that Defendants have "unlawfully and wrongfully converted for their own use the "Never Trust A Gambler" script in producing and distributing the "Columbo" episode "Strange Bedfellows." Compl. ¶ 37. However, Plaintiff alleges that he gave a copy of his "Never Trust A Gambler" script to Chris Seiter; the tangible manuscript was not taken from Plaintiff. Rather, Plaintiff alleges that Defendants wrongfully copied the ideas expressed in the "Never Trust A Gambler" script and then converted them for their own use.
Generally, the copying and distribution of literary intangible property does not state a claim for conversion. See Witkin, Summary of California Law, Torts, § 613. Rather, "[t]he infringement of property rights in a literary or artistic production is a distinct tort (plagiarism)." Id.; see also Nimmer & Nimmer, Nimmer on Copyright, § 1.01[B](1)(i) ("The torts of conversion and trespass relate to interference with tangible rather than intangible property[.]"). Thus, Plaintiff's conversion claim seems more properly a claim for plagiarism or misappropriation. Regardless of how it is cast, however, Plaintiff's Fifth Cause of Action is clearly preempted by federal copyright law because it makes the crucial allegation that Defendants have wrongfully used and distributed Plaintiff's work of authorship. Under the second prong of the Del Madera test, this allegation is clearly equivalent to a copyright claim. It does not add any additional element to the essential claim that Plaintiff's ideas were misappropriated by Defendants. Such a claim is "part and parcel" of a copyright claim. Del Madera, 820 F.2d at 977; see also Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir.1985), cert. denied, 479 U.S. 820, 107 S. Ct. 86, 93 L. Ed. 2d 39 (1986) (Plaintiff "did not allege a state law claim of conversion to recover for the physical deprivation of the notes. Instead he sought to recover for damage flowing from their reproduction and distribution. Such reproduction interferes with an intangible literary or artistic property right equivalent to copyright."); Nimmer & Nimmer, Nimmer on Copyright, § 1.01[B](1)(f)[iii] (citing Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980)) (if a claim is "but another label for reproduction," it is "a preempted right `within the general scope of copyright'"). Therefore, Plaintiff's conversion claim is preempted by federal copyright law.
3. Plaintiff's Sixth Cause of Action for Negligence
Plaintiff also alleges that Defendants negligently failed to acknowledge that "Strange Bedfellows" is based upon "Never Trust A Gambler," and negligently failed to compensate Plaintiff for his script. But this claim merely recharacterizes a copyright infringement claim as one for negligence. Because the essential allegation is still that Defendants unlawfully copied Plaintiff's ideas, it is still a copyright infringement claim. Moreover, recharacterization of the claim as one of "negligence" does not add a legally cognizable additional element because a general claim for copyright infringement is fundamentally one founded on strict liability. See Religious Technology Center v. Netcom *993 On-Line Communication Services, Inc., 907 F. Supp. 1361, 1370 (N.D.Cal.1995) ("copyright is a strict liability statute"); Singer v. Citibank N.A., 1993 WL 177801, *5 (S.D.N.Y. May 21, 1993) (copyright infringement is a tort that generally does not require scienter). The alteration of the required mental state does not add an "additional element" under Valente-Kritzer. Therefore, Plaintiff's negligence claim is preempted by federal copyright law.
C. Propriety of Removal
The Court rules above that federal copyright law preempts Plaintiff's Fifth And Sixth Causes of Action for conversion and negligence. Furthermore, under governing principles, copyright law "completely" preempts equivalent state claims. See Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 232-33 (4th Cir.1993). Generally, federal preemption acts as a defense to a plaintiff's action, so therefore it "does not appear on the face of a well-pleaded complaint." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 1546, 95 L. Ed. 2d 55 (1987). Consequently, the preemption "does not authorize removal to federal court." Id. However, in certain circumstances, "the preemptive force of [federal law] is so `extraordinary' that it `converts an ordinary state common-law complaint into one stating a federal claim for the purposes of the well-pleaded complaint rule.'" Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987) (quoting Metropolitan Life, 481 U.S. at 65, 107 S.Ct. at 1547). Although there is no Ninth Circuit authority on point, a common law claim preempted by federal copyright law is clearly completely preempted under these principles. "Congress has clearly indicated that state-law claims which come within the subject matter of copyright law and which protect rights equivalent to any of the exclusive rights within the scope of federal copyright law ... should be litigated only as federal copyright claims." Rosciszewski, 1 F.3d at 232; see also 28 U.S.C. § 1338 (federal courts have exclusive jurisdiction over copyright claims). Therefore, preempted copyright claims can be removed to federal court. See also Patrick v. Francis, 887 F. Supp. 481, 484-85 (W.D.N.Y.1995) (following Rosciszewski).[4]
D. The Effect of 17 U.S.C. § 411(a) on Plaintiff's Preempted Copyright Claim
Under the principles discussed above, this Court does have removal jurisdiction over Plaintiff's copyright claim under 28 U.S.C. § 1441. However, as Defendants point out in their concurrently filed motion to dismiss, Plaintiff's copyright claim is procedurally defective. Under 17 U.S.C. § 102(a), "[c]opyright protection subsists ... in original works of authorship fixed in any tangible medium of expression[.]" Thus, even though not federally registered, Plaintiff's script, a work of authorship, is protected by the copyright laws. However, under 17 U.S.C. § 411(a), "no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with [the copyright laws]." The only exceptions to this rule are for visual artists (see 17 U.S.C. § 106A(a)) and for foreigners covered by the Berne Convention.[5] As an American script writer, Plaintiff fits in neither of these exceptions. Furthermore, Plaintiff has not alleged that he has applied to register his copyright. Indeed, in his brief in opposition to Defendants' motion to dismiss, Plaintiff fails to address the impact of § 411(a) at all.
*994 Plaintiff's failure to plead that he has applied for a copyright registration deprives this court of subject matter jurisdiction over his copyright claim. "Before a court can have jurisdiction to entertain an infringement action, the prior registration requirement of 17 U.S.C. § 411(a) must be met[.]"[6]Cable News Network v. Video Monitoring Services, 940 F.2d 1471, 1480 (11th Cir.1991), vacated on other grounds, 949 F.2d 378 (11th Cir. 1991); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 (11th Cir. 1990); Jefferson Airplane v. Berkeley Systems, Inc., 886 F. Supp. 713, 715 (N.D.Cal. 1994) ("Such registration is a jurisdictional prerequisite to a suit for infringement."). Therefore, the Court must dismiss Plaintiff's copyright claim (without prejudice) for lack of subject matter jurisdiction.[7]
This case presents an intriguing jurisdictional puzzle which no reported federal copyright case has squarely addressed.[8] Because federal copyright law completely preempts Plaintiff's Fifth and Sixth Causes of Action, this case was properly removed to federal court. However, after exercising its removal jurisdiction, the Court concludes that it must dismiss the claim for lack of subject matter jurisdiction under 17 U.S.C. § 411(a). This appears paradoxical, but it is the only result that makes sense. If the Court simply remanded the copyright claim to state court for lack of subject matter jurisdiction, this order would be meaningless because under 28 U.S.C. § 1338, federal courts have exclusive jurisdiction over copyright claims.[9]
Furthermore, a defendant "does not waive jurisdictional challenges by removing the case to federal court." Schwarzer, et al., Federal Civil Procedure § 2:1034 (citing Pennebaker v. Kawasaki Motors Corp., 155 F.R.D. 153, 157 (S.D.Miss.1994)). Thus, in analogous contexts, federal courts have granted removal jurisdiction over completely preempted claims, but then dismissed (not remanded) on the basis of unrelated quasi-jurisdictional deficiencies. For example, federal courts are often presented with removed state claims that are completely preempted by the Employee Retirement Income Security Act ("ERISA"). In such a case, the federal court will exercise removal jurisdiction. Then, the Court is presented with the question of whether the plaintiff has exhausted his or her administrative remedies. If exhaustion is not futile, a federal court will refrain from exercising jurisdiction on ripeness grounds and dismiss the preempted ERISA claim without prejudice.[10]See, e.g., Franklin H. Williams Ins. Trust v. Travelers Ins. Co., 847 F. Supp. 23 (S.D.N.Y.1994), rev'd. on other grounds, 50 F.3d 144 (2d Cir.1995) (accepting removal jurisdiction but *995 then dismissing for failure to exhaust); Harrison v. California Care, 1994 WL 69469 (N.D.Cal. Feb. 14, 1994) (same result); Diaz v. Texas Health Enterprises, Inc., 822 F. Supp. 1258 (W.D.Tex.1993) (same result); Spicer v. Louisiana Power & Light Co., 1993 WL 133765 (E.D.La. Apr. 21, 1993) (same result).
Thus, while there are no reported cases that address this issue in the precise context of 17 U.S.C. § 411(a), the Court follows the jurisdictional logic expressed by courts confronted by unexhausted ERISA claims. Accordingly, Plaintiff's Fifth and Sixth Causes of Action are completely preempted by federal law, and thus removed to federal court. However, because the preempted copyright claim is jurisdictionally defective under § 411(a), the Court dismisses the copyright claim without prejudice pursuant to Federal Rule 12(b)(1).[11]
E. Remaining State Law Causes of Action
Because the Court dismisses Plaintiff's federal copyright claim without prejudice, Plaintiff's First, Second, Third, and Fourth Causes of Action for breach of contract, breach of confidence, fraud,[12] and negligent misrepresentation[13] (all of which are governed by state law) are hereby REMANDED to state court pursuant to 28 U.S.C. § 1367(c)(3) (federal court may decline to exercise supplemental jurisdiction over state claims if original federal claim is dismissed).
III. Conclusion
For the reasons discussed above, the Court ORDERS as follows:
1.) Plaintiff's Motion to Remand is GRANTED in part. Plaintiff's First, Second, Third, and Fourth Causes of Action are hereby REMANDED to state court;
2.) Defendants' Motion to Dismiss is GRANTED in part. Plaintiff's Fifth and Sixth Causes of Action are hereby DISMISSED without prejudice.
SO ORDERED.
NOTES
[1] Under 28 U.S.C. § 1447(c), "[a] motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a)." See Northern California District Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th Cir.1995). Plaintiff filed his motion for remand on December 27, 1995, 30 days after Defendants' Notice of Removal was actually filed. Therefore, Plaintiff's motion to remand is timely.
[2] Defendants contend that they did not actually violate Local Rule 3.4.9(d). Arguably, Plaintiff's state court Complaint was the initial pleading. However, Defendants' Notice of Removal was the initial pleading in federal court.
[3] The Court notes that the Ninth Circuit's Valente-Kritzer holding creates results that may conflict with the federal concerns motivating copyright law. In essence, a plaintiff may always avoid copyright preemption by further alleging the additional element that a defendant fraudulently promised not to violate his or her authorship rights. Under Valente-Kritzer, this is true even though the main focus of the action will be on the nature of the author's rights and the extent to which the defendant violated them the main concerns of federal copyright law, which under 28 U.S.C. § 1338, is an area of exclusive federal jurisdiction and evident national concern. Additionally, under the California law of promissory fraud, the facts concerning the alleged violation itself will serve as much of the evidence going to the alleged fraud. See Miller v. National American Life Ins. Co. of California, 54 Cal. App. 3d 331, 339, 126 Cal. Rptr. 731 (1976) (the refusal to follow through on a promise gives rise to a permissible inference of fraud). Regardless, this Court is, of course, bound by the Valente-Kritzer holding.
[4] In their Notice of Removal, Defendants also alleged that Plaintiff's claims were preempted by the Labor Management Relations Act. However, as Plaintiff points out, there is no allegation that he was employed to write a script for "Columbo," and Defendants have not shown exactly how this case would require this Court to interpret any applicable Collective Bargaining Agreement. In their Opposition to Plaintiff's motion to remand, Defendants do not address LMRA preemption at all. Instead, Defendants rely solely on their copyright arguments. The Court therefore presumes that Defendants have dropped their LMRA preemption argument.
[5] The Berne Convention allows foreigners who have not registered to sue for copyright infringements occurring after March 1, 1989. Nimmer & Nimmer, Nimmer on Copyright § 7.16[B](1)(b).
[6] Registration to meet the requirements of § 411(a) is not a particularly onerous burden. For the purposes of filing an infringement action, "the effective date of a copyright registration is the day on which an application, deposit, and fee ... have all be received by the Copyright Office." 17 U.S.C. § 410(d). Thus, Plaintiff can satisfy the § 411(a) requirement by merely filing an application for registration with the Copyright Office. Nimmer & Nimmer, Nimmer on Copyright § 7.16[B](1) n. 39. Once the Copyright Office receives Plaintiff's application, he can bring a claim for copyright infringement. The receipt of Plaintiff's application satisfies § 411(a)'s jurisdictional requirement, whether or not the application is granted or denied, and whether or not the application precedes or follows the alleged infringement. Id. Actual registration (not just an application) of the copyright is required for Plaintiff to recovery statutory damages and attorney's fees (see 17 U.S.C. § 412), but it is not necessary for the imposition of an injunction. Nimmer, § 7.16[C](3).
[7] Because the procedural defect in Plaintiff's copyright claim is jurisdictional, Defendants' motion to dismiss is more properly cast as a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
[8] At the hearing, Defendants cited the Court to Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946) and Subafilms, Ltd. v. MGM-Pathe Communications, 24 F.3d 1088, 1091 n. 5 (9th Cir.1994), stating that they were dispositive of this issue. The Court disagrees, finding them not specifically on point.
[9] In fact, if the Court were to remand to state court for lack of subject matter jurisdiction generally, its ruling concerning copyright preemption itself could arguably be unenforceable as an advisory opinion.
[10] For the general ERISA exhaustion requirement, see generally Diaz v. United Agricultural Employee Welfare Benefit Plan and Trust, 50 F.3d 1478, 1483 (9th Cir.1995).
[11] However, as discussed in footnote 6 above, the jurisdictional defect in Plaintiff's copyright claim is easily cured.
[12] For Plaintiff's guidance, the Court offers the following advice if he intends to refile his fraud claim together with a copyright claim in federal court. Under Federal Rule of Civil Procedure 9, Plaintiff must plead a fraud claim with "particularity[.]" "[A]llegations of fraud [must be] specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). "A pleading `is sufficient under Rule 9(b) if it identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations.'" Neubronner v. Milken, 6 F.3d 666, 671 (9th Cir.1993) (quoting Gottreich v. San Francisco Investment Corp., 552 F.2d 866, 866 (9th Cir.1977)). The fraud complaint should generally set out the time, place, and content of alleged misrepresentations, who made the statements, why they were false, as well as set forth specific facts to show the defendant's knowledge of material falsity. In re GlenFed, Inc. Securities Litigation, 42 F.3d 1541 (9th Cir.1994) (en banc). In short, mere conclusory allegations of fraud, such as those described in Plaintiff's current Complaint, are insufficient under Rule 9.
[13] Because Plaintiff's negligent misrepresentation claim was indeed defective, however, the Court also offers this further guidance. Before re-filing any such claim, Plaintiff is directed to three basic principles of California negligent misrepresentation law. First, an action for negligent misrepresentation cannot be founded upon a false promise. See Tarmann v. State Farm Mutual Automobile Ins. Co., 2 Cal. App. 4th 153, 156, 2 Cal. Rptr. 2d 861 (1991). Second, Plaintiff must plead that Defendants intended to induce him to rely on their negligent misrepresentations. See Fox v. Pollack, 181 Cal. App. 3d 954, 962, 226 Cal. Rptr. 532 (1986); Cal.Civ.Code § 1710. Third, a negligent misrepresentation cause of action will not lie for an implied representation or for negligent concealment of information, absent a duty to reveal that information. Byrum v. Brand, 219 Cal. App. 3d 926, 942, 268 Cal. Rptr. 609, (1990); Wilson v. Century 21 Great Western Realty, 15 Cal. App. 4th 298, 306, 18 Cal. Rptr. 2d 779 (1993). |
9,645,545 | 2023-08-22 21:28:06.886235+00 | Onion | null | OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
ONION, Presiding Judge.
This is an appeal from an aggravated robbery conviction. The jury found the appellant guilty and that the allegations of two prior felony convictions were “true.” The court assessed punishment at life imprisonment in accordance with V.T.C.A., Penal Code, § 12.42(d) (in effect at the time).
On appeal the appellant, inter alia, contended that the State failed to prove he was the same person allegedly convicted of the second prior felony conviction set forth in the indictment. On this ground the Houston Court of Appeals [1st Dist.] reversed the conviction and remanded the cause to the trial court. Littles v. State (No. 01-82-0107CR — February 24, 1983). We granted the State’s petition for discretionary review to determine the correctness of the decision below.
In addition to the primary offense of aggravated robbery, the indictment alleged that appellant had been previously convicted on May 18, 1970 of burglary in Cause No. 145613 in the 179th District Court of Harris County, and that he had also been convicted on July 22, 1971 of the felony offense of intentionally and knowingly failing to appear in District court in Cause No. 158177 in the 209th District Court of Harris County.
At the penalty stage of the trial the State called Juan Jorge of the Identification Division, Harris County Sheriff’s office who was qualified as a fingerprint expert. Jorge testified that known fingerprints of the appellant which he had personally taken from the appellant were identical with the fingerprints found in the pen packets, State’s exhibits 7 and 8. It was his opinion that the prints were made by the same person. State’s exhibit 7 referred to the prior burglary conviction in Cause No. 145613 alleged as the first prior conviction. It contained the certified copies of the judgment and sentence, photographs, fingerprints, physical description, etc., under the certification of the Records Clerk of the Texas Department of Corrections. State’s exhibit 8 referred to the felony conviction for failure to appear in Cause No. 258177, the second alleged prior conviction. It likewise contained certified copies of the judgment, sentence, photographs, fingerprints, etc., under the same certification as exhibit 8.
When State’s exhibits 7 and 8 were offered into evidence by the State, the appellant objected to the admission of the fingerprint page of exhibit 8 on the ground that such page on its face expressly referred to a theft conviction with a different cause number than the failure to appear conviction. The prosecution withdrew the fingerprint page which also included a physical description and offered the pen packet, exhibit 8, sans any reference to fingerprints or physical description. Thereafter State’s exhibits 7 and 8 were admitted into evi*28dence over objection that exhibit 8 was insufficient to prove appellant was the same person previously convicted as alleged regarding the second prior conviction. Although the alleged second prior conviction occurred in Harris County in 1977, the State made no effort to offer other testimony to prove the appellant was the same person convicted.
Both sides rested and closed and the court submitted the issues of whether the appellant was the same person so previously convicted as alleged in the indictment, and the jury was instructed on the burden of proof.
The jury returned its verdict finding, inter alia, “that the allegations in Enhancements paragraphs one and two of the indictment are ‘true.’ ”
On appeal the Court of Appeals reversed citing Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App.1977), and Daniel v. State, 585 S.W.2d 688 (Tex.Cr.App.1979). It held that exhibit 8, standing alone, was insufficient to show the appellant was the person so previously convicted of the alleged second prior conviction.
It has been said that statutes such as Y.T.C.A., Penal Code, § 12.42(d), create no offense, but merely authorize increased punishment to be affixed to subsequent convictions. The provisions are reformatory in nature and must be strictly construed. Ex parte Davis, 412 S.W.2d 46, 51 (Tex.Cr.App.1967).
The State has the burden of proof concerning the prior convictions alleged for the purpose of enhancement of punishment, and the standard of proof is beyond a reasonable doubt. Ex parte Augusta, 639 S.W.2d 481 (Tex.Cr.App.1982). This burden, inter alia, includes proving that the defendant is the same person convicted of the prior felony which will serve to provide predicate for enhancement of punishment. Rios v. State, 557 S.W.2d 87 (Tex.Cr.App. 1977).
There are, of course, a number of methods by which the State may properly prove the prior convictions alleged for the purpose of enhancement of punishment. Some have been listed and discussed in Cain v. State, 468 S.W.2d 856 (Tex.Cr.App. 1971), and Daniel v. State, supra. These, of course, are not exclusive. One method, and perhaps the most popular with prosecutors because it is the easiest, is the introduction of certified copies of the judgment and sentence and the record of the Texas Department of Corrections or county jail including fingerprints supported by the testimony of an expert witness identifying those prints as identical with known prints of the accused. Rios v. State, 557 S.W.2d 87 (Tex.Cr.App.1977); Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977); Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976); Blake v. State, 468 S.W.2d 400 (Tex.Cr.App.1971); Babcock v. State, 473 S.W.2d 941 (Tex.Cr.App.1971); Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968).
In the instant case, the prosecutor pursued this method and sufficiently proved the first prior felony conviction alleged by use of exhibit 7 (the pen packet) and the testimony of the fingerprint expert. However, with the withdrawal by the prosecutor of the fingerprint page (including physical description) of exhibit 8, the question is whether the evidence remaining was sufficient to prove the second prior felony conviction alleged.
The withdrawal of the fingerprint page of the said exhibit rendered the fingerprint expert’s testimony regarding the same immaterial. All that remained of the exhibit was the certified copies of the judgment and sentence, the photographs (front and side views) and the certification page. Was this enough to prove the second prior conviction as alleged?
The certified copies of the judgment and sentence standing alone are not sufficient to prove the allegations, Franklin v. State, 154 Tex.Cr.R. 375, 227 S.W.2d 814 (1950); Phariss v. State, 149 Tex.Cr.R. 406, 194 S.W.2d 1007 (1946), and this is true even if the name on the judgment and sentence is the same as the defendant on trial. Elizalde v. State, 507 S.W.2d 749, 752 (Tex.Cr.App.1974).
*29Does the addition of the two photographs or mug shots change the situation?
In Gollin v. State, 554 S.W.2d 683 (Tex. Cr.App.1977), the pen packet, inter alia, included two mug shots (front and side views) and a physical description which reflected the height, weight, complexion, eyes, hair, race, date of birth of the inmate and noted he had a cut scar on the right cheek. Although there was no fingerprint testimony, a deputy sheriff testified he was acquainted with Gollin and had examined the photographs and physical description in the pen packet and expressed the opinion the person referred to in the pen packet was Gollin, who was present in the courtroom. Gollin’s confession, admitted into evidence, reflected his race, date and place of birth which corresponded to the description in the pen packet.
Under the facts Gollin is a far cry from the instant case.
The State calls attention to the extradition cases of Ex parte Nelson, 594 S.W.2d 67 (Tex.Cr.App.1980); Ex parte Viduari, 525 S.W.2d 163 (Tex.Cr.App.1975); and Ex parte O’Connor, 336 S.W.2d 152 (Tex.Cr.App.1960), as authority for the proposition that a photograph is sufficient for identification of a defendant in that type of habeas corpus proceedings. In Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975), this Court specifically noted that an extradition proceedings is a different type of proceedings than a criminal trial and the strict rules of evidence do not apply, and the evidence is to be regarded liberally in favor of the demanding state.
The cases cited by the State are not applicable in a criminal trial where the issue of guilt or innocence or the allegations for enhancement of punishment are in issue.
The State also cites Dorsett v. State, 396 S.W.2d 115 (Tex.Cr.App.1965), and Jean v. State, 172 Tex.Cr.R. 518, 360 S.W.2d 148 (1962). Both of these cases involved prosecution for the subsequent offense of driving a motor vehicle on a public highway while intoxicated. There the court held that a physical description of an individual (with same name as defendant on trial) contained in the records of the Texas Department of Corrections which were admitted into evidence were sufficient to show that the defendant had been previously convicted, where the fact finder had an opportunity to observe the defendant and determine by comparison with the description in the record whether he was the same person so previously convicted as alleged. In Jean there was no objection to the records introduced and the driver’s license number in the records corresponded with the driver’s license number found on the defendant’s person. In Dorsett in upholding the conviction the court cited Jean with approval.
In the instant case there was no physical description in exhibit 8 as admitted and we do not deem these cases as persuasive.
The State also urges that the jury could have compared the photographs in exhibit 7 taken on November 13, 1972 with the photographs in exhibit 8 taken on January 30, 1979, and compared them with the appellant on trial on December 1, 1981, and that this would be sufficient to show he was the same person so previously convicted of the second prior felony conviction. This Court has never favored “bootstrapping” in this manner to prove allegations essential to enhanced punishment. See Daniel v. State, supra. We do not do so now.
This is a simple case of failure of proof by the State. If the State had expended only a fraction of the time consumed in briefing this case by properly proving up the case in the trial court, the appellate court system would have been saved much time and effort.
We hold the evidence was insufficient to show appellant was the person previously convicted of the second prior felony conviction alleged for enhancement of punishment. The State did not meet its assigned burden of proof.
Since the error here occurred at the penalty stage of the trial before a jury, he is entitled to a new trial, not just the proper assessment of punishment by the trial court. Ex parte Augusta, 639 S.W.2d 481 (Tex.Cr.App.1982).
*30The judgment of the Court of Appeals reversing the conviction is affirmed. The cause is remanded to the trial court.
W.C. DAVIS, McCORMICK, and CAMPBELL, JJ., concur in the result. |
9,645,546 | 2023-08-22 21:28:06.891152+00 | McCORMICK | null | OPINION ON STATE’S MOTION FOR REHEARING
McCORMICK, Judge.
Appellant was convicted of aggravated robbery. Punishment, enhanced by two prior convictions, was assessed at life imprisonment.
The enhancement allegations of the indictment alleged the following:
“Before the commission of the offense alleged above, (hereafter styled the primary offense), on MAY 18, 1970, in Cause No. 145613, in the 179th District Court of Harris County, Texas, the Defendant was convicted of the felony of burglary with intent to commit theft.
“Before the commission of the primary offense, and after the conviction in Cause No. 145618 was final, the Defendant committed the felony of unlawfully, intentionally and knowingly fail to appear in the District Court, as charged in the indictment and was convicted on JULY 22, 1977, in Cause No. 258177, in the 209th District Court of Harris County, Texas.”
During the punishment phase of the trial, Deputy Juan Jorge of the Harris County Sheriffs Department was qualified as a fingerprint expert. He testified that twenty minutes prior to his testimony he had taken the fingerprints of appellant and placed them on State’s Exhibit 6. He further testified that he had compared the fingerprints contained in State’s Exhibit 7, a pen packet regarding the first alleged prior felony, with the prints on State’s Exhibit 6 and found that both sets of prints were made by the same person. When Jorge began testifying as to the fingerprint comparisons between State’s Exhibit 6 and State’s Exhibit 8, the pen packet relating to the second alleged prior conviction, it was discovered that the data on the fingerprint page in State’s Exhibit 8 referred to a theft conviction, rather than the conviction for failure to appear. In response to defense objections, the trial court ordered that the fingerprint page of State’s Exhibit 8 be removed before it was submitted to the jury. Remaining in the pen packet for the jury’s consideration was a photograph of appellant, and the judgment and sentence for the conviction.
On original submission to the Court of Appeals, appellant’s ground of error was worded as follows:
“There was a fatal variance in the punishment stage of the trial between the allegations in the indictment and the proof as to appellant’s prior convictions.”
Appellant argued that the State never proved that the appellant was the person to whom the enhancement allegation alleging a prior conviction for failure to appear referred. He further argued that the State’s proof failed because there was no detailed description of the named person along with the photograph as mandated in Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App.1977).
The Court of Appeals rendered an unpublished opinion, treating appellant’s ground of error as a procedural issue rather than a sufficiency issue. The Court held that the trial court erred in admitting into evidence a defective pen packet because the photograph was not accompanied by a detailed description of the defendant as required in Gollin. Thus, appellant’s conviction was reversed and remanded for a new trial. Littles v. State, No. 01-82-0107-CR, delivered February 24, 1983 (Tex.App.-Houston [1st Dist.] 1983).
We granted the State’s petition for discretionary review to review the Court of Appeals’ decision. On original consideration of the State’s petition, the majority of this Court affirmed the opinion of the Court of Appeals. Now, on rehearing, after careful consideration, we find that our original opinion was incorrect. Viewing the evidence in the light most favorable to the jury’s verdict, we hold that there was sufficient evidence to support the jury’s finding that the enhancement allegations were true.
*31Gollin v. State, supra, upon which the Court of Appeals relied on is extremely helpful to our determination. In Gollin, State’s Exhibit 18, a pen packet showing Gollin’s prior conviction for passing a forged instrument, contained a judgment, sentence, commitment, photographs, fingerprints, and a physical description of Gol-lin. At trial, the State attempted to prove that Gollin was the same person previously convicted of the offense set out in State’s Exhibit 18 through the use of fingerprint comparison. However, because the State did not qualify its witness as an expert in fingerprint comparison, the State’s attempt at fingerprint proof failed. The State then put a deputy on the stand who testified that he was acquainted with Gollin and had examined the photograph and physical description of Gollin contained in State’s Exhibit 18 and in his opinion the person in the exhibit was Gollin. On appeal, Gollin argued that the State's Exhibit 18 should not have been admitted because the State failed to prove that he was the same person named in the exhibit. In its opinion, the Court began its analysis by recognizing that there were at least three nonexclusive means of proving identity for purposes of enhancement. They were: (1) by testimony of a witness who identifies the accused as the same person previously convicted; (2) by introduction of certified copies of the judgment and sentence and record of TDC or a county jail including fingerprints of the defendant, supported by expert testimony identifying them as identical with known prints of the defendant; and (3) by stipulation or judicial admission of the defendant. Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971); Daniel v. State, 585 S.W.2d 688 (Tex.Cr.App.1979). The Court went on to note that in a variety of cases, including a DWI case [Dorsett v. State, 396 S.W.2d 115 (Tex.Cr.App.1965)], a revocation of probation case [Johnson v. State, 410 S.W.2d 785 (Tex.Cr.App.1967) ] and even in extradition cases [Ex parte Viduari, 525 S.W.2d 163 (Tex.Cr.App.1975) and Ex parte O’Connor, 169 Tex.Cr.R. 579, 336 S.W.2d 152 (1960) ], the evidence was held to be sufficient to prove that the accused was the same person named in the record in question where that record contained photographs and a detailed physical description of a named person and the accused was present in court for the fact finder to compare his appearance with that person described in the record.1 Applying these holdings to the proof at trial, the Court held that the evidence was sufficient to prove Gollin’s identity.
In the instant case there was no physical description of appellant contained in State’s Exhibit 8. We are mindful, however, that the methods outlined in Gollin are not the sole means of proving up identity with respect to a prior conviction. And, as we did in Gollin, we find it helpful to look at other cases where similar proof was found sufficient to prove the accused’s identity.
In two cases involving convictions for DWI, Dorsett v. State, supra, and Jean v. State, 172 Tex.Cr.R. 518, 360 S.W.2d 148 (1962), the defendant claimed the evidence was insufficient to show he had a prior DWI conviction. In both cases, the State introduced DPS records. These records showed that both defendants had been issued a driver’s license and had later been convicted of DWI. In each case the records also contained a physical description of the defendant. This Court, finding the evidence sufficient in both cases, noted that the jury had the opportunity to observe the defendants at trial and compare the defendants’ appearance with the descriptions contained in the DPS records. Applying these holdings to the instant case, we find that the application of a juror’s subjective interpretation to a written de*32scription of an individual would lead to a far less dependable result than that required when the jury is asked to identify an individual by means of a photograph.
Looking to extradition cases for guidance, as did the Court in Gollin, we find that it has long been an accepted practice to identify the accused by means of a photograph. Ex parte Henson, 639 S.W.2d 700 (Tex.Cr.App.1982); Ex parte Nelson, 594 S.W.2d 67 (Tex.Cr.App.1979) (Opinion on Original Submission); Ex parte Viduari, 525 S.W.2d 163 (Tex.Cr.App.1975). In Ex parte O’Connor, 169 Tex.Cr.R. 579, 336 S.W.2d 152 (1960), the State introduced into evidence photographs taken by a Harris County assistant district attorney and an affidavit signed by a Pennsylvania store detective which stated that the photographs depicted the man arrested in Pennsylvania and wanted on the extradition warrant. This Court held that such evidence was sufficient to enable the trial judge to reject O’Connor’s testimony that he was not the man they were seeking.
Reviewing the facts of the instant case, we find that the State properly proved appellant’s identity as to the first prior conviction through the use of fingerprints. The records of this conviction were contained in State’s Exhibit 7. Included in State’s Exhibit 7, was a pair of photographs depicting appellant’s front and side view taken on November 13, 1972. As noted above State’s Exhibit 8, the pen packet regarding the second alleged prior conviction, contained two more photographs of appellant, depicting front and side views, taken on November 30, 1979. Since the person convicted in State’s Exhibit 7 was proven to be appellant through the use of fingerprints, clearly the jury had the capability to compare the photographs contained in State’s Exhibit 7 and State’s Exhibit 8 and come to the conclusion that the photographs depicted the same individual, the appellant. We find that there was clearly sufficient evidence before the jury to show that the person convicted in State’s Exhibit 7 was the same person convicted in State’s Exhibit 8.
To the extent that Daniels, Cain, Gollin, or any other case can be read as holding that there are exclusive manners of proof of a defendant’s identity as to prior felonies used for enhancement, they are overruled. Each case is to be judged on its own individual merits. This is not to say that there are not preferred methods of proving identity with respect to enhancement allegations. But, where as in the instant case, the proof, though unorthodox, was clearly sufficient, no error will be found. Compare White v. State, 677 S.W.2d 683 (Tex.App.-Beaumont 1984, no petition).
The State’s motion for rehearing is granted, the judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for consideration of appellant’s remaining grounds of error.
ONION, P.J., and CLINTON, TEAGUE and MILLER, JJ., dissent.
. Our reading of Dorsett v. State, 396 S.W.2d 115 (Tex.Cr.App. 1965), the DWI case relied on by the Court in Gollin, shows that notwithstanding the language in Gollin, there was no photograph of Dorsett introduced into evidence. Rather, DPS records were introduced into evidence showing that a driver’s license was issued to an individual by the name of Lathern Dorsett. The records further described Lathern Dorsett as a "White male; blue eyes; blonde hair’ 165 pounds; 5'10"; born June 2, 1929.” This Court, recognizing that the jury had the opportunity to observe Dorsett and compare him with the verbal description contained in the DPS records, found the evidence sufficient to identify Dorsett. |
1,516,528 | 2013-10-30 06:32:56.124864+00 | Countiss | null | 726 S.W.2d 198 (1987)
Oscar Eduardo Martinez GARZA, Relator,
v.
Honorable Naomi HARNEY, Respondent.
No. 07-86-0012-CV.
Court of Appeals of Texas, Amarillo.
January 30, 1987.
*199 Mark L. Mosley, Chambers & Mosley, Amarillo, for relator.
Jerry D. McLaughlin, Amarillo, for party in interest.
Before DODSON, COUNTISS and BOYD, JJ.
COUNTISS, Justice.
This is an original mandamus proceeding. Tex.R.Civ.Pro. 383; Tex. Gov't Code Ann. § 22.221 (Vernon Pamph.Supp.1986). Relator Oscar Eduardo Martinez Garza ("Garza") has petitioned this Court for a writ of mandamus directing respondent, The Honorable Naomi Harney, to rescind *200 temporary orders entered by her in a domestic controversy. We conditionally grant the writ in part and deny the writ in part.
Garza and the other real party in interest in this case, Shelley Elizabeth Taylor ("Taylor"), were husband and wife residing in Monterrey, N.L., Mexico. Two minor children, a son and a daughter, were born of the marriage. In early 1983, Garza and Taylor mutually petitioned the First Court of Family Affairs, First Judicial District of Monterrey, for a divorce and related relief. In August 1983, the court granted the divorce. The court also ordered the parties to abide by various mutual agreements concerning their property and children. Among other things, Taylor received what appears to be temporary custody of her children, but was ordered not to remove them from the Monterrey area. Garza was given extensive visitation rights. The Mexican court planned to enter final custodial orders after various psychological studies were completed.
In June 1985, while the custody matter was still pending in the Monterrey court,[1] Taylor moved with the children to Randall County, Texas. Garza then filed a petition in the 251st District Court of Randall County seeking to enforce the Mexico orders and compel the return of the children to Mexico. Taylor filed a counterclaim asking for a temporary injunction, and ultimately, modification of the Mexican decree.
Respondent granted the temporary injunction pending final orders, permitting the children to remain with Taylor in the United States and substantially limiting Garza's access to the children.
By this suit, Garza contends the district court in Randall County had neither the jurisdiction nor the power to enter a temporary order and alter the Mexican decree, that by doing so the district court abused its discretion and that we should by writ of mandamus correct that abuse by requiring the district court to rescind its temporary order and dismiss Taylor's counterclaim.
At the outset, we note that mandamus is an extraordinary remedy. Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, 795 (1941). Its office is to execute, not to adjudicate; therefore, unless relator clearly shows a legal right to the performance by respondent of the duty sought to be enforced, Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939), or a clear abuse of discretion, Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 440 (1959), the writ will not issue. This Court cannot entertain an application for writ of mandamus to resolve a fact question. Rogers v. Lynn, 121 Tex. 467, 49 S.W.2d 709, 714, reh'g denied, 121 Tex. 467, 51 S.W.2d 1113-14 (1932).
Garza seeks relief under the Uniform Child Custody Jurisdiction Act, Subchapter B of Title 2 of the Family Code, Tex.Fam.Code Ann. §§ 11.51-11.75 (Vernon 1986). The initial question is whether the Act applies to a proceeding in a foreign nation. By § 11.73, the "general policies" of the Act "extend to the international area."[2] Under that section, a decree of a similar court in another nation where basic due process was observed, is to be recognized and enforced by Texas courts. Tex. Fam.Code Ann. § 11.73 (Vernon 1986).
Under the record before us, the Mexican court functions like a Texas court handling domestic matters. Both Garza and Taylor appeared voluntarily before that court and it is obvious that the court observed basic due process. Thus, we hold the Act applicable to this case.
Garza contends that, under the Act, the district court had neither the jurisdiction nor the power to render the order in question. *201 In order to analyze his contentions, we must review certain sections of the Act. Section 11.53, the jurisdictional section, permits a Texas court with general jurisdiction over custody matters to make a custody determination by initial decree or modification decree if one of four possible jurisdictional bases exists. Those four bases are commonly referred to as the (1) home state, (2) significant connection, (3) emergency, and (4) default bases.[3] Even if a jurisdictional base exists, the Texas court may not be able to determine or modify custody, however. For instance, section 11.56 says the Texas court may not exercise its jurisdiction if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons. Additionally, under section 11.64(a), a Texas court may not modify the decree of a court of a sister state unless:
(1) it appears to the court of this state that the court that rendered the decree does not have jurisdiction under jurisdictional prerequisites substantially in accordance with this subchapter or has declined to assume jurisdiction to modify the decree; and
(2) the court of this state has jurisdiction.
Thus, the first substantive question is whether the trial court had jurisdiction of this case under § 11.53. The only jurisdictional ground mentioned in the trial court's temporary order,[4] or relied on by Taylor, is the third ground, the "emergency" ground. That ground is satisfied if (1) the child is physically present in Texas, and (2) has either been abandoned or "it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or there is a serious and immediate question concerning the welfare of the child...." Tex.Fam.Code Ann. § 11.53(a)(3)(B) (Vernon 1986).
But, says Garza, there is no evidence of either element of the ground. We will treat Garza's argument as a legal insufficiency contention and, applying the standard mandated by Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), we will examine the record for any probative evidence to support the court's action, ignoring all contrary evidence.
*202 The first element, the physical presence of the children in Texas, was alleged by Garza in his pleadings and admitted by Taylor's counsel during the taking of Taylor's deposition.[5] That is sufficient to establish the element.
The second element, actual or threatened mistreatment, abuse, or neglect, or a serious, immediate question about the children's welfare, was the subject of considerable testimony by Taylor. In discussing Garza's relationship with their daughter, she testified that he had "many times pushed and shoved and battered my little girl and he was very often psychologically abusive to her." Taylor said the daughter would come home bruised, with marks on her arms and chest and would be frightened and crying and asking why her father did not love her. She also testified that her move to the United States was because of a culmination of those incidents.
When asked about her son, however, Taylor testified she was not alleging that Garza physically abused him. The evidence of physical abuse was centered on, and limited to, acts of violence by Garza toward his daughter, and also toward Taylor when they lived together.
As quoted above, under section 11.53(a)(3)(B), the emergency order can be rendered upon evidence that the child "has been subjected to or threatened with mistreatment or abuse".... Certainly the evidence just discussed proves that fact and supports the district court's finding that emergency orders were needed to protect the daughter. Therefore, we conclude that both elements of the emergency base have been established for her and that the district court's finding concerning the daughter is supported by the evidence.[6]See Marcrum v. Marcrum, 181 N.J.Super. 361, 437 A.2d 725, 727-28 (App.Div.1981); cf. Milner v. Kilgore, 718 S.W.2d 759 (Tex. App.Corpus Christi 1986, no writ) (trial court lacked jurisdiction where allegations of a serious and immediate question concerning the welfare of a child were filed after the jurisdictional hearing); Soto-Ruphuy v. Yates, 687 S.W.2d 19 (Tex.App. San Antonio 1984, no writ) (allegation consisted of father's affidavit "based on hearsay upon hearsay" and record contained no evidence of physical or emotional harm requiring immediate action).
We cannot reach that same conclusion about the son, however. There is no evidence of any emergency concerning him and no indication, or contention, that he needs emergency protection. Thus, to that extent, the district court's finding has no evidentiary support. It follows that the court did not have jurisdiction to render a temporary order concerning the son.
Resolution of the jurisdictional question does not, however, resolve the case. Under sections 11.56 and 11.64, a Texas court may have jurisdiction of a custody dispute and still not have the power to act if a court of a sister state (or nation, under section 11.73) has jurisdiction of the matter. It is undisputed under this record that the proceeding contemplated by sections 11.56 and 11.64 is pending in a Mexican court. Thus, the final question is whether the Texas court should have taken action.
We initially note that a trial court has broad discretion in issuing orders for the immediate protection of a child. McElreath v. Stewart, 545 S.W.2d at 958; Milner v. Kilgore, 718 S.W.2d at 762. After carefully analyzing the few authorities pertinent to the facts before us, we have concluded *203 that the district court was empowered to act, but only on a short term, temporary, emergency basis. We do not construe the foregoing statutes to bar a court from making emergency orders to protect a child. Rather, we agree with, and adopt, the interpretation of the emergency grant of jurisdiction stated in Hache v. Riley, 186 N.J.Super. 119, 451 A.2d 971 (Ch.Div.1982). In that case, the New Jersey court pointed out that a court could exercise emergency jurisdiction under the Uniform Act whenever there was a potential for immediate harm. It emphasized, however, that exercise of the emergency jurisdiction "does not take on the same characteristic or implications as the exercise of jurisdiction under other provisions of the act." Id. 451 A.2d at 975. The court then held:
Assumption of emergency jurisdiction is an assumption of temporary jurisdiction only; it is meant solely to prevent irreparable and immediate harm to children and, absent satisfaction of other UCCJA jurisdictional prerequisites, does not confer upon the state exercising emergency jurisdiction the authority to make a permanent custody disposition.
In reaching that conclusion, the court quoted Professor Bodenheimer:
There are, of course, legitimate occasions for the exercise of emergency jurisdiction. However, this special power to take protective measures does not encompass jurisdiction to make a permanent custody determination or to modify the custody decree of a court with continuing jurisdiction. Emergency jurisdiction confers authority to make temporary orders, including temporary custody for a limited period of time, pending proceedings in the state with regular jurisdiction under the Act. [Bodenheimer, "Interstate Custody; Initial Jurisdiction and Continuing Jurisdiction under the UCCJA," XIV Fam.Law Q. No. 4 (Winter 1981); footnotes omitted.]
We reach the same conclusion here. The emergency involving the daughter permitted the district court to enter a temporary order for the daughter's protection until proper steps are taken in the original forum state to adequately protect the daughter. The district court cannot, however, take any other action that would change the orders of the Mexican court.
We assume that Judge Harney will vacate her order insofar as it touches the son and will vacate the order concerning the daughter when she is satisfied that steps have been taken by the Mexican court to adequately protect the daughter. The writ will issue only if she fails to do so.
NOTES
[1] Mrs. Taylor testified by deposition that the custody issue had not been finally resolved and was still pending before the Mexican court.
[2] § 11.73. International Application
The general policies of this subchapter extend to the international area. The provisions of this subchapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.
[3] As pertinent here, Section 11.53(a) states:
(a) A court of this state that is competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification decree or order if:
(1) this state:
(A) is the home state of the child on the date of the commencement of the proceeding; or
(B) had been the child's home state within six months before the date of the commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
(2) it appears that no other state would have jurisdiction under Subdivision (1) of Subsection (a) of this section and it is in the best interest of the child that a court of this state assume jurisdiction because:
(A) the child and his parents or the child and at least one contestant have a significant connection with this state other than mere physical presence in this state; and
(B) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(3) the child is physically present in this state and:
(A) the child has been abandoned; or
(B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or there is a serious and immediate question concerning the welfare of the child; or
(4) it is in the best interest of the child that this court assume jurisdiction and:
(A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with Subdivision (1), (2), or (3) of this subsection; or
(B) another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child.
[4] The trial court found that the custodial rights should be altered "for the safety and welfare of the children."
[5] Taylor's counsel said: "Let me be of some help to you, though. We will have noyou have got allegations of residence in Randall County for purposes of giving jurisdiction to this particular lawsuit and we will not quarrel with you or we will not challenge jurisdiction with you on that, counsel."
We presume the trial court construed the statement as an admission of the element.
[6] We observe that under section 11.53(a)(3)(B), there are two reasons for emergency orders: (1) if it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected, or (2) there is a serious and immediate question concerning the welfare of the child. Our decision is based on the first ground. For a construction of a ground similar to the second, see McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex.1977). |
9,645,547 | 2023-08-22 21:28:07.993385+00 | Garibaldi | null | The opinion of the Court was delivered by
GARIBALDI, Justice.
This appeal concerns the interpretation of the word “volunteers” in N.J.S.A. 2C:29-3b(4). Specifically, we must decide whether a defendant who in response to a law-enforcement officer’s inquiry gives a false name thereby violates N.J.S.A. 2C:29-3b(4), which proscribes “volunteer[ing] false information to a law enforcement officer.”
I
This case arises in the context of a motor vehicle stop. On April 9,1985, a state trooper stopped a car driven by defendant, Denny Valentin, for a routine motor vehicle violation. The car was registered to Dollar-Rent-A-Car of Florida. The company had reported the car stolen by Valentin, the lessee, after he failed to return the vehicle. The company was seeking to prosecute the defendant.
When Valentin was stopped, the state trooper asked for his name, and he replied “Ramon Velez.” The trooper then issued *16a motor vehicle summons and released Valentin. Shortly thereafter the same trooper stopped Valentin for another motor vehicle infraction. This time Valentin gave his own name. The trooper however remembered that Valentin had given a different name on the prior occasion. Hence he was prosecuted on two counts: receiving stolen property in violation of N.J.S.A. 2C:20-7; and hindering his own apprehension by “volunteering” the name of Velez on the first occasion in violation of N.J.S.A. 2C:29-3b(4).
Defendant filed a motion in the trial court to dismiss count two of the indictment. The motion asserted that because defendant merely responded to the officer’s questions, he did not “volunteer” false information within the meaning of N.J.S.A. 2C:29-3b(4). Specifically, defendant argues that the statute in question prohibits taking the initiative in providing false information to law-enforcement officials, not merely responding to an inquiry. The State asserts that this interpretation is too narrow and that the word “volunteer” includes practically any deliberate advance of information not technically required by law, whether or not made in response to a law-enforcement officer’s inquiry.1
The trial court found that “[o]ne who is questioned by an armed law enforcement officer, has not ‘taken the initiative’ and affirmatively volunteered information but has merely responded to police questioning.” Accordingly, he granted defendant’s motion to dismiss. The Appellate Division affirmed, similarly concluding that “to be guilty under N.J.S.A. 2C:29-3b(4), the actor must take the initiative in providing the false information. He cannot be culpable if he responds falsely to a question by a law enforcement officer.” State v. Valentin, 208 N.J.Super. 536, 540 (1986).
*17The majority of the Appellate Division expressly overruled State v. Alexander, 198 N.J.Super. 594 (Law Div. 1984), certif. den., 102 N.J. 303 (1985), which had held that one “volunteers” information when responding to police-initiated inquiries. Instead, the majority followed State v. D’Addario, 196 N.J.Super. 392, 396 (Law Div. 1984), which held that to be culpable the actor must take the initiative in giving false information or must offer to give it without solicitation.
In his concurring opinion, Judge Shebell did not agree with the majority that the legislature had intended such a limited scope for N.J.S.A. 2C:29-3b(4). Nevertheless, he concurred in the judgment because he concluded that the legislators “ha[d] not enacted their intention with sufficient clarity to allow application of the statute to any persons other than those ‘who take the initiative in throwing the police off the track.’ ” 208 N.J.Super. at 541. Pursuant to Rule 2:2-2(b) and Rule 2:5-6(a), we granted the State’s motion for leave to appeal the judgment of the Appellate Division, 104 N.J. 372 (1986), and now affirm.
II
N.J.S.A. 2C:29-3b(4) provides:
b. A person commits an offense if, with purpose to hinder his own apprehension, prosecution, conviction or punishment, he:
********
(4) Volunteers false information to a law enforcement officer.
Our most rudimentary guide in this case is the doctrine that penal statutes must be strictly construed. In re Suspension of DeMarco, 83 N.J. 25, 36 (1980); State v. Carbone, 38 N.J. 19, 24 (1962); State v. Gantt, 101 N.J. 573, 592 (1986) (Handler, J., concurring); 3 Sands Sutherland, Statutory Construction ¶ 59.03 at 6-7 (4th ed. 1974).
“The rule that penal statutes are to be strictly construed has at its heart the requirement of due process. No one shall be *18punished for a crime unless both that crime and its punishment are clearly set forth in positive laws.” In re Suspension of DeMarco, supra, 83 N.J. at 36. Penal statutes must be sufficiently definite so that ordinary people can understand what conduct is prohibited. Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983). As the United States Supreme Court stated in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972):
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.
Penal laws cannot be extended by implication or intendment. Where more than one reasonable interpretation may be made, or where the language is ambiguous — and the ambiguity is not manufactured by the defendant — the construction must be drawn against the state. State v. Carbone, supra, 38 N.J. at 23-24; Sutherland, supra, ¶ 59.03 at 6-7.
With these principles in mind, we focus our inquiry in this case on the meaning an ordinary citizen would ascribe to the word “volunteer” in N.J.S.A. 2C:29-3b(4). Certainly one “volunteers” information when he “blurts it out” or otherwise advances it without prompting. However, most people do not believe that one “volunteers” responses to a law-enforcement officer’s inquiry. See, e.g., The Random House Dictionary of the English Language 1600 (9th ed. 1983) (defining volunteer: “to offer [oneself or one’s services] for some undertaking or purpose[;] ... to give, bestow, or perform without being asked ... ”). In this case, the State reasons that because a person has a constitutional right to refuse to answer inquiries by law-enforcement officials, any responses to such inquiries are consensual and, therefore, “volunteered.” We disagree.
*19Although the defendant was not constitutionally or statutorily compelled to answer the state trooper, an ordinary person stopped for a motor vehicle violation does not think he is “volunteering” answers to a law-enforcement officer’s inquiries. New persons under such circumstances think that they can refuse to answer. On the contrary, most believe that failure to respond will only lead to further involvement with the police officer. 3 W. LaFave, Search & Seizure, ¶ 9.2, at 52-55 (1978). See generally United States v. Mendenhall, 446 U.S. 544, 544-57, 100 S.Ct. 1870, 1871-73, 64 L.Ed.2d 497, 509-11 (1980) (recognizing the substantial assertion of governmental authority involved when a law-enforcement officer stops an automobile and the likelihood that a citizen would feel constrained to respond to the officer’s questions).
In this case defendant was signaled by a state trooper to pull over and stop. His compliance with that signal cannot be characterized as a voluntary choice. Nor can his subsequent response to the officer’s inquiry of his name. The fact that defendant had the choice to supply either a true or false name does not negate the practical imperative to respond that was created by the officer’s inquiry. An ordinary citizen would not consider such an essentially mandated response to be “voluntary,” and thus simply could not anticipate that N.J.S.A. 2C:29-3b(4) would apply in such a case. See State v. Lee, 96 N.J. 156, 166 (1984); In re Suspension of DeMarco, supra, 183 N.J. at 36. In this context, therefore, the word “volunteer” is too ambiguous to justify a conviction.
Ill
When, as in this case, a statutory term is subject to more than one interpretation we look beyond its plain language to determine the legislature intent. State v. Butler, 89 N.J. 220, 227 (1982). Our inquiry into the historical context and legislative history of N.J.S.A. 2C:29-3b(4) firmly supports our narrow *20construction of the word “volunteer” in that statute. See State v. D'Addario, 196 N.J.Super. 392 (Law Div.1984).
In 1981 the Legislature amended N.J.S.A. 2C:29-3 by enacting subsection b which prohibits hindering one’s own apprehension, prosecution or conviction by, inter alia, “volunteering] false information to a law enforcement officer.” N.J.S.A. 2C:29-3b(4). This provision traces exactly the language of N.J.S.A. 2C:29-3a(7),2 which prohibits hindering the apprehension, prosecution or conviction of another by “volunteering] false information to a law enforcement officer.”
In Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984), we articulated “the general rule that a word or phrase should have the same meaning throughout the statute in the absence of a clear indication to the contrary.” Just as “a comparative analysis of the language of a contemporaneous statute may, because of contrasting language applicable to similar subject matter, be indicative of an intent or purpose on the part of the Legislature to provide different treatment,” Malone v. Fender, 80 N.J. 129, 136 (1979), citing Smith v. Township of Hazlet, 63 N.J. 523, 527 (1973), so is the use of the same language indicative of the Legislature’s intent to provide the same treatment. Therefore, the Legislature’s use of the identical phrase —“volunteers false information to a law enforcement officer”— in N.J.S.A. 2C:29-3a(7) and 3b(4) is strong proof that those provisions were meant to proscribe the same types of conduct.
The scant legislative history of the 1981 amendment also indicates that N.J.S.A. 2C:29-3a(7) and b(4) should be construed similarly. See Statement to Senate Committee Substitute for S. *211537 at 7 (Jan. 2, 1981) (explaining that the amendment merely broadened the prohibition against hindering another’s apprehension, conviction, or prosecution to similarly prohibit hindering one’s own apprehension, conviction or prosecution). Both sections derived from the former Code’s prohibition against acting as an “accessory after the fact,” N.J.S.A. 2A:85-2 (repealed Sept. 1, 1979). See II Commentary: Final Report of The N.J. Criminal Law Revision Commission (hereinafter New Jersey Commentary) 283 (1971); N.J.S.A. 2C:29-3 source note.3 The new Code broke from the traditional accomplice theory, which had formed the basis of N.J.S.A. 2A:85-2, and followed the Model Penal Code, which bases liability for hindering prosecution on an obstruction of justice theory. New Jersey Commentary, supra, at 283; N.J.S.A. 2C:29-3 source note. The commentary to the parallel provision of the Model Penal Code explicitly states that “volunteering false information” does not include “giving ... false answers to inquiries initiated by the police.” Model Penal Code § 242.3 commentary at 235 (1985). This provision
proscribes only the borderline case of volunteered misinformation to the police which is not covered elsewhere. This provision is intended to reach those who take the initiative in throwing the police off the track.
[Id.]
The Model Code Commentary explains that the exclusion of false answers to law enforcement officials from the scope of this section represented
a delicate policy judgment, premised in part on the fear that a wider reach for this subsection would invite abusive charges by police against persons interviewed in the course of investigating crime. [7d.]
*22The commentators noted that other sections of the Model Code were better suited to implement a “penal policy with respect to unsworn false statements to the police.” Id.
