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5,720,288 |
Rose, J. Appeal from a decision of the Workers’ Compensation Board, filed August 17, 2005, which ruled that claimant did not sustain a causally related occupational disease and denied his claim for workers’ compensation benefits. Claimant, a laborer, ceased working for his employer of two years in May 2002 when he began experiencing back pain. One month later, he submitted an application for disability benefits in which he averred that his disability was due to a disc herniation that occurred at home while he was coughing, and his chiropractor indicated that his disability was not an occupational disease arising out of and in the course of his employment. As a result of that application, claimant was awarded disability benefits for the time period between May 29, 2002 and December 3, 2002. Notwithstanding such award, claimant submitted a claim for workers’ compensation benefits in November 2002, maintaining that his back injury was an occupational disease caused by the “constant bending, stooping and heavy lifting” associated with his job. Following a hearing, during which only claimant and his employer offered testimony, a Workers’ Compensation Law Judge (hereinafter WCLJ) determined that claimant’s back injury was work related and established his claim. Upon review, *923the Workers’ Compensation Board rescinded the decision of the WCLJ and directed that the case be restored to the trial calendar for development of the record on the issue of causal relationship, with claimant to produce “medical evidence relating to his disability claim, as well as any prior medical treatment for [his] back.” Upon consideration of the medical opinions subsequently provided by physicians for both claimant and the employer, a WCLJ concluded that the record lacked evidence to support a finding of occupational disease, notice or causal relationship, and disallowed the claim. That decision was affirmed by the Board, prompting this appeal by claimant. We affirm. Despite his initial denials, a review of the record reveals that claimant had previously been treated for back pain. When questioned about the MRI he had undergone in 1997, claimant admitted that he suffered a herniated disc, but maintained that “it [was] not the same disc as now.” In contrast, the carrier’s medical expert, who reviewed claimant’s MRIs from both 1997 and 2002, opined that claimant’s May 2002 back ailment “was an aggravation of a preexisting condition, which does not appear to have been due to a specific work-related incident in May of 200[2].”* Furthermore, although afforded the opportunity to produce medical evidence supporting his contention that his present injury was not related to his prior condition, claimant was unable to recall the name of his treating physician in 1997 and did not present the Board with the medical records relating to his disability claim. When confronted with the lack of such evidence, the Board was within its province to accept the opinion of the carrier’s medical expert (compare Matter of Currier v Manpower, Inc., of N.Y., 280 AD2d 790, 791 [2001]) and arrive at the conclusion that claimant had failed to evince a recognizable link between his employment and his injury. As such, we decline to disturb the Board’s decision (see Matter of Lumia v City of N.Y., Off. of Queens Borough President, 21 AD3d 600, 601 [2005]). Cardona, RJ., Spain, Carpinello and Kane, JJ., concur. Ordered that the decision is affirmed, without costs. Although the medical report in the record states “May 2003,” the physician, in his deposition testimony, confirms that he meant to write May 2002.
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opinion_xml_harvard
| 575 |
2022-01-12 16:08:29.5033+00
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020lead
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t
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f
| 5,863,974 | null | null |
U
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f
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Published
| 0 |
Keenan v. Pinnacle Enterprises, Ltd.
|
Keenan
|
In the Matter of the Claim of John Keenan v. Pinnacle Enterprises, Ltd., Workers' Compensation Board
| null | null | null | null | null | null | null | null | null | 62,221,916 | null | 0 |
nyappdiv
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SA
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t
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Appellate Division of the Supreme Court of New York
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Appellate Division of the Supreme Court of the State of New York
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1,974,478 |
48 Pa. Commw. 135 (1979) Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, Appellant v. Richard E. Antram, Appellee. No. 2308 C.D. 1978. Commonwealth Court of Pennsylvania. Argued November 15, 1979. December 20, 1979. Argued November 15, 1979, before Judges WILKINSON, JR., BLATT and MacPHAIL, sitting as a panel of three. Harold H. Cramer, Assistant Attorney General, with him, Robert W. Cunliffe, Deputy Attorney General and Gerald Gornish, Acting Attorney General, for appellant. No appearance for appellee. *136 OPINION BY JUDGE WILKINSON, JR., December 20, 1979: The Department of Transportation (Department) appeals from an order of the Court of Common Pleas of Somerset County ordering the Secretary of Transportation to reinstate the operating privileges of the appellee. Appellee's operator's license had been suspended by the Department on November 3, 1976 for failure to satisfy a judgment awarded by the court of common pleas. The suspension was superseded during an appeal to the court of common pleas. Subsequently the court of common pleas dismissed appellee's appeal and affirmed the suspension. The suspension of appellee's operator's license was reinstated, effective March 17, 1977. On May 1, 1977 appellee drove during suspension, a violation of Section 1543 of the Vehicle Code, 75 Pa. C.S. § 1543. Appellee was convicted on July 18, 1977 for the violation. The Department received a certified record of the conviction and on January 11, 1978 issued an Official Notice revoking appellee's operating privileges for a period of one year, effective February 1, 1978. Since appellee's license had been suspended, and not revoked, at the time he committed his violation of Section 1543, the notice incorrectly stated that the revocation was to be for one year. In accordance with Section 1543(b), 75 Pa. C.S. § 1543(b), the period of revocation should have been six months. Appellee took an appeal to the court of common pleas. A hearing was held on July 10, 1978. At that hearing the Department agreed that the revocation should have been for a period of six months rather than one year and argued that the court could correct the revocation to six months. The court held that it had no authority to correct the revocation order issued by the Department but that it could only sustain the *137 revocation or reverse it. Since the Department's order erroneously imposed a revocation for a period of one year, the court reversed the order and directed reinstatement of appellee's license. In Department of Transportation, Bureau of Traffic Safety v. Kobaly, 477 Pa. 525 , 384 A.2d 1213 (1978), the Pennsylvania Supreme Court held that in a motor vehicle inspection license suspension case, where the trial court, after trial de novo, makes findings of fact or conclusions of law which are different from those made by the Department, the trial court is vested with authority to modify the penalty imposed by the Department. That case cannot be distinguished from the present case, particularly where the statute mandates the revocation. Cf. Department of Transportation, Bureau of Traffic Safety v. Wiley, 19 Pa. Commw. 589 , 338 A.2d 790 (1975); Nyman Motor Vehicle Operator License Case, 218 Pa. Super. 221 , 275 A.2d 836 (1971). In this motor vehicle operator's license suspension case, the trial court, after trial de novo, made a conclusion of law different from that made by the Department. Therefore, the court of common pleas was vested with authority to correct the period of revocation imposed by the Department. Accordingly, we will enter the following ORDER AND NOW, December 20, 1979, the order of the Court of Common Pleas of Somerset County, docketed at No. 27 Civil 1978, dated September 6, 1978, directing the Secretary of Transportation to reinstate the operating privileges of Richard E. Antram, is reversed. The Official Notice of the Department of Transportation, dated January 11, 1978, revoking the motor vehicle operating privileges of Richard E. Antram for a period of one year, is corrected to a period *138 of revocation of six months and, as modified, is affirmed.
|
opinion_html_with_citations
| 666 |
2013-10-30 07:57:34.731947+00
|
010combined
|
f
|
f
| 1,974,478 |
Blatt, MacPhail, Wilkinson
| null |
LU
|
f
|
Published
| 1 |
Bureau of Traffic Safety v. ANTRAM.
|
ANTRAM.
|
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, Appellant v. Richard E. Antram, Appellee
| null | null |
<parties id="b189-3">
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, Appellant
<em>
v.
</em>
Richard E. Antram, Appellee.
</parties><br><otherdate id="b189-6">
Argued November 15, 1979,
</otherdate><judges id="ACa">
before Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three.
</judges><br><attorneys id="b189-9">
<em>
Harold H. Cramer,
</em>
Assistant Attorney General, with him,
<em>
Robert W. Cunliffe,
</em>
Deputy Attorney General and
<em>
Gerald Gornish,
</em>
Acting Attorney General, for appellant.
</attorneys><br><attorneys id="b189-10">
No appearance for appellee.
</attorneys><decisiondate id="A0G">
<span citation-index="1" class="star-pagination" label="136">
*136
</span>
December 20, 1979:
</decisiondate>
| null | null | null | null | null | null | 1,802,792 |
Appeal, 2308 C.D. 1978
| 0 |
pacommwct
|
SA
|
t
|
Commonwealth Court of Pennsylvania
|
Commonwealth Court of Pennsylvania
|
1,568,063 |
139 F.2d 465 (1943) FULD v. COMMISSIONER OF INTERNAL REVENUE, and three other cases. Nos. 69, 70. Circuit Court of Appeals, Second Circuit. December 30, 1943. O. R. Folsom-Jones, of Washington, D. C., for Leonard Felix Fuld and Florentine M. Fuld. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Morton K. Rothschild, Sp. Assts. to the Atty. Gen., for Commissioner of Internal Revenue. *466 Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. Leonhard Felix Fuld petitions for review of a decision of the Tax Court involving income taxes of about $19,000 for the year 1933, and the Commissioner of Internal Revenue files his cross-petition involving income taxes for that year of about $8,000. Florentine M. Fuld also petitions for review of the decision of the Tax Court involving her income taxes for the same year of about $19,000, and the Commissioner files his cross-petition involving her income taxes for that year of about $9,000. The proceedings in the two appeals, and cross-appeals, have been consolidated for hearing on a single record pursuant to our order of March 30, 1942. The taxpayers were brother and sister, each of whom was interested in investing in securities. Prior to October 9, 1930, they had purchased only for investment, and had no purpose of disposing of the securities in the course of trade or business but intended to hold them for an indefinite period. It was their belief that if investors acquired stocks in diversified companies which were leaders in a particular field and held those stocks over a sufficiently long period of time through successive business cycles, they would be able by the receipt of dividends from those stocks and from a long-term profit from them, to obtain a much larger return than would be possible by purchasing and holding investment bonds. Accordingly the taxpayers, prior to October 9, 1930, acquired primarily common stock, but also some preferred stock and bonds. Their only sales prior to October 9, 1930, were a few bonds, one 20 share lot of American Foreign Power Preferred stock and some scrip of fractional shares. Their principal source of income for livelihood prior to October 9, 1930, was interest and dividends on their securities. But in 1930 they changed their policy as to securities, because of their experience during and after the year 1929, and decided that they would pay as much attention to the sale of securities as they had in the past to purchasing them; in other words, they sought to obtain profits quickly rather than gradually over a long period of years, and, beginning October 9, 1930, they changed from a policy of investment to one of speculation by purchasing large lots ranging from 1,000 to 3,000 shares. In order to obtain funds to carry out this new policy of speculation they submitted to their brokers almost every week a list of their securities (acquired under their earlier investment policy) for the purpose of determining what was to be sold. To facilitate their new policy they began after October 9, 1930, and continued through 1933 to sell their old investments as fast as they could be disposed of with the exercise of reasonable discretion. In their income tax returns for the year 1933 the taxpayers offset losses incurred that year through the sale of some of the securities which they had bought for investment prior to October 9, 1930 (and consequently had held for more than two years prior to sale), against profits realized in 1933 from sales of securities held for less than two years. They did this because they regarded all their securities after they had changed their policy on October 9, 1930, as primarily held for sale in the course of a trade or business and not as mere investments. The Commissioner, however, refused to allow the offsets on the ground that the losses resulted from the sale of capital assets and were, therefore, capital and not ordinary losses and, under Section 101 of the Revenue Act of 1932, 26 U.S. C.A. Int.Rev.Acts, page 504, were only deductible to the extent of 12½ per cent. The Tax Court decided that each taxpayer was engaged in business on and after October 9, 1930, but prior to that time was not engaged in business because the previous purchases of securities had been only for investment purposes. It accordingly held that the assets purchased prior to October 9, 1930, and sold in the year 1933, were capital assets held only for liquidation and not for sale in the course of trade or business, and that the losses in respect of such capital assets could not be off-set against the profits on sales of securities held for less than two years but could only be deducted to the extent of 12½ per cent. It, however, allowed losses on sales of securities purchased after October 9, 1930, to be off-set against profits on sales of such securities because they were not capital assets as defined by Section 101(c) (8) of the Revenue Act of 1932. The Commissioner appeals on the ground that neither taxpayer was at any time engaged in business, and consequently all profits and losses were subject to limitation. The taxpayers appeal on the ground that all sales made in 1933 were in the course of trade or business and hence *467 an off-set of the losses from sales of securities purchased prior to October 9, 1930, and held for more than two years should have been allowed. We think the Tax Court was right and should be affirmed upon both appeals. The Tax Court made the following findings, based upon substantial evidence, as to the business activities of the taxpayers after their change of policy on October 9, 1930: "From 1930 and during 1933 Leonhard Fuld devoted an average of eight hours per day to the study of new texts, reading services, charting prices of securities, conferring with his broker, attending meetings of corporations in which he owned securities, and consulting with corporate executives. Some of this work also assisted him in connection with the college course which he taught. He spent about one or two hours per day at the broker's office. "Florentine Fuld had no trade or business other than buying and selling securities. In this connection she studied the services, read corporation annual reports, charted her own security prices, attended meetings of corporations in which she held securities, and consulted with corporate executives. It was her policy to buy and sell the same securities as Leonhard Fuld and in the same amounts, but in some instances she disagreed with him as to such purchases and sales. Her decisions in this connection were made independently of Leonhard's. She never visited the broker's office and had no direct conversations with the broker. Her orders were placed with the broker through Leonhard Fuld, who acted as agent only in the physical transmission of such orders and the acceptance of deliveries. "The main source of livelihood of both petitioners was from their securities transactions. They maintained no business office, had no customers to whom they might sell securities, practically never sold securities short, and never advertised or held themselves out to the public as dealers. However, Leonhard Fuld was registered with the Securities Exchange Commission as a dealer and as an investment counselor and was listed in the stock directories throughout the United States. Also, he acted for some of his college students in the consummation of security transactions but received no compensation therefor. Neither of the petitioners was a director, officer, or employee of any of the companies in which they purchased securities in 1930 and thereafter. * * * * * "Some of the securities held by petitioners for more than 2 years and sold in 1933 were acquired prior to the beginning of their new policy, October 9, 1930, and some of such securities were acquired subsequent to that date. In 1933, Leonhard Fuld made approximately 249 sales of securities held for more than 2 years and approximately 98 held for 2 years or less. Also, in the same year Florentine Fuld made approximately 229 sales of securities held for more than 2 years and approximately 89 held for 2 years or less. The sales of both petitioners ranged as high as 1,000 shares per transaction. "Beginning October 9, 1930, through 1933, petitioners were engaged in the business of trading in securities. Securities purchased by petitioners before October 9, 1930, and sold in 1933 were not sold `in the course of' that business. Those purchased after October 9, 1930, and sold in 1933 were sold `in the course of' that business." Upon the basis of the foregoing findings we must affirm the decision of the Tax Court unless it is clear as a matter of law that the taxpayers were not engaged in the business of trading in securities after October 9, 1930. The decision of the Tax Court may only be reviewed as to questions of law. 44 Stat. 110, § 1003(b), 26 U.S.C. A. Int.Rev.Code, § 1141(c) (1); Wilmington Trust Co. v. Helvering, 316 U.S. 164 , 62 S. Ct. 984 , 86 L. Ed. 1352 . This statutory rule has just been construed by the Supreme Court in the opinion of Mr. Justice Jackson in Dobson v. Commissioner, 64 S. Ct. 239 , 247, decided on December 20, 1943. He there discussed the functions of courts reviewing the Tax Court and remarked that when they "cannot separate the elements of a decision so as to identify a clear-cut mistake of law, the decision of the Tax Court must stand." The opinion of Mr. Justice Black in Commissioner v. Heininger, 64 S. Ct. 249 , 254, likewise decided on December 20, 1943, is to the same effect. The question there was whether certain deductions had been properly allowed by the Tax Court as "ordinary and necessary" expenses of business. Justice Black emphasized the weight to be given to decisions of the Tax Court and said: "Except where a question of law is unmistakably involved a decision of the Board of Tax Appeals on these issues, having taken into account the presumption *468 supporting the Commissioner's ruling, should not be reversed by the federal appellate courts. Careful adherence to this principle will result in a more orderly and uniform system of tax deductions in a field necessarily beset by innumerable complexities." Under the statute and the above rulings we cannot say that the Tax Court was not justified in finding that securities purchased by the taxpayers before October 9, 1930, and sold in 1933, were not held "primarily for sale in the course * * * of trade or business" and therefore were "capital assets" as defined in Section 101(c) (8) of the Revenue Act of 1932. [1] While the Tax Court held that some of the securities which had been purchased for investment prior to October 9, 1930, were sold by the taxpayers in 1933 in order that they might have on hand capital necessary to purchase securities in the course of their trade or business, it found that those prior purchases were held in the course of liquidating the investment activities and still remained a part of such activities. In support of the finding that the securities purchased prior to October 9, 1930, and sold in 1933, were not held by the taxpayers for sale in the course of their trade or business, it may reasonably be argued that those securities which they had purchased for investment were still held for about three years as investments and as a source of income and that when they were finally sold the sales were made either as a safeguard against danger of a further decline or in order to obtain funds with which to buy other securities for a quick turnover at a profit. The securities sold were not themselves available for or used in the speculative business in which the taxpayers became engaged. The inference to be drawn from the various transactions we have referred to was one of fact as to which the findings of the Tax Court that the securities were not held for sale in the course of business must prevail. Similar reasoning precludes us from supporting the Commissioner's contention that the taxpayer, Miss Florentine Fuld, was not engaged in business because she only spent some six hours a day in speculative activities as against more than that time on the part of her brother. But she had no other business and her speculative activities were very substantial both in time consumed and the amount and number of securities traded in. If the activities of either taxpayer were of the sort that would constitute a trade or business, the extent sufficient to bring them within the category of "capital assets" as defined in Section 101(c) (8), supra, was a question for the Tax Court. There only remains the contention of the Commissioner that the sales of securities purchased after the taxpayers changed their business policy in October, 1930, from one of investment to one of trading, as well as the sales of those purchased before that time, were sales of capital assets within the definition of Section 101(c) (8). In support of this contention it is argued that purchases and sales of securities by a speculator on his own account do not constitute a trade or business, even though the transactions be active and numerous, unless he holds himself out to others as "engaged in selling of goods or services." The argument is largely founded on the remarks of Mr. Justice Frankfurter in his concurring opinion in Deputy v. duPont, 308 U.S. 488 , at page 499, 60 S. Ct. 363 , at page 369, 84 L. Ed. 416 . We think that those remarks do not apply to the present situation. In Deputy v. duPont it did not appear that the taxpayer was trading in securities. His transactions, though involving a large amount of stock, related to the deductibility of certain expenses incurred in borrowing stock for allotment to junior officers of the duPont Company in order to assist it in obtaining shares for those officers and also in order to promote his own interest in the Company. The transactions were not a business but one enterprise. In the case at bar the taxpayers after October 9, 1930, were actively trading in securities rather than effectuating what amounted to a single deal. Moreover, it may fairly be said that persons engaged in speculating through brokers whether in *469 merchandise or in securities may equally hold themselves out as engaged in business. We so held in Winmill v. Commissioner, 2 Cir., 93 F.2d 494 , and while that decision was reversed in Helvering v. Winmill, 305 U.S. 79 , 59 S. Ct. 45 , 83 L. Ed. 52 , the reversal was only on the ground that brokers' commissions in such a business were to be treated as part of the price of securities rather than as a current expense of the business. See, also, Neuberger v. Commissioner, 2 Cir., 104 F.2d 649 , reversed on other grounds, 311 U.S. 83 , 61 S. Ct. 97 , 85 L. Ed. 58 . The Supreme Court in Spreckels v. Commissioner, 315 U.S. 626 , 62 S. Ct. 777 , 86 L. Ed. 1073 , apparently assumed that a taxpayer buying and selling securities on his own account was engaged in a trade or business, though there again the critical question was whether the commissions paid a broker by one speculating on his own account were part of the cost of the securities or a business expense. See, also, Commissioner v. Purdy, 1 Cir., 102 F.2d 331 . In addition to the foregoing arguments in support of the conclusions of the tax court, there is the long administrative practice and interpretation of the act, elaborately discussed in the taxpayers' brief, and nowhere controverted by the Commissioner, to the effect that persons who buy and sell securities on their own account are engaged in a trade or business. This construction is made still more evident by the amended definition of capital assets found in Section 117(b) of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 707, which provided that: "For the purposes of this title, `capital assets' means property held by the taxpayer (whether or not connected with his trade or business), but does not include stock in trade * * * of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business." That this amendment was regarded by the Board of Tax Appeals as a new limitation on the type of property excepted from the definition of "capital assets" is evident from their decision in O. L. Burnett v. Commissioner, 40 B.T.A. 605 , 607. The Conference Report dealing with this section of the 1934 Act said: "The Senate Amendment confines the exclusion to property held primarily for sale to customers in the ordinary course of the taxpayer's trade or business, thus making it impossible to contend that a stock speculator trading on his own account is not subject to the provisions of Section 117." House Rept. 1385, 73rd Cong., 2d Sess., p. 22. In view of the settled administrative practice we regard the amendment as not merely interpretative of existing law, but, as the Board held in O. L. Burnett, supra, a new limitation upon the exception in Section 101(c) (8) of the Act of 1932. For the foregoing reasons the orders are affirmed. NOTES [1] "§ 101. Capital Net Gains and Losses * * * * * * "(c) Definitions. For the purposes of this title * * * * * * "(8) `Capital assets' means property held by the taxpayer for more than two years (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale in the course of his trade or business."
|
opinion_html_with_citations
| 3,065 |
2013-10-30 06:48:08.51102+00
|
010combined
|
f
|
f
| 1,568,063 |
Swan, Augustus N. Hand, and Frank, Circuit Judges
| null |
LU
|
f
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Published
| 22 |
Fuld v. Commissioner of Internal Revenue
|
Fuld
|
FULD v. COMMISSIONER OF INTERNAL REVENUE, and Three Other Cases
| null | null |
<parties id="b529-5">
FULD v. COMMISSIONER OF INTERNAL REVENUE, and three other cases.
</parties><docketnumber id="Av7">
Nos. 69, 70.
</docketnumber><court id="Ane">
Circuit Court of Appeals, Second Circuit.
</court><decisiondate id="AuP">
Dec. 30, 1943.
</decisiondate><attorneys id="ALh">
O. R. Folsom-Jones, of Washington, D. C., for Leonard Felix Fuld and Florentine M. Fuld.
</attorneys><attorneys id="AmL">
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Morton K. Rothschild, Sp. Assts. to the Atty. Gen., for Commissioner of Internal Revenue.