The drafters of the New Jersey Penal Code similarly recognized the danger that might arise from a broad construction of the word “volunteer” in N.J.S.A. 2C:29-3:
With regard to non-cooperation with police investigations, it should be borne in mind that the law provides means of compelling testimony under oath, and that a penal policy with respect to unsworn false statements to police has been laid down in other Sections of the Code with advertence to the danger of abusive charges being brought by police against persons interviewed in the course of investigating crime. The borderline case of ‘volunteered’ misinformation to the police, dealt with in [N.J.S.A. 2C:29-3a(7)] would not be covered elsewhere and is intended to reach those who take the initiative in throwing the police off the tract.
[New Jersey Commentary at 285 (1971) (emphasis added).]
Even if it is less explicit than the commentary to the Model Code, the New Jersey Commentary is similarly unequivocal in its displacement of “unsworn false statements” made in response to law enforcement investigations from the scope of N.J.S.A. 2C:29-3. Both commentaries make it clear that the Legislature intended that sections other than N.J.A.C. 2C:29-3 prohibit false responses to questioning by law enforcement officers.
IV
We do not hold that any response to a law-enforcement officer’s inquiry cannot be a violation under this act or that an offense occurs only if the suspect speaks first. In part, whether an offense occurs depends on the nature and degree of misinformation. Just as a mere exculpatory “no” is not the type of information prohibited under the statute, neither is the mere misstatement of defendant’s name. However, if after misinforming the police of his name the suspect proceeded, for example, to advise the police that he observed the perpetrator *23and that he knew that he had returned to Florida, N.J.S.A. 2C:29-3b(4) would certainly be operable.
Moreover, we do not hold that N.J.S.A. 2C:29-3b(4) is vague or unconstitutional. We hold only that it is sufficiently ambiguous to preclude its application to this defendant in this context without a clarifying amendment. We acknowledge this decision may make police work more difficult (although we believe that some of the fears expressed by the State are unfounded).4 Nevertheless, the Legislature’s use of the exact same language in two sections of the same statute and the drafters’ stated awareness of the danger of unwarranted prosecution by the police of people for giving false unsworn statements during a police investigation compel our conclusion that the legislature did not intend the word “volunteer” in N.J.S.A. 2C:29-3b(4) to have a different meaning and greater scope than the word “volunteer” in N.J.S.A. 2C:29-3a(7). Moreover, in light of the common assumptions about the meaning of the word “volunteer,” we are convinced that the statute did not give defendant fair warning of its potential applicability in this case. Thus, we conclude that this defendant did not “volunteer,” under N.J.S.A. 2C:29-3b(4), the false name he gave in response to the state trooper’s inquiry. We therefore affirm the judgment of the Appellate Division.
The State does distinguish the case where the defendant simply responds to police questions with an exculpatory denial of implication in the crime. In such cases the State admits that the statute is not applicable. See State v. Daniels, 165 N.J.Super. 47, 51 (App.Div.), certif. denied, 81 N.J. 349 (1979).
N.J.S.A. 2C:29-3a(7) provides
a. A person commits an offense if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for an offense he:
********
(7) Volunteers false information to a law enforcement officer.
The State argues without citation that the predecessor statute to N.J.S.A. 2C.29-3 was N.J.S.A. 2A:148-22.1 (repealed Sept. 1, 1979), which prohibited the “knowing and willful giving of false information to any law enforcement officer____with respect to the commission of [an offense].” N.J.S.A. 2A:148-22.1, however, was the basis for the current prohibition on "False Reports to Law Enforcement Authorities." See N.J.S.A. 2C:28-4 source note.
The State warns that our decision may allow a criminal to "effectively hinder his own prosecution by lying to police, provided that he waits for the officer to initiate their verbal exchange." It seems unlikely that a criminal on the run would wait for an exchange with police. More likely he would try to avoid such contact, and if forced into it, would not correctly identify himself regardless of the applicability of N.J.S.A. 2C:29-3b(4). We are even less impressed by the State’s fear that our construction of the statute will allow a criminal falsely to implicate innocent parties by giving their names instead of his own. |
9,645,548 | 2023-08-22 21:28:07.998303+00 | Clifford | null | CLIFFORD, Justice,
dissenting.
If lawyers and judges would just learn to talk the way regular folks do, we would avoid a good many problems. Like, for instance, this case.
*24When asked his name, defendant was confronted with three choices: he could remain silent (I agree that maybe he did not know that, and that maybe, for those who put a high priority on not irritating law-enforcement people, silence is not such a good approach anyway); he could tell the trooper his name; or he could make up or “borrow” a name. Defendant took the last course: he gave false information. Nobody asked him to do that. Nobody extracted the phony name. Nobody coerced defendant into proffering a bogus identification — he volunteered it. He made up his answer. He lied. His intention was to avoid detection and to send the police off on a wild goose chase.
One need not be a lawyer or wordsmith or semanticist to understand that a statute proscribing the volunteering of false information to a law-enforcement officer is violated when Denny Valentin, wanted on a stolen vehicle charge, tells a state trooper that his name is Ramon Velez. I do not think the crowd down at the corner newsstand would have nearly the trouble with this simple, eminently sensible statute that this Court has.
I would reverse and remand to the trial court with an order to reinstate count two of the indictment.
For affirmance — Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.
For reversal and remandment — Justice CLIFFORD — 1. |
1,516,532 | 2013-10-30 06:32:56.18561+00 | Arterton | null | 916 F. Supp. 123 (1995)
SECURITIES AND EXCHANGE COMMISSION
v.
Jonathan MAYHEW.
Civ. No. 3:94cv1322(JBA).
United States District Court, D. Connecticut.
December 27, 1995.
*124 Robert Wilson, Thomas Sjoblom, Christian Mixter, Securities & Exchange Commission, Washington, DC, and John Hughes, Office of the U.S. Attorney, New Haven, CT, for plaintiff.
Elizabeth Grove and Victor Zimmermann, O'Rourke & O'Hanlan, New Canaan, CT, for defendant.
OPINION AND ORDER
ARTERTON, District Judge.
I. Introduction
The Plaintiff Securities and Exchange Commission ("SEC") brought this action against Jonathan Mayhew, alleging that Defendant Mayhew's trading in stock of Rorer Group, Inc. between November 16, 1989 and January 15, 1990 constituted insider trading in violation of Sections 10(b) and 14(e) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. §§ 78j(b), 78n(e), and Rules 10b-5 and 14e-3 promulgated under the Exchange Act, 17 C.F.R. §§ 240.10b-5 and 240.14e-3.
This case was tried to the court on August 24, 25, and 28, 1995. The Court, after considering the evidence and the legal positions in the parties' pre- and post-trial briefing, makes the following findings of facts and conclusions of law.
II. Findings of Fact
1. The defendant, Jonathan Mayhew, is a resident of Darien, Connecticut. Following his employment as a corporate pilot, during *125 1989 and until 1991, defendant Mayhew traded securities full time for his own account, and maintained securities brokerage accounts with Oppenheimer & Co. and with Smith Barney, Inc.
2. In the course of his social life in Darien, and his employment as a corporate pilot and in real estate, defendant Mayhew met and came to know business consultants and chief executive officers of large corporations. Defendant Mayhew claims to have educated himself in stock markets and stock trading, and focused on the stock of companies which were potential takeover targets.
3. Rorer Group, Inc. was a Pennsylvania corporation, headquartered in Fort Washington, Pennsylvania, which developed, manufactured and marketed over-the-counter and prescription pharmaceuticals.
4. Rhône-Poulenc S.A. ("RPSA") is a French corporation engaged in the chemical, pharmaceutical, agricultural, and fiber industries.
5. Prior to its merger with a subsidiary of RPSA, Rorer common stock was traded on the New York Stock Exchange, a national securities exchange. Standardized call options contracts of Rorer common stock were traded on the American Stock Exchange.
6. Beginning in July of 1989 and continuing in the Fall of 1989, representatives of Rorer and RPSA conducted a series of confidential discussions aimed at a potential combination between Rorer's and RPSA's pharmaceutical businesses. In August 1989, Rorer and RPSA signed a confidentiality agreement relating to these merger discussions.
7. In October 1989, Rorer and RPSA jointly retained McKinsey & Co., a business consulting firm, to assist the two companies in compiling business forecasts, estimating potential cost savings resulting from a combination of Rorer and RPSA, outlining organization, governance and operational issues, and planning the details of a combination. By November 15, 1989, Rorer and RPSA had exchanged confidential information relating to business plans and projections, and had each retained investment bankers and lawyers for advice relative to the merger under contemplation.
8. The senior managers of Rorer kept knowledge of the merger discussions confidential by restricting knowledge of the discussions to a select few persons on the Rorer corporate staff and by other means, such as using code words to refer to the two companies in planning documents.
9. On January 15, 1990, Rorer publicly announced that it was in discussions regarding a business combination with an unnamed third party, providing for the contemplated acquisition of 68 percent of the outstanding stock of Rorer for a price of $73 per share. Following this announcement, the price of Rorer common stock on the New York Stock Exchange rose by 13¼ points, from $49¾ to $63 per share.
10. On January 18, 1990, Rorer announced that the identity of the third party was RPSA. On March 12, 1990 the tender offer terms were announced. The Rorer and RPSA merger was consummated in July 1990.
11. Witness Ralph ("Randy") Thurman was President of Rorer Pharmaceuticals in the Fall of 1989, reporting directly to Rorer's Chief Executive Officer, Robert Cawthorn. As one of the top officers of Rorer, Mr. Thurman was involved in the discussions with RPSA almost from their inception.
12. Mr. Thurman testified that while the discussions with RPSA were proceeding during the fall of 1989, Rorer CEO Cawthorn and Rorer's head of human resources, Steven Baumgartner, asked Mr. Thurman for his suggestion on who could work on Mr. Cawthorn's employment contract related to the combination with RPSA. He responded that he knew David Meredith, who had an outstanding reputation in the field of CEO level employment contracts, and the person he knew best at Mr. Meredith's firm, Personnel Corporation of America ("PCA"), was Dr. Edmund Piccolino. Dr. Piccolino and Mr. Thurman knew each other from their prior employment at Pepsi-Cola where Mr. Thurman had been Dr. Piccolino's subordinate.
*126 13. In 1989 and 1990, PCA was a human resources consulting firm located in Norwalk, Connecticut and offered a broad range of human resources consulting services in such fields as compensation, benefits, and executive searches.
14. In 1989, Dr. Piccolino was an employee and partner of PCA, and was responsible for executive search and outplacement and client development. He was PCA's "Director of Client Relations" for the Rorer account.
15. Prior to the fall of 1989, PCA had performed search assignments and compensation consulting work for Rorer. PCA had also attempted to secure consulting work from Rorer on other occasions.
16. Mr. Thurman testified he contacted Dr. Piccolino and told him "that circumstances were such that Dave Meredith might be retained to help negotiate on Mr. Cawthorn's behalf or construct on Mr. Cawthorn's behalf an employment agreement related to a pending business transaction that we were contemplating." Mr. Thurman said he was "certain that the framework in which I would have put the need to engage Mr. Meredith would have described the pending transaction between the two companies without with giving him as little specifics as possible." Mr. Thurman also said he would have, "put it [the information given to Dr. Piccolino] in the context of why Mr. Cawthorn needed the work done and the importance of it and the sense of urgency related to it."
17. Mr. Thurman never asked Dr. Piccolino to keep any information which he may have imparted to him confidential. However, Mr. Thurman testified that he "absolutely" expected Dr. Piccolino to keep confidential the information that he had given him. Dr. Piccolino testified that while PCA client information was treated with confidentiality, the context of the information imparted by Mr. Thurman "was not packaged as a confidential dialogue."
18. In 1989, PCA had an unwritten policy that the confidentiality of information provided to PCA by clients was important and was to be preserved.
19. Dr. Piccolino personally knew defendant Mayhew, and was formerly a neighbor of his in Darien. During 1989 Dr. Piccolino and defendant Mayhew would see each other several times per week, usually on exercise walks. On these walks, as well as on the telephone, Dr. Piccolino and defendant Mayhew would discuss, among other things, trading securities. Dr. Piccolino asked Defendant Mayhew for advice on investment strategy and the mechanics of options trading. Defendant Mayhew knew that Dr. Piccolino was employed at PCA and that PCA was a consulting firm that had various corporations as clients.
20. In the summer and fall of 1989, Dr. Piccolino and defendant Mayhew discussed drug company stocks, recent mergers in the drug industry, and Rorer specifically. At this time defendant Mayhew had formulated a theory that Rorer was a potential merger candidate. Defendant Mayhew advised Dr. Piccolino that he had read several press reports which discussed Rorer as a potential takeover candidate.
21. As evidenced by Dr. Piccolino's PCA time sheets, which were prepared contemporaneously, Dr. Piccolino and Mr. Thurman had lunch together in New York City on November 15, 1989. On his PCA time sheets Dr. Piccolino assigned the meeting an "X800" code, which referred to a potential outplacement client, but the code is not specific as to whether the outplacement refers to as few as one executive or to the many persons who would need outplacement advice in a large scale corporate reorganization.
22. Dr. Piccolino viewed the lunch with Mr. Thurman as having business potential but characterized it as a "lunch with a friend at his request." In contrast to Mr. Thurman's testimony, Dr. Piccolino testified that his lunch conversation with Mr. Thurman focused on Mr. Thurman's personal employment security in a time of organizational change at Rorer.
23. Dr. Piccolino testified that Mr. Thurman told him at this November 15, 1989 lunch that Rorer was definitely involved in serious talks with a potential suitor or merger candidate or candidates. Dr. Piccolino testified he had a specific recollection that Mr. Thurman told him that Rorer "was being *127 pursued and was in fact discussing merger opportunities," and that Mr. Thurman wanted to know: "how do you know if you can trust someone if you are getting into a complex merger negotiation."
24. Although Dr. Piccolino was not given specific information concerning any pending deal, he testified that he walked away from the Thurman lunch with knowledge that there was "actually activity," that Rorer was "actually in discussions," whereas before the lunch he had only known of speculation about Rorer in the press.
25. Dr. Piccolino then told defendant Mayhew about his lunch with Thurman, identifying who Thurman was to defendant, and telling him that the substance of the lunch conversation confirmed that Mayhew's theory about Rorer as a takeover candidate was indeed correct.
26. While Dr. Piccolino recalls discussing the Thurman lunch with Mayhew, he did not recall when such discussions occurred. He testified, however, that he would not have purchased Rorer stock options on November 16, 1989 without first speaking to defendant Mayhew.
27. Between November 16, 1989, and January 15, 1990, Dr. Piccolino made stock and option trades in Rorer securities, resulting in a profit of $20,449.60.
28. Dr. Piccolino was sued by the Securities and Exchange Commission for insider trading relative to this trading in the securities of Rorer. Dr. Piccolino settled the suit by repaying the profit he made on the sale of the options and the common stock and by paying a penalty equal to one times that gain. Dr. Piccolino did not agree to testify against defendant Mayhew as part of that settlement, and testified under subpoena from both parties.
29. Defendant Jonathan Mayhew denied recalling that Dr. Piccolino had discussed with him the November 15, 1989 Thurman lunch and conversation about Rorer.
30. However, starting on November 16, 1989 (the day following the Thurman lunch), to January 15, 1990 (the day of the first public announcement confirming Rorer's actual merger discussions), defendant Mayhew made the following trades in Rorer common stock and call options:
Date B/S Number Shares/Contracts Price Dollar Amount
11/16/89 Buy 5,000 common stock @ 43 ¼ - $217,228.23
11/17/89 Buy 2,500 common stock @ 43 - $108,051.73
01/15/90 Sell 7,500 common stock @ 60 ¼ + $449,956.28
______________
profit (loss) 124,676.32
11/16/89 Buy 50 Dec 45 call options @ ¾ - $ 3,966.68
12/05/89 Sell 50 Dec 45 call options @ 9/16 + $ 2,649.89
_____________
profit (loss) (1,316.79)
12/01/89 Buy 50 Jan 45 call options @ 1 ¼ - $ 6,492.30
12/19/89 Buy 50 Jan 45 call options @ 7/8 - $ 4,594.08
12/26/89 Sell 25 Jan 45 call options @ 1 7/8 + $ 4,492.21
12/28/89 Sell 75 Jan 45 call options @ 1 7/8 + $ 13,542.92
______________
profit (loss) 6,948.75
12/27/89 Buy 100 Feb 50 call options @ 1 1/16 - $ 11,211.80
01/15/90 Sell 100 Feb 50 call options @ 11 1/8 + $110,434.78
_____________
profit (loss) 99,222.98
01/08/90 Buy 2,000 common stock @ 47 5/8 - $ 95,712.00
01/15/90 Sell 2,000 common stock @ 60 ½ + $120,433.96
_____________
profit (loss) 24,701.96
Total Profit: $255,550.01
*128 31. Two months later, on January 15, 1990, after the public announcement by Rorer, defendant Mayhew sold 9500 shares of the common stock and 100 call options he had accumulated since November 16, 1989, making a profit of $255,550.01.
32. In placing his purchase and sale orders for Rorer stock and options, defendant Mayhew made use of the telephone.
33. Defendant Mayhew received written confirmations of his Rorer purchase and sale orders and account statements describing his Rorer purchase and sale orders through the United States mails. Apart from his Rorer profit, defendant otherwise lost $166,821 between August 1989 and January 1990, and ceased his trading in 1991 altogether because he lost too much money.
34. As of January 9, 1990, Defendant Mayhew's investments in Rorer securities were worth approximately $430,000. This was almost three-quarters of his then net financial worth, and two-thirds of the purchase price had been borrowed.
35. Previous to the Thurman lunch, from September 13, 1989 to November 8, 1989, Defendant Mayhew had traded Rorer stock and options at a cumulative loss of approximately $11,500. By November 8, 1989, Defendant Mayhew had completely liquidated his position in Rorer.
36. Defendant Mayhew testified that he made his decision to purchase Rorer securities on November 16 and 17, 1989 and in the weeks following, relying in part upon brokerage house research reports and media reports which cited Rorer (among many companies) as a potential takeover candidate.
37. However, the research and media reports that defendant claims to have relied on were all dated August 24, 1989 and earlier, almost three months before November 16, 1989 when he began his very substantial purchases of Rorer securities and call options.
38. Defendant Mayhew further justified that his decision to engage in these extensive purchases on November 16 and 17, 1989 and following was based on brokerage house research reports he received from Smith Barney dated October 18, 1989, November 20, 1989, and January 2, 1990. These reports focused on the pharmaceutical industry, and identified certain companies as potential takeover candidates. Significantly, however, Rorer was not included in these lists.
39. Defendant Mayhew also testified that he purchased 7500 Rorer shares and 50 call options on November 16 and 17, 1989, in part because of "tape activity," meaning price and volume activity in the market for Rorer stock. However, the evidence at trial showed no significant price activity in Rorer common stock on or around November 16, 1989 to explain defendant Mayhew's major re-entry into the Rorer market he had just recently exited. The closing price for Rorer common stock on November 16, 1989, was $42 7/8 , less than what Rorer had traded for in September and October 1989, and the price trend in Rorer common stock was downward in the week immediately preceding November 16, 1989. In the week prior to November 16, 1989, the price for Rorer common stock per share closed as follows: November 9, 1989, Rorer closed at $43 5/8 , down $ 5/8 from that day's high price of $44½; November 10, 1989, closed at $43 5/8 , unchanged from previous day's close; November 13, 1989, closed at $43½, down $ 1/8 ; November 14, 1989, closed at $43, down $½; and November 15, 1989, closed at $42 7/8 , down $ 1/8 .
III. Conclusions of Law and Discussion
1. The Court has jurisdiction over this action pursuant to Sections 21(d), 21(e) and 27 of the Exchange Act [15 U.S.C. §§ 78u(d), 78u(e) and 78aa].
2. Under the traditional theory of insider trading, liability may be imposed under Rule 10b-5 on a corporate insider "who discloses material, nonpublic information to an outsider in breach of his fiduciary duty to the corporation's shareholders." SEC v. Downe, 92 Civ. 4092, 1993 WL 22126 (S.D.N.Y. January 26, 1993) (citing Chiarella v. United States, 445 U.S. 222, 227-235, 100 S. Ct. 1108, 1114-1118, 63 L. Ed. 2d 348 (1980)).
3. The Second Circuit has adopted a second theory of liability. Under the "misappropriation *129 theory," "a person violates Rule 10b-5 when he misappropriates material non-public information in breach of a fiduciary duty or similar trust and confidence and uses that information in a securities transaction." United States v. Chestman, 947 F.2d 551, 566 (2d Cir.1991), cert. denied, 503 U.S. 1004, 112 S. Ct. 1759, 118 L. Ed. 2d 422 (1992). The phrase "similar relationship of trust or confidence" has been interpreted as the "functional equivalent of a fiduciary relationship," Id. at 568.
4. The Second Circuit has held that a "fiduciary duty cannot be imposed unilaterally by entrusting a person with confidential information." Id. at 567 (citing Walton v. Morgan Stanley & Co., 623 F.2d 796, 799 (2d Cir.1980). One acts in a "fiduciary capacity" when:
the business which he transacts, or the money or the property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other.
Id. at 568-69 (citing Black's Law Dictionary 564 (5th ed. 1979).
5. In order to sustain liability under either theory, the SEC must show that the defendant acted with scienter. See Aaron v. SEC, 446 U.S. 680, 701-702, 100 S. Ct. 1945, 1958-1959, 64 L. Ed. 2d 611 (1980). In addition, the SEC must establish that the nonpublic information was material in that there was "`substantial likelihood' that a `reasonable investor' would have considered the omitted information significant at the time." Basic v. Levinson, 485 U.S. 224, 231-32, 108 S. Ct. 978, 983-84, 99 L. Ed. 2d 194 (1988) (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S. Ct. 2126, 2132, 48 L. Ed. 2d 757 (1976)).
6. The evidence of the nature of Piccolino's relationship with Thurman for the purposes of the lunch meeting is equivocal. On balance the SEC's proof falls short of establishing that Dr. Piccolino was the functional equivalent of a fiduciary of Rorer or Thurman. Dr. Piccolino testified that his lunch conversation with Mr. Thurman, while having business potential, arose out of their prior professional, "mentoring" and personal relationship. Moreover, there was never any formal agreement before or after the lunch between PCA and Rorer regarding outplacement services for either Mr. Thurman or Mr. Cawthorn. At trial, Dr. Piccolino responded to the question about whether he viewed his lunch with Mr. Thurman as a client transaction as follows:
If you mean that was it a consulting assignment billable or even likely to be billable, I would say no. I viewed it as a lunch with a friend at his request. The only modification I would make to that, it clearly was the kind of a dialogue that had potential to lead to further consulting work.
(Tr. 537.)
Determining whether this multifaceted relationship gives rise to the existence of a fiduciary relationship is aided by the Second Circuit's analysis in Walton v. Morgan Stanley & Co., supra. In Walton, Morgan Stanley, an investment bank, retained by Kennecott Copper to find a company to acquire, obtained unpublished internal earnings reports on a confidential basis from a willing prospective takeover company, Olinkraft. After Kennecott abandoned its plans to take over Olinkraft, another company announced an offer for it. Morgan Stanley bought Olinkraft stock and then disclosed Olinkraft's confidential information to Johns Mansville to induce it to improve on the other offeror's bid, which it did thereby increasing the value of Morgan Stanley's holdings in Olinkraft.
Upholding dismissal of a stockholder action demanding that Olinkraft's directors commence proceedings to require Morgan Stanley to account for its profits from its purchase of Olinkraft, the Second Circuit found that Morgan Stanley stood in no fiduciary relationship to Olinkraft, despite receiving its financial information on a strictly confidential, limited use basis, because it was never hired on Olinkraft's behalf, and concluded that the two were each responsible to different interests and were presumed to have dealt at arm's length:
*130 [T]he fact that the information was confidential did nothing, in and of itself, to change the relationship between Morgan Stanley and Olinkraft's management. Put bluntly, although, according to the complaint, Olinkraft's management placed its confidence not to disclose the information, Morgan Stanley owed no duty to observe that confidence.
Walton, 623 F.2d at 799. See also Dirks v. Securities and Exchange Commission, 463 U.S. at 662 n. 22 (1983) (citing Walton approvingly as a "case turning on the court's determination that the disclosure did not impose any fiduciary duties on the recipient of the inside information."); Chestman, 947 F.2d at 568 ("Reposing confidential information in another, then, does not itself create a fiduciary duty.").
In contrast to the "corporate marriage-broker" conduct which was found to not constitute a fiduciary role, which troubled dissenting Judge Oakes in Walton because of the role of investment bankers during merger and acquisition activity, Piccolino's ambiguous and ambivalent role at the time of the lunch when he obtained the insider information was much more akin to the proverbial "old boy networking," not the functional equivalent of a fiduciary relationship, lacking indicia of de facto control and dominance resulting from the confidence reposed. United States v. Chestman, 947 F.2d 551, 568 (2d Cir.1990).
The fact that Mr. Thurman expected Dr. Piccolino to keep the substance of the lunch conversation confidential did not, in itself, give rise to a fiduciary duty, and Dr. Piccolino himself was ambiguous about his own duty of confidentiality at that point. Without any formal agreement establishing a relationship at that time between Rorer and PCA, or Mr. Thurman and PCA, Dr. Piccolino has not been shown to have owed a fiduciary duty to Mr. Thurman or PCA.
Because plaintiff has not proved a fiduciary-type relationship between Dr. Piccolino and Rorer, Defendant consequently could not be "derivatively liable" as Piccolino's tippee under Rule 10b-5. See Chestman, 947 F.2d at 571.
7. Defendant is also charged with violating section 14(e) of the Act and Rule 14e-3(a) which provides:
If any person has taken a substantial step or steps to commence, or has commenced, a tender offer (the "offering person"), it shall constitute a fraudulent, deceptive, or manipulative act or practice within the meaning of section 14(e) of the Act for any other person who is in possession of material information relating to such tender offer which information he knows or has reason to know is nonpublic and which he knows or has reason to know has been acquired directly or indirectly from: ... (3) Any officer, director, partner, or employee, or any other person acting on behalf of the offering person or such issuer, to purchase or sell or cause to be purchased or sold any of such securities or any securities convertible into or exchangeable for any such securities, unless within a reasonable time prior to any purchase or sale such information and its source are publicly disclosed by press release or otherwise.
17 C.F.R. § 240.14e-3(a) (1989).
8. Rule 14e-3(a) makes it illegal for anyone who "trades on the basis of material nonpublic information concerning a pending tender offer that he knows or has reason to know has been acquired `directly or indirectly' from an insider of the offeror or issuer, or someone working on their behalf." Chestman, 947 F.2d at 557 (citing 17 C.F.R. § 240.14e-3(a)). For the SEC to prove this element of its claim, it must show that Defendant Mayhew has knowingly misused material, non-public information. Schreiber v. Burlington Northern, 472 U.S. 1, 105 S. Ct. 2458, 86 L. Ed. 2d 1 (1985).
9. The Court finds that the record of RSPA and Rorer joint activities before November 16, 1989, demonstrates that RPSA had taken substantial steps towards the commencement of its tender offer for the securities of Rorer. SEC v. Maio, 51 F.3d 623, 636-637 (7th Cir.1995).
10. The Court finds that Mr. Mayhew did learn the insider origin and substance of Mr. Thurman's information regarding actual, ongoing activity towards a Rorer takeover and *131 that the material, nonpublic, insider character of this information motivated his purchases of 7500 shares in Rorer within in a forty-eight hour period. The Court further finds that Defendant's continued investments in Rorer shares and call options until the merger negotiation information became public by Rorer's January 15, 1990 announcement, when defendant sold all his holding and reaped a $255,550 profit, were influenced by the information learned from the Thurman lunch, not just publicly disseminated research reports, tape activity or analysts' articles.
The determination whether Piccolino imparted to Mayhew his insider Rorer information requires a credibility determination by the court. While the Court recognizes the divergence of testimony between Dr. Piccolino and Mr. Mayhew as to whether defendant received this insider information from Dr. Piccolino following the Thurman lunch on November 15, 1989, weighing the evidence at trial, the Court finds Dr. Piccolino's version of the events far more credible. Given the Rorer stock purchases by defendant (and Dr. Piccolino) immediately after the Thurman lunch in an amount constituting 50% of defendant's net worth, which continued without other justifying events until Rorer represented 75% of Defendant's stock holdings, the Court concludes that Mr. Mayhew did learn from Dr. Piccolino the substance of the Thurman insider information that Rorer was in serious merger discussions on either November 15 or 16, 1989, and in response immediately and continually increased his position in Rorer until he was in a position to reap the gains upon the subsequent Rorer public announcement of what Mayhew already knew.
The Court rejects the possibility that it was sheer coincidence that in the next two days following the Thurman lunch, Defendant Mayhew invested approximately $329,246.64 in Rorer stock and options after he had totally liquidated his position in Rorer on November 8, 1989 at a loss. Defendant's attempted justification of why he purchased on those particular dates, and in those amounts, is simply unpersuasive.
11. The Court finds that the information confirming the existence of these serious negotiations that was passed by Mr. Thurman through Dr. Piccolino to Defendant Mayhew was nonpublic, material information, not as defendant urges, information constituting nothing more than the takeover theories being bandied around in the marketplace. Mr. Thurman's information constituted an insider's confirmation that the rumors that Rorer was in serious discussion regarding merger circulating in the media were in fact true, a fact that when announced on January 15, 1990 immediately drove its share price up more than 13 points.
It is of no consequence in determining materiality that Dr. Piccolino did not learn specific details concerning any pending deal, such as whether Rorer would be the acquirer or the acquiree in any possible transaction the type of transaction that would occur, the price of any transaction, when any such transaction might occur, or how many companies were having discussions with Rorer. Information is material if there is a substantial likelihood that a reasonable investor would have regarded this nonpublic information regarding Rorer as important to his or her investment decision. Basic, Inc. v. Levinson, 485 U.S. 224, 231, 108 S. Ct. 978, 983, 99 L. Ed. 2d 194 (1988).
The evidence in this case confirms that this information was material and important to a reasonable investor's investment decision. See SEC v. Shapiro, 494 F.2d 1301, 1307 (2d Cir.1974). The fact that the defendant, who admitted to being a sophisticated investor, purchased substantial amounts and stock and options in Rorer immediately after learning this information, "demonstrates empirically that the information was material." Id. See SEC v. Geon Industries, Inc., 531 F.2d 39, 47 (2d Cir.1976) (citing SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968), cert. denied 394 U.S. 976, 89 S. Ct. 1454, 22 L. Ed. 2d 756 (1969)) ("[N]ot only the probability of an event but also the magnitude of its potential impact on a company's fortunes are relevant to the determination of materiality of inside information."); SEC v. Materia, 745 F.2d 197, 199, (2d Cir.1984) cert. denied, 471 U.S. 1053, 105 S. Ct. 2112, 85 L. Ed. 2d 477 *132 (1985). ("[E]ven a hint of an upcoming tender offer may send the price of the target company's stock soaring."). Moreover, the eventual public announcement in January 1990 that Rorer was in fact in serious merger discussions with an unnamed suitor drove the stock price up immediately in testament to the materiality of the Thurman information.
12. The Court finds that defendant had reason to know that Dr. Piccolino's information about Rorer had come from a Rorer insider, i.e., highly-placed Thurman, a Rorer senior executive.
13. Accordingly, Jonathan Mayhew is found to have violated Section 14(e) and Rule 14e-3.
IV. Conclusion
1. The Court finds for the Defendant Mayhew on Count One (trading in violation of Section 10(b) of the Exchange Act (15 U.S.C. § 78(b)) and Rule 10b-5, 17 C.F.R. § 240.10b-5.
2. The Court finds for the Plaintiff SEC on Count Two (trading in violation of Section 14(e) of the Exchange Act, 15 U.S.C. § 78n(e), Rule 14e-3, 17 C.F.R. § 240.14e-3).
3. The Court orders that Defendant Mayhew disgorge his wrongful gains of $255,550.01 from trading in Rorer securities between November 16, 1989, and January 15, 1990 in violation of Section 14(e) of the Exchange Act and Rule 14(e)-3 thereunder. SEC v. Materia, 745 F.2d 197 (2d Cir.1984), cert. denied, 471 U.S. 1053, 105 S. Ct. 2112, 85 L. Ed. 2d 477 (1985). This amount shall not be reduced by the losses incurred by defendant Mayhew in trading Rorer securities during the period November 16, 1989, through January 15, 1990 inclusive. SEC v. Shapiro, 494 F.2d 1301, 1309 (2d Cir.1974).
4. Defendant Mayhew is further ordered to pay prejudgment interest on his wrongful gains on trading in the securities of Rorer up to date of entry of judgment. Rolf v. Blyth, Eastman Dillon & Co., 637 F.2d 77, 86 (2d Cir.1980); Norte & Co. v. Huffines, 416 F.2d 1189, 1191 (2d Cir.1969), cert. denied, 397 U.S. 989, 90 S. Ct. 1121, 25 L. Ed. 2d 396 (1970). The amount of interest owed through September 30, 1995 is $160,031.58 based on the rate used by the IRS for the underpayment of taxes. (See Plaintiff's Attachment "A".) The additional interest owed from October 1, 1995 through the date of judgment is to be similarly calculated. This deprives defendant Mayhew of the unjust enrichment he has received by having retained his wrongful profits until now. See SEC v. Drexel Burnham Lambert Inc., 837 F. Supp. 587, 612 (S.D.N.Y.1993), aff'd sub nom, SEC v. Posner, 16 F.3d 520 (2d Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 724, 130 L. Ed. 2d 629 (1995).
5. Notwithstanding defendant's testimony that he is no longer engaged in securities trading professionally, given his potential for future social corporate contacts and given the relative flagrance of defendant's use of insider information in this case, and his denials, injunctive relief to prohibit similar use of future opportunities appears appropriate.
6. Defendant Jonathan Mayhew and his agents, servants, employees and attorneys and those persons in active concert or participation with him who receive actual notice thereof, are ordered permanently restrained and enjoined from violating, directly or indirectly, Section 14(e) of the Exchange Act (15 U.S.C. § 78n(e)) and Rule 14e-3 promulgated thereunder (17 C.F.R. § 240.14e-3), in connection with any tender offer, or a request or invitation for tenders, by engaging in any fraudulent, deceptive, or manipulative acts or practices by:
(1) purchasing or selling or causing to be purchased or sold the securities sought or to be sought by such tender offer, or any security convertible into or exchangeable for any such security or any option or right to obtain or dispose of the foregoing securities, while in possession of material information relating to said tender offer which information they know or have reason to know was acquired directly or indirectly from:
(i) a person who has taken a substantial step or steps to commence such a tender offer ("the offering person"),
(ii) the issuer of the securities sought or to be sought by such tender offer, or
(iii) any officer, director, partner, employee or other person acting on behalf *133 of the offering person or such issuer, unless
(a) within a reasonable time prior to any such purchase or sale such information and its source are publicly disclosed; or
(b) they purchase any such security while acting in the capacity of a broker or agent on behalf of the offering person; or
(c) they sell any such security to the offering person; or
(2) communicating material nonpublic information relating to such a tender offer, which information they know or have reason to know was acquired directly or indirectly from
(i) the offering person,
(ii) the issuer of the securities sought or to be sought in a such a tender offer, or
(iii) any person acting on behalf of the offering person or on behalf of such issuer, to any other person under circumstances in which it is reasonably foreseeable that such communication is likely to result in the purchase or sale of securities provided however, that this Paragraph shall not apply to communications made in good faith to
(a) the officers, directors, partners or employees of the offering person, to its advisors or to other persons, involved in the planning, financing, preparation or execution of such tender offer;
(b) the issuer whose securities are sought or to be sought by such tender offer, to its officers, directors, partners, employees or advisors or to other persons, involved in the planing, financing, preparation or execution of the activities of the issuer with respect to such tender offer; or
(c) any person pursuant to a requirement of any status or rule or regulation promulgated thereunder.
Judgment shall enter in accordance with this opinion. |
1,516,535 | 2013-10-30 06:32:56.227193+00 | Pollitt | null | 69 Md. App. 722 (1987)
519 A.2d 790
LAWTON EDWARD EWING
v.
KOPPERS COMPANY, INC.
No. 520, September Term, 1986.
Court of Special Appeals of Maryland.
January 13, 1987.
William Franklin Gosnell, Baltimore, for appellant.
William R. Levasseur (Elizabeth M. Hole and Semmes, Bowen & Semmes, on the brief), Baltimore, for appellee.
Argued before MOYLAN, ROSALYN B. BELL and POLLITT, JJ.
POLLITT, Judge.
This case concerns the extent to which the Workmen's Compensation Commission retains continuing jurisdiction in a case which has been appealed to the circuit court.
Appellant, Lawton Edward Ewing, while in the employ of appellee, Koppers Company, Incorporated, on December 19, 1979, sustained an injury to his back, for which a claim for compensation was filed with the Commission and an award made. After Ewing suffered two falls in 1984, necessitating surgery on his left knee, the claim was reopened. Hearings were held before Commissioner Edward A. Palamara on August 24 and October 16, 1984, on six issues: (1) additional temporary total disability, (2) medical bills, (3) further medical treatment including surgery, (4) causal connection as to medical treatment and surgery for left leg and knee, (5) nature and extent of disability, and (6) vocational rehabilitation. While the record of those hearings is not before us, the Commissioner found as follows:
The Commission has concluded to allow the claim for additional temporary total disability from April 21, 1984 to date and continuing; and finds on the third and fourth issues that the claimant's medical treatment and surgery for the left leg and knee as of April 21, 1984 is causally related to the accidental injury of December 19, 1979, and will direct the employer, self-insurer, to provide for same. The Commission finds on the second issue that the employer, self-insurer, shall pay medical bills including the bill of Dr. Thomas Pezefsky in accordance with the Medical Fee Schedule of this Commission; and further finds on the sixth issue that the claimant shall be referred to the Division of Vocational Rehabilitation.
It is therefore this 1st day of November, 1984, by the Workmen's Compensation Commission ORDERED that Koppers Company, Incorporated, employer, self-insurer, pay unto Lawton Edward Ewing, claimant, compensation for additional temporary total disability at the rate of $220.00, payable weekly, beginning April 21, 1984 to date and continuing during the period of temporary total disability of the claimant pending further Order from this Commission; and pay for further medical treatment including surgery and medical treatment and surgery for the left leg and knee as of April 21, 1984; and pay medical bills including the bill of Dr. Thomas Pezefsky in accordance with the Medical Fee Schedule of this Commission; and further ORDERED that Lawton Edward Ewing, claimant, be referred to the Division of Vocational Rehabilitation. This Award is subject to further consideration by this Commission as to whether the claimant sustained any increase in permanent disability, the case shall be reset only on request; subject to the provisions of the Workmen's Compensation Law of Maryland.
It is further ORDERED that statement of compensation paid be filed with this Commission in due time.
EDWARD A. PALAMARA COMMISSIONER
(Emphasis added)
Koppers filed a timely appeal to the Circuit Court for Baltimore County. It alleged, among other things, that the Commission erred in finding a causal relationship between the accident of December 19, 1979, and the existing leg and knee condition. That appeal, case number 84-CG-1438, is still pending before the circuit court.
Subsequent to that appeal, on April 12, 1985, the parties were notified by the Commission that a written vocational rehabilitation plan and report had been filed and that either of them could request a hearing to controvert the report within ten days from the date of the notice. Koppers responded by letter to the Commission, dated April 17, 1985, which it asked be accepted as notice of controversion, but did not request a hearing. That letter also reminded the Commission, "this case is on appeal to the Circuit Court for Baltimore County and will be tried according to the current schedule on May 21, 1985." The case was not tried on the expected date.
On June 7, 1985, Ewing requested a hearing before the Commission on the issue of vocational rehabilitation. After some further negotiations and attempts to reach an agreement, a hearing was held on November 12, 1985, on the issues of (1) controversion of the vocational rehabilitation report, and (2) credit for payments, culminating in findings and orders as follows:
The Commission has concluded to deny the employer, self-insurer's controversion of the vocational rehabilitation report; and finds that the claimant shall undergo the program at Dundalk Community College in Business Management including Accounting and Bookkeeping; and that the employer, self-insurer shall pay the claimant compensation at the rate of $220.00 per week during said period of Vocational Rehabilitation; and finds on the second issue that the request for credit of payments paid for job placement attempts versus benefits under schooling is denied.
It is, therefore, this 20 day of November, 1985, by the Workmen's Compensation Commission ORDERED that Lawton Edward Ewing, claimant, undergo vocational rehabilitation program at Dundalk Community College as hereinabove stated; and further ORDERED that Koppers Company, Incorporated, employer, self-insurer, pay unto Lawton Edward Ewing, claimant, compensation for vocational rehabilitation at the rate of $220.00, payable weekly and continuing during said period of vocational rehabilitation; subject to the provisions of the Workmen's Compensation Law of Maryland.
It is further ORDERED that statement of compensation paid be filed with this Commission in due time.
EDWARD A. PALAMARA COMMISSIONER
Koppers filed a timely appeal from this decision. Its Petition, filed pursuant to Rule B2 e, alleged, among other things, that the Commission exceeded the powers granted it in that the Commission did not have jurisdiction to hear any further issues while the claim was already on appeal, as the Commission retained jurisdiction only with regard to additional medical treatment and attention, and that vocational rehabilitation and additional temporary total disability benefits are not such issues. This appeal was assigned case number 85-CG-4016.
Koppers subsequently moved for summary judgment pursuant to Rule 2-501. After a hearing, Judge John E. Raine, Jr., ruled that it is beyond the jurisdiction of the Commission to make a supplemental award while an appeal on the same case is pending. His "memorandum opinion" said:
It is the opinion of this Court that an Appeal, properly taken, removes matters from the jurisdiction of the Workmen's Compensation Commission and prevents the Commission from making a Supplemental Award for the same injury being questioned on Appeal. While an Appeal is pending and a report is filed with the Commission from the Division of Vocational Rehabilitation, and under existing rules the Employer/Self-Insurer was required to controvert and they did so, but asked for no hearing and called attention to the pending Appeal, the Employer/Self-Insurer is entitled to have a decision on the initial Award of the Commission before required to confront the possibility of a Supplemental Award.
Summary Judgment was granted and this appeal followed.
Appellant avers that the trial judge's opinion essentially holds that the taking of an appeal automatically deprives the Commission of jurisdiction to act in any matter pertaining to the claim while the appeal is pending. He says this is contrary to the law as articulated by the Court of Appeals in Pressman v. Accident Fund, 246 Md. 406, 228 A.2d 443 (1967), and by this Court in Trojan Boat Co. v. Bolton, 11 Md. App. 665, 276 A.2d 413 (1971). Whether that is a reasonable interpretation of Judge Raine's opinion is not important. This appeal is not from the opinion, but is from the judgment entered thereon. Thomas v. Dep't of Health & Mental Hyg., 62 Md. App. 166, 172, 488 A.2d 983, 986 (1985). The same rule applies to appeals from the Commission to the circuit court.
"An appeal is allowed, not from a finding or opinion of the Commission, but from its `decision' disposing of the case."
Pressman, supra, 246 Md. at 415, 228 A.2d 443, quoting Furley v. Warren-Ehret Co., 195 Md. 339, 345, 73 A.2d 497 (1950).
In Pressman a hearing was held on April 3, 1964, at which the Commission determined the identity of the employer and made an award for temporary total disability. No evidence was introduced and no finding was made as to whether the State Accident Fund was the insurer. The employee appealed to the Court of Common Pleas of Baltimore City. While that appeal was pending, a further hearing was held before the Commission on the issue of insurance coverage. The Commission held the Fund was the insurance carrier and ordered payment by the Fund of temporary total disability. The Fund appealed that order. Both sides moved for summary judgment. The Fund contended, inter alia, that the taking of the appeal from the earlier decision automatically deprived the Commission of jurisdiction to act in the matter while that appeal was pending. The Court held that, inasmuch as no evidence was offered on the question of insurance at the first hearing and no decision made on the issue, the Commission retained jurisdiction to adjudicate the question as it did at the second hearing, citing Maryland Code (1957, 1985 Repl.Vol.) Art. 101, § 40(c) which said then as now:
The powers and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified....
In Union Mining Co. v. Del Signora, 191 Md. 55, 61, 59 A.2d 771, 773 (1948), Judge Grason, for the Court, had said
After the Commission made the award in this case, and no appeal was taken therefrom, it retained jurisdiction over the matter.... (emphasis added)
The Pressman Court held the quoted language did not prevent retention of jurisdiction by the Commission to deal with aspects of a case which were not dealt with or embraced within a decision on other aspects which had been appealed.
Judge Powers said for this Court in Flying "A" Serv. Stat. v. Jordan, 17 Md. App. 477, 302 A.2d 650 (1973):
A decision of the Commission which an aggrieved party is entitled to have reviewed by a court must be an operative order which has the effect of granting or denying some benefit under the Workmen's Compensation Law. Most often, such a decision is reached by giving effect to multiple findings, but it is the ultimate decision or order, not each individual finding, which is the basis for judicial review. Obviously, in a review of the correctness of a decision or order, each finding that contributed to the final result is examined, and one incorrect finding may make the result incorrect. But the appeal is from the result, rather than from each of its separate elements.
17 Md. App. at 480-81, 302 A.2d at 653 (emphasis added).
As previously noted, the first decision of the Commission, which is the subject of the appeal in case number 84-CG-1438, included a finding and order that "the claimant shall be referred to the Division of Vocational Rehabilitation." Clearly, the Commission "dealt with" that issue.
By Ch. 744, Acts of 1968, the General Assembly added a new section to the benefits provided by the Workmen's Compensation Act. Maryland Code (1957, 1985 Repl.Vol.) Art. 101, § 36(9) says, in pertinent part:
(a) When as the result of an injury, an employee is disabled from performing work for which he was previously qualified, he shall be entitled to vocational rehabilitation as reasonably necessary to restore him to suitable employment. The employer and insurer shall pay the expenses of the vocational rehabilitation. The Commission shall refer the employee to an appropriate rehabilitation evaluation agency for evaluation of the practicability of, need for, and type of training necessary and appropriate to render the employee fit for a remunerative occupation. Vocational rehabilitation training shall not extend for a period of more than twenty-four (24) months.
(b) The Commission, upon receiving a report from the rehabilitation evaluation agency, shall promptly notify all parties of the contents of the report. Any party in interest may within ten (10) days from the date of issuance of the report, request a hearing to controvert the report. At the hearing, the parties may present additional evidence as necessary. Following the hearing, the Commission shall make a decision accepting or rejecting in whole or in part the vocational rehabilitation agency report and issue an appropriate order regarding vocational rehabilitation of the employee.
(c) During the period an employee is undergoing vocational rehabilitation training, he shall be entitled to compensation as if he were temporarily totally disabled.
We have been referred to, and our own research has discovered, no Maryland cases dealing with or construing § 36(9).[1] The plain language of the statute is, that for an employee to be entitled to vocational rehabilitation, he must be disabled, as the result of an injury, from performing work for which he was previously qualified. If he is not disabled, or if any disability is not the result of an injury, there is no entitlement to vocational rehabilitation. It necessarily follows that the entitlement to vocational rehabilitation is "embraced within a decision on the other aspects which had been appealed," i.e., additional temporary total disability and causal connection. Pressman, 246 Md. at 416, 228 A.2d 443. It was not independent and distinct from the issues on appeal.
We recognize the principle that the Workmen's Compensation Act is to be construed as liberally in favor of injured employees as the Act's provisions will permit so as to effectuate its benevolent purpose as remedial social legislation. Lovellette v. City of Baltimore, 297 Md. 271, 465 A.2d 1141 (1983). But this does not mean that the Act should be construed to provide for benefits beyond those authorized by its provisions. Subsequent Injury Fund v. Thomas, 275 Md. 628, 635, 342 A.2d 671, 675 (1975). We further note, as did Chief Judge Gilbert for this Court, in Great American Ins. v. Havenner, 33 Md. App. 326, 364 A.2d 95 (1976) that payments of compensation made pursuant to an award by the Commission, even though reversed on appeal, may not be recovered from the claimant. Since the appeal does not operate as a stay, the claimant is fully protected during the pendency of that appeal.
Appellant cites Vinci v. Allied Research, 51 Md. App. 517, 444 A.2d 462 (1982), as supportive of his position. That case discusses the general continuing jurisdiction of the Commission under § 40(c) of the Act and the applicability of the doctrines of res judicata and collateral estoppel to actions by the Commission after a judgment on appeal. It does not discuss the jurisdiction of the Commission pending an appeal.
The provision in § 56(a) of the Act that the Commission retains jurisdiction pending appeal to issue supplemental orders for additional medical treatment and attention is not applicable to this case. Vocational rehabilitation is not within the meaning of medical treatment and services as defined in the Act. See Harris v. Janco Enterprises, 53 Md. App. 674, 455 A.2d 453 (1983).
We need not and do not decide whether a referral to the Division of Vocational Rehabilitation standing alone (as opposed to a decision accepting or rejecting the report of the vocational rehabilitation agency) is an order of the Commission which grants a benefit under the worker's compensation law entitling a party to judicial review. Eastern Stainless Steel v. Nicholson, 60 Md. App. 659, 484 A.2d 296 (1984). Under the facts of this case, the referral was dependent upon and directly involved in the orders on temporary total disability and causal connection, which were proper matters for judicial review. Under these circumstances, the pending appeal in case number 84-CG-1438 stayed the power of the Commission to order vocational rehabilitation and Judge Raine properly granted summary judgment in case number 85-CG-4016.
JUDGMENT AFFIRMED. APPELLANT TO PAY THE COSTS.
NOTES
[1] The section was referred to in J & M Construction Co. v. Braun, 44 Md. App. 602, 410 A.2d 607 (1980), dealing with apportionment of permanent disability pursuant to § 36(7). There, the claimant sustained an accidental back injury in 1975, as a result of which he was awarded permanent partial disability. In 1976, while employed by a different employer, he sustained a second injury and filed a claim. The Commission passed an order awarding temporary total disability but did not decide permanent disability. Thereafter, before any determination had been made as to any permanent disability resulting from the second accident, he applied for vocational rehabilitation. It was undisputed that after the second accident he was disabled from performing work for which he was previously qualified and thus was entitled to vocational rehabilitation reasonably necessary to restore him to suitable employment. The Commissioner ordered the second employer's insurer to pay all of the expenses of vocational rehabilitation. The trial court granted summary judgment affirming the Commission, and this Court affirmed. |
9,645,575 | 2023-08-22 21:28:37.748039+00 | Clinton | null | CLINTON, Judge,
concurring.
In the distinctly unusual posture of things in these causes, truly there is no extant precedent directly in point. Essentially, the opinions of the Court engage in an analysis of germane constitutional and statutory provisions to conclude that there has been a misjoinder of offense, such that “the trial court was required to sustain .appellant’s request for election,” and that “ ‘case’ equals conviction for a single offense [so that] convictions and sentences for separate offenses ... are considered separate ‘cases’ [for purposes of prescribing jurisdiction on direct appeal].” While harboring some reservations, mainly about incidental observations made along the way and what may be less than complete examination of the meaning of “case,” I join the opinions.1
. In Cause No. 69,023, for example, there are allusions to "ambiguities" in prior applications of the concept of “transactions." In Causes Nos. 0069-85 and 0070-85, for another, the conclusion seems further supported by the fact that "criminal case” and "criminal action" are used interchangeably throughout the Code of Criminal Procedure, the latter ordinarily understood to be a "criminal prosecution" seeking to determine guilt or innocence of one accused of a penal offense. See generally, Kemper v. State, 63 Tex.Cr.R. 1, 138 S.W. 1025, 1038-1039 (1911). |
1,516,614 | 2013-10-30 06:32:57.437185+00 | Hill | null | 519 A.2d 1156 (1986)
TOWN OF WOLCOTT
v.
Weldon A. BEHREND, Anne H. Behrend, Robert Davis & Richard Gutzmann.
No. 84-227.
Supreme Court of Vermont.
November 14, 1986.
*1157 Sargent & White, Morrisville, for plaintiff-appellant.
Robert W. Davis of Chimileski & Associates, Newport, for defendants-appellees.
Before ALLEN, C.J., and HILL, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.
HILL, Justice.
Plaintiff-appellant Town of Wolcott brought this action seeking treble damages against all defendants under 13 V.S.A. § 3606 for the unlawful cutting of timber on property owned by the town. The town alleged that the wrongful cutting had taken place on two different occasionsonce in 1979 and once in 1980. The Behrends were the only defendants who answered the complaint.[1] Trial was before the court, and it found that the town owned the land as alleged and that defendants had wrongfully cut the timber. The court denied all damages to the town, however, because it failed to prove the value of timber cut in 1979, and because ownership rights to the timber cut in 1980 had been released by the town through the actions of a selectman. The town appeals that portion of the trial court's judgment denying damages. The defendants cross-appeal on the issues of whether the town owns the land in question and whether the timber was wrongfully cut. We affirm the trial court's judgment on the liability issue, reverse the judgment relative to damages for both the 1979 and 1980 timber cuts, and remand for further hearing on the issue of damages.
The controversy centers on a dispute over the location of several adjoining "gore lots" running along the northern boundary of the Town of Wolcott. The town claims that it owns these gore lots and that the cutting took place on them. It is undisputed that the Behrends' northern property line abuts the southern boundary of the gore lots and that the northern boundary of the gore lots is contiguous with the boundary line between the Towns of Wolcott and Craftsbury. There was conflicting evidence, however, about the precise locations of the Behrend/gore lot boundary and the Wolcott/Craftsbury town line.
*1158 In January of 1979, the Behrends hired Robert Davis to cut timber for them on the northern part of their property. At that time, there was some question about the precise location of the Behrends' northern boundary. Believing he owned the land and the timber thereon, Walter Behrend instructed Mr. Davis to cut up into property which he knew the town claimed was the gore lots.
In 1980, the Behrends hired Richard Gutzmann to cut more timber off their land. As he had done with Davis, Behrend instructed Gutzmann to cut onto the disputed area because he felt he owned the land and the trees. Several weeks later, a Wolcott selectman discovered Gutzmann logging on the land and asked him to stop. According to Gutzmann's testimony at trial, the selectman told him the land belonged to the town but that he could "pick up what was already cut." The town then brought suit under 13 V.S.A. § 3606 for unlawful cutting of timber.
I.
The plaintiff first challenges the trial court's denial of damages for the first of two cuts because the town failed to prove the value of timber cut by Davis in 1979. The court found that the only testimony on damages related to timber cuts in 1978 and 1980. The appellant argues that this finding is clearly erroneous, and we agree.
On appeal, this Court will overturn findings of fact when, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous. Cliche v. Cliche, 143 Vt. 301, 306, 466 A.2d 314, 316 (1983); V.R.C.P. 52. Plaintiff's expert witness testified that he was certain that there had been only two timber cuts in the disputed area in recent times. Defendant Davis testified that he cut during a period commencing in January of 1979, and Gutzmann testified that he cut during 1980. There was no evidence introduced by either party that any cutting actually took place in 1978.[2] Furthermore, when asked to approximate the dates of the cuttings, the plaintiff's expert stated that one was in 1980 and another was "prior to that," "around 1978," or "approximately two years previous [to the 1980 cutting]." The expert also referred to the first cutting as the "78/79" cutting. All of the evidence adduced at trial relating to the first of two cuts, therefore, could be understood to relate to a cut which took place in early 1979. In the absence of any evidence to support its conclusion, and in light of the other evidence, it was error for the trial court to find that the expert's testimony related to timber cut in 1978. The evidence, to the contrary, supports the conclusion that the expert was testifying merely to the 1978 market value of stumpage cut sometime around 1978. On remand, therefore, the trial court will have to assess damages for the 1979 cut.
II.
Plaintiff's second argument is that the trial court erred by denying it damages for the logging in 1980 on the theory that the town, through the actions of a selectman, had given away the timber cut in 1980. The evidence was that when a Wolcott selectman, Eugene Gates, discovered Mr. Gutzmann logging on the disputed property in 1980, he told him to stop. In addition, Gutzmann testified that Gates told him he could "pick up what was already cut." Defendants argue that the evidence supports the conclusion that selectman Gates was acting on behalf of the whole board. In this regard, defendants rely on a line of cross-examination testimony *1159 by Gates in which both he and the cross-examiner repeatedly referred to the town as "they" when discussing the actions of selectman Gates. It was clear from the evidence, however, that Gates was the only selectman at the site. Moreover, there was no evidence that Gates was authorized to act for any of the other selectmen. Under these circumstances, we must conclude that Gates was acting independently of the other selectmen. Since there was no evidence that Gates was acting on behalf of the board of selectmen as a whole, the effectiveness of the release of ownership rights depends on whether a single selectman, acting without the knowledge or concurrence of any other board members, can bind the town in such a manner.
We have held previously, after a review of the statutes regulating local government in Vermont, that the "Legislature intended that selectmen should and could function as a board." State v. Baldwin, 116 Vt. 112, 113, 70 A.2d 242, 243 (1950). We also stated in Baldwin that "in most instances in order for ... acts [of the board of selectmen] to have any force they must ... function [as a board.] When board action is required it must be by a majority, at least, of the members." Id. at 114, 70 A.2d at 243; see also Goslant v. Town of Calais, 90 Vt. 114, 123, 96 A. 751, 755 (1916) ("nothing said by the selectmen severally, each acting independently of the others or either of them, could affect the town."). Release by the town of a valid ownership claim to timber is clearly an action within the scope of the board's supervisory authority. We hold, therefore, that action by a majority of the board of selectmen is necessary for the effective release by the town of an ownership claim to timber.
In sum, the trial court's denial of damages for both the 1979 and 1980 cuts was error. On remand, the court must ascertain the appropriate damage award under 13 V.S.A. § 3606.[3]
III.
Defendants' cross appeal concerns whether the two cuttings were wrongful under 13 V.S.A. § 3606. Defendants first argue that plaintiff failed to prove that either cutting was "without leave," as is required in an action under § 3606. Davis v. Cotey, 70 Vt. 120, 121, 39 A. 628, 628 (1897). We have held, however, that "[t]o justify a threefold recovery under the statute the plaintiff was required only to prove that the defendant cut timber on plaintiff's land." Amey v. Hall, 123 Vt. 62, 69, 181 A.2d 69, 74 (1962) (citing Davis v. Cotey, supra, 70 Vt. at 121, 39 A. at 628). Thus, contrary to defendants' argument, it is sufficient if the plaintiff proves that defendants in fact cut timber on plaintiff's land. Id. In this case, defendants Davis and Gutzmann both admitted that they cut timber on land the trial court found to be owned by plaintiff. This evidence satisfied plaintiff's burden of proof under the statute.
The defendants' second argument is that the trial court's judgment on liability must be reversed because the evidence does not support the finding that plaintiff proved ownership of the timber or the gore lots on which defendants cut the timber. The trial court found that "[p]laintiff proved by a preponderance of the evidence that it owned the timber" and that "[t]he Town owns the Gore lots." We will not overturn these findings unless they are clearly erroneous. Cliche v. Cliche, supra, 143 Vt. at 306, 466 A.2d at 316.
Plaintiff's evidence on title to the gore lots was a 1939 quitclaim deed to the town conveying the gore lots, other deeds in the plaintiff's chain of title, and the testimony of Arlo Sterner, whose testimony relative to title was accepted by the court as expert testimony. Mr. Sterner testified on the *1160 issue of the town's ownership of the land, concluded that the town owned the gore lots, and based his opinion on his analysis of the title history of the land in question and his personal surveying work in the area.
Defendants correctly note that a quitclaim deed conveys to the grantee only the interest which the grantor had at the time of the conveyance. Munson v. Goodro, 124 Vt. 282, 284, 204 A.2d 126, 128 (1964); Blondin v. Brooks, 83 Vt. 472, 477, 76 A. 184, 186 (1910). It follows, therefore, that one way to prove ownership of property acquired through a quitclaim deed is to prove that the grantor had title to the land described in the quitclaim deed. Plaintiff introduced a 1904 warranty deed of H.S. Tolman conveying the gore lots to J.E. Davis, predecessor in title to plaintiff's grantor. Plaintiff also introduced a decree of distribution from the Lamoille Probate Court transferring the gore lots to the heirs of J.E. Davis, who later conveyed the gore lots to plaintiff by quitclaim deed in 1939. Based on all of the evidence, the trial court's conclusion that the town owns the gore lots is not clearly erroneous.
Defendants' two remaining arguments are similarly without merit. The town's claim to ownership of the timber was not defeated by its failure to exclude the possibility that the timber rights had not been conveyed. Proof of ownership of real property carries with it the implication of ownership of nonsevered timber for purposes of 13 V.S.A. § 3606. See Stratton v. Lyons, 53 Vt. 641, 643 (1879) ("Land includes not only the ground or soil, but everything attached to it, above or below."); see also Northern Pacific Railroad v. Paine, 119 U.S. 561, 564, 7 S. Ct. 323, 324, 30 L. Ed. 513 (1887) ("Standing timber is a part of the realty and goes with its title or right of possession."). Defendants introduced no evidence to challenge plaintiff's ownership of the timber. Accordingly, their argument must fail.
Lastly, defendants argue that the town did not adequately demonstrate that it had title to the land on which the cutting took place because of discrepancies between deed descriptions, physical field evidence, and map illustrations of the location of the Wolcott/Craftsbury town line. In essence, the defendants dispute the trial court's finding regarding the locations of their northern property line and the Wolcott/Craftsbury town line. The trial court found that:
Defendants Behrend have no legal claim in the Gore lots by deed or adverse possession and it had been acknowledged by them that establishment of the Town line effectively establishes the location of the Gore lots and in turn, the Behrends' northerly boundary is established. That northerly line of Behrends is clearly marked by flags, blazes and other physical evidence in the field.
The Craftsbury-Wolcott Town line is marked in the field by old blazes, old fences, stone markers and other physical evidence in the field. The line has long been established in the field and conforms to deed records.
The location of a boundary line between properties, when it is disputed in an action under 13 V.S.A. § 3606, is a question of fact. Graham v. Slayton, 122 Vt. 425, 430, 175 A.2d 809, 812 (1961); Taylor v. Blake, 109 Vt. 88, 91, 191 A. 923, 925 (1937). Moreover, the trial court's finding on this point "must stand if supported by any substantial evidence, although there may be inconsistencies, or even substantial evidence to the contrary." Graham v. Slayton, supra, 122 Vt. at 427, 175 A.2d at 811.
Defendants correctly point out that the absence of a precise deed description of the gore lots in plaintiff's chain of title raises some question about the location of the gore lots, and, in turn, some question about the town's ownership claim to the land on which the cutting took place. If, for instance, the gore lots are located at a point more northerly than as found by the trial court, then defendants may not have cut on land owned by the plaintiff.
*1161 In the 1939 quitclaim deed to the town, and throughout plaintiff's chain of title, the disputed property is described only as "the gore lands between lot number 68 and the town line." The parties agree, however, that the "town line" referred to in the deeds in plaintiff's chain of title is the Wolcott/Craftsbury boundary and that the gore lots lie between the Wolcott/Craftsbury town line and the northern boundary of the Behrends' property.
The plaintiff introduced the expert testimony of Richard Townes, a licensed land surveyor, which related to the location of the northern boundary of lot 68, which is the northern boundary of defendants' property. Plaintiff also introduced the expert testimony of another land surveyor, Arlo Sterner, which related to the location of the Wolcott/Craftsbury town line. Both experts relied on deed descriptions and numerous surveys, made by themselves and others, as the basis for their opinions as to the location of these boundary lines. The defendants' evidence consisted of local and state road maps, as well as United States Geographical Survey maps and photographs, and challenged plaintiff's evidence relating to the location of the Wolcott/Craftsbury town line. Through this evidence the defendants sought to prove that the Wolcott/Craftsbury town line was located at a more northern point. According to defendants, if the town line were located at a more northern point, the gore lots would be situated further north, and the cutting would not have taken place on land owned by the Town of Wolcott.
Under the applicable standard of review, we conclude that there was substantial evidence to support the trial court's conclusions with respect to the location of both boundaries, despite the presence of credible conflicting evidence. Graham v. Slayton, supra, 122 Vt. at 427, 175 A.2d at 811. In addition to the testimony of plaintiff's experts, there was ample evidence in the field, in the form of old blazes, old fences, stone markers and other physical evidence, to support the court's finding as to the location of the Wolcott/Craftsbury town line. There was no evidence of a marked boundary at the town line claimed by defendants. "In these circumstances the lines and monuments actually marked and recognized on the ground in the distant past will constitute the survey." Amey v. Hall, supra, 123 Vt. at 68, 181 A.2d at 73. Moreover, the trial court could give more weight to plaintiff's evidence on the location of the Behrends' northern property line than to defendants. Its findings and conclusions were amply supported by the evidence.
Judgment affirmed as to liability; reversed and remanded for further proceedings consistent with the views expressed in this opinion.
NOTES
[1] Defendants Gutzmann and Davis did not answer plaintiff's complaint, and separate default judgments were entered against them.
[2] The trial court expressly found that "[t]here was no evidence that Defendants cut or caused to be cut any timber in 1978." The plaintiff's expert, on whose testimony the court based its finding regarding the occurrence of a 1978 cut, had not observed the first cut. Nor did he have any personal knowledge about when it took place. Moreover, his testimony was not directed toward the establishment of the date of the first cut. Rather, his testimony related solely to damages and was based on an estimation of when the first cut took place.
[3] At oral argument, the plaintiff conceded that treble damages, although generally available under 13 V.S.A. § 3606, are not appropriate in this case. On remand, therefore, the trial court should restrict the damage award to actual damages. |
1,516,616 | 2013-10-30 06:32:57.468787+00 | Drowota | null | 726 S.W.2d 896 (1987)
STATE of Tennessee, Appellant,
v.
Alvin THARPE, Defendant-Appellee.
Supreme Court of Tennessee, at Jackson.
March 9, 1987.
*897 W.J. Michael Cody, Atty. Gen. and Reporter, William Barry Wood, Asst. Atty. Gen., Nashville, Thomas T. Woodall, Asst. Dist. Atty. Gen., Paris, for appellant.
Alvin Tharpe, pro se.
Thomas F. Ventimiglia, Swayne, Groom, Hessing and Ventimiglia, Paris, for defendant-appellee.
OPINION
DROWOTA, Justice.
Permission to appeal has been granted in this case to clarify the law concerning whether circumstantial evidence, from which the jury could reasonably find that stolen goods had been received from a third person, is sufficient to convict a defendant. Defendant, Alvin Tharpe, was convicted by a Henry County jury of receiving stolen property under T.C.A. § 39-3-1113 (receiving stolen property with a value under $200); he was sentenced to two years in the Henry County Jail as a Range I, Standard Offender. On appeal, a divided panel of the Court of Criminal Appeals reversed Defendant's conviction, finding that no evidence showed that Defendant had received the stolen property from a third person. We reverse the Court of Criminal Appeals and reinstate the judgment of the trial court.
The Defendant's conviction is based wholly on circumstantial evidence. Sometime during the night of May 22 or the morning of May 23, 1984, the Towne House Restaurant in Paris, Tennessee, was burglarized. Entry was gained through a broken blade in the exhaust fan at the rear of the building. The fan was greasy and foot, hand, and finger prints were left by the burglar on a table beneath the fan and on the floor of the restaurant. The interior office door and a filing cabinet in the office were both forced open. Approximately $100 in various denominations of change was taken along with some 17 to 20 blank, unsigned payroll checks, which had been torn from the middle of the unused portion of the checkbook.
Between 9:00 and 10:00 on the morning of May 23, 1984, Defendant entered the Commercial Bank and Trust Company of Paris. Presenting a Towne House Restaurant payroll check, drawn for $200 and apparently signed by the restaurant's owner, Defendant claimed to be Aaron Dolberry, an employee of the restaurant and the named payee. Ms. Anita Ford, the teller trainee to whom the check was presented, knew that Defendant was not the Aaron Dolberry with whom she was familiar and asked Defendant to endorse the check. Having overheard, Ms. Marjorie Redmon, an experienced teller, offered her assistance. She too knew an Aaron Dolberry and did not recognize Defendant as the Aaron Dolberry she knew. Ms. Redmon called Defendant to her window and requested that he present identification. Defendant had endorsed the check as Aaron Dolberry but told Ms. Redmon that his identification was in his car. Taking the check, Defendant left the bank ostensibly to obtain identification, but he never returned.
In the course of Defendant's attempt to cash the check, Ms. Marianne Allen, a loan officer for the bank, noticed the commotion at the tellers' windows and recognized Defendant, with whom she had had prior dealings on the preceding day, May 22, 1984. Defendant had come to the bank about a delinquent loan on which the bank was seeking payment. He had introduced himself to Ms. Allen as Alvin Tharpe. After Defendant left the bank on May 23, Ms. Allen found out that he had attempted to negotiate a Towne House Restaurant check payable to Aaron Dolberry. A short time *898 later, Ms. Redmon telephoned Aaron Dolberry at the Towne House Restaurant and informed him that someone had attempted to negotiate a Towne House payroll check payable to him. Mr. Dolberry then told Jackie Owens, the owner of the restaurant, that a Towne House check had been presented at the bank. Mr. Owens examined his checkbook and discovered checks missing from the middle of the checkbook.
The burglary at the Towne House Restaurant and the Defendant's attempt to negotiate a Towne House check were both reported to the police. Based in part on the identifications of Defendant by the bank employees, a warrant for Defendant's arrest was obtained on May 23, 1984, and Defendant was arrested shortly thereafter. On September 17, 1984, the Grand Jury returned a four count indictment charging Defendant with third degree burglary, petit larceny, receiving stolen property under the value of $200, and concealing stolen property under the value of $200. Trial was held on November 29, 1984, in the Henry County Circuit Court. Defendant was 20 years old at the time of trial; he is about six feet two or three inches tall and weighs over 200 pounds.
At trial, Mr. Owens testified that his employees discovered the burglary when they opened the restaurant on the morning of May 23, 1984. The employees notified him and he came to the restaurant to determine what had been taken. He did not discover that any checks were missing until Mr. Dolberry informed him that the bank had called about the attempted negotiation of a Towne House check by Defendant. None of the checks had been signed by Mr. Owens. He also stated that the exhaust fan through which entry had been gained is on a frame four feet by four feet but that, while the fan blades are sufficiently close together to prevent entry ordinarily, one of the blades had been broken off in a previous burglary, leaving a space of about 15 inches through which the burglar entered the restaurant. The fan is about five feet from the floor and a table is placed just beneath the fan; the burglar had stepped down onto the table as he entered. The police were called to investigate the burglary prior to the discovery of the missing checks.
Lieutenant Eddie Snow, an investigator with the Paris Police Department, testified that he was called to the Commercial Bank on the morning of May 23 to investigate the attempted negotiation of a Towne House payroll check by a person who the tellers believed was not the named payee. Lt. Snow did not perform the initial investigation of the burglary but he did go to the Towne House Restaurant to speak with Mr. Owens because no checks had been reported missing to the two investigating officers. Mr. Owens had discovered that the checks had been taken only after the bank notified Mr. Dolberry that someone had attempted to negotiate a check payable to him. Lt. Snow obtained descriptions and positive identifications from police photographs of Defendant from employees at the bank. No physical evidence, such as fingerprints, was preserved from the burglary of the Towne House. When Defendant was arrested, he had no checks from the Towne House in his possession. Subsequent to Defendant's arrest, other Towne House checks had been presented for negotiation in Paris by persons other than Defendant. Lt. Snow testified that no connection between these subsequently presented checks and Defendant had been discovered.
Another Paris Police Officer testified as well. While working the 11:00 p.m. to 7:00 a.m. patrol shift on May 22 and 23, 1984, Officer Keith Hopkins saw Defendant standing with an unidentified person in the parking lot of the Dairy Queen, which adjoins the parking lot of the Towne House Restaurant. He knows Defendant by sight. Officer Hopkins estimated the time at which he saw Defendant to have been about midnight. On the morning of May 23, he was one of two officers who investigated the burglary of the Towne House. He stated that entry was made through the broken blade in the exhaust fan at the rear of the building. He thought that only a fairly small person could get through the space between the blades. Although greasy tracks and fingerprints were discovered, *899 no prints were preserved from the scene.
Three bank employees also testified. Ms. Ford stated that shortly after opening on the morning of May 23, 1984, while she was working as a teller trainee, a $200 Towne House check, payable to Aaron Dolberry and purportedly signed by Mr. Owens, was presented to her by Defendant for negotiation. She knew Mr. Dolberry personally and asked Defendant to endorse the check; Defendant then signed Mr. Dolberry's name. Ms. Redmon was at the teller's window next to Ms. Ford's and, having overheard the conversation between Defendant and Ms. Ford and knowing Mr. Dolberry as well, she offered her assistance when Ms. Ford sought help with the transaction. Ms. Redmon called Defendant to her teller's window and requested identification. Defendant claimed to have his identification in his car and, taking the check, he left the bank and did not return. Ms. Redmon then telephoned Mr. Dolberry and the Paris Police Department. In addition, Ms. Allen testified that she noticed the situation as it developed at the tellers' windows and recognized Defendant from the previous day, May 22, when he had introduced himself to her with his actual name and had talked to her about the bank's pending loan collection suit against Defendant.
At the close of the State's evidence, Defendant made a Motion for Judgment of Acquittal on all counts. The trial court granted the Defendant's Motion as to counts one and two, third degree burglary and larceny. The Defendant then rested his case. The instructions given to the jury for submission on counts three and four, receiving or concealing stolen property under the value of $200, included an instruction on the use of circumstantial evidence to prove guilt. A verdict of guilty was returned by the jury on count three (receiving). On appeal, the Court of Criminal Appeals reversed Defendant's conviction, holding that the evidence was insufficient to sustain the conviction. Relying on Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649 (1967), the majority of the Court of Criminal Appeals found that the evidence did not show that Defendant had received the check from a third party. The dissent argued that the evidence was sufficient to permit the jury to conclude that Defendant had received stolen property from a third person:
"These checks were stolen. The evidence does not show the defendant stole them. The evidence shows that he had the stolen check in his possession. If he didn't steal the check and he had it in his possession, it is obvious he had to receive it from someone. This is what the jury found and it is the only logical conclusion to be drawn from the evidence."
Judge Byers observed that in this case no evidence sufficiently indicated that Defendant was the thief, but the circumstantial evidence was sufficient to sustain the verdict. The dissent distinguished Deerfield v. State, supra, on its facts. We agree with Judge Byers.
A conviction based on circumstantial evidence is permitted in Tennessee. See, e.g., State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); State v. Brown, 551 S.W.2d 329, 330 (Tenn. 1977); Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Gossett v. State, 224 Tenn. 374, 380, 455 S.W.2d 585, 588 (1970); Peek v. State, 213 Tenn. 323, 328, 375 S.W.2d 863, 865 (1964) (Overruled on other grounds); Hardin v. State, 210 Tenn. 116, 121, 355 S.W.2d 105, 107-108 (1962); Farmer v. State, 208 Tenn. 75, 78-79, 343 S.W.2d 895, 896 (1961); Marie v. State, 204 Tenn. 197, 203-204, 319 S.W.2d 86, 89 (1958); Marable v. State, 203 Tenn. 440, 451-452, 313 S.W.2d 451, 457 (1958); Liakas v. State, 199 Tenn. 298, 303, 286 S.W.2d 856, 858 (1956); Cook v. State, 84 Tenn. 461, 466, 1 S.W. 254, 256 (1886) (Overruled on other grounds). "Circumstantial evidence differs from direct evidence and consists of proof of collateral facts and circumstances from which the existence of the main fact may be deduced according to reason and common experience of mankind." Bishop v. State, 199 Tenn. 428, 430, 287 S.W.2d 49, 50 (1956). Moreover, "[c]ircumstantial evidence alone may be sufficient to convict one of a crime, if such evidence sufficiently proves all the *900 necessary elements. Marable v. State, [supra]. The weight of circumstantial evidence is for the jury to determine. Williams v. State, 520 S.W.2d 371 (Tenn. Cr.App. 1974)." State v. Coury, 697 S.W.2d 373, 377 (Tenn.Cr.App.), permission to appeal denied (Tenn. 1985). Nevertheless, "[a] verdict of a jury may not be based alone upon conjecture, guess, speculation or a mere possibility." Sullivan v. State, 513 S.W.2d 152, 154 (Tenn.Cr.App.), cert. denied (Tenn. 1974) (citations omitted).
"The law is firmly established in this State that to warrant a criminal conviction upon circumstantial evidence alone, the evidence must be not only consistent with the guilt of the accused but it must also be inconsistent with his innocence and must exclude every other reasonable theory or hypothesis except that of guilt, and it must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that he is the one who committed the crime."
Pruitt v. State, 3 Tenn.Cr.App. 256, 267, 460 S.W.2d 385, 390, cert. denied (Tenn. 1970). "Absolute certainty of guilt is not demanded by the law to convict of a criminal charge, but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense." Hardin v. State, supra, 210 Tenn. at 122, 355 S.W.2d at 108.
"Whether the conviction is based upon direct or circumstantial evidence, the standard for appellate review is the same. We will not reverse [the conviction] unless we find that `the evidence is insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.' Rule 13(e), T.R.A.P. We must view the evidence and all reasonable inferences therefrom in the light most favorable to the State. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978)."
State v. Johnson, 634 S.W.2d 670, 672 (Tenn.Cr.App.), permission to appeal denied (Tenn. 1982).
The elements of receiving stolen property are: "(1) fraudulently receiving, (2) goods feloniously taken or stolen from another, (3) knowing such goods to have been so obtained, (4) with intent to deprive the owner thereof." Meade v. State, 530 S.W.2d 784, 786 (Tenn.Cr.App.), cert. denied (Tenn. 1975) (citations omitted). A person who is the thief of property cannot be convicted of receiving stolen property. See, e.g., Deerfield v. State, supra, 220 Tenn. at 550, 420 S.W.2d at 651; Parham v. State, 78 Tenn. 498, 501 (1882); State v. Cole, 645 S.W.2d 417, 419 (Tenn.Cr.App. 1982). "For a defendant to be found guilty of receiving stolen property it is necessary to show that he received it from a third person... ." State v. Veach, 224 Tenn. 412, 415, 456 S.W.2d 650, 651 (1970). See also Whitwell v. State, 520 S.W.2d 338, 344 (Tenn. 1975); Deerfield v. State, supra, 220 Tenn. at 549, 420 S.W.2d at 651; State v. Burse, 600 S.W.2d 250, 251 (Tenn.Cr.App. 1979), permission to appeal denied (Tenn. 1980). The defendant must also know or have reason to know that the property is stolen; however, possession of recently stolen property permits but does not require the jury to draw the inferences both that the defendant knew the property was stolen, see, e.g., State v. Hatchett, 560 S.W.2d 627, 629 (Tenn. 1978), and that the defendant received the property from a third person, if he himself is not the thief, see, e.g., Gossett v. State, supra, 224 Tenn. at 383, 455 S.W.2d at 589. See also, e.g., Bush v. State, 541 S.W.2d 391, 394 (Tenn. 1976); Lax v. State, 214 Tenn. 162, 167, 378 S.W.2d 782, 785 (1964); State v. Lawson, 695 S.W.2d 202, 203 (Tenn.Cr.App. 1985); State v. Ratliff, 673 S.W.2d 884, 885 (Tenn. Cr.App.), permission to appeal denied (Tenn. 1984); Meade v. State, supra, at 786. Taylor v. State, 493 S.W.2d 477, 479 (Tenn. Cr.App. 1972), cert. denied (Tenn. 1973); Nunley v. State, 479 S.W.2d 836, 838 (Tenn.Cr.App.), cert. denied (Tenn. 1972); Myers v. State, 4 Tenn.Cr.App. 314, 318-319, 470 S.W.2d 848, 850, cert. denied (Tenn. 1971) (Cases in which guilty knowledge of stolen nature of property was inferred from possession of recently stolen property) and Liakas v. State, 199 Tenn. 549, 553, 288 S.W.2d 430, 432 (1956); State v. Tilson, 619 S.W.2d 544, 545 (Tenn.Cr. App.), permission to appeal denied (Tenn. 1981); Duncan v. State, 527 S.W.2d 150, *901 151 (Tenn. Crim. App.), cert. denied (Tenn. 1975); Patmon v. State, 524 S.W.2d 677, 678 (Tenn.Cr.App. 1974), cert. denied (Tenn. 1975); Taylor v. State, supra, at 479 (Cases in which receipt of stolen property was inferred from possession of recently stolen property). Cf. State v. Devitt, 215 Tenn. 146, 150-151, 384 S.W.2d 26, 28-29 (1964) (No evidence whatsoever from which jury could draw any inference.).
The application of Deerfield v. State, supra, has proven to be somewhat problematic and this Court has on several occasions attempted to clarify the proper scope of this case. See, e.g., Gossett v. State, supra; Tackett v. State, 223 Tenn. 176, 443 S.W.2d 450 (1969). Cf. Whitwell v. State, supra, at 347 (Harbison, J., dissenting) (Distinguishing Deerfield on its facts). The facts and circumstances of each case involving receiving stolen property must be carefully considered to determine whether Deerfield should control. This Court has never held in any case that Deerfield means that the element of receiving stolen goods from a third party cannot be shown by circumstantial evidence. On the contrary, this Court and the Court of Criminal Appeals have upheld a number of convictions for receiving stolen property based on circumstantial evidence. In Gossett v. State, supra, the conviction was predicated entirely on circumstantial evidence:
"This character of possession clearly warrants the inference ... that the Defendants knew the property had been placed [in the spot from which it was taken] even if they did not place it there themselves and they received it from the person who did place it there with guilty knowledge of its theft. Thus, it comes within the rule laid down in Tackett v. State, supra."
224 Tenn. at 383, 455 S.W.2d at 588-589. Gossett distinguished Deerfield on its facts.
Furthermore, in Tackett v. State, supra, we emphasized that the sufficiency of circumstantial evidence must be cautiously examined to determine whether Deerfield should be applied. "Neither [Deerfield nor Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115 (1967)] has any direct application to this case. Under the facts of this case another proposition is applicable, that the ... possession of goods quite recently stolen may warrant the inference they were illegally received... ." 223 Tenn. at 179, 443 S.W.2d at 451. Cf. Franklin v. State, 202 Tenn. 666, 669, 308 S.W.2d 417, 419 (1957) ("There was no evidence whatever, direct or circumstantial, of the receipt of the [stolen property] by these men from a third party.") (Emphasis added). Deerfield clearly applies to circumstances in which the evidence shows that the defendant actually stole the property and thus could not have received it. See, e.g., State v. Cole, supra; Taylor v. State, supra. Since at least Cook v. State, supra, "[i]n cases of this kind, where the party is found in possession of stolen property, and the proof shows his possession to have been guilty possession, slight circumstances may authorize a jury to determine whether he has been guilty of the theft, or of receiving the property knowing it to have been stolen." 84 Tenn. at 466, 1 S.W. at 256. As we observed in Bush v. State, supra, "the evidence of possession is almost inevitably accompanied by facts that either increase or decrease the degree of probability" in such cases. 541 S.W.2d at 397.
We now examine what the evidence in this case shows. Considering that Defendant is apparently too large a person to have squeezed through the broken blade in the exhaust fan at the rear of the Towne House Restaurant, cf. Kessler v. State, supra, 220 Tenn. at 86, 414 S.W.2d at 116 (The defendant could not have been the thief because he could not have gained entry through the size of the hole by which the burglars entered), the evidence nevertheless demonstrates that Defendant had stolen property in his possession shortly after the burglary. Cf. Meade v. State, supra, at 786 ("[T]he evidence placed the defendant at the scene of the burglary very shortly before the crime took place and showed he had exclusive personal possession of property taken in the burglary soon after it occurred."). Defendant was seen with an unidentified person near the Towne *902 House Restaurant at a time proximate to the burglary. Further, the character of the stolen property in his possession, a payroll check, combined with Defendant's attempt to negotiate it fraudulently, shows that he not only received it with guilty knowledge that the check had likely been stolen, but also that he intended to deprive the owner of its possession by cashing it. Such attempted negotiation further shows that Defendant received the check for unlawful purposes. Moreover, the evidence additionally shows that other persons had attempted to negotiate stolen payroll checks from the Towne House burglary, that no connection between these other checks and Defendant had been discovered or shown, and that Defendant had no checks from this burglary in his possession when he was arrested. Although Defendant may have simply found the check, clearly, if Defendant could not have stolen the check from the Towne House Restaurant, he had to have obtained it somehow and the jury could infer from this evidence that he had received it from a third party. "The determination of whether all other reasonable theories are excluded by the evidence presented is primarily a question of fact for the decision of the jury." State v. Coury, supra, at 377 (citations omitted). See also Pruitt v. State, supra, at 267.
Accordingly, the evidence in this case, while circumstantial, is sufficient to support the jury's verdict. Every element of the crime with which Defendant was charged and for which the jury convicted him has been shown on this record. Viewing the evidence and drawing every inference in the light most favorable to the State, as required by State v. Cabbage, supra, the conviction must be reinstated. The jury was justified in drawing the inference from the evidence on this record that Defendant had received stolen property from a third person. This case is thus controlled by Gossett, supra, and Tackett, supra, and not by Deerfield.
We, therefore, reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court. The costs are taxed to the Defendant.
BROCK, C.J., and FONES, HARBISON and COOPER, JJ., concur. |
1,516,624 | 2013-10-30 06:32:57.591972+00 | De Ment | null | 916 F. Supp. 1163 (1995)
Annie L. WILLIAMS, Plaintiff,
v.
HAGER HINGE COMPANY, Defendant.
Civil Action No. 95-D-58-N.
United States District Court, M.D. Alabama, Northern Division.
December 29, 1995.
*1164 *1165 *1166 *1167 Keith Ausborn, Montgomery, AL, for plaintiff.
Henry C. Barnett, Jr., Montgomery, AL, Edward M. Cheof, David L. Gordon, Laura D. Rolnick, Atlanta, GA, for defendant.
MEMORANDUM OPINION AND ORDER
DE MENT, District Judge.
Before the court is defendant Hager Hinge Company's ("Hager Hinge") motion filed September 18, 1995, for summary judgment in the above-styled action. Hager Hinge contemporaneously filed a brief in support of its motion. The plaintiff, Annie L. Williams ("Ms. Williams"), responded in opposition on October 17, 1995, and filed evidence in support of her position. This evidence included a five-page handwritten letter dated October 16, 1995, which plaintiff's counsel claimed to "adopt and incorporate" into the plaintiff's sworn affidavit of October 16, 1995. On November 13, 1995, Hager Hinge filed both a motion to strike the affidavit and the five-page handwritten letter as well as a reply to Ms. Williams' response to Hager Hinge's motion for summary judgment. Ms. Williams filed a response and/or motion to quash Hager *1168 Hinge's motion to strike on December 14, 1995, in which she also included a sur-reply to Hager Hinge's motion for summary judgment. After careful consideration of the relevant case law, the arguments of counsel, and the record as a whole, the court finds that defendant Hager Hinge's motion for summary judgment is due to be granted in part and denied in part.
MOTION TO STRIKE MS. WILLIAMS' AFFIDAVIT
Before addressing Hager Hinge's motion for summary judgment, the court will consider Hager Hinge's motion to strike Ms. Williams' alleged affidavit of October 16, 1995. The document at issue consists of a five-page handwritten explanation letter signed by Ms. Williams which is stapled to a typed cover page labeled as "plaintiff's sworn affidavit (sic)" ("typed cover-page"). The typed cover-page is signed by Ms. Williams and notarized by Ms. Williams' attorney. The text of the typed cover-page does not contain any facts, but provides that it "adopts and incorporates" the five-page handwritten letter, which was written by Ms. Williams on October 16, 1995.
Hager Hinge contends that the alleged affidavit fails to meet the requirements of Rule 56 of the Federal Rules of Civil Procedure because it does not affirmatively show that it is made under penalty of perjury, is based on personal knowledge, or that the affiant is competent to testify to the matters stated therein. Furthermore, Hager Hinge argues that this document labeled as the "sworn affidavit (sic)" sets forth no facts whatsoever, but simply attempts to "adopt and incorporate" Ms. Williams' five-page handwritten explanation in violation of Rule 56.
Rule 56(e) provides in part that:
Supporting or opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.... [Affidavits in support of a motion for summary judgment] must set forth specific facts showing that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e). It is well-settled that a purported affidavit that does not meet the standards of Rule 56(e) is subject to a timely motion to strike and should not be considered by the court in opposition to a motion for summary judgment. See McLendon v. Georgia Kaolin Co., Inc., 837 F. Supp. 1231, 1236 (M.D.Ga.1993) (affidavit must be based on personal knowledge, set forth facts admissible into evidence, and show that the affiant is competent to testify). Bald conclusions, opinions, and hearsay without supporting specific facts are not admissible and do not create a genuine issue of material fact. Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir.1985). Furthermore, statements of fact in a party's brief that are not in proper affidavit form cannot be considered in determining whether a genuine issue of material fact exists for purposes of summary judgment. Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986) (statement by attorney in a brief could not substitute for attorney's affidavit). Finally, where a party includes information in affidavits related to a summary judgment motion which might form the basis of an argument or defense, but that party fails to articulate such argument or defense, a district court is not required to consider such an argument or defense sua sponte. Blue Cross & Blue Shield of Alabama v. Weitz, 913 F.2d 1544, 1550 (11th Cir.1990).
While the alleged affidavit is not in a form generally encountered by this court, the court believes that the incorporation of the alleged affidavit in question meets the requirements of Rule 56(e). First, it is clear that the five-page handwritten letter was signed by Ms. Williams because the signature matches the signature on the typed cover-page. Furthermore, the court finds, based on the text of the typed cover-page, that the typed cover-page is intended to verify the five-page handwritten document. Because the typed cover-page is signed by Ms. Williams and notarized by Ms. Williams' attorney, the court finds that the handwritten letter is "sworn to," albeit crudely, within the *1169 meaning of Rule 56(e). Moreover, contrary to Hager Hinge's contentions, the court finds that Ms. Williams has alleged specific facts based on her personal knowledge within the five-page handwritten letter in compliance with Rule 56(e). Because Hager Hinge has not presented any case law that requires the court to disregard the alleged affidavit, the court finds that it should not strike Ms. Williams' five-page handwritten letter based on technical grounds.[1] Therefore, the court further finds that Hager Hinge's motion to strike is due to be denied.
STATEMENT OF FACTS
Hager Hinge designs and manufactures hinges and ornamental trim goods such as door kickplates. Ms. Williams, along with 450 other employees, worked at Hager Hinge's production facility located in Montgomery, Alabama. Ms. Williams began working at Hager Hinge in September, 1980, as a Machine Operator B in Department 505,[2] and remained in this department throughout her employment with Hager Hinge. Hager Hinge employed approximately thirty operators at Ms. Williams' level in Department 505 during the time that Ms. Williams worked there. The duties of a Machine Operator B at Hager Hinge include working on ball bearing machines, cutting machines, bending machines, pin head machines, automatic assembly machines, and reamers. These operators also perform non-machinery functions such as inspection, repair, filing, and machine set-up. Machine Operator B's are transferred within Department 505 depending on the department's business needs, which often changed daily. In determining which Machine Operator B will perform a certain function on a certain day, the supervisor considers the operator's level of experience and ability as well as the production schedules facing the department. The supervisor attempts to accommodate the operators by giving them the opportunity to perform a variety of duties. The daily assignments are made by the Department 505 Supervisor along with his or her assistant supervisors.
From September, 1980, until March, 1992, Ms. Williams' was supervised by Donald Mest ("Mr. Mest"). When Mr. Mest left Department 505, Arthur Keehn ("Mr. Keehn") became Ms. Williams' supervisor. Mr. Keehn's assistant supervisors during the time of Ms. Williams' employment with Hager Hinge were Nathaniel Johnson, Michael Jordan, and Richard Dixon, all of whom are black males.
While Ms. Williams was employed as a Machine Operator B in Department 505, she and the other operators performed both direct and indirect labor functions. Direct labor functions involve the physical production of hinges, generally with the aid of production machinery. Indirect labor functions include such duties as handling materials, operating forklifts, and inspecting the products. Although Hager Hinge does not have production standards for indirect labor functions, it requires operators performing direct labor functions to meet certain production standards.
In September, 1992, Ms. Williams and a white female, Barbara Coker ("Ms. Coker") were assigned to help Inge Knighten ("Ms. Knighten") with the "inspect function." This assignment included the indirect functions of inspecting and repairing hinges. Ms. Knighten, a white female operator, was a full-time inspector, while Ms. Williams and Ms. Coker were assistants who would only assist her when needed. Ms. Williams' specific duties under Ms. Knighten included both inspecting the quality of the completed hinges and filing the hinges so that they would fit together more easily and could swing open smoothly.
Shortly after Ms. Williams began inspecting and repairing hinges, Ms. Knighten submitted a bid for, and was awarded, a higher paying position as a Machine Operator A. Accordingly, a Machine Operator B was needed to perform the full-time "inspect function." Mr. Keehn, with full knowledge of *1170 Ms. Williams' race and age, decided to assign Ms. Williams to this position. Pl.'s Dep. at 9, 114; Mr. Keehn's Aff. at ¶ 29. When the workload temporarily increased in the "inspect function," Ms. Coker was assigned to help Ms. Williams; however, Ms. Williams was the primary employee in the "inspect function." Pl.'s Dep. at 91-92; Mr. Keehn's Aff. at ¶ 30.
In December, 1992, Mr. Keehn began receiving complaints about the hinges inspected by Ms. Williams. Mr. Keehn's Aff. at ¶ 31. Specifically, Mr. Mest informed Ms. Williams that she had been over-filing the hinges. Id.; Pl.'s Dep. at 96-97. Mr. Keehn inspected the hinges and agreed that they were being overfiled. Mr. Keehn's Aff. at ¶ 31. As a result of the improper filing, many hinges could not be salvaged and had to be discarded. Id. at ¶ 35. According to Mr. Keehn, when an electrical hinge has to be discarded, it results in a loss of approximately $100.00 per hinge. Id. at ¶ 33.
Mr. Keehn counseled Ms. Williams about her performance and gave her thirty days to improve her results before she would be moved to another operator function. Id. at ¶ 35. Ms. Williams' performance did not improve. Id. at ¶ 36. According to Mr. Keehn, because the improper filing was causing Hager Hinge to lose a lot of money, Ms. Williams was transferred out of the "inspect function." Id. at ¶¶ 34, 36. Ms. Coker was assigned in her place to perform the "inspect function." Id. at ¶ 37. After Ms. Williams was reassigned from the "inspect function," there were no further complaints of over-filing and there was a significant decrease in the number of hinges discarded due to over-filing. Id. at ¶ 38.
Ms. Williams does not dispute any of the aforementioned facts concerning the time in which she served full-time in the "inspect function." Nevertheless, she claims that she was discriminated against in several ways when Hager Hinge transferred her from the full-time "inspect function." First, she contends that she was discriminated against when she was replaced by Ms. Coker because she had more seniority than Ms. Coker, a better working record than Ms. Coker, and a better attendance record than Ms. Coker. Ms. Williams' Aff. at 2. Furthermore, as a result of being replaced, she did not have a permanent work station. Id. at 3. According to Ms. Williams, by not having a permanent work station like her fellow white employees who were hired at the same time she was hired, she became a "target for discrimination, for race, age, and overtime." Id. Finally, she makes a general claim that she and other black workers were not given the opportunity to "check off" the time clock when they ran out of work to do, whereas white employees were allowed to do so. Id. According to Ms. Williams, this caused her output standards to fall below one-hundred percent, allegedly leading to her transfer from the "inspect function." Id.
After Ms. Williams was removed from the "inspect function," Mr. Keehn asked her if she would like to work on Machine # 744, the automatic assembler. Id. at ¶ 40. Ms. Williams refused the offer and instead worked on a variety of machines within Department 505 from January, 1993, until her resignation from Hager Hinge in September, 1994. Id.
On April 13, 1993, Ms. Williams filed a race discrimination charge with the Equal Employment Opportunity Commission ("EEOC"), contending that her job duties were altered because of her race. See Def.'s Exh. 5. Subsequently Ms. Williams contends that she was retaliated against by her supervisors.
First, Ms. Williams claims that she was exposed to gas fumes for nearly two hours in retaliation for filing a charge of discrimination with the EEOC. Pl.'s Dep. at 179-80; Pl.'s Aff. at 4. Specifically, on October 8, 1993, Ms. Williams and a white female co-worker, Jo Harrison ("Ms. Harrison") smelled gas in their work area. Id. at 183-84. They both complained to Mr. Keehn, and were both moved to new job locations. Id. at 186, 190.
Second, Ms. Williams claims that, although she had been allowed to eat at her workstation during breaks before she filed her EEOC charge, she was told not to eat at her workstation after she filed her charge. Pl.'s Aff. at 4. She contends that this policy was *1171 implemented unequally because Ms. Coker and her daughter ate lunch in Ms. Coker's work station. Id. Hager Hinge argues that it did not allow employees to eat at their work stations for safety reasons. Mr. Keehn's Aff. at ¶ 43. Mr. Keehn notes that when he noticed an employee eating in his or her workstation, he asked them to stop. Id. at ¶ 48. Moreover, when Ms. Williams informed Mr. Keehn of other employees who were eating in their workstations, he told those employees to stop. Id. In fact, Mr. Keehn told Cherry Pilgrim, a white employee, not to eat in her workstation. Id. at ¶ 49.
Last, Ms. Williams claims that, on three separate occasions, Mr. Keehn and her other supervisors threw away her work boxes containing personal belongings such as tools, gloves, pens, pencils, clip boards, first aid kits, a sewing kit, and a Bible. Pl.'s Aff. at 4. According to Ms. Williams, the supervisors did not throw away similar personal belongings of white employees. Id. She claims that when she asked Mr. Keehn what happened to her personal belongings, he responded that he did not know. Id. However, she alleges that someone eventually brought her her sewing kit from the front office. Id. Furthermore, she contends that the third time, she found her belongings in the trash can. Id. Subsequently, she left her belongings with a white employee, Patrick Duglass. Id.
Hager Hinge responds to Ms. Williams allegations by stating that it has a policy that requires all employees to maintain a neat and clean work area. Mr. Keehn's Aff. at ¶ 43. Furthermore, Mr. Keehn contends that Hager Hinge supervisors removed the personal items of all employees of Department 505 who failed to remove the items themselves. Id. at ¶ 45.
On November 14, 1994, the EEOC determined that Ms. Williams' race discrimination charge over her transfer from the "inspect function," had no merit and dismissed it. See Def.'s Exh. 6. Subsequently, Ms. Williams filed her complaint in this court on January 13, 1995, alleging that Hager Hinge discriminated and retaliated against her based on her race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and her age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Specifically, Ms. Williams alleges that Hager Hinge discriminated against her on the basis of age and race by (1) transferring her from the "inspect function" and replacing her with a white employee and (2) denying her promotions, pay raises, opportunities to work overtime, and transfers.
Furthermore, Ms. Williams contends that Hager Hinge took the following retaliatory measures against her once she filed her EEOC charge: (1) Hager Hinge did not allow her to eat at her work station; (2) Hager Hinge did not allow her to keep personal items at her work station; and (3) Hager Hinge exposed her to gas fumes while at work.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only if it is shown "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). The Supreme Court has stated:
[T]he plain language of Rule 56© 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The Court has noted, on the other hand, that "there is no issue for trial unless there is sufficient evidence favoring the non-moving 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (citations *1172 omitted). Summary judgment is improper "if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S. Ct. at 2510. See Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). At the summary judgment stage, the court must construe the evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S. Ct. at 2553 (citing Fed.R.Civ.P. 56(c)).
DISCUSSION
A. Age Discrimination
The court will first address Ms. Williams' age discrimination claim. At the outset, the court notes that Title VII permits an aggrieved employee to seek relief in federal court only where the complainant (1) has filed timely charges of employment discrimination with the EEOC and (2) has received and acted upon the EEOC's statutory notice of the right to sue. 42 U.S.C. § 2000e-5(f)(1); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S. Ct. 1817, 1822, 36 L. Ed. 2d 668 (1973). Under Title VII, a plaintiff must file a charge with the EEOC within 180 days of the discriminatory action of which he or she complains. EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 110, 108 S. Ct. 1666, 1668-69, 100 L. Ed. 2d 96 (1988) (citing § 706(e), 42 U.S.C. § 2000e-5(e)); see also 29 C.F.R. § 1601.13(a)(1).[3] The Eleventh Circuit has held that failure to file charges with the EEOC within the 180 day time period results in a bar of claims contained in the untimely filed charge. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 662 (11th Cir.1993), cert. denied, ___ U.S. ___, 115 S. Ct. 69, 130 L. Ed. 2d 24 (1994); see also Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992 (11th Cir.1982); Durham v. Bleckley County School Sys., 680 F. Supp. 1555, 1558 (M.D.Ga.1988). Moreover, courts have specifically held the timely filing of an EEOC charge is a prerequisite to a civil action based upon either Title VII or the ADEA, and a plaintiff who fails to file a timely charge of discrimination is precluded from bringing a civil action because of a failure to exhaust his or her administrative remedies. Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 903 n. 2, 109 S. Ct. 2261, 2264 n. 2, 104 L. Ed. 2d 961 (1989) (Title VII); Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980) (Title VII); McBrayer v. City of Marietta, 967 F.2d 546, 547 (11th Cir.1992) (ADEA); Calhoun v. Federal Nat'l Mortgage Ass'n, 823 F.2d 451, 455 (11th Cir.1987) (ADEA).
If a complaint raises allegations which are not reasonably related to the underlying charge raised before the EEOC, then the plaintiff is precluded from asserting those allegations in a civil action. Griffin v. Carlin, 755 F.2d 1516, 1522 (11th Cir.1985); Alford v. City of Montgomery, Alabama, 879 F. Supp. 1143, 1148 (M.D.Ala.1995). A claim is reasonably related to an underlying EEOC charge of discrimination when the allegations fit within any one of the following three categories: (1) the claim was expressly raised in the pleadings before the EEOC's administrative law judge; (2) the claim might reasonably be expected to be considered in a diligent investigation of those issues expressly raised in the EEOC charge; or, (3) the claim was in fact considered during the EEOC investigation. Griffin, 755 F.2d at 1522.
In this case, Ms. Williams filed an employment discrimination complaint on February *1173 16, 1995, with the EEOC because she believed that her reassignment from the "inspect function" was due to a discriminatory motive. See Pl.'s Evid. in Opposition to Def.'s Mot. for Summ.J. In this complaint and in her EEOC charge of April 13, 1993, Ms. Williams, when asked whether she believed the discrimination was based on race, sex, national origin, religion, disability, retaliation, or age, answered that she thought that her reassignment was based solely on race. Id.; Def.'s Exh. 5.[4] In fact, Ms. Williams admits that she never filed a charge with the EEOC alleging age discrimination. Pl.'s Dep. at 130.
The court notes that a plaintiff cannot rely on a race discrimination charge to circumvent the requirement that she file a timely age discrimination charge because the substantive nature of each claim is clearly different. See Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 673 (9th Cir.1988) (ADEA claim is not within the scope of a Title VII discrimination charge). Thus, the court finds that Ms. Williams age discrimination claim is beyond the scope of her race discrimination charge filed with the EEOC. Furthermore, the court finds that Ms. Williams has failed to bring an age discrimination charge with the EEOC within the 180-day period required by 42 U.S.C. § 2000e-5(e). Thus, the court finds that Ms. Williams age discrimination claim is time-barred and that Hager Hinge's motion for summary judgment as to Ms. Williams' age discrimination claim is due to be granted.
B. Race Discrimination
Ms. Williams essentially makes two separate claims based upon race discrimination. First, she alleges that she was denied promotions, pay raises, transfers, or overtime because of her race. Second, she claims that she was discriminated against based on her race when she was involuntarily transferred from the "inspect" function and replaced with a white employee.
Title VII forbids disparate treatment on the basis of sex, race, or national origin in a wide range of employment practices, including hiring, discharge, and promotion. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994) (citing Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir.1992)).[5] The theory of "disparate treatment" has been stated by the Supreme Court of the United States as follows:
[Disparate treatment is] the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. [citation omitted]. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.
International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S. Ct. 1843, 1854 n. 15, 52 L. Ed. 2d 396 (1977). Thus, the essence of disparate treatment is different treatment: in this case, that black employees are treated differently than white employees.
1. Denial of Promotions, Pay Raises, Overtime, and Transfers
As noted above, the Eleventh Circuit has held that a plaintiff is barred from litigating discrimination claims that are outside the scope of the EEOC investigation which could reasonably be expected to grow out of the *1174 charge of discrimination. Griffin, 755 F.2d at 1522. Courts have found that a charge based on racial discrimination does not encompass all potential claims for denial of promotions, pay raises, transfers, and overtime. See Coon v. Georgia Pacific Corp., 829 F.2d 1563, 1569 (11th Cir.1987) (barring plaintiff from bringing claim related to hiring, job assignments, layoff, recall, and discharge where the plaintiff's EEOC charge of discrimination merely alleged wrongful denial of promotion); Mack v. W.R. Grace, 578 F. Supp. 626, 632 (N.D.Ga.1983) (plaintiff alleging discriminatory discharge to EEOC barred from litigating denials of salary, promotion, and training opportunities).
It is clear from the EEOC charge filed on April 13, 1995, that Ms. Williams did not allege that she was denied promotions, pay raises, transfers, and overtime as part of her race discrimination claim. See Def.'s Exh. 5. Instead, her only contention in the EEOC charge was that she was transferred from the "inspect function" because of her race and replaced with a white employee. Furthermore, Ms. Williams resigned from her job in September, 1994, and did not file a charge with the EEOC regarding any of these claims within 180 days after her resignation.
After reviewing the EEOC's decision of October 14, 1995, regarding Ms. Williams' charge, the court finds that the EEOC investigation of Ms. Williams' improper transfer claim would not have included an investigation of her claims of denial of promotions, pay raises, transfers, and overtime. See Def.'s Exh. 6. Thus, the court finds that Ms. Williams has failed to exhaust her administrative remedies for her claims for denial of promotions, pay raises, transfers, and overtime. Consequently, these claims are not properly before the court. Accordingly, the court finds that Hager Hinge's motion for summary judgment as to Ms. Williams' claims for denial of promotions, pay raises, transfers, and overtime is due to be granted.
2. Improper Reassignment
Unlike her claim for the denial of promotions, pay raises, transfers, and overtime, Ms. Williams' claim that her reassignment from the "inspect function" was based upon race discrimination is properly before the court because it was properly filed with and considered by the EEOC. As such, in order for a plaintiff-employee to prevail on a Title VII claim, he or she must show that an employer intentionally discriminated against him or her when making the employment decision(s) which gave rise to the suit. Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir.1994) (citing EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1570 (11th Cir.1993)). While direct proof of discriminatory intent may be preferred, it is not a sine qua non. Teamsters, 431 U.S. at 334-40, 97 S. Ct. at 1854-57. In cases of alleged discrimination not supported by direct proof, such as the present action, but rather by circumstantial evidence, the plaintiff-employee must first demonstrate a prima facie case of unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
Under the McDonnell Douglas and Burdine framework,[6] the plaintiff must first raise an inference of discrimination by establishing a prima facie case. See Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994) (citation omitted). To satisfy this burden in an wrongful reassignment case, the plaintiff must show: (1) that he or she belongs to a protected class; (2) that he or she was qualified for the position from which he or she was reassigned; (3) that he or she was wrongfully reassigned; and (4) that another equally or less qualified individual outside the protected class would not have been reassigned. See Batey, 24 F.3d at 1334 n. 11 (citing Wu v. Thomas, 847 F.2d 1480, 1483 *1175 (11th Cir.1988), cert. denied, 490 U.S. 1006, 109 S. Ct. 1641, 104 L. Ed. 2d 156 (1989)).
In this case, even assuming that Ms. Williams has met the first three elements of the test set out above, she cannot prove a prima facie case of discrimination. Ms. Williams relies on the fact that she was replaced by Ms. Coker, a white operator. Pl.'s Dep. At 109. However, to prove a prima facie case, she must show that other employees were allowed to remain in the "inspect function" when they over-filed hinges. Ms. Williams' only contention is that she was better qualified for the position before her unsatisfactory performance. Ms. Williams does not dispute that fact that fewer hinges had to be discarded once she left the full-time "inspect function" position and Ms. Coker took over the position. Because Ms. Williams has failed to demonstrate that she was treated less favorably than any other similarly-situated employee, the court finds that she has not proved a prima facie case of discrimination.
Even if Ms. Williams had satisfied her burden of proving a prima facie case of discrimination, the court believes that her claim would fail the St. Mary's burden shifting analysis. Assuming, arguendo, that Ms. Williams has satisfied her burden by demonstrating a prima facie case of discrimination, a presumption of impermissible discrimination arises. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). The burden of production then shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Burdine, 450 U.S. at 248, 101 S. Ct. at 1090-91. Should Hager Hinge fail to meet its burden of production once Ms. Williams demonstrates prima facie discrimination, "the unrebutted presumption of discrimination stands." Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir.1994) (citing Joshi v. Florida State University Health Ctr., 763 F.2d 1227, 1236 (11th Cir.), cert. denied, 474 U.S. 948, 106 S. Ct. 347, 88 L. Ed. 2d 293 (1985)).
The Eleventh Circuit has determined that this intermediate burden on the employer is "exceedingly light." Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir.1994) (quoting Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir.1983)). Thus, to overcome the presumption of discrimination demonstrated by the plaintiff-employee, the defendant-employer "need only offer admissible evidence sufficient to raise a genuine issue of material fact as to whether it had a legitimate reason for not hiring the plaintiff." Turnes, 36 F.3d at 1061 (citing Hill v. Seaboard Coast Line R.R. Co., 767 F.2d 771, 774 (11th Cir.1985)). Once an employer offers its reasons for an allegedly adverse action, any inference of discrimination created by a prima facie case is eliminated. St. Mary's Honor Ctr., 509 U.S. at 510-11, 113 S. Ct. at 2749.
In this case, Hager Hinge has offered a legitimate, non-discriminatory reason for plaintiff's removal from the "inspect function," i.e., that Ms. Williams was not satisfactorily performing the "inspect function." In fact, Hager Hinge gave Ms. Williams the chance to improve her filing habits by giving her notice that she was doing a poor job and telling her that she would be removed if she did not improve. Mr. Keehn's Aff. ¶ 36. Moreover, there were no further complaints of over-filing after Ms. Williams was transferred from the inspect function. Id. at ¶ 38. In fact, there was a significant decrease in the number of hinges discarded due to over-filing. Id. Thus, the court finds that the defendant has met its burden of providing a non-discriminatory reason for transferring Ms. Williams from the inspect function.
If the defendant shows that the reason was non-discriminatory, a plaintiff can survive summary judgment only by presenting "concrete evidence in the form of specific facts" which show that the defendant's action was pretextual. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990); See also, Grigsby v. Reynolds Metals Company, 821 F.2d 590, 594. (11th Cir.1987). Conclusory allegations of discrimination are insufficient. Earley, 907 F.2d at 1081; Grigsby, 821 F.2d at 594. It is not enough that the plaintiff show that the employer's *1176 articulated reason is not the true reason; the plaintiff must also show that the articulated reason masks unlawful discrimination. St. Mary's Honor Ctr., 509 U.S. at 502, 113 S. Ct. at 2742.
Ms. Williams has failed to present any probative evidence that the articulated reason for her transfer was merely pretextual. Essentially, Ms. Williams asks the court to find that Hager Hinge discriminated against her based on the following evidence: (1) she was replaced by a white employee; (2) her subjective belief that her performance was satisfactory; and, (3) her subjective belief that her reassignment was motivated by race. The court notes that Ms. Williams' subjective beliefs cannot be probative evidence of pretext, and therefore, cannot be the basis of judicial relief. Grigsby, 821 F.2d at 595; Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 557 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S. Ct. 2658, 81 L. Ed. 2d 364 (1984); see also, Billet v. CIGNA Corp., 940 F.2d 812, 816 (3rd Cir.1991).