</attorneys><br><judges id="b530-3">
<span citation-index="1" class="star-pagination" label="466">
*466
</span>
Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
</judges>
| null | null | null | null | null | null | 1,642,470 |
69, 70
| 0 |
ca2
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F
|
t
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Second Circuit
|
Court of Appeals for the Second Circuit
|
1,063,197 |
632 S.E.2d 607 (2006) 48 Va. App. 449 Keith A. STILES v. Pamela L. STILES. Record No. 2659-05-4. Court of Appeals of Virginia, Alexandria. August 1, 2006. *608 David L. Duff (The Duff Law Firm, on brief), Fairfax, for appellant. Erroll T. Moore (Robert A. Ades & Associates, P.C., on brief), for appellee. Present: KELSEY and McCLANAHAN, JJ., and BUMGARDNER, S.J. McCLANAHAN, Judge. On September 30, 2005, the trial court modified Keith A. Stiles's child support obligation. He maintains the trial court erred in making the modification "retroactive to January 1, 2002." [1] The father contends that Pamela L. Stiles's request for "retroactive modification" is barred by res judicata and laches, and precluded by Code § 20-108. Finding no reversible error, we affirm. BACKGROUND We view the evidence in the light most favorable to the mother. Mullin v. Mullin, 45 Va.App. 289, 299, 610 S.E.2d 331 , 336 (2005). The parties married in 1988, had two children (b.1987 and 1992), and were divorced by decree dated April 6, 1998. The decree ordered the father to pay monthly child support of $994 and monthly spousal support of $700. The father was dismissed from his job on April 29, 1999, and filed a lawsuit against his employer for wrongful termination. [2] He filed a petition to reduce his child and spousal support obligations and, by order dated February 10, 2000, the trial court reduced his monthly payments to $657 and $350 respectively. On December 26, 2000, the mother filed a Motion for Modification of Child Support and Alimony on the ground that the father had increased his income through other employment and "had been awarded $3.1 million dollars in a lawsuit." The cover letter that accompanied the petition to the clerk specifically requested that the case not be placed on the Court's docket "at this time." The petition was served on the father on January 5, 2001. Acting pro se, the father filed a Motion to Terminate Alimony due to the mother's cohabitation. After an ore tenus hearing on May 9, 2001, the trial court terminated the father's obligation to pay spousal support. [3] *609 On August 15, 2001, the mother sought assistance from the Division of Child Support Enforcement to increase the father's child support obligation. DCSE refused to take her case because "the case was not old enough." In December 2004, the mother again contacted DCSE. On April 15, 2005, DCSE filed a petition to intervene on her behalf and to modify child support. DCSE averred that financial hardship caused the mother to apply for food stamps and move out of her former home while the father's ability to pay substantially changed due to his $2.325 million settlement. The father subsequently filed a petition to recalculate child support because the eldest child would be emancipated in July 2005, and he requested the trial court place the matter on the docket for August 31, 2005. On August 24, 2005, the mother filed a Motion for Modification of Child Support requesting that the modified award be applied from December 2000, "the date on which her earlier Motion was filed, but never heard." She alleged that the father's "financial circumstances have materially changed since December 2000, which warrants an upward modification of his child support obligation." After an ore tenus hearing on August 31, 2005, the trial court determined that the mother's claim for modification of child support "was not litigated back in May 2001" and the "Final Order" entered at that time "did not resolve the dispute about child support." The court modified child support as of January 1, 2002, and held the father in arrears in the amount of $42,282, plus interest at the judgment rate. The father contends the trial court erred in finding that the mother's 2000 petition for modification of child support "remained alive" and in modifying child support "retroactive" to January 1, 2002. He maintains the mother's claim is barred by the doctrine of res judicata and asserts the defense of laches. Finally, he contends the trial court's "retroactive ruling" is contrary to the intent of Code § 20-108. ANALYSIS "We begin our analysis by recognizing the well-established principle that all trial court rulings come to an appellate court with a presumption of correctness. Thus, we will not invalidate a court's decree unless the only reasonable interpretation thereof requires invalidation." Riggins v. O'Brien, 263 Va. 444 , 448, 559 S.E.2d 673 , 675-76 (2002) (citation omitted). The father maintains the mother's pleading seeking modification of child support was before the trial court at the 2001 hearing and its order, titled "Final Order," disposed of all claims that had been or could have been litigated at that time. He thus contends the order disposed of the pending child support modification claim before the court. As such, he argues the mother's current prosecution of that claim is barred by res judicata and laches. We disagree. At the hearing, the trial court only addressed the father's motion to terminate spousal support based on the mother's cohabitation. There was no hearing, no consideration, and no adjudication of the mother's claim for modification of child support. The May 9, 2001 order specifically recited that "this cause came to be heard ... on the Plaintiff's/Defendant's motion for [sic] terminate alimony." The trial court's order addressed only spousal support and gave only one directive, which related solely to that claim: "For all the reasons stated on the record, alimony payable to the [mother] is terminated." While the court's order was captioned "Final Order," it did not remove the case from the docket or end the cause. See Travis v. Finley, 36 Va.App. 189, 195, 548 S.E.2d 906 , 909 (2001) (order was final as to determination of custody but not as to remaining claims regarding "contempt, visitation, child support, health insurance, attorney's fees and sanctions against mother"); Mina v. Mina, 45 Va.App. 215, 220, 609 S.E.2d 622 , 625 (2005) (holding that trial court did not lose jurisdiction in divorce case to hear wife's claim for attorney's fees more than twenty-one days after entry of order on merits of property-related claim where court had earlier bifurcated the two claims for trial); see also Estate of Hackler v. Hackler, *610 44 Va.App. 51, 60-62, 602 S.E.2d 426 , 430-31 (2004) (label of "Final Order" is not conclusive as to whether the matter is "still open"). We therefore conclude that the order adjudicating spousal support was not a final judgment with regard to child support, thus negating application of the res judicata bar. Unless there is a final judgment, res judicata is not applied. "[T]he party seeking to assert res judicata . . . must prove that the [tribunal] rendered a final judgment in its favor." Rusty's Welding Serv., Inc. v. Gibson, 29 Va.App. 119, 128, 510 S.E.2d 255 , 259 (1999) ( en banc ) (citing Straessle v. Air Line Pilots' Ass'n, Int'l, 253 Va. 349 , 353, 485 S.E.2d 387 , 389 (1997)). A judgment or decree, in turn, "`is final only when it disposes of the whole subject, gives all the relief that is contemplated and leaves nothing to be done by the court in the cause except its ministerial execution.'" Lewis v. Lewis, 271 Va. 520 , 528 n. 3, 628 S.E.2d 314 , 318 n. 3 (2006) (quoting Brooks v. Roanoke County Sanitation Auth., 201 Va. 934 , 936, 114 S.E.2d 758 , 760 (1960)). The father also maintains that the mother was obligated to act upon her petition in a timely fashion and by having failed to do so for more than four years, she defaulted her 2000 request for modification. Thus, he argues, the trial court's child support ruling, from which he claims he was prejudiced, is barred by the defense of laches. "` Laches is such neglect or omission to do what one should do as warrants the presumption that he has abandoned his claim, and declines to assert his right.'" Pittman v. Pittman, 208 Va. 476 , 479, 158 S.E.2d 746 , 749 (1968) (citation omitted). Laches is "an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party." Finkel Outdoor Prods., Inc. v. Bell, 205 Va. 927 , 933, 140 S.E.2d 695 , 699 (1965). [4] The mother asserted her right by filing the petition for modification of child support and serving it on the father in January 2001. She did not abandon her claim. [5] While the father contends the mother was required to exercise due diligence in pursuing her claim, the law requires the moving party to exercise "due diligence in the service" of a petition for support, and by implication a petition for modification of support, on the respondent. Peter N. Swisher, Lawrence D. Diehl, and James R. Cottrell, Family Law: Theory, Practice, and Forms § 10:2, 370 (2005). The father was served and had notice of her claim. Both parties could have, but did not, request the court to either address child support at the spousal support hearing or separately set the matter on the court's docket. Whether to apply laches to an equitable claim is a matter left to the discretion of the trial court. While parties are not encouraged to sit on their rights, the father was aware of the pending claim and neither party asked the court to address it until 2005. Furthermore, while the petition was pending, no evidence was lost. Cf. Rowe v. Big Sandy Coal Corp., 197 Va. 136 , 144, 87 S.E.2d 763 , 768 (1955) (thirty-three year delay in asserting claim to land is "unreasonable delay" "without excuse" resulting in "the loss of material evidence" that disadvantaged other parties and warranted the court's "denial of equitable relief"). Consequently, the father was not prejudiced by the delay. Finally, the father argues that the General Assembly could not have intended Code § 20-108 "to apply where a party serves a petition and, without justification or excuse, never acts on the same." [6] On the *611 contrary, that code section clearly allows the trial court to modify child support awards "with respect to any period during which there is a pending petition for modification in any court, but only from the date that notice of such petition has been given to the responding party." Code § 20-108; see also Riggins, 263 Va. at 447, 559 S.E.2d at 675. "[W]hether to make modification of a support order effective during a period when a petition is pending is entirely within the discretion of the trial court." O'Brien v. Rose, 14 Va.App. 960, 965, 420 S.E.2d 246 , 249 (1992); see also Cirrito v. Cirrito, 44 Va.App. 287, 310, 605 S.E.2d 268 , 279 (2004). The court's paramount concern when awarding child support is the best interest of the children. Code § 20-108; see also Riggins, 263 Va. at 447, 559 S.E.2d at 675; Conway v. Conway, 10 Va.App. 653, 658, 395 S.E.2d 464 , 466-67 (1990) ("The court must consider the basic needs of the child, the parent's ability to pay, and to the extent that the parent is able to provide more than the basic necessities of life, the degree to which the child should reasonably share in his or her parents' prosperity."). The father was served with the petition in January 2001. The trial court considered the changed circumstances of the parties and the best interest of the children and modified support as of January 1, 2002. Code § 20-108. On this record, we cannot say the trial court abused its discretion or was plainly wrong in modifying the award while the mother's petition was pending. CONCLUSION The trial court did not err in finding that neither res judicata nor laches barred its child support ruling. Accordingly, we affirm the court's modification of the child support award to January 1, 2002 and its finding that the father was in arrears in the amount of $42,282, plus interest. Affirmed. NOTES [1] The father does not contest the increase in the amount of child support. [2] On December 4, 2000, the father won a jury verdict of $3.1 million in the lawsuit, but the employer appealed. The parties settled the matter in June 2001, and the father received $2.325 million. As part of the settlement, he was rehired for one month and then retired with 25 years of service. His retirement benefits of $3,300 per month commenced in December 2002. [3] The father agreed, by letter dated July 12, 2001, to provide additional support for the children and moved to Florida at the end of August 2001. He does not seek credit for these nonconforming payments, but contends the court's child support award resulted in a windfall to the mother. [4] However, the defense does not apply to one who is "ignorant of [her] rights. . . . This defense is only permitted to defeat an acknowledged right on the ground that laches affords evidence that the right has been abandoned." Rutledge v. Rutledge, 204 Va. 522 , 530, 132 S.E.2d 469 , 475 (1963) (citation omitted). See also Craufurd v. Smith, 93 Va. 623 , 631, 23 S.E. 235 , 237 (1895) ("No lapse of time, no delay in bringing the suit, however long, will defeat the remedy in cases of fraud or mutual mistake, provided the injured party, during all this interval, was ignorant of the fraud or mistake without fault on his part."). [5] Moreover, the mother requested assistance from DCSE in 2001 to modify the child support award, but DCSE rejected her case. [6] The father's third Question Presented is that "The intent of Code § 20-108.1 precludes the trial judge's retroactivity ruling." However, he conceded at oral argument that Code § 20-108 was the applicable statute.
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opinion_html_with_citations
| 2,292 |
2013-10-09 19:12:44.601455+00
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010combined
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| 1,063,197 |
McCLANAHAN
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LCU
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Published
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Stiles v. Stiles
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Stiles
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Keith A. STILES v. Pamela L. STILES
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<citation data-order="0" data-type="citation" id="b497-4">
632 S.E.2d 607
</citation><parties data-order="1" data-type="parties" id="AkN">
Keith A. STILES v. Pamela L. STILES.
</parties><br><docketnumber data-order="2" data-type="docketnumber" id="b497-7">
Record No. 2659-05-4.
</docketnumber><br><court data-order="3" data-type="court" id="b497-8">
Court of Appeals of Virginia, Alexandria.
</court><br><decisiondate data-order="4" data-type="decisiondate" id="b497-10">
Aug. 1, 2006.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b499-3">
<span citation-index="1" class="star-pagination" label="451">
*451
</span>
David L. Duff (The Duff Law Firm, on brief), Fairfax, for appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b499-4">
Erroll T. Moore (Robert A. Ades & Associates, P.C., on brief), for appellee.
</attorneys><br><p data-order="7" data-type="legal" id="b499-5">
Present: KELSEY and McCLANAHAN, JJ., and BUMGARDNER, S.J.
</p>
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<attorneys data-order="5" data-type="attorneys" id="b499-3">David L. Duff (The Duff Law Firm, on brief), Fairfax, for appellant.</attorneys> <attorneys data-order="6" data-type="attorneys" id="b499-4">Erroll T. Moore (Robert A. Ades & Associates, P.C., on brief), for appellee.</attorneys> <p data-order="7" data-type="legal" id="b499-5">Present: KELSEY and McCLANAHAN, JJ., and BUMGARDNER, S.J.</p>
| null | null | null | 1,596,708 |
2659054
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vactapp
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SA
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Court of Appeals of Virginia
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Court of Appeals of Virginia
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3,730,112 |
DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Auto-Owners Insurance Company ("Auto-Owners"), appeals the decision of the Summit County Court of Common Pleas, which entered judgment in favor of appellee, the estate of Kevin L. Horton ("the estate"). This Court reverses. I. {¶ 2} On February 6, 1994, Kevin L. Horton and Anthony D. Supple were patrons of J.C.K.C., Inc., dba K.C.'s Lakes Lounge ("KC's"). The two consumed an unknown amount of alcoholic beverages on K.C.'s premises, and it was alleged that the two became intoxicated. It was further alleged that employees of K.C.'s placed Horton in the back of Supple's vehicle and allowed Supple to drive from the premises, knowing that he was intoxicated. Supple lost control of the vehicle and it collided with trees, resulting in Horton's death. {¶ 3} On February 2, 1996, Keith L. Horton, administrator of the estate, filed a wrongful death action against K.C.'s. The action included claims for injuries resulting from (1) K.C.'s negligence in serving liquor to an intoxicated person, commonly known as "Dram Shop Act" liability; and (2) K.C.'s negligence as a business owner by failing to protect a business patron, commonly known as "premises" liability. {¶ 4} At the time of the accident, Auto-Owners insured K.C.'s under a comprehensive general liability policy. Auto-Owners hired Attorney Craig Pelini to defend K.C.'s in the lawsuit filed by the estate. {¶ 5} On July 19, 1996, Auto-Owners issued a reservation of rights letter to K.C.'s. Auto-Owners then hired Harry Tipping to file a declaratory judgment action seeking a determination as to whether Auto-Owners had a duty to defend or indemnify K.C.'s for Horton's death. The complaint for declaratory judgment was filed on October 14, 1997. The estate acknowledged that the policy issued by Auto-Owners excluded coverage for the Dram Shop Act liability claim, but maintained that the policy did not exclude coverage for the premises liability claim. Both Auto-Owners and the estate filed motions for summary judgment in the declaratory action. The trial court granted Auto-Owners motion for summary judgment, finding that the policy excluded coverage for all allegations and claims of the wrongful death suit. The estate's motion for summary judgment was denied. The estate timely appealed to this Court. {¶ 6} During the pendency of the appeal of the declaratory action, Attorney Ronald Lee filed an amended complaint on behalf of the estate based solely on a premises liability claim. The amended complaint alleged that, as a business owner, K.C.'s breached its duty of care to Horton as a business invitee by failing to protect him from an intoxicated patron, Supple, and by its employees negligently placing Horton in the backseat of Supple's vehicle while knowing that Supple was impaired and unable to drive safely. Auto-Owners continued to employ Mr. Pelini to represent K.C.'s in the wrongful death action. {¶ 7} On March 19, 1998, Mr. Lee wrote to Mr. Tipping advising that if Auto-Owners refused to provide K.C.'s with a defense in the matter, K.C.'s would proceed with a settlement with the estate. Mr. Lee also wrote to Mr. Tipping on April 9, 1998 and again on April 28, 1998. In the April 28, 1998 letter, Mr. Lee advised Mr. Tipping that he intended to submit the settlement to the court no later than May 8, 1998, and asked for Auto-Owners' position with regard to coverage on the amended complaint. {¶ 8} In response, Mr. Tipping sent a letter to Mr. Lee dated May 5, 1998, 1 indicating that Auto-Owners would not consent to any settlement between the estate and K.C.'s. K.C.'s executed the settlement agreement on May 4, 1998. On May 13, 1998, the trial court entered judgment in favor of Horton and against K.C.'s for $300,000. Keith L. Horton, Jr., executed the settlement agreement as administrator of the estate on May 18, 1998. {¶ 9} On November 4, 1998, this Court issued its decision in the declaratory judgment action, stating: "We emphasize that we do not decide whether K.C.'s is in fact liable to the Hortons on this claim. In this declaratory judgment action, we decide only that if K.C.'s is liable, then Auto-Owners has a duty to indemnify K.C.'s." Auto-Owners Ins. Co. v. JC KC, Inc. (Nov. 4, 1998), 9th Dist. No. 18937. {¶ 10} On December 16, 1998, Horton filed a supplemental petition against Auto-Owners in the wrongful death case. On January 28, 1999, Auto-Owners filed a second complaint for declaratory judgment. The wrongful death action and the declaratory judgment action were consolidated. The trial was postponed indefinitely by agreement of the parties on November 27, 2002, and submitted to the trial court upon depositions and briefs. On November 4, 2003, the trial court rendered judgment in favor of Horton and against Auto-Owners. {¶ 11} Auto-Owners timely appealed, setting forth one assignment of error for review. II. ASSIGNMENT OF ERROR "The court below erred in basing its judgment on the assumption auto-owners denied coverage, when it is undisputed auto-owners never denied coverage, and instead litigated the insurance coverage issues while at all times defending its insured under a reservation of rights." {¶ 12} In its sole assignment of error, Auto-Owners contends that the trial court erred in finding that it denied coverage to K.C.'s. This Court agrees. Standard of Review {¶ 13} The parties disagree as to the standard of review this Court should employ in the present matter. Auto-Owners argues that this Court should review the matter de novo. K.C.'s contends that Auto-Owners has, in effect, presented a manifest weight argument. This Court finds that Auto-Owners has presented a manifest weight argument. {¶ 14} When an appellant challenges a judgment in a civil case as against the manifest weight of the evidence, an appellate court's standard of review is the same as that in a criminal context. Frederick v. Born (Aug. 21, 1996), 9th Dist. No. 95CA006286. In determining whether a conviction is against the manifest weight of the evidence, this Court must: "Review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Otten (1986), 33 Ohio App.3d 339 , 340 . {¶ 15} K.C.'s argues that Auto-Owners denied coverage and therefore forfeited its right to insist on compliance with its policy terms and conditions requiring Auto-Owners' consent to any settlement. Specifically, K.C.'s avers that "[o]nce Auto-Owners decided to seek and obtain a judgment that it had no coverage obligations under the policy, it could not prohibit its insured, K.C.'s, from entering into settlement negotiations with the injured party." To support its argument, K.C.'s relies on the following cases: Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582 ; Ward v. Custom Glass Frame, Inc. (1995), 105 Ohio App.3d 131 ; Bakos v. Insura Prop. Casualty Ins. Co. (1997), 125 Ohio App.3d 548 ; Aufdenkamp v. Allstate (Jan. 19, 2000), 9th Dist. No. 98CA007269. However, the foregoing cases are distinguishable from the case sub judice. In all of the cases cited by K.C.'s, the insurer denied coverage to the insured or insureds. Auto-Owners did not deny coverage to K.C.'s throughout the underlying proceedings. {¶ 16} Both Auto-Owners and K.C.'s rely on Motorists Mut. Ins. Co. v. Trainor (1973), 33 Ohio St.2d 41 , to support their arguments. In Trainor, the insurance carrier denied coverage and sent letters to its insureds informing them it would not defend them until they signed a non-waiver agreement. The Supreme Court of Ohio held that the insureds were not obligated to assent to or deny the alleged non-waiver agreement and that the insurance carrier's failure to act until its insureds responded to its letters was a breach of its duty to defend. Id. at 46. In the present case, Auto-Owners did not refuse to defend K.C.'s at any point during the litigation. Therefore, Trainor is not applicable to the present matter. {¶ 17} In Sanderson, the Ohio Supreme Court stated: "[W]here an insurer unjustifiably refuses to defend an action, leaving the insureds to fend for themselves, the insureds are at liberty to make a reasonable settlement without prejudice to their rights under the contract. By abandoning the insureds to their own devices in resolving the suit, the insurer voluntarily forgoes the right to control the litigation and, consequently, will not be heard to complain concerning the resolution of the action in the absence of a showing of fraud, even if liability is conceded by the insureds as a part of settlement negotiations." 69 Ohio St.3d at 586 . {¶ 18} In Romstadt v. Allstate Ins. Co. (C.A.6 1995), 59 F.3d 608 , 613-614 , the Sixth Circuit Court of Appeals held that Sanderson does not apply where the insurer defends its insured, either in whole or by a reservation of rights. {¶ 19} In the present case, Auto-Owners, upon receiving notice of the claim against K.C.'s in the underlying action, provided a defense to K.C.'s under a reservation of rights. Throughout the entirety of the underlying action, Auto-Owners provided K.C.'s with a defense. Despite Auto-Owners' filing of the declaratory judgment action where it sought a determination that the claim against K.C.'s was not covered under the policy, Auto-Owners continued to defend K.C.'s. Because Auto-Owners did not refuse to defend K.C.'s at any point in the underlying action, K.C.'s was not at liberty, and was in fact barred from, entering into a settlement with Horton without Auto-Owners' consent. As a result, the trial court erred in finding that the consent judgment was binding upon Auto-Owners. {¶ 20} Auto-Owners' sole assignment of error is sustained. III. {¶ 21} The judgment of the Summit County Court of Common Pleas is reversed, and the matter remanded for proceedings consistent with this opinion. Judgment reversed, and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to appellees. Exceptions. Slaby, J. Boyle, J. concur. 1 The exact date that Mr. Lee received the letter dated May 5, 1998, from Tipping is not known. However, it is clear from the "Received" stamp that the letter was received before May 10, 1998.
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opinion_html_with_citations
| 1,825 |
2016-07-06 06:58:02.522114+00
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020lead
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f
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f
| 3,978,384 |
LYNN C. SLABY.
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Z
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Unpublished
| 0 |
Auto-Owners Ins. Co. v. J.C.K.C., Inc., Unpublished Decision (9-29-2004)
| null |
Auto-Owners Insurance Company v. J.C.K.C., Inc., Dba K.C.'s Lakes Lounge
| null | null | null | null |
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
Appeal from Judgment entered in the Court of Common Pleas County of Summit, Ohio Case No. CV 99-01-0375.
| null | null | null | null | 3,850,526 |
C.A. No. 21847.
| 0 |
ohioctapp
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SA
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t
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Ohio Court of Appeals
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Ohio Court of Appeals
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130,971 |
539 U.S. 968 Rodriguez v. United States. No. 02-10865. Supreme Court of United States. June 27, 2003. 1 Appeal from the C. A. 1st Cir. 2 Certiorari denied.
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| 28 |
2010-04-28 17:27:18+00
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| 130,971 | null | null |
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Rodriguez v. United States
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Rodriguez
| null | null | null | null | null | null | null | null | null | null | 1,847,694 |
02-10865
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scotus
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F
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Supreme Court
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Supreme Court of the United States
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5,777,043 |
Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered February 3, 2009, which denied petitioners’ application pursuant to CPLR article 78 seeking, inter alia, to compel respondent Department of Health and Mental Hygiene (DHMH) *573to take the necessary actions to provide petitioners with benefits of membership in the New York City Employees’ Retirement System (NYCERS), and dismissed the petition, unanimously affirmed, without costs. The determination that petitioners are not entitled to retirement credit with NYCERS by reason of having worked for private corporations under contract with DHMH but paid with funds provided by the State is not arbitrary and capricious (see Matter of Eastman v Department of City wide Admin. Servs., 266 AD2d 53 [1999], citing definition of “city-service” in Administrative Code of City of NY § 13-101 [3] [a] as service “paid for by the city”). Concur—Tom, J.E, Friedman, Catterson, Moskowitz and Richter, JJ. [See 2009 NY Slip Op 30120(U).]