Even if the court considered her subjective beliefs, however, the court notes that Ms. Williams was aware that her job description did not include a promise that she could remain at one function during her employment with Hager Hinge. Pl.'s Dep. at 47-48. A plaintiff may not survive summary judgment by challenging an employer's business judgment. The relevant question is simply whether the given reason for an employment decision was a pretext for discrimination. Napier v. Weyerhauser Inc., 766 F. Supp. 1574 (M.D.Ga.1991). The plaintiff cannot second-guess the wisdom of Hager Hinge's business decisions. Thus, employers are free to discharge, promote, demote, or transfer individuals for any reason, fair or unfair, so long as the decision is not a pretext for discrimination. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984). The federal anti-discrimination laws were not designed to provide a forum for disgruntled employees to state their objections to legitimate employment practices. Nor were these laws intended to burden the federal courts with the task of acting as "super personnel departments" to divine whether an employer's decision was just or proper. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991).
Ms. Williams correctly notes that the inference of intentional discrimination "may be stronger or weaker, depending upon the facts of the particular case," and the evidence provided by the plaintiff. Grigsby, 821 F.2d at 595. Thus, the inquiries are not independent of each other, and "[t]o a large extent, the strength or weakness of th[is] inference ... defines the nature of the employee's rebuttal." Earley, 907 F.2d at 1081 (quoting Meiri v. Dacon, 759 F.2d 989, 997 (2nd Cir. 1985)). In the present case, however, the court finds there is no inference of discrimination. Both Mr. Mest and Mr. Keehn counseled her to improve her filing before she was removed. Furthermore, Ms. Williams does not dispute the fact many more hinges had to be discarded while she was a full-time "inspect function" worker than when other workers worked at the same position. Instead, she simply makes the subjective conclusory allegation, without presenting any probative evidence, that she performed the job satisfactorily. Based on these facts, the court finds that Hager Hinge's motion for summary judgment as to Ms. Williams' claim that she was reassigned from the "inspect function" based on race discrimination is due to be granted.
C. Retaliation Claim
In contending that Hager Hinge retaliated against her for filing an EEOC charge, Ms. Williams claims that the following adverse actions were taken against her: (1) that she was told not to eat at her workstation; (2) that she was told not to keep personal items at her workstation; and, (3) that she was subjected to gas fumes by the company.
To establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in protected activity; (2) her employer took some sort of adverse employment action against her simultaneously with or subsequent to such action; and (3) a causal link exists between the protected act and the adverse employment action. Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d *1177 1491, 1494 (11th Cir.1989), reh'g denied, 883 F.2d 79 (11th Cir.1989) (citations omitted); Alford v. City of Montgomery, Alabama, 879 F. Supp. 1143, 1152 (M.D.Ala.1995) (citations omitted) (granting summary judgment to the defendant for plaintiff's failure to demonstrate a causal link between the protected activity and the denial of a promotion to the plaintiff). Hager Hinge contends that Ms. Williams has failed make out a prima facie case because she cannot establish the causal link element of this test.
To establish a causal link between the protected activity and the adverse employment action, a plaintiff "must demonstrate that the filing of a charge with the EEOC `was a "but for" cause of the adverse employment decision.'" Alford, 879 F.Supp. at 1152 (citation omitted). A sufficient showing of causal connection can be shown if a plaintiff-employee presents evidence that, after the employer learned of the EEOC charge, the employer treated the employee differently from similarly-situated nonprotesting employees. See DeCintio v. Westchester County Med. Ctr., 821 F.2d 111 (2nd Cir.1987), cert. denied, 484 U.S. 965, 108 S. Ct. 455, 98 L. Ed. 2d 395 (1987). Moreover, causal connection can be proven if the plaintiff can show that after the filing of the EEOC charge the employer treated the plaintiff-employee differently than before the plaintiff-employee filed the EEOC charge, including evidence that the employer began surveillance. Kauffman v. Sidereal Corp., 695 F.2d 343 (9th Cir.1982); Mead v. U.S. Fidelity & Guar. Co., 442 F. Supp. 114 (D.Minn.1977).
Ms. Williams first claims that Hager Hinge retaliated against her by telling her not to eat at her workstation. Specifically, Ms. Williams contends that she was allowed to eat at her workstation before she filed her EEOC charge, but was told not to eat at her workstation after she filed the charge. Furthermore, she claims that white employees, including Ms. Coker, were allowed to eat in their workstations after she filed her EEOC charge, while she was told not to eat at her workstation. The court finds that these allegations are sufficient to meet the causal link element of the test and thus make out a prima facie case of retaliation regarding this claim.
Second, Ms. Williams claims that Hager Hinge's supervisors discarded personal belongings she left at her workstation in retaliation for filing her EEOC charge. Mr. Keehn contends that all Hager Hinge employees were treated equally under the policy. However, Ms. Williams notes that white employees were not required to clean their personal belongings out of their workstations. Specifically, Ms. Williams notes that after her personal items had been thrown away three times, she left them in the workstation of Patrick Duglass, a fellow white employee, and did not have any more problems. Based on the foregoing, the court finds that Ms. Williams has presented evidence sufficient to meet the causal connection element and thus make out a prima facie retaliation claim regarding her personal belongings as well.
Finally, Ms. Williams claims that she was exposed to gas fumes in October, 1993, as a retaliatory measure. As to this claim, Ms. Williams admits that a white female operator who had never filed an EEOC charge was also exposed to the gas fumes. Ms. Williams also admits that Mr. Keehn moved her and the white employee to new positions after they complained. The court finds, based on this evidence, that Ms. Williams has failed to establish a causal link between her exposure to the gas fumes in October, 1993, and her filing of the EEOC charge in April, 1993. Thus, the court finds that Hager Hinge's motion for summary judgment as to Ms. Williams' retaliation claim regarding exposure to gas fumes is due to be granted.
If the plaintiff establishes a prima facie case, the McDonnell Douglas burden shifting analysis applies. The employer must articulate a legitimate, non-discriminatory reason for the adverse employment action. See Burdine, 450 U.S. at 253, 101 S. Ct. at 1093-94. Because Ms. Williams has established a prima facie case as to her retaliation claims regarding the removal of her personal belongings and as to eating at her workstation, Hager Hinge must present a non-discriminatory *1178 reason for taking the adverse action. Hager Hinge contends that it was enforcing its policies to keep the workplace safe as to both of these claims. The court finds this reason to be legitimate for each of these retaliation claims.
Once a defendant satisfies its burden of articulating a non-discriminatory reason, "the McDonnell Douglas framework, with its presumptions and burdens, drops out of the case, and the trier of fact proceeds to decide the ultimate issue in the case: whether the plaintiff has proven that the employer intentionally [retaliated] against [her] because of [her race]." Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir.1994) (citing St. Mary's, 509 U.S. at 510-11, 113 S. Ct. at 2749).[7] As noted above, Ms. Williams contends that she was allowed to eat at her workstation before she filed her EEOC charge, but was told not to eat at her workstation after she filed the charge. Furthermore, she claims that her fellow white employees, including Ms. Coker, were allowed to eat at their workstations after she filed her EEOC charge, while she was told not to eat at her workstation. Mr. Keehn contends, on the other hand, that when Ms. Williams informed him that an employee was eating at his or her workstation, he told them to stop. Based on these statements, the court finds that whether or not Hager Hinge's supervisors acted with a discriminatory motive when they told Ms. Williams not to eat at her workstation is a factual issue more appropriate for decision by the trier of fact at a trial on the merits. Thus, the court finds that Hager Hinge's motion for summary judgment as to Ms. Williams' retaliation claim regarding eating at her workstation is due to be denied.
Similarly, the court finds that Ms. Williams has raised a factual issue as to whether Hager Hinge removed her personal belongings from her workstation in retaliation for the filing of her EEOC claim. Mr. Keehn contends that all Hager Hinge employees were treated equally under the policy. However, Ms. Williams notes that white employees were not required to keep their personal belongings out of their workstations. As noted above, Ms. Williams contends that after her personal items had been thrown away three times, she left them at the workstation of Patrick Duglass, a fellow white employee, and did not have any more problems. Based on these statements, the court finds that Ms. Williams has presented a factual question that must be decided by a trier of fact. Thus, the court finds that Hager Hinge's motion for summary judgment as to Ms. Williams' retaliation claim regarding the treatment of her personal belongings is due to be denied.
CONCLUSION
Based on the foregoing analysis, it is CONSIDERED and ORDERED that defendant Hager Hinge's motion to strike be and the same is hereby DENIED.
It is further CONSIDERED and ORDERED that plaintiff Annie L. Williams' motion to quash is DENIED AS MOOT.
It is further CONSIDERED and ORDERED that defendant Hager Hinge's motion for summary judgment regarding plaintiff Annie L. Williams' age discrimination and race discrimination claims be and the same is hereby GRANTED.
It is further CONSIDERED and ORDERED that defendant Hager Hinge's motion *1179 for summary judgment as to Ms. Williams' retaliation claim regarding her exposure to gas fumes be and the same is hereby GRANTED.
It is further CONSIDERED and ORDERED that defendant Hager Hinge's motion for summary judgment as to Ms. Williams' retaliation claim regarding eating at her workstation and keeping her personal belongings at her workstation be and the same is hereby DENIED.
DONE.
NOTES
[1] The court notes for the record that it will also consider the affidavits of defense witnesses Arthur Michael Keehn and William R. Garrett even though they have not been notarized.
[2] Department 505 is responsible for the production and assembly of hinges.
[3] 42 U.S.C. § 2000e-5(e) provides in relevant part:
[a] charge under this section shall be filed within one hundred and eighty days after the alleged employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter....
[4] The entire text of Ms. Williams' EEOC charge filed April 13, 1993, reads as follows:
On January 21, 1993, I was reassigned from my duties as Inspect & Rework and replaced by a white. I was informed by Mike Keehn, Supervisor, that he needed me on the floor, because I was a good worker and could operate more machines. I believe that I have been discriminated against because of my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended.
[5] 42 U.S.C.A. § 2000e-2(a)(1) (West 1981) provides:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin.
[6] The Supreme Court of the United States adopted this analysis to implement "[t]he language of Title VII," which "makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens." McDonnell Douglas, 411 U.S. at 800, 93 S. Ct. at 1823.
[7] St. Mary's modified slightly the Title VII disparate treatment framework. Previously, a plaintiff could satisfy her Title VII burden of proof "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of belief." Burdine, 450 U.S. at 256, 101 S. Ct. at 1095; see Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir.1992) (plaintiff satisfied burden by showing that employer's reasons were unworthy of credence); Caban-Wheeler v. Elsea, 904 F.2d 1549, 1554 (11th Cir.1990) (same). In other words, "the falsity of the employer's explanation [was] alone enough to compel judgment for the plaintiff." St. Mary's, 509 U.S. 517, 113 S.Ct. at 2752. In St. Mary's, however, the Supreme Court of the United States ruled that if "the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework with its presumptions and burdens is no longer relevant." Id. at 510, 113 S. Ct. at 2749. Instead, the only inquiry becomes "whether [the] plaintiff has proven `that the defendant intentionally discriminated against [her]...." Id. (quoting Burdine, 450 U.S. at 253, 101 S. Ct. at 1093-94). |
1,516,629 | 2013-10-30 06:32:57.655902+00 | Per Curiam | null | 726 S.W.2d 23 (1987)
TARRANT COUNTY HOSPITAL DISTRICT d/b/a John Peter Smith Hospital, et al., Petitioners,
v.
Norma and Thomas LOBDELL, Individually and on Behalf of Their Deceased Son, Harry Edwin Lobdell, III, Respondents.
No. C-5662.
Supreme Court of Texas.
March 4, 1987.
Rehearing Denied April 15, 1987.
Tim Curry, Criminal Dist. Atty., Sullivan H. Bradley, Jr. and Dalton Gandy, Dist. Atty.'s Office, D. Michael Wallach and Tim G. Sralla, Shannon, Gracey, Ratliff & Miller, Fort Worth, for petitioners.
R. Louis Bratton, Gibbins, Burrow & Bratton, Austin, for respondents.
PER CURIAM.
This cause raises the issue of whether a wrongful death action can be brought under the Texas Wrongful Death Act, TEX. REV.CIV.PRAC. & REM.CODE ANN. § 71.002 (Vernon 1986), when a viable fetus is negligently killed. The trial court granted the defendant's motion for summary judgment on the ground that the wrongful death statute did not allow a cause of action for the intrauterine death of a fetus. The court of appeals construed the statute as allowing such a cause of action and therefore reversed and remanded the cause for trial. 710 S.W.2d 811. Subsequent to the court of appeals opinion, this Court held that "no cause of action may be maintained for the death of a fetus under the wrongful death statute until the right to bring such action is afforded by the legislature." Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 506 (1987).
Therefore, because the judgment of the court of appeals conflicts with a prior decision of this Court, we grant the petitioners' applications for writ of error. Pursuant to TEX.R.APP.P. 133(b), without hearing oral argument, the majority of the court reverses the judgment of court of appeals and affirms the judgment of the trial court. |
3,018,787 | 2015-10-13 22:19:45.979679+00 | Beam | http://media.ca8.uscourts.gov/opndir/97/06/962120P.pdf | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2120
___________
Ben Oehrleins and Sons and *
Daughter, Inc.; Elk River *
Landfill, Inc.; Gallagher's *
Service, Inc.; Knutson Services, *
Inc.; Randy's Sanitation, Inc.; *
Poor Richard's, Inc.; Vasko *
Rubbish Removal, Inc.; Wasteco, *
Inc.; Waste Systems Corp.; *
Walter's Recycling & Refuse *
Service, *
*
Appellees, * Appeals from the United States
* District Court for the District
v. * of Minnesota.
*
Hennepin County, *
*
Appellant. *
*
*
*
State of Minnesota, by its *
Attorney General and its Office *
of Environmental Assistance; Ogden *
Products, Inc., *
*
Amici Curiae. *
___________
No. 96-2170
___________
Robinson Rubber Products, Co., *
Inc.; Dean M. Akins; Patrick *
Schoenecker; Brad Robinson, *
Individually and on behalf of *
all other persons similarly *
situated, *
*
Appellees, *
*
v. *
*
Hennepin County, *
*
Appellant. *
*
*
State of Minnesota, by its *
Attorney General and its Office *
of Environmental Assistance; Ogden *
Products, Inc., *
*
Amici Curiae. *
___________
Submitted: March 12, 1997
Filed: June 9, 1997
___________
-2-
Before WOLLMAN and BEAM, Circuit Judges, and LAUGHREY,1 District Judge.
__________
BEAM, Circuit Judge.
This case involves the authority of a local government to regulate the flow and
disposal of solid waste. Hennepin County, Minnesota, enacted a "flow control"
regulation ("Ordinance 12") that required most County waste to be delivered to County-
designated transfer stations or processing facilities. The County later suspended
enforcement of Ordinance 12 with respect to waste destined for disposal outside of
Minnesota, but continued to require all waste remaining in the state to go to the
designated facilities. Local and out-of-state waste haulers, landfills, and residential and
commercial waste generators brought suit, alleging that Ordinance 12 violates the
Commerce Clause of the United States Constitution.
After finding that both sets of plaintiffs have standing, the district court
concluded that Ordinance 12, both as written and as currently enforced, discriminates
against interstate commerce and permanently enjoined its enforcement. We hold that
the "waste generator" plaintiffs--that is, customers of waste haulers--do not have
standing. With respect to the merits, we agree that those provisions of Ordinance 12
that prevent the delivery of County waste to out-of-state processors are
unconstitutional. We conclude, however, that as applied solely to intrastate waste
disposal, Ordinance 12 does not discriminate against interstate commerce, and reverse
and remand that portion of the district court decision.
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Eastern and Western Districts of Missouri, sitting by designation.
-3-
I. BACKGROUND
Over the past twenty years or so, state and local governments have frequently
faced the problem of how, within permissible constitutional boundaries, to regulate the
flow and disposal of solid waste. As the Supreme Court recently noted, "[a]s solid
waste output continues apace and landfill capacity becomes more costly and scarce,
state and local governments are expending significant resources to develop trash control
systems that are efficient, lawful, and protective of the environment." C & A Carbone,
Inc. v. Town of Clarkstown,
511 U.S. 383
, 385-86 (1994).2
One of Minnesota's efforts in this regard is the Minnesota Waste Management
Act of 1980. The Act was intended to protect the state's environment and the public
health by reducing the amount of waste generated and disposed of, improving energy
recovery from waste, coordinating waste management among political subdivisions,
and developing waste facilities. Minn. Stat. § 115A.02(a). The Act sought to create
an "integrated waste management system" in Minnesota, with a hierarchy of
preferences for various waste management practices. In order of preference, the Act
2
The Supreme Court has considered constitutional challenges to such regulatory
efforts five times. See Carbone,
511 U.S. 383
; Oregon Waste Sys., Inc. v. Department
of Envtl. Quality,
511 U.S. 93
(1994); Fort Gratiot Sanitary Landfill, Inc. v. Michigan
Dep't of Natural Resources,
504 U.S. 353
(1992); Chemical Waste Management, Inc.
v. Hunt,
504 U.S. 334
(1992); Philadelphia v. New Jersey,
437 U.S. 617
(1978). There
have been many other challenges in the Courts of Appeal. See, e.g, SDDS, Inc. v.
South Dakota,
47 F.3d 263
(8th Cir. 1995); Waste Sys. Corp. v. County of Martin,
985 F.2d 1381
(8th Cir. 1993); Southeast Arkansas Landfill, Inc. v. State of Arkansas, Dep't
of Pollution Control and Ecology (In re Southeast Arkansas Landfill, Inc.),
981 F.2d 372
(8th Cir. 1992). See generally, John Turner, The Flow Control of Solid Waste and
the Commerce Clause: Carbone and its Progeny, 7 Vill. Envtl. L. J. 203 (1996); Sidney
M. Wolf, The Solid Waste Crisis: Flow Control and the Commerce Clause,
39 S.D. L
.
Rev. 529 (1994).
-4-
addresses waste reduction and reuse, recycling, composting, resource recovery, and
land disposal.
Id. at §
115A.02(b).
To meet these goals, the Act requires counties to implement plans for local waste
management.
Id. at §
115A.46. In adopting these plans, counties must consult with
persons providing waste collection, processing, and disposal services, and must submit
proposed plans to the state's Office of Environmental Assistance for approval.
Id. at §
115A.46, Subd. 1(d) & (e). The Act also allows counties to develop designation
plans which require all or part of county waste to be delivered to one or more county-
designated transfer or disposal facilities.
Id. at §
§ 115A.80 - 115A.85. Certain
counties must seek approval for waste management plans and designation plans from
the Metropolitan Council, a planning and development agency created by the state
legislature for the seven-county Minneapolis-St. Paul metropolitan area.
Id. at §
473.803, Subd. 1.
In accordance with the Act, Hennepin County (which includes Minneapolis)
created a waste management master plan in 1981. In April 1985, the County obtained
approval from the Metropolitan Council for a designation plan to supplement its master
plan. The County determined that in order to reduce the amount of County waste
disposed of in landfills, it would concentrate the disposal of County waste in "waste-to-
energy" processing facilities. Central to this goal was the construction of a state-of-the-
art incinerator in Minneapolis that would convert certain solid waste into electricity.
In order to finance the construction of the facility, the County issued approximately
$150,000,000 in bonds. The resulting facility, the Hennepin Energy Resource Corp.
("HERC"), while constructed with public funds, is owned and operated by two out-of-
state corporations.
In order to implement its designation plan, the County adopted Ordinance 12 in
December of 1985. The Ordinance, which took effect June 1, 1989, was intended in
part to provide "assurance that sufficient quantities of designated waste will be
-5-
delivered to the [HERC] Facility."3 Hennepin County Board Resolution No.85-12-
0823-R1, reprinted in Appellant's App. at 23. To provide this assurance, the Ordinance
requires that all "designated waste," which includes most forms of non-hazardous
commercial and residential solid waste, be delivered only to County-designated transfer
stations or processing facilities. The Ordinance itself originally designated certain
interim transfer stations and one processing facility: the HERC incinerator. Currently,
HERC and one other privately owned waste-to-energy facility located outside
Minneapolis are the only designated processing facilities. There are currently eight
designated transfer stations, which receive the bulk of the solid waste that supplies the
HERC facility.
The Ordinance provides that the County can designate additional facilities. The
Ordinance also exempts from the designation requirement any waste processed at
facilities already in existence at the time the Metropolitan Council approved the
designation plan in 1985. As required by the Waste Management Act, Minn. Stat. §
115A.893, the Ordinance provides that non-designated facilities may petition the
County for exclusion of some waste from designation. The County maintains that it has
granted several such exclusions, including one to plaintiff Knutson Services, Inc.
Haulers who deliver designated waste to non-designated facilities are subject to
penalties, including misdemeanor charges, fines, costs and special assessments,
injunction, and the suspension or revocation of their hauling license. The County has
actively monitored haulers and has imposed penalties on companies found to have
violated the Ordinance.
3
Ordinance 12 lists other goals in its preamble, including the reduction of the
volume of County waste deposited in landfills, the recovery of materials and energy
from solid waste, the conservation of resources, and the furtherance of waste
management policies.
-6-
In 1993, the County Board passed a resolution to cease enforcement efforts
against haulers who delivered designated waste to facilities outside the state. Pursuant
to this resolution, the County notified waste haulers that it had "suspended, until further
notice, enforcement actions relating to Hennepin County generated waste destined for
disposal outside the State of Minnesota." Appellant's App. at 156 (emphasis in
original). The County acknowledges, however, that it has continued to enforce the
Ordinance with respect to waste delivered to non-designated facilities within
Minnesota.
In 1994, the Oehrleins plaintiffs filed suit in the district court. Plaintiffs in the
Oehrleins case are eight Minnesota waste haulers, one Minnesota landfill, and one
Iowa landfill. The Robinson Rubber plaintiffs, who filed suit in 1995, are a certified
class of residential and commercial "waste generators" in Hennepin County who paid
for waste removal between June 1, 1989, and the present. Both the Robinson Rubber
and Oehrleins plaintiffs alleged that Ordinance 12 violates the Commerce Clause of the
United States Constitution. They requested an injunction against enforcement of the
Ordinance and damages under 42 U.S.C. § 1983.4
The district court concluded that Ordinance 12, both as written and as enforced
after the 1993 "suspension," discriminates against interstate commerce, and so violates
the Commerce Clause. The district court granted summary judgment to both sets of
plaintiffs. Ben Oehrleins and Sons and Daughter, Inc. v. Hennepin County, 922 F.
Supp. 1396, 1405 (D. Minn. 1996); Robinson Rubber Prods. Co. v. Hennepin County,
No. 4-95-220, Slip op. at 36-37 (D. Minn. March 29, 1996). In this consolidated
appeal, the County argues that the Tax Injunction Act, 28 U.S.C. § 1341, deprives the
4
Plaintiffs also alleged that the County's enforcement of the Ordinance violates
their right to substantive due process and violates federal antitrust laws. These claims
are not at issue in this appeal.
-7-
federal courts of jurisdiction to enjoin Ordinance 12, that all plaintiffs lack standing,
and that the Ordinance does not violate the Commerce Clause.
II. DISCUSSION
A. Standing
The County maintains that both the hauler/landfill plaintiffs and the waste
generator plaintiffs lack standing to bring this action. The district court found that both
sets of plaintiffs have standing.
Standing is the constitutional requirement, imposed by the "cases or
controversies" provision of Article III, that a plaintiff must allege a judicially
cognizable and redressable injury in order to pursue a lawsuit. Lujan v. Defenders of
Wildlife,
504 U.S. 555
, 559-60 (1992). To establish standing, a plaintiff must
demonstrate three minimal constitutional requirements: (1) an "injury in fact" that is
both (a) concrete and particularized, and (b) actual or imminent, rather than conjectural
or hypothetical; (2) a causal connection between the alleged injury and the defendant's
conduct; that is, that the injury is "fairly traceable" to the challenged action; and (3) that
it is likely that a favorable decision will redress the injury.
Id. at 560-61.
Even if a plaintiff meets the minimal constitutional requirements for standing,
there are prudential limits on a court's exercise of jurisdiction. These prudential limits
are judicially imposed and "are 'founded in concern about the proper--and properly
limited--role of the courts in a democratic society.'" Bennett v. Spear,
117 S. Ct. 1154
,
1161 (1997) (quoting Warth v. Seldin,
422 U.S. 490
, 498 (1975)). Two prudential
limits are relevant to this case. First, only in exceptional cases may a party have
standing to assert the rights of another.
Warth, 422 U.S. at 499
. This "third-party
standing" rule thus "normally bars litigants from asserting the rights or legal interests
of others in order to obtain relief from injury to themselves."
Id. at 509.
In addition,
-8-
plaintiffs alleging a violation of a constitutional or statutory right must demonstrate that
they are within the "zone of interests" of the particular provision invoked.
Bennett, 117 S. Ct. at 1161
. To satisfy this prudential requirement, a plaintiff must show that "the
interest sought to be protected by the complainant is arguably within the zone of
interests to be protected or regulated by the statute or constitutional guarantee in
question." Association of Data Processing Serv. Orgs. v. Camp,
397 U.S. 150
, 153
(1970); see also
Bennett, 116 S. Ct. at 1161
.
There is no question that the Oehrleins plaintiffs, that is, various waste haulers
and processors, have standing. Ordinance 12 prohibits haulers from delivering
designated waste to non-designated facilities. Haulers who violate the Ordinance are
subject to a wide variety of sanctions. The record is undisputed that the County has,
in fact, subjected various haulers, including some of the hauler plaintiffs, to such
penalties. Haulers subject to the Ordinance thus have suffered an actual or imminent
injury in fact. Furthermore, the Ordinance harms processors such as the landfill
plaintiffs who wish to participate in the market for Hennepin County waste by
prohibiting access to that waste. The processor plaintiffs have therefore also alleged
a sufficient injury in fact. These injuries are directly traceable to the County's
enactment and enforcement of Ordinance 12, and a decision holding the Ordinance
unconstitutional would redress those injuries, both by clearing the way for recovery of
damages and by enjoining further enforcement. Finally, we see no prudential barriers
to standing for the Oehrleins plaintiffs.
The class of generator plaintiffs represented by Robinson Rubber presents a
more difficult question. The injury these plaintiffs allege is, essentially, that they have
been forced to pay higher fees for waste collection, because haulers have passed on to
them HERC's high fees.5 Insofar as the generator plaintiffs seek relief for the passed-
5
The County's original tipping fee at interim facilities, before the HERC plant
began operating, was $75 per ton. The County raised the rate to $95 per ton in 1990.
In contrast, an October 1990 report by the Metropolitan Council indicates that tipping
-9-
on costs of the County's higher disposal fees, their alleged injury is the indirect result
of the County's regulation of the haulers.6 "[W]hen the plaintiff is not himself the object
of the government action or inaction he challenges, standing is not precluded, but it is
ordinarily 'substantially more difficult' to establish."
Lujan, 504 U.S. at 562
(citations
omitted).
We conclude nonetheless that this indirect economic injury constitutes an injury
in fact. Faced with high tipping fees at the HERC incinerator, and prevented from
seeking more competitive rates elsewhere, haulers responded, naturally enough, by
charging their customers more. This economic burden on customers is concrete,
particularized, and actual, and is in no way hypothetical or conjectural. Cf. Waste Sys.
Corp. v. County of Martin,
985 F.2d 1381
, 1387 (8th Cir. 1993) (financial burden from
flow control ordinance rests in part on waste generators). This burden may be indirect,
but it is neither speculative nor merely incidental.
Furthermore, there is little question that these rate increases are fairly traceable
to Ordinance 12's restrictions on waste haulers. The County does not dispute that
haulers pay significantly higher tipping fees under the designation plan than they would
fees at regional landfills ranged from $25 to $60 per ton during fiscal year 1990.
Tipping fees at metropolitan landfills averaged $52.60 per ton, while fees at non-
metropolitan landfills averaged $40 per ton. In 1994, the County reduced tipping fees
at designated facilities to $60 per ton, but also enacted a surcharge on County waste.
6
The generators argue that Ordinance 12 directly regulates them because
"persons" subject to penalty for disposal of designated waste in non-designated
facilities include "an individual, business, . . . [or] generator." Appellant's Appendix
at 141 (emphasis added). The generator plaintiffs did not allege in their complaint,
however, that they have been directly harmed by enforcement of the Ordinance against
them. Their sole allegation of injury and claim for relief is that they have incurred
increased costs because of enforcement of the designation requirements against haulers.
-10-
pay at otherwise available landfills. Indeed, the County fully anticipated that
designation would result in consumers paying higher disposal fees.7 Finally, the
generators' injuries can be effectively redressed by the remedies they seek: damages
for the allegedly unconstitutional restrictions and injunction of continued enforcement.
We thus hold that the generator plaintiffs satisfy Article III's "irreducible constitutional
minimum" requisites for standing.
Lujan, 504 U.S. at 560
.
Whether the generator plaintiffs can satisfy prudential limitations on standing is
a different question. We are aware of no Commerce Clause case in which the court has
granted standing to a plaintiff who was a consumer whose alleged harm was the
passed-on cost incurred by the directly regulated party. Indeed, while we continue to
use the parties' shorthand term "waste generators" for the Robinson Rubber plaintiffs,
this term somewhat confuses these plaintiffs' actual role: they are consumers of waste
disposal services supplied by garbage haulers such as some of the Oehrleins plaintiffs.
This kind of "consumer standing" in Commerce Clause cases has not been squarely
considered by the Supreme Court.
The generator plaintiffs rely in part on the Supreme Court's recent opinion in
General Motors Corp. v. Tracy,
117 S. Ct. 811
(1997). In Tracy, Ohio imposed sales
and use taxes on purchases of natural gas from all entities, whether in-state or out-of-
state. However, the state exempted from taxation gas purchased from sources that met
a statutory definition of "natural gas companies." The definition of "natural gas
companies," however, was effectively limited to in-state entities. As a result, the taxes
were imposed only on gas purchased directly from out-of-state companies.
Id. at 816.
7
The designation plan the County submitted to the Metropolitan Council stated
that "tipping fees would have to be passed on by haulers to their customers. . . .
[T]ipping fees [at designated facilities] will probably still be higher than fees for
disposal at existing landfills. This will result in haulers having to charge higher rates
for customers within Hennepin County than they would charge to similar customers in
neighboring counties." Reprinted in Appellant's App. at 206.
-11-
General Motors, which purchased nearly all of its natural gas from out-of-state
suppliers, brought suit, claiming that the tax was discriminatory and thus violated the
Commerce Clause.
The Court held that General Motors had standing, even though it was an in-state
firm and the discrimination of which it complained was based on the out-of-state situs
of its suppliers.
Id. at 818.
The Court relied in part on its decision in Bacchus Imports
v. Dias,
468 U.S. 263
(1984). In Bacchus Imports, in-state liquor wholesalers had
standing to challenge a discriminatory tax on imported liquor; much as in Tracy, the
discrimination was based not on the plaintiff's status, but on where the purchased goods
originated.
Id. at 267.
The Court's recent decision in Camps Newfound/Owatonna, Inc. v. Town of
Harrison, No. 94-1988,
1997 WL 255351
(U.S. May 19, 1997), while not directly
addressing standing, presents a similar scenario. In Camps, the Court considered a
Maine tax statute that exempted charitable institutions from real estate and property
taxes. Under the statute, however, charities that principally benefited nonresidents of
the state were entitled to only a limited tax exemption. The plaintiff, a nonprofit
corporation, ran a youth camp in Maine. Ninety-five percent of the young people who
visited the camp came from outside the state, rendering the camp ineligible for the full
tax exemption. The Court held that the exemption facially discriminated against
interstate commerce because it "expressly distinguishes between entities that serve a
principally interstate clientele and those that primarily serve an intrastate market."
Id. at *7.
These cases, however, do not stand for the proposition that consumers paying
the end-line cost of an economic regulation have standing to challenge the regulation
under the Commerce Clause. In Tracy, Bacchus Imports, and Camps, the plaintiffs
were not alleging that they incurred a passed-on cost; rather, the plaintiffs--not the out-
of-state entities--were directly assessed the challenged taxes. Furthermore, the
-12-
plaintiffs in those cases were, in fact, directly subject to discrimination: they were liable
for taxes based on where they purchased goods or (in the case of Camps) the
nonresident status of their customers. The plaintiffs' Commerce Clause challenges
sought to protect their own rights to purchase goods or do business across state
borders, without being subject to a discriminatory tax.
The rights vindicated in Tracy, Bacchus Imports, and Camps are, in fact,
comparable to the rights asserted by the hauler plaintiffs in this case. As in those cases,
the hauler plaintiffs are directly subject to extra costs (as well as criminal charges,
fines, and other penalties) based on where they choose to do business. The generator
plaintiffs can claim no comparable injury. The injury the generator plaintiffs assert is,
rather, comparable to GM truck purchasers claiming a Commerce Clause injury
because they must pay more for vehicles because of GM's increased energy costs.
Likewise, the comparable plaintiff in Bacchus Imports would be consumers disgruntled
because they were required to pay more for imported liquor.8
In our view, the generator plaintiffs' claims fall within the third-party standing
doctrine described in Warth. In Warth, a number of individuals and organizations
challenged city zoning ordinances that allegedly barred private development of low
income housing. One group of plaintiffs were city residents who alleged that they
suffered "economic injury consequent to [the city's] allegedly discriminatory and
exclusionary zoning practices."
Warth, 422 U.S. at 508
. The Court held that these
plaintiffs' claims fell "squarely within the prudential standing rule that normally bars
8
In this respect, Camps presents a slightly different situation. In that case, the
consumers--that is, the campers--were themselves purchasing services across state
borders, and coming into Maine temporarily in order to make use of those services.
They were thus unlike the generator plaintiffs in this case, who are state residents
dealing with in-state waste haulers.
-13-
litigants from asserting the rights or legal interests of others in order to obtain relief
from injury to themselves."
Id. at 509.
The injury claimed by the generator plaintiffs is of the same sort: higher garbage
bills due to the passed-on costs incurred by the haulers under the Ordinance. The
generator plaintiffs' alleged injury is the economic consequence of the County's
restriction of where haulers may deliver waste. The generator plaintiffs cannot claim
any personal right under the Commerce Clause to lower garbage bills. Any relief due
the generator plaintiffs turns on the rights of the haulers to be free of the Ordinance's
designation requirements.
We hold, therefore, that the generator plaintiffs are seeking to assert the
constitutional rights of the hauler plaintiffs, and the third-party standing doctrine
applies. We do not see any reason to relax this prudential bar in this case. While the
haulers and generators have an "incidental congruity of interest" in seeing the
Ordinance invalidated, they have no special relationship that warrants allowing the
generators to assert the rights of the haulers.
Id. at 510.
The generators' status as
purchasers of disposal services does not constitute such a relationship. If such were
the case, then end-line consumers could always assert the Commerce Clause claims of
the businesses from whom they purchase goods or services. Furthermore, there is no
indication that allowing standing to the generators "is necessary to insure protection of
the rights asserted."
Id. That the
hauler plaintiffs brought suit more than a year before
the generator plaintiffs (and indeed share the same counsel) and have aggressively
litigated their own claims demonstrates that they are fully capable of asserting their own
rights.
We also conclude that the generator plaintiffs lack standing because they are not
within the "zone of interests" of the Commerce Clause. The zone of interests doctrine
requires that "'the interest sought to be protected by the complainant is arguably within
the zone of interests to be protected or regulated by the statute or constitutional
-14-
guarantee in question.'"
Bennett, 117 S. Ct. at 1161
(quoting
Camp, 397 U.S. at 153
).
The Ninth Circuit recently held that individual waste generators lacked standing to
bring a Commerce Clause challenge to a county ordinance that required residents to
either contract with a designated trash hauler or to dispose of waste at certain
designated facilities. Individuals for Responsible Gov't, Inc. v. Washoe County,
110 F.3d 699
, 703-04 (9th Cir. 1997). The court in Washoe County held that the plaintiffs
satisfied the constitutional minimal standing requirements, but that their asserted injury,
having to pay for unwanted garbage services, was "not even marginally related to the
purposes underlying the dormant Commerce Clause."
Id. at 703.
Although the Washoe County ordinance differed somewhat from the regulation
at issue in this case, the generator plaintiffs here are asserting a similar interest. We
agree with the Ninth Circuit that this interest is not one protected by the Commerce
Clause. The Commerce Clause is intended to prevent economic protectionism and
retaliation between states and to allow markets to flourish across state borders, thus
prohibiting "laws that would excite . . . jealousies and retaliatory measures" between
states.
Carbone, 511 U.S. at 390
. The harm alleged by the generator plaintiffs is
narrow, personal, and strictly local: residents of Hennepin County have to pay
relatively high bills for the disposal of their garbage. It is unlikely that South Dakota
or Iowa are much concerned with what these plaintiffs pay for trash service, much less
that high garbage bills in Minneapolis are likely to cause "jealousies and retaliatory
measures" in other states. Local consumers shouldering the end-line burden of a purely
local regulation are not within the zone of interests of the Commerce Clause. Again,
if the ultimate cost of economic regulation to consumers were within the zone of
interests of the Commerce Clause, then every consumer could properly challenge such
regulations. We decline to expand the scope of claims cognizable under the Commerce
Clause this far.
Because we find that the plaintiff waste generators in the Robinson Rubber case
are asserting the third-party rights of haulers to be free of regulation and because their
-15-
alleged injury is not within the zone of interests protected by the Commerce Clause, we
hold that prudential considerations bar them from maintaining this action.9
B. Tax Injunction Act
The Tax Injunction Act, 28 U.S.C. § 1341, provides that the federal courts "shall
not enjoin, suspend or restrain the assessment, levy or collection of any tax under State
law where a plain, speedy and efficient remedy may be had in the courts of such State."
The district court correctly rejected the County's contention that the Act rendered the
court without jurisdiction to enjoin enforcement of Ordinance 12.10
Whether Ordinance 12 constitutes a "tax" for purposes of the Tax Injunction Act
is a question of federal law, and we need not defer to the County's characterization of
the Ordinance. Wright v. McClain,
835 F.2d 143
, 144 (6th Cir. 1987). The Ordinance
obviously raises revenue by way of the tipping fees charged by the HERC facility. This
does not, however, render the Ordinance a tax. The Ordinance's primary purpose is
clearly regulatory, rather than revenue-raising. See Government Suppliers
9
We are mindful that granting standing to consumers bearing passed-on costs in
Commerce Clause cases could have serious repercussions on state and local
governments' ability to enact economic regulations. This is because they would risk
enormous liability if such regulation is later invalidated. Here, for example, the waste
generator plaintiffs' damage claims exceed $100 million. Especially in the current
context, where the limits of local authority to regulate waste streams are still unclear,
such risk presents a heavy burden to good faith efforts to enact valid laws intended to
further important local goals.
10
Plaintiffs also sought to enjoin the application of County Ordinance 15, which
imposed a solid waste management fee on all waste generators in the County. The
district court concluded that Ordinance 15 was a tax for purposes of the Tax Injunction
Act, and dismissed that portion of the complaint for lack of jurisdiction. Plaintiffs have
not appealed this order.
-16-
Consolidating Serv. v. Bayh,
975 F.2d 1267
, 1271 n.2 (7th Cir. 1992) (fees generated
by a flow control ordinance do not come within the Tax Injunction Act).
Furthermore, the plaintiffs do not question the County's authority to levy taxes.
Rather, they challenge the County's regulation of their ability to deliver waste to the
facilities of their choice. While the relief they seek may well affect the revenue that the
County raises from the designated facilities, this secondary economic effect would not
require the court to enjoin, suspend, or restrain any tax collection. Cf. Harvey &
Harvey v. Delaware Solid Waste Auth.,
600 F. Supp. 1369
, 1375-76 (D. Del. 1985).
Finally, we note that the County's argument would apply to the similar challenge to a
flow control ordinance in Carbone, yet the Supreme Court in that case did not even
question federal jurisdiction in striking the ordinance. We conclude that the Tax
Injunction Act does not bar federal jurisdiction in this matter.
C. Commerce Clause
The Commerce Clause of the United States Constitution grants Congress the
power "[t]o regulate Commerce . . . among the several States." U.S. Const. art I, § 8,
cl. 3. The Supreme Court has long held that this grant of power to Congress contains
negative implications that restrict states' power to regulate interstate commerce. CTS
Corp. v. Dynamics Corp. of America,
481 U.S. 69
, 87 (1987). Under this "dormant
Commerce Clause" jurisprudence, state laws that regulate commerce are subject to a
two-step inquiry.
First, if a state law discriminates against interstate commerce "in favor of local
business or investment," it is "per se invalid, save in a narrow class of cases in which
the municipality can demonstrate, under rigorous scrutiny, that it has no other means
to advance a legitimate local interest."
Carbone, 511 U.S. at 392
. "Discrimination" for
purposes of the Commerce Clause means "differential treatment of in-state and out-of-
state economic interests that benefits the former and burdens the latter." Oregon Waste
-17-
Sys. Inc. v. Department of Envtl. Quality,
511 U.S. 93
, 99 (1994); see also Cotto Waxo
Co. v. Williams,
46 F.3d 790
, 794 (8th Cir. 1995). A state law may discriminate
against interstate commerce on its face, in its purpose, or in its effect. SDDS,
Inc., 47 F.3d at 267
.
Second, if a state law does not overtly discriminate against interstate commerce,
it may nonetheless be contrary to the Commerce Clause if it unduly burdens interstate
commerce.
Id. at 268.
A non-discriminatory state law, however, is subject to a less
rigorous balancing test. Such a law "will be upheld unless the burden imposed on
. . . commerce is clearly excessive in relation to the putative local benefits." Pike v.
Bruce Church, Inc.,
397 U.S. 137
, 142 (1970).
In this case, the district court held that Ordinance 12, as written, discriminates
against interstate commerce. In addition, the court held that the County's suspension
of enforcement against haulers taking waste to out-of-state facilities did not save the
Ordinance. Rather, the court found that Ordinance 12 "as enforced" after the County's
suspension of enforcement against waste bound out-of-state still discriminated against
interstate commerce. The district court thus found both aspects of the Ordinance
invalid per se, and did not reach the Pike balancing test.
We agree with the district court that the County's partial suspension of
enforcement puts this case "in a somewhat unusual posture."
Oehrleins, 922 F. Supp. at 1403
. We first note that we know of no authority for the proposition that a law that
is facially invalid under the Commerce Clause may nonetheless be upheld "as
enforced." Accordingly, we find the analytical framework used by the parties to argue
this case somewhat awkward. The validity of the County's limited enforcement of the
Ordinance to waste destined for in-state disposal is an important question, however,
since plaintiffs seek section 1983 damages for that enforcement.
-18-
As for the validity of the Ordinance in its current form, however, we can easily
distinguish between interstate and intrastate enforcement. In the 1993 resolution that
directed the suspension of enforcement, the County also amended the Ordinance itself.
That amendment bifurcated the Ordinance's definition of "designated waste," so that
"designated waste" is waste bound for disposal within the state and waste bound for
delivery out-of-state.11 The new definition provides an obvious way to separately
consider whether purely intrastate enforcement of the Ordinance is different from full
enforcement. That is, if intrastate enforcement is permissible under the Commerce
Clause but interstate enforcement is not, we may sever the offending half of the
definition of "designated waste." We therefore separately consider these two aspects
of Ordinance 12.
11
The current definition is as follows:
"Designated Waste"
A. is mixed municipal solid waste generated in the County and
destined for in-state disposal, excluding hazardous waste,
infectious waste, and undesignatable waste; and
B. is mixed municipal solid waste generated in the County and
destined for out-of-state disposal excluding hazardous waste,
infectious waste, and undesignatable waste.
Reprinted in Appellant's App. at 141. The 1993 amendment of the definition appears
to have been prompted by concerns that, while designation may have been
constitutional with regard to waste staying in Minnesota, enforcement against waste
bound for delivery out-of-state would be found impermissible. See Memorandum from
Pat Diamond, Deputy County Attorney, reprinted in Appellees' App. at 63. The
bifurcated definition was, in fact, intended to facilitate severability in the case of an
adverse court ruling on interstate designation.
Id. -19- 1.
Restrictions on Waste Destined for Out-of-State Shipment.
Access to the market for waste processing, including this type of "flow control"
ordinance, implicates the dormant Commerce Clause.
Carbone, 511 U.S. at 389
;
Waste Sys.
Corp., 985 F.2d at 1386
. In Carbone, the Supreme Court considered a
local flow control ordinance that required all local waste to be processed at a single
designated facility. The Court held that because the ordinance effectively prohibited
export of waste beyond state lines without the initial local processing, it discriminated
against interstate commerce. This was so even though the ordinance restricted waste
transfer within the state as well.
Carbone 511 U.S. at 390-91
. See also Waste Sys.
Corp., 985 F.2d at 1386
-89 (holding that a similar designation ordinance applied to all
county waste violated the Commerce Clause). Carbone and Waste Systems squarely
foreclose the County's argument that Ordinance 12 is "even-handed" and
nondiscriminatory because it limits interstate export no more than intrastate transfer.
To the extent that Ordinance 12 prohibits export of waste across state lines, it is
irrelevant that the Ordinance also restricts garbage movement within the state.
The County argues that Ordinance 12 is different from the flow control
ordinances in the above cases. Carbone involved a local ordinance that, without
exception, directed all local waste to a single in-town transfer
station. 511 U.S. at 387
.
The ordinances invalidated in Waste Systems also mandated deposit in a county
composting facility, and provided for limited exclusions upon petition. However, one
of the criteria for exclusion was that any exclusion could not undermine the financial
viability of the county facility. Waste Sys.
Corp., 985 F.2d at 1386
. In light of this, the
court determined that the exclusion promise was "illusory" and that the ordinances "in
practice, entirely forbid transport of waste out of the Counties."
Id. at 1387.
Ordinance 12, however, exempts all pre-1985 facilities from designation. It also
provides for the designation of additional facilities and for an exclusion process.
Furthermore, there is evidence that the County has granted some exclusions to non-
-20-
designated facilities. It is more difficult to simply label the exclusion process here as
"illusory." Relying on a Third Circuit case, the County argues that because exclusions
are granted based on neutral, non-discriminatory criteria, the Ordinance is even-handed
with respect to interstate commerce. See Harvey & Harvey, Inc. v. County of Chester,
68 F.3d 788
, 802 (3d Cir. 1995) (stating in dicta that open bidding and a fair selection
process may not violate Commerce Clause, even if it results in exclusive designation
of an in-state facility).
We need not decide the validity of this premise, however, because even if we
were to agree with the Harvey dicta it would not save Ordinance 12 from rigorous
scrutiny. The initial designation here simply was not "open." Ordinance 12 was
enacted, in part, specifically to insure an adequate waste supply for a certain designated
facility: the HERC incinerator. Indeed, the HERC plant was the only disposal facility
the Ordinance initially designated, and the interim transfer stations were to accept
designated waste for ultimate disposal at HERC. The possibility of an out-of-state
processor obtaining designation or getting a later exclusion simply does not alter the
initial immediate purpose and effect of the Ordinance, which was to grant an absolute
preference to a particular local interest at the expense of all others. The district court
rightly concluded that, as applied to waste destined for transport outside Minnesota,
Ordinance 12 discriminates against interstate commerce and is thus subject to rigorous
scrutiny. In light of Carbone and Waste Systems we hold that the interstate
enforcement of the Ordinance cannot survive such scrutiny and violates the Commerce
Clause.
2. Ordinance 12 as Applied Intrastate
Although the Commerce Clause prevents the County from restricting the flow
of waste out-of-state, we must still consider whether the County may enforce flow
control restrictions to waste that stays within Minnesota. The district court held that
-21-
the Ordinance "as enforced" discriminates against interstate commerce and is thus
invalid per se.
It is undisputed that the County has completely stopped penalizing haulers for
carting waste to out-of-state facilities. We cannot agree with the plaintiffs, however,
that the remaining intrastate restriction on the flow of waste also discriminates against
interstate commerce. Although the County maintains a monopoly on waste that stays
in-state, this does not amount to discrimination because local processors, even the
designated facilities, are not being treated preferentially with respect to out-of-state
facilities. Here, there is no "differential treatment of in-state and out-of-state economic
interests that benefits the former and burdens the latter." Oregon Waste
Sys., 511 U.S. at 99
. The only preference granted to the designated facilities is with respect to other
local operators. This may create a monopoly at the local level, but as long as waste is
allowed to flow freely in or out of the state, this does not constitute discrimination
against interstate commerce.
Indeed, Ordinance 12 as enforced would seem to confer an economic benefit, not
burden, to out-of-state interests. Out-of-state landfills or other processing facilities are
not barred from receiving Hennepin County waste. Furthermore, out-of-state
processors are apparently able to charge tipping fees substantially less than those
charged by the County. The Oehrleins plaintiffs stated in their pleadings, and again in
their brief on appeal, that haulers in fact began to deliver waste to out-of-state
processors as a response to the County's suspension of interstate enforcement in 1993.
Encouraging delivery of County waste out-of-state imposes a burden only upon local
concerns--including designated facilities--to the benefit of out-of-state facilities. This
may be economically distorting, but purely local monopolies or market controls that
inure to the benefit of out-of-state concerns simply do not constitute "discrimination"
under the Commerce Clause.
-22-
The plaintiffs argue, and the district court agreed, that intrastate flow control is
nonetheless discriminatory. Relying on Carbone and Waste Systems, the plaintiffs
argue that the Ordinance is discriminatory because it is solely a kind of "economic
protectionism" that the Commerce Clause is intended to prevent. But as Carbone itself
explains, "the central rationale for the rule against discrimination is to prohibit state or
municipal laws whose object is local economic protectionism, laws that would excite
those jealousies and retaliatory measures the Constitution was designed to
prevent." 511 U.S. at 390
. A purely intrastate flow control regulation may well be
"protectionist," but it is only so at the local level. When local facilities are
competitively disadvantaged by a regulation that restricts their access to the market
while out-of-state entities bear no such burden, there is little risk of inciting "jealousies
and retaliatory measures" from neighboring states.
The district court also concluded that Ordinance 12 discriminates in effect by
impeding long-term contracts with out-of-state processors because of the threat that the
County might, in the future, resume full enforcement, and that this was indeed the
County's purpose. We cannot agree. The plaintiffs have produced no evidence that the
Ordinance has had such an effect, nor is there any evidence that the County intended
the Ordinance to have such an effect. It is beyond dispute that the 1993 suspension of
interstate enforcement allowed waste to flow freely to out-of-state processors, while
working a comparative disadvantage to local entities. This hardly shows a purpose to
discriminate against out-of-state concerns.12
12
In trying to show a discriminatory purpose, the plaintiffs put much weight on
a memorandum from a deputy county attorney concerning the 1993 amendments to the
ordinance and suspension of interstate enforcement. In this memorandum, the deputy
county attorney states that the amendments and "a letter suspending the enforcement
of designated waste destined for disposal outside the state of Minnesota, would put
haulers on notice that it would not be prudent to enter into long-term contracts for
waste disposal outside of the state at this time." Reprinted in Appellees' App. at 63.
Even if we were to impute the deputy county attorney's opinion to the County, we do
-23-
The district court also reasoned that the Ordinance "as enforced" discriminates
in effect by denying out-of-state concerns the ability to compete for local waste. To
use the district court's example, "[a]n out-of-state concern which built a state-of-the-art
processing facility in the middle of Hennepin County could not lawfully receive any
waste from the County."
Oehrleins, 922 F. Supp. at 1404
. Thus, the district court
concluded, Ordinance 12 discriminates against interstate commerce by prohibiting out-
of-state entities full access to the local market in waste processing.
In reaching this conclusion, the district court relied on Carbone and Dean Milk
Co. v. Madison,
340 U.S. 349
(1951), for the proposition that Ordinance 12
discriminates by prohibiting the "importation of waste processing services."
Oehrleins, 922 F. Supp. at 1404
. But the ordinance in Carbone subjected all waste, including
waste bound out-of-state, to the local processing requirement. Out-of-state processors
were thus "deprive[d] . . . of access to a local
market." 511 U.S. at 389
. Such is not
the case here. Dean Milk invalidated a county ordinance that prohibited the sale in
Madison, Wisconsin, of milk pasteurized outside of city
boundaries. 340 U.S. at 350
.
Milk pasteurized at facilities in different states was thus completely cut out of the local
market. Again, Ordinance 12 has no such effect. Quite to the contrary, it is undisputed
that after the 1993 "suspension," out-of-state processors were permitted to and did, in
fact, participate in the market for County waste by receiving waste.
not find this language as sinister as plaintiffs suggest. In our view, the memorandum
merely reflects that, given the uncertainty of the law at the time, neither the County nor
the waste haulers could anticipate what aspects of Ordinance 12 might ultimately be
found valid or invalid. (At the time, the Supreme Court's decision in Carbone was
pending. Indeed, the letter the County sent to haulers notifying them of the suspension
of enforcement makes express reference to the uncertainty of the legal validity of flow
control ordinances, and to the pending Carbone decision. Appellant's App. at 156.)
Furthermore, even were we to credit the plaintiffs' assertion that the possibility of
continued full enforcement of the Ordinance impedes out-of-state contracting, this
threat simply evaporates given our holding that such enforcement would violate the
Commerce Clause.
-24-
-25-
This "market access" theory also assumes that an out-of-state concern that
permanently locates an operation within the state is still an "out-of-state" entity that can
complain that a law that even-handedly restricts a local market is "discriminatory." The
plaintiffs offer no authority for this position. A Delaware corporation doing business
in Minnesota could not argue that it is discriminated against by Minnesota laws that
apply equally to all businesses operating in the state. South Dakota companies may
chose not to locate operations in Minnesota because of comparatively high state taxes
that apply to all businesses, but this is not discrimination under the Commerce Clause.13
Like any other local market regulation, Ordinance 12 may or may not encourage
companies from doing business in the state. But while this may be a relevant concern
in forming economic policies, it is simply not the proper inquiry for considering
discrimination under the Commerce Clause. Cf. CTS
Corp., 481 U.S. at 93-94
(quoting Exxon Corp. v. Governor of Maryland,
437 U.S. 117
, 127 (1978) ("We have
rejected the 'notion that the Commerce Clause protects the particular structure or
methods of operation in a . . . market."). Plaintiffs' analysis would render virtually all
local economic regulations "discriminatory" and subject them to "per se" invalidation.
This would vastly expand the implications of the dormant Commerce Clause, and we
decline to follow such a course.
The plaintiffs argue that "interstate commerce" means more than "goods crossing
state lines." This proposition is undoubtedly correct: even a non-discriminatory law
may unconstitutionally burden interstate commerce. But if so, this is because that
regulation fails the less rigorous balancing test of Pike, not because it is subject to
rigorous scrutiny and virtually "per se invalidation." Restrictions on the ability of
companies, regardless of state of origin, to process Hennepin County waste in
Minnesota may be relevant to the Commerce Clause issue; but if so, this goes not to
13
It would be a different matter, of course, if the state were to treat a company
incorporated or principally located in another state differently from Minnesota
companies on that basis.
-26-
a finding of "discrimination" but to whether the effect of the restriction is to
impermissibly burden interstate commerce.14 As we have stated before, "[n]egatively
affecting interstate commerce is not the same as discriminating against interstate
commerce." Cotto
Waxo, 46 F.3d at 794
. In this case, the district court conflated
"discrimination" with "effect on commerce" and applied rigorous scrutiny when
balancing is called for.
We hold, therefore, that intrastate designation as currently enforced pursuant to
Ordinance 12 does not discriminate against interstate commerce, and is thus contrary
to the Commerce Clause only if it fails the Pike balancing test. Under Pike, those
portions of Ordinance 12 that apply to waste destined for in-state disposal are only
unconstitutional if "the burden imposed on . . . commerce is clearly excessive in relation
to the putative local benefits."