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opinion_xml_harvard
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2022-01-12 17:43:10.108508+00
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020lead
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| 5,919,306 | null | null |
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Published
| 0 |
Ivan v. New York City Department of Health & Mental Hygiene
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Ivan
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In the Matter of Richard Ivan v. New York City Department of Health and Mental Hygiene
| null | null | null | null | null | null | null | null | null | 62,277,528 | null | 0 |
nyappdiv
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SA
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Appellate Division of the Supreme Court of New York
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Appellate Division of the Supreme Court of the State of New York
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563,586 |
936 F.2d 585 U.S. v. Rodriguez * NO. 90-3023 United States Court of Appeals, Eleventh Circuit. JUN 11, 1991 1 Appeal From: M.D.Fla. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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2011-08-23 10:11:53+00
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| 563,586 | null | null |
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Published
| 0 |
United States v. Rodriguez
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Rodriguez
| null | null | null | null | null | null | null | null | null | null | 1,521,449 |
90-3023
| 0 |
ca11
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F
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t
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Eleventh Circuit
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Court of Appeals for the Eleventh Circuit
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3,828,750 |
This action was instituted in the district court of Creek county by Thomas F. Campbell, hereinafter referred to as plaintiff, against James M. Kurn and John G. Lonsdale, as trustees of the estate of the St. LouisSan Francisco Railway Company, a corporation, hereinafter referred to as defendant company, and Charles M. Hagan, hereinafter referred to as defendant, wherein plaintiff sought to recover damages for personal injuries sustained when an automobile in which he was riding collided with a passenger train of defendant company at a railroad crossing. The issues were joined, the cause was tried to a jury and a verdict was rendered in favor of plaintiff against defendant company, but the jury found in favor of defendant Hagan. From a judgment entered pursuant to the verdict, defendant company has appealed. Plaintiff alleged that defendant company operated a railroad line from Oklahoma City to Tulsa, Okla., which line passed through the town of Stroud, Okla.; that there is a section line and public highway which crosses the main line of said railroad one mile west of the town of Stroud; that the railroad runs in a general easterly and westerly direction and the highway runs in a northerly and southerly direction. It was alleged that the railroad crossing at that point is unusually dangerous and hazardous in that the highway as it *Page 638 approaches the railroad track makes a sudden and abrupt ascent; that the crossing had been permitted to lapse into a state of bad repair; that there is a curve in the railroad track at the point where the highway crosses the track and that the track is banked sharply toward the north, the north rails being several inches lower than the south rails; that ruts had been permitted to form in the highway as it approached the railroad track, thus causing the planks placed across the highway to project above the surface of the highway a distance of two or three inches; that said planks had become old, worn, and warped so as to make the crossing very rough, thus constituting a place that would probably stop or stall an automobile in approaching said crossing from the south; that defendant maintained but one cross-arm sign at said crossing; that the same was located to the north of the track and east of the highway; that owing to the abrupt ascent in approaching the crossing said sign was not visible to one approaching the crossing from the south at night while driving an ordinary automobile; that as a train approached the crossing from the west it passed through a deep cut which obstructs the sight and sound of the train until it is within about 200 feet of said crossing to one approaching the same from the south; that although the highway is a main traveled thoroughfare, defendant negligently failed and neglected to erect and maintain at said crossing an electric signal device, a watchman or other means of warning of the approach of trains. It was further alleged that the defendant Hagan was the engineer in charge of the train; that he had knowledge of the dangerous condition of the crossing and that he neglected to use reasonable care as he approached said crossing by slackening the speed of the train or by giving repeated sounds of the bell or whistle. The plaintiff testified that on the night of January 6, 1938, at about 7 o'clock p. m., which was after dark, he was on said highway and approached said crossing from the south; that he had never been upon this road before; that he knew there was a railroad crossing in the vicinity but did not know its exact location; that as he approached the crossing he was unable to see the cross-arm sign and did not realize he was near a track until he went up a steep grade in the road and found himself upon the track; that as the wheels of his automobile came upon the track he felt a bump and his car came to a stop and he heard the blast of the train; that he found that his motor had stopped; that he opened the door and threw himself out of the car as quickly as he could. It appears that the train ran over both of plaintiff's feet and left them in a mangled condition and that plaintiff's car was carried down the track a distance of 660 yards, where the train finally came to a stop. Plaintiff's testimony as to the nature and extent of his injury was corroborated by the evidence of medical men. It appears that it was necessary to amputate portions of both feet at "about the middle of the feet"; that plaintiff was unable to use crutches and that it was impossible to fit him with artificial limbs without further amputation of his lower limbs at a point about seven inches below the knee; that his only means of moving about was by use of a wheel chair or by being carried; that he was in continuous pain except when he was asleep. Plaintiff testified that he was 53 years of age at the time of the injury; that he was a practicing attorney engaged in the practice of law at Bristow and also operated a dairy; that his average annual income previous to his injury was about $3,500 or $3,600; that since the injury he had been unable to do any work in the office and was unable to assist in the management of the dairy. For reversal of the judgment defendant company contends, first, that the verdict of the jury is not supported by sufficient evidence and that the court should have entered judgment in favor of defendant company upon the verdict of the jury. As heretofore stated, the jury found in favor of defendant Hagan, the engineer of the train. Defendant *Page 639 company argues that where the liability of a master is predicated solely upon the principle of respondeat superior, it is error to render a judgment against the master upon a verdict of a jury in favor of the servant, citing Anthony v. Covington, 187 Okla. 27 , 100 P.2d 461 ; Consolidated Gas Util. Co. v. Beattie, 167 Okla. 71 , 27 P.2d 813 ; Shell Pet. Co. v. Wilson, 178 Okla. 355 , 65 P.2d 173 ; St. Louis S. F. Ry. Co. v. Dancey, 74 Okla. 6 , 176 P. 209 ; Chicago, R.I. P. Ry. Co. v. Reinhart, 61 Okla. 72 , 160 P. 51 . A similar contention was made in the case of St. Louis S. F. Ry. Co. v. Simmons, 116 Okla. 126 , 242 P. 151 , which we herein adopt as applicable. See, also, Chicago, R.I. P. Ry. Co. v. Pedigo, 123 Okla. 213 , 252 P. 1095 ; St. Louis S. F. Ry. Co. v. Eakins, 141 Okla. 256 , 284 P. 866 . Both the engineer and the fireman testified that the train was scheduled to make a speed of about 60 miles per hour at the place where the collision occurred, and that the train was actually making about 55 miles per hour when it struck plaintiff's automobile. It therefore appears that the only independent act of negligence of defendant Hagan, which is eliminated from our consideration by the verdict of the jury, was the failure to give sufficient warning signals of the approach of the train. A review of the record as a whole, however, discloses that there is but little contention on this point, as will hereinafter appear. Defendant company argues that, after elimination from consideration of the independent acts of negligence on the part of the engineer, there is no competent evidence in the record to sustain the verdict against the defendant company. In this connection, it appears that the acts of negligence relied upon for recovery by plaintiff are, first, the speed of the train; second, the unsafe condition of the crossing; and, third, the failure to provide statutory signposts or warning signals. Without reviewing the evidence in great detail, it is sufficient to say that plaintiff offered competent evidence to sustain his contention that the crossing was improperly maintained. There is ample evidence in the record to the effect that the crossing was unusually dangerous. As heretofore stated, it was located on a curve of the railroad tracks. It was conclusively shown that a train approaching from the west, as in the instant case, could not be seen from the crossing until it was within 457 feet thereof, since it was approaching upon a curved track through a cut. Plaintiff's testimony to the effect that the cross-arm sign was so located that it could not be seen at night by one approaching from the south was corroborated by other witnesses who visited the premises at night for the express purpose of determining whether or not such sign was visible under the circumstances outlined by plaintiff, and no evidence to the contrary was offered by defendant company. It is therefore clear that there is ample competent evidence in the record to sustain the finding of the jury as to primary negligence on the part of the defendant company. Complaint is made of the instructions to the jury with regard to the erection of signs or warning signals at the crossing. By instruction No. 12 the trial court instructed the jury as to the duty of the defendant company to erect the crossarm sign provided by section 11959, O. S. 1931, 66 Okla. St. Ann. § 124, and further instructed the jury that it was the duty of the company to place the sign in such position that the same might be observed by a traveler on the highway at night who was traveling in the ordinary manner and exercising reasonable care and diligent effort to ascertain the location of a railroad crossing, and if defendants were careless and negligent in their failure to perform such duty and their carelessness or negligence constituted the proximate cause or contributed to the proximate cause of plaintiff's injury, such facts were to be taken into consideration together with all the other facts and evidence in determining the liability, *Page 640 if any, of defendant. By instruction No. 13 the jury was instructed that the aforesaid statutory provision set forth the least care and caution which a railroad company is required to exercise and that the jury should take into consideration the various circumstances involved, including the speed of the train, the obstruction to the view, the location of the crossing, the location of the highway in regard thereto, the frequency with which the highway was traveled, and other attending circumstances bearing upon whether or not the railroad crossing was unusually dangerous to travelers upon the highway, and whether or not the statutory signal was sufficient to warn and advise a reasonably prudent man traveling along the highway and attempting to cross the crossing of the approach of the train; and whether or not a reasonably prudent person, under like and similar circumstances and engaged in the same business as that of the defendant, would have given some other or additional warning of the approach of the train in addition to the statutory signal and warning, and if defendant carelessly and negligently failed to give such warning which a reasonably prudent person under like circumstances would have given for the protection and safety of the plaintiff, and that if such carelessness and negligence was the proximate cause of plaintiff's injuries, and plaintiff was free from contributory negligence, the verdict should be for the plaintiff. In the case of St. Louis S. F. Ry. Co. v. Prince, 145 Okla. 194 , 291 P. 973 , 71 A.L.R. 357 , it was said: "The statute which requires a railroad company to erect suitable signs of caution at crossings of its road with public highways, and prescribes the size, etc., of the letters to be printed thereon, was not intended to furnish a standard by which to determine in every case whether or not such company had failed to discharge its duty in respect to giving sufficient warning to the traveling public of the existence of such crossings and the probable approach of its trains. It was intended rather to prescribe the minimum of care which must be observed with respect to the erection and maintenance of signs or other signals of warning at all crossings." See, also, authorities cited in annotation at 71 A.L.R. 369 . As we view it, the rule thus announced justifies the instructions hereinabove referred to. We have examined the various authorities cited and relied upon by defendant company and find them to be distinguishable from the instant case by virtue of the various factual situations presented therein. The authorities relied upon involve various judicial expressions regarding the duties of railroad companies in congested centers of population and point out that there is a substantial difference in the duty of railroad companies in maintaining such crossings than where there is involved a crossing over a country highway where there is only a small amount of traffic. Plaintiff does not contend that it was the duty of defendant to maintain gates or a watchman at the crossing involved herein, but contends that the signs maintained by the defendant were wholly insufficient in view of the dangerous character of the crossing, and we are of the view that the finding of the jury on this point is amply sustained by the evidence, and the instructions of the court referred to were proper under the well-established rule. Defendant complains of the instruction relating to the measure of damages. In this connection it appears that the court, after stating the various elements of damage which might be considered in determining the amount which plaintiff would be entitled to recover, concluded with the following language: "and all other facts and circumstances and evidence before you, and then fix such sum as you think just and reasonable therefor; in no event, however, to exceed the total sum sued for on account thereof, to wit, $45,700." In the case of Hurst v. Chicago, B. Q. Ry. Co., 280 Mo. 566 , 219 S.W. 566 , 10 A.L.R. 174 , it was held: "It is not error in instructing the jury upon the elements to be considered in *Page 641 fixing the damages in a personal injury case, to conclude: 'As shown by the evidence, together with all the facts and circumstances detailed in evidence.' " See, also, Pittsburgh, C. C. St. L. Ry. Co. v. Carlson, 24 Ind. App. 559 , 56 N.E. 251 ; Suell v. Jones, 49 Wash. 582 , 96 P. 4 ; Consumers Lignite Co. v. Grant (Tex. Civ. App.) 181 S.W. 202 ; Dickinson v. Abernathy Furniture Co., 231 Mo. App. 303 , 96 S.W.2d 1086 ; 15 Am. Jur. 808; 17 C. J. 1067. Other assignments of error relating to the instructions have been considered and are without substantial merit. Upon motion for new trial, defendant raised certain questions relating to the qualifications of the jury. In this connection it was contended that one of the jury commissioners was disqualified; the commissioners did not proceed according to the directions of the statute in preparing the jury list from the tax rolls as provided by law, and by reason thereof the names of certain members of the jury who were on the panel, who were selected on the jury herein, and who signed the verdict did not appear on the personal tax rolls of the county. We do not find it necessary to pass upon the merits of these contentions. Chapter 4, O. S. 1931, Title 38 Okla. St. Ann., prescribes the qualifications of jurors and jury commissioners and the manner of preparing the jury list, drawing the names, and summoning jurors for service. Section 808, O. S. 1931, 38 Okla. St. Ann. § 13, provides, in part, as follows: "A substantial compliance with the provisions of this chapter, shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing, and summoning or empaneling the same, resulted in depriving a party litigant of some substantial right; Provided, however, that such irregularity must be specifically presented to the court at or before the time the jury is sworn to try the cause." The questions argued by defendant with relation to the qualifications of the jury could be raised only by a challenge to the panel. The question of whether or not the right to challenge the panel has been waived under circumstances such as presented here has not been before this court. It is observed, however, that the statute above quoted is a general statute. It has been held to be applicable to criminal cases and has several times been construed by our Criminal Court of Appeals. That court has consistently held that the right to challenge the panel is a personal right and will be held to be waived where the right is not exercised in the time and manner provided by law. Powell v. State, 60 Okla. Crim. 267 , 63 P.2d 113 ; Rhodes v. State, 42 Okla. Crim. 382 , 276 P. 698 ; Michael v. State, 42 Okla. Crim. 124 , 274 P. 900 ; Young v. State, 41 Okla. Crim. 226 , 271 P. 426 ; Fooshee v. State, 3 Okla. Crim. 666 , 108 P. 554 ; Queenan v. Territory, 11 Okla. 261 , 71 P. 218 , 61 L. R. A. 324, affirmed, 190 U.S. 548 , 23 S. Ct. 762 , 47 L. Ed. 1175 . See, also, 31 Am. Jur., Jury, § 80, p. 614, and authorities therein cited; annotation 92 A. L . R. 1110. These contentions are presented in connection with defendant's contention that the verdict is excessive and thus it is argued that detriment resulted to defendant in the irregularities in preparing the jury list and selection of the panel. We have considered the arguments advanced and are unable to concur in the conclusion. A situation of fact is presented which is controlled by the clear and explicit language of the statute as construed by the above-cited authorities. We hold, therefore, that since the matters were not presented to the court at or before the time the jury was sworn to try the cause, the objections to the panel cannot be urged upon motion for new trial or upon appeal. We pass to a consideration of the proposition that the verdict was excessive. There is little dispute in the evidence as to the nature and extent of plaintiff's injuries. The jury was properly instructed as to the elements of damage which might be considered in determining the amount of the recovery. *Page 642 Plaintiff was 53 years old at the time of the injury. He was a practicing attorney and maintained law offices at Bristow. He also conducted a dairy which was located southwest of that city. He testified that his earnings prior to the time of the injury were from $3,500 to $3,600 per annum. He had a life expectancy of 18.78 years. It appears to be conceded that plaintiff endured considerable pain and suffering and will continue to endure some pain and suffering in the future. The verdict of the jury was for $45,700, which was the full amount prayed for in plaintiff's petition. The evidence showed that his hospital and doctor bills were approximately $700. To sustain the verdict would require a finding that plaintiff's earning capacity was permanently and totally destroyed. We have heretofore pointed out that he was unable to use crutches, since the portions of his feet which were not removed were insufficient to sustain his weight and that he could not be fitted with artificial limbs without a re-amputation of the limbs about seven inches below the knee. It must be borne in mind, however, that plaintiff's income was not derived by physical labor. He was a professional man and manager of a business. It may be conceded that the injuries sustained would greatly impair his earning capacity. The evidence does not impel the conclusion that it was permanently and totally destroyed. The question of whether the verdict is excessive must be determined from the facts in the individual case. After consideration of the entire record herein, we are of the opinion that the verdict herein was grossly excessive and we are justified in inferring that there was prejudice and passion on the part of the jury from the magnitude of the verdict. Southern Kansas Stage Line Co. v. Crain, 185 Okla. 1 , 89 P.2d 968 . If plaintiff, defendant in error herein, within 15 days after the mandate is filed in the trial court, will file a remittitur of all of the judgment in excess of $25,700, with interest from date of judgment in trial court, the judgment will be affirmed. If the remittitur is not filed within the time allowed, the cause will stand reversed and remanded for a new trial. WELCH, C. J., CORN, V. C. J., and RILEY, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. BAYLESS, J., absent.
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opinion_html_with_citations
| 3,536 |
2016-07-06 08:00:47.987606+00
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020lead
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f
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f
| 4,070,844 |
Arnold, Bayless, Corn, Davison, Gibson, Hurst, Osborn, Riley, Welch
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ZU
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f
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Published
| 12 |
Kurn v. Campbell
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Kurn
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KURN Et Al. v. CAMPBELL Et Al.
| null | null |
<parties id="b650-21">
KURN et al. v. CAMPBELL et al.
</parties><br><docketnumber id="b650-22">
No. 29470.
</docketnumber><decisiondate id="A1qv">
March 10, 1941.
</decisiondate><br><otherdate id="b650-23">
Rehearing Denied April 23, 1941.
</otherdate><br><citation id="b650-24">
<em>
112 P. 2d 386.
</em>
</citation><br><attorneys id="b651-14">
<span citation-index="1" class="star-pagination" label="637">
*637
</span>
J. W. Jamison, of St. Louis, Mo., and Cruce, Satterfield & Grigsby, all of Oklahoma City, for plaintiffs in error.
</attorneys><br><attorneys id="b651-15">
Speakman & Speakman, of Sapulpa, for defendants in error.
</attorneys>
| null |
Appeal from District Court, Creek County; C.O. Beaver, Judge.
Action by Thomas F. Campbell against James M. Kurn and John G. Lonsdale, Trustees of Estate of the St. Louis-San Francisco Railway Company, and another. Judgment for plaintiff against the defendants named, and they appeal. Affirmed on condition of remittitur.
| null | null | null | null | 3,942,986 |
No. 29470.
| 0 |
okla
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S
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t
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Supreme Court of Oklahoma
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Supreme Court of Oklahoma
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5,195,691 |
Hatch, J.: A brief history of the proceedings which have been had in connection with the present proceeding is essential to an understanding of the question presented by this appeal. The plaintiffs herein brought an action to recover a considerable sum of money in which the appellant, the judgment debtor herein, Judson, Jolm R. Drexel and Joseph Leiter were named as defendants. Therein an order was obtained for the examination of the appellant before trial to enable the plaintiffs to properly frame a complaint. Under that order the plaintiffs sought to compel the appellant to produce his books for examination, but the application was denied. Thereafter the plaintiffs brought an action against the defendant Judson and obtained a judgment against him by default for $7,512.08. Execution was issued thereon and returned wholly unsatisfied and there*324upon proceedings supplementary to execution were instituted upon that judgment. Therein the appellant was served with a subpmna duces tecum. to appear before a justice of the Supreme Court, to be examined as a witness in the last-named proceeding. Thereupon the appellant moved to vacate the subpoena, which motion was denied at the Special Term. An appeal was taken from the order entered thereon to this court and resulted in the affirmance of the order. The opinion delivered in deciding the motion was written by Presiding Justice Van Brunt and was concurred in by all of the other members of the court. (96 App. Div. 601.) Therein the court said : “ This appeal seems to proceed upon the theory that the subpoena requires the appellant (the witness) to produce his books and papers for the plaintiffs’ inspection. The subpoena does not so read nor is such its office. The appellant can he subpoenaed to produce his books only so that he can by reference to them answer questions pertinent to the inquiry being conducted before the court. It gives no right whatever to the inspection of the books by the plaintiffs’ counsel. It'is claimed that the books are to be used for the purpose of getting evidence in respect to other litigations and not for any purpose connected with the examination before the court. The court before which the examination is pending will see that it is limited to the subjects germane to the investigation being carried on; and we' cannot say that the court will not perform its duty in this respect. Indeed we believe that it will; and that the examination will be conductedly solely with a view to a discovery of property of the defendant, and not for discovery of evidence relating to another controversy. The rights of the witness can and undoubtedly will be completely protected by the court below.” After this decision the witness appeared before the court in obedience to the subpoena and produced his books. The course of the investigation sought to disclose the existence of a combination or pool entered into between the appellant with Judson and others for the purpose of controlling the market price of International Power Company stock. By reason of such arrangement it was claimed that Judson had acquired rights of much value and the particular proceedings of this combination were sought to be developed by the examination of the witness. The books having been produced, the attention of the witness was directed to the account therein con*325cerning the transaction and repeated questions concerning the knowledge of the witness with respect thereto were asked, and in almost every instance the witness testified that he knew nothing about the entries; that he was unable to state the particulars concerning them and that they did not in any respect refresh his recollection so that he was able to give the details of the transaction to which the entries related. He excused himself for his inability to answer in this respect by stating that the entries were not made by him, nor under his direction, but by a bookkeeper under the direction of other persons. The course of the examination clearly disclosed one of two conditions; either that the witness willfully refused to recollect the particulars of the transaction or that he was unable to refresh his memory from anything which appeared in the books. Counsel for the plaintiffs asked the witness to read the entries in the books and the witness refused, for the reason that he was not commanded by the subpoena so to do. The court was evidently impressed with the view that the witness was not acting in good faith in his denial of recollection of the particulars of the transaction and of his inability to refresh his recollection from the books. In passing upon the question of the refusal of the witness to answer the question and read from the books the court said: “ In view of his avowed ignorance of these matters I think I shall require him to state the amounts of the items. I propose to give Mr. Mooney whatever information the book may impart as long as the witness is unable to furnish any additional information.” Thereupon the examination proceeded and the witness read from the books quite a large number of items. After proceeding for some time along this line counsel for the plaintiffs asked the following question : “ Q. State whether you find under the dates of October or November, 1900, an item of 1,700 shares put up by you in one lot or in a number of lots in connection with this pool ? ” Appellant’s counsel objected to the question as not within the scope of the examination, as calling for the contents of a book, which under this proceeding the judgment creditors had no right to ask for or to obtain, and that the question called for an inspection of the contents of the books. The witness refused to answer, and the court for such refusal adjudged the witness to be in contempt and made the order front which this appeal is taken, *326The decision of this court upon the former appeal stated the particular office of the subpoena and in clear terms announced that it gave no. right to the inspection of the books by the plaintiffs’ counsel upon the examination. It is evident that the ruling of the court in directing the witness to give the items appearing in the book and the question which the witness refused to answer, and for which he has been adjudged to be in contempt, exceeded the limitation placed by this court upon the plaintiffs’ right. It gave to • the plaintiffs for all practical purposes an inspection of the books. There is no practical difference between the physical possession and inspection of the contents of the books and compelling the witness to read the items contained therein. Such an examination when finished would have displayed in the record, not the recollection of the witness, but the contents of the books, and such right had been denied to the plaintiffs by two decisions of this court: First, upon the application to examine the appellant in order to frame the complaint (82 App. Div. 636) and, second, upon the motion to vacate the subpoena. Whatever may be plaintiffs’ rights to procure an inspection of these books upon a proper application, it is settled by the adjudication of this court that he cannot have such inspection upon the examination in this proceeding, and the sole purpose of this question was directed to obtaining the contents of the books. It was, therefore, clearly improper. It is no answer to say that the witness was guilty of bad faith and falsified when he stated that he had no recollection of what the entries meant; that his memory was not refreshed thereby, and that he could give none of the particulars of the transaction to which they related. Assuming, all that the plaintiffs claim in this respect, it conferred no authority to obtain an inspection of the books. If the witness has testified falsely the plaintiffs must seek redress through other channels. (Wayland v. Tysen, 45 N. Y. 281, 285.) Whether the answers of the witness be true or false is not a matter which can control in the disposition of the question presented by this appeal. That is to be determined solely upon a consideration of the legal rights of the , parties, and as we have seen the plaintiffs were not entitled to examine the witness and thereby obtain an inspection of the books, as such right had already been denied in plain and precise terms» *327It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion to punish for contempt denied. Van Brunt, P. J., O'Brien, Ingraham and McLaughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied.