Pike, 397 U.S. at 142
. Because the district court
incorrectly held that the intrastate application of Ordinance 12 was per se invalid, rather
than applying the appropriate balancing test, we reverse and remand. We remand to
the district court for consideration of whether the burden on interstate commerce clearly
exceeds the local benefits. In conducting this review, the district court should consider
all of the interests advanced by the Ordinance in the entire context of the County's
master plan and designation plan. These include those anticipated benefits outlined in
the designation plan, including landfill abatement, County-wide coordination of waste
management, the production of energy, resource recovery, and the goals of the Waste
Management Act that the Ordinance was intended to advance.15
14
Accordingly, the plaintiffs' argument that out-of-state companies are effectively
prevented from operating waste-to-energy processing plants may be relevant to a Pike
analysis, provided that there is evidence that an interest in developing such facilities
actually exists and is frustrated by the Ordinance.
15
We reject plaintiffs' assertion that the County's goal in enacting Ordinance 12
must be strictly distinguished from the overall interests served by the designation plan,
and that the sole goal of Ordinance 12 is to ensure the financial viability of the HERC
-27-
III. CONCLUSION
The certified class of consumers of waste disposal services represented by
Robinson Rubber Products lacks standing in this Commerce Clause action. In regard
to the remaining hauler and processor plaintiffs, we conclude that those provisions of
Ordinance 12 that prevent the delivery of Hennepin County solid waste to facilities
outside of the state discriminate against interstate commerce and so violate the
Commerce Clause of the United States Constitution. Those provisions of the
Ordinance, however, that restrict intrastate delivery of waste to non-designated
facilities do not discriminate against interstate commerce. We remand to the district
court for a determination whether the putative local benefits of the intrastate
facility. The Ordinance's preamble and the County resolution adopting the Ordinance
make explicit reference to the environmental interests the Ordinance seeks to advance;
the County's designation plan likewise summarizes in great detail various expected
benefits of designation. While we may legitimately balance the County's purported
interests against the Ordinance's burden on interstate commerce, we have no authority
to instruct the County that those stated interests are not really interests. Waste Sys.
Corp.,
985 F.2d 1381
, is not to the contrary. In Waste Systems, the court found that
the ordinance at issue facially discriminated against interstate commerce, and that the
county's overarching environmental goals could not offset that discrimination.
Id. at 1388.
In this case, Ordinance 12 is plainly part of a waste management framework
developed over several years, and is inextricably bound up with the County's waste
management master plan and designation plan developed pursuant to the Waste
Management Act. To lift out of context a statement from Waste Systems and argue
that "even if the [County] acted out of legitimate environmental concern when
constructing the [HERC facility], the purpose of the [facility] is not the same as the
purpose of [Ordinance 12]" is to ignore reality.
Id. -28- enforcement
of Ordinance 12 are clearly outweighed by the burdens on interstate
commerce, and for further proceedings consistent with this opinion.16
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
16
Appellees' motion to strike the briefs of the State of Minnesota as amicus curiae
is denied.
-29- |
9,645,576 | 2023-08-22 21:28:56.776456+00 | Duncan | null | OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
DUNCAN, Judge.
Appellant was convicted by a jury of the offense of aggravated sexual assault of a child, as alleged in the indictment. V.T. C.A. Penal Code, Sec. 22.021(a)(5) (1983). Thereafter, the jury assessed his punishment at confinement in the Texas Department of Corrections for a term of forty-five (45) years.
The Beaumont Court of Appeals reversed appellant’s conviction, holding that the trial court, over the appellant’s objection, had erred by instructing the jury “that the defendant may be convicted if you believe ... that he committed the offense alleged in the indictment within a period of three (3) years preceding the filing of the indictment.” The Court of Appeals concluded that this instruction was improper because it permitted the jury to convict the defendant for an offense that may have occurred prior to the effective date of the penal code provisions that made such conduct a criminal offense. The Court of Appeals also decided that the error was reversible under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) because it had resulted in “some harm” to the accused and accordingly reversed the judgment and remanded the cause to the trial court. 701 S.W.2d 932.
In the Court of Appeals the State claimed that the appellant failed to properly preserve error. Accordingly, we granted the State’s petition for discretionary review to determine whether the appellant preserved the claimed error and if he did whether the Court of Appeals properly applied the standard established in Almanza v. State, Id. Because we have concluded that the appellant failed to properly preserve the asserted error it is unnecessary to review the Court of Appeals’ application of Almanza v. State, Id.
Appellant was charged with aggravated sexual assault of a child under V.T.C.A. Penal Code, Secs. 22.011 and 22.021. The complainant was the appellant’s stepdaughter at the time of the offense. At the time of trial she was thirteen (13) years old. The complainant testified during the trial that the appellant had sexually molested her on numerous occasions, prior and in addition to the date of the offense as alleged in the indictment: December 2, 1983.
*141In his brief before the Court of Appeals the appellant asserted that the complainant’s testimony was controverted at trial as to the date of the offense. Further, because of the court’s instruction, the jury was permitted to consider other dates when the appellant had sexually assaulted his stepdaughter in reaching their guilty verdict. In summary, the appellant’s ground of error before the Court of Appeals was as follows: if the jury did not believe the complainant as to the December 2, 1983, date of the offense and nevertheless found the defendant guilty because of a previous offense, then because that previous offense would have occurred prior to the effective date of Y.T.C.A. Penal Code, Sec. 22.-011(a)(2)(A),1 his conviction would be based upon an ex post facto law, prohibited by the Texas Constitution.2
On direct appeal, the Court of Appeals tersely stated that the “appellant objected to the charge for the reason that it permits the jury to find the defendant guilty of an offense not charged in the indictment.” Afterwards the court proceeded to apply the standard established by this Court in Almanza v State, supra,3 and concluded there had been “some harm” to the defendant.
A review of an erroneous jury charge under Almanza v. State, supra can be predicated upon a timely and specific objection to the trial court that there is error in the charge.4 In the case at bar there was no proper objection to the charge made in the trial court. In fact, what occurred is that the trial judge read the appellant’s written objection into the record, which was as follows:
“COMES NOW WILLIAM TURNER and files this his objection to the charge to the jury on the ground that it fails to apply the law to the facts of this case and permits the jury to find the defendant guilty of an offense not charged in the indictment.”
The court then commented: “it is denied.” Other than that, the charge was approved. We posit that such an objection is too vague and ambiguous to preserve error for appeal.5
As quoted in footnote 4, Art. 36.14, V.A. C.C.P. specifically states that the defendant shall “distinctly specify” each ground of the objection. This requirement must also be timely made prior to the submission of the charge to the jury in order to give the trial court notice of any defect, allowing it an opportunity to remedy the defect at that time. Appellant’s objection in this case clearly does not inform the court of any specific defect.
In Bilbrey v. State, 594 S.W.2d 754 (Tex.Cr.App.1980) the Court reviewed an objection at trial to a jury charge stating merely that “[the court’s charge] fails to adequately [sic] apply the law to the facts.” Id. at 756. The Court held that such an objection was not specific enough to apprise the court of the complaint. This Court has not departed from that reasoning. Thus, it has repeatedly stated that an objection at trial merely stating that the court’s charge fails *142to apply the law to the facts is inadequate to preserve error for appellate review. Hackbarth v. State, 617 S.W.2d 944, 947 (Tex.Cr.App.1981); Wells v. State, 634 5.W.2d 868 (Tex.Cr.App.1982).
In the case at bar the wording of appellant’s objection is far too general and ambiguous. One speculative interpretation of his trial objection is that the jury could convict the appellant of an entirely different offense than set forth in the indictment, such as robbery. Another interpretation, as derived from the appellant’s brief, is that the jury found him guilty of an offense committed prior to the effective date of Sec. 22.011, V.A.P.C., which was September 1,1983. Assuming his objection was valid, this argument fails because Sec. 22.011 expressly states that the predecessor statute shall continue to be effective for any offenses committed prior to the effective date of Sec. 22.011.6 The predecessor statute in this case was V.T.C.A. Penal Code, Sec. 21.09(a) (1974) which stated:
“A person commits an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years.”
Applying this statute to the offense it is clear that the State has met each element of its burden of proof in finding the defendant guilty of the offense cited in the indictment.7 Thus, there was not an ex post facto prosecution.
Given that appellant’s objection was too general and ambiguous to properly apprise the trial court of any defects in the charge we cannot consider the question of whether there was “some harm” to the appellant as a result of the error in the jury charge as complained of on appeal. Rather, the judgment of the Court of Appeals is reversed and this cause is remanded for the Court of Appeals to consider appellant’s remaining grounds of error.
CLINTON, J., dissents.
. September 1, 1983, Acts 1983, 68th Leg., p. 5312, ch. 977, Sec. 3.
. No bill of attainder, ex post facto, retroactive on any law impairing the obligation of contrasts, shall be made. Tex. Constitution, Art. 1, Sec. 16; Donohue v. State, 602 S.W.2d 265 (Tex. Cr.App.1980).
. “If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is calculated to injure the rights of defendant,” which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984).
. Art. 36.14, V.A.C.C.P., states in pertinent part:
"Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objec-tion_” (Emphasis added.)
. It is appropriate to observe that after the appellant was convicted he filed the same written objection to the court’s charge on punishment, except in the title to the written objection he interlined the word "Punishment.” What actually happened was the appellant merely submitted two copies of the same objection to the court complaining of error in the jury charge as to guilt-innocence and punishment.
. "An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued for this purpose." V.T.C.A. Penal Code, Sec. 22.011.
. The indictment returned by the grand jury in April of 1984 states in pertinent part that [the defendant, WILLIAM CHARLES TURNER], "did then and there sexually assault Sharon Es-chette, hereafter styled the Complainant, a person younger than seventeen (17) years of age and not the Defendant’s spouse, by intentionally and knowingly causing the penetration of the vagina of the Complainant by inserting his penis; and the Complainant was then and there younger than fourteen (14) years of age.” |
9,645,577 | 2023-08-22 21:28:56.781212+00 | Teague | null | TEAGUE, Judge,
dissenting.
Should a defendant’s conviction be affirmed even though the evidence shows that he might not have committed the offense for which he was charged, but because of the charge to the jury the jury could have found him guilty of not that offense but some other offense for which he was not charged? The Ninth Court of Appeals said “no”, and reversed the appellant’s conviction. See Turner v. State, 701 S.W.2d 932 (Tex.App.-9th 1985). Today, however, a majority of this Court, throwing our constitutional ex post facto law to the winds, holds to the contrary. Believing that the court of appeals correctly reversed the appellant’s conviction, I respectfully dissent to this Court reversing the court of appeals’ decision.
It is perhaps because of the way that the facts were developed in the trial court, as well as the change in the law that occurred on September 1, 1983, that might cause one to zero in on the charge to the jury that was given in the trial court, in order to decide whether William Charles Turner, the appellant, received the fair and impartial trial on guilt that our Constitution and statutory laws guaranteed him. However, there is more meat on the bone-issue that is before this Court than merely whether there was error in the trial court’s charge to the jury. I believe that the main issue that must be decided in this cause is whether there is a reasonable possibility that the appellant was convicted by the jury under an ex post facto law, or at least at a minimum, whether he was deprived of due *143process of law and due course of law under the Federal and State Constitutions. The court of appeals implicitly found that the appellant was convicted under an ex post facto law. I expressly so find.
I first find that the majority opinion’s holding that the appellant’s objection to the charge “is too vague and ambiguous to preserve error for appeal” reflects an abysmal lack of understanding and appreciation of what is before this Court to resolve, and what this Court has held in the past regarding the fact that a general type objection may be sufficient to preserve error. See, for example, Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977).
To appreciate the flaws in the majority opinion, it is necessary to review some of the events that took place in the trial court.
The record reflects that William Charles Turner, the appellant, was charged by indictment filed on June 21, 1984, with committing the offense of aggravated sexual assault on his stepdaughter, “on or about December 2, 1983.”1 Trial occurred on December 17, 1984. The complaining witness, who was then only thirteen years of age, testified that appellant, her step-father, had sexually assaulted her on several occasions during the years 1982 and 1983— by having sexual intercourse with her. However, she contradicted herself when she testified that appellant had sexually assaulted her on December 2, 1983, and then testified that he did not commit any sexual assault on her subsequent to November, 1983. She did not testify that he had sexually assaulted her between September 1, 1983, and November, 1983. Thus, if the jury found that the appellant did not sexually assault the complaining witness at any time after September 1, 1983, which it easily could have done, it could not have found him guilty of the offense of aggravated sexual assault.2 If the jury did not believe that the appellant sexually assaulted the complaining witness after September 1, 1983, then it must have found that he sexually assaulted her prior to September 1, 1983, which would have made the appellant guilty of rape of a child and not aggravated sexual assault on a child, which is the offense which the jury found him guilty of committing.
I do not believe that jurors are as sophisticated as appellate court judges are when it comes to seeing what is apparent to us. I find that generally speaking, jurors are simply interested in whether the defendant committed a crime, and are not interested in the niceties of the law that appellate court judges might be interested in.
I find, as did the court of appeals, that the problem in this cause lies in the fact that on September 1, 1983, what was formerly the offense of “Rape of a Child,” see V.T.C.A., Penal Code, Section 21.09, became the offense of “Sexual Assault on a Child,” see V.T.C.A., Penal Code, Section 22.011(a)(2)(A), and if the child is younger than 14 years of age the offense becomes aggravated sexual assault on a child, see V.T.C.A., Penal Code, Section 22.021. Except for punishment, I do not find any real substantive differences between the two offenses where the defendant has sexually assaulted a female person under 17 years of age by having sexual intercourse with her. Rape of a child occurs if a male person has sexual intercourse with a female person not his wife and she is younger than 17 years of age. One of the ways that sexual assault may occur is if a male person has sexual intercourse with a female person and that person is younger than 17 years of age. In the latter instance, such offense becomes aggravated sexual assault if the victim is younger than 14 years of age. As easily seen, depending on what offense the appellant committed *144governs what punishment should be assessed.
Punishment for the offense of rape of a child was that provided for a second degree felony offense, which was confinement in the Department of Corrections for not less than 2 years nor more than 20 years and a fine not to exceed $10,000. There was then no such offense as “aggravated rape of a child.”3 The offense of sexual assault provides for the same punishment as rape of a child. However, aggravated sexual assault of a female person who was then younger than 14 years of age carries the punishment provided for a first degree felony, which is confinement in the Department of Corrections for not less than 5 years nor more than 99 years, or life, and a fine of $10,000. The jury assessed appellant’s punishment at 45 years’ confinement in the Department of Corrections, which is a void punishment if he is guilty of rape of a child.
Given the facts that came from the complaining witness, the law and the punishment provided for the offense of rape of a child, as it existed prior to September 1, 1983, and the law and the punishment provided for the offense of aggravated sexual assault on a child, as it exists subsequent to September 1, 1983, both offenses are applicable to this cause.
What causes the problem to exist probably lies in this Court’s principle of law that if the State alleges that the offense occurred “on or about” a certain date, the State may obtain a conviction upon proof that the offense was committed at any time prior to the return of the indictment-provided that this is within the period of limitations. See Nees v. State, 402 S.W.2d 186 (Tex.Cr.App.1966), and the cases collated in West’s Texas Digest, Second Series, Volume 29, “Indictment & Information Key 176”.
The offense of rape of a child formerly carried a limitations period of only three years. See Art. 12.01, V.A.C.C.P., prior to amendment.4
Pursuant to the trial court’s charge to the jury in this cause, the jury was permitted by its instructions to convict appellant of the offense of rape of a child if it found beyond a reasonable doubt that appellant had sexually assaulted the complainant at anytime between December 2, 1980 and December 2, 1983, even though no such offense existed after August 31, 1983 and appellant was not charged in the indictment with committing this offense. The jury was charged as follows: “You are instructed that the State is not bound by the date of December 2, 1983, alleged in the indictment, and the defendant may be convicted if you believe beyond a reasonable doubt that he committed the offense alleged within three (3) years preceding the filing of the indictment [on June 21, 1984, or between June 21, 1981 and June 21, 1984].” Thus, because of the facts of this case, and the change in the law effective September 1, 1983, the jury was permitted to find appellant guilty of the offense of aggravated sexual assault even if it found that he committed that offense prior to September 1, 1983, notwithstanding the fact that the offense of sexual assault on a child or aggravated sexual offense on a child did not then exist.5
Thus, but as expressly pointed out by the court of appeals, see Turner v. State, 701 S.W.2d 932 (Tex.App.-9th 1985), the trial court’s charge to the jury permitted the jury to convict appellant for the offense of aggravated sexual assault on a child even though it could have found that he did not commit that offense, but, instead, found *145that the appellant had committed the offense of rape of a child. The jury’s verdict of guilty does not reflect on what date appellant committed the offense. If the jury actually found that appellant had committed the offense prior to September 1, 1983, it erroneously punished the appellant because, if it found that the appellant sexually assaulted the complainant, by having sexual intercourse with her prior to September 1,1983, the maximum possible punishment it could have assessed was 20 years and a $10,000 fine. The jury, however, assessed appellant’s punishment at 45 years’ confinement in the Department of Corrections.6
When appellant’s counsel objected to the charge, did he, although in the form of an objection to the charge to the jury, actually in fact motion the trial court to require the State to elect which specific act of intercourse was being relied upon for conviction? See and compare Crawford v. State, 696 S.W.2d 903 (Tex.Cr.App.1985). (Failure to require the State to elect constitutes reversible error.)
Although there is no question that when appellant presented his complaint about the charge to the trial judge, that the charge “permits the jury to find the defendant guilty of an offense not charged in the indictment,” he probably could have better articulated his complaint, given the fact that after the trial judge himself personally read the complaint, and did not ask counsel to further explain his complaint, it is apparent to me that the learned trial judge was fully aware of what appellant was complaining about, namely, that counsel was fearful that the jury might convict the appellant of committing the offense of aggravated sexual assault of a child when he was only guilty of committing the offense of rape of a child.
I find that what Justice Brookshire of the Beaumont Court of Appeals was implicitly stating when he authored the opinion for the court of appeals was that the appellant’s objection amounted to a plea to the trial judge not to subject him to being tried and punished for a crime, aggravated sexual assault, that based upon the complaining witness’ testimony the jury could find that he did not commit.
Thus, we are confronted with the situation where a defendant may have been found guilty by a jury for an offense that he did not commit, but was found guilty for committing another offense not charged in the indictment.
Art. 1, Section 16, of the Texas Constitution provides in part that “No ex post facto law shall be made.” A law is an ex post facto law if it aggravates a crime, or makes it greater than it was, when committed, or if changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed, or which alters the situation of the accused to his disadvantage. Hill v. State, 146 Tex.Cr.R. 333, 171 S.W.2d 880, 883 (App.1943); Ex parte Alegría, 464 S.W.2d 868 (Tex.Cr.App.1971).
To simply, and cursorily, state the following, “Assuming his objection was valid, this argument [that the jury found him guilty of an offense committed prior to the effective date of Sec. 22.011, V.A.P.C.], fails because Sec. 22.011 expressly states that the predecessor statute shall continue to be effective for any offenses committed prior to the effective date of Sec. 22.011 ... Applying the statute to the offense it is clear that the State has met each element of its burden of proof in finding the defendant guilty of the offense cited in the indictment. (Footnote omitted.) Thus, there was not an ex post facto prosecution”, is to treat the extremely delicate subject of ex post facto law and due process and due course of law too gingerly.
Given what this Court and the Supreme Court of the United States have stated regarding the subject of “ex post facto laws”, as well as when a defendant has been deprived of due process and due *146course of law, I find that the manner in which the majority opinion rejects the application of these doctrines to this cause should be, in all due respect to the author of the majority opinion, an embarrassment to the other members of this Court.
“Ex post facto considerations come into play when legislation ... detrimentally affects a person, and the legislative ... action relates to acts of that person committed before the legislation came into force ... In other words, legislative ... action may not retroactively subject a person’s actions to criminal prosecution ... and may not retroactively subject a person’s actions to criminal prosecution ... and may not retroactively subject criminal actions to a potentially more onerous punishment ...” Chalin v. State, 645 S.W.2d 265, 271 (Tex.Cr.App.1982) (Opinion on State’s motion for rehearing). Under the due course of law clause to the State Constitution and the due process of law clause in the Federal Constitution, no person shall be deprived of life or liberty without due course or due process of law. See Art. I, Section 19, Texas Constitution; Fourteenth Amendment to the Federal Constitution.
There should be no doubt that what occurred here falls nicely within the boundaries of the doctrine of ex post facto law and the principles of due course and due process of law. If the jury’s verdict finding appellant guilty of aggravated sexual assault on a child is actually based on a date prior to September 1, 1983, not only has appellant been wrongfully convicted, he has been wrongfully punished. He has not only been subjected to an ex post facto law, he has also been deprived of both due course of law and due process of law.
Even assuming arguendo that appellant’s objection to the charge was such that the learned trial judge could not comprehend and understand what counsel was complaining about, which given this record is difficult to understand, I am unable to humanly understand how it is possible to affirmatively state that the charge on guilt was not so egregious that it did not deprive appellant of a fair and impartial trial on guilt. Whether one wishes to invoke and apply “Almanza the Terrible”, see Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), or some other decision that makes a lot more sense than Almanza, supra, does, see, for example, Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982) (On State’s motion for rehearing), makes no difference in this instance because under either the charge that was given the jury in this cause effectively deprived the appellant of a fair and impartial trial on guilt, as the court of appeals implicitly found occurred, which decision should be affirmed and not reversed. The record clearly reflects that the charge to the jury was undesirable, erroneous because of its incompleteness, and should be universally condemned as it so infected the entire trial on guilt as to result in a conviction that violated due course and due process of law. E.g., Plunkett v. Estelle, 709 F.2d 1004 (5th Cir.1983).
Therefore, I vote to affirm the decision of the court of appeals that reversed the appellant’s conviction. To the majority opinion’s contrary holding, and its decision to throw the Constitutional law of ex post facto and the doctrines of due course and due process of law to the winds, I respectfully dissent.
. Until September 1, 1983, there was no such offense referred'to as “aggravated sexual assault on a child”; where the defendant had sexual intercourse with a female under 17 years of age, the offense was referred to as "rape of a child”.
. The verdict forms provided the jury by the trial judge permitted the jury to find the appellant guilty or not guilty of the offense of "aggravated sexual assault"; a verdict form for the offense of "rape of a child” was not provided the jury, notwithstanding the fact that the jury was instructed it could find the appellant guilty of that offense rather than the offense of "aggravated sexual assault".
. In the sense that because the female was under a certain age, such did not make the offense of "rape of a child" “aggravated rape of a child."
. However, by Acts 1983, 68th Leg., p. 413, ch. 85, § 1, and Acts 1983, 68th Leg., p. 5317, ch. 977, § 7, which became effective September 1, 1983, the statute of limitations for the offenses of rape of a child, sexual abuse of a child, sexual assault, and aggravated sexual assault, among others, was extended to five years, with the proviso that such did not apply to an offense, the prosecution of which became barred by limitations on or before August 31, 1983.
.A careful reading of the record makes it obvious to me that none of the participants at trial, including the trial judge, picked up on the differences in these and the above dates.
. Given the emotional reaction to a male person having sexual intercourse with a female person only 13 years of age, I believe that any rational or reasonable person believes that 20 years is "too light" a punishment for the offense of rape of a child, thus easily accounting for the 45 year verdict. |
1,516,642 | 2013-10-30 06:32:57.868893+00 | Clinton | null | 726 S.W.2d 151 (1987)
Maurice Samuel CUNNINGHAM, Appellant,
v.
The STATE of Texas, Appellee.
No. 929-85.
Court of Criminal Appeals of Texas, En Banc.
March 18, 1987.
David R. Weiner, court appointed on appeal, San Antonio, for appellant.
Sam D. Millsap, Jr., Dist. Atty., and Elizabeth H. Taylor, Ernest Glenn and Charles Estee, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.
Charged with aggravated sexual assault of a child under V.T.C.A. Penal Code, Sec. 22.011(a)(2)(B) and Sec. 22.021(a)(3), appellant pleaded not guilty in a trial before the court. Expressly finding a failure to prove "penetration of the mouth of the child by the sex organ of [appellant]," the trial court convicted him of indecency with a child.[1]
*152 On appeal the San Antonio Court of Appeals sustained appellant's sole ground of error to the effect that the judgment is void because the conviction is for an offense neither alleged nor included in the indictment. Finding that "an essential element of the offense of indecency with a child is the intent to arouse or gratify the sexual desire of any person ... that must be specially alleged in the indictment," the San Antonio Court reasoned that conviction for indecency with a child "requires proof of an additional material fact, the required specific intent, which is not required to be proven for a conviction for aggravated sexual assault under the instant indictment." Therefore, under the indictment in this cause "indecency with a child is not a lesser included offense." It ordered an acquittal for indecency with a child. Cunningham v. State, 694 S.W.2d 629 (Tex.App. San Antonio 1985).
In its petition the State challenges the decision (and reasons given for it) of the Court of Appeals, and we granted review under Tex.Cr.App. Rule 302(c)(2), now Tex. R.App.Pro. Rule 200(c)(2). We will reverse the judgment of the San Antonio Court.
The leading opinion on meaning and construction of Articles 37.08 and 37.09, V.A. C.C.P., and the relation of lesser included offenses to allegations in a charging instrument is Day v. State, 532 S.W.2d 302 (Tex. Cr.App.1976), the latter in Opinion on Rehearing. The State contended that a requested charge on criminal trespass, as a lesser included offense of burglary, was properly denied "because the indictment would not support a conviction for criminal trespass," id., at 310, relying on the principle that when a lesser offense is not statutorily identified as a degree of the primary offense charged, the lesser must be sufficiently pled in the indictment in order to support a judgment of conviction for the lesser offense. Id., at 313.[2]
Responding to the State's contention, the Court first observed that the State was relying on authorities decided before the 1973 amendments to the Code of Criminal Procedure. Accordingly it analyzed former statutes and case law, and we set out in the margin its own summary of what was found.[3]
Having held on original submission that "on the facts of this case" criminal trespass is a lesser included offense to burglary as charged, and having affirmed that holding on rehearing, id., at 310, the Court concluded:
"With respect to the State's challenge raised against the power of the court to enter judgment for criminal trespass upon the indictment in this case, [note omitted] we hold that the new statutory scheme of lesser included offenses ... did not create such a restriction upon the jurisdiction of the trial court once properly invoked to try the offense charged, to proceed to judgment upon the lesser included offense...."
Id., at 315. Accord: E.g., Ex parte McClelland, 588 S.W.2d 957, 959 (Tex.Cr. App.1979) (new statutory scheme does not restrict jurisdiction of the trial court, once properly invoked to try the offense *153 charged, to proceed to judgment on a lesser included offense).
Turning to the constitutionality of Articles 37.08 and 37.09(1), supra, the Court noted that "each definition in Article 37.09 is stated with reference to `the offense charged,' and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged;" it further observed that those differentiations "vary in a manner that is either restrictive or reduces culpability as compared to the offense charged." Accordingly, the articles are constitutional "insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged." Id., at 315. However, the Court added a most significant stipulation, viz:
"[W]hether one offense bears such a relationship to the offense charged is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the case."
Id., at 315-316. Accord: Campbell v. State, 571 S.W.2d 161 (Tex.Cr.App.1978) (State's case "as presented to prove the [aggravated robbery] offense charged" included proof of lesser included offense of completed theft); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976) (proof showed unlawful possession of hand gun a lesser included offense of possession of pistol by felon); Jones v. State, 532 S.W.2d 596, 601 (Tex.Cr.App.1976) (insufficient proof that a "habitation" was burglarized but showing an "enclosed structure" sustains lesser included offense of burglary of a "building"); cf. Williams v. State, 605 S.W.2d 596, 600 (Tex.Cr.App.1980).
In terms of the offense charged in the instant cause, practically tracking Secs. 22.011(a)(2)(B) and 22.021(a)(3), supra, in pertinent part the indictment alleged that on the 3rd day of October 1983, appellant did then and there:
"intentionally and knowingly cause the penetration of the mouth of [named child] by the sexual organ of the said defendant, and by acts and words occurring in the presence of [the child], intentionally and knowingly threatened to cause the death of [the child]."
The jurisdiction of the trial court having been properly invoked to try the offense charged, it was authorized to proceed to judgment upon any lesser included offense determined from the offense charged and the facts of the case. Williams v. State, 605 S.W.2d 596, 600 (Tex.Cr.App.1980); Ex parte McClelland, supra; Hazel v. State, 534 S.W.2d 698, 700-701 (Tex.Cr.App.1976); Day, supra. Contrary to the opinion of the San Antonio Court of Appeals, that the indictment did not expressly allege an element of indecency with childintent to arouse or gratify the sexual desire of any persondid not preclude the trial court from proceeding to judgment upon a correctly determined lesser included offense. Day, supra (Opinion on Rehearing) In this context both Duwe v. State, 642 S.W.2d 804 (Tex.Cr.App.1982) and Victory v. State, 547 S.W.2d 1 (Tex.Cr.App.1976), cited by the San Antonio Court, are inapposite. What must be decided in light of the offense charged and the facts proved is whether in this cause indecency with a child is a lesser included offense of the one alleged. Campbell v. State, supra, at 161.
The offense charged is a species of what is now titled "sexual assault," aggravated in this instance by threat to cause death of the child. V.T.C.A. Penal Code, Secs. 22.011(a)(2)(B) and 22.021(a)(3). Putting aside the aggravating feature, Hazel v. State, supra, at 701, the offense is committed when a person "intentionally or knowingly causes the penetration of the mouth of a child by the sexual organ of the actor."[4]*154 While the 1983 changes may indicate a legislative preference that the thrust of sexual assault of a child be regarded as more assaultive in nature than sexual abuse of a child, we must not confuse statutory elements in the definition of an offense with evidentiary facts that prove it. That the Legislature altered the nature of the offense does not rule out the fact that an act of causing penetration of the mouth of a child by the penis of another will be accompanied with specific intent to arouse or gratify sexual desire of the actor. The issue is "whether the State's case as presented to prove the offense charged included proof of [a lesser included offense]," not "whether the primary offense is capable of proof on some theory that would not show [a lesser included offense]." Campbell, supra, at 162; Hazel, supra, at 700; Day, supra, at 310, 315.
In the instant cause, however, in reaching its decision the San Antonio Court did not even mention the State's proof. That proof presents a brief scenario that is at once simple and commonplace in such cases.
The fourteen year old victim testified that during lunch time at the middle school she attended appellant approached her in the parking lot; through a ruse and a dollar bill he induced her into his automobile and drove to another area nearby. There, still in his car, appellant told the child to take off her clothes, slapping her in the face until, in tears and afraid, she began to do so. She removed her pants and shirt and lifted up her "bra." Then or later he "took down" his own pants. He "put his finger on [her] crotch," and told her to lick his penis; she did that. After she licked his penis he put it "in [her] crotch."
Asked directly if he "put his penis in your mouth," the child answered, "No." In time appellant told her to put her clothes back on, she did and appellant drove her back to school and let her out. The child went immediately to her teacher and reported what had happened.
Ever since the Legislature modernized the common law definition of sodomy to proscribe certain acts done "in a lewd and lascivious manner"meaning "in a vulgar manner inciting sexual desire or appetite," Slusser v. State, 155 Tex. Crim. 160, 232 S.W.2d 727, 730 (1950)and denounced other sexual acts with "lascivious intent," the rule has been that "lascivious" or other requisite intent may be inferred from conduct and remarks of the actor and surrounding circumstances. McKenzie v. State, 617 S.W.2d 211 (Tex.Cr.App.1981), 215, n. 15, citing Bowles v. State, 550 S.W.2d 84 (Tex.Cr.App.1977), where many authorities are assembled for that proposition.
Here, proof adduced by the State presents ample evidence from which a rational factfinder could easily infer that while appellant acted assaultively his conduct included an intent to arouse or gratify his own sexual desire. Jacquez v. State, 579 S.W.2d 247, 249 (Tex.Cr.App.1979) (stranger grabbed minor male victims, dragged them behind school building and forced them to "touch and scrub" his penis); Ferguson v. State, 579 S.W.2d 2, 5 (Tex.Cr.App.1979) (accused forced stepdaughter to take his penis in her mouth and move her head up and down); Hohn v. State, 538 S.W.2d 619, 620-621 (Tex.Cr. App.1976) (adult male companion of mother made her child take off clothes, get in his bed and perform an act of oral sodomy on him); Sartin v. State, 169 Tex. Crim. 563, 335 S.W.2d 762 (1960) (adult required minor to grip penis of former and was in act of kissing penis of latter when discovered in automobile). See McKenzie v. State, supra, at 216 (given all surrounding circumstances when an older man kneels down in front of a female child, says he is going "to see if she is clean," touches her genitalia and promptly arises to leave immediately, "permissible deduction is that he did so with intent to arouse and gratify his own sexual desire") and Jones v. State, 156 Tex. Crim. 2, 238 S.W.2d 529, 530 (1951) (landlord pulled down panties of minor female tenant and "rubbed [his] fingers on her female parts").
*155 Therefore, when the State sought to show that appellant caused his penis to penetrate the mouth of his female victim, it proved conduct on the part of appellant leading up to but just short of penetration that constitutes indecency with a child by engaging in sexual contact with her and by exposing his genitals to herboth with intent to arouse or gratify his own sexual desirein violation of Sec. 21.11(a)(1) and (2), respectively (as well as "deviate sexual intercourse"). Since jurisdiction of the trial court was properly invoked to try the offense charged, that such specific intent was not expressly alleged in the indictment will not bar an adjudication of guilt of a lesser included offense of which such intent is an element. Day, supra.
While it is certainly true that Sec. 22.011(a)(2)(B) does not in terms require a specific intent to arouse or gratify sexual desire, the Legislature has recognized that an actor may well act with just such intent when he causes his penis to penetrate the mouth of a child. See note 4, ante. In the instant scenario, if appellant had any conscious objective or desire to cause his penis to penetrate the mouth of his victim, he first forced her to touch (lick) his penis before putting it in her crotch. Those acts are indicative of that particular specific intent. Proof of preliminary conduct amounting to indecency with a child may not always be made in an effort to prove penetration of a penis into the mouth of child, but when proof of penetration fails and there is a showing that the child was forced to lick the penis of the actor and he, in turn, put it in her crotch, permitting a reasonable inference of intent to arouse or satisfy his sexual desire, less than all the facts of sexual assault under Sec. 22.011(a)(2)(B) have been proved, and we so hold. Day and Jones, 532 S.W.2d, at 601.
The judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed.
MILLER, J., concurs in result.
ONION, P.J., and DUNCAN, J., dissent.
MILLER, J., concurs in result.
NOTES
[1] Asked by the trial judge if there were a failure to prove penetration what lesser included offense was shown, the prosecutor replied, "[T]his is indecency with a child by contact for one offense...." Announcing that he was satisfied there was "no proof of penetration", the trial judge found appellant guilty of "the lesser included offense of indecency with a child under section 21.11(a)(1) of the Texas Penal Code." The judgment of conviction is not all that precise, however, reciting a finding of guilty of "indecency with a child," without specification or elaboration.
[2] All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
[3] "Prior to the enactment of a new statutory scheme of lesser included offenses in 1973, there were two types of `lesser offenses' subject to different rules regarding the power of the court to enter a judgment of conviction for the lesser offense upon the indictment charging the greater offense. If the greater degree by statute consisted of degrees, the elements of the lesser offense did not have to be alleged in the indictment. If the lesser offense was not a degree of the greater by statute, the elements of the lesser had to be alleged in the indictment before a conviction for that lesser could be had thereon. Furthermore, even if by statute the lesser was made a degree of the greater alleged, the validity of that statutory designation was subject to constitutional attack and, upon such attack, to judicial examination of the relationship between the two offenses."
Id., at 314-315.
[4] Formerly the offense was "sexual abuse of a child," committed when a person "with intent to arouse or gratify the sexual desire of any person,... engages in deviate sexual intercourse with a child ..." Id., Sec. 21.10, and "deviate sexual intercourse" then and now includes "any contact between any part of the genitals of one person and the mouth or anus of another person." Id., Sec. 21.01(1)(A). Factually, then, the indictment alleges one form of "deviate sexual intercourse" and, with intent to arouse or gratify sexual desire, one form of "sexual contact," as respectively defined by Sec. 21.11(a)(1) and (2). |
9,645,578 | 2023-08-22 21:29:05.443418+00 | Papadakos | null | *217OPINION ANNOUNCING THE JUDGMENT OF THE COURT
PAPADAKOS,* Justice.
This is the appeal of Wilsbach Distributors, Inc., Appellant, from the Opinion and Order of the Commonwealth Court vacating the judgments of sentence entered against it by the Court of Common Pleas of Dauphin County, and remanding the matter to the trial court to enable Appellant to file post-trial motions on certain matters relevant to this appeal.
Appellant is an importing distributor of malt and brewed beverages and is licensed by the Pennsylvania Liquor Control Board, pursuant to Section 439 of the Liquor Code,1 to operate a distributorship in the City of Harrisburg. On December 12, 1978, the City of Harrisburg enacted a Business Privilege Mercantile Tax Ordinance which imposed a tax on the privilege of doing business in the City of Harrisburg equal to one and one-half mills per $1,000.00 of gross volume of business conducted within the territorial limits of the City of Harrisburg, subject to a maximum tax of $3,000.00. Appellant did not pay the Business Privilege and Mercantile Tax for 1979 and 1980 claiming that it was exempt from the payment of the City imposed tax.
On October 13, 1981, Appellant was served with citations for failure to pay the City taxes, and was found guilty of failing to pay the taxes by a district justice on March 30, 1982. An appeal to the Court of Common Pleas of Dauphin County was timely taken. Prior to the de novo trial, Appellant and the City stipulated that the tax due for 1979 would be $1,522.48 and $1,685.00 for 1980, plus penalties for late payment. Following a hearing before the Honorable *218John C. Dowling, Appellant was found guilty of not paying the taxes, a summary offense.
An appeal followed to Commonwealth Court. There, Appellant argued 1) that the Pennsylvania Liquor Code is such a comprehensive legislative regulation of the liquor industry that the City is prohibited from taxing Appellant, under the doctrine of pre-emption; 2) that the Local Tax Enabling Act prohibits the City from taxing Appellant, since the Commonwealth has already imposed a tax and license fee on the same subject matter; and 3) that the trial court erred in directing that Appellant pay back taxes and penalties as a part of its sentence imposed pursuant to a summary offense conviction. The Honorable Francis A. Barry, writing for an unanimous seven member en banc court, rejected Appellant’s first two arguments, but remanded on the third issue to give Appellant an opportunity to file nunc pro tunc post-trial motions before the trial court on this issue pursuant to Pa.R.Crim.P. 1123(a). Wilsbach Distributors, Inc. v. Commonwealth, 81 Pa.Commonwealth Ct. 244, 473 A.2d 1123 (1984).
We granted Appellant’s Petition for Allowance of Appeal to examine the interesting question of whether the legislation regulating the liquor industry is so comprehensive in itself, or in conjunction with the taxes and fees imposed by the Commonwealth over the liquor industry, as to prohibit the City from levying its own tax on the same subject.
In reviewing legislation to resolve the question of whether pre-emption arises, we are guided by the standard articulated by this Court in Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 380-81, 77 A.2d 616, 619-20 (1951):
There are statutes which expressly provide that nothing contained therein should be construed as prohibiting municipalities from adopting appropriate ordinances, not inconsistent with the provisions of the act or the rules and regulations adopted thereunder, as might be deemed necessary to promote the purpose of the legislation. On the other hand there are statutes which expressly provide *219that municipal legislation in regard to the subject covered by the state act is forbidden. Then there is a third class of statutes which, regulating some industry or occupation, are silent as to whether municipalities are or are not permitted to enact supplementary legislation or to impinge in any manner upon the field entered upon by the state; in such cases the question whether municipal action is permissible must be determined by an analysis of the provisions of the act itself in order to ascertain the probable intention of the legislature in that regard. It is, of course, self-evident that a municipal ordinance cannot be sustained to the extent that it is contradictory to, or inconsistent with, a state statute____ [Municipalities in the exercise of the police power may regulate certain occupations by imposing restrictions which are in addition to, and not in conflict with, statutory regulations ... but if the general tenor of the statute indicates an intention on the part of the legislature that it should not be supplemented by municipal bodies, that intention must be given effect and the attempted local legislation held invalid ____ (Citations omitted.)
Appellant admits that the Liquor Code is silent on the question of pre-emption and argues that we are required to analyze the provisions of the various acts involved in order to ascertain the probable intention of the legislature in regard to pre-emption. We agree.
Before embarking on a review of the Liquor Code and taxing provisions, however, one important digression is in order. Commonwealth Court, in reviewing Appellant’s preemption claims, chose to reject them by relying on this Court’s decision in United Tavern Owners of Philadelphia v. Philadelphia School District, 441 Pa. 274, 272 A.2d 868 (1971). In that case, Mr. Justice O’Brien, speaking for himself, argued that his review of the Liquor Code and tax scheme imposed on the liquor industry indicated that the Legislature chose to take the field and pre-empt local taxation on the liquor industry. No member of the Court joined that opinion. Mr. Chief Justice Bell and Mr. Justice Rob*220erts only concurred in the result. Mr. Justice Pomeroy dissented and was joined by Mr. Justice Eagen, who both felt that the Liquor Code regulations and tax schemes were not so comprehensive as to prevent local municipalities from taxing the liquor industry. Justices Cohen and Jones did not participate in the consideration or disposition of the case. Three members of the Court (O’Brien, Pomeroy and Eagen, JJ.) did agree that the Liquor Code, by itself, was not a sufficiently comprehensive regulatory statute to prevent local taxation on the liquor industry. Three other members of that Court (O’Brien, Bell, Roberts, JJ.), however, agreed that the result reached in striking down the local tax was correct, albeit for unrevealed reasons.
Given the splintered voting pattern of United Taverns, Commonwealth Court’s cautious reliance on United Taverns to dispose of Appellant’s argument of pre-emption may well have been misplaced, and we feel it appropriate to re-examine the issue especially in light of our more recent decision in City of Pittsburgh v. Allegheny Valley Bank, 488 Pa. 544, 412 A.2d 1366 (1980), where a clear majority of the Court found the Banking Code and the Department of Banking Code sufficiently comprehensive regulatory schemes to pre-empt local taxation and since a full compliment of this Court is participating in the consideration and disposition of the issues being raised.
Our review of the Liquor Code and regulations promulgated thereunder indicate the legislature’s clear intent to regulate in plenary fashion every aspect of the alcoholic beverage industry. Every phase, from manufacture to sale and disposition is subject to the exclusive control of the State through its designated arm of enforcement, the Liquor Control Board.2
*221As our decisions have made clear, there is perhaps no other area of permissible state action within which the exercise of the police power of a state is more plenary than in the regulation and control of the use and sale of alcoholic beverages. V.J.R. Bar Corp. v. Liquor Control Board, 480 Pa. 322, 390 A.2d 163 (1978); In re: Tahiti Bar, Inc., 395 Pa. 355, 150 A.2d 112 (1959); Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959). The state is vested with the sole authority to determine whether alcoholic beverages, their manufacture, gift, purchase, sale, possession or transportation shall be permitted or prohibited within its borders.3
The power of prohibition includes the lesser power of regulation and a state may adopt such measures as are reasonably appropriate or needful to render the exercise of that power effective. In view of the virtually absolute control over the business of dispensing alcoholic beverages, it is clear that the conduct of such business is lawful only to the extent that it is made so by the Liquor Code. Tahiti Bar; Cavanaugh v. Gelder, 364 Pa. 361, 72 A.2d 85 (1950).
In the exercise of its legitimate state interest, the Commonwealth, through the Liquor Control Board, directly controls what beverages may be bought or sold in the Commonwealth,4 who may sell on the retail and wholesale level,5 for what prices beverages may be sold and bought from the State,6 and to issue licenses to distributors and wholesalers so that they may sell to consumers through its Board.7 The Commonwealth controls not only the geographical location of all its licensees,8 but also the physical structures in which *222beverages may be kept and sold.9 The site of every licensed premise in the Commonwealth is exclusively within the discretion of the Board.10 The only concessions to municipalities is their right to exclude any or all classes of licensees (i.e., dry municipalities), 47 P.S. § 4-472, and to exercise appropriate zoning controls.
Enforcement of the Code and its regulations is vested in the Board. The Board and its investigative staff are vested with the full police power to enter any licensed establishment and check for violations of the Code, and, if necessary, to arrest violators of the Code and its regulations, and to seize unlawfully obtained beverages in plain view, without warrant.11
As part of the legislature’s regulatory scheme, fees are imposed for the privilege of obtaining and keeping licenses issued by the Board (47 P.S. § 8-801). These fees are collected for the benefit of the municipalities in which the licensed establishments are located and are rebated by the Commonwealth to those municipalities.
Finally, indicative of the Commonwealth’s plenary exercise of control over the alcoholic beverage industry are the extensive taxes imposed on all sales of alcohol on the local and retail levels. Considerable revenues are generated for the Commonwealth by its operation of the State Liquor Stores and the additional taxes imposed on purchases and sales of alcoholic beverages. In addition to the revenues generated by the operation of the State Liquor Stores and license fees collected pursuant to the provisions of the Code, the Commonwealth also raises revenue by its imposition of four other taxes on all sales and purchases of alcoholic beverages. (Spirituous and Vinous Liquor Tax Law, Act of December 5, 1933, P.L. 38, 47 P.S. § 745 et seq.; Emergency Liquor Tax, Act of June 9, 1936, Ex. Sess, P.L. 13, as amended, 47 P.S. § 794 et seq.; Malt Beverage Tax Law, Act of May 5, 1933, P.L. 284, as amended, 47 P.S. § 103 et *223seq.; Sales Tax Act, Act of March 4, 1971, P.L. 6, Article II, as amended 72 P.S. § 7201.)
Our decision in City of Pittsburgh v. Allegheny Valley Bank, 488 Pa. 544, 412 A.2d 1366 (1980), is not inapposite to the result we reach here. In Allegheny Valley Bank, we reviewed the Banking Code12 and the Department of Banking Code13 to determine whether the legislation was so comprehensive as to indicate the legislature’s intention to reserve regulation and taxation of the banking industry exclusively to the Commonwealth. After review, we found that the statutes under consideration demonstrated the implementation of a comprehensive regulatory scheme over a private industry which needed state protection for the economic security of the public economy and the financial soundness of the banking institutions. The local taxing scheme was found to be an impermissible intrusion in the Commonwealth’s statewide regulation of the banking industry and was struck down.
Allegheny Valley Bank does not stand for the proposition that the state’s regulation over an industry will preempt local regulation or taxation only when the nature of the industry regulated involves its financial soundness. Fiscal stability is only one of the considerations which may motivate the state to enact pre-emptive regulations in its desire to protect the industry’s financial soundness for the health, welfare or safety of the citizens and the economy. We are still required to examine all relevant legislation in order to ascertain the extent of the regulation over an industry and the legislature’s purpose in regulating the industry. West. Pa. Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616 (1951).
The regulatory scheme now under review controls a public, state-run monopoly, maintained for the health, welfare and safety of the citizens of this Commonwealth and upon *224which the Commonwealth depends for substantial revenues. Such pervasive control over all phases of the liquor industry, along with the extensive taxation and fees imposed, indicates the legislature’s intent to control this industry and to receive all the benefits inherent by regulating the industry, including raising revenues through regulation to the exclusion of all local attempts to interfere with the state regulation by imposing taxes on a local level.
We conclude that the legislature has adopted a scheme of regulation so pervasive over the entire alcoholic beverage industry, that it has “pre-empted the field” to the exclusion of all interference from subordinate legislative bodies. Such pre-emption by the legislature bars local legislative control by regulation or taxation.
The Business Privilege and Mercantile Tax imposed on Appellant is a tax on its privilege to conduct a distributorship within the City of Harrisburg. This privilege is granted by the State, is absolutely controlled by the State, and not the City of Harrisburg, through fees, regulations and taxes, and is, thus, an improper subject for the City to tax. Since the taxation of Appellant’s privilege of doing business is pre-empted by the Commonwealth, the Business Privilege Tax impermissibly “impinges” upon this area and the Harrisburg tax is invalid as applied to Appellant.14
The Order of the Commonwealth Court is reversed and the citations filed against Appellant are dismissed.
JUDGMENT
ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Order of the Commonwealth Court is reversed and the citations filed against appellant are dismissed.
NIX, C.J., files a concurring opinion. *225ZAPPALA, J., files a concurring opinion, joined by McDermott, j. FLAHERTY, J., files a dissenting opinion, joined by HUTCHINSON, J.
Reassigned to this writer.
. Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-439, provides in pertinent part:
... no license to any ... importing distributor ... shall be issued ... until the licensee shall have first paid an annual fee, as follows:
(c) In the case of an importing distributor, the license fee shall be nine hundred dollars ($900) and shall be paid to the Board.
. Section 104 of the Liquor Code, 47 P.S. § l-104(c), provides in pertinent part:
... the purpose of this act is to prohibit the manufacture of and transactions in liquor, alcohol, and malt or brewed beverages which take place in this Commonwealth, except by and under the control of the Board____ The provisions of this act dealing with the manufacture, importation, sale and distribution of liquor, alcohol and malt or brewed beverages within the Commonwealth through *221the instrumentality of the Board or otherwise, provide the means by which such control shall be made effective.
. 47 P.S. §§ 2-207, 4-491, 4-492.
. 47 P.S. § 2-207.
. 47 P.S. §§ 4-401, 4-431, 4-437.
. 47 P.S. §§ 2-207(b), 2-208(e).
. 47 P.S. §§ 2-207(d), 4-401.
. 47 P.S. §§ 2-207(c), 4-461.
. 47 P.S. §§ 4-440, 4-442, 4-461, 4-491(6).
. 47 P.S. §§ 4-404, 4-437(f).
. 47 P.S. §§ l-104(a), 2-209.
. Act of November 30, 1965, P.L. 847, §§ 101, et seq., as amended, 7 P.S. §§ 101 et seq.
. Act of May 15, 1933, P.L. 565, §§ 1, et seq., as amended, 71 P.S. §§ 733-1 et seq.
. This decision, of course, does not mean that Appellant is exempt from all municipal taxation. As noted in Allegheny Valley Bank, 488 Pa. 544 at 554, footnote 12, 412 A.2d 1366 at 1371, footnote 12, municipal taxation of real estate is not pre-empted by the legislature. See 72 P.S. § 7701. |
9,645,579 | 2023-08-22 21:29:05.448414+00 | Nix | null | NIX, Chief Justice,
concurring.
I concur in the result reached by the majority. I disagree, however, with the majority’s “preemption of the field” analysis and therefore cannot embrace the reasoning of the majority opinion.
I do not agree that the State’s preemption of a field of activity for regulatory purposes in and of itself deprives a municipality of the power to levy taxes on businesses operating within that field. In City of Pittsburgh v. Allegheny Valley Bank of Pittsburgh, 488 Pa. 544, 412 A.2d 1366 (1980), a majority of this Court as then constituted reasoned that the City of Pittsburgh’s Business Privilege Tax as applied to banks impermissibly impinged upon an area preempted by the Commonwealth. In my dissenting opinion in that case, I drew a distinction between regulation of a field and a municipality’s power to tax business within that field:
Today’s opinion of the Court correctly states that the state legislature intended to “exclusively occupy the state banking field.” At 1369, emphasis added. This observation, however, does not compel the conclusion that the legislature also intended to deprive municipalities of their statutory power to levy taxes applicable to all businesses within the municipality. The Pittsburgh Business Privilege Tax does not intrude upon the state’s exclusive domain of bank regulation, it merely requires banks located within the City of Pittsburgh to pay the same that every other business in Pittsburgh pays.
Id., 488 Pa. at 556-557, 412 A.2d at 1372 (Nix, J., joined by Eagen, C.J.) (footnotes omitted, emphasis in original).
Rather than employ the City of Pittsburgh majority’s preemption analysis, I urged an approach which looks to the legislative grant of local taxing power:
*226Since the language of the Local Tax Enabling Act expressly gives the City of Pittsburgh the “power to levy, assess and collect taxes upon any and all subjects of taxation ... which the Commonwealth has power to tax but which it does not tax or license,” an option which has been exercised by the City of Pittsburgh by ordinance, the effect of today’s decision is to infer from bank regulatory enactments an exemption from the city’s business privilege tax. This result plainly contravenes the rule that a statutory provision purporting to exempt persons and property from taxation must be strictly construed. 1 Pa.C.S.A. § 1928(b)(5); Bd. of Revision of Taxes of Philadelphia v. United Fund of Philadelphia Area, 11 Pa. Cmwlth. 201, 314 A.2d 530 (1973).
Id., 488 Pa. at 561, 412 A.2d at 1375 (footnote omitted).
In the instant case, unlike City of Pittsburgh, supra, such an analysis leads to the conclusion that the City of Harrisburg’s Business Privilege Tax may not be imposed upon a malt and brewed alcoholic beverage distributor. Section 3 of the Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, § 3, 53 P.S. § 6903, provides:
If, subsequent to the passage of any ordinance or resolution under the authority of this act, the General Assembly shall impose a tax or license fee on any privilege, transactions, subject or occupation, or on personal property or on sales of admission to places of amusement or on sales or other transfer of title or possession of property taxed by any such political subdivision hereunder, the act of Assembly imposing the State tax or license fee thereon shall automatically vacate the ordinance or resolution passed under the authority of this act as to all taxes accruing subsequent to the end of the current fiscal year of such political subdivision. It is the intention of this section to confer upon such political subdivision the power to levy, assess and collect taxes upon any and all subjects of taxation, except as above restricted and limited, which the Commonwealth has power to tax but which it does not tax or license, subject only to *227the foregoing provision that any tax or license shall automatically terminate at the end of the current fiscal year of the political subdivision. (Emphasis added.)
The clear language of section 3, when applied to the subject of the manufacture, sale and distribution of malt and brewed beverages, compels the conclusion that the Local Tax Enabling Act does not authorize municipal taxation of that activity. This subject is one that the Commonwealth has exercised its power to tax, license and collect licensing fees. See Act of April 12, 1951, P.L. 90, art. IV, § 431 et seq., as amended, 47 P.S. § 4-431 et seq.; Act of May 5, 1933, P.L. 284, § 1 et seq., as amended, 47 P.S. § 103 et seq. Thus, by the terms of the Local Tax Enabling Act, a municipality is not authorized to levy a business privilege tax on a malt and brewed beverage dealer. |
9,645,580 | 2023-08-22 21:29:05.452728+00 | Zappala | null | ZAPPALA, Justice,
concurring.
Reluctantly and with trepidation, knowing its logical convolution, I join the Court’s judgment that the Business Privilege Tax of the City of Harrisburg may not be applied to the Appellant Wilsbach Distributors, Inc. because of the comprehensive legislation by which the General Assembly has pre-empted the field of alcoholic beverages. I have serious doubts about the rationale of City of Pittsburgh v. Allegheny Valley Bank of Pittsburgh, 488 Pa. 544, 412 A.2d 1366 (1980), which blurred the lines between the regulatory/police power and the taxation power to find that legislative pre-emption of the former supported an inference of pre-emption of municipal action in the latter. The Court has, I am afraid, cast the appropriate analysis from its moorings and left cases such as these to be decided by standardless, unstructured judicial fiat.1 See, Allegheny *228Valley Bank, 488 Pa. at 557, 412 A.2d at 1372 (Nix, J., dissenting). Mr. Justice, now Chief Justice, Nix, dissenting, aptly addressed the deficiencies of this “field pre-emption” approach, 488 Pa. at 556, 412 A.2d at 1372. Mr. Justice Flaherty presently revives the “historic separation” of these powers in his dissent. Dissenting opinion at 230, n. 1 (Flaherty, J., dissenting). Nevertheless, Allegheny Valley Bank stands as the law of the Commonwealth and the case at bar presents no opportunity to overrule it.
Although I recognize the distinctions between regulating the banking business and the business of selling alcoholic beverages pointed out by the Appellees and Mr. Justice Flaherty, in the framework of the Allegheny Valley Bank “analysis” I am not persuaded that these distinctions make a difference. Because I would find it unjust to permit an isolated industry or two to continue to reap the benefit of Allegheny Valley Bank, I am unable to join the members of the Court who would foreclose that concededly tenuous rationale from these Appellants and others to whom it might apply. As the difficulty arises out of the necessity of discerning legislative intent, if the result in any particular case proves flawed or unworkable, we may trust the General Assembly to correct our erroneous interpretation.
McDERMOTT, J., joins in this concurring opinion.
. Compare Liberty Bell Racing Association v. City of Philadelphia Tax Review Board, 86 Pa.Cmwlth. 83, 483 A.2d 1063 (1984), where the court enumerated many sections of the Harness Horse Race Meeting Corporations Act in concluding that the legislature had pre-empted the field so as to invalidate Mercantile and General Business Taxes as applied to race tracks, with the present case where the court stated simply, "Suffice it to say that the Banking Code is not the Liquor Code and Allegheny Valley is distinguishable on that ground alone.” 81 Pa.Cmwlth. at 252, 473 A.2d at 1127 (footnote omitted). |
9,645,581 | 2023-08-22 21:29:05.458885+00 | Flaherty | null | FLAHERTY, Justice,
dissenting.
The majority holds that the legislature has adopted a regulatory scheme over the alcoholic beverage industry that pre-empts the field of taxation to the exclusion of most other taxation by local governmental agencies. For the following reasons, I dissent.
The majority’s view rests on this Court’s decision in City of Pittsburgh v. Allegheny Valley Bank, 488 Pa. 544, 412 A.2d 1366 (1980) (hereinafter “Allegheny Valley Bank ”), which held that the legislature’s comprehensive regulation of the banking industry precluded the imposition by the City of Pittsburgh of a local tax on any function of the national and state banks within the city. The majority *229believes that the same result is required here due to the legislative regulation of the malt and brewed beverage distribution industry. I disagree.
In Allegheny Valley Bank this Court considered the stated purpose of the regulatory enactments governing the banking industry, as expressed in the legislature’s delegation of power and duties to the Banking Department, to be indicative of the regulatory concern and purpose of the enactment. So viewed, the express legislative regulatory scheme for the banking industry emanates from a primary concern for the financial soundness of banking institutions, in order to afford the greatest possible safety to depositors, creditors and shareholders, and maintain public confidence in the institutions. Department of Banking Code, Act of May 15, 1933, P.L. 565, § 1 et seq., as amended, § 202, 71 P.S. § 733-202. It was thus concluded that local taxation was inconsistent with the stated purpose and invalidly impinged upon the responsibility of the Banking Department. Allegheny Valley Bank, supra 488 Pa. at 553, 412 A.2d at 1370.
Thus, the holding of Allegheny Valley Bank is primarily attributable not to the degree of state regulation of the banking industry, as is stated by the majority, but to the nature of the industry regulated, and the goals inherent in the regulation of such an industry. Local taxation necessarily and unavoidably impinges upon and jeopardizes the subject of the regulation in the specific area of concern, the financial soundness of banking institutions, thus giving rise to the holding of this Court that the local taxation of banks created a “direct burden” upon the banking industry in contravention of the manifest legislative intent to maintain the soundness of banks. Id.
When compared to the legislative enactment regulating the malt beverage industry, the difference in focus is apparent. The expressly stated purpose of the Liquor Code, supra, as set forth in Section 104(c) is “to prohibit the manufacture of and transactions in ... malt or brewed beverages ... except by and under the control of the [liquor *230control] board as herein specifically provided ...,” 1 47 P.S. § l-104(c). Likewise, the general power and duty conferred to the Liquor Control Board, relevant to this case, is to control the manufacture of and commerce in malt and brewed beverages, 47 P.S. § 2-207(b). Thus, it becomes clear that the legislative concern is the exercise of control over commerce in a commodity, without any suggestion of concern for the financial soundness of the entities necessarily regulated.
Additionally, a pervasive concern crucial to the Allegheny Valley Bank decision was the concept of a unified state wide regulation of a financial institution with an eye to the best interests of the public at large and tending to be exclusive of local concerns. That intent is not evident with regard to the regulation of the malt and brewed beverage industry which is indeed pursued with a view to the impact of the industry upon localities. Section 437(f) of the Liquor Code provides that the combined number of distributor’s and importing distributor’s licenses shall not exceed a ratio of one license for each fifteen thousand inhabitants of the county in which the licenses are issued, 47 P.S. § 4 — 437(f). Legislative concern for the regulatory impact upon the locality is evidenced also by the establishment of local option, the means by which a municipality may, by a majority vote of its electors, determine that no licenses for the distribution or retail sale of liquor, alcohol or malt and brewed beverages shall be granted by the Liquor Control Board, 47 P.S. § 4-472.
Thus, I do not perceive any indication in the state’s regulation of malt and brewed beverage distribution comparable to that of the regulation of the banking industry which evidences an intention on the part of the legislature to exclude local taxation as improperly impinging upon the state regulated industry. Because the stated purpose of *231the regulatory scheme is not jeopardized or burdened by local taxation, local taxation is not inconsistent with the legislature’s objective of maintaining control over the commerce in the regulated commodity. Accordingly, so long as the local tax imposed is valid under the Enabling Act, it should be upheld. Because of its disposition of the case, the majority does not address the question of whether the Enabling Act permits the imposition of a local tax on the liquor industry, but since I would hold that legislature did not intend to preclude local taxation, I proceed to address the question of whether the Enabling Act permits such taxation.
Section 2 of the Enabling Act delegates to municipalities the power to
levy, assess and collect or provide for the levying, assessment and collection of such taxes as they shall determine on persons, transactions, occupations, privileges, subjects and personal property within the limits of such political subdivisions ...
53 P.S. § 6902. Pursuant to this delegation, the City’s Business Privilege and Mercantile tax was enacted which, as applied to Wilsbach taxes at a rate of one and one-half mills per $1000 of gross volume of business conducted within the territorial limits of the City, up to a maximum tax of $3000. The City tax, by its own definition, is a tax upon the “privilege” of doing business within the territorial limits of the City and is measured by the gross receipts of the business.
The concept of a business “privilege” tax was reviewed in F.J. Busse Co. v. Pittsburgh, 443 Pa. 349, 279 A.2d 14 (1971) and was upheld generally as a proper municipal enactment under the Enabling Act. However, Wilsbach challenges not the general validity of the tax but its application to an importing distributor of malt and brewed beverages, arguing that it constitutes a tax invalidly duplicitous of other state taxes and license fees impacting its business operations. Wilsbach relies upon Section 2(1) of the Enabling Act which establishes an exclusion from the legisla*232ture’s broad delegation of taxation power and which provides, in pertinent part:
Such local authorities shall not have authority by virtue of this act:
(1) To levy, assess and collect or provide for the levying, assessment and collection of any tax ... on a privilege, transaction, subject, occupation or personal property which is now or does hereafter become subject to a State tax or license fee;
53 P.S. § 6902(1) (emphasis supplied).
Wilsbach argues that two state taxes, the Malt Beverage Tax, imposed by the Malt Beverage Tax Law, Act of May 5, 1933, P.L. 284, § 1 et seq., as amended, 47 P.S. § 103 et seq. (hereinafter the “Malt Beverage Tax”) and the general six percent sales tax levied pursuant to the Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, § 101 et seq., as amended, 72 P.S. § 7101, et seq. (1985 Supp) (hereinafter “Sales Tax”) as well as a state license fee imposed by section 439(c) of the Liquor Code, supra, bar the imposition of the City’s tax.2
*233In addressing the question whether a local enactment taxes the same “privilege, transaction, subject, occupation or personal property which is now or does hereafter become subject to a State tax or license fee,” as prohibited by Section 2(1), the “incidence” of the allegedly duplicitous tax is examined. Commonwealth v. National Biscuit Co., 390 Pa. 642, 136 A.2d 821 (1957). The incidence of a tax embraces 1) the subject matter of the tax, 2) the measure of the base, i.e., the base or yardstick by which the tax is applied, F.J. Busse Company v. Pittsburgh, supra 443 Pa. at 357, 279 A.2d at 18; Commonwealth v. National Biscuit Co., supra 390 Pa. at 652, 136 A.2d at 826-827, and occasionally, 3) an identification of the party subject to the tax, Mellon Square Garage, Inc. v. Public Parking Authority of Pittsburgh, 442 Pa. 229, 232, 275 A.2d 654, 656 (1971).
Under these “incidence” criteria, the “subject” of the City tax, as stated in the ordinance and accepted as a valid exercise of the taxation power in F.J. Busse v. Pittsburgh, supra, is the general “privilege,” under Section 2(1), of doing business in the city. Its “measure” is the gross receipts of the business and the party legally responsible for payment of the tax is the party engaged in business, here, Wilsbach.
The Malt Beverage Tax is thus distinguishable from the City tax on all three bases of incidence: the subject of the Malt Beverage tax, though not clearly identified by the Act, appears to be a “transaction,” under Section 2(1), of a manufacturer’s sale of malt or brewed beverage for use in the Commonwealth, whether the manufacturer is inside or outside the Commonwealth, 47 P.S. § 105(a), the measure of the tax base is a volume of beverage manufactured and sold by the manufacturer, Id., and the party legally responsible for the tax is the manufacturer,3 47 P.S. § 105(c). Accord*234ingly, I perceive no duplicity of taxation violative of Section 2(1).
Next, appellant points to the Sales Tax, Tax Reform Code of 1971, supra, which imposes upon “each separate sale at retail” a tax of six percent of the purchase price. 72 P.S. § 7202(a).
The “subject” of a sales tax is a “transaction” under Section 2(1), i.e., a sale at retail, Mellon Square Garage, Inc. v. Public Parking Authority of Pittsburgh, supra 442 Pa. at 232, 275 A.2d at 656; Blauner’s Inc. v. Philadelphia, 330 Pa. 342, 345, 198 A. 889, 891 (1938) whereas the subject of the City tax is the “privilege” under Section 2(1) of conducting business in the locality. On this dissimilarity, it is apparent that the City” privilege” tax does not breach Section 2(l)’s prohibition against taxing a “transaction” already subject to a state tax. Moreover, the measure of the tax is dissimilar, for in the case of the Sales tax, it is the purchase price, whereas the City tax is calculated on a “gross receipts” basis. Additionally, the party subject to the Sales Tax is the party making the purchase, with the importing distributor, who acts as a vendor, being responsible as the “collector” and remitter of the tax to the Commonwealth. 72 P.S. § 7202(a). Again, I perceive no violation of Section 2(1).
Finally, the state’s imposition of an annual license fee of $900 upon an importing distributor under Section 439(c) of *235the Liquor Code, 47 P.S. § 4-439(c) and the related $20 application fee for annual license renewal under Section 439(h) of the Liquor Code, 47 P.S. § 4-439(h), is asserted as barring the imposition of the City tax. Assuming that there may exist duplicity in that the Liquor Code provision imposing a license fee is upon a “privilege” under Section 2(1), see Pennsylvania Liquor Control Board v. Publicker Commercial Alcohol Co., 347 Pa. 555, 560, 32 A.2d 914, 917 (1943), the question is whether the City tax, which also taxes a “privilege,” is imposed upon a privilege already subject to a state license fee and thus is within the prohibition of Section 2(1).
The state license fee is for the privilege of conducting a specific type of business, distribution of malt and brewed beverages. This is distinguishable from the City tax which is a tax upon the general privilege of conducting business within the City, not on the specific privilege, as is licensed by the state, of selling a regulated commodity.
That two distinct privileges may exist and are separately taxable, one by the state and one by the locality, was established in Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 57 A.2d 849 (1948) which upheld the imposition of a city privilege tax on entities also subject to a tax on foreign corporations for the separate privilege of conducting business in the Commonwealth “in corporate form”. Id., 358 Pa. at 457, 57 A.2d at 850. Here, there are two distinct taxable privileges, one taxed by the state for the privilege of engaging in malt and brewed beverage distribution and one taxed by the City for the privilege of engaging in business within the territorial limits of that city. Thus no duplicity prohibited by Section 2(1) is present.
Accordingly, because the Business Privilege and Mercantile Tax imposed by the City of Harrisburg is consistent with the legislature’s regulation of the malt and brewed beverage distribution industry and because the tax is not duplicative under Section 2(1) of any State tax or license fee upon the same “privilege, transaction, subject, occupation or personal property,” 53 P.S. § 6902(1), I would affirm the *236decision of the Commonwealth Court upholding the validity of the tax.
HUTCHINSON, J., joins this dissenting opinion.
. The legislative regulation of this industry is expressly a police power enactment, 47 P.S. § l-104(a), which, in view of the historic separation of the police and taxation powers, is a prima facie indication of legislative intent not to intrude upon a locality’s power to impose a tax under the Enabling Act.
. Wilsbach seeks to rely upon United Tavern Owners of Philadelphia v. Philadelphia School District, 441 Pa. 274, 272 A.2d 868 (1971) in which a sales tax imposed by the Philadelphia School District upon sales of liquor and malt and brewed beverages by retail-type establishments was held invalid under a provision similar to that in issue here, i.e. the Sterling Act, Act of August 5, 1932, P.L. 45, as amended, 53 P.S. §§ 15971-15973. Because the Sterling Act and the instant Enabling Act are virtually identical in wording and intendment, the same case law has been applied to both.
However, because of the division of the Court in United Tavern Owners, the result there reached is of no avail to Wilsbach. In United Tavern Owners, the leading opinion announcing the judgment of the court was written by then Mr. Justice O’Brien with Mr. Chief Justice Bell and Mr. Justice Roberts concurring in the result only. No opinion purporting to speak for more than two justices appears and the two-justice opinion is a dissenting opinion. Thus, the result reached in United Tavern Owners, of striking down the local tax, is binding as precedent only if the case is factually identical to the instant case. It is not.
The local tax imposed in United Tavern was a ten percent tax on the sale of liquor and malt and brewed beverages in hotels, restaurants, taverns and clubs within the City of Philadelphia. The local tax in instant case is a privilege tax upon the gross receipts of all businesses operating within the City of Harrisburg imposed for the privilege of *233doing business in that City and, accordingly, on that crucial factual distinction alone, the result reached in United Tavern Owners holding invalid the local tax is without value to appellant Wilsbach.
. Wilsbach argues that because sales of beverage to unincorporated organizations of armed forces personnel are exempt from the Malt Beverage Tax and because Wilsbach is thus "reimbursed" by the *234manufacturer for Malt Beverage Tax paid on beverage subsequently sold by Wilsbach to such associations, the true “incidence” of the tax is upon Wilsbach, the importing distributor, not upon the manufacturer.
However, it is not relevant that the Malt Beverage Tax is, in effect, "included” in the price paid by Wilsbach to a manufacturer upon Wilsbach’s purchase of the beverage. The Malt Beverage Tax Act, as well as regulations promulgated by the Department of Revenue under the Authority of the Section 113 of that Act, expressly provide that such refunds shall be made by the Department of Revenue to the manufacturer upon the manufacturer’s affidavit and proof, 47 P.S. § 112(b) & (c), 61 Pa.Code §§ 74.33, 74.32. In the event of delinquency in payment, the penalty sanction established by the Act is directed against the manufacturer, 47 P.S. § 105(a.l) and on these criteria, the incidence of the tax is clearly upon the manufacturer. Tax Review Bd. v. Esso Std. Division, 424 Pa. 355, 358, 227 A.2d 657, 658 (1967). |
1,516,657 | 2013-10-30 06:32:58.116138+00 | Davis | null | 726 S.W.2d 134 (1987)
Frank Elam GARRISON, III, Appellant,
v.
The STATE of Texas, Appellee.
No. 192-85.
Court of Criminal Appeals of Texas, En Banc.
March 11, 1987.
*135 Michael Byck, Lawrence B. Mitchell (on appeal only), Dallas, for appellant.
Henry Wade, Dist. Atty., and John D. Nation and Mike Hasse, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
W.C. DAVIS, Judge.
A jury convicted appellant of aggravated robbery and assessed punishment at forty-eight years' confinement. The Dallas Court of Appeals affirmed the conviction in an unpublished opinion. Garrison v. State, No. 05-83-01350-CR (delivered December 18, 1984). We granted appellant's petition for discretionary review in which he challenges the Court of Appeals' holding that probable cause existed for his warrantless arrest and that, therefore, his confession was properly admitted as the fruit of a lawful arrest. Appellant also contends that the court's charge to the jury at the guilt-innocence stage of trial is fundamentally defective because of an improper definition of "knife." We granted his petition to address both issues.
The facts surrounding appellant's arrest are necessary to a review of his contention that probable cause to arrest was not shown at trial. The complainant testified that she stopped at a store in Richardson on her way to work on May 10, 1983. It was about 12:55 p.m. when she got back into the van she was driving and continued on her way to work. Appellant, who had been hiding in the back of the van, ran toward the complainant. He carried a knife in his hand, had a stocking mask over his face, and ordered her to stop the van. After taping a stocking over her head and taping her wrists together, appellant pulled the complainant's pants down to her knees. The complainant convinced him that she was menstruating so he told her to roll over on her stomach and he unzipped his pants and rubbed his penis against her anus. Appellant then rummaged through the complainant's purse and took some money. He drove the van for a few minutes, removed the tape and mask from the complainant's wrist and face, and then left the van. The complainant then drove to her office immediately, arriving at 1:15 p.m.
Jo Ann Bensinger, a co-worker of the complainant's, testified that the complainant arrived at work on May 10, 1983, at about 1:15. She was very upset. Appellant's hearsay objection as to what the complainant said to Bensinger was sustained. Bensinger called the police and "told them that one of my coworkers had just arrived at the office and had had a problem on her way into work." Bensinger also told police that the complainant told her the attacker was a white adult male, *136 wearing a stocking cap, blue t-shirt, blue jeans and was of stocky build. Bensinger said the police came out and talked to the complainant and her that afternoon, although she did not say what time.
Officer John Paul Barnes testified that at about 1:15 p.m. on May 10, 1983, he was dispatched on a suspicious person call to the south alley of the 600 block of Cambridge Drive. The suspicious individual was described as wearing a stocking over his head, a blue shirt and blue jeans. This was the same description given by Bensinger when she called the police. At trial Barnes did not detail why this individual was a "suspicious person."
Five or ten minutes after receiving the call, Barnes was in the specified area and saw appellant, who fit the description given, except he was not wearing a stocking over his head. Appellant was jogging down the street, which, because he was not wearing jogging clothes and because it was raining, Barnes thought was "kind of funny." Barnes stopped his car and told appellant he wanted to talk to him for a minute. Appellant said "sure" and went over to the car. Barnes asked him where he was going and appellant replied, "Nowhere." Barnes asked him who he was and appellant gave him his Texas driver's license. Barnes told appellant to sit on the curb while he did some investigating. Appellant became very nervous, "almost jumping up and down." He told Barnes he had to go and reached to grab his driver's license from Barnes. Barnes again told him to sit on the curb and appellant said "okay." Barnes then gave the dispatcher the information on the driver's license and asked for a warrant check. He drove a block or so away to where his back-up unit was and turned around to find that appellant had left.
Barnes radioed the dispatcher that he had stopped the described person, who had then disappeared. Appellant's hearsay objection as to what the dispatcher then informed Barnes was sustained.
Barnes drove by appellant's house but did not find him. He then met with the complainant and talked to her "about an offense committed against her."
Detective K.D. Mackenzie, Jr., of the Richardson Police Department, testified that he was in his office at the police station on May 10, 1983, at about 1:00 p.m. when he heard a "possible rape call" on the police radio and heard that Officer Barnes "had a suspect that he believed to be the suspect involved in the rape case," who was appellant. Mackenzie started to drive to the location Barnes had named when he heard Barnes say that the suspect had run southwest from the location. Mackenzie knew appellant and headed toward his house. Mackenzie was driving in an alley behind appellant's house when he saw appellant jump out of some bushes and run. Mackenzie ordered appellant to stop but he ran and hid behind an air conditioner. Mackenzie found him and arrested him.
Appellant requested a Jackson-Denno[1] hearing before the trial, at which the voluntariness of the confession was the only issue. The arrest was not addressed either factually or legally. During trial the State sought to introduce appellant's confession into evidence.
MR. BYCK: [defense counsel] To which we will object for reasons heretofore stated, Your Honor, that this confession is a result of an illegal arrest and is involuntary.
THE COURT: I recall the grounds that you stated outside the presence of the jury. I understand your grounds now. Do you have further grounds?
MR. BYCK: No, Your Honor, no further grounds.
THE COURT: Objection is overruled. State's Exhibit 1 is admitted into evidence.[2]
*137 Once appellant objected to the arrest as an illegal warrantless arrest, the burden shifted to the State to prove its legality. See Russell v. State, 717 S.W.2d 7 (Tex.Cr.App.1986). Because the court overruled appellant's objection the State never specifically proved the legality of the arrest under Chapter 14, V.A.C.C.P., including probable cause.
The test of probable cause for a warrantless arrest is
`Whether at that moment the facts and circumstances within the officer's knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense.'
Muniz v. State, 672 S.W.2d 804 (Tex.Cr. App.1984) quoting Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). Where several officers are involved the sum of the information known to the cooperating officers at the time of arrest is to be considered in determining probable cause. Woodward v. State, 668 S.W.2d 337 (Tex.Cr.App.1984) (opinion on rehearing).
There are several significant gaps in the record as to the collective information known by the police when they arrested appellant. The complainant did not say what she told Bensinger. Bensinger said she stated to police only that her coworker "had had a problem." There are no facts showing what the police knew or that the police even knew an offense had been committed by the described individual. Barnes testified that he received a "suspicious person call" for an individual matching the description which Bensinger told police. Barnes properly stopped appellant pursuant to the suspicious person call. Barnes learned appellant's name and address but nothing further, and appellant left after Barnes drove down the block. We do not know what the dispatcher told Barnes after he radioed appellant's name and address. Mackenzie testified that he joined the pursuit for appellant after hearing about a "possible rape call" and hearing that Barnes had a suspect involved in the rape case. After pursuing the fleeing appellant, Mackenzie arrested him.
The record does not show what "reasonably trustworthy information" was known to police to show why they believed appellant had committed an offense. In fact, Mackenzie's reference to a rape call is the only indication as to what offense they believed appellant had committed and there is no testimony as to where this information came from or its basis, so that it could be considered "reasonably trustworthy information."
The record simply does not contain the base or foundation knowledge so as to warrant a prudent man in believing that appellant had committed an offense. Missing is what the complainant said to Bensinger, the specifics of what Bensinger told the dispatcher, and the subsequent information relayed by the dispatcher to Barnes. We know that Bensinger's characterization of the "problem" relates to the offense detailed by the complainant. However, the police did not, as far as the record shows, know anything about the offense at the time they arrested appellant, other than that the complainant "had had a problem" on her way to work with a man fitting appellant's description. Such information *138 may have warranted the stop of appellant, but the record lacks any further information to demonstrate probable cause to believe appellant had committed an offense.
Earley v. State, 635 S.W.2d 528 (Tex.Cr. App.1982) wherein the warrantless arrest was illegal is somewhat analogous. The deputy arrested the defendant in response to a report made by a citizen over a C.B. radio, but the record of the case did not reveal the content of what the citizen told the deputy. See also Law v. State, 574 S.W.2d 82 (Tex.Cr.App.1978) and Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978), both cited by the Court of Appeals, in which the record showed much more information. In Law, supra, the officers had spoken to the victim of the crime and knew the specific offense which had been committed. Within minutes after speaking to the victim, the police located the described vehicle and the defendants were arrested. In Tarpley, supra, the security officer informed the police that the credit card used by the defendants was stolen. In both cases the police knew exactly what acts had occurred to constitute an offense and knew descriptions of the defendants.
In the instant case the officers do not detail on the record why appellant was a "suspicious person." The record does not reflect that any of the officers knew what acts appellant had done to authorize an arrest. A description and information that appellant was one with whom another "had had a problem" does not constitute probable cause to believe appellant had committed an offense. See also Muniz, supra, and Marrs v. State, 647 S.W.2d 286 (Tex.Cr. App.1983) wherein the officers knew that a burglary had been committed at a particular house, knew the description of the suspects, and upon stopping the suspects in the area learned from inconsistent explanations and from the suspect's appearance further facts substantiating the witnesses' information. The officers knew details about the offense and the suspects from what witnesses told them. No such information is presented in the record of the instant case. Cf. Blackmon v. State, 644 S.W.2d 738 (Tex.Cr.App.1983).
The record in the instant case simply does not reveal that the police knew the necessary information about the offense so as to show probable cause to believe appellant had committed an offense. Whether or not appellant's confession made after this illegal arrest should have been admitted must be decided by the Court of Appeals. The case will be remanded to the Court of Appeals to consider the admissibility of the confession and, if necessary, the harmfulness of its improper admission.
We next consider appellant's contention that the definition of "knife" included in the court's charge to the jury was incorrect and constitutes fundamental error.[3] Appellant contends that the improper definition relieved the State of the burden of proving an element of its case. We disagree.
The trial court included the following definitions in the abstract portion of the charge:
By the term `deadly weapon' is meant a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury, or, anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
`Knife' means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.
The indictment and the application paragraph of the charge state that robbery was committed by use of a deadly weapon, to-wit: a knife. The trial court included the definition of knife that is found in V.T.C.A., Penal Code, § 46.01(7). Sec. 46.01 states: "In this chapter", and then lists definitions, including the one for "knife." Such language appears to limit the definitions to use with Chapter 46 offenses. Therefore, the trial court should not have included such definition in an aggravated robbery charge. It is difficult to characterize *139 the definition as "error" because it is not that the definition does not fit the weapon used by appellant, but simply that the specific definition is set out for use with Chapter 46 offenses. In any event, assuming the mistake is "error" we must determine whether or not it deprived appellant of a fair trial. Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984). In accord with Almanza, supra, we review the evidence elicited at trial and the argument given.
The complainant testified that appellant approached her and exhibited at her side a pocket-knife with a two-inch blade. Detective Steve Upchurch testified that the complainant told him appellant placed the knife near her head or throat and ordered her to drive to a particular spot. Upchurch also said such knives as that described[4] could be used in such a manner and means as to inflict serious bodily injury.
Most of defense counsel's argument to the jury discussed the deadly weapon aspect of the case. Counsel argued that "a short two-inch blade" was not a deadly weapon as shown by the manner of its use in the instant case. Defense counsel argued that the knife was not used in a threatening manner but was merely "displayed" to the complainant. Defense counsel used the definition of deadly weapon as a frequent reference point and he repeatedly used the definitional language in arguing the manner of use was not shown to be that of a deadly weapon.
The State responded to defense counsel's argument and discussed appellant's exhibition of the knife, also emphasizing the use and intended use.
Both sides based their arguments almost entirely on the deadly weapon issue. Both sides referred to the definition of deadly weapon and repeated its language. No reference was made to the definition of "knife" and no issue was made that the weapon was not a knife. The only issue during argument was whether the knife, as used, was a deadly weapon as that was defined in the charge.
The definition of knife does not include or state that it is a deadly weapon. The application paragraph required the jury to find that appellant committed a robbery and that a knife was used and that knife was a deadly weapon. The inclusion of a definition for knife simply required the jury to find that the weapon used was a knife as defined in the charge and also to find that that knife was a deadly weapon as defined in the charge. Nothing in the charge relieves the jury of a duty to find the elements as set out in the application paragraph with reference to their definitions in the abstract portion of the charge. The judge did not instruct the jury that the knife was a deadly weapon as an matter of law. See Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1983) (opinion on second motion for rehearing). Thus, the inclusion of a definition of knife did not relieve the State of proving that such "knife", as described, was a "deadly weapon."
In light of the evidence showing that a knife was involved, in light of the arguments made by both sides directed to the deadly weapon issue, and in light of the charge requiring the jury to find that robbery was committed by use or exhibition of a "deadly weapon, to-wit: a knife," we do not believe appellant was denied a fair trial. The jury was directed by the charge, the evidence, and the argument that one of the elements that the State had to prove and the jury had to find in order to convict appellant was use or exhibition of a deadly weapon. The ground of error is overruled.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The case is remanded to the Court of Appeals for consideration of whether admission of appellant's confession was proper and whether such admission, if improper, was harmful.
CLINTON, TEAGUE and WHITE, JJ., concur in the result.
ONION, P.J., and McCORMICK, J., dissent.
NOTES
[1] 378 U.S. 368, 84 S. Ct. 1774, 2 L. Ed. 2d 908 (1964).
[2] Until this point, appellant had never mentioned the arrest in any context. His objection may have been somewhat misleading since he included "illegal arrest" as one of his objections "heretofore stated," which it certainly was not. However, the objection was clearly stated and from the record it appears that the court apparently understood it and overruled it. The State thus, never had the opportunity to prove probable cause for the warrantless arrest because the issue was never raised until this point and then appellant's objection was immediately overruled by the court. Unfortunately, in overruling the objection to the admission of the confession on the basis of the illegality of the arrest, the court did not give, nor did the State seek, an opportunity to elicit testimony about probable cause.
In connection with this, the State argues that appellant should be estopped from complaining about probable cause because he successfully objected during trial to hearsay evidence apparently pertinent to showing probable cause. The State is wrong for several reasons, but, particularly because the hearsay objection was a good objection when made during the guilt-innocence stage. Probable cause had not been contested at this point. Once it was contested by a contention of an illegal arrest the hearsay would be admissible to prove such. But, until that point the hearsay was not admissible at guilt-innocence. Murphy v. State, 640 S.W.2d 297 (Tex. Cr.App.1982), cited by the State, is not applicable. It pertains to a defendant's requested jury charge concerning evidence that the defendant prevented from getting before the jury.
[3] Appellant's only argument is one of fundamental error because he did not object to the charge on the ground now urged.
[4] The knife used by appellant was never recovered. |
9,645,582 | 2023-08-22 21:29:08.07838+00 | Beck | null | BECK, Judge:
This appeal raises certain basic questions which must be addressed in formulating a plan of equitable distribution. The first question is what property is included in the marital estate; what is the value of each asset in the marital estate. Subsumed under this question is the date on which each marital asset will be valued. The second question relates to the division of the marital estate between the husband and wife. And the third question relates to alimony, costs, and attorneys’ fees. The appellant is husband Spero G. Diamond1 and appellee/cross-appellant is wife Helen K. Diamond. They both appeal the court’s denial of their exceptions to the plan for equitable distribution of marital property. We affirm.
The parties married in September 1958, and separated in January 1975. Prior to the marriage husband was a partner in a family real estate development and construction firm. In September 1957, the business was incorporated in its present form, S.G. Diamond, Inc., and husband was *105issued one hundred percent of the stock. Throughout the marriage and the period of the parties’ separation, husband was the sole owner of the company.
Before the parties’ separation in 1975, the corporation acquired substantial real estate assets, all in the name of the corporate entity. Prior to separation both parties had contributed equally to the business. Husband owned and operated the company, while wife in addition to maintaining the marital home and being the primary caretaker of the children, was actively involved in the business which was located in the marital home. After separation husband continued to conduct the business, improve properties purchased prior to the parties’ separation and acquire new ones.
Wife filed a complaint in divorce2 and requested equitable distribution of the parties’ marital property, alimony, alimony pendente lite, counsel fees, costs and expenses. Hearings were held before the master almost nine years after the date of separation. The trial court adopted the master’s recommendations, and in its amended decree of divorce, it directed the equitable distribution of the parties’ marital property as follows:3 husband was ordered to transfer one-half of the outstanding shares of the stock of S.G. Diamond, Inc. to wife, with the provision that the corporation would redeem the stock from wife in exchange for title to the marital home and a corporate note in the amount of $225,000. The principal on the note was to be paid within five years with interest payable at ten percent (10%) per annum. The trial court also endorsed the master’s report in denying wife’s claims for alimony, counsel fees, costs and expenses.
Before addressing the parties’ numerous contentions, we note that an appellate court may reverse an order determining equitable distribution of marital property only for an *106abuse of discretion by the trial court. Winters v. Winters, 355 Pa.Super. 64, 512 A.2d 1211 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986); Baraff v. Baraff, 338 Pa.Super. 203, 487 A.2d 925 (1985). Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather, we apply the legislative guidelines of the Code, to the record to determine whether or not the hearing court has abused its discretion. Sergi, 351 Pa.Super. at 591, 506 A.2d at 930; Barnhart v. Barnhart, 343 Pa.Super. 234, 494 A.2d 443 (1985).
This court has recently stated that “[a]n abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence____ However, an abuse of discretion will be found by this court if the trial court failed to follow proper legal procedure or misapplied the law.” Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985); see also Sergi, 351 Pa.Super. at 591, 506 A.2d at 930. With this standard of review in mind we turn to the claims raised by the parties.
I.
The first series of issues centers on what is marital property, what is the value of each asset in the marital estate and the date on which each marital asset will be valued.
Section 401(e) of the Code defines marital property as:
(e) ... all property acquired by either party during the marriage except:
(4) Property acquired after separation until the date of divorce____
Pa.Stat.Ann. tit. 23, § 401(e)(4) (Purdon, Supp.1986) (emphasis added).
A
We will begin by examining three assets which were acquired after the parties separated: husband’s residence *107on Butler Street; a sales agreement for Beaufort Ridge; and equity in property at Mercy Crest.
Wife argues that the Butler, Beaufort and Mercy Crest properties should be considered marital property and directs our attention to Section 401(f) of the Code:
All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether property is held individually or by the parties in some form of co-ownership____ The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).
Pa.Stat.Ann. tit. 23, § 401(f) (Purdon, Supp.1986) (emphasis added).
Wife argues that Section 401(f) mandates a broad, comprehensive definition of marital property. Consequently, she maintains that in order to meet the requirements of Section 401(e)(4) and thereby rebut the Code’s presumption of marital property, the husband must show not only that the three properties at issue were acquired after the parties separated, but also that the husband did not use marital assets to obtain them. We cannot accept wife’s reading of the statute.
We are aware that in enacting the Divorce Code the Legislature’s expressed purpose was to “effectuate economic justice between parties who are divorced,” and that we must consider this legislative intent in construing the provisions of the act. Pa.Stat.Ann. tit. 23, §§ 102(a)(6), (b) (Purdon, Supp.1986). Nonetheless, we must also adhere to established principles of statutory construction which dictate that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” The Statutory Construction Act of 1972, 1 Pa.Con.Stat.Ann. § 1921(b) (Purdon, Supp.1986); construed in Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982). Moreover, a court cannot insert words into a statutory provision where the Legislature has failed to supply them. See Worley v. *108Augustine, 310 Pa.Super. 178, 456 A.2d 558 (1983); Peabody v. Tucker, 4 Pa.Commw. 609, aff'd, 447 Pa. 398, 289 A.2d 438 (1972); see also Patton v. Republic Steel Corp., 342 Pa.Super. 101, 492 A.2d 411 (1985).
Section 401(e)(4) of the Code explicitly provides that a showing that “property [has been] acquired after separation” is sufficient to counter the presumption of marital property contained in Section 401(f). This court has recently articulated the principle that “[t]ime of acquisition is the factor that the Legislature mandates the courts’ use in determining whether property is a marital asset.” Anthony v. Anthony, 355 Pa.Super. 589, 594, 514 A.2d 91, 93 (1986). Indeed, the date of separation has repeatedly been identified as the pivotal event, the end point of the period in which marital assets may be acquired. Sergi, 351 Pa.Super. at 591, 506 A.2d at 930; LaBuda, 349 Pa.Super. at 532, 503 A.2d at 976; Hurley v. Hurley, 342 Pa.Super. 156, 492 A.2d 439 (1985); Braderman, 339 Pa.Super. at 196, 488 A.2d at 618; King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984).
Contrary to the wife’s assertion, Section 401(e)(4) does not place an additional burden on a party attempting to rebut the Code’s presumption of marital property, i.e. it is not necessary to present rebuttal proof that no marital assets were used to obtain post-separation assets. We also decline to insert such a requirement into the unambiguous wording of the statute. This court may not under the guise of construction intrude upon the exclusive province of the Legislature. See Peabody, 447 Pa. at 404, 289 A.2d at 441.
We are not concerned that assets in the marital estate used for post-separation acquisitions will not be calculated as marital property. It is clear that assets in or to which the marital estate is entitled at the time of separation are includable as marital property. It is, therefore, irrelevant in determining the marital estate that those assets are later used in post-separation acquisitions. Anthony, 355 Pa. Super. 589, 514 A.2d 91.
*109Nonetheless, we must add to our discussion the established principle that the time a spouse actually receives an asset is not controlling as to whether the asset is marital property. The crucial time is when the right to receive the asset actually accrues. As this court has stated:
[I]t matters not when a spouse receives property, but whether the right to receive such property accrues during the marriage. To the extent that a property right “accrues” or “arises” during the marriage, then the spouses expect they will enjoy the property when they receive it.
LaBuda, 349 Pa.Super. at 533, 503 A.2d at 976 (emphasis added) (lump-sum retirement payment accrued prior to separation but received after separation properly included as a marital asset); cf. Hurley, 342 Pa.Super. at 161, 492 A.2d at 442 (personal injury damages not marital property where claim arising during marriage was unliquidated until after separation).
The record in this case supports the trial court’s decision to exclude the Butler, Beaufort and Mercy Crest properties from the marital estate. Wife merely asserts that husband failed to show that the assets were not acquired by using marital funds. We therefore conclude that the trial court acted properly in identifying these three properties as the husband’s separate property.
B
Also in dispute is post-separation property located in Ventnor, New Jersey that the husband obtained by inheritance. Husband argues that he inherited the Ventnor property from his mother after separation and this it is not marital property. We agree and point out that the court classified the Ventnor property as a separate property. Pa.Stat.Ann. tit. 23, § 401(e)(4) (Purdon, Supp.1986). The court included the property in the husband’s separate estate. Because the Ventnor property increased the value of the husband’s separate estate, the court awarded wife a greater share of the marital estate.
*110We find the wife’s contention that she is entitled to share in the property meritless. Wife maintains that prior to separation husband’s mother had orally agreed to sell the property to the parties, but that the mother later devised it to her son. Wife claims that she had acquired an interest in the asset by expending substantial time and effort to improve it in reliance upon the agreement. The wife’s theory of ownership is unsupported in the record and in law. We, therefore, find correct the court’s disposition of the Ventnor property.
C
During marriage the parties acquired a property known as East Elmwood on which the husband constructed an apartment building after the parties separated. The court valued this property at $12,000, as of the date of separation. At that time the property was unimproved land. Wife contends that the court erred in depriving the marital estate of the increase in value due to the post-separation construction of the apartment building. The wife’s expert testified that the apartment building increased the value of the property to $160,000.
We conclude that the construction of the apartment building is such a substantial change that it must be considered a new asset acquired after separation. The mere fact that the building is located on land which is marital property, does not convert the building itself into a marital asset.
We cannot establish a hard and fast rule that will provide clear standards as to the nature and degree of change necessary for property to be considered a separate post-separation acquisition. The trial courts will have to make this determination on a case-by-case basis. It is clear, however, that an unimproved lot is different from and separable from a lot with an apartment house. By analogy, a sculptor’s clay may be a marital asset, but the statue the sculptor crafted from the clay may not be a marital asset if her artistic work was done after separation. Accordingly, we *111find that the trial court was correct in excluding the apartment building from marital property.
D
The second marital property on which husband made post-separation improvements is the Sherwood Forest land. Prior to separation, this property consisted of six acres of unimproved land. After separation husband subdivided the land and built roads; he also constructed houses on three lots.4
The court correctly concluded that like the East Elmwood apartment building, the three homes are such a substantial improvement of the property that they constitute the acquisition of post-separation assets. Therefore, Section 401(e)(4) mandates that the homes be defined as separate property; and not valued in the marital estate.
The improvements to the remaining Sherwood Forest land were not extensive. The increase in value due to subdivision of the acreage and building roads does not amount to the acquisition of a new, distinct asset which must be defined as separate property. Therefore, the court properly characterized the remaining land as marital property.5 The court valued the remaining Sherwood Forest land as of the time of separation.
At issue is whether the court abused its discretion in valuing the remaining Sherwood Forest land on which no major improvements were made as of the date of separation. Although the Divorce Code establishes the date of separation as the demarcation point to identify marital *112property, it does not specify the time at which the marital assets must be valued. The choice of a date of valuation is therefore left to the sound discretion of the trial court. As this court has stated:
[W]e do not attempt ... to establish a valuation to be used in every situation. To recognize a specific valuation date as a matter of law would deprive the trial court of the necessary discretion required to effectuate economic justice.
Sergi, 351 Pa.Super. at 594, 506 A.2d at 932, Winters, 355 Pa.Super. at 69-70, 512 A.2d at 1214.
The record supports the court’s conclusion that the increase in value was attributable, inter alia, to the husband’s post-separation efforts. We, therefore, conclude that the court did not abuse its discretion in establishing the valuation date as the date of separation.6
II.
The next set of issues husband raises relates to the trial court’s almost equal division of the marital property and the weight accorded to various factors in the distribution allocation. Husband maintains the trial court abused its discretion. We find meritless husband’s arguments that: the court incorrectly valued properties other than those discussed supra at the date of hearing; the court failed to take into account the tax consequences to husband of the distribution; the court improperly weighed the witnesses’ testimony; the court neglected to consider husband’s avail*113able income; and the court made inconsistent and unsupported findings of fact regarding husband’s ability to acquire capital assets and income and made unsupported findings regarding the pre-marital value of the corporation.
A
We find the court did not err in valuing certain property as of the date of hearing. The husband argues that because his efforts resulted in the increase in value, the separation date was the proper date for valuation.
We have examined the record and conclude that the court considered husband’s post-separation efforts in its distribution of the marital property. Thus, the court properly considered:
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker.
Pa.Stat.Ann. tit. 23, § 401(d)(7) (Purdon, Supp.1986) (emphasis added).
Although the husband’s contribution weighs in favor of establishing valuation at separation date, that one factor alone does not determine the proper date. The court also gave weight to the fact that husband would have the “opportunity for future acquisition of capital assets in light of his business expertise.” (Record at 7a). Thus, the court properly considered another important factor:
(5) The opportunity of each party for future acquisitions of capital assets and income.
Pa.Stat.Ann. tit. 23, § 401(d)(5) (Purdon, Supp.1986). While husband may disagree with the relative weight the court chose to accord to the husband’s contribution and the future financial prospects of the parties, the court did not abuse its discretion. It properly considered the factors provided in section 401(d) of the Code. As this court has previously noted:
*114[T]here is no simple formula by which to divide marital property. The method of distribution derives from the facts of the individual case. The list of factors of 401(d) serves as a guideline for consideration, although the list is neither exhaustive nor specific as to the weight to be given the various factors. Thus, the court has flexibility of method and concomitantly assumes responsibility in rendering its decisions.
Semasek v. Semasek, 331 Pa.Super. 1, 11, 479 A.2d 1047, 1052 (1984); rev’d, on other grounds, 509 Pa. 282, 502 A.2d 109 (1985).
The master correctly valued each asset separately and properly considered the 401(d) factors in making distribution. In equitably distributing a complex marital estate, the master must be permitted flexibility in order to do economic justice.
B
We are also not persuaded by husband’s argument that the trial court failed to consider the tax consequences of the award. Although Section 401(d) of the Code does not specifically identify tax consequences as a factor in equitable distribution; see Pa.Stat.Ann. tit. 23, § 401(d) (Purdon, Supp.1986), it is necessary in distributing assets of a marriage to take into account the impact of the tax laws. The husband correctly asserts that potential tax burdens should be considered in order to “[m]ake the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.” Pa.Stat.Ann. tit. 23, § 102(a)(1) (Purdon, Supp.1986). The record reveals the master considered possible tax implications of his award (Record at 25a). We see no error in the trial court’s adoption of the master’s recommendation and its treatment of the tax issue.
Husband also claims that the master erred in ignoring the testimony of a loan officer and in accepting wife’s expert’s valuation of a number of the marital assets. As we have previously stated, the factfinder is free to accept or reject *115the testimony of a witness, Baraff, 338 Pa.Super. at 210, 487 A.2d at 929. There is no indication in the record that the trial court abused its discretion by adopting the valuations and facts as found by the master.
Similarly, we find meritless husband’s assertion that the equitable distribution award was inequitable because his income would not permit him to meet his expenses and, at the same time, pay his wife $22,500 per year to repurchase her stock in the corporation. Husband claims that although he has numerous real estate assets, his income is limited. We agree with the trial court’s analysis of this claim:
Mr. Diamond claims that he has available income of $27,907 a year, and expenses of about $6,490. The addition of $22,500 in interest costs thus will produce negative expendable income for him, he asserts. We are not persuaded by these figures for they ignore the undistinguishable dual identity of Mr. Diamond as himself and as S.G. Diamond, Inc.
106 Dauph. County 200, 210 (1985).
Husband also contends that the findings regarding his ability to acquire assets in the future and the pre-marital value of the corporation are unsupported by the evidence. We disagree. We find the trial court did not abuse its discretion in not accepting husband’s assertion of his “unspectacular past business record”. The trial court based its conclusion on testimony relating to the variety and value of the real estate holdings he accumulated to date.
In addition, we find no abuse of discretion in the trial court’s assessment of the pre-marital value of husband’s corporation. Husband claims the company was worth $60,-675 at the time of the marriage, while the trial court set the value at $10,000. The record reveals conflicting evidence regarding the amount in the corporate checking account, husband’s contribution to the initial capitalization of the business and the value of the corporate real estate holdings at the time of marriage. Clearly the trial court acted within its discretion.
*116III.
Finally, we address wife's claims that the trial court erred in denying her requests for costs, expenses and attorney’s fees and alimony. Wife asserts that husband should be held responsible for at least half of her attorney’s fees.
In support of this contention, wife argues that her high legal costs are due in part to dilatory and obdurate conduct of husband’s counsel. Although she attributes high legal fees to husband’s discovery delays, the court properly attributed the legal fees to the complex nature of the case.
The wife also argues that under the equitable distribution award, husband retains substantial separate property. However, counsel fees are not “to be awarded to either spouse automatically____ Actual need must be shown in order to justify an award ... so that both parties are placed ‘on a par’ in defending their rights.” Dech, 342 Pa.Super. at 23, 492 A.2d at 44; citing Hoover v. Hoover, 288 Pa.Super. 159, 161-62, 431 A.2d 337, 338 (1981). The trial court properly concluded that wife had not established actual need for payment of her counsel fees. We find no abuse of discretion in the trial court’s denial of counsel fees. See Ganong v. Ganong, 355 Pa.Super. 483, 492, 513 A.2d 1024, 1029 (1986). Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985).
Nor do we believe that the trial court abused its discretion in denying alimony. Manbeck v. Manbeck, 339 Pa.Super. 493, 489 A.2d 748 (1985). At the time of hearings before the master, wife was fifty and husband was sixty-four. The trial court found both parties capable of continuing employment. Also as a result of the equitable distribution award, the court found wife would receive in excess of $30,000 annual income. See Pa.Stat.Ann. tit. 23, § 501(b) (Purdon, Supp.1986).
We agree with the trial court that the wife can provide for her current needs. The trial court divided the marital property in such a way as to enable the parties to maintain *117the standard of living they had enjoyed during the marriage.
Accordingly, we affirm.
WIEAND, J., files concurring opinion.
. There are actually two appellants involved in this appeal: the individual Spero G. Diamond and the corporation S.G. Diamond, Inc. For the purposes of this appeal they are essentially one entity. Although dealings in the marital property were under the umbrella of the corporation, it is clear that the assets were marital assets. As the lower court observed, husband and the corporation were as inseparable as Ahab and the white whale at the conclusion of Moby Dick.
. This appeal is governed by the Divorce Code (“Code”), Act of April 2, 1980, P.L. 63, Pa.Stat.Ann. tit. 23, §§ 101-801 (Purdon, Supp.1986).
. The master valued the marital estate at $556,629 and recommended that it be divided equally between the parties.
. The Master referred to this property as “Tract 2” which included the lots that are the subject of wife’s claim: Nos. 45-48, 61, 73, 51, 53 and 88. (Record at 12a, 30a).
. Husband claims that lots 50, 53 and 88 in Sherwood Forest were incorrectly characterized as marital property, and that the entire value of these lots should have been excluded from equitable distribution under Section 401(e)(5) because they were sold prior to the commencement of the divorce action in 1981. He failed however to raise this issue in his exceptions to the Master’s Report, and as a result it is waived. Dech v. Dech, 342 Pa.Super. 17, 24 n. 10, 492 A.2d 41, 44 n. 10 (1985); Rosen v. Rosen, 328 Pa.Super. 93, 476 A.2d 470 (1984).
. Husband contends that corporation liabilities incurred post-separation are joint liabilities reducing the value of marital property subject to equitable distribution. He maintains that the increase since separation in a blanket mortgage and the corporation’s accounts payable relate to marital properties. The record, however, demonstrates that the increase in these liabilities resulted from post-separation acquisitions and improvements already discussed which the trial court deemed to be non-marital assets. (Record at 525a, 420-425a, 503-504a, 442a, 468a, 505a-507a). Because these were post-separation liabilities, they were correctly excluded them from the value of the marital estate. Cf. Duff v. Duff, 510 Pa. 251, 253, 507 A.2d 371, 373 (1986) (joint tax liability imposed after separation but arising prior to separation should be charged against marital estate). |
9,645,583 | 2023-08-22 21:29:08.090353+00 | Wieand | null | WIEAND, Judge,
concurring:
Helen and Spero Diamond were married in September, 1958. They separated in January, 1975. An action in divorce was filed on June 23, 1981. Hearings were held on various dates between September 27, 1983 and March 2, 1984. The Master filed his report on April 17, 1985. The trial court dismissed exceptions filed to the report and recommendations of the Master and entered a final decree on September 4, 1985. A review of the record reveals that the task of untangling the parties’ complicated financial affairs was made even more difficult because of the time intervening between separation and final decree. I agree with the majority that the record discloses no abuse of discretion and that the decree of the learned trial judge must be affirmed.
The majority has ably reviewed the various holdings of the trial court, and I do not intend to review again each individual issue which has been raised by appellant. Because my interpretation of Section 401(e)(4) of the Divorce Code, 23 P.S. § 401(e)(4), varies slightly from that of the majority, however, I would offer the following comments.
Section 401(e)(4) expresses the intent of the legislature that “marital property” available for distribution between the spouses does not include “[pjroperty acquired after separation until the date of divorce.” The language of the statute is clear and straightforward. Property acquired by either spouse after separation is not marital property and is not available for distribution between the spouses.
In the instant case, the trial court was called upon to apply this statutory language to improvements made to real estate by virtue of the expenditure of time, labor and capital by one of the parties after separation. With respect *118to such improvements, I would hold that they are not “marital property.” I would do so regardless of the nature and degree of change effected by the improvement and regardless of the cost of the improvement. Thus, I agree with the majority that a building erected on a tract of land which was unimproved at the time of separation is clearly not marital property. However, I would apply the same rule without equivocation to improvements made to subdivide a previously undeveloped tract. I would hold that the enhanced value of a previously undivided tract of real estate brought about by engineered plot plans and the installation of streets, curbs, and utility lines, is not marital property if the improvements were made by a spouse after separation. Therefore, I am unable to agree with the majority’s suggestion, at page 111, that “[t]he increase in value due to subdivision of the acreage and building roads does not amount to the acquisition of a new, distinct asset which must be defined as separate property.” In my judgment, the improvements brought about by the subdivision of the Sherwood Forest land after separation were not marital property.
The trial judge determined that the value of the Sherwood Forest tract should, in any event, be determined as of the date of separation, and the majority, interestingly enough, affirms. The majority affirms, however, on the grounds that the trial judge did not abuse his discretion by selecting that date for evaluating the same. See: Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986). I would affirm because, in my judgment, the improvements made by subdividing the tract after separation were not marital property. To the extent that the majority suggests otherwise, I respectfully disagree.
As a general rule, any appreciation in the value of marital property which is brought about by the efforts of one of the spouses after separation is not marital property, and it should not be distributed as such. Such a rule will “have the advantage of allowing the parties to get on with their separate lives as quickly as possible without being required *119to calculate the effect of each expenditure of time or capital upon a later decree of distribution.” Sergi v. Sergi, supra, 351 Pa.Superior Ct. at 601, 506 A.2d at 935 (Concurring Opinion by Wieand, J.).
If the application of such a rule should, in an unusual case, cause inequity, the inequity can be corrected by the manner in which the court distributes assets which do constitute marital property. This, too, the legislature made provision for. Thus, in Section 401(d) of the Divorce Code,1 the legislature provided that in making distribution of marital property, a court shall consider, inter alia, the following: “(10) [t]he economic circumstances of each party at the time the division of property is to become effective.” This power is sufficiently broad to lodge in trial judges the flexibility which will enable them to do economic justice between parties whose marriage is being terminated after a long separation.
. 23 P.S. § 401(d). |
1,516,665 | 2013-10-30 06:32:58.221517+00 | Legg | null | 916 F. Supp. 501 (1996)
William J. LEE
v.
Jan L. PFEIFER, et al.
Civil No. L-95-1180.
United States District Court, D. Maryland.
February 15, 1996.
*502 *503 E. David Hoskins, Towson, MD, for plaintiff.
Russell H. Gardner and Patricia A. Sumner, Baltimore, MD, for defendants.
MEMORANDUM
LEGG, District Judge.
Now pending is plaintiff's Motion to Remand. The Court must decide whether an employee's assault and intentional infliction of emotional distress claims against a co-worker and an employer are preempted by section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). Plaintiff, William Lee, Sr., the employee, was covered by a collective bargaining agreement. For the reasons stated below, the Court shall grant the motion in part and dismiss the complaint in part.
I. PROCEDURAL BACKGROUND
On February 27, 1995, Lee filed suit in the Circuit Court for Baltimore County against Martin Marietta Corporation ("Martin Marietta"), his employer, and Jan L. Pfeifer, a former supervisor. The complaint includes three counts. Count I asserts a claim of assault against Pfeifer. Count II asserts a claim of intentional infliction of emotional distress against Pfeifer. Count III alleges that Martin Marietta is vicariously liable because Pfeifer's acts were committed within the scope of his employment or were ratified by Martin Marietta.
Martin Marietta filed a Notice of Removal asserting that this Court has original jurisdiction pursuant to 28 U.S.C. § 1331 (federal question). Martin Marietta bases its removal on the "complete preemption doctrine." *504 Section 301 of the LMRA preempts a plaintiff's state law claims if they "relate to" a collective bargaining agreement. See Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1261-62 (4th Cir.1989) (discussing the complete preemption doctrine). Plaintiff moved to remand on the ground that resolution of the state law claims does not require interpretation of the collective bargaining agreement.
After examining the parties' briefs, the Court held a hearing[1] on November 30, 1995. Because it was unclear whether Lee's factual allegations were sufficient to support liability on any theory, the Court requested further briefing. Lee submitted a supplemental affidavit setting out in greater detail the facts underlying the three counts in the complaint. The issue is now ripe for decision.
II. LEGAL STANDARD
The goal of § 301 preemption is to promote the uniform interpretation of collective bargaining agreements. McCormick v. AT & T Technologies, Inc., 934 F.2d 531, 538 (4th Cir.1991), cert. denied, 502 U.S. 1048, 112 S. Ct. 912, 116 L. Ed. 2d 813 (1992). Congress believed that uniformity would be promoted by interpreting collective bargaining agreements according to a body of federal, rather than state, common law. Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S. Ct. 571, 7 L. Ed. 2d 593 (1962); Martin Marietta Corp., Aero & Naval Sys. v. Maryland Comm'n on Human Relations, 38 F.3d 1392, 1397 (4th Cir.1994). Congress therefore assigned the federal courts the responsibility of interpreting such agreements using national, federal standards. Preemption is "complete" when a plaintiff's state law claim is within the ambit of § 301. The claim is both removable to federal court and conflicting state laws are supplanted by federal law. See McCormick, 934 F.2d at 534.