|
opinion_xml_harvard
| 1,465 |
2022-01-06 15:42:54.606131+00
|
020lead
|
t
|
f
| 5,361,117 |
Hatch
| null |
U
|
f
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Published
| 0 |
Franklin v. Judson
|
Franklin
|
William B. Franklin and Others v. Cyrus Field Judson, Joseph H. Hoadley
|
<p>Appeal by Joseph H. Hoadley from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of October, 1904, adjudging him in contempt of court for refusing to answer a certain question upon his examination as a witness in supplementary proceedings.</p>
| null | null |
<p>A witness under subpoena duces tecum to produce his looks of account—Tie cannot le compelled to state the entries therein.</p> <p>A witness attending an examination in proceedings supplementary to execution under a subpoena duces tecum requiring Mm to produce his books of account cannot, although he falsely states that he had no recollection of what the entries in the books meant and that his memory was not refreshed thereby, and that he could give none of the particulars of the transaction to which the entries related, be required to state the items contained in the books, as this would result in giving the judgment creditor a right to which he was not entitled under the subpoena duces tecum.</p>
| null | null | null | null | null | 61,709,208 | null | 0 |
nyappdiv
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SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
3,883,087 |
May 11, 1944. The appeal is from an order sustaining a demurrer to the complaint. The latter contained allegations that defendants owned a block of store buildings in the business district of the city of Orangeburg which were set back about six feet from the sidewalk, the intervening strip of land being the property of the defendants. Over this strip defendants constructed separate cement walkways to each of the stores, about three feet wide, which slanted up to the entrances to the buildings, which three-foot cement entrance walkways were used by the public for access to the stores, and by the merchants occupying the latter. *Page 489 It was further alleged that the plaintiff undertook on March 6, 1943 to enter one of the stores to purchase groceries and as she stepped from the sidewalk to the cement walkway leading to that store, which defendant had constructed for the purpose, her foot was caught in a hole where the cement had broken and had been removed, and she suffered painful injuries. Further it was stated in the complaint that the walkway was constructed too thin and, after use, cracked and, in effect, disintegrated. In the seventh paragraph it was alleged that defendants knew of this condition of disrepair and unsafety and that it was dangerous for the public and the plaintiff to try to use it, but, quoting, "that regardless of such knowledge, the defendants continue to invite, hold out and permit, the said walkway to be used in said dangerous condition;" then, in the eighth paragraph, that the said actions of the defendants were negligent, willfull, without regard to the rights of the plaintiff and the public, wherefore plaintiff was damaged in the sum of $1,500.00. The defendants demurred upon several separately stated grounds, the gravamen of which was that the complaint failed to allege any legal duty owed by the defendants to the plaintiff, the breach of which gave rise to her alleged damages, and (paragraph III of the demurrer) that it appeared from the complaint that the walkway on which plaintiff was injured was a part of the premises rented by the defendants to the tenant who used it as such; and that no covenant by defendants to repair was alleged, which latter however would not be sufficient to give rise to an action by plaintiff for the injuries alleged. The order whereby the demurrer was sustained states the issue as follows: "By the demurrer, the defendants raise the issue as to the right of the plaintiff to sue them as owners of the leased property." This statement of the issue shows that it was assumed by the court that the cement walkway whereon plaintiff was injured was a part of the leased property. *Page 490 It is further stated in the order, with reference to the defendants, as follows: "They own the interior and the exterior of the rented premises, but it is all in the exclusive possession of the tenant and his customers, and the tenant alone is liable for the negligent lack of care of the property which is all under his control, and is not subject to the control of the defendants in any legal sense." The foregoing excerpts from the order under appeal show that the court really decided what it deemed to be the issue on demurrer raises legal issues, admitting the allegations and proper factual inferences of the pleading against which it is taken. S.C. cases in 27 S.E. Dig., p. 265 and pocket part, Pleading, Key 214 (4). Liberal construction of the complaint in this action, required under our procedure, 1942 Code, Sec. 477, discloses allegations of fact which are fairly susceptible of the inference that the defendants had not leased the walkway upon which plaintiff was injured. It was alleged that the stores had been constructed and leased and that the walkway were at the front of them and had been constructed on their property by the defendants for the use of their tenants and the public for access to the store buildings. Other pertinent allegations of the complaint are stated hereinabove. The fact referred to, whether the offending walkway was or was not leased to the tenant as a part or appurtenance of the store building, is ordinarily controlling of the rights of the parties to the action and in view of the contents of the complaint, liberally construed in favor of plaintiff, there was error in undertaking to decide this controlling fact upon demurrer. 16 R.C.L., 1072; 20 R.C.L., 73; 32 Am. Jur., 568; annotations in L.R.A., 1916-F, 1118; 11 A.L.R., 109 ; 25 A.L.R., 1279 -80; and 39 A.L.R., 295 -6. *Page 491 The latter annotations and their supplements (75 A.L. R., 160 and 97 A.L.R., 224 ) relate in the main to the well-known liability of a landlord for the maintenance of a facility for the common use of several tenants but all of such cases depend upon the test here applied, — whether the landlord has retained possession and control of the offending premises. An example of this extensive line of cases is our own Medlock v. McAlister , 120 S.C. 65 , 112 S.E., 436 , involving an elevator in the common use of several tenants. The tenant alone might be liable for the negligent repair alleged if the walkway in this case was included in the rental agreement, but if the landlords retained control and possession of it, the complaint states a cause of action against them. Such, in effect, was said by Acting Associate Justice J. Henry Johnson in his excellent opinion for this court in Timmons v. Williams Corp. , 164 S.C. 361 , 162 S.E., 329 , 333 , as follows: "Because possession and control are reserved unto the lessor, the law implies an obligation, creates a legal duty, to keep the same in repair, and to operate it properly. This is in accord with the general rule that there is an implied duty on the part of the landlord to keep in repair all portions of demised premises of which he reserves possession and control for the common use of several tenants, and is peculiarly applicable to halls, stairways, elevators, and other approaches of which no particular tenant has exclusive possession and control. 36 C.J., 212, 213." The closest case in facts to that in hand which we have found is referred to in 97 A.L.R., 223 , as follows: "In Hurlburt v. Sherman , 1933, 116 Conn., 102 , 163 A., 603 , where a building on a street corner contained two stores with concrete walks leading to both stores from the public sidewalk, and the owner contended that he had no control over the walks and that they were not in common use by a number of tenants, the court ruled that, whether the walk on which a store customer slipped and fell was under the landlord's *Page 492 control was a question of fact, and that the jury might well have found (it having allowed damages) that all the space between the building and the sidewalk was used as a common approach to both of the stores." Similarly, the instant case does not depend on the common use of the walkway by defendants' several tenants for such is not alleged, but upon the underlying or key fact of whether the defendants, the landlords, retained in their possession, and under their control, the allegedly negligently defective walkway. Volume 2, Restatement of the Law of Torts, p. 976, Section 360, states the applicable rule in the following language: "A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe." The judgment is reversed and the demurrer overruled, with leave to defendants to answer within twenty days after the filing of the remittitur in the office of the clerk of the lower court. Reversed. MESSRS. ASSOCIATE JUSTICES FISHBURNE, TAYLOR and OXNER concur.
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2016-07-06 09:13:58.315934+00
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020lead
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| 4,121,769 |
Baker, Fishburne, Messrs, Oxner, STUKES, Taylor
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| 5 |
Binnicker v. Adden
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Binnicker
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Binnicker v. Adden Et Al.
| null | null |
<docketnumber id="b499-4">
15650
</docketnumber><br><parties id="b499-5">
BINNICKER v. ADDEN
<em>
ET AL.
</em>
</parties><br><citation id="b499-6">
(30 S. E. (2d), 142)
</citation><otherdate id="ANWP">
December, 1943.
</otherdate><br><attorneys id="b500-5">
<span citation-index="1" class="star-pagination" label="488">
*488
</span>
<em>
Mr. L. A. Hutson,
</em>
of Orangeburg, S. C., Counsel for Appellant,
</attorneys><br><attorneys id="b500-6">
<em>
Messrs. Zeigler & Brailsford,
</em>
of Orangeburg, S. C., Counsel for Respondents,
</attorneys><br><decisiondate id="b500-7">
May 11, 1944.
</decisiondate>
| null |
Before A.L. GASTON, J., Orangeburg County, December, 1943. Reversed.Action by Mrs. Neb Binnicker against L.H. Adden and others, Co-partners doing business under the firm name and style of Adden Brothers, for personal injuries sustained when Plaintiff caught her foot in a hole in a cement walkway leading up to a building owned by Defendants but occupied as a store by another. From Judgment sustaining a Demurrer to the Complaint the Plaintiff appeals.
| null | null | null | null | 3,993,911 |
15650
| 0 |
sc
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S
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t
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Supreme Court of South Carolina
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Supreme Court of South Carolina
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5,154,176 |
HILL, Justice. [11] Appellant, Jeremy Fenton (Fenton), entered a conditional plea of guilty to possession of methamphetamine with intent to deliver. The "condition" preserved Fenton's right to appeal the district court's decision to deny his motion to suppress the evidence which supported the charge to which he pled guilty. Fenton asserts that the disputed evidence was obtained during an extensive search of his home, without the benefit of a search warrant issued by a judicial officer. Thus, he contends that the search was unreasonable under the Fourth Amendment to the United States Constitution, as well as Wyo. Const. art. 1, § 4. Fenton then concludes that the district court erred in denying his motion to suppress evidence found during the unreasonable search, as well as the evidence gathered thereafter (fruit of the search), including incriminating statements he made at the time of his arrest. We will reverse and remand with instructions that the district court enter an order granting Fenton's motion to suppress. BURDEN OF PROOF BELOW [12] That the State bears the burden of proof with respect to justifying warrantless searches and seizures of a dwelling house is a well-established rule: The United States Constitution and the Wyoming Constitution prohibit "unreasonable searches and seizures." U.S. Const. amend. IV; Wyo. Const. art. 1, § 4. We have stated that under both constitutions, warrantless searches and seizures are per se unreasonable unless they are justified by probable cause and established exceptions. Morris v. State, 908 P.2d 981, 985 (Wyo.1995). In addition to the consent exception to the warrant requirement, these specific exigent circumstances exceptions include: -search of an arrested suspect and the area within his control; -search conducted while in pursuit of a fleeing suspect; -search and/or seizure to prevent the imminent destruction of evidence; -search and/or seizure of an automobile upon probable cause; -search which results when an object is inadvertently in the plain view of police officers while they are where they have a right to be; and -search which results from an entry into a dwelling in order to prevent loss of life or property. Hughes[v. State, 2008 WY 35, 65 P.3d 378 (Wyo. 2003)], T 11 (citing Andrews v. State, 2002 WY 28, 118, 40 P.3d 708, 118 (Wyo. 2002)). The existence of exigent cireum-stances is dependent upon all of the facts or cireumstances viewed in their entirety. Hughes, 118. When a proper objection or motion is made by a defendant, the State bears the burden of proving that one of *980these exceptions applies. Mickelson v. State, 906 P.2d 1020, 1022 (Wyo.1995); Dickeson v. State, 848 P.2d 606, 610 (Wyo. 1992). Pefia v. State, 2004 WY 115, 129, 98 P.3d 857, 870 (Wyo.2004) (the affirmance in the Pea case relied on the "emergency assistance exception," as well as an exception that is designed to prevent loss of life or property); also see Guerra v. State, 897 P.2d 447, 452 (Wy0.1995). [13] In this instance, the district court conducted a hearing and took evidence concerning the search and seizure at issue: "In reviewing a trial court's ruling on a motion to suppress evidence, we do not interfere with the trial court's findings of fact unless the findings are clearly erroneous.... We view the evidence in the light most favorable to the trial court's determination because the trial court has an opportunity at the eviden-tiary hearing to assess 'the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions." " Perta T 25, 98 P.3d at 869. [14] We add the following because we wish to make clear that the issue presented in a case such as this is one of the most important known to Anglo-American jurisprudence: The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures. It provides: The right of the people to be secure in their persons, houses, papers, and ef-feets, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "It is axiomatic that the (physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." " State v. Straub, 749 N.E.2d 593, 597 (Ind.Ct.App.2001) (quoting United States v. United States District Court, 407 U.S. 297, 818, 92 S.Ct. 2125, 32 LEd.2d 752 (1972)). "[A] home is entitled to special dignity and special sanctity and ... the proper way to search a home is to obtain a search warrant." Brown v. State, 738 P.2d 1092, 1094 (Wyo.1987). Thus, searches and seizures inside a home without a warrant are presumptively unreasonable, but there are a few "well-delineated exceptions to the warrant requirement." Vassar v. State, 2004 WY 125, 1 19, 99 P.3d 987, 995 (Wyo.2004). Consent and the existence of exigent cireumstances are two of the exceptions to the warrant requirement. Pena v. State, 2004 WY 115, 129, 98 P.3d 857, 870 (Wyo.2004);, Meadows v. State, 2008 WY 37, €24, 65 P.3d 33, 40 (Wyo. 2008). Gompf v. State, 2005 WY 112, 117, 120 P.3d 980, 985 (Wyo.2005); Rideout v. State, 2005 WY 141, 1 16, 122 P.3d 201, 205 (Wyo0.2005). Both the Gompf case and the Rideout case are instructive here, because in those cases, once the police felt they had probable cause to search, they secured the premises to be searched and sought judicially supervised search warrants (or as in Rideout written consent of the home owner). STANDARD OF REVIEW [15] The constitutionality of a particular search or seizure is a question of law that we review de novo. Peftia 1 25, 98 P.3d at 869. FACTS AND PROCEEDINGS [16] The following affidavit of probable cause, dated February 9, 2005, was submitted to the circuit court in support of a warrant for Fenton's arrest by Laramie County Deputy Sheriff Bruce Dexter: On February 9, 2005 at approximately 12:05 PM Deputy Bruce Dexter and Deputy Craig Harvey went to Lisa Brown's home, 800 East Prosser, Space 152. Deputy Dexter needed to talk to Lisa Brown and Jeremy Fenton about a stolen car case he is investigating and they are suspects. Lisa Brown answered the door and let the deputies into her trailer. Jeremy Fenton was also at the residence. Deputy Harvey saw in plain view sitting on top of stereo speakers in the living room a small plastic baggie containing marijuana and marijua*981na residue on a piece of paper. Deputy Harvey took that as evidence. Deputy Dexter found papers from Lowes that had burnt and unburnt marijuana laying on a shelf of the coffee table in the living room. Deputies searched the residence for other evidence. There was a Brinks Home Security lock box sitting on the floor between the kitchen area and living room area. Initially Fenton and Brown said the lock box belonged to Lisa Brown's brother, Chad Brown and they did not have a key for it. Deputy Hollenbach responded to help us at the trailer. Hollenbach found a key among a set of keys that Brown and Fenton said belonged to them. The key opened the box. Inside the box was $1030 in cash in a black leather wallet that contained the Wyoming driver's license and Social Security card for Jeremy Fenton. There was a plastic baggie that contained numerous small baggies, 1 Gram Precision Pocket Tech electronic seale, 1 gray plastic cigarette box that contained 2 plastic baggies of crystal methamphetamine. One baggie contained approximately 5.5 grams of methamphetamine and 1 baggie contained approximately 3 grams of methamphetamine. Both tested presumptive positive for methamphetamine. Jeremy Fenton admitted the money was his rent money and they had to lock the money in the box because they had a problem with people stealing property from the residence. During the booking process Fenton admitted he knew the methamphetamine was in the lockbox and he told a friend he did not want the "stuff" there because he did not want to get into trouble for it. [T7] Fenton filed his motion to suppress on May 10, 2005. A memorandum of law in support of the motion to suppress was entered in the district court record on May 16, 2005. In it, Fenton did not contest the seizure of evidence found in plain view. On May 16, 2005, the State filed a response to the motion to suppress. In it, the State asserted that the officers were within the bounds of the law in seizing evidence that was in plain view. Relying principally on Andrews v. State, 2002 WY 28, 40 P.3d 708 (Wyo0.2002), the State contended that Fenton was required to assert a possessory interest in the lock box where the methamphetamine was found before he could complain of the search, and furthermore that he lacked standing to complain of the constitutionality of the search. The State then conceded that both Brown and Fenton objected to the further search of their home, but that exigent cireumstances required the police to proceed with the search. [18] At a hearing held on May 16, 2005, the district court heard evidence concerning the motion to suppress. The State called two witnesses in support of its burden to establish the reasonableness of the contested search and seizure. The first to testify was Deputy Sheriff Bruce Dexter. His testimony established that Fenton and Lisa Brown were suspected of stealing a car. Deputy Dexter talked with Brown via telephone on February 8, 2005, and he told her he would "be getting with her the next day." [19] Deputy Dexter and Deputy Craig Harvey arrived at the trailer that was the home of Fenton and Brown shortly after Noon on February 9, 2005. Brown invited the deputies into her home and about that same time Fenton came into the living room area from another part of the trailer. As he entered the trailer, Deputy Harvey noticed a "little bit" of marijuana resting on a "piece of paper" on top of a stereo speaker. The "piece of paper" turned out to be a copy of some of the papers Deputy Dexter already had that related to the auto theft investigation. Both that "piece of paper" and the marijuana were seized as evidence that was in plain view. Brown said the marijuana was hers. Deputy Dexter then continued to look around the living room and on a shelf "underneath the top of the coffee table" he saw what looked like a little bit of marijuana. That was also seized as evidence. Brown took responsibility for that marijuana as well. [110] At that point Dexter informed Brown he "was going to look around the rest of the trailer, that this marijuana I had found gave me probable cause to do so. So I started looking. I walked into the kitchen area. There was a big old green Army kind of duffel bag sitting on top of the counter." *982Dexter then walked around to the other side of the kitchen counter (the counter divided the kitchen and the living room) and looked further into the kitchen. There he found a "handheld police seanner" and a plastic baggie with about a gram of marijuana in it. Deputy Dexter grabbed the closed duffel bag and "jostled it a bit, and 'it sounded like it was full of glass." In fact it was full of glass, and Brown told the deputies that the duffel bag belonged to her father but the glass contents belonged to a girl they had recently kicked out of the apartment because they suspected she was using drugs. [T11l] Deputy Dexter "continued to look around in the trailer." He noticed a black "Brinks home security lockbox" sitting on the floor right at the end of the counter. Dexter testified that the lockbox aroused his suspicions because it "would be a good place to store drugs, money. I'd already found some marijuana in there." In answer to an inquiry who owned the box, Brown said it belonged to her brother, Chad Brown. Brown denied having a key for the lockbox and, although Fenton himself didn't speak during this interlude, Dexter assumed she was speaking for both of them. Dexter also found some keys on the kitchen counter and Brown said they were hers. Dexter tried a couple of the keys on the lockbox but was unable to open it. [T12] At about this time a third Deputy arrived, Deputy Hollenbach. He was in the area and apparently heard radio traffic and decided to come over and help out. As Deputy Dexter was in the process of writing a citation to Brown because of the marijuana, Deputy Hollenbach began checking the keys and eventually was able to open the lockbox. Inside the lockbox, the deputies found a man's wallet and it contained Fenton's driver's license, social security card, and $1,030.00 in cash. They also found glass pipes that appeared to have methamphetamine residue, a container with two baggies of methamphetamine that totaled 8.5 grams in weight, additional packaging material (baggies) similar to those that contained the marijuana found earlier, and a small scale used for weighing out drugs. Once the lock-box had been opened, Fenton answered some questions. He stated that the money was their "rent money," and that it was in the lockbox because they had a problem with people who stayed with them, or who were invited over, stealing from them. [113] Fenton was arrested and given Miranda warnings. He was then taken to jail where, with respect to the methamphetamine, he acknowledged; "I knew it was in there, I was trying to get rid of it. I didn't want to get in there." According to Dexter's testimony, Fenton also told the police at that point that he was on probation for a prior drug charge and that he had had a positive urinalysis test for methamphetamine. Fen-ton made no statement as to ownership of the lockbox. It was only Brown who stated that it belonged to her brother. However, Fenton did not disagree with Brown's statement that it belonged to her brother and he never claimed it as his own. It is evident from the testimony that the deputies treated this as tacit agreement that the security box was not Fenton's. Deputy Dexter also testified that the trailer was the home of both Brown and Fenton. We also take note at this juncture that the facts relied upon at the suppression hearing were that it was the home of both Fenton and Brown. Deputy Dexter's testimony also established that Deputy Harvey largely stayed near the front door and did the bagging of evidence, while he and Deputy Hollenbach searched the trailer. Dexter also walked "to the west end of the trailer through the kitchen area back to the bedroom, looked around." [T14] During cross-examination this exchange took place concerning the search of the living room: Q. Okay. And you decide-at that point does it go through your mind that you better start searching other places in the room that maybe these people have drugs? A. Yes. Q. And you think, well, boy, I better start looking around in here? A. Yes. Q. Okay. So you bend down and look at the coffee table at that point? A. That's exactly what I did. *983Q. Okay. And how far do you have to bend down to look under that coffee table? A. A foot and a half, two feet. Q. Okay. A. It was enough when I bent over. Q. Okay. You didn't have to get on your knees? A. No. Q. But you had to bend over, and you were probably touching your knees when you were looking? A. Close to it. I don't know if I was touching my knees but I was bent over pretty good. [115] Dexter conceded that he pulled out the remainder of the items under the coffee table to "see if there was anything else," and that he looked "all over the living room and the kitchen area," as well as behind the couch. Dexter also conceded that since he had found drugs in the living room he thought he should search further, including the kitchen and under the kitchen sink. The duffel bag was found in the kitchen (although its contents were not visible). He also found another baggie of marijuana there, items that were not visible from the front door or living room. Dexter continued his general search of the remainder of the house, including the bedroom (where he found a bong and a propane torch inside a closed cabinet). He looked in, around, and under clothing in the bedroom and generally searched the bedroom (including "maybe" looking under the mattress which was on the floor), taking as evidence a radio shack book, but leaving behind a second police frequency radio. Later he found yet another larger police frequency seanner behind the couch in the living room which he did not take into evidence. The seanner could be seen from the kitchen area by someone looking out into the living room area. [116] Deputy Harvey also testified. His testimony repeated much of what Deputy Dexter had to say, but added a few additional insights to the search and seizure process at issue here. For instance, he related that Brown became upset when Harvey found the first evidence of marijuana, "she became upset that we needed a warrant to search." Deputy Dexter explained to Ms. Brown that this was "in plain view, we had probable cause to search further." Deputy Harvey also testified that Fenton admitted the methamphetamine was his, which is somewhat different, and perhaps contradictory of Deputy Dexter's testimony. [T 17] Although the next two observations are only of tangential importance to the resolution of this case, we deem them of enough significance to briefly outline them. It is clear from the transcript that the time allowed for this hearing was limited. Apparently the defense attorney had indicated the hearing wouldn't take more than "half an hour," and the district court was concerned because "... we have people waiting back in here ..." Defense counsel's cross examination of Deputy Dexter was fairly thorough. She did cease her questioning immediately after she was interrupted by the district court, but she also indicated she was done with her cross-examination. Before beginning a much briefer cross-examination of Deputy Harvey, defense counsel looked to the district court for guidance asking, "Do you want me to go ahead? I mean, it is already 4:25." The district court indicated defense counsel should proceed, but only a few questions were asked. Second, we note that both defense counsel and the prosecutor indicated to the district court that they were not very well prepared for the hearing. [118] In an "Order Denying Motion to Suppress," the district court made these findings based on the information gathered at the hearing: In Laramie County District Court Docket 27-672, the Defendant's Judgment and Sentence, filed October 81, 2008, placed him on probation after he pled guilty to the possession of methamphetamine with intent to deliver in violation of Wyo. Stat. § 31-7-1081(a)([85-7-10831(a)()] ([Lexis-Nexis] 2002). The fifth term of Defendant's probation stated that he was not to "use or possess alcohol, drugs or controlled substances or associate with those who do and shall, upon the request of law enforcement officers or probation officers submit *984to all tests and searches relative to the use thereof." 1 On February 9, 2005, Laramie County Sheriff's Deputies Bruce Dexter and Craig Harvey were investigating a stolen vehicle report. The deputies thought that the Defendant and his girlfriend, Lisa Brown, may have had some knowledge on the subject. The deputies went to Brown and Defendant's mobile home and knocked on the door. Brown allowed the deputies into their home. As they were discussing the theft in the Defendant's living room, Deputy Harvey noticed that there was marijuana lying on top of [a] stereo speaker in plain view. Deputy Harvey confiscated the marijuana. Ms. Brown claimed that the marijuana was hers. On the floor below the kitchen counter, in plain view from the living room, there was a small security lockbox. The deputies asked Brown and the Defendant, who owned the lockbox, but both denied ownership claiming that it belonged to Brown's brother. On the counter, Deputy Hollen-bach found a set of keys which Brown claimed as her own. Deputy Harvey then opened the lockbox using one of the keys on the key ring and discovered Defendant's wallet in the lockbox, along with approximately $1080 in cash, 8 grams of methamphetamine, a digital seale, packaging materials as are commonly used in the distribution of methamphetamine, and assorted drug-related paraphernalia. Defendant was then placed under arrest and advised of his Miranda rights When questioned later, the Defendant continued to claim that the lockbox belonged to Brown's brother but admitted that he knew the box contained methamphetamine and admitted that he was on probation for a prior drug charge. DISCUSSION: The Fourth Amendment to the United. States Constitution and Article 1, Section 4 of the Wyoming Constitution prohibit unreasonable searches and seizures. Bur-gos-Seberos v. State, 969 P.2d 11831, 1133 (Wyo.1998). Generally, reasonableness is determined by balancing the public's interest and the individual's right to personal security free from arbitrary interference by law enforcement officers. Damato v. State, 64 P.3d 700, 704 (Wyo.2008). Any analysis of the "reasonableness" of the seizure of the methamphetamine must take into account the probationary status of the Defendant and the specific terms contained in the order placing him on probation as well as his denial of ownership of the lock-box. As might be expected, probationers do not enjoy the full panoply of rights which the U.S. and Wyoming Constitutions afford an ordinary citizen who is not on probation. Although a probationer is entitled to Fourth Amendment protection, a probationer does not enjoy the absolute liberty to which every citizen is entitled, but only a conditional liberty depending on special probation restrictions. Id. [Jones v. State, 2002 WY 35, 41 P.3d 1247 (2002)] at 1257. Unlike an ordinary citizen, a warrantless search of a probationer's residence without probable cause or exigent cireumstances, does not necessarily violate Fourth Amendment as. long as "reasonable grounds" for such a search exist. Id. In Jones v. State, the Wyoming Supreme Court recognized the validity of a condition of probation requiring the probationer to submit to searches upon demand by law enforcement. 41 P.3d at 1258. In Jones, the Court stated: We hold that in cases where the unlawful possession, consumption, or abuse of alcohol or a controlled substance was an element or contributing factor in the underlying crime, or where the evidence at sentencing suggests that the unlawful possession, consumption or abuse of alcohol or a controlled substance will likely affect a defendant's rehabilitation and *985the prospect of future criminal conduct, reasonable grounds exist to include as a probationary condition random searches of the defendant, his residence and his vehicle for the presence of the offending substances. Id. at 1258. However, Jones also provides that in order for the warrantless search provision to be constitutional, it must also be reasonable. Id. Nixon v. State, 18 P.3d 631 (Wyo.2001) holds a warrantless search of a probationer’s home must be based upon a reasonable suspicion that the defendant was engaged in unlawful activity. Nixon, 18 P.3d at 636. The officer “must be able to point to specific and articulable facts that, taken together with rational inference from those facts, reasonably warrant a belief ... that a condition of parole has been or is being violated.” Id. The Court finds that the deputies were legally upon the premises, that they had reasonable cause to believe that the Defendant was violating at least one of the terms of his probation and that as a result the Defendant was obliged to submit to searches relative to his use of drugs. There is an alternative theory upon which the Court may rely in determining whether the motion should be granted. In order to object to the legality of the search the Defendant must have an expectation of privacy in the item searched. Andrews v. State, 40 P.3d 708, 712-13 (Wyo.2002). A defendant has no expectation of privacy in an object searched if he “abandons” the object searched. Id. at 713. See also Unit-, ed States v. Garzón, 119 F.3d 1446, 1449 (10th Cir.1997). Consequently, the Defendant lacks standing to complain of an illegal search or seizure .of property which he has abandoned or of which he has disclaimed ownership. Garzón, 119 F.3d at 1449. A person abandons an object when he explicitly disclaims an interest in the object. Id. at 1452. Given that both Brown and the Defendant affirmatively asserted that the lockbox, which was in plain view to the officers legally on the premises, belonged to a third party, the Defendant has no expectation of privacy in the box and as a result the Defendant has no standing to object to the legality of the search of the lockbox. CONCLUSION: In conclusion, the Court finds that the warrantless search of Defendant’s residence was proper for- several reasons. The deputies were legally on the premises based on the fact that Brown let them into the house. After the deputies saw the marijuana in plain view, they had reasonable suspicion to believe that the Defendant/probationer was committing a drug crime or at a minimum associating with someone who was in possession of drugs which was also prohibited by the probationer’s judgment and sentence. Defendant was required by the conditions of his probation to submit to random searches by law enforcement relative to the use of drugs or alcohol. Secondly, because both the Defendant and Ms. Brown denied ownership of the lockbox and asserted that the box belonged to a third person, the Defendant has no standing to object to the legality of the seizure and search of the lock-box. Therefore, the Court finds that no Fourth Amendment violátion transpired. DISCUSSION [¶ 19] Our analysis will be brief because there is not much to be said about the issues raised. We conclude that the resolution of this ease has nothing to do with the law that relates to searches and seizures conducted pursuant to the terms of a probation/parole agreement. That was not an issue even broached during the hearing on the motion to suppress, it was not a factor in the police officer’s presence at the Fenton/Brown home, and the police officers were not aware that Fenton was on probation—although discovery of that information was only a phone or radio call away. The district court erred as a matter of law to the extent it relied upon the terms of the probation agreement in denying the motion to suppress. See People v. Sanders, 31 Cal.4th 318, 2 Cal.Rptr.3d 630, 73 P.3d 496, 505 (Cal.2003). [¶ 20] With respect to the other issues at large, we will note only that the search at *986issue here was per se unreasonable under the governing law, as has been the case since the institution of the Constitutions we are called upon to interpret. The burden was on the State to prove by a preponderance of the evidence that there was some exception or cireumstance that demonstrated that the search was not unreasonable. The State failed to meet that burden and, therefore, we are compelled to conclude that the search was unreasonable as a matter of law. The Andrews2 case is simply not in point, and it does not support a conclusion that Fenton lacked standing to challenge the search of the contents of the Brinks Home Security lockbox. None of the other exceptions to the warrant requirement advanced by the State, as they pertain to the search of a dwelling house, are availing. Our independent review of other recognized exceptions are not called into play by the evidence brought forward by the State. We decline to dilute the governing law as it pertains to such searches by trying to contort these cireumstances into a procrustean bed that will not accommodate them. The record is clear beyond cavil that the police officers did have probable cause which would have justified the issuance of a search warrant by a judicial authority, and that too was just a phone/radio call away during the early afternoon hours of February 9, 2005. See Gompf, 120 P.3d 980, and Ride-out, 122 P.8d 201. CONCLUSION [121] We hold that the district court erred in denying Fenton's motion to suppress. The judgment and sentence of the district court is reversed, and this matter is remanded to the district court for proceedings consistent with this opinion. . We do not question the accuracy of this quotation from Fenton's probation agreement. However, it would have been better practice, certainly, for a copy of that agreement to have been included in the record by the prosecution or the district court. See Wayt v. State, 912 P.2d 1106, 1109 (Wyo.1996) ("'Wayt is chargeable with the knowledge that a court may take judicial notice of its own records in cases closely related to the one before it."). . In Andrews the search involved property belonging to Andrews, but which was located in his parents' house. Andrews agreed to allow a search of two duffel bags, but denied that a third duffel bag was his. His parents consented to the search of the third bag, and we held that he lacked standing to challenge the search. Andrews, TI 7-28, 40 P.3d at 710-14.
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opinion_xml_harvard
| 4,911 |
2022-01-02 02:10:01.068599+00
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020lead
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t
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f
| 5,324,659 |
Burke, Golden, Hill, Kite, Voigt
| null |
U
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f
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Published
| 1 |
Fenton v. State
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Fenton
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Jeremy FENTON, (Defendant) v. The STATE of Wyoming, (Plaintiff)
| null | null | null | null | null | null | null | null | null | 61,665,837 |
No. 05-224
| 0 |
wyo
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S
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t
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Wyoming Supreme Court
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Wyoming Supreme Court
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1,813,170 |
929 F. Supp. 172 (1996) NEW YORK CITY DEPARTMENT OF FINANCE, and The City of New York, Plaintiffs, v. TWIN RIVERS, INC., American National Bank and Trust Company of Chicago, as Trustee, Realty Growth Investors and American Invsco Corp., Defendants. No. 95 Civ. 1389 (HB). United States District Court, S.D. New York. June 20, 1996. Paul A. Crotty, Corporation Counsel of the City of New York (Robin Green and James B. Henly, of counsel), New York City, for plaintiffs. L. Donald Prutzman, Stecher, Jaglom & Prutzman, New York City, for defendants. Order and Opinion BAER, District Judge. Plaintiffs filed this cause of action to recover unincorporated business taxes owed for the years 1981 and 1984 from defendants. Pursuant to Fed.R.Civ.P. 12(b)(6), defendants Realty Growth Investors ("RGI") and American Invsco Corporation ("AIC") moved to dismiss plaintiffs' complaint for failure to state a claim. RGI and AIC are Guarantors of a Note signed by Twin Rivers and American National Bank and Trust Company ("ANB") which promises payment to the City of monies owed. In an Order and Opinion dated March 11, 1996, I found that the City had satisfied the two conditions precedent to commence this action against defendants RGI and AIC and, accordingly, denied defendants' motion to dismiss. Defendants now move pursuant to Local Civil Rule 3(j) for reargument of my March 11, 1996 decision. Reargument is granted. For the reasons stated, defendants' motion for relief of the Court's prior decision is granted in part and denied in part. *173 Background Familiarity with the facts of this case is presumed. For a full account, see New York City Dept. of Finance v. Twin Rivers, Inc., et al., 920 F. Supp. 50 (S.D.N.Y.1996). Discussion Defendants move pursuant to Local Civil Rule 3(j) for reargument of their motion to dismiss. Rule 3(j) states in relevant part: A notice of motion for reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion and ... shall be served with ... a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked. No oral argument shall be heard unless the court grants the motion and specifically directs that the matter shall be reargued orally.... Local Civil Rule 3(j). It follows that to satisfy this rule, the moving party must set forth a matter or controlling decision which the court overlooked in its initial review of the motion. See, e.g., Farkas v. Ellis, 783 F. Supp. 830 , 832 (S.D.N.Y.), aff'd, 979 F.2d 845 (2d Cir.1992) (strict standard to grant reargument to avoid reconsideration of issues already considered); Mancuso v. Consolidated Edison Co. of New York, Inc., 905 F. Supp. 1251 , 1255 (S.D.N.Y.1995) ("moving party must demonstrate ... court overlooked controlling decisions or factual matters") ( citing Violette v. Armonk Assocs., 823 F. Supp. 224 , 226 (S.D.N.Y.1993)). If the Court finds that the motion for reargument is warranted, the Court may either direct the parties to reargue their motion orally or rely on the submissions as made. Defendants argue that the Court overlooked two dispositive factors when it denied defendants' previous motion to dismiss. First, defendants argue that the Court should have dismissed the complaint as against AIC on the basis that the provision of the RGI Guarantee on which the Court relied appears only in the RGI Guarantee and therefore, cannot excuse exhaustion as to AIC. Second, defendants contend that the Court should have dismissed both RGI and AIC because the provision of the Guarantees on which the Court relied to excuse plaintiffs' failure to exercise due diligence excuses only delay in exercising rights under the guarantee, not delay in exercising rights under the note, the relevant delay here. a. The complaint should be dismissed as against AIC. In its March Order and Opinion, the Court noted that the City satisfied the terms of the Guarantees of Collection when the December 29, 1992 Judgment of Consent Foreclosure was entered against defendants in Chicago, Illinois. Twin Rivers, 920 F.Supp. at 53. The Court further noted that "because the provision is not contained in the AIC guaranty, the plaintiff can invoke the use of this provision only against RGI and not against AIC." Id. at 54. Defendant argues that the Court's conclusion does not excuse plaintiffs from exhausting its remedies to collect under the Note before proceeding against defendant AIC. Defendant further relies on the language contained in the AIC Guarantee which states: Guarantor hereby guarantees the collection of the Liabilities of Obligor upon the condition that, in the event Obligor defaults in the payment of any of the Liabilities of Obligor, the Obligee shall first have exhausted all of its remedies against Obligor to recover from the Obligor and Realty Growth Investors pursuant to a certain Guarantee of Collection of even date herewith (the "RGI Guarantee") so much of the Liabilities of Obligor as can be thereby obtained, before requiring payment of any part thereof from the Guarantor. Accordingly, defendants argue that the Court should have dismissed AIC in the first decision as the City must first pursue the Obligor of the Note and RGI before it can enforce the Guarantee against AIC. To justify reargument, defendant must present a matter or controlling decision to the Court which was previously overlooked. Upon review of the March 11, 1996 Order and Opinion, the Court overlooked this distinction between the RGI Guaranty and the AIC Guaranty. As noted above, the AIC Guaranty contains a double exhaustion *174 clause; it requires the Obligee to proceed against the Obligor and RGI before it can maintain an action against defendant AIC. In contrast, the language of the RGI Guaranty only requires the Obligee to satisfy two conditions precedent before it commences an action against RGI. Pursuant to the rule that guarantees are strictissimi juris, Barns v. Barrow, 61 N.Y. 39 , 42 (1874), plaintiff is required to perform an additional step before it proceeds against AIC, a step which has not yet occurred. Accordingly, the complaint as against defendant AIC must be dismissed. The Court notes, however, that dismissing AIC from the complaint is equivalent to exalting form over substance. Each of the Notes and Guarantees were signed by the same person, Robert Lester, in either his capacity as President or other Officer of both corporations and both corporations reside at the same location. Dismissing AIC at this juncture may result in plaintiffs having to prove their case twice; plaintiffs would proceed against RGI, be successful, find the admittedly "dry hole" and then be required to file anew an identical complaint against AIC. In short, this dismissal will likely result in needless duplicative litigation and be wasteful of judicial time. Nonetheless, it seems incumbent upon me to dismiss the complaint as against AIC. b. Plaintiffs satisfied the due diligence requirement. Defendants contend that the Court overlooked the language contained in the Notes and Guarantees when it concluded that the City was not required to exercise due diligence to collect under the Note before suing on the Guarantees. The Court stated in its March 11, 1996 Order and Opinion that "the City has exercised the requisite due diligence in its attempts to collect from the defendant obligor and that this action naming both the obligor and the guarantors as defendants is not premature." Twin Rivers, 920 F.Supp. at 54. Defendants do not present any new matter or controlling decisions which would require this Court to entertain reargument on this issue. Rather, defendants merely reassert the arguments made previously in their motion papers. For this reason, defendants Rule 3(j) motion fails on this basis. Conclusion Defendants motion for reargument pursuant to Local Civil Rule 3(j) is GRANTED in part and DENIED in part. The complaint as against defendant AIC is dismissed. SO ORDERED.
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2013-10-30 07:30:29.180073+00
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| 1,813,170 |
Baer
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LU
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Published
| 4 |
New York City Department of Finance v. Twin Rivers, Inc.
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NEW YORK CITY DEPARTMENT OF FINANCE, and the City of New York, Plaintiffs, v. TWIN RIVERS, INC., American National Bank and Trust Company of Chicago, as Trustee, Realty Growth Investors and American Invsco Corp., Defendants
| null | null |
<parties id="b238-6">
NEW YORK CITY DEPARTMENT OF FINANCE, and The City of New York, Plaintiffs, v. TWIN RIVERS, INC., American National Bank and Trust Company of Chicago, as Trustee, Realty Growth Investors and American Invsco Corp., Defendants.
</parties><br><docketnumber id="b238-9">
No. 95 Civ. 1389 (HB).
</docketnumber><br><court id="b238-10">
United States District Court, S.D. New York.
</court><br><decisiondate id="b238-12">
June 20, 1996.
</decisiondate><br><attorneys id="b238-22">
Paul A. Crotty, Corporation Counsel of the City of New York (Robin Green and James B. Henly, of counsel), New York City, for plaintiffs.
</attorneys><br><attorneys id="b238-23">
L. Donald Prutzman, Stecher, Jaglom & Prutzman, New York City, for defendants.
</attorneys>
| null | null | null | null | null | null | 154,390 |
95 Civ. 1389 (HB)
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nysd
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FD
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S.D. New York
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District Court, S.D. New York
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6,137,122 |
Pee Cueiam : There seems to be no reason why, pending an appeal, the funds in question should be kept at a low rate of interest and the appellant have no indemnity therefor. The parties should be put in the same *521position, as nearly as possible, pending the appeal as though the stay had not been granted, and indemnity against this loss of interest is necessary in order that if the appellant herein should finally succeed in the action, he may not be called upon to bear the same. As a condition of the stay, the order should have provided that a bond should be given to pay the difference between the rate of interest paid by the trust company and legal interest on the judgment. The suggestion upon the part of the appellant that the testimony of two of his witnesses should be taken so that their testimony may be perpetuated in case of their death, seems also to be a reasonable one and provision should be made therefor. The order should be modified by providing for the giving of a bond for the payment of the difference in interest and for the taking of the testimony of the two witnesses upon the part of the defendant. An order should be entered modifying the order as above suggested, without costs. Present — YaN BbüNt, P. J., Baetlett and Macombee, JJ. Order modified as directed in opinion, without costs.