Complexity arises because § 301 does not displace state law entirely in the labor relations context. Section 301 displaces only those state claims that must be resolved by interpreting the applicable collective bargaining agreement. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988); see Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S. Ct. 1904, 1911, 85 L. Ed. 2d 206 (1985) ("Of course, not every dispute concerning employment, or tangentially involving a provision of a collective bargaining agreement, is preempted by § 301 or other provisions of federal labor law."). "`[A] State may provide [substantive rights] to workers when adjudication of those rights does not depend upon the interpretation of [collective bargaining] agreements.'" McCormick, 934 F.2d at 535 (quoting Lingle, 486 U.S. at 409, 108 S.Ct. at 1883).
The difficulty arises in determining when interpretation of the collective bargaining agreement is (or is not) required. Although the Supreme Court enunciated a test for preemption in Lingle, the circuits vary in their approach to the test.[2] Because of the difficulty in determining when interpretation of a collective bargaining agreement is required, the Fourth Circuit has adopted a methodology that avoids this inquiry when the underlying claims are legally insufficient. Under Childers, a federal district court may first determine "whether the claimant has alleged a colorable state-law cause of action." 881 F.2d at 1262. In making this inquiry, the Court is not limited to the face of the complaint, but may undertake a reasonable, *505 albeit circumscribed, inquiry into the facts.[3] If the plaintiff does not state an actionable state claim, then the claim may be dismissed on the merits prior to engaging in the preemption analysis. Id.
As explained by the Fourth Circuit, the process of examining the apparent merits of the claim prior to engaging in preemption analysis is efficient. Id. "Courts, whether federal or state, do not exist merely to resolve claims; they exist to decide lawsuits." Id. By dismissing an unsound suit at the threshold, the court spares the litigants the time and effort of continuing to litigate a legally insufficient claim.[4]Id.
Once the court is satisfied that the plaintiff presents a valid state law claim, the court next must determine whether that claim is preempted by § 301 of the LMRA. The central inquiry in preemption analysis is whether the interpretation of a collective bargaining agreement would be required to resolve the claims. Lingle, 486 U.S. at 413, 108 S.Ct. at 1885. The Fourth Circuit has elaborated upon this standard, holding that "[s]tate tort claims are preempted where reference to a collective bargaining agreement is necessary to determine whether a `duty of care' exists or to define `the nature and scope that duty, that is, whether, and to what extent, the [employer's] duty extended to the particular responsibilities alleged by [the employee] in h[is] complaint.'" McCormick, 934 F.2d at 536 (quoting International Bhd. of Electrical Workers v. Hechler, 481 U.S. 851, 862, 107 S. Ct. 2161, 2168, 95 L. Ed. 2d 791 (1987)). If interpretation of the collective bargaining agreement is required, the state law claims are preempted and the suit properly remains in federal court.
III. ANALYSIS
A. VIABILITY OF STATE LAW CLAIMS
Plaintiff's claims grow out of a dispute between Lee and his former supervisor, Pfeifer. On July 5, 1994, Lee filed a grievance against Pfeifer for harassment allegedly occurring on June 23, 1994. (Compl. ¶ 6.) Lee complained that Pfeifer forced him to work overtime and also refused to provide him with personal leave. (Defs.' Opp'n to Mot. for Remand, Ex. B.) Pfeifer, as Lee's first level supervisor, dismissed the grievance, asserting that his actions were justified by Lee's poor performance and attendance. (Defs.' Opp'n to Mot. for Remand, Ex. C.) Lee contends that Pfeifer, angered by the grievance, assaulted Lee and subjected him to the intentional infliction of emotional distress. Lee also contends that Martin Marietta ratified Pfeifer's misconduct.
1. COUNT I: ASSAULT
In Maryland, the tort of assault consists of two basic elements. First, the plaintiff must prove that he was threatened by a defendant who possessed the apparent present ability to carry out that threat. See Paul M. Sandler and James K. Archibald, Pleading Causes of Action in Maryland, 79-80 (1991); Continental Casualty Co. v. Mirabile, 52 Md.App. 387, 449 A.2d 1176, 1183 (1982) ("An assault is any unlawful attempt *506 to cause a harmful or offensive contact with the person of another or to cause an apprehension of such a contact."). Second, the defendant's actions must have raised in the plaintiff's mind an apprehension of imminent bodily harm. See Sandler & Archibald, supra, at 79-80. Although the first element is measured by a standard of reasonableness, the second element is measured by an entirely subjective standard.[5]
As stated in the complaint, the gravamen of plaintiff's assault claim concerns an incident which occurred in the early morning hours of August 18, 1994. According to Lee,[6] Pfeifer walked towards Lee "with a look of rage on his face, ... stopped in front of [Lee] and glared at the Plaintiff." (Compl. ¶ 17.) In his affidavit, Lee asserts that Pfeifer "got nose to nose" with him. (Supplemental Mem. in Supp. of Mot. to Remand, Ex. A ¶ 15.) Pfeifer then "continued to hover around the Plaintiff glaring at the Plaintiff." (Compl. ¶ 19.) Ultimately, Lee called security and Pfeifer left the area. (Compl. ¶¶ 20, 21.)
Even as further developed in his affidavit, Lee's assault claim is tenuous. Lee does not allege the Pfeifer raised his fist as if to strike or, by word or deed, threatened to hit him. Nevertheless, the court cannot conclude, on the basis of a truncated Childers factual inquiry, that Lee's claim is so weak that it must be dismissed. A reasonable jury might conclude that an assault occurred if Pfeifer menaced Lee by coming "nose to nose" with him.[7]
2. COUNT II: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Four elements are essential to state a claim for intentional infliction of emotional distress in Maryland:
(1) The conduct must be intentional or reckless;
(2) The conduct must be extreme and outrageous;
(3) There must be a causal connection between the wrongful conduct and the emotional distress;
(4) The emotional distress must be severe.
Harris v. Jones, 281 Md. 560, 380 A.2d 611, 614 (1977). Additionally, the context of an employment relationship, with its inherent opportunities for abuse of authority, "is a factor to be considered when analyzing whether an employer's behavior was so outrageous that he or she has committed the tort of intentional infliction of emotional distress." Kentucky Fried Chicken Nat'l Mgmt. Co. v. Weathersby, 326 Md. 663, 607 A.2d 8, 15 (1992).
The employment relationship, however, "may not always inure to the employee's benefit in claims of intentional infliction of emotional distress." Id. The Weathersby court explained:
The workplace is not always a tranquil world where civility reigns. Personality conflicts and angst over disciplinary actions can be expected. Even a certain amount of arbitrary nastiness may be encountered *507 at all levels in all occupations; this is a fact of life we must accept as readily as we recognize that employers and employees on the job interact differently than do friends at a summer picnic.
Id. at 16. Furthermore, the Maryland Court of Appeals has emphasized that "the tort is to be used sparingly and only for opprobrious behavior that includes truly outrageous conduct." Id. at 11.
According to Lee, the following occurred:[8]
(1) On July 5, 1994, the day Lee filed his grievance, as Lee punched out at the time clock Pfeifer stood near Lee and "stated over and over again `Boo-hoo-hoo, we all have problems. Boo-hoo-hoo, we are all big cry babies.'" (Compl. ¶ 7.)
(2) Shortly thereafter, Lee overheard Pfeifer enter Bill Bradley's office "ranting and raving" regarding the grievance filed by Lee. (Compl. ¶¶ 8, 9.) Upon reporting these actions to Mr. Bethel, Pfeifer's supervisor, Lee was told that Bethel did not want to get involved. (Compl. ¶ 10.)
(3) After filing the grievance, Pfeifer was laid off as a plumber but was put on the second shift as a janitor. (Compl. ¶ 11.) Pfeifer's shift was also temporarily changed such that the shifts of the two men overlapped only between 11:30 p.m. and 12:30 a.m. (Compl. ¶ 12.) "At the end of Plaintiff's shift on August 15 and 16, 1994, Defendant stood at the door with his arms folded and glared at the Plaintiff as he left the building." (Compl. ¶ 14.)
(4) On the night of August 17-18, 1994, the alleged assault occurred. When Lee left work early in the morning on August 18, "Pfeifer again was waiting for him at the exit." (Compl. ¶ 23.)
(5) Later that same day, Lee complained of Pfeifer's actions to the Employer Relations Department. (Compl. ¶ 24.) In response, Martin Marietta threatened to take action against Lee for calling security the previous night. (Compl. ¶ 24.)
(6) The next day, August 19, Lee attended a meeting with supervisors of Martin Marietta "who made it clear that they considered Defendant, Pfeifer's actions to be appropriate and that the Plaintiff would be punished for having called security on Defendant, Pfeifer." (Compl. ¶ 25.)
(7) Later that same day, Lee heard that he was going to be fired on Monday, August 22, 1994. (Compl. ¶ 26.) At this point, Lee allegedly succumbed to a nervous breakdown. (Compl. ¶ 27.)
Under a Childers analysis, accepting Lee's allegations as true, the Court concludes Lee does not state a claim for intentional infliction of emotional distress. To be actionable, the conduct alleged must be "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Harris, 380 A.2d at 614 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). Although Pfeifer's alleged conduct might be condemned as immature, petty, and unprofessional, it does not rise to the degree of outrageousness necessary to state a claim.[9]
3. COUNT III: MARTIN MARIETTA'S LIABILITY
Under Maryland law, the doctrine of respondeat superior provides for three theories of employer liability for an employee's torts. "[A] master is liable for the acts *508 which his servant does with the actual or apparent authority of the master, or which the servant does within the scope of his employment, or which the master ratifies with the knowledge of all material facts." Globe Indem. Co. v. Victill Corp., 208 Md. 573, 119 A.2d 423, 427 (1956). The plaintiff's complaint alleges liability under both a "scope of employment" theory and a ratification theory.
An employer is vicariously liable for the torts of its employee when the employee committed the tort within the scope of his employment. See, e.g., Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467, 470 (1991). In Sawyer, the Court of Appeals of Maryland reviewed the law defining "scope of employment" in the context of an assault and battery case. The court summarized: "The general test set forth in numerous Maryland cases for determining if an employee's tortious acts were within the scope of his employment is whether they were in furtherance of the employer's business and were `authorized' by the employer." Id.
The court explained that "`[b]y `authorized' is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master.'" Id. (quoting Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210, 92 A. 478, 479-80 (1914)). The court framed the essential issue as whether the conduct occurred for personal reasons or for the purpose of furthering the employer's business. Thus, even if the incident occurred at work during normal business hours, a supervisor animated by personal concerns would not be acting within the scope of his employment.[10]
The Court must analyze whether Pfeifer's alleged assault occurred within the scope of his employment with Martin Marietta. The Court holds that it did not.
Even under plaintiff's own theory of the case, Pfeifer was acting purely for personal reasons and not in the furtherance of Martin Marietta's business. Lee contends that at the time of the incident, Pfeifer "had absolutely no supervisory responsibility over the Plaintiff." (Compl. ¶ 18.) Furthermore, Pfeifer was not directing Lee to perform a task or otherwise supervising his work.[11] Thus, although the alleged assault occurred on Martin Marietta's property while Pfeifer was working, the incident exceeded the scope of Pfeifer's employment.
Lee also claims that Martin Marietta ratified Pfeifer's actions. Even when the agent has no authority, the principal may later ratify his act, "giving it the same effect as if it had been originally authorized." Citizens Bank of Maryland v. Maryland Indus. Finishing Co., 338 Md. 448, 659 A.2d 313, 320 n. 9 (1995) (quoting Restatement (Second) of Agency § 82 (1958)).[12] Ratification is essentially a retroactive approval and can occur only when the master has "knowledge of all material facts." Globe Indem. Co., 119 A.2d at 427.
Martin Marietta did not ratify Pfeifer's alleged assault. Lee brought his claim to the attention of management.[13] He lodged a complaint with the Employer Relations Department of Martin Marietta concerning *509 Pfeifer's behavior and attended a meeting with various supervisors. (Compl. ¶¶ 24, 25.) Lee's essential complaint, however, is that management did not believe his version of the facts. An employer can only ratify an action if he knows of the material facts concerning that action and specifically approves. That did not occur here.
B. PREEMPTION ANALYSIS
Because the Court shall dismiss counts II and III of the complaint, the only claim subject to preemption analysis is the claim for assault against Pfeifer (count I). Lee's assault claim does not require interpretation of the collective bargaining agreement and therefore is not preempted by § 301 of the LMRA.
Maryland law defines the tort of assault. Interpretation of the collective bargaining agreement is not required to determine either whether a duty of care exists or to define the nature and scope of that duty.[14] Because an assault is an illegal action, any provision of the contract which purported to give management the right to assault Lee (in the manner complained of by Lee) would be illegal.[15]Allis-Chalmers Corp., 471 U.S. at 212, 105 S.Ct. at 1912 (holding that "§ 301 does not grant the parties to a collective bargaining agreement the ability to contract for what is illegal under state law").
Martin Marietta argues that interpretation of the collective bargaining agreement is required because the agreement allows Martin Marietta control over "the management of plants ... [and] the direction of the working force." (Mem. in Supp. of Defs.' Opp'n to Mot. for Remand, Attach. A at 4.) This argument is flawed. The provision does not, indeed cannot, establish or define a duty concerning assault of an employee. The provision is irrelevant to the central inquiries under Lee's assault claim.[16]
Finally, the expansive language of the cited provision should not be broadly construed to relate to every interaction between an employer and an employee. "To hold otherwise would mean every tort relating to the work place would be preempted a result McCormick neither supports nor requires." Jackson, 992 F.2d at 1326. Therefore, the Court holds that § 301 of the LMRA does not preempt Lee's state claims for assault.
IV. CONCLUSION
Lee's claim for intentional infliction of emotional distress is meritless, and shall be dismissed with prejudice. Lee's claims against Martin Marietta are likewise legally insufficient, and shall be dismissed with prejudice. Resolution of Lee's claim for assault against Pfeifer does not require interpretation of the collective bargaining agreement, and thus the claim is not preempted by § 301 of the LMRA. This Court does not have jurisdiction over the state law claim Lee asserts, and therefore the Court shall remand the assault claim to the Circuit Court for Baltimore County by separate order.[17]
ORDER
For the reasons stated in a Memorandum of even date, the Court hereby
DISMISSES Count II of the complaint with prejudice;
DISMISSES Count III of the complaint with prejudice;
*510 GRANTS IN PART plaintiff's Motion to Remand;
REMANDS Count I of the complaint to the Circuit Court for Baltimore County; and
DIRECTS the Clerk to close the case.
IT IS SO ORDERED.
NOTES
[1] The telephonic hearing was recorded on audiotape in chambers.
[2] Compare, for example, Galvez v. Kuhn, 933 F.2d 773 (9th Cir.1991), and Childers, 881 F.2d 1259. In the Fourth Circuit, prior to engaging in the preemption analysis, a court must examine the facts of the case in some manner to determine whether a colorable state claim exists under state law. Childers, 881 F.2d 1259. The Fourth Circuit approach permits the court to "address the validity of the alleged state-law claim during the course of the preemption inquiry," resulting in a "judgment on the merits." Id. at 1262.
In contrast, in the Ninth Circuit the merits of the underlying claim should not be addressed prior to the preemption analysis. Galvez, 933 F.2d at 779. The Ninth Circuit expressly stated that it has no power to deal with the case on the merits unless the state law claim is preempted. Id. at 776.
[3] The Childers court would permit dismissal of a state claim only when the "lack of merit is apparent." Childers, 881 F.2d at 1262. In determining whether Childers' claims were meritless, Judge Wilkinson briefly examined both the elements of the state law claims and the facts supporting those claims. The court in Jackson v. Kimel, 992 F.2d 1318 (4th Cir.1993) similarly evaluated the claims for their merit prior to resolving the preemption issue:
Although the district court granted summary judgment on the basis of § 301 preemption, we will consider whether [the plaintiff] has proffered sufficient evidence to survive summary judgment on her state law claims before addressing whether the claims are preempted. This approach is consistent with Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1263 (4th Cir.1989), where we specifically held that "[t]he § 301 preemption inquiry is predicated on the existence of a colorable state cause of action."
Id. at 1322.
[4] In Childers, the Fourth Circuit examined the entire lawsuit and determined that it was meritless. The court concluded that it was efficient to dispose of the unsound suit rather than remand to the state court where it would inevitably be dismissed, albeit after an additional expenditure of resources. In the subsequent case of Jackson v. Kimel, 992 F.2d 1318 (4th Cir.1993), the Fourth Circuit utilized the Childers approach when fewer than all claims could be finally adjudicated.
[5] See Sandler & Archibald, supra, at 79-80 ("The plaintiff's apprehension of imminent bodily harm is judged by a subjective standard. Consequently, the defendant may be liable for assault even though his actions would not put a person of ordinary courage in such apprehension."); Restatement (Second) of Torts § 27 (1965) ("If an act is intended to put another in apprehension of an immediate bodily contact and succeeds in so doing, the actor is subject to liability for an assault although his act would not have put a person of ordinary courage in such apprehension.").
[6] Although Pfeifer does not dispute that he approached Lee on this occasion, Pfeifer contests Lee's description of this encounter. (Supplemental Mem. in Opp'n to Mot. to Remand, Ex. B ¶¶ 19, 20.)
[7] Although not mentioned in the complaint, Lee alleged in his affidavit that Pfeifer drove at him with an electrical cart. (Supplemental Mem. in Supp. of Mot. to Remand, Ex. A ¶ 4.) Specifically, Lee claims that Pfeifer "started harassing me by driving his electrical cart directly at me and swerving at the last second to avoid hitting me. I was afraid he was going to hit me with the electrical cart." Id. Although Lee raises the issue of assault by electrical cart for the first time in his affidavit, the Court will assume that he is relying upon this allegation as part of his assault claim. The electrical cart incident satisfies the elements of an assault claim and therefore provides an alternative basis for not dismissing this claim.
[8] At the outset it should be noted that Pfeifer denies Lee's factual assertions. (Supplemental Mem. in Opp'n to Mot. to Remand, Ex. B.) The Court will confine its analysis to Lee's version of events and determine whether these incidents, if ultimately proven, state a claim for intentional infliction of emotional distress.
[9] As the Maryland Court of Special Appeals stated, "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" are insufficient to state a claim. Id. Pfeifer's alleged behavior properly falls within this nonactionable category. See Beye v. Bureau of Nat'l Affairs, 59 Md.App. 642, 477 A.2d 1197, 1204-05 (holding claim for intentional infliction of emotional distress "woefully inadequate" and "far short of establishing any of the four elements" when plaintiff alleged his supervisors gave him poor performance ratings, "`threatened to fire him, harassed him and physically assaulted him,'" in addition to passing him over for promotion and deceiving him into resigning), cert. denied, 301 Md. 639, 484 A.2d 274 (1984).
[10] In Sawyer, the court stated:
[P]articularly in cases involving intentional torts committed by an employee, this Court has emphasized that where an employee's actions are personal, or where they represent a departure from the purpose of furthering the employer's business, or where the employee is acting to protect his own interests, even if during the normal duty hours and at an authorized locality, the employee's actions are outside the scope of his employment.
587 A.2d at 471.
[11] Providing "muscle" was not part of Pfeifer's duties. Thus, this case is distinguishable from "bar bouncer" cases, in which a security guard, in the normal course of his duties, bodily restrains or removes patrons if necessary. See, e.g., Market Tavern, Inc. v. Bowen, 92 Md.App. 622, 610 A.2d 295, 312 (1992), cert. denied, 328 Md. 238, 614 A.2d 84 (1992).
[12] "A principal can ratify an act by `a manifestation of an election ... to treat the act as authorized' or by conduct that is `justifiable only if there were such an election.'" Citizens Bank of Maryland, 659 A.2d at 320 n. 9 (quoting Restatement (Second) of Agency § 83 (1958)).
[13] There is no evidence that Lee notified management regarding the alleged electrical cart incident.
[14] See McCormick, 934 F.2d at 536; Jackson v. Kimel, 992 F.2d 1318, 1326 (4th Cir.1993) ("If [the defendant] engaged in the actions which [the plaintiff] has alleged, his actions would be wrongful not because of a duty of care created or defined by the terms of the collective bargaining agreement, but because of the principles of state tort law.").
[15] Some tort claims are preempted because the collective bargaining agreement arguably allows the employer to take certain actions that might otherwise be tortious. For example, the agreement may permit an employer to search workers as they leave the plant or to inspect a worker's locker without first securing permission.
[16] Proof of assault requires an inquiry into Pfeifer's intent, Lee's apprehension, and what occurred at the confrontation. "Interpretation of the [collective bargaining agreement] can hardly help resolve these factual questions." Galvez, 933 F.2d at 778.
[17] The disposition of the Motion to Remand precludes this Court from addressing defendants' Cross-Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. |
9,645,584 | 2023-08-22 21:29:10.951999+00 | Rogers | null | *149ROGERS, Associate Judge:
Appellant Robert Stack was indicted for the second degree murder, D.C.Code § 22-2403 (1981), of Helen Bataineh, who died on June 8, 1983, as a result of a subdural hematoma. According to the government’s theory, Stack caused the fatal hematoma when he struck Bataineh in the face on June 6, 1983. Stack’s defense was that he struck her in self-defense and that the government had failed to establish a sufficient nexus between his action and her death one and one-half days later. The jury found him guilty of the lesser included offense of voluntary manslaughter, D.C. Code § 22-2403 (1981). On appeal, he seeks reversal of his conviction on the grounds that: (1) the in limine limitation of cross-examination of a key government witness violated his Sixth Amendment right to confront witnesses; (2) the jury instructions failed to present fairly the defense theory in violation of his right to a fair trial; (3) the admission of the videotaped deposition of a key government witness, who the government failed to show was unavailable to testify at trial, violated his confrontation rights and Super. Ct. Crim.R. 15; and (4) there was insufficient evidence his blow was the cause of death. We agree that Stack’s first and second contentions require reversal. We also agree that the trial court erred in ruling that a key government witness was unavailable; however, in view of our disposition, we need not decide whether the error was harmless beyond a reasonable doubt. Finally, we hold there was sufficient evidence of causation; accordingly, we reverse and remand for a new trial.
I
On the morning of June 6,1983, while on his way to the hospital for treatment, Robert Stack stopped at James Vaughan’s house where his girlfriend, Rita Morris, lived. Helen Bataineh, the decedent, who sometimes stayed with Morris, was lying on the living room couch. Stack initially remained outside of the house, then went inside, and an altercation developed between him and Bataineh. Bataineh, who had been drinking since the night before, brought two large German Shepherds into the house and went towards Stack with the dogs. Stack was terrified and yelled for Morris’ help. One dog went under a table; Morris took the other dog outside. When Morris returned, she saw Stack take a full swing and slap Bataineh across the left side of the face. The blow knocked Batai-neh to a sitting position on the floor. Stack then kicked her twice in the left rib; Batai-neh looked dazed. Stack stopped hitting Bataineh after Morris told him to “stop hitting her, you’re going to kill her.” He and Morris then left for the hospital. Later that morning, Stack said to Morris, “I guess [Bataineh’s] head hurts now.”1
Around one p.m. Bataineh called a neighbor and the police to report the assault. Officer Lantz testified that Bataineh said she thought some of her ribs were broken. Lantz observed that it was difficult to get information from Bataineh because she lost track of her thoughts easily, although she did not appear to be intoxicated.
An ambulance took Bataineh to Capitol Hill Hospital where she told the emergency room nurse that she had been kicked in the neck and ribs, but did not mention being hit in the face. The examining doctor found no localized tenderness in the neck or bruises or welts in the head or neck, and noted in the medical record “no head trauma.” Chest x-rays revealed five of the eight ribs on Bataineh’s left side were broken. No x-rays or other teste were ordered for her head.
James Vaughan brought Bataineh home from the hospital on June 6 about 7 p.m. That evening he noticed a bruise on the left *150side of Bataineh’s face.2 He and Bataineh remained in the house until the next morning, when Bataineh told Vaughan she felt terrible, but was going to work.
Blair Middleton, for whom Bataineh worked as a live-in nurse’s aid, recounted Bataineh’s activities and deteriorating physical condition during the next two days.3 Joan Park, a cousin of Middleton’s who was staying with him at the time, also described Bataineh’s behavior during this period. Park testified that on June 7 Batai-neh was moving slowly at 8 a.m. and claimed she had been beaten up over the weekend and felt lousy. The next morning, she was still moving slowly, and saying that she did not feel well. She did not do any of the things she normally did in the morning. In addition, her manner of speaking was slow and “sort of drowsy.” Park did not see Bataineh again until after 7:00 when she went upstairs to Bataineh’s bedroom. Bataineh was lying on her stomach, breathing heavily, and Park thought she was sleeping. About an hour later, Park thought Bataineh felt slightly feverish. Less than half an hour later, Park could not hear any breathing and found Bataineh’s body was cold. Middleton told Park to call the police. Bataineh was pronounced dead at 10:57 p.m. that evening.
The government called two expert witnesses, Dr. Michael Bray, who performed the autopsy, and Dr. Vernon Armbrust-macher, who reviewed the medical records, autopsy report, and a tape recording of Bataineh’s voice. The doctors testified that Bataineh’s death was caused by a sub-dural hematoma4 on the right side of her brain: the hematoma had swollen and compressed the brain, eventually causing a hemorrhage within the brain stem which resulted in death. In their opinion, the trauma which had caused the hematoma could have occurred between one and four days before Bataineh’s death. Dr. Bray testified, to a reasonable medical certainty, that the hematoma was consistent with a punch or a kick to the neck on the afternoon of June 6. He estimated that the trauma which caused the hematoma could have occurred as late as 10 p.m. on June 7. Dr. Armbrustmacher testified, in response to hypothetical questions which recounted Bataineh’s activities from June 6 until her death, that, to a reasonable medical certainty, the slap to Bataineh’s face on June 6 was “very consistent” with the type of event required to cause the fatal hemato-ma. Dr. Armbrustmacher thought that the evidence Bataineh was drowsy on June 8 was an ominous sign of increasing intracra-nial pressure. Both doctors opined that the bruise on the lower left side of Bataineh’s jaw, close to her chin, occurred at approximately the same time as the trauma which caused the hematoma. They agreed, however, that a fall or any event causing a sudden, sharp rotation of the head could result in a fatal hematoma. Because of Bataineh’s history of heavy drinking, they expressed caution about ascribing any particular injury as the cause of the hemato-ma, although neither doctor found any evidence of the type of bruises or scrapes which are usually seen when an intoxicated person falls down the stairs.
The defense expert, Dr. Richard Linden-berg, testified that the fatal hematoma was less than two and a half days old and could have begun to form as little as four to six hours before Bataineh’s death. In his opinion, the autopsy report was more consistent with evidence that Bataineh had fallen on June 8, and the fall had caused the hemato-ma, than with evidence that Stack’s slap on June 6 had caused the hematoma. He based his opinion on the absence of edema5 (an indication of age of the injury) in the *151brain, the absence of a notation in the hospital records of head or facial bruises on June 6, and the fact that Bataineh was able to go to work on June 7 and perform the tasks associated with grocery shopping and meal preparation. On cross-examination, Dr. Lindenberg admitted that the bruise on Bataineh’s chin might have been covered by make-up, and that Stack had not told him Vaughan had claimed to have seen the bruise on the night of June 6 or his (Stack’s) slap of Bataineh’s face had knocked her off her feet.6
The defense also called James Calloway, a tenant in Vaughan’s house. He testified that when he came home around ten o’clock at night, Vaughan had told him that Batai-neh had been beaten by Rita Morris’ boyfriend, Frank. Calloway did not notice any injuries on Bataineh’s body.7 He saw Bata-ineh sitting on the floor, and testified that she may have been drinking, and had complained her back hurt. Stack did not testify-
II
Stack contends first that he was denied his Sixth Amendment right to confront witnesses when defense counsel was not allowed to cross-examine Vaughan about his assaults of Bataineh prior to June 5, 1983. He argues the trial judge thereby imper-missibly limited cross-examination which would have shown Vaughan’s bias and motive to fabricate.8
A criminal defendant has a Sixth Amendment right to confront and cross-examine government witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974); Lawrence v. United States, 482 A.2d 374, 376 (D.C. 1984). If the trial court limits that right, and if an error of constitutional magnitude is found, the appellate court must determine whether reversal is required, see, e.g., Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111; Springer v. United States, 388 A.2d 846, 857 (D.C.1978), or whether the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See Delaware v. Van Arsdall, — U.S.-, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also Lawrence, supra, 482 A.2d at 378. Once a trial judge has allowed enough cross-examination on an appropriate issue to satisfy the Sixth Amendment, limitation of further cross-examination will be reviewed for abuse of discretion. See Goldman v. United States, 473 A.2d 852, 856 (D.C.1984); Springer, supra, 388 A.2d at 854. Implicit in this standard is an evaluation of the importance of the subject matter and the witness whom the defendant seeks to cross-examine, measured against the degree of cross-examination permitted. Where the proffered testimony of a witness establishes an element of the offense or affects the core of the defense, the court is more likely to find constitutional error if cross-examination is severely limited on that issue. See Lawrence, supra, 482 A.2d at 377; Goldman, supra, 473 A.2d at 857-58; Springer, supra, 388 A.2d at 855-56.
The government argues that this case is indistinguishable from Beale v. United States, 465 A.2d 796 (D.C.1983), cert. de*152nied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984), because defense counsel failed to link Vaughan’s prior assaults of Bataineh to the pending charges.9 The government also relies on Brown v. United States, 409 A.2d 1093 (D.C.1979), in support of the trial judge’s restriction on the defense to avoid inquiry about assaults which were too remote in time to have caused the hematoma.10 Stack, relying on Davis v. Alaska, supra, 415 U.S. at 316, 94 S.Ct. at 1110, contends that questions relating to the partiality of a witness are always relevant, and that the defense proffer provided a sufficient indication of good faith. Further, he maintains the trial court misapprehended the issue by basing its ruling on Beale and Brown, which did not involve cross-examination of a “crucial” government witness on bias or motive to fabricate.
Vaughan was one of four witnesses who testified that they spent time with Bataineh between the time of her release from the hospital and her death. The defense claimed Stack did not cause the injury which led to Bataineh’s death and that some other person or an accidental fall did. Vaughan’s testimony, therefore, was important.11 Whether it was crucial, however, going to the heart of the defense, depends on whether defense counsel’s proffer included sufficient indicia of the reliability of the evidence that Vaughan hit Bataineh and caused the fatal injury.
At the conclusion of Vaughan’s direct examination, the prosecutor announced that the government would object to any questions about fights between Vaughan and Bataineh that occurred prior to June 5, 1983, and to evidence that the police had come to Vaughan’s house on any prior occasions. The prosecutor argued the questions were impermissible under Beale, supra, 465 A.2d 796, and Hall v. United States, 454 A.2d 314 (D.C.1982),12 because there was no factual predicate indicating that the altercations had occurred during the relevant period and thus they were too remote in time; more than Vaughan’s mere presence had to be shown. Alternatively, the government argued that, even if questions about the prior beatings were relevant, the questions should not be allowed because they would result in jury speculation about what might have happened on Monday night, June 6. The prosecutor also questioned the relevancy to prior altercations of defense questions about the bruise near Bataineh’s chin.
Defense counsel responded13 that Vaughan had told her about the prior beat*153ing himself, that the instant case was distinguishable from Beale and Hall because Vaughan was the only person, other than Bataineh’s employer (Middleton) and Stack, who was with Bataineh during the relevant period, and that medical evidence was expected to establish that the bruise near Bataineh’s chin was “very significant” with regard to the cause of death. Defense counsel also proffered that Rita Morris would testify Vaughan had admitted beating Bataineh in the past and had beaten her after she left the hospital. Morris also would testify that Vaughan became exasperated with Bataineh when she had been drinking.
The trial judge correctly ruled that defense counsel could inquire about the bruise near Bataineh’s chin since the evidence was relevant to the ultimate issue in the case and the proffer was sufficiently reliable. Vaughan was the first person to notice the bruise on the night of June 6. When defense counsel sought to cross-examine Vaughan, no evidence had been introduced to explain the presence of the bruise along the lower left side of Batai-neh’s jaw, near her chin.14 Nor did the evidence suggest that the bruise had appeared during the six hours on June 6 when she was at Capitol Hill Hospital.
The trial judge erred, however, in ruling that defense counsel could question Vaughan only about his assaults of Batai-neh after June 5. The judge viewed evidence of any other assaults as irrelevant unless linked to “the relevant time period,” a period which he did not define but appeared to base on the prosecutor’s claim that evidence of assaults before the weekend of June 5 would be too remote in time. The evidence of Vaughan’s relationship with Bataineh and the fact that he had assaulted her in the past was relevant to the ultimate issue in the case, and might have caused a reasonable jury to conclude there was a reasonable possibility that Vaughan had hit Bataineh on the evening of June 6 either out of exasperation with her drinking or because of other behavior which had provoked him in the past. The government’s theory of causation was based on circumstantial proof of guilt. Vaughan admitted being alone with Batai-neh after her release from the hospital. He alone saw a bruise near her chin which had not been observed before she left the hospital. The defense proffered medical evidence from which the jury could conclude that Stack’s slap of Bataineh’s face had not caused her death. The probative value of the prior assaults testimony went beyond a general suggestion that someone other than Stack could have caused the fatal blow.
Therefore, even assuming the Beale-Brown rule applies, the proffered evidence was admissible; it was not extrinsic to the ultimate issue in the case, it had clear indicia of reliability, and nothing in the record suggests it was likely to confuse or mislead or result in speculation by the jury. To require a greater proffer for the admissibility of such exculpatory evidence would distort Beale and Brown. Brown, on which Beale relied, analyzed the admissibility of exculpatory evidence in terms of the proposition that “the accused in a criminal prosecution has a fundamental right to call witnesses in his own defense,” limited only by the requirement that there be “sufficient indicia that the evidence is reliable.” 409 A.2d at 1097 (citations omitted). The court required no more than that evidence that someone else committed the crime of which the defendant is charged “clearly *154link that other person to the commission of the crime,” and that its probative value be weighed against its prejudicial impact, including its propensity to mislead or confuse the jury. Id. Stack’s proffer established the necessary linkage through Vaughan’s presence with Bataineh on June 6 and a “new,” unexplained injury at that time.
Alternatively, as Stack contends, the evidence of Vaughan’s prior assaults of Bataineh was clearly admissible to show bias and motive to fabricate. See Collins v. United States, 491 A.2d 480, 487 (D.C. 1985) (“well-reasoned” suspicion standard) (citing United States v. Pugh, 141 U.S. D.C. 68, 71, 436 F.2d 222, 225 (1970) (so long as cross-examination is not “an improbable flight of fancy” nor “utterly implausible” it is permissible)). The evidence of the parties’ phlegmatic relationship was relevant to explain how the “new” injury might have occurred; the nature of that relationship was, according to the defense proffer, admitted by Vaughan. Questions about Vaughan’s prior assaults would not have been a “flight of fancy,” and the record does not suggest that the prior incidents were so remote in time as to be irrelevant to the parties’ relationship on June 6, 1983. See Lawrence, supra, 482 A.2d 374; cf. Jones v. United States, 477 A.2d 231, 243 (D.C.1984) (evidence of prior threats many years ago relevant to show motive); United States v. Bobbitt, 146 U.S. App.D.C. 224, 228, 450 F.2d 685, 689 (1971) (evidence of prior threat many years ago was admissible to show that bad blood between the defendant and the victim had continued).
Accordingly, since evidence about the relationship between Vaughan and Ba-taineh was relevant, in view of the circumstantial nature of the government’s evidence of causation, to the jury’s assessment of Vaughan’s credibility, the trial court erred in refusing to let defense counsel inquire about Vaughan’s assaults of Bataineh prior to June 5. Because such cross-examination went to the heart of the defense theory, the error was of constitutional magnitude. Goldman, supra, 473 A.2d at 857 (applying Chapman standard). Given the equivocal nature of the medical testimony, we hold that keeping “from the jury relevant and important facts bearing on the trustworthiness of crucial testimony” was not harmless error beyond a reasonable doubt.
Ill
Stack next contends that the trial judge’s instructions did not give a fair presentation of the defense theory to the jury. Because he admitted the truth of a good part of the government’s case, he argues that his defense required the jury to be advised of the significance of his independent cause theory. See Laughlin v. United States, 128 U.S.App.D.C. 27, 34, 385 F.2d 287, 294 (1967), cert. denied, 390 U.S. 1003, 88 S.Ct. 1245, 20 L.Ed.2d 103 (1968) (citing Levine v. United States, 104 U.S. App. D.C. 281, 261 F.2d 747 (1958)).
A “defendant is entitled to an instruction on his theory of the case when properly requested by counsel and when the theory is supported by any evidence.” Montgomery v. United States, 384 A.2d 655, 660 (D.C.1978); see Hale v. United States, 361 A.2d 212, 216 n. 9 (D.C.1976). Although the instruction need not be given in the exact language requested, Fludd v. United States, 336 A.2d 539, 541 n. 3 (D.C. 1975); Leftwich v. United States, 251 A.2d 646, 649 (D.C.1969), the trial court commits reversible error when it refuses to present adequately a defendant’s theory of the defense. See Levine, supra, 104 U.S.App. D.C. at 282-83, 261 F.2d at 748-49 (reversible error to deny defense request for an instruction “where special facts present ev-identiary theory which if believed defeats the factual theory of the prosecution_”). The trial court is not required to “rehearse the evidence, especially where the effect would be ... to give special emphasis to the defendant’s testimony.” Montgomery, supra, 384 A.2d at 660 (quoting Laughlin, supra, 128 U.S.App.D.C. at 34, 385 F.2d at 294). Nor may the court give instructions *155that favor the government’s version of the evidence. See Levine, supra, 104 U.S.App. D.C. at 283, 261 F.2d at 749. For this court the key question is whether the instructions to the jury were an adequate statement of the law, see Leftwich, supra, 251 A.2d at 649; Spade v. United States, 277 A.2d 654, 656 (D.C.1971), and our task is to review the instructions as a whole to determine whether, they fairly and fully presented the defense theory. See Montgomery, supra, 384 A.2d at 661.15
Defense counsel requested the trial judge to instruct the jury that:
The theory of the defense in this case is that Robert Stack did not cause the death of Helen Bataineh. The fight between Helen Bataineh and Robert Stack, which was started by Helen Bataineh, resulted in injuries to her ribs but did not cause the subdural hematoma from which she died. The subdural hematoma resulted from independent causes which happened after her release from the hospital.
The defendant has no burden to show or prove by what means the decedent died. The burden of proving how the decedent died always remains with the government.
If you have a reasonable doubt whether the fight between Helen Bataineh and Robert Stack resulted in injuries from which she died, then you must find him Not Guilty.
The trial judge’s complete instruction on the defense theory was: “Ladies and gentlemen, the theory of the defendant is that he did not inflict wounds from which the deceased died. He also asserts the defense of self-defense.” The judge elaborated on the self-defense theory, but made no mention of the theory of independent cause. Elsewhere the judge instructed the jury on proximate cause, stating that the defendant was responsible for the foreseeable and likely consequences of his acts.16 In instructing on the elements of second degree murder and voluntary manslaughter, the judge told the jury that to convict it must find the defendant “inflicted an injury or injuries upon the deceased and that the deceased have died as a result of such injuries.” The judge gave the standard instructions on reasonable doubt and the government’s burden of proof.
We hold that the instructions inadequately expressed the defense theory of independent cause. In effect, as Stacks points out, the instruction told the jury “no more than that the defendant denied killing the decedent — a general denial.” The phrase “independent cause,” or its equivalent, and the legal principle involved were not mentioned in the instructions. In addition, the judge’s expansion of the standard instruction on causation in murder and manslaughter had the effect of emphasizing the government’s theory of causation. The single “denial” sentence instructing on Stack’s theory was also minimized in significance by the contrast between it and the lengthy (two pages in the transcript) instructions on self-defense. Indeed, the instructions as a whole undercut the focus and force of any suggestion in the instructions about independent cause as well as defense counsel’s closing argument that *156the government had failed to negate the independent cause theory. See Laughlin, supra, 128 U.S.App.D.C. at 34, 385 F.2d at 294 (“there was a risk that the jury might find the defendant guilty although believing his testimony, because of failure to appreciate the significance of defendant’s evidentiary theory.”).
Stack clearly met his burden to show that he was entitled to an instruction which expressly set forth his theory of an independent cause. Fersner v. United States, 482 A.2d 387, 393 (D.C.1984) (evidence viewed most favorably to defendant). Defense counsel did not insist on the precise language requested. Assuming, as the government suggests, that the first paragraph of the requested instruction would have unduly emphasized the defense version of the evidence, the judge easily could have made appropriate modifications. That defense counsel argued the independent cause theory to the jury in closing does not cure the error since the jury must be instructed on the legal principles which are to guide its deliberations, and the court has the obligation to state those principles in the instructions.
IV
Stack further claims that allowing a key government witness to testify by color video-tape deposition although the witness was willing and available to testify at trial violated his constitutional right to confrontation and Super.CtCrim.R. 15(e).17
Due process requires that the prosecution make a reasonable, good faith effort to secure a witness’ presence. Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980); Warren v. United States, 436 A.2d 821, 826-27 (D.C. 1981). The government bears a substantial burden to show that a witness is unavailable to testify at trial. As described in Ohio v. Roberts, supra, although “the law does not require the doing of a futile act ...[,] if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.” 448 U.S. at 74, 100 S.Ct. at 2543 (emphasis in original).18 The trial court must determine whether a witness is unavailable, and if so, whether and under what circumstances the witness’ deposition should be admitted at trial. See Warren, supra, 436 A.2d at 825. The issue is whether there was sufficient evidence to support the trial judge’s ruling that the government met its burden to show Middleton was unavailable to testify at trial, and that his deposition was admissible into evidence. Id. at 829. We review the trial court’s determinations for abuse of discretion. Id. at 831.
This court has made clear that it has not sanctioned “a new category of medical unavailability in all cases where witnesses are likely to suffer adverse emotional or psy*157chological effects as a result of testifying against their assailants.” Id. In Warren, supra, the defendant was charged with kidnapping and various sexual assaults and armed robbery, and the complainant’s availability to testify was disputed. Two psychiatrists, one of whom was appointed by the trial judge, testified about the complainant’s psychological unavailability. Id. at 828-29. This court affirmed the trial judge’s finding that the complainant was unavailable because of “extreme circumstances” consisting of a high likelihood of temporary psychological injury, perhaps even psychosis, and a possibility of permanent psychological injury.
Middleton, according to the prosecutor, was an “essential” witness in the government’s effort to establish the absence of an independent cause of Bataineh’s death. In support of the motion to take Middleton’s deposition under Super.Ct.Crim.R. 15(a),19 the government contended that he was unavailable to testify at trial because of his poor medical condition and the likely consequences to his health which the emotional stress of testifying would cause. The motion referred to statements by Middleton’s cardiologist, and offered a letter from Middleton’s personal physician. The unsworn letter described Middleton, who was 71 years old at the time of his deposition, as suffering from hypertension, a narrowing of the main heart valve, congestive heart failure and diabetes. The letter, which was written six months before the trial, expressed concern that testifying at trial could have “potentially very serious” ill effects on Middleton “if he is placed under any great emotional stress or tension.” A second unsworn letter from the same doctor, written three months before the trial stated that a courtroom appearance would place Middleton and his life in jeopardy. At his deposition four and one-half months before trial, Middleton testified that he suffered from high blood pressure, diabetes, shortness of breath and was too fat; he had a pacemaker, and had to avoid excitement. During a telephone conversation with the trial judge shortly before trial, however, Middleton told the judge that he was willing to appear; the judge commented lightly after the telephone conversation that he thought his “charm and personality” had caused Middleton to say he was willing to testify at trial. Stack disputed the severity of Middleton’s illness, the partiality of his doctor and the absence of sworn testimony, as well as whether, assuming these medical facts, they were sufficient to establish that Middleton was unavailable to testify as a witness at trial.
The quantum and quality of evidence of Middleton’s unavailability to testify at trial does not measure up to that in Warren. The evidence consisted only of unsworn hearsay, Middleton’s view of his health, and the trial judge’s evaluation of Middleton’s health based on observations of Middleton at his deposition, and the judge’s telephone conversation with Middleton. Nor does the evidence of unavailability rise to the level of evidence that was present in either Ohio v. Roberts, supra, or Harrison v. United States, 435 A.2d 734 (1981) (en banc),20 where the witness’ una*158vailability involved facts about which a layperson would be knowledgeable. Here physical unavailability was not an issue; Middleton lived nearby, he was not physically impaired but still active, going to work every week, he had appeared without adverse consequence for the deposition, and he was willing to testify at trial.21
The trial judge initially had stated correctly that he would need to conduct a voir dire hearing to determine, on the basis of competent evidence, Middleton’s unavailability for medical reasons. See Warren, 436 A.2d at 828-30.22 Although Harrison, supra, implicitly suggests that expert testimony is not required, 435 A.2d at 738, 740, Warren, supra, which was decided after Harrison, recognized that expert testimony was required to determine psychological unavailability because the trial judge’s personal observations were “pointless in view of his lack of psychiatric expertise.” 436 A.2d at 830; Warren v. United States, 515 A.2d 208, 209-10 (D.C.1986) (per curiam) (“testimony of independent court-appointed psychiatrist will usually be the proper foundation for a finding of psychological unavailability of a witness”).23 This requirement is consistent with the rule in a number of other jurisdictions.24
Accordingly, we hold that where a crucial government witness’ unavailability is contested, and the witness’ unavailability is based on the effect which a trial appearance would have on particular medical conditions as well as the witness’ general health, expert evidence is required to support a finding that the witness is unavailable to testify at trial. Many older people undoubtedly suffer from the type of medical problems described by Middleton, and probably would prefer not to testify at trial. Although deference to the trial judge is appropriate where a witness’ appearance and reaction to questioning in the atmosphere of a trial must be evaluated, the trial judge’s reliance on hearsay and his (and Middleton’s) impressionistic, personal opinions about the effect of a trial appearance on Middleton’s health are an insufficient basis on which to deny Stack the opportunity to exercise a fundamental constitutional right. Cf. Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895); Springer, supra, 388 A.2d at 854. Because we reverse and remand this case on other grounds, we need not consider whether Stack’s inability *159to confront Middleton at trial was harmless beyond a reasonable doubt.25
V
Finally, Stack contends that the evidence of causation was insufficient to support his conviction because the government failed to show a sufficient nexus between Stack’s slap of Bataineh on June 6, and her death on June 8. The government concedes on appeal that its medical evidence, standing alone, was insufficient to convict,26 but maintains that it met its burden through the medical testimony coupled with the lay testimony about Bataineh’s deteriorating physical condition and the absence of any evidence another event led to her death.
Upon review of the denial of a motion for judgment of acquittal, we view the evidence most favorably to the government, drawing all reasonable inferences in its favor. Patterson v. United States, 479 A.2d 335, 337-38 (D.C.1984); Boyd v. United States, 473 A.2d 828, 832 (D.C.1984). Neither this court nor the trial court may *160“usurp the jury’s prerogative of determining credibility, weighing the evidence, and drawing reasonable inferences of fact.” Boyd, supra, 473 A.2d at 832; see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941); In re A.H.B., 491 A.2d 490, 496 (D.C.1985). Reversal is required “only where there is no evidence upon which a reasonable mind could infer guilt.” Patterson, supra, 479 A.2d at 338; see Franey v. United States, 382 A.2d 1019, 1022 n. 6 (D.C.1978); Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 392-93, 160 F.2d 229, 232-33, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed.2d 1850 (1947). Because Stack introduced evidence after his motion for acquittal was denied at the close of the government’s case, only the motion at the close of all the evidence is before us, see Hawthorne v. United States, 476 A.2d 164, 168 n. 10 (D.C.1984); consequently, we determine the propriety of the trial court’s denial in light of all the evidence. Id.
Although the government is not required to negate every possible inference of innocence, Chaconas v. United States, 326 A.2d 792, 798 (D.C.1974), the preclusion of defense counsel’s attempt to cross-examine Vaughan on his prior assaults of Batai-neh deprived the jury of the opportunity to weigh Vaughan’s credibility in the light of relevant, admissible evidence, and preserved inviolate the favorable inference regarding the cause of death on which the government must rely to meet its burden of proof. As discussed in Part II, supra, Vaughan’s testimony was a crucial part of the government’s effort to prove that Bata-ineh’s death was not independently caused by an event occurring after Stack had slapped her.27 Vaughan’s testimony therefore helped establish proximate cause, a crucial element necessary for conviction. Since the trial judge’s limitation on Stack’s cross-examination of Vaughan violated Stack’s right of confrontation, we must decide if Vaughan’s testimony should be disregarded in determining whether the government met its burden of proof.
Our research has not found a case explicitly addressing the right to confront adverse witnesses in the context of evidentia-ry sufficiency. However, it has been held repeatedly that the appropriate remedy where the defense has not been permitted to cross-examine a key government witness is to remand for a new trial. See Delaware v. Van Arsdall, supra, 106 S.Ct. 1431; Davis v. Alaska, supra, 415 U.S. 308, 94 S.Ct. 1105; Lawrence, supra, 482 A.2d 374; Goldman, supra, 473 A.2d 852; Springer, supra, 388 A.2d 846. This court has declined to hold the evidence insufficient and a new trial therefore barred even when it has acknowledged that without the witness’ testimony the government’s evidence would have been insufficient to convict. Lawrence, supra, 482 A.2d at 377; Goldman, supra, 473 A.2d at 858; Springer, supra, 388 A.2d at 857.
This approach makes sense in the framework of our judicial system. The right to test an adverse witness’ reliability and veracity through cross-examination is vital to maintaining the “integrity of the fact-finding process.” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973) (quoting Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969)); Howard v. United States, 473 A.2d 835, 838 (D.C.1984); see Delaware v. Van Arsdall, supra, 106 S.Ct. *1611431). If the first trial is fundamentally flawed as a result of a violation of a defendant’s right of confrontation, and the error is not harmless beyond a reasonable doubt, Delaware v. Van Arsdall, supra, a remand is required to insure that the defendant receives a fair trial. Given the totality of the evidence presented by the government, we can determine that Vaughan was a crucial witness, but we do not know whether further cross-examination would have been effective, nor whether the government would have been able to rehabilitate cross-examination undermining Vaughan’s credibility. The government obtained a favorable ruling limiting cross-examination at the trial and was entitled to rely on it by assuming Vaughan’s testimony would not need to be buttressed.
The evidence of Stack’s guilt, with Vaughan’s testimony, was sufficient to send the case to the jury. The jury could reasonably believe the government’s witnesses, and conclude that an accident or injury had not occurred after Stack struck Bataineh and before her death. In view of the evidence of the force of the blow that Stack delivered and the medical evidence that Bataineh’s injuries could have caused the fatal subdural hematoma, a reasonable jury could find beyond a reasonable doubt that Stack’s actions were the proximate cause of Bataineh’s death.
Accordingly, the judgment is reversed, and the case remanded for a new trial.
Reversed and remanded.
. After Bataineh’s death, Stack told Morris not to tell the police he had gone inside Vaughan’s house on June 6.
. Vaughan was not positive which side of Batai-neh’s face was bruised.
. Middleton testified by videotaped deposition over defense objection. See infra Part IV.
. A subdural hematoma is a collection of blood, either liquid or clotted, which displaces the brain, causing breathing to stop.
. An edema is an abnormal accumulation of serous fluid.
. Vaughan did not mention the bruise on Batai-neh’s chin to the police or to the grand jury. He first mentioned it ten months after Bataineh died while he was being interviewed by a prosecutor. Vaughan testified that the prosecutor was the first person to ask about a bruise.
. Defense counsel also attempted to show that Vaughan had tried to influence Calloway’s testimony.
. The government contends the bias argument is raised for the first time on appeal because at trial the defense wanted to cross-examine Vaughan only to show he had caused Bataineh’s death. We disagree. Stack's contention in this court and the trial court focused on the limitation on his attempt to challenge the government's theory of causation by showing it had failed to eliminate the possibility that an independent incident had caused the fatal hemato-ma. By attempting to raise a question about whether Vaughan had caused Bataineh’s death, Stack also necessarily raised a question about Vaughan’s motive to fabricate.
. In Beale, the trial court refused to let the defendant call four witnesses who allegedly would testify that others had as much, if not more, of a motive to kill the decedent. This court found no abuse of discretion by the trial court since the defendant had failed to proffer any evidence "specifically linking” events relating to the motives of the others to the subsequent murder, and also had failed to place the others with a motive to kill in the area at the time of the murder. Id.
. In Brown, the trial court refused to let the defendant call as a witness the person whom he wished to suggest to the jury had committed the rape. In affirming, this court observed that the proposed testimony, that the complainant had become hysterical when she saw the witness at her husband's funeral, was at best a description of an ambiguous act and might have led to the introduction of prejudicial testimony about the defendant’s involvement in the murder of the complainant’s husband. Id. at 1097.
. See In re J.N., 406 A.2d 1275, 1286 (D.C.1979) (vacated; judgment affirmed by an equally divided court), In re J.N., Nos. 10737 and 12150 (D.C. May 29, 1981) (appellant’s intervening cause defense hinges on demonstrating that the act for which appellant has been charged with homicide was not a "substantial factor" contributing to the victim’s death).
. In Hall, the court noted that in the absence of evidence tending to show that the decedent had a "special friendly relationship" with another man whom she had rejected, thus suggesting that a rejected suitor had a motive to kill similar to the defendant's motive, such inference would be pure speculation. Id. at 319-20.
. DEFENSE COUNSEL: [Tjhis particular witness, Jimmy Vaughan, has told me about beating [the decedent] himself and he told me this the very first day I met him when he came down to the court. He picked me up at my office and gave me a ride home and Rita a ride home and on that occasion they dis*153cussed how infuriating [the decedent] could be when she was drunk and how aggressive she could be and how verbally aggressive she was and how, and Rita says and, you know, you have beat her up and he says, I have, and she says you put her out; yes, I have and you called the police; yes, I have, but, I didn’t beat — and Rita accused him of beating [the decedent] up that night and he denied beating her up that night, but he did admit to beating her on other occasions.
. Defense counsel told the court that the bruise had caused the examining doctor to think that Bataineh’s death was not a routine death, and to call a medical examiner.
. Erroneous instructions tire not harmless if we find the jury was substantially swayed by them. See United States v. Lemire, 232 U.S.App. D.C. 100, 720 F.2d 1327 (1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984); Mullen v. United States, 105 U.S.App.D.C. 25, 263 F.2d 275 (1958).
. The judge instructed the jury:
A person is held responsible for all consequences or harm which are proximately caused by his [or her] criminal conduct. This concept of proximate cause means that an accused may be found guilty of a criminal offense even though his [or her] acts were not the sole or immediate cause of the victim’s death or injury. If the ultimate harm to the victim should have been foreseen or has, or has been reasonably related to the defendant’s conduct the defendant’s conduct should be regarded as the cause of death.
The judge then gave the standard instruction on causation in murder and manslaughter; thus the jury received an expanded version of the standard murder and manslaughter instruction.
. Super.Ct.Crim.R. 15(e) provides, in pertinent part:
At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable. ‘Unavailability as a witness’ includes situations in which the declarant ... (D) Is unable to be present or testify at the hearing because of death or then existing physical or mental illness or infirmity.
. In Ohio v. Roberts, supra, 448 U.S. 56, 100 S.Ct. 2531, a transcript of a witness’ testimony at the preliminary hearing was admitted in rebuttal after the witness failed to appear at trial following the issuance of five subpoenas. An Ohio statute permitted the use of such testimony when the witness "cannot for any reason be produced at the trial." The witness’ mother testified at a voir dire hearing on the admissibility of the witness’ transcript, that her daughter had left home after the preliminary hearing, had been in San Francisco a year before the trial, and had last called, without revealing where she was, seven or eight months ago when she was traveling outside Ohio; the mother knew of no way to reach her daughter, even in an emergency, and knew of no one who knew where her daughter was. The Supreme Court affirmed, holding that although the witness had not been cross-examined at the preliminary hearing, defense counsel had tested the witness’ veracity through leading questions, and thus the court had substantially complied with the confrontation requirement.