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opinion_xml_harvard
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2022-02-04 21:49:31.372492+00
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020lead
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f
| 6,269,331 |
Baetlett, Bbünt, Cueiam, MacOmbee
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Drexel v. Amant
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Drexel
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ANTHONY J. DREXEL and Others v. GEORGE ST. AMANT, Impleaded with JOSEPH M. PEASE and Others
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<p>Appeal from an order made at the New York Special Term, staying proceedings on a reference ordered by the interlocutory judgment in this action.</p> <p>The affidavits used on the motion showed that the respondents procured an attachment and a judgment against the defendant Pease, and levied upon certain property which the appellant St. Amant claimed to own and which he claimed had been sent to Pease as his agent, with instructions to Pease to sell it. An interlocutory judgment was recovered sustaining the claim of the appellant St. Amant, and ordering a reference for the determination of certain details. The funds in question, which were claimed by St. Amant, were deposited in a trust company at a low rate of interest, involving an annual loss as com. pared with legal interest amounting to some $600. The action has been pending some four years.</p>
| null | null |
<p>Stay of proceedings on a reference, pending an appeal from an interlocutory judgment— the undertaking should cover the loss, sustained by reason of the lower interest received on the money involved, pending the appeal.</p> <p>In this action, in which an attachment was issued and levied upon property, an interlocutory judgment was entered, which involved the question as to the ownership of the property attached, and sustained the right of the defendant thereto; under which judgment a reference was ordered. An appeal was taken from the judgment and a stay of proceedings on the reference was granted.</p> <p>Held, that it was proper that the undertaking given upon such appeal should provide for the payment of the difference between the rate of interest which would he paid ky the trust company, in which the proceeds of sale of the attached property were deposited, and the legal interest.</p>
| null | null | null | null | null | 62,752,883 | null | 0 |
nysupct
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ST
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t
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New York Supreme Court
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New York Supreme Court
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1,587,576 |
709 F. Supp. 329 (1989) Minerva MENDEZ-BELLIDO, as mother and natural guardian of Cynthia Mendez, an infant over the age of fourteen years, to wit: seventeen years of age, Janie Mendez, an infant under the age of fourteen years, to wit: eleven years of age and Jessica Mendez, an infant under the age of fourteen years, to wit: seven years of age, Plaintiffs, v. BOARD OF TRUSTEES OF DIVISION 1181, A.T.U. NEW YORK EMPLOYEES PENSION FUND AND PLAN and Edith Abreu Mendez, Defendants. No. 87 CV 3000. United States District Court, E.D. New York. March 30, 1989. Martin S. Friedman, Charles Berkman, Brooklyn, N.Y., for plaintiffs. Joy M. Holtz, Wilfred L. Davis & Stephen Davis, P.C., New York City, for defendants. MEMORANDUM AND ORDER McLAUGHLIN, District Judge. Defendant, Board of Trustees of Division 1181, A.T.U. New York Employees Pension Fund and Plan ("the Pension Fund"), moves pursuant to Fed.R.Civ.P. 56 for summary judgment. Plaintiff, Minerva Mendez-Bellido, on behalf of her children ("the infant plaintiffs"), also moves for summary judgment against defendant Edith Abreu Mendez ("Abreu"). For the reason set forth below, the Pension Fund's motion is denied and plaintiff's motion is *330 granted. [1] FACTS On September 17, 1985 Carlos Mendez was murdered. On December 15, 1986, defendant Abreu pleaded guilty to an indictment charging her with first degree manslaughter and was subsequently sentenced to a two-to-six-year term of imprisonment. Abreu was the second wife of the decedent. At the time of his death, Carlos Mendez was vested in his rights to a pension administered by the Pension Fund with payments to commence on December 1, 1999, the first month following his 55th birthday. The Pension Fund is established pursuant to the Labor Management Relations Act of 1947, 29 U.S.C. § 186(c)(5), and is an employee benefit fund within the meaning of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. On December 22, 1986, plaintiff, Carlos Mendez's first wife, made a claim on behalf of her children for the death benefits provided for in the pension plan. [2] Plaintiff's claim was rejected on the ground that the Trust Agreement, which was established pursuant to collective bargaining agreements, required that a qualified preretirement joint and survivor's annuity be paid to the decedent's surviving spouse. The Appeal Board of the Pension Fund subsequently affirmed that determination. Plaintiff commenced this action in Supreme Court, Kings County, seeking to declare defendant Abreu disqualified from receiving benefits from the pension plan and an adjudication that plaintiffs share equally the plan benefits. The Pension Fund removed the action to this Court, and now moves for summary judgment on the ground that ERISA preempts any state law that would operate to divest defendant Abreu's right to the pension plan benefits. Plaintiff moves for summary judgment against defendant Abreu alleging that as a matter of New York law and public policy, Abreu cannot enjoy the benefits derived from the pension. DISCUSSION There is no dispute that New York law forbids one who kills another to take through intestacy or under the victim's will. See Riggs v. Palmer, 115 N.Y. 506 , 22 N.E. 188 (1889). The prohibition holds true even when the would-be beneficiary is convicted of second degree manslaughter a reckless but non-intentional killing. See Matter of Wells, 76 Misc. 2d 458 , 350 N.Y.S.2d 114 , 119 (Surr.Ct.Nassau Co. 1973), aff'd without opinion, 45 A.D.2d 993 , 359 N.Y.S.2d 872 (2d Dep't 1974). The pension plan at issue is subject to ERISA's requirement for joint and survivor annuity and preretirement survivor annuity. See 29 U.S.C. § 1055. Section 205(a)(2) of ERISA provides that "[e]ach pension plan ... shall provide that ... in the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified preretirement survivor annuity shall be provided to the surviving spouse of such participant." Id. § 1055(a)(2). In furtherance of this requirement, the plan provides: Effective August 23, 1984, if a married participant who has been married to his spouse for at least one year dies and has at least one (1) hour of employment or paid service on or after August 23, 1984 with sufficient years of credited service for a pension: (1) who has not attained age 55 then, at such time as he should have met the age requirement, his surviving spouse shall be entitled to receive a joint and survivor benefit payable as of the first of the month following the month in which the participant would have attained age 55, based upon the benefit rate in effect at the time of participant's demise. The benefit amount the spouse will receive shall be 50% of the pension the participant *331 would have been entitled to receive upon attainment of age 55 based upon the benefit rate in effect at the time of participant's demise. Article V, § 5(b)(1). In order to determine whether defendant Abreu can benefit from the pension plan, the Court must determine whether ERISA preempts New York law prohibiting a killer from profiting from her crime. Section 514(a) provides that ERISA "shall supersede any and all state laws insofar as they may now or hereinafter relate to any employee benefit plan" covered by the Act. 29 U.S.C. § 1144(a). Although § 514(b)(2), which contains the "saving clause" and the "deemer clause", creates exceptions to the preemption rule, the exceptions are inapplicable to this case. The Court thus focuses on whether the state law "relates to" an employee benefit plan. The words "relate to" must be interpreted broadly, Shaw v. Delta Airlines Inc., 463 U.S. 85 , 98, 103 S. Ct. 2890 , 2900, 77 L. Ed. 2d 490 (1983), to effectuate Congress' purpose of "establish[ing] pension plan regulation as exclusively a federal concern." Id. at 98, 103 S.Ct. at 2900. This congressional mandate, however, does not reach all state laws. Indeed, as the Shaw Court points out, "[s]ome states actions may affect employee benefit plans in too tenuous, remote, or peripheral manner to warrant a finding that the law `relates to' the plan." Id. at 100 n. 21, 103 S.Ct. at 2901 n. 21. There is no hard and fast rule for determining whether a state law "relates to" and is therefore preempted by ERISA, or is "too remote" and can therefore coexist with the federal scheme. The Second Circuit in Aetna Life Insurance Co. v. Borges, 869 F.2d 142 (2d Cir.1989), however, has recently provided some guidance. After reviewing the relevant case law, the Borges Court made the following analysis: we find that laws that have been ruled preempted are those that provide an alternative cause of action to employees to collect benefits protected by ERISA, refer specifically to ERISA plans and apply solely to them, or interfere with the calculation of benefits owed to an employee. Those that have not been preempted are laws of general application often traditional exercises of state power or regulatory authority whose effect on ERISA is incidental. Id. at 146. Using this framework, the Court must conclude that a state law prohibiting a killer from profiting from her crime is not preempted by ERISA. This common law rule is rooted in public policy and has broad application to insurance policies, wills and intestacy. The application of this rule to pension plans governed by ERISA will not affect the determination of an employee's eligibility for benefits, compare Gilbert v. Burlington Industries Inc., 765 F.2d 320 , 327 (2d Cir.1985) (state severance law preempted where it would determine whether benefits were to be paid), aff'd, 477 U.S. 901 , 106 S. Ct. 3267 , 91 L. Ed. 2d 558 (1986), nor will it impact on the method of calculating the amount of benefits due. See Mackey v. Lanier Collections Agency & Service, Inc., U.S. , 108 S. Ct. 2182 , 2185, 100 L. Ed. 2d 836 (1988) (state garnishment law that distinguishes between ERISA plans and non-ERISA plans preempted); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 , 524, 101 S. Ct. 1895 , 1906, 68 L. Ed. 2d 402 (1981) (preempting state law because it eliminated a method of calculating benefits otherwise permitted by ERISA); Rebaldo v. Cuomo, 749 F.2d 133 , 138-39 (2d Cir.1984) (state law upheld because it did not affect the structure, administration or type of benefits provided by ERISA), cert. denied, 472 U.S. 1008 , 105 S. Ct. 2702 , 86 L. Ed. 2d 718 (1985). The Pension Fund nevertheless argues that MacLean v. Ford Motor Co., 831 F.2d 723 (7th Cir.1987) mandates a contrary result. In MacLean, the executor of an employee's estate brought an action to collect the accumulated benefits from the employee's Savings and Stock Investment Plan ("SSIP"), an employee pension plan governed by ERISA. On a motion for summary judgment, the executor argued that the SSIP benefits should be distributed in accordance with the employee's will rather than to the SSIP designated beneficiary. *332 The Seventh Circuit held that ERISA preempted state testamentary law. In so concluding, the MacLean court found that state testamentary law "interfered with the administration of the [SSIP] and violated its terms" since the SSIP provided "a valid method for determining the beneficiary." Id. at 728. The court also discussed the havoc that would result if state testamentary law controlled since each state has different laws regarding testamentary transfers. Id. It is on the latter point that the Court finds MacLean distinguishable. Unlike state testamentary transfer laws, state laws prohibiting murderers from receiving death benefits are relatively uniform. [3] Thus, there is little threat of creating a "patchwork scheme of regulation." Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 , 107 S. Ct. 2211 , 2217, 96 L. Ed. 2d 1 (1987). Moreover, it appears that federal law is in accord. In Ridgway v. Ridgway, 454 U.S. 46 , 102 S. Ct. 49 , 70 L. Ed. 2d 39 (1981), the Supreme Court considered the effect of a state constructive trust on the proceeds of an insurance policy issued pursuant to the Servicemen's Group Life Insurance Act, 38 U.S.C. §§ 765 et seq. ("SGLIA"). Although the Court concluded that the SGLIA and the beneficiary designated thereunder prevail over a state constructive trust for the benefit of another, the court expressly reserved the problem presented in "extreme fact situations ... where the beneficiary has obtained the proceeds through fraudulent or illegal means as, for example, where the named beneficiary murders the insured service member." Id. 454 U.S. at 60 n. 9, 102 S.Ct. at 57 n. 9. Lower courts construing the SGLIA and its predecessor statutes, however, have consistently held that, as a matter of federal law, a beneficiary convicted of murdering the insured is precluded from receiving the insurance proceeds. See Prudential *333 Insurance Co. v. Tull, 690 F.2d 848 , 849 (4th Cir.1982) ("Federal law recognizes that the beneficiary's claim is barred by the equitable defense: `No person should be permitted to profit from his own wrong.'" (quoting Shoemaker v. Shoemaker, 263 F.2d 931 , 932 (6th Cir.1959))), aff'g, 532 F. Supp. 341 (E.D.Va.1981); Shoemaker, supra, 263 F.2d at 932; Burns v. United States, 200 F.2d 106 , 106-07 (4th Cir.1952), aff'g, 103 F. Supp. 690 (D.Md. 1952); United States v. Leverett, 197 F.2d 30 , 31 (5th Cir.1952); Austin v. United States, 125 F.2d 816 , 819 (7th Cir.1942); United States v. Kwasniewski, 91 F. Supp. 847 , 852 (D.C.Mich.1950). Indeed, over a century ago, in an action to recover the proceeds of a life insurance policy, the Supreme Court stated: "[i]t would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of a party whose life he had feloniously taken." New York Mutual Life Insurance Co. v. Armstrong, 117 U.S. 591 , 600, 6 S. Ct. 877 , 881, 29 L. Ed. 997 (1886). Merely concluding that Abreu is precluded from receiving the pension plan benefits does not end the inquiry here. The Court must further determine who, if anyone, is entitled to receive the proceeds. Unfortunately, the Court is not adequately briefed on this point. Plaintiff argues that the benefits should be awarded to her children by operation of Article VII of the pension plan. [4] The Pension Fund, having failed to submit reply papers on its motion, has not addressed the applicability of Article VII or the mechanism for distribution under the pension plan in the event the designated spouse pre-deceases the employee. The Court is also is unaware whether Carlos Mendez had any other children, whether he has an estate and who the executor or administrator of that estate is. In sum, the Court is ill-prepared at this juncture to decide whether the pension plan benefits *334 should be distributed to the infant plaintiffs pursuant to Article VII or whether alternate means of distribution exist. Upon an appropriate motion, with well-researched memoranda of law, the Court will reach this issue at a later date. CONCLUSION Plaintiff's motion for summary judgment precluding Abreu from receiving the pension plan benefits is hereby granted. The Pension Fund's motion for summary judgment on the ground of ERISA preemption is hereby denied. SO ORDERED. NOTES [1] Defendant Abreu has not appeared in this action and has not submitted papers in opposition to this motion. [2] Carlos Mendez and plaintiff were divorced in November 1983. The infant plaintiffs are the issue of that marriage. In July 1984, defendant Abreu and Carlos Mendez were married. [3] See Glass v. Adkins, 436 So. 2d 844 (Ala.1983); In re Griswold, 13 Ariz.App. 218, 475 P.2d 508 (1970); Clark Center, Inc. v. National Life & Accident Ins. Co., 245 Ark. 563 , 433 S.W.2d 151 (1968); N.Y. Life Ins. Co. v. Cawthorne, 48 Cal. App. 3d 651 , 121 Cal. Rptr. 808 (1975); Strickland v. Wysowatcky, 128 Colo. 221 , 250 P.2d 199 (1952) (rule does not apply to manslaughter); Bird v. Plunkett, 139 Conn. 491 , 95 A.2d 71 (1953) (rule does not apply to manslaughter); Maneval v. Lutheran Brotherhood, 281 A.2d 502 (De.1971); In re Estate of Fairweather, 444 So. 2d 464 (Fla.1983), appeal denied, 451 So. 2d 848 (1984); Tippens v. Metropolitan Life Ins. Co., 99 F.2d 671 (5th Cir.1938) (applying Georgia law); United States v. Foster, 238 F. Supp. 867 (E.D. Mich.1965) (applying Hawaiian law); In re Estate of Eliasen, 105 Idaho 234 , 668 P.2d 110 (1983); In re Estate of Seipel, 29 Ill.App.3d 71, 329 N.E.2d 419 (1975) (rule does not apply to manslaughter); Stacker v. Mack, 126 Ind.App. 95, 130 N.E.2d 484 (1955); McDade v. Mystic Workers of the World, 196 Iowa 857 , 195 N.W. 603 (1923); Harper v. Prudential Life Ins. Co., 233 Kan. 358 , 662 P.2d 1264 (1983); Bates v. Wilson, 313 Ky. 572 , 232 S.W.2d 837 (1950); Smith v. Southern National Life Ins. Co., 134 So. 2d 337 (La.1961); Metropolital Life Ins. Co. v. Wenckus, 244 A.2d 424 (Me.1968); Ford v. Ford, 307 Md. 105 , 512 A.2d 389 (1986); Slocum v. Metropolitan Life Ins. Co., 245 Mass. 565 , 139 N.E. 816 (1923); Budwit v. Herr, 339 Mich. 265 , 63 N.W.2d 841 (1954); Sharpless v. Ground Lodge, 135 Minn. 35 , 159 N.W. 1086 (1916); Genna v. Harrington, 254 So. 2d 525 (Miss.1971); Wells v. Harris, 414 S.W.2d 343 (Mo.1967); In re Estate of Matye, 198 Mont. 317 , 645 P.2d 955 (1982); Johnston v. Frank, 97 Neb. 190 , 149 N.W. 409 (1914); Wilson v. Randolph, 50 Nev. 371 , 261 P. 654 (1927) (son permitted to inherit); Kelley v. State, 105 N.H. 240 , 196 A.2d 68 (1963) (murderer held to be constructive trustee for estate); Whitney v. Lott, 134 N.J.Eq. 586, 36 A.2d 888 (1944) (murderer held to be constructive trustee of estate); Reagan v. Brown, 59 N.M. 423 , 285 P.2d 789 (1955) (son permitted to inherit prior to statutory change); Lofton v. Lofton, 26 N.C.App. 203, 215 S.E.2d 861 (1975); Matter of Estate of Josephson, 297 N.W.2d 444 (N.D.1980); In re Estate of Birt, 18 Ohio Misc.2d 7, 481 N.E.2d 1387 (1983) (juvenile delinquent entitled to inherit though purposely causing father's death); National Aid Assoc. v. May, 201 Okla. 450 , 207 P.2d 292 (1949); Hargrove v. Taylor, 236 Or. 451 , 389 P.2d 36 (1964) (murder held to be constructive trustee of estate); In re Kravitz, 418 Pa. 319 , 211 A.2d 443 (1965); Smith v. Todd, 155 S.C. 323 , 152 S.E. 506 (1930); DeZotell v. Mutual Life Ins. Co., 60 S.D. 532 , 245 N.W. 58 (1932); Houser v. Haven, 32 Tenn.App. 670, 225 S.W.2d 559 (1949); National Life & Accident Ins. Co. v. Thompson, 153 S.W.2d 322 (Tex.Civ. App.1941); Continental Bank & Trust Co. v. Maag, 285 F.2d 558 (10th Cir.1960) (applying Utah law); In re Estate of Mahoney, 126 Vt. 31 , 220 A.2d 475 (1966) (murderer held to be constructive trustee of estate); Blanks v. Jiggets, 192 Va. 337 , 64 S.E.2d 809 (1951); New York Life Ins. Co. v. Jones, 86 Wash.2d 44, 541 P.2d 989 (1975); Metropolitan Life Ins. Co. v. Hill, 115 W.Va. 515, 177 S.E. 188 (1934); In re Wilson's Estate, 5 Wis. 2d 178 , 92 N.W.2d 282 (1958); Metropolitan Life Ins. Co. v. Banion, 86 F.2d 886 (10th Cir.1936) (applying Wyoming law). [4] Article VII provides as follows: Death benefits If a participant dies at any time before becoming eligible for a pension hereunder, his beneficiary shall be entitled to a refund equal to the amount of his contributions to the Fund plus 2½% interest compounded annually to December 31, 1972. Thereafter from January 1, 1973 through December 31, 1975, no interest shall be credited. Commencing January 1, 1976, interest shall be compounded annually at the rate of 5%. If a participant dies who is eligible to receive a pension, after he has begun to receive pension payments and has elected not to provide a Survivor's Annuity or if he is unmarried, his beneficiary shall receive the refund described above reduced by the amount of pension payments to the retired participant prior to his death. In the event of the death of a participant's spouse who is receiving or would be entitled to receive a Survivor's Annuity, her beneficiary shall also receive the above described refund reduced by the amount of pension payments paid to the retired participant and/or the spouse prior to death. Prior to making any payments under this Article, the Board shall require proof of death of the participant or retired participant. Beneficiaries shall be designated on the form provided by the Trustees. In the event no beneficiary has been designated, payment shall be made as follows: (i) To the surviving spouse, if any; (ii) If no surviving spouse, to the deceased's surviving children, if any, equally; (iii) If no surviving spouse, and no surviving children, to the deceased's surviving parent or parents, if any, equally; (iv) If no surviving spouse and no surviving children and no surviving parent, to the deceased's surviving brothers and sisters, if any, equally. In the event there is no designated beneficiary, surviving spouse, surviving children, surviving parent, or surviving brother and/or sisters, then the payment shall be made to the Estate of the deceased. In the event there is no "Estate" and no claim is made by any of the persons specifically listed above within three years of date of death, then no death benefit need be paid. However restoration of the amount forfeited shall be made upon presentation of the valid claim of any person entitled thereto. Anything to the contrary notwithstanding, the Trustees may, at their option, pay an amount, not to exceed the amount due on the death of the Participant determined as set forth above, to any person appearing to be equitably entitled to the payment of actual expenses incurred in connection with the burial of the participant where the named beneficiary or next of kin as set forth above, whichever is applicable, cannot be located within a reasonable time. The liability of the Trustees shall thereby be discharged to the extent of the amount so paid. The identity of any person claiming to be a beneficiary or to be otherwise entitled to payment thereunder shall be substantiated to the satisfaction of the Trustees.
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opinion_html_with_citations
| 3,375 |
2013-10-30 06:51:53.577602+00
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010combined
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f
|
f
| 1,587,576 |
McLAUGHLIN
| null |
LU
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f
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Published
| 10 |
Mendez-Bellido v. BD. OF TR. OF DIV. 1181, ATU
|
Mendez-Bellido
|
Minerva MENDEZ-BELLIDO, as Mother and Natural Guardian of Cynthia Mendez, an Infant Over the Age of Fourteen Years, to Wit: Seventeen Years of Age, Janie Mendez, an Infant Under the Age of Fourteen Years, to Wit: Eleven Years of Age and Jessica Mendez, an Infant Under the Age of Fourteen Years, to Wit: Seven Years of Age, Plaintiffs, v. BOARD OF TRUSTEES OF DIVISION 1181, A.T.U. NEW YORK EMPLOYEES PENSION FUND AND PLAN and Edith Abreu Mendez, Defendants
| null | null |
<parties id="b411-15">
Minerva MENDEZ-BELLIDO, as mother and natural guardian of Cynthia Mendez, an infant over the age of fourteen years, to wit: seventeen years of age, Janie Mendez, an infant under the age of fourteen years, to wit: eleven years of age and Jessica Mendez, an infant under the age of fourteen years, to wit: seven years of age, Plaintiffs, v. BOARD OF TRUSTEES OF DIVISION 1181, A.T.U. NEW YORK EMPLOYEES PENSION FUND AND PLAN and Edith Abreu Mendez, Defendants.
</parties><br><docketnumber id="b411-17">
No. 87 CV 3000.
</docketnumber><br><court id="b411-18">
United States District Court, E.D. New York.
</court><br><decisiondate id="b411-20">
March 30, 1989.
</decisiondate><br><attorneys id="b411-25">
Martin S. Friedman, Charles Berkman, Brooklyn, N.Y., for plaintiffs.
</attorneys><br><attorneys id="b411-26">
Joy M. Holtz, Wilfred L. Davis & Stephen Davis, P.C., New York City, for defendants.