. The government stated in its motion pleadings that:
Middleton’s testimony is essential to describing the activities of the decedent during the time between the assault by the defendant and her death to refute any suggestion that she was injured subsequent to the beating inflicted by Mr. Stack while at the home of Mr. Middleton and to corroborate the findings of the medical examiner concerning the attack and the progression of the effects of her fatal injuries. His testimony is thus essential to the Government’s case-in-chief.
. In Harrison, the issue was the admissibility of the victim’s spontaneous utterance; • availability was uncontested. Four judges held that “under these particular circumstances" the government’s sparse showing of unavailability met the good faith test of Ohio v. Roberts where the government had tried to locate and present the witness and the witness’ daughter had advised a police officer of the victim’s advanced age, uncertain medical condition, distance from this jurisdiction and inability to travel. Id. at 736. However, the plurality noted that ”[t]he government would do well to relate carefully and comprehensively for the record at trial its ef*158forts to make the witness available and the reasons such efforts have proved unavailing.” Id, at n. 5 For the factual background, see Harrison v. United States, 407 A.2d 683 (D.C. 1980) (judgment vacated in 1981).
. United States v. Bell, 500 F.2d 1287, 1290 (2d Cir.1974), cited by the government, is not to the contrary. There the finding of unavailability was upheld where a doctor’s letter stated that the witness’ recent surgery made her unavailable for at least two and a half months. The appellant in Bell did not contest the genuineness of the witness’ illness or its duration at trial, and on appeal argued only that a trial continuance might have enabled the witness to testify in person.
. At Middleton’s deposition the trial judge mentioned that he would determine Middleton’s availability to testify at trial on the basis of Middleton’s deposition testimony and the medical records. Insofar as the record indicates, the medical records were confined to the two letters from Middleton's personal physician and, perhaps, the representations in the government’s motion about his cardiologist’s opinion.
. See, e.g., State v. Hannagan, 473 A.2d 291, 293 (R.I.1984) (”[t]he trial justice’s visual diagnosis does not rise to [the level of competent evidence], for, as Aesop pointed out in The Wolf in Sheep’s Clothing,’ ‘Appearances are deceptive.’ ” Jacobs, Fables of Aesop 94 (1902)).
. See, e.g., People ex rel. Faulk v. District Court, 667 P.2d 1384, 1390 (Colo.1983) (en banc); State v. Hannagan, supra note 23, 473 A.2d at 293 (expert testimony needed to show that witness’ attendance or testimony is "relatively impossible and not merely inconvenient"); People v. Stritzinger, 34 Cal.3d 505, 194 Cal.Rptr. 431, 439-41, 668 P.2d 738, 746-47 (1983) (era banc) (need expert testimony to determine that an existing illness is the cause making it impossible for witness to testify); Sheehan v. Wisconsin, 65 Wis.2d 757, 223 N.W.2d 600 (1974); People v. Del Mastro, 72 Misc.2d 809, 813, 339 N.Y.S.2d 389, 393 (1973).
. Were we to reach the issue, it would be difficult, if not impossible, for this court to determine whether the trial judge’s error was harmless, given (1) the importance of Middleton’s testimony to the government’s theory that Bataineh suffered no accidents after Stack struck her; (2) Middleton’s evident concern throughout the videotape deposition that his actions in reacting to Bataineh’s condition be viewed as appropriate, thus indicating an area of possible bias which defense counsel could have pursued during cross-examination at trial; and (3) the fact that the deposition was edited before presentation to the jury in some undisclosed fashion so that we were able to view only an edited version. Hence, a remand would be required.
We find unpersuasive Stack’s contention that post-deposition discovery had produced new documents which would compel a finding of prejudice. At trial, the substance of the new documents was addressed in Stack’s cross-examination of the paramedics and the fire department official, who explained how Bataineh’s body was moved onto the bedroom floor. Stack also had an opportunity to cross-examine Joan Park about any inconsistencies with Middleton’s testimony. Finally, the editing of the deposition is not an issue; Stack did not object to the admission of the edited deposition at trial or on appeal.
. The government’s experts testified their findings were "consistent” or "very consistent” with the view, to a reasonable medical certainty, that Stack caused Bataineh’s subdural hematoma. Although the question of the sufficiency of expert testimony on causation has not been decided by this court in the context of a criminal trial, but cf. Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 624 (D.C.1986) (expert must testify, based on reasonable degree of medical certainty, that "defendant’s negligence is more likely than anything else to have been the cause (or a cause) of the plaintiffs injuries”) and Martin v. United States, 109 U.S.App.D.C. 83, 84, 284 F.2d 217, 218 (1960) (expert testimony that it was "possible” or "probable” the defendant suffered from a mental illness and the illness had a causal relation to the charged crime (sale of narcotics), could not be the basis for a finding of fact: "In the language of the law of evidence, that which is merely possible, standing alone and not offered as auxiliary or rebuttal testimony, is immaterial to the ascertainment of the facts and so is inadmissible as evidence of that fact." Id. at 85, 284 F.2d at 218), other jurisdictions have held such testimony is insufficient to send a case to the jury. See Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178, 179 (1971) (proof of causation beyond a reasonable doubt required medical testimony that physical and emotional stress resulting from struggle over purse was sole cause of fatal heart attack "with a reasonable degree of medical certainty”); Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802, 803-04 (1968) (evidence of probable causation insufficient for government to meet its burden of proof on causation); People v. Brown, 57 Ill.App.3d 528, 15 Ill.Dec. 113, 116, 373 N.E.2d 459, 462 (1978) (state’s burden is to show beyond a reasonable doubt that defendant’s act was “a contributing cause to a death such that the death did not result from a source unconnected with the defendant’s act”); see abo Jackson v. State, 652 S.W.2d 415, 419 (Tex.Ct.App.1983) (en banc) (connection between blows and cause of death too unclear to support conviction where medical evidence was that defendant’s blows to deceased child were an "unlikely and improbable” cause of the injury causing death); Reed v. State, 180 Ind.App. 5, 387 N.E.2d 82, 85 (1979) (medical testimony that crash would be consistent with injuries sustained insufficient where no evidence presented that blow to decedent’s head, which caused death, occurred when car crashed; state must prove defendant’s conduct "is the direct and proximate cause of the death of the victim”); Commonwealth v. Gilman, 485 Pa. 145, 401 A.2d 335, 339 (1979) (even though medical expert did not use words "reasonable medical certainty,” reasonable medical certainty could be found from the record which supported conviction where testimony that defendant beat the decedent with a blunt instrument and body subsequently discovered).
. Indeed, the government specifically recognized the need to refute suggestions of an independent cause subsequent to Stack’s slap on June 6, of Bataineh’s death. See supra note 20. There was no evidence that Stack had slapped or kicked Bataineh in the area of the jaw where Vaughan saw the bruise, which the medical testimony identified as significant in determining the cause of death. The nurse at Capitol Hill Hospital testified that Bataineh did not complain of injuries around her face, only the collar bone and the rib areas. A photograph of Batai-neh’s injuries showed that the bruise was under Bataineh’s jaw, and not in the area Stack had slapped her or kicked her. Thus, since Vaughan was alone with Bataineh at a relevant time, without Vaughan’s testimony, the government’s evidence would have been insufficient. |
9,645,585 | 2023-08-22 21:29:10.959093+00 | Mack | null | MACK, Associate Judge,
concurring in part and dissenting in part:
I agree with the majority that appellant Robert Stack’s manslaughter conviction must be reversed because he has been deprived both of his constitutional right to confront a key witness and of his right to have the jury instructed on his theory of the case. However, I find the majority’s conclusion that the evidence was sufficient to go to the jury, as well as the rationale employed to reach that result, to be extremely troubling.
The majority, noting the government’s concession that the medical evidence, standing alone, was insufficient to convict appellant for manslaughter, concludes that without James Vaughan’s testimony the evidence would have been insufficient. In reversing appellant’s conviction because of the court’s limitation on cross-examination, the majority has concluded that Vaughan was a crucial witness whose testimony went to the heart of the defense theory that some intervening cause, not the action of appellant, had caused the death of the victim. The basic reason why reversal is mandated in such a ease is that curtailment of cross-examination has prevented the jury from receiving information essential to an assessment of the credibility of the government witness — here, “a key witness ... [whose] testimony establishes a required element of the charged offense....” Lawrence v. United States, 482 A.2d 374, 377 (D.C.1984) (quoting Springer v. United States, 388 A.2d 846, 855 (D.C.1978)).
I think it therefore an anomaly for the majority to reverse because the jury was prevented from assessing the credibility of testimony essential to the conviction, while simultaneously concluding, as the basis of its holding that the evidence was sufficient to go to the jury, that the same testimony can be used to supply the essential element needed to convict. The majority concedes that there are no cases explicitly addressing the right to confront adverse witnesses in the context of evidentiary sufficiency; the cases it does cite do not support the proposition that, where there has been reversible error by the trial court in curtailing cross-examination, the appropriate remedy is that of a remand for retrial.1 See Delaware v. Van Arsdall, — U.S. -, *162106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986) (no sufficiency issue raised; remand by the United States Supreme Court to the Delaware Supreme Court for the sole purpose of determining whether the error in limiting cross-examination was harmless); Davis v. Alaska, 415 U.S. 308, 320-21, 94 S.Ct. 1105, 1112-13, 39 L.Ed.2d 347 (1974) (no sufficiency issue raised); Lawrence v. United States, supra, 482 A.2d at 378 (same); Goldman v. United States, 473 A.2d 852, 858 (D.C.1984) (same); Springer v. United States, supra, 388 A.2d at 857 (same); see also Delaware v. Van Arsdall, supra, 106 S.Ct. at 1440 (Marshall, J., dissenting) (“denial of cross-examination ... may deprive the defense of its best opportunity to expose genuine flaws in the prosecution’s case — flaws that the cold record will not reveal to an appellate court”).
Moreover, I do not agree with the majority’s conclusion that its approach makes sense in the framework of our judicial system. It does not make sense to me to say that testimony which has not been tested for the purpose of maintaining the “integrity of the fact-finding process,” majority opinion, supra p. 161, can provide the sufficiency necessary to send a case to the jury. It does not make sense to me to say that the government, after having pressed for and obtained an erroneous ruling preventing the jury from assessing the credibility of “crucial” testimony, is nevertheless permitted to rely on that testimony and is not held accountable for its failure to produce other evidence essential to support its case.
I would reverse. I would not remand.
. Retrial is constitutionally forbidden where the evidence presented at trial was insufficient to convict. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). This is so because the Double Jeopardy Clause mandates that "No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. |
9,645,586 | 2023-08-22 21:29:11.274495+00 | Davis | null | OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
TOM G. DAVIS, Judge.
The trial court found appellant guilty of unlawfully carrying a handgun and assessed 90 days in the county jail, probated, and a fine of $350.00. The First Court of Appeals (Houston) affirmed in an unpublished opinion, holding that the trial court did not err in denying appellant’s motion to suppress. Williams v. State, No. 01-84-0239-CR, delivered December 20, 1984. We granted appellant’s petition for discretionary review to examine this holding.
The evidence at the hearing on the motion to suppress showed that Houston Police Officer Gildehaus was on patrol at about 3:30 p.m. on October 19th, 1983. Officer Gildehaus testified that he was driving west in the 2400 block of Anita, between Live Oak and Dowling. Gildehaus stated that Anita is a two-way street, running east and west. The officer observed appellant’s pickup truck “parked on the wrong side of the street.” The truck was parked on the south side of Anita, with its left (driver’s side) wheels next to the curb. The truck was facing west, and Gildehaus was approaching the truck from behind. Gildehaus observed appellant sitting in the driver's seat of the truck. The driver’s door was open. Gildehaus further testified as follows:
“And there was another male by the door, which the truck was opened. And I seen the other guy look like he handed [appellant] something. And when I seen him hand him something, I pulled up, got out of my vehicle, and walked towards the truck. And the guy that I thought he handed him something walked away from the truck and sat down. And the other guy had gotten out of the truck and was standing by the truck and the door was still opened. I looked inside *100the truck, and I seen a brown paper bag.”
Under cross-examination and upon further questioning by the court, Gildehaus stated that he did not actually see the other person hand appellant anything, that he did not see their hands at all, that he was uncertain whether the other person, or appellant, did the passing, or whether “they were passing something back and forth”. When asked “Did you actually see the hands or see the shoulder movement”, Gil-dehaus responded, “Just the shoulder from the hand glide.” Gildehaus conceded that he could not tell whether the two men were handing something to each other or shaking hands.
Gildehaus testified that the man standing by the truck “had been brought to my attention by an informant of mine.” Gilde-haus testified that “From the information they told me they had stated he was selling nickel bags of marijuana in that area.” Gildehaus stated that within the two years he had been patrolling the area, he had participated in 10 or 15 arrests for narcotics, mainly marihuana, offenses at the corner of Anita and Dowling streets. Gilde-haus testified that he had had occasion to observe narcotics transactions twenty-five to thirty times. Gildehaus stated that on the instant occasion, he “thought there was a narcotics deal going down.”
Gildehaus stopped his patrol car behind the truck, got out, and walked toward the two men to investigate. Gildehaus testified further as follows:
“And when I — the guy standing outside of the vehicle, he at first observed me when he seen me, he walked away from the pickup truck and the other guy looked like he made some kind of downward movement in the pickup truck.”
By the time Officer Gildehaus reached the driver’s door of the truck, the “other guy” had moved off and was sitting on some steps nearby. Appellant was out of the truck, standing by the open door. Gil-dehaus noticed a brown paper bag on the floorboard on the driver’s side. Gildehaus pulled the open sack toward him and looked inside it. He then reached into the sack and moved a shirt that was lying on another sack. At that point Gildehaus saw a gunbarrel protruding from the second, “inner” sack. Gildehaus testified as follows:
“Q. Once you saw that, what did you do next?
“A. At the time I arrested the defendant, first I asked him if this was his truck and he said, yes, it was.”
“Q. What did you do? You placed the defendant under arrest?
“A. Yes, ma’am.”
The record reflects that Gildehaus later “put the defendant into jail.”
Gildehaus testified that the sack was within appellant’s reach as he stood outside the truck. When asked why he “went into that truck,” Gildehaus replied, “Two reasons. Narcotics and for my safety.” Gil-dehaus was not asked and did not state why he arrested appellant.
Gildehaus seized two handguns from the sack. These were admitted into evidence over appellant’s objection that the arrest was unlawful under the Fourth Amendment and Article I, Section 9 of the Texas Constitution, and that the handguns were the fruit of the unlawful arrest.
The State argues that Gildehaus had reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) to make an investigative stop of appellant. In addition, the State argues, Gildehaus was justified under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) in making a protective search for weapons in the passenger compartment of the truck.
We need not decide these issues. We find merit in the State’s alternative argument that the search of the sack was a search incident to a lawful custodial arrest.
Article 6701d, V.A.C.S., provides, in pertinent part:
“Sec. 96. (a) Except as otherwise provided in this section, every vehicle stopped or parked upon a two-way roadway shall be so stopped or parked with the right-hand wheels parallel to and *101within eighteen (18) inches of the right-hand curb or edge of the roadway.” Violation of Art. 6701d, Sec. 96(a) is pun-
ishable as a misdemeanor. Art. 6701d, Sec. 143, supra.
Art. 6701d, Sec. 153 authorizes any peace officer to arrest without warrant any person found committing a violation of any provision of Article 6701d, supra.
Officer Gildehaus thus had probable cause to arrest appellant. That Gildehaus was investigating what he took to be a narcotics transaction is of no moment in this case. In Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) the Court wrote:
“We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action, [citation omitted.] The Courts of Appeals which have considered the matter have likewise generally followed these principles, first examining the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.”
See also 1 LaFave, Search and Seizure, Sec. 1.2(g) (Supp.1986) (arguing that the language quoted above from Scott “is precisely what the rule ought to be and that certain other developments in Fourth Amendment doctrine are necessary to ensure that the Scott rule persists in such unqualified form.”)
Moreover, the fact that the search incident to the arrest preceded the formal custodial arrest by a few moments is of no consequence under Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (“Once [Rawlings] admitted ownership of the sizable quantity of drugs found in [the] purse, the police clearly had probable cause to place [him] under arrest. Where the formal arrest followed quickly on the heels of the challenged search of [Rawlings’] person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”)
Accordingly, Officer Gildehaus’s search of the sack was justified as a search incident to arrest under both Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).1
There was no error in denying appellant’s motion to suppress. The judgment of the Court of Appeals is affirmed.
ONION, P.J., dissents.
. The instant case must be distinguished from Linnett v. State, 647 S.W.2d 672 (Tex.Cr.App.1983), Christian v. State, 592 S.W.2d 625 (Tex.Cr.App.1980) cert. denied, 446 U.S. 984, 100 S.Ct. 2966, 64 L.Ed.2d 841 (1980), and Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1976). At the time of the search in those cases, the officer had detained the defendant only to issue him a written notice to appear in court for a traffic offense (the statutory alternative to a custodial arrest; see Art. 6701d, Sec. 148(a)). This Court held that the arrest in each case was not custodial, and therefore could not support a search incident to arrest under United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Here the record fails to reflect that Officer Gildehaus had detained appellant for the purpose of issuing him a traffic ticket. Instead, the record reflects, in rapid succession, the emergence of probable cause to arrest, a search of the passenger compartment, and a formal custodial arrest. |
9,645,587 | 2023-08-22 21:29:11.280529+00 | Clinton | null | CLINTON, Judge,
dissenting.
Once again I must protest the majority’s plucking an issue at random from the case before us rather than addressing the issue on which we granted review. The majority spends three pages setting out the facts relevant to appellant’s ground for review, then abruptly concludes, “We need not decide these issues.” Maj. op. at p. 100. If we need not decide these issues, we should not have granted review. We certainly did not grant appellant’s petition for discretionary review in order to review “the State’s alternative argument,” as the majority decides in retrospect.
I.
The State did not advance this “alternative argument” in the trial court. In the *102hearing on the motion to suppress, Houston Police Officer Gildehaus testified in passing that appellant’s truck was parked on the wrong side of the street. That was not, however, what called his attention to appellant. Gildehaus testified that the man he saw talking to appellant had been described to him as a drug dealer, and the officer knew by personal experience that drug deals were frequent in the neighborhood. He had himself made ten or 15 arrests for such transactions in the two years he had been patrolling there. When asked why he parked and approached appellant Gildehaus testified:
“A Purpose, I went over there to see if — there seemed to me to be a narcotics deal going down. That’s the reason I went over there.
Q You went over to check on a narcotics deal?
A That’s correct.”
The officer did not even hint at an intention to issue a ticket, let alone make a custodial arrest, for a parking violation. The State’s argument to the trial court was that Gildehaus had articulable reasons for investigating a narcotics offense. “Officer Gildehaus clearly had the probable cause to investigate ... He was lawfully there investigating what he believed to be a narcotics transaction.” This was the basis for the trial court’s ruling that the pistols found in the search of appellant’s truck were admissible in evidence.
The court of appeals’ opinion does not even mention the fact that appellant was illegally parked. That court addressed only appellant’s claim that the trial court erred in refusing to suppress the evidence because the officer lacked probable cause to arrest for a narcotics offense and therefore had no legal justification for searching the truck. The court of appeals pointed out the information available to the officer, such as that he was patrolling a “known narcotics area” and that a reliable informant had told him that the man he saw talking to appellant had been selling marihuana in that area. The court concluded that, “Based on the totality of the circumstances, we are of the opinion that the arresting officer had sufficient articulable facts to justify a temporary detention for the purpose of futher investigation. We hold that the arresting officer had sufficient probable cause to make the arrest and search of the appellant.” Maj. opinion at p. 100.
In his petition to this Court appellant sought review of that holding. He argued that the “suspicious activities” observed by Officer Gildehaus were “as consistent with innocent activity as with criminal activity. Therefore, a detention based on those events is unlawful and the search is unreasonable.”
This was the basis for our grant of review. The function of this Court on discretionary review is to “review decisions of the court of appeals.” Art. 44.45(b), V.A.C. C.P. “Ordinarily this Court refuses review of grounds not raised or entertained in the court of appeals.” Garrett v. State, n. 2, (Tex.Cr.App. No. 642-83, delivered June 11, 1986). Instead the majority in the instant case has devised its own ground for review, on an issue not decided by the court of appeals and therefore not before us. Hernandez v. State, 726 S.W.2d 53, (Tex.Cr.App. delivered this day) (concurring opinion).1
There is no reason for such relentless dodging of the issue we do have before us. The court of appeals’ decision presents a straightforward issue for our own review, and the parties have argued that issue in *103their ■ briefs and oral arguments in this Court. Appellant in his petition for discretionary review naturally addressed the opinion of the court of appeals, arguing that it was incorrect and why. He has had no opportunity to argue against the proposition the majority raises. If this Court decided the court of appeals was in error in its disposition of the case, we should remand to that court for consideration of the State’s “alternative argument.” McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986). Instead the majority entirely ignores the opinion of the court of appeals as well as the arguments advanced attacking and defending that opinion. I dissent to this betrayal of our statutorily mandated function to review decisions according to reasons given by courts of appeals for making them.
II.
The rationale the majority does use to affirm the judgment of the court of appeals is wrong. The majority concludes that because the officer could have made a custodial arrest he could have made a search of appellant’s truck pursuant to that arrest, and that because this mythical justification exists we need pay no attention to what the officer actually was doing when he approached the truck. Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), relied on by the majority, does not support this proposition. In Scott federal law enforcement agents had placed a wiretap on the defendant’s phone line pursuant to court order. However, the agents violated a federal statute by failing to try to minimize the number of phone calls they recorded. One agent testified they made no attempt to do so. The defendant argued that this bad faith on the part of the officers should be reason for suppressing the incriminating calls that had been recorded. Justice Rehnquist, writing for the Court, held that the officers would not have been able to minimize the number of calls recorded even if they had attempted to do so, and therefore the evidence should not be suppressed just because of the bad “state of mind” with which the officers acted. He cited for this proposition United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). (This is the “[citation omitted]” referred to in the majority’s excerpt from Scott. The majority also omits part of the text, and no wonder.) In Robinson an officer saw a motorist he had previously stopped for driving without a license. Suspecting him of another offense, the officer stopped the motorist, who was again driving without a license, and arrested him for that offense. He then searched incident to the arrest and found heroin. The Supreme Court held that this search was justified even if the officer had arrested Robinson for driving without a license with the ulterior motive of searching him for drugs. “It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” 414 U.S. at 235,2 94 S.Ct. at 477.
In the instant case there was no “lawful custodial arrest” to justify the search of appellant’s truck. There was no arrest at all, nor any attempt to make such an arrest. The officer approached the truck with the intent of searching for drugs, and that is what he proceeded to do.
The majority’s attempt at n. 1 to distinguish this case from, inter alia, Linnett v. State, 647 S.W.2d 672 (Tex.Cr.App.1983), is unavailing. In that case a Houston police officer had stopped the defendant in order to issue him a ticket for an expired license plate. When the defendant’s nervousness aroused the officer’s suspicion he looked into the car, saw a canvas bag, opened the bag, and found a film canister containing hydromorphone. This Court unanimously held that this evidence should have been suppressed. The search was not a search incident to arrest because the defendant had not been arrested. The officer was detaining him only while writing a traffic ticket.
*104The majority attempts to distinguish Linnett from the instant case by saying, apparently, that in Linnett the officer testified specifically that he had stopped the defendant only in order to issue him a traffic ticket, while in the instant case Officer Gildehaus did not testify that he stopped appellant only to give him a parking ticket. We are therefore to conclude that Gildehaus approached appellant in order to place him under custodial arrest for the parking violation and searched his truck incident to that arrest. This is untenable. Gildehaus was not approaching appellant even.to write him a ticket, let alone make a full custodial arrest for a parking violation. He approached him to investigate what he suspected to be a narcotics offense. The majority would have us hold that unless an officer testified that he stopped a defendant only to issue a traffic or parking ticket, we must assume the officer’s plan was to make a custodial arrest for the traffic or parking violation, even if the officer testified to the contrary.
There was no arrest for a traffic violation in this case. The search was therefore not made incident to such an arrest, and may not be justified on that basis. Linnett, supra; Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1976); Satterwhite v. State, 726 S.W.2d 81 (Tex.Cr.App. No. 67,220, delivered this day) (Clinton, J., dissenting).
III.
Even if we were presented with the issue decided by the majority, its analysis would be incomplete. It is true that Art. 6701d, Sec. 153, authorizes an officer to “arrest without warrant” anyone violating any provision of that Act, including the parking offense of Sec. 96. The majority interprets this to mean a full custodial arrest, such as would then justify a search of the arres-tee’s vehicle. But that proposition is far from obvious. Article I, § 9 of the Texas Constitution provides, “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches ...” The Fourth Amendment to the U.S. Constitution provides a similar protection: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...” Having decided that Gildehaus could have arrested appellant for the parking violation, the majority is then faced with the question whether to make a full custodial arrest, and a search incident to that arrest, would have been a reasonable action for the officer to take. The majority fails to address this issue.
Art. 6701d, supra,, provides an arresting officer with two choices. He may take a violator into custody, Sec. 147, or he may instead issue a notice to appear in court— that is, a traffic ticket. Sec. 148, supra. Because the officer is afforded such wide discretion, an appellate or reviewing court must decide whether the officer’s action in a given instance was reasonable. To refuse such review is to leave citizens “subject to the discretion of the official in the field.” Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930, 937 (1967). Therefore having decided that the officer could have made an arrest, the majority must then decide whether Gildehaus’s hypothetical decision to place appellant under custodial arrest and search his vehicle pursuant to a parking violation would have constituted an “unreasonable search [ ] and seizure [ ]” in violation of our constitutional protections.
The answer is obvious. In Robinson, supra, the arresting officer testified that it was not unusual for him to make custodial arrests for the offense for which he had arrested the defendant — driving without a license. In Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), the companion case to Robinson, the defendant was arrested for the same offense — driving without a license — and a search incident to that arrest produced marihuana. Again the arresting officer testified that it was not uncommon for him to arrest violators for this traffic offense, and the defendant conceded that the arrest had been a valid one. Had he not made that concession, a different case would have been presented. “It seems to me that a persuasive claim might have been made in this case that the *105custodial arrest of the petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments. But no such claim has been made.” 414 U.S. at 266-67, 94 S.Ct. at 492 (Stewart, J., concurring). Justice Powell expressed a similar concern at n. 2 of his concurring opinions in Robinson and Gustafson, 414 U.S. at 239, 94 S.Ct. at 478.
That question was not presented in Robinson and Gustafson, but it has been injected into the instant case by the majority’s justification for the search of appellant’s truck. If it is arguably unreasonable for an officer to make a custodial arrest for the “minor traffic offense” in those cases, how much more unreasonable would it be for an officer to make a custodial arrest for the offense of parking on the wrong side of the street? The arresting officers in Robinson and Gustafson at least testified that it was not uncommon for them to arrest for such offenses. I venture to say the State in this case would have been hard pressed to produce credible testimony that any officer in the history of this State had ever made a full custodial arrest of anyone strictly for a parking violation. If Officer Gildehaus had made such an arrest of appellant, his action would have been perfectly arbitrary and therefore “unreasonable.” “[Gjiven the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone, ... there exists ‘a power that places the liberty of every man in the hands of every petty officer,’ precisely the kind of arbitrary authority which gave rise to the Fourth Amendment.” 1 LaFave, Search and Seizure, Sec. 1.2(g) (Supp.1986) (quoting from the papers of John Adams).
I cannot believe that the majority truly is prepared to have this Court hold that any citizen of this State may be arrested for any petty parking violation and then subjected to a search of his person and vehicle, entirely at the discretion of the officer in the field. That is, however, precisely what the majority would hold.
I must dissent to another crippling blow to constitutional protections underlying liberty interests held so dear by citizens in a free society.
MILLER, J., joins this opinion.
. The Supreme Court of the United States was faced with a similar situation in Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), in which federal agents had searched a residence and seized "nontaxpaid liquor." For the first time before the Supreme Court the government sought to justify this action as a search incident to the arrest of the defendant. The Court dismissed this argument, noting that "we do not consider this issue fairly presented by this case, for the record fails to support the theory now advanced by the Government. The testimony of the federal officers makes clear beyond dispute that their purpose in entering was to search for distilling equipment, and not to arrest petitioner.” 357 U.S. at 500, 78 S.Ct. at 1257-58. Gildehaus’s testimony in the instant case makes equally clear that his purpose was to search for drugs, not to arrest appellant for a parking violation.
. Emphasis is mine throughout this opinion. |
9,645,588 | 2023-08-22 21:29:11.285647+00 | Teague | null | TEAGUE, Judge,
dissenting.
Orwell and the assertive and aggressive majority of the Supreme Court of the United States, are you listening?
Today, an assertive and aggressive majority of this Court, by using the provisions of a parking statute, Art. 6701d, Section 96(a), V.A.C.S., which requires that all motor vehicles stopped or parked upon a two-way roadway shall be so stopped or parked with the right-hand wheels parallel to and within eighteen (18) inches of the right-hand curb or edge of the roadway, is able to hold that the warrantless arrest of the appellant was based upon probable cause, thus causing the incidental search of his motor vehicle to be lawful. Henceforth, “any citizen [of this State] may be arrested for any petty parking violation and then [be] subjected to a [full scale and complete] search of his person and vehicle, entirely at the discretion of the officer in the field [for committing that violation].” (My emphasis.) (Clinton, J., dissenting opinion that was filed in this cause.)
Even though perhaps, but only perhaps,the present aggressive and assertive majority of the Supreme Court, in its quest to cause the Fourth Amendment to somehow vanish from the Bill of Rights to the Federal Constitution, would not hold that an unlawfully parked, but lawfully occupied by its driver, motor vehicle would give a police officer probable cause to order the driver to remove himself from the vehicle and to make a warrantless arrest, and then, pursuant to the arrest, the lawful right to conduct a full scale and complete warrantless search of the driver and the motor vehicle, cf. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), nevertheless, I would hold that for this type violation of the law, a petty parking traffic violation, as this Court is permitted to do, see Harrington, “The Texas Bill of Rights and Civil Liberties,” 17 Texas Tech. Law Review (No. 5, 1986), that under the Texas Constitution a warrantless arrest *106and warrantless search based upon a petty, minor traffic violation, here, violation of a parking1 statute, is against the public policy of this State, and is unjustified, unwarranted, and impermissible if the defendant signs the promise to appear as provided in Section 148 of Art. 6701d, V.A.C.S. My view comports with what the Uniform Vehicle Code and Model Traffic Ordinance § 16-201-206 (rev. 1971) (Supp.1972), recommends; what the American Law Institute has recommended, see ALI Model Code of Pre-Arraignment Procedure § 3.02(4) (Tent.Draft No. 2, 1969); and what the A.B.A. Standards Relating to Pretrial Release § 2.1 (Tent.Draft March 1968) has recommended. Also see State v. Hehman, 90 Wash.2d 45, 578 P.2d 527 (Wash.Sup.Ct.1978).
Neither my staffs manual research nor my own independent manual research, nor even our access to the more technologically enlightened ways of doing research, has revealed a single case where any court in this nation, State or Federal, even the Supreme Court of the United States, has ever held, as this Court does today, that a police officer can make a custodial arrest of an individual who does nothing more than violate a parking statute or ordinance, and then, pursuant to the arrest, conduct a full scale and complete search of both the driver and vehicle. This lack of authority is understandable, given the fact that most rational appellate court judges divide traffic violations into two groups: “First there is the group of violations, of which double parking is an example, where a notice of violation is issued and the driver is permitted to go on his way. The presumption is that drivers who double park or have a defective taillight are not necessarily a hazard on the road or to the community and are not necessarily considered dangerous criminals. This is considered to be a ‘routine traffic stop’ ... The second group of violations includes such offenses as driving without a license [, driving while license is suspended,] or driving while intoxicated. These offenses are usually considered moving violations. In these instances the violator may not be permitted to drive away and may therefore be subject to custody arrest ...” Farrington, “Police May Conduct Full Search Incident to Custody Arrest for Traffic Violation,” Vol. 1, No. 3, January, 1974, Search and Seizure Law Report.
In this instance, the facts are obviously clear that the appellant’s transgression fell within the first category.
Given what the majority opinion states in Vicknair v. State, — S.W.2d-(Tex.Cr.App., No. 036-84, delivered this date), that failure to have all of the items on a motor vehicle that is subject to being inspected in good working order, or which items require any kind of adjustment, will give rise to probable cause to arrest and search a motorist and his motor vehicle, this opinion, that holds that a violation of a parking statute will give rise to probable cause to arrest and search a motorist and his motor vehicle, is really not all that shocking. Thus, at first blush, in light of Vicknair, supra, the majority opinion appears unremarkable.
What is so striking and remarkable about the majority opinion, however, is its studied air of unreality and its total and complete lack of sensitivity of, if not total outright ignorance of, the provisions of the Texas Constitution and the statutes of this State that govern warrantless searches and seizures. Today’s majority opinion is thus actually troubling less for the law it creates than for the constitutional and statutory law of this State that it ignores or refuses to accept.
Harrington, see supra, has expressed the belief that “[T]he last page [on the law of warrantless searches and seizures] remains to be written [by the Court of Criminal Appeals].” Given what an aggressive and assertive majority of this Court has now laid down to be the law regarding warrant-less arrests, searches, and seizures of drivers and their automobiles, at least for the present and near future, I am not so sure Harrington is correct.
However, this is not to state that there will not in the future be any dissenting opinions by me in this area of the law, because I honestly believe that such dissenting opinions as this one, and the one *107that Judge Clinton has written in this cause, will at least let those out there in the hinterlands who still believe in the respective Bills of Rights, as well as the statutory laws of this State, know that the flames of liberty and freedom have not yet been totally extinguished by all members of the Court of Criminal Appeals. Some of us do care!!!
Therefore, at this time, I will do no more than echo Judge Clinton’s fulminating, but thought provoking, concluding comment that he makes in the dissenting opinion that he files in this cause: “I must dissent to another crippling blow to constitutional protections underlying liberty interests held so dear by citizens in a free society.” I close by saying that hopefully in the not too far distant future a majority of this Court will regain its Texas constitutional and statutory sanity when it comes to applying the law applicable to warrantless arrests, searches and seizures of motorists and their motor vehicles, and will rule accordingly, rather than doing police officers’ work as it does in this cause. |
1,516,696 | 2013-10-30 06:32:58.752404+00 | Beckwith | null | 916 F. Supp. 692 (1995)
SCIOTO COUNTY REGIONAL WATER DISTRICT NO. 1, Authority, Plaintiff,
v.
SCIOTO WATER, INC., et al., Defendants.
No. C-1-95-204.
United States District Court, S.D. Ohio, Western Division.
November 15, 1995.
*693 *694 *695 *696 John William Hust, Cincinnati, OH, Louis T. Rosenberg, San Antonio, TX, for plaintiff.
Steven Lee Mowery, Wheelersburg, OH, Susanne M. Cetrulo, Edgewood, KY, for defendants.
ORDER
BECKWITH, District Judge.
This matter is before the Court upon the following motions: (1) Defendant and Counterclaimant Scioto Water, Inc.'s (SWI) Application for Preliminary Injunction, Permanent Injunction, and Declaratory Judgment (Doc. no. 36), Plaintiff Scioto County Regional Water District No. 1, Authority's (Water 1) opposing memorandum and motion for summary judgment (Doc. no. 49), SWI's reply memorandum and memorandum in opposition to Water 1's motion for summary judgment (Doc. no. 54)[1], and Water 1's reply in support of its motion for summary judgment (Doc. no. 73); (2) Rural Economic and Community Development Service's (RECDS) Motion for a More Definite Statement and Counterclaim[2] (Doc. no. 42); (3) Water 1's Motion for a More Definite Statement Pursuant to Fed.R.Civ.P. 12(e), Alternatively, Motion to Strike Pursuant to Fed.R.Civ.P. 12(f) (Doc. no. 46); and (4) SWI's Motion to Strike and Motion for Leave to Supplement Memoranda in Response to Water 1's Reply (Doc. no. 74).
I. RECDS's Motion for a More Definite Statement
RECDS moves the Court to strike SWI's cross-claim for indemnification. Because the Court has dismissed all of Water 1's claims against SWI, RECDS's motion is DENIED as moot.
II. SWI's Motion to Strike
SWI moves the Court to strike Water 1's reply memorandum in support of its motion for summary judgment. SWI contends that the reply violates the federal rules because it raises new issues, cites additional case law, and exceeds the scope of a proper reply. In the event the Court declines to strike the reply, SWI requests leave to respond to the new issues raised in the reply.
The reply brief submitted by Water 1 addresses many of the same issues raised in its motion for summary judgment. Although Water I has raised a new issue in its reply regarding the applicability of the Parker Governmental Immunity Doctrine, the Court deems it unnecessary to address that issue in order to rule on the summary judgment motion. Because the reply brief does not otherwise exceed the scope of the issues raised in Water 1's motion for summary judgment, the motion to strike is hereby DENIED. Further, because the Court will consider only those issues which the parties have had an opportunity to address, SWI's request for leave to respond to new issues raised in the reply is DENIED.
III. Water 1's Motion to Strike SWI's Response
Water 1 moves the Court to strike SWI's response to its motion for summary *697 judgment as untimely. Water 1 filed its response to SWI's application for injunctive and declaratory relief and its motion for summary judgment on July 10, 1995. On July 18, 1995, SWI filed a reply memorandum in support of its application for injunctive and declaratory relief. On August 23, 1995, SWI moved the Court to treat the reply memorandum as its response to Water 1's motion for summary judgment. The Court granted SWI's request on September 7, 1995. Nonetheless, Water 1 claims that the Court should not consider the response because it is untimely and SWI has not demonstrated excusable neglect for the delay. Water 1 claims that the Court should consider its claims to be undisputed in light of SWI's failure to file a timely response and should grant summary judgment in Water 1's favor.
The Court declines to strike SWI's response. SWI responded to Water 1's opposing memorandum in a timely manner, but captioned it only as a reply memorandum in support of its application for injunctive and declaratory relief rather than as both a reply memorandum and a memorandum in opposition to Water 1's motion for summary judgment. SWI's omission does not warrant treating Water 1's claims as undisputed and granting summary judgment in Water 1's favor. Accordingly, Water 1's request to strike SWI's response to its motion for summary judgment is DENIED.
IV. Motion for a More Definite Statement
Water 1 moves the Court to require SWI to provide a more definite statement of its counterclaims. In support of its motion, Water 1 alleges that the actions which SWI challenges as violative of 7 U.S.C. § 1926(b) are privileged and protected methods of seeking redress.[3] Water 1's further contends that SWI has not alleged any facts which give Water 1 adequate notice as to the basis of its alleged liability for the Sherman Act violations asserted in Count II.
Count I provides adequate notice of SWI's claims under § 1926(b) and the basis for them. Water 1's contention that its actions are privileged and cannot give rise to a claim under § 1926(b) goes to the merits of SWI's claims and is not an appropriate basis for striking same.
As to Count II, the Court agrees that SWI has failed to give Water 1 adequate notice of the basis for its claims under the Sherman Act, 15 U.S.C. § 1 and § 2. Count II simply incorporates the allegations of the complaint and states that Water 1 "has engaged in anti-competitive and monopolistic conduct in direct violation of 15 U.S.C. § 1 and § 2." However, because the Court finds as a matter of law that SWI cannot establish a Sherman Act violation, to require SWI to provide a more definite statement of its claims would be futile.[4] Accordingly, Water 1's motion for a more definite statement is DENIED. The Court will dispose of the claims on their merits.
V. SWI's Application for Injunctive and Declaratory Relief
Defendant/Counterclaimant SWI moves for injunctive and declaratory relief on two grounds. First, SWI claims that Water 1 has violated 7 U.S.C. § 1926(b) by filing the complaint and the applications for a temporary restraining order and a preliminary injunction. Second, SWI contends that Water 1 has violated § 1926(b) by extending its transmission lines and expanding its service into SWI's service area. SWI asserts that Water 1 has consequently impaired its ability to repay its existing FmHA indebtedness. SWI further alleges that Water 1 has acted to interfere with SWI's construction of its own wellfield and water treatment plant by corresponding with FmHA officials, state clearing house officials, township trustees, other governmental agencies, state and federal legislators, and the EPA, and by filing appeals to the EPA, Ohio Valley Regional Development Commission, Environmental Board of Review, and the Franklin County, Ohio, Court of Appeals. SWI claims that *698 Water 1 has acted with the intent to impair SWI's ability to serve its customers and to reduce its water rates for current customers and projected future customers.
SWI further asserts that Water 1 has engaged in anti-competitive and monopolistic conduct in direct violation of 15 U.S.C. § 1 and § 2. SWI also claims that Water 1 has maliciously and tortiously interfered with the contractual relationship between SWI and the FmHA. In support of the latter claim, SWI contends that Water 1 has directed correspondence to various agencies, including the United States Department of Agriculture, seeking the withholding of committed funds for SWI's construction project.
SWI seeks a declaration that it is indebted to the FmHA; that it is entitled to the protections afforded under § 1926(b); and that it has the right to provide water service to new customers which are not currently served by any other water entity and which are included within the Farmers Home Administration (FmHA) and Ohio Environmental Protection Agency (EPA) plans for Phase I and Phase II of SWI's water distribution project. SWI also requests an injunction enjoining Water 1 from interfering with the operation of the wellfield and treatment plant constructed by SWI, from interfering with any contract between SWI and FmHA, and from providing water outside of Water 1's court-created water district.[5] Finally, SWI seeks an order requiring Water 1 to transfer its transmission lines and properties located within the Townships of Porter, Vernon and Blume in Scioto County, Ohio, to SWI since such lines lie outside of Water 1's court-created water district.
A. Preliminary Injunction
SWI claims that the requirements for a preliminary injunction are satisfied in that Water 1 has clearly violated § 1926(b), SWI has demonstrated its likelihood of success on the merits, SWI will suffer irreparable harm if an injunction is not granted, other remedies are inadequate, and no harm will result to third parties if a preliminary injunction is issued since SWI does not serve, and does not intend to serve, current customers of Water 1.
In determining whether to grant a preliminary injunction, the court must consider: (1) whether, absent the injunction, the moving party would suffer irreparable injury; (2) whether the moving party has demonstrated a substantial likelihood of success on the merits; (3) whether the injunction would have a harmful effect on third parties; and (4) whether the public interest would be served by the injunction. USACO Coal Company v. Carbomin Energy, Inc., 689 F.2d 94, 98 (6th Cir.1982); Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir.1982).
In order to obtain a preliminary injunction, the harm that would result in the absence of the injunction must be irreparable, not merely substantial. Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974). Irreparable injury must include more than a determinable monetary loss. Id. The possibility that adequate relief will be available at a later point in the litigation weighs heavily against a claim of irreparable harm. Id. at 90, 94 S.Ct. at 953 (citation omitted).
SWI has failed to demonstrate that it will suffer irreparable harm if a preliminary injunction is not granted. SWI alleges only that it will be irreparably harmed if it is enjoined from completing Phase II of its project, in which event it will be unable to pay its indebtedness to the FmHA on the completed Phase I of the project, i.e., construction of the wellfield and water treatment plant, which will in turn lead to SWI's financial ruin. However, the Court has denied Water 1's request for injunctive relief and has dismissed all of Water 1's claims against SWI. Accordingly, SWI is in no danger of having this Court issue an injunction against it.
Furthermore, SWI has not demonstrated a substantial likelihood of success on the merits of the sole claim on which the Court finds that it is entitled to proceed, i.e., that Water *699 1 has violated § 1926(b) by extending its lines into, and serving customers within, SWI's service area. Although SWI is clearly an indebted association under § 1926(b) and is entitled to the protections afforded by the statute, the Court is unable to conclude at this point that there is a substantial likelihood that SWI will ultimately prevail on its claim that Water 1 has infringed its rights under the statute.[6]
Finally, it appears that water customers in the disputed areas will be served by one of the parties whether or not an injunction is issued. Therefore, although third parties would not be harmed by issuance of an injunction, neither would the public interest be served thereby. For these reasons, SWI's request for a preliminary injunction is hereby DENIED.
B. Water 1's Motion for Summary Judgment
1. Standard of Review
The summary judgment procedure under Fed.R.Civ.P. 56 is designed to secure a just, speedy and inexpensive determination of any action. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986). The court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a "genuine issue as to any material fact and [whether] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the nonmovant's case. Celotex, 477 U.S. at 321, 106 S.Ct. at 2552; Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). If the moving party meets this burden, then the nonmoving party "must set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Guarino, 980 F.2d at 405. The evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970)). There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Conclusory allegations, however, are not sufficient to defeat a motion for summary judgment. McDonald v. Union Camp. Corp., 898 F.2d 1155, 1162 (6th Cir. 1990).
2. § 1926(b)
SWI claims that Water 1 has instituted legal and other proceedings in violation of § 1926(b) in order to halt completion of SWI's water project. Water 1 does not dispute the fact that it has sought administrative, legislative and judicial remedies for the purpose of halting SWI's project. However, Water 1 claims that its actions are lawful and are constitutionally protected under the First Amendment to the United States Constitution, which guarantees the right to petition the government for a redress of grievances. Water 1 contends that because its actions are protected under the First Amendment, it is entitled to summary judgment on SWI's claim that it has violated § 1926(b) by seeking redress from courts and governmental agencies.
Water 1 is entitled to summary judgment on SWI's claim that it has violated § 1926(b) by petitioning administrative and judicial bodies for legal redress. Although the cases cited by SWI in support of its claim set forth the principle that § 1926(b) prohibits the curtailment of water services provided by an association indebted to the FmHA during the term of such indebtedness, none of these cases support the proposition that the institution of administrative or legal proceedings by a competing water association can constitute curtailment of water services in violation of § 1926(b). See City of Madison v. Bear Creek Water Ass'n., 816 F.2d 1057 (5th Cir. *700 1987); Jennings Water, Inc. v. City of North Vernon, 895 F.2d 311 (7th Cir.1989); CSL Utilities v. Jennings Water, Inc., 807 F. Supp. 490 (S.D.Ind.1992); Glenpool Utility Services v. Water Dist. No. 2, 861 F.2d 1211 (10th Cir.1988). The Court is unaware of any authorities which suggest that one's First Amendment right to petition the courts for redress of grievances is circumscribed to any extent by § 1926(b). In the absence of any such legal authorities, and based on the undisputed facts before the Court, Water 1 is entitled to summary judgment on SWI's claim that it has violated § 1926(b) by petitioning administrative agencies and the courts for relief.
As to SWI's claim that Water 1 has violated § 1926(b) by extending its water lines and expanding its service into SWI's service area, the facts and evidence before the Court are insufficient to enable the Court to determine whether Water 1 has curtailed SWI's provision of services in violation of § 1926(b) by undertaking such alleged actions. Therefore, this claim will be preserved for trial.
3. Sherman Act
Water 1 also claims that it is entitled to summary judgment on SWI's claims under the Sherman Act, 15 U.S.C. § 1 and § 2. Water 1 contends that its lawful petitioning for relief is protected activity under the Noerr-Pennington doctrine. SWI concedes that while legitimate advocacy to the government may be protected under the Noerr-Pennington doctrine, frivolous or sham attempts to interfere directly with the business of a competitor are illegal under the antitrust laws. SWI submits that discovery will reveal direct interference with the business of SWI by Water 1 and a pattern of baseless and repetitive proceedings brought for the sole purpose of injuring SWI's business.
The Noerr-Pennington doctrine holds that business interests may combine and lobby to influence the various branches of the government or administrative agencies without violating the antitrust laws since such activities are protected by the First Amendment right to petition the government for redress of grievances. Eaton v. Newport Bd. of Educ., 975 F.2d 292, 297-299 (6th Cir.1992), cert. denied, 508 U.S. 957, 113 S. Ct. 2459, 124 L. Ed. 2d 674 (1993). Thus, a cause of action under the Sherman Act cannot arise from conduct by a competitor to lawfully influence government decision-making. Barton's Disposal Service, Inc. v. Tiger Corp., 886 F.2d 1430 (5th Cir.1989).
The right to petition authorities to take official action is generally protected regardless of the motives of the petitioners. Eaton, 975 F.2d at 298 (citing Video Int'l. Prod., Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988), cert. denied, 491 U.S. 906, 109 S. Ct. 3189, 105 L. Ed. 2d 697 (1989)). This is true even where the petitioning activity has the intent or effect of depriving another of property interests. Id. The right to petition the government for redress of grievances includes the right to seek relief from the courts. Nestle Ice Cream Co. v. N.L.R.B., 46 F.3d 578, 585 (6th Cir.1995) (citing California Motor Transport Co. v. Trucking, Unltd., 404 U.S. 508, 510, 92 S. Ct. 609, 611-12, 30 L. Ed. 2d 642 (1972)).
The United States Supreme Court has carved out a narrow "sham" exception to the Noerr-Pennington doctrine. The exception covers cases where the defendant intended to use the petitioning process merely to harass the plaintiff. Eaton, 975 F.2d at 298. There is no First Amendment right to pursue baseless litigation. Nestle Ice Cream, 46 F.3d at 585. A pattern of baseless, repetitive claims may establish the sham nature of the petitioning activity and result in the loss of any privilege under the First Amendment. California Motor, 404 U.S. 508, 92 S. Ct. 609.
Litigation is "sham" if it satisfies a two-part test. Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 59-61, 113 S. Ct. 1920, 1928, 123 L. Ed. 2d 611 (1993). First, the lawsuit must be objectively baseless in that no reasonable litigant could realistically expect success on the merits. Id. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, an antitrust claim premised on the *701 sham exception must fail. Id. The existence of probable cause to institute legal proceedings precludes a finding that the litigation was sham. Id.
Only if the challenged litigation is objectively meritless may a court examine the litigant's subjective motivation. Id. Evidence of anticompetitive intent or purpose alone cannot transform otherwise legitimate petitioning activity into a sham. Id.
The Court may determine whether there was probable cause for Water 1 to bring its claims as a matter of law. See Columbia Pictures, 508 U.S. at 63, 113 S.Ct. at 1930. The Court finds that there was probable cause for Water 1 to pursue its claims. Water 1's claims, which have been dismissed by the Court, were not objectively baseless in the sense that no reasonable litigant could have realistically expected success on the merits of such claims. Water 1 brought claims under § 1926(b) on the theory that it was a protected association under the terms of the statute. In its opinion dismissing Water 1's claims, the Court noted that the question of whether an entity in Water 1's position qualifies as an indebted association entitled to the protections of § 1926(b) is unsettled. (Doc. no. 59) The Court found that § 1926(b) did not define pertinent terms and that it was necessary to look beyond the statutory language in order to construe the meaning thereof. Although the Court acknowledged that one state court had construed the pertinent statutory provisions in the manner advocated by Water 1, the Court rejected that interpretation. However, the fact that the Court rejected Water 1's position does not mean that its position was frivolous or unreasonable. Rather, in light of the unsettled nature of the law, its action was arguably warranted by existing law or by a reasonable argument for the extension of existing law. Thus, the objective prong of the test for determining whether litigation is sham is not satisfied with regard to this lawsuit.
The same is true of those activities which Water 1 directed toward other governmental bodies and administrative agencies. As an arguably covered association under § 1926(b), Water 1 had an objectively reasonable basis for attempting to halt SWI's project by pursuing relief through administrative and legislative channels.
The Court need not consider SWI's contention that discovery will disclose the existence of sham activities by Water 1. Since the Court has found that Water 1 had probable cause to bring its claims, Water 1's intent in pursuing such claims is immaterial.[7] As a matter of law, the sham exception does not apply, and Water 1 is entitled to immunity from antitrust liability for SWI's claims under the Sherman Act.[8]
4. Tortious Interference
Although Ohio recognizes a cause of action for tortious interference, (See Juhasz v. Quik Shops, Inc., 55 Ohio App. 2d 51, 9 O.O.3d 216, 379 N.E.2d 235 (1977)), Water 1 contends that is immune from liability under the applicable law. It has been held that the Noerr-Pennington doctrine immunizes certain actions to influence the government from liability under state law for tortious interference with business, subject to the sham exception set forth above. See, e.g., In re IBP Confidential Business Documents Litigation, 755 F.2d 1300, 1309 (8th Cir. 1985), (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915, 102 S. Ct. 3409, 3426-27, 73 L. Ed. 2d 1215 (1982)); Suburban Restoration Co., Inc. v. Acmat Corp., 700 F.2d 98 (2nd Cir.1983). The Court in Suburban Restoration reasoned that the federal courts have strongly suggested that imposing liability for filing a "non-sham lawsuit" under *702 state law would pose serious constitutional questions. Id. at 102.
This Court agrees that the Noerr-Pennington doctrine is not limited in application to antitrust claims. The doctrine is grounded on the First Amendment principle that an individual or entity has the right to pursue legitimate efforts to influence government decision-making and to approach the courts in order to obtain redress of grievances. This principle applies whether those efforts are challenged under federal antitrust law or under state law.
Furthermore, the United States Supreme Court in Columbia Pictures suggested that the Noerr-Pennington doctrine applies to claims other than those brought under the antitrust laws. The Court stated as follows:
Whether applying Noerr as an antitrust doctrine or invoking it in other contexts, we have repeatedly reaffirmed that evidence of anticompetitive intent or purpose alone cannot transform otherwise legitimate activity into a sham....
Because Water 1 had an objectively reasonable basis for attempting to stop SWI's projects, the Noerr-Pennington doctrine immunizes Water 1 from liability for its petitioning activities. Water 1 is therefore entitled to summary judgment on SWI's tortious interference claim.
VI. Conclusion
The Court hereby DENIES Defendant RECDS's Motion for a More Definite Statement (Doc. no. 42), Plaintiff Water 1's Motion for a More Definite Statement or, Alternatively, Motion to Strike (Doc. no. 46), Defendant SWI's Motion to Strike and Motion for Leave to Supplement Memoranda (Doc. no. 74), and Defendant SWI's Application for Preliminary Injunction, Permanent Injunction, and Declaratory Judgment (Doc. no. 36).
The Court hereby GRANTS Water 1's Motion for Summary Judgment (Doc. no. 49) with respect to SWI's claims that (1) Water 1 has violated § 1926(b) by petitioning government agencies and courts for legal redress for alleged wrongs by SWI, (2) Water 1 has violated the Sherman Act, and (3) Water 1 is liable for tortious interference with SWI's business.
Water 1's motion for summary judgment (Doc. no. 49) is DENIED with respect to SWI's claim that Water 1 has violated § 1926(b) by extending its lines and expanding its service into SWI's service area.
IT IS SO ORDERED.
NOTES
[1] The Court granted SWI's request that its reply memorandum be treated as its response to Water 1's motion for summary judgment by Order dated September 7, 1995 (Doc. no. 70).
[2] The "counterclaim" is actually a cross-claim against Defendant SWI.
[3] Section 1926(b) states, in pertinent part, that the service provided by a water facility "shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan"...
[4] See Section V(B)(3) below.
[5] In support of its request for injunctive relief, SWI refers the Court to its response to Water 1's application for injunctive relief (Doc. no. 17), its motion to dismiss and supporting memorandum (Doc. no. 16), and its counterclaim filed against Water 1 (Doc. no. 32).
[6] Because SWI will not suffer irreparable harm if the Court denies its request for a preliminary injunction, the Court finds that a hearing on the merits of the claim in order to determine the likelihood of success is not warranted.
[7] Even if the Court were required to examine evidence of subjective intent, SWI has not alleged any facts which demonstrate that Water 1's actions have merely been a ruse and that Water 1 has not truly sought favorable government action. This is despite the fact that SWI has had several months to conduct discovery.
[8] In addition, to the extent SWI wishes to pursue a claim under Section 1 of the Sherman Act, Water 1 is entitled to summary judgment on the ground that there can be no conspiracy by a single entity acting on its own behalf. Greenwood Utilities Comm'n. v. Mississippi Power Co., 751 F.2d 1484, 1497 (5th Cir.1985). |
Subsets and Splits