</attorneys>
| null | null | null | null | null | null | 1,649,500 |
87 CV 3000
| 0 |
nyed
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FD
|
t
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E.D. New York
|
District Court, E.D. New York
|
6,877,830 |
Appeal from a judgment of the Superior Court for Wah kiakum County, No. 92-1-00005-4, Joel M. Penoyar, J., en tered October 12,1992. Affirmed by unpublished opinion pei Seinfeld, J., concurred in by Morgan, C.J., and Houghton, J
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opinion_xml_harvard
| 37 |
2022-07-23 21:10:18.150574+00
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020lead
|
t
|
f
| 6,979,975 |
Houghton, Morgan, Seinfeld
| null |
U
|
f
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Published
| 0 |
State v. Rhodes
|
Rhodes
|
The State of Washington v. James W. Rhodes
| null | null | null | null | null | null | null | null | null | 63,968,267 |
No. 16598-8-II
| 0 |
washctapp
|
SA
|
t
|
Court of Appeals of Washington
|
Court of Appeals of Washington
|
4,282,522 |
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/08/2018 01:08 AM CDT - 517 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE APPLICATION OF CITY OF NELIGH Cite as 299 Neb. 517 In re A pplication of City of Neligh, Nebraska. City of Neligh, Nebraska, appellee, v. Elkhorn Rural Public Power District, appellant. N.W.2d Filed March 30, 2018. No. S-17-433. 1. Nebraska Power Review Board: Appeal and Error. A decision of the Nebraska Power Review Board will be affirmed if it is supported by the evidence and is not arbitrary, capricious, unreasonable, or other- wise illegal. 2. Statutes: Appeal and Error. The meaning of a statute is a question of law, and a reviewing court is obligated to reach conclusions independent of the determination made below. Appeal from the Power Review Board. Reversed and remanded for further proceedings. David A. Jarecke and Ellen C. Kreifels, of Blankenau, Wilmoth & Jarecke, L.L.P., for appellant. David C. Levy and Krista M. Eckhoff, of Baird Holm, L.L.P., and Joseph McNally, of McNally Law Office, for appellee. Heavican, C.J., Cassel, Stacy, and Funke, JJ., and R iedmann and A rterburn, Judges. Heavican, C.J. INTRODUCTION The City of Neligh, Nebraska (Neligh), filed an application with the Nebraska Power Review Board (Board) seeking to - 518 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE APPLICATION OF CITY OF NELIGH Cite as 299 Neb. 517 transfer two newly annexed territories from the Elkhorn Rural Public Power District (ERPPD) to Neligh’s electrical service area and to have the Board determine the total economic impact of the transfer to the ERPPD. The Board transferred the service and assessed the economic impact at $490,445.90. ERPPD appeals. We reverse the decision and remand the cause for further proceedings. BACKGROUND Relevant Statutes. Neb. Rev. Stat. § 70-1008(2) (Reissue 2009) provides: A municipally owned electric system, serving such munic- ipality at retail, shall have the right, upon application to and approval by the board, to serve newly annexed areas of such municipality. Electric distribution facilities and customers of another supplier in such newly acquired certified service area may be acquired, in accordance with the procedure and criteria set forth in section 70-1010, within a period of one year and payment shall be made in respect to the value of any such facilities’ customers or certified service area being transferred. The rights of a municipality to acquire such distribution facilities and customers within such newly annexed area shall be waived unless such acquisition and payment are made within one year of the date of annexation. If an applica- tion is made to the board within one year of the date of annexation for a determination of total economic impact as provided in section 70-1010, such right shall not be waived unless the municipality fails to make payment of the price determined by the board within one year of a final decision establishing such price. Notwithstanding other provisions of this section, the parties may extend the time for acquisition and payment by mutual writ- ten agreement. Neb. Rev. Stat. § 70-1010 (Reissue 2009) further provides: (1) The board shall have authority upon application by a supplier at any time to modify service areas or - 519 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE APPLICATION OF CITY OF NELIGH Cite as 299 Neb. 517 customers to be served as previously established. The same procedures as to notice, hearing, and decision shall be followed as in the case of an original application. Suppliers shall have authority by agreement to change service areas or customers to be served with the approval of the board. This section shall not apply to agreements referred to in subsection (2) of section 70-1002. (2) In the event of a proposed transfer of customers and facilities from one supplier to another in accordance with this section or section 70-1008 or 70-1009, the par- ties shall attempt to agree upon the value of the certi- fied service area and distribution facilities and customers being transferred. If the parties cannot agree upon the value, then the board shall determine the total economic impact on the selling supplier and establish the price accordingly based on, but not limited to, the following guidelines: The supplier acquiring the certified service area, distribution facilities, and customers shall purchase the electric distribution facilities of the supplier located within the affected area, together with the supplier’s rights to serve within such area, for cash consideration which shall consist of (a) the current reproduction cost if the facilities being acquired were new, less depreciation computed on a straight-line basis at three percent per year not to exceed seventy percent, plus (b) an amount equal to the nonbetterment cost of constructing any facilities necessary to reintegrate the system of the supplier outside the area being transferred after detaching the portion to be sold, plus (c) an amount equal to two and one-half times the annual revenue received from power sales to existing customers of electric power within the area being transferred, except that for large commercial or industrial customers with peak demands of three hundred kilowatts or greater during the twelve months immediately preced- ing the date of filing with the board, the multiple shall be five times the net revenue, defined as gross power sales, - 520 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE APPLICATION OF CITY OF NELIGH Cite as 299 Neb. 517 less costs of wholesale power including facilities rental charges, received from power sales to large commercial or industrial customers with measured demand of three hundred kilowatts or greater during the twelve months immediately preceding the filing with the board for serv ice area modification. After the board has determined the price in accordance with such guidelines, the acquiring supplier may acquire such distribution facilities and cus- tomers by payment of the established price within one year of the final order. Factual and Procedural Background. On July 14, 2015, Neligh passed ordinances Nos. 578 and 579, annexing areas to the north and the south of Neligh. On July 13, 2016, Neligh filed an application under § 70-1008 to transfer these territories from the ERPPD, which had provided electrical service to those areas, to an electrical service area operated by Neligh. As part of that application, Neligh sought to have the Board assess the economic impact of the transfer to ERPPD. A hearing was held on January 27, 2017, to determine the total economic impact of the proposed transfer and the com- pensation owed to ERPPD by Neligh under § 70-1010. The parties stipulated that Neligh owed $490,445.90 for the loss of the service area, customers, and facilities inside the south annexation, as well as a partial amount owed for reintegra- tion costs. As relevant to this appeal, the issue presented at this hearing was what compensation was due to ERPPD under § 70-1010(2)(b) for remaining reintegration costs in the south annexation area. The substation in question is substation 71-18, located out- side the south annexation area but near the southeast edge of the annexed territory. The substation was built in or around 1998. The record establishes that at the time of its construction, the substation was not built at the center point of its load. Such substations usually have a life cycle of about 50 years. The - 521 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE APPLICATION OF CITY OF NELIGH Cite as 299 Neb. 517 substation serves approximately 4 megawatts of load over three circuits. One of these three circuits is used primarily to serve the load in the south annexation area. Overall, the substation will lose approximately 26 percent of its current load following the annexation. Given this loss, ERPPD investigated options for the substa- tion following the annexation. The option ERPPD felt was most cost efficient and feasible was to move the substation 21⁄2 miles to the northeast. Such a move would allow ERPPD to best serve its remaining load following the annexation, but also had the potential to increase the capacity of the substation. ERPPD calculated that the total cost of moving the substa- tion would be approximately $935,000 and that $337,567 was solely attributable to the Neligh annexation. The Board found in Neligh’s favor, concluding that ERPPD had not built the substation in the center of its load and that to require a move partially paid for by Neligh would be a bet- terment to which ERPPD was not entitled. The Board denied ERPPD’s motion for reconsideration. ERPPD appeals. ASSIGNMENTS OF ERROR ERRPD assigns three assignments of error that can be restated as one: The Board erred in failing to award compensa- tion for reintegration costs under § 70-1010(2)(b) to ERPPD for the lost substation circuit. STANDARD OF REVIEW [1,2] A decision of the Board will be affirmed if it is sup- ported by the evidence and is not arbitrary, capricious, unrea- sonable, or otherwise illegal.1 The meaning of a statute is a question of law, and a reviewing court is obligated to reach conclusions independent of the determination made below.2 1 In re Application of City of North Platte, 257 Neb. 551 , 599 N.W.2d 218 (1999). 2 Id. - 522 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE APPLICATION OF CITY OF NELIGH Cite as 299 Neb. 517 ANALYSIS This appeal presents the question of what compensation is owed to ERPPD for reintegration costs under § 70-1010(2)(b). On appeal, ERPPD observes it is largely undisputed that one of the three circuits of the substation at issue carries no load as a result of the annexation and that the substation has lost 26 percent of its total load due to the nonuse of this cir- cuit. As such, ERPPD contends that moving the substation nearer to the center of its load is the most efficient solution to the loss of capacity and is a direct result of the annexation. ERPPD seeks reimbursement for a portion of this cost as rein- tegration costs under § 70-1010(2)(b). Neligh, however, argues that this loss of load was already accounted for via the payment Neligh stipulated to under § 70-1010(2)(c). Neligh also notes that prior to the annexation, the substation was not at the load center. Because the substa- tion was not at the load center and would allow ERPPD to more efficiently serve its existing customers as well as offer the potential for new customers, Neligh contends that such a move is a betterment not permitted under § 70-1010(2)(b). The Board concurred with Neligh. Under § 70-1010(2), Neligh, as the “supplier acquiring the certified service area, distribution facilities, and customers,” is statutorily required to “purchase the electric distribution facili- ties of the supplier located within the affected area, together with the supplier’s rights to serve within such area.” This pay- ment should include (a) the current reproduction cost if the facilities being acquired were new, less depreciation computed on a straight-line basis at three percent per year not to exceed seventy percent, plus (b) an amount equal to the nonbet- terment cost of constructing any facilities necessary to reintegrate the system of the supplier outside the area being transferred after detaching the portion to be sold, plus (c) an amount equal to two and one-half times the annual revenue received from power sales to existing - 523 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE APPLICATION OF CITY OF NELIGH Cite as 299 Neb. 517 customers of electric power within the area being trans- ferred . . . .3 The parties agree as to the consideration due for § 70-1010(2)(a) and (c). At issue are certain “reintegrat[ion]” costs under § 70-1010(2)(b). “Reintegration” is not explicitly defined in statute or by Nebraska case law. As such, we turn to other jurisdictions for guidance. In City of Cookeville v. Upper Cumberland Elec.,4 the Sixth Circuit, applying Tennessee statutes nearly identical to Nebraska’s statutes, noted that the dictionary definition of “‘reintegrate’” was “‘to restore to unity after disintegration.’” The court observed: The structure of [subsection (a)(2) of the relevant statute] suggests that the reintegration costs are those necessary to place the system in the same state of integration that it was in prior to the condemnation. [Subsection (a)(2) (A) of the statute] provides for replacement costs for any facilities acquired by the municipality whereas [subsec- tion (a)(2)(B)] then provides for the cost of construct- ing “necessary facilities to reintegrate the system of the cooperative.” This scheme suggests that the reintegration costs are those necessary to reconnect the replaced facili- ties into the cooperative’s existing electrical system. To bring the system back to “unity” would involve placing the system in as integrated a condition as existed prior to the annexation.5 ERPPD presented the Board with multiple options for allowing it to restore unity to its system following the south annexation: (1) upgrading the line to extend the reach of the substation to new customers, (2) moving the substation to the exact load center, or (3) moving the substation 21⁄2 miles closer to the load center. In addition, the Board heard testimony on 3 § 70-1010(2). 4 City of Cookeville v. Upper Cumberland Elec., 484 F.3d 380 , 392 (6th Cir. 2007). 5 Id. - 524 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE APPLICATION OF CITY OF NELIGH Cite as 299 Neb. 517 a fourth option: reducing the capacity of the substation by replacing its existing transformers with smaller ones. ERPPD’s expert testified that ERPPD’s preferred method was to move the substation 21⁄2 miles closer to the load center. ERPPD sought a portion of the costs of this move as reintegration costs under § 70-1010(2)(b). The Board rejected ERPPD’s proposed substation move, instead agreed with Neligh that “any effect on the total eco- nomic impact [on ERPPD was] captured by the compensation [Neligh] will pay to [ERPPD] for the loss of the customers and facilities located inside the south annexation” area, and accord- ingly rejected ERPPD’s claim for reintegration costs under § 70-1010(2)(b). The Board noted that the relocation of the substation would be a betterment to ERPPD. This court will affirm decisions of the Board unless they are unsupported by the evidence or are arbitrary, capricious, unreasonable, or otherwise illegal. We conclude that in this case, the Board’s actions were arbitrary, capricious, and unreasonable. It is undisputed that ERPPD’s loss of load came from cus- tomers in the south annexed area. Indeed, the parties have stipulated to the compensation due for lost revenue. But rein- tegration costs are based on the amount needed to compensate ERPPD for the impact to its physical asset—the substation— and are not related to the loss of revenue or loss of facilities, which are provided for separately under § 70-1010(2). We held as much in In re Application of City of Lexington.6 In that case, we affirmed the Board’s decision, made on simi- lar facts, that compensation was owed for surplus property—a transmission line substation and feeder circuits—lying outside of an annexed area. We agreed with the Board’s conclusion that this cost was not subsumed in the compensation provided for under § 70-1010(2)(c) and was instead distinct from that loss of revenue. 6 In re Application of City of Lexington, 244 Neb. 62 , 504 N.W.2d 532 (1993). - 525 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE APPLICATION OF CITY OF NELIGH Cite as 299 Neb. 517 Section 70-1010(2) clearly contemplates compensation for loss of revenue, facilities, and impact to physical assets. ERPPD was entitled to have its system “‘restore[d] to unity’” following the south annexation.7 By conflating the revenue due for the load under § 70-1010(2)(c) with the reintegration costs ERPPD was entitled to under § 70-1010(2)(b), and despite our prior holding in In re Application of City of Lexington sug- gesting that the two types of compensation are distinct, the Board failed to provide compensation for ERPPD’s reintegra- tion costs and acted in an arbitrary, capricious, and unreason- able manner. Moreover, the Board also acted in an arbitrary, capricious, and unreasonable manner when it focused its analysis solely on the preferred route of moving the substation 21⁄2 miles to the northeast without also considering the alternative propos- als presented or otherwise determining Neligh’s liability for the undisputed injury caused to ERPPD’s system by the south annexation. The Board abdicated in part its statutory duty under § 70-1010(2) to “determine the total economic impact on the selling supplier and establish the price accordingly based on, but not limited to, the . . . guidelines” set forth in § 70-1010(2)(a), (b), and (c). There is merit to ERPPD’s argument on appeal. We reverse the decision of the Board and remand the cause for further proceedings. CONCLUSION The decision of the Board is reversed, and the cause is remanded for further proceedings. R eversed and remanded for further proceedings. Wright, Miller-Lerman, and K elch, JJ., not participating. 7 See City of Cookeville v. Upper Cumberland Elec., supra note 4, 484 F.3d at 392 .
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2018-06-08 06:08:16.970467+00
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| 4,505,269 | null | null |
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| 1 |
In re Application of City of Neligh
| null | null | null | null | null | null | null | null | null | null | null | 7,093,771 |
S-17-433
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S
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Nebraska Supreme Court
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Nebraska Supreme Court
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4,489,821 |
*706OPINION. Milliken: It is contended by the respondent that no return of income was made for 1919 for the estate of Maggie Brewer on Form 1040 as required by the regulations, and because of the failure to *707file a return the statute of limitations had not run at the date of the mailing on September 25, 1926, of the deficiency letter in question. Petitioner claims that he did file such a return on Form 1040, which showed Mrs. Maggie Brewer’s one-half interest in the community property, but that it was returned to him by the collector with instructions to report her one-half of the community income in returns by her five children, reporting one-fifth each. A great part of the evidence taken at the hearing was devoted to the question as to whether or not such a return was made, the character of its contents, whether or not it was accepted by the collector, and what became of it. It is insisted by petitioner that this alleged return was filed prior to March 15, 1920, and that the statute began to run at that time. Respondent contends that as the return was not filed with and accepted by the collector, the statute never began to run. Under the evidence we have found as a fact that such a return on Form 1040 was filed and returned by the collector of internal revenue, but in view of the conclusion which we hereinafter reach it becomes immaterial whether the return was or was not filed. See, however, Conrad Hardware Co., 8 B. T. A. 512. J. R. Brewer did file an individual return for himself on Form 1040; he also filed a fiduciary return for the Brewer children on Form 1041, and a separate return for each of the five children on Form 1040 A, thus making a complete return for both portions of the community estate owned by him and his wife. These were all filed on March 15, 1920. We have recently decided in the case of Estate of F. M. Stearns, 16 B. T. A. 889, that where a fiduciary, in good faith, seasonably filed his returns for the years 1920 and 1921, respectively, on Form 1041, instead of on Form 1040 as required by the regulations, the returns were filed in sufficient compliance with the statutes, and the statute of limitations began to run at the respective dates of filing. We there said: The position of the respondent is that the applicable regulations issued pursuant to the Revenue Acts of 1918 and 1921, which have-the force and effect of law, require that if the estate had taxable income in the years 1920 and 1921 the fiduciary should report for each of such years on Form 1010. The respondent asserts that the petitioner had income taxable to it in both of the years 1920 and 1921 and that consequently a return filed on Form 1041 instead of on Form 1040 was not filed in compliance with the regulations and the statutes. The respondent, therefore, denies that the assessment of the taxes in question is barred by the statutes of limitations. In other words, the respondent’s position is in substance that in accordance with section 273 (a) of the Revenue Act of 1926 the taxes here in question may be assessed or a proceeding in court for the collection of such taxes may be begun without assessment at any time. In respect to the question involved in the second issue there is no material distinction in principle between this case and the case of Abraham Werbelovsky, *708Executor, 8 B. T. A. 442. In the Wertielovsley case, as in this case, the executor had filed his return in good faith on Form 1041. In that case, as in this case, the respondent claimed that there was income taxable to the estate and that, therefore, pursuant to the applicable regulations, the report should have been filed on Form 1040. In the instant case there is no allegation that the returns filed in Form 1041 were false or fraudulent returns “ with intent to evade tax ” nor was there a similar allegation in the Wertielovsley case. Therefore, in accordance with the views expressed in the Wertielovsley ease, supra, we are of the opinion that the returns filed by the petitioner for the year 1920 and the year 1921 sufficiently comply with statutory requirements and that the assessment and collection of the taxes in question are barred by the provisions of section 277 of the Revenue Act of 1926. In the recent case of the Hartford-Connecticut Trust Co. v. Eaton, decided by the United States Circuit Court of Appeals for the Second Circuit, the Trust Co., as trustee, had filed returns for estates in its care on Form 1041 instead of Form 1040, and was assessed jienalties of 25 per cent for failing to make its returns on Form 1040. In actions to recover the penalties, the District Court dismissed the petitions, but this was reversed by the Court of Appeals, which held that a timely return on fiduciary return Form 1041 disclosing full data regarding income precludes imposition of the 25 per cent penalty,’ even though the return should have been on Form 1040. The court said in part: The Collector takes the position that the information return made under Form 1041 was not a return at all because it was not a return in such form as the Commissioner of Internal Revenue had prescribed. A proper return under the Regulations would have been on Form 1040. Section 6336 h (b) of the Act requires individuals to file a return in such form as the Commissioner shall prescribe, and Section 6336 h (c) requires trustees to make returns of income for their trusts and subjects them to all the provisions which apply to individuals. But while the return on Form 1041 may not have been adequate for some purposes, the provisions for imposing penalties do not seem to require a taxpayer to choose the right blank at his peril when he acts in good faith and makes a full disclosure of his income. And again: The government would seem to be sufficiently protected in having complete information whereby the Collector may make a return on behalf of the taxpayer as provided in Revised Statutes, Section 3176, or may require the latter to file an amended return in the form prescribed. Section 200, Revenue Act of 1918, defines “ fiduciary ” as a guardian, trustee, executor, administrator, receiver, conservator, or any person acting in any fiduciary capacity for any person, trust or estate. Article 8663, Vernon’s Annotated Texas Statutes, provides: “ Where the wife dies or becomes insane, leaving a surviving husband and child, or children, the husband shall have exclusive management, control and disposition of the community property in the same manner as during her lifetime, or sanity.” *709Article 3664 provides that within four years after the death of the wife the husband shall apply to the county court for community administration and articles 3665 to 3670 provide for the appointment of appraisers, making and filing of inventory, execution of bond, and entry of orders authorizing the survivor to control, manage and dispose of such community property as may seem for the best interest of the estate and of suing and being sued with regard to the same, in the same manner as during the lifetime of the deceased. The courts of Texas*liave held in numerous cases that the survivor of the community has exclusive control of the community property even before the institution of community administration proceedings, as provided in article 3664-, Vernon’s Annotated Texas Statutes, and may even sell and dispose of property for the purpose of paying debts. After administration proceedings and execution of bond by survivor it seems he may exercise practically absolute control if it seems best for the interest of the estate. Levy v. W. L. Moody & Co., 87 S. W. 205; Wiseman v. Swain, 114 S. W. 145; Stone v. Jackson, 109 Texas 385; 210 S. W. 953; Advance-Rumely Thresher Co. v. Blevins, 248 S. W. 1086. In our opinion J. R. Brewer held a fiduciary relationship to the community estate of his deceased wife from the instant of her death, under article 3663, Vernon’s Annotated Texas Statutes, and that when he filed the returns in March, 1920, for the year 1919, he was acting as a fiduciary for said estate, although the administration proceedings were not held until the following December. It may be added that, where a person acts as fiduciary for an estate, or person, before appointment as such, and performs duties or acts within the line of duty of such fiduciary, and afterwards qualifies and is appointed, the acts performed prior to actual appointment are thereby validated. Schouler on Wills, Executors and Administrators, secs. 2251-2252. The returns made by J. R. Brewer on March 15, 1920, on Forms 1040 and 1041, were made after he had made a return of the income of the community showing that one-half thereof was his and the other half the income of his children. These later returns were made on the forms and in the manner he was informed by the collector were proper. It is not intimated that any of the returns were false or fraudulent. Brewer could not have done other than he did do. lie acted under the advice of the collector, who had refused to accept his former return. He had first reported the income of the estate and, that return having been rejected, he then filed returns for each of the children, as directed, and also a fiduciary return. The collector knew that the latter returns were returns of the income of the estate of Maggie Brewer, since they were so made under his direction. It thus appears that, with the knowledge of the collector, *710the income of the Maggie Brewer estate was returned. The fact that their last returns were not proper was the fault of the collector, not of Brewer. Since the returns ,of March 15, 1920, were filed more than six years prior to the determination of the deficiency, it follows that the assessment or collection of the deficiency is barred by limitation. There is some confusion in the record as to whether J. R. Brewer is proceeded against as executor, administrator, or survivor of the community, but we consider this of no importaaice, as it is clear that the purpose of the determination of the deficiencies is to tax the income of Maggie Brewer’s part of the community estate, which was under the control of J. R. Brewer as a fiduciary. Relative to the year 1920 it is contended by petitioner that the interest of Maggie Brewer in the community estate vested immediately in her children and that the income therefrom is taxable to them and not to her estate or the community. Article 3314 Vernon’s Annotated Texas Statutes, provides in part: “ Whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but with the exceptions aforesaid shall still be liable and subject in their hands to the payment of the debts of the intestate; but upon the issuance of letters testamentary or of administration upon any such estate, the executor or administrator shall have the right to the possession of the estate as it existed at the death of the testator or intestate.” In Lass v. Seidel, 95 T. 442; 66 S. W. 872, the court held that upon the death of a party the title to his property vests in his heirs or devisees, yet this title is subject to the rights of the administrator or executor to subject the property to payment of debts of deceased and expenses of administration. Considering the above statute with the broad powers of the survivor of the community under articles 3663 to 3670, supra, we think that the title of the heirs is subject to the right of possession and control by the survivor of the community until there is a partition and settlement thereof. There is much evidence of record which sets forth the recommendations and views of revenue agents and others in the Bureau of Internal Revenue concerning the determination of the deficiency for the year 1920. We are unable to reconcile the mass of evidence introduced. Counsel for petitioner contends that, if we hold that J. R. Brewer was acting in a fiduciary capacity and should return and be taxed upon the income earned by the property represented in the estate of Maggie Brewer, deceased, nevertheless J. R. Brewer as administrator should not be taxed as such upon the entire income earned by the community estate. Counsel for respondent states that this has been done. Under the recomputation of the deficiency due from J. R. Brewer as administrator for the year 1920, there should *711be excluded therefrom the income attributable to J. R. Brewer and should be included only the income of the estate for which he acted. Reviewed by the Board. Judgment will be entered under Rule 50.
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opinion_xml_harvard
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2020-01-17 22:02:03.006059+00
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020lead
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| 4,710,291 |
Milliken
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U
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Published
| 2 |
Brewer v. Commissioner
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Brewer
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J. R. BREWER, ADMINISTRATOR, ESTATE OF MAGGIE BREWER, <emphasis typestyle="it">v.</emphasis> COMMISSIONER OF INTERNAL REVENUE
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1. LIMITATION - FIDUCIARY - RETURN. - Where a fiduciary files a return on Form 1041 instead of Form 1040 in good faith, this is a sufficient compliance with the regulations and starts the running of the statute of limitations.
2. COMMUNITY PROPERTY - SURVIVOR. - In Texas the surviving husband has the exclusive management, control and disposition of the community property for the purpose of paying debts and settling its affairs and occupies a fiduciary relation thereto.
3. ID. - Where the income of the surviving husband has been included in that of his deceased wife's estate, upon a recomputation of the deficiency due from the wife's estate there should be excluded therefrom the income attributable to him, and only the income of her estate should be included.
| null | null | null | null | null | null | null | null | 16,723,736 |
Docket No. 21393.
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bta
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Board of Tax Appeals
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United States Board of Tax Appeals
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3,109,976 |
Order entered May 9, 2013 In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00106-CR SUZANNE BATTLES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court No. 5 Dallas County, Texas Trial Court Cause No. MB10-50867-F ORDER The Court REINSTATES the appeal. On March 4, 2013, we ordered the trial court to make findings regarding why the reporter’s record has not been filed. We ADOPT the findings that: (1) appellant desires to pursue the appeal; (2) appellant is not indigent; (3) appellant is represented by retained counsel Glen Wietzel; (4) Charon Evans is the court reporter who recorded the proceedings; (5) the record has not been filed because Ms. Evans did not receive notice the appeal had been filed; (6) the estimated cost of the record is $2,100; (7) counsel indicated appellant could pay for the record within thirty days of the March 29, 2013 hearing; and (8) Ms. Evans indicated the record could be filed within thirty days after she received payment for the record. We ORDER court reporter Charon Evans to file, within THIRTY DAYS of the date of this order, either the reporter’s record or written verification that appellant has not paid for the record. We notify appellant that if we receive verification of non-payment, we will order the appeal submitted without the reporter’s record. See TEX. R. APP. P. 37.3(c). We DIRECT the Clerk to send copies of this order, by electronic transmission, to court reporter Charon Evans and to counsel for all parties. /s/ DAVID EVANS JUSTICE
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opinion_plain_text
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2015-10-16 06:39:33.402487+00
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f
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Published
| 0 |
Suzanne Battles v. State
| null | null | null | null | null | null | null | null | null | null | null | 2,967,451 |
05-13-00106-CR
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texapp
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SA
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Court of Appeals of Texas
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Court of Appeals of Texas
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2,613,697 |
626 P.2d 652 (1981) William Craig MILLIS, William C. Spaller, Steve Acers, and William L. Peebles, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, Colorado, and High Drive Water District, a public corporation, Defendants-Appellees, and State of Colorado, Intervenor. No. 79SA338. Supreme Court of Colorado. March 30, 1981. Rehearing Denied April 20, 1981. *654 Joseph P. Jenkins, P. C., Estes Park, for plaintiffs-appellants. Roger E. Clark, Loveland, for defendants-appellees. J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Deanna E. Hickman, Asst. Atty. Gen., Denver, for intervenor. LOHR, Justice. The appellants are nonresidents of Colorado who own vacation property in the High Drive Water District (District) near Estes Park. [1] On August 13, 1975, the Larimer County Board of County Commissioners (Board) adopted a formal resolution approving the modified service plan submitted by the District to provide domestic water for district residents. The appellants filed suit against the Board and the District, seeking relief under C.R.C.P. 106(a)(4) on the basis that the Board's approval exceeded its jurisdiction and was an abuse of discretion. The appellants also sought judgment that the statutory provisions excluding out-of-state landowners from voting on matters concerning the formation and operation of the District are unconstitutional both facially and as applied. The appellants suffered an adverse judgment in *655 the trial court and brought this appeal. We affirm that judgment. The factual findings in the trial court's judgment are limited, so we also rely on uncontroverted statements in the pleadings, the transcript of the proceedings before the Board, and the briefs to provide a more complete background for an understanding of this case. The District consists of approximately 120 to 130 residences or parcels eligible for service, only 9 of which are owned by persons who utilize their property year-around. The majority of the parcels are owned by persons who, like the appellants, live out of state. Pursuant to sections 32-4-104 to 107, C.R.S.1973, the District was organized in 1974. The petition for organization carried by a vote of 27 to 21. The appellants were not eligible to vote because the statutory provisions for special district elections do not extend the franchise to landowners who are not Colorado residents. The district court then entered a decree creating the District. The District's board of directors proposed to issue general obligation bonds in the amount of $350,000 to finance the construction and installation of a water system. Pursuant to section 32-4-124, C.R.S.1973, the question of issuing the bonds was submitted to the qualified voters of the District, and the measure passed. The appellants again were ineligible to vote. As part of the procedure for formation of the District, a service plan projecting the sale of bonds totaling $350,000 and bearing interest at 7% per annum had been submitted to and approved by the Board. Subsequent to the organization of the District, bond market rates rose. It appeared that the bonds could not be sold at a 7% interest rate and, upon recommendation of the underwriter of the proposed bond issue, the District's board of directors proposed a modified service plan raising the authorized interest on the bonds to 9%. Pursuant to section 32-1-209(3), C.R.S.1973, the District submitted the modified service plan to the Board for approval. [2] A public hearing was held on that plan, after which the Board approved it. The appellants then filed a complaint in the Larimer County district court, claiming principally that the modified service plan was economically unfeasible and seeking a judgment: (1) that the Board's approval of the plan was an abuse of discretion and in excess of the Board's jurisdiction, (2) setting aside the Board's resolution approving the modified service plan, and (3) prohibiting the Board and the District from proceeding further in the district court action pursuant to which the District had been formed. Named as defendants were the Board and the District. Both defendants filed motions to dismiss on grounds that the complaint failed to state a claim upon which relief could be granted and that the district court was without jurisdiction to decide the matter. After a hearing, the district court concluded that it lacked jurisdiction to resolve claims relating to the formation of the District, [3] and granted the defendants' motions to dismiss such claims. The court granted leave to the appellants to file an amended complaint. They did so, [4] essentially restating their previous claims and adding a claim for declaratory relief based upon a constitutional challenge to the statutory voting scheme for special district formation and operation. [5] *656 All the defendants again filed motions to dismiss. The district court granted the motions with respect to those claims challenging the original organization of the District as well as the claims challenging the facial unconstitutionality of the statutory provisions for organization of special districts. Allegations concerning the invalidity of the Board's approval of the modified service plan and constitutional questions raised by that approval were allowed to stand. The defendants then filed their answer to these remaining allegations. During the pendency of this case in Larimer County district court, two of the appellants had filed an action against the same defendants in the United States District Court for the District of Colorado, raising essentially the same federal constitutional claims made in the amended complaint. The federal district court ruled in favor of the defendants and dismissed the action. Millis v. High Drive Water District, No. 75-M-1021 (D.Colo. Jan. 18, 1978). On appeal, the United States Supreme Court affirmed that decision without opinion. Millis v. High Drive Water District, 439 U.S. 802 , 99 S. Ct. 58 , 58 L. Ed. 2d 95 (1978). The Larimer County district court had postponed final judgment in this action until the appellants completed their appeal to the United States Supreme Court. After the decision of that court was announced, the Larimer County district court heard additional argument and entered judgment dismissing the amended complaint. As part of that judgment the court found that the Board's approval of the modified service plan was supported by the evidence. From that judgment the appellants took this appeal. I. The appellants' constitutional challenge is based upon the statutory denial of the franchise in district elections to those persons who own property within a district but reside out of state. For purposes of water and sanitation district matters, section 32-4-102, C.R.S.1973, refers to section 32-1-101, C.R.S.1973, [6] for the definition of "elector" and "taxpaying elector". That latter section provides in pertinent part: "(1)(a) `Elector' of a district means a person: (I) Who, at the designated time or event, is qualified to vote in general elections in this state; (II) Who has been a resident of the district or the area to be included in the district for not less than thirty-two days; or (III) Who, or whose spouse, owns taxable real or personal property within the district or the area to be included in the district, whether said person resides within the district or not. (b) `Taxpaying elector' of a district means an elector of a district who, or whose spouse, owns taxable real or personal property within the district or the area to be included in the district, whether said person resides within the district or not." The appellants contend that excluding out-of-state property owners from voting in district matters, [7] while granting that right to Colorado residents who own property *657 within a district but who do not live in the district, contravenes the equal protection guarantees of the Fourteenth Amendment to the United States Constitution and Art. II, § 25 of the Colorado Constitution. A. The appellants' challenge to the special district voting scheme under the federal constitution is no longer debatable. The United States Supreme Court's decision affirming the federal district court's dismissal of the appellants' Fourteenth Amendment challenge constitutes a final interpretation of federal constitutional law which is binding upon us. People v. Berger, 185 Colo. 85 , 521 P.2d 1244 (1974); American Federation of Labor v. Reilly, 113 Colo. 90 , 155 P.2d 145 (1944). However, this does not terminate our inquiry. Although the equal protection clause of the Fourteenth Amendment creates rights which cannot be restricted or infringed by the constitution or laws of Colorado, we are free to construe the Colorado Constitution to afford greater protections than those recognized by the United States Constitution. See People v. Paulsen, Colo., 601 P.2d 634 (1979); People v. Hoinville, 191 Colo. 357 , 553 P.2d 777 (1976). Indeed, it is our responsibility to consider whether our own state constitution requires more extensive protections than those mandated by the Fourteenth Amendment. See People v. Marcy, Colo., 628 P.2d 69 (1981). Even so, we must remain mindful that federal interpretations of federal statutory and constitutional provisions are helpful in construing similar state laws. See United Bank of Denver National Association v. Shavlik, 189 Colo. 280 , 541 P.2d 317 (1975). The question we must address, therefore, is whether justification exists to extend the guarantee of equal protection of the laws afforded by our state constitution further than that provided under the Fourteenth Amendment to the United States Constitution. B. Inherent in the due process clause of Art. II, § 25 of the Colorado Constitution is a guarantee of equal protection of the laws. Heninger v. Charnes, Colo., 613 P.2d 884 (1980); People v. Max, 70 Colo. 100 , 198 P. 150 (1921). The standards by which we analyze statutes under that guarantee depend upon the classifications created. Unless the classification scheme "trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage," our constitution requires only that it be rationally related to a legitimate state interest. Winkler v. Colorado Department of Health, 193 Colo. 170 , 564 P.2d 107 (1977); Mosgrove v. Town of Federal Heights, 190 Colo. 1 , 543 P.2d 715 (1975). With respect to restrictions on the franchise, classifications based upon residency, citizenship or age have never been considered suspect. See, e. g., Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 , 99 S. Ct. 383 , 58 L. Ed. 2d 292 (1978); Kramer v. Union Free School District No. 15, 395 U.S. 621 , 89 S. Ct. 1886 , 23 L. Ed. 2d 583 (1969); Skafte v. Rorex, 191 Colo. 399 , 553 P.2d 830 (1976), appeal dismissed, 430 U.S. 961 , 97 S. Ct. 1638 , 52 L. Ed. 2d 352 (1976). [8] Nonresidents do not have a fundamental right to vote in elections in this state. Jarmel v. Putnam, 179 Colo. 215 , 499 P.2d 603 (1972). Indeed, we have held that our legislature has the power to determine "the qualifications of voters in all public and quasi-municipal corporations [9] and all reasonable provisions with reference thereto will be upheld." People ex rel. Shaklee v. Milan, 89 *658 Colo. 556, 560, 5 P.2d 249 , 251 (1931). The fact that a nonresident owns land in this state does not create a fundamental right to political participation in decisions which affect that land. While nonresident landowners may be enfranchised, see People ex rel. Cheyenne Soil Erosion District v. Parker, 118 Colo. 13 , 192 P.2d 417 (1948), there is nothing in our constitution that requires they be given voting rights in a political subdivision where they do not live. Having determined that the special district voting scheme involves no suspect classification and infringes no fundamental right, the appropriate test of its validity is whether it is rationally related to a legitimate state interest. In applying that test, the statutory classification scheme may be invalidated only if no set of facts can reasonably be conceived to justify it. Johnson v. Division of Employment, 191 Colo. 38 , 550 P.2d 334 (1976); Mosgrove v. Town of Federal Heights, supra . Our inquiry proceeds from the familiar axiom that legislatures are presumed to have acted constitutionally. Id. The appellants contend that there is no rational reason for granting district voting rights to Colorado residents who own land but do not reside within the district, while denying electoral participation to district landowners who live out of state. The federal district court found that Colorado residents are more likely to share a common concern regarding urban development, and its effect on this state's natural environment, than are residents of other states. Millis v. High Drive Water District, supra . Because the formation and operation of a water district affects this concern the federal court concluded that a rational basis exists for excluding nonresidents from direct political participation in water district matters. There appears to be no reason why the federal court's reasoning would not apply as well in interpreting our state constitution. Similarly, the creation of adequate water supply and distribution systems and the provision of adequate sewage collection and disposal facilities implicate important public health considerations. Ruberoid Co. v. North Pecos Water and Sanitation District, 158 Colo. 498 , 408 P.2d 436 (1965). These too are concerns which the legislature rationally might have considered to affect Colorado residents more directly than nonresidents. We can also conceive that the legislature wishes to decrease the chance that nonresidents would control the formation and operation of water districts to the detriment of those who are full-time district residents. [10] Whether the decision to grant the franchise to residents of Colorado owning property in the district but not residing there, while denying the franchise to owners of such property living outside Colorado, effects the best possible balance of competing interests is not for us to determine. We cannot say that such a decision lacks a rational basis. A classification need not be perfect and is not invalid simply because it may result in some inequality. Harding v. Industrial Commission, 183 Colo. 52 , 515 P.2d 95 (1973). The voting scheme therefore does not violate the equal protection guarantee of our state constitution. Johnson v. Division of Employment, supra . II. Although only perfunctorily addressed in their briefs, the appellants also challenged the Board's approval of the modified service plan as a taking of property without due process of law. They apparently claim that the ad valorem tax burden necessary to finance the proposed water system is confiscatory and will not benefit the appellants, for they use their property only in the summer months. We do not agree with this analysis. *659 A water district is organized not for the improvement of land or to benefit only landowners. Such a district is created to "promote the health, safety, prosperity, security and general welfare" of its inhabitants. Section 32-4-101, C.R.S.1973; see Ruberoid Co. v. North Pecos Water and Sanitation District, supra . The statute with respect to creation and operation of water districts is to be liberally construed to effect its purposes. Section 32-4-130, C.R. S.1973. The District's board of directors therefore has the power to levy general ad valorem taxes upon property within the District without according a benefit in proportion to the tax burden imposed. Section 32-4-114, C.R.S.1973; see Ruberoid Co. v. North Pecos Water and Sanitation District, supra ; People ex rel. Rogers v. Letford, 102 Colo. 284 , 79 P.2d 274 (1938); see generally B. Novak, Legal Classifications of Special District Corporate Forms in Colorado, 45 Denver L.J. 347 (1968). The fact that the appellants' property may be taxed according to its value regardless of whether the appellants choose to participate in the proposed water system, therefore, does not have any constitutional significance. The United States Supreme Court has held that the Fourteenth Amendment does not "prohibit unwise taxes, merely because they are unwise, or unfair or burdensome taxes, merely because they are unfair or burdensome." International Harvester Co. v. Wisconsin Department of Taxation, 322 U.S. 435 , 444, 64 S. Ct. 1060 , 1065, 88 L. Ed. 1373 , 1381 (1944). The appellants have not shown that either the statutory scheme or the proposed service plan for the District is so arbitrary or burdensome that it constitutes a taking of their property without due process of law. See Dane v. Jackson, 256 U.S. 589 , 41 S. Ct. 566 , 65 L. Ed. 1107 (1921). Although the due process guarantee may not impose a significant limitation on the District's power to levy ad valorem taxes in order to finance the proposed water system, section 32-1-205, C.R.S.1973, does require that the service plan for the District reflect an ability to provide economical and sufficient service to the area and that the area included within the District have sufficient financial ability to discharge any proposed indebtedness on a reasonable basis. The Board was charged with assessing these criteria when it approved the modified service plan. It is to the validity of that approval which we now turn. III. A water district may not provide domestic water to its inhabitants except pursuant to a service plan which has been approved by the Board and, with respect to an original service plan, by the district court. Sections 32-1-202 to 209, C.R.S. 1973. If after the service plan has been approved material modifications are made by the district's board of directors, these must be approved by the board of county commissioners "in substantially the same manner as is provided for the approval of an original service plan . . . ." Section 32-1-209(3), C.R.S.1973. When the District in this case raised the interest rate at which the bonds would be sold, we assume for the purpose of this opinion that the change constituted a material modification and necessitated submission of the modified service plan incorporating that change to the Board for approval. The modified service plan was so submitted, and a public hearing was held on that plan. It is the Board's approval of the modified service plan which the appellants challenge as an abuse of discretion. As noted in part I, section 32-1-205, C.R. S.1973, sets forth the reasons for which a service plan or modification thereof may be disapproved. For purposes of this challenge subsections (d) and (e) are relevant. Respectively, these allow disapproval of the modified plan if: "(d) The proposed special district is incapable of providing economical and sufficient service to the area within its proposed boundaries; or (e) The area to be included in the proposed district does not have, or will not have, the financial ability to discharge the proposed indebtedness on a reasonable basis;" *660 The district court noted that the practicability, feasibility, reasonableness and necessity of the modified service plan had been vigorously contested at the hearing before the Board. It found, nevertheless, that there was evidence to support the Board's action. The primary dispute over the modified plan concerned projections as to how many persons would "tap in" to the proposed water system. It was conceded that a decrease in the income from tap fees and water charges caused by a smaller number of persons utilizing the system would have to be made up by increases in the ad valorem tax burden on all District property, increases in tap fees and water charges to those who were on the system, or a combination of such increases. Witnesses for the District, nevertheless, testified that such a decrease would not render the plan economically unfeasible. Although there was testimony at the hearing that some District landowners would not tap in, there was no proof that a substantial number would not do so. [11] The district court may not substitute its judgment for that of the Board, nor may we. Our function is to determine whether there is any competent evidence to support the Board's decision. Dolan v. Rust, 195 Colo. 173 , 576 P.2d 560 (1978); Ford Leasing Development Co. v. Board of County Commissioners, 186 Colo. 418 , 528 P.2d 237 (1974). Upon review of the record we conclude that the district court's finding that competent evidence exists to support the Board's decision is correct. The judgment of the district court is affirmed. DUBOFSKY, J., does not participate. NOTES [1] Although the record reflects that only three of the four appellants are nonresidents, for simplicity we refer uniformly to "the appellants" in speaking of claims by the nonresidents only, as well as in describing claims common to all four appellants. [2] Although the original service plan was based on the sale of bonds bearing an interest rate of 7% per annum, the bond issue approved by the voters called for a maximum net effective interest rate of 9%. The District, therefore, did not contemplate having to seek voter approval again for the sale of bonds to finance the modified service plan unless a further rise in the bond market rates should require that the District's bonds be sold at a rate in excess of 9%. [3] See section 32-4-107(8), C.R.S.1973. [4] The amended complaint also added as party defendants Robert E. Moore, the Larimer County Treasurer; and Richard M. Green, the Larimer County Assessor. [5] The amended complaint initially asserted only federal constitutional infirmities under the due process, privileges and immunities and equal protection clauses of the Fourteenth Amendment. A subsequent amendment added Article II, § 25 of the Colorado Constitution as a basis for challenge. [6] The statutory provisions cited herein are those which were in effect at the time of the relevant events in this case. The definition of "elector" is now referenced by section 32-4-102(2.5), C.R.S.1973 (1980 Supp.), to section 32-1-802, C.R.S.1973. The definition of "taxpaying elector" is now found at section 32-4-102(5)(a), C.R.S.1973 (1980 Supp.). These changes were effected in 1977 by Colo.Sess. Laws 1977, ch. 427 at 1488. [7] Only taxpaying electors can petition for the formation of a water district. Section 32-4-104(1), C.R.S.1973. Voters casting ballots for or against the formation of the district must be electors. Sections 32-4-107(3), 32-1-804(1), C.R.S.1973. Participation in an election on the question of incurring bonded indebtedness to finance the water district is also limited to electors. Section 32-4-124, C.R.S.1973 (referring to part 8 of article 1 of title 32, C.R.S. 1973). Only electors may participate in the nomination and election of directors of a district. Section 32-4-112(1), C.R.S.1973 (referring to part 8 of article 1 of title 32, C.R.S. 1973). All property owners however are entitled to seek exclusion of their lands from the district. Sections 32-4-107(2), 32-4-121, C.R. S.1973. [8] Statutes granting the franchise to some but not all persons otherwise qualified by citizenship, residency and age are subject to close scrutiny. Kramer v. Union Free School District No. 15, supra . In order to survive an equal protection challenge, such statutes must be necessary to promote a compelling state interest. Id. [9] The District is a "governmental subdivision of the State of Colorado and a body corporate with all the powers of a public or quasi-municipal corporation." Section 32-4-107(7), C.R.S. 1973. [10] The appellants' concern that a few residents, through the voting power, might impose egregious tax burdens on vacation property owners for services which on the whole benefit those property owners very little is not without justification. On the other hand it seems equally unfair that vacation property owners could stifle the acquisition of water which is truly needed by those living in the district year-around. [11] The burden is on those who object to the service plan to present "satisfactory evidence" at the public hearing before the board of county commissioners that at least one of the criteria for disapproval set out in section 32-1-205(1)(a)-(f) has been met. Section 32-1-205(1), (3), C.R.S.1973.
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| 2,613,697 |
Dubofsky, Lohr
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| 20 |
Millis v. Bd. of Cty. Com'rs of Larimer Cty.
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William Craig MILLIS, William C. Spaller, Steve Acers, and William L. Peebles, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, Colorado, and High Drive Water District, a Public Corporation, Defendants-Appellees, and State of Colorado, Intervenor
| null | null |
<parties id="b694-3">
William Craig MILLIS, William C. Spaller, Steve Acers, and William L. Peebles, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, Colorado, and High Drive Water District, a public corporation, Defendants-Appellees, and State of Colorado, Intervenor.
</parties><br><docketnumber id="b694-9">
No. 79SA338.
</docketnumber><br><court id="b694-10">
Supreme Court of Colorado.
</court><br><decisiondate id="b694-11">
March 30, 1981.
</decisiondate><br><otherdate id="b694-12">
Rehearing Denied April 20, 1981.
</otherdate><br><attorneys id="b696-16">
<span citation-index="1" class="star-pagination" label="654">
*654
</span>
Joseph P. Jenkins, P. C., Estes Park, for plaintiffs-appellants.
</attorneys><br><attorneys id="b696-17">
Roger E. Clark, Loveland, for defendants-appellees.
</attorneys><br><attorneys id="b696-18">
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Deanna E. Hickman, Asst. Atty. Gen., Denver, for intervenor.
</attorneys>
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79SA338
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Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 591 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 State of Nebraska, appellee, v. Christine A. Theisen, appellant. N.W.2d Filed July 24, 2020. No. S-19-911. 1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court’s determination only in case of an abuse of discretion. 2. Judges: Appeal and Error. An abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a liti- gant of a substantial right and denying just results in matters submitted for disposition. 3. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 4. Effectiveness of Counsel: Appeal and Error. In reviewing a claim of ineffective assistance of trial counsel on direct appeal, an appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel’s performance was deficient or (2) a defend ant was or was not prejudiced by a defense counsel’s alleged deficient performance. 5. Indictments and Informations. An information must inform the accused with reasonable certainty of the crime charged so that the accused may prepare a defense to the prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for the same offense. 6. . An information must allege each statutorily essential element of the crime charged, expressed in the words of the statute which prohibits the conduct charged as a crime or in language equivalent to the statutory terms defining the crime charged. - 592 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 7. . Where an information alleges the commission of a crime using language of the statute defining that crime or terms equivalent to such statutory definition, the charge is sufficient. 8. Indictments and Informations: Due Process. When the charging of a crime in the language of the statute leaves the information insufficient to reasonably inform the defendant as to the nature of the crime charged, additional averments must be included to meet the requirements of due process. 9. Indictments and Informations: Appeal and Error. An information first questioned on appeal must be held sufficient unless it is so defec- tive that by no construction can it be said to charge the offense for which the accused was convicted. 10. Indictments and Informations. A complaint or information is fatally defective only if its allegations can be true and still not charge a crime. 11. . No information shall be deemed invalid for any defect or imper- fection which does not prejudice the substantial rights of the defendant upon the merits. 12. Conspiracy. Expressly alleging an overt act in furtherance of a con- spiracy cannot simply be stating that the parties committed an overt act. 13. . The expressed overt act in furtherance of a conspiracy cannot be the act of conspiring. 14. Indictments and Informations: Conspiracy. A proper information charging conspiracy should indicate the offense which is the object of the conspiracy and expressly allege an overt act conducted in further- ance thereof. 15. Pleas. To support a plea of guilty or no contest, the record must establish that (1) there is a factual basis for the plea and (2) the defendant knew the range of penalties for the crime with which he or she is charged. 16. Criminal Law: Proof. A sufficient factual basis requires that the State present sufficient facts to support the elements of the crime charged. 17. Conspiracy. Wharton’s Rule, applied when evaluating conspiracy charges, stands for the principle that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. 18. . The application of Wharton’s Rule is limited to instances where the number and identity of persons involved in the conspiracy are the same as the number and identity of persons required to commit the underlying substantive offense. 19. . There is an exception to Wharton’s Rule that provides a con- spiracy charge may be filed if more or different people participate in the conspiracy than are necessary to commit the substantive offense. - 593 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 20. Effectiveness of Counsel: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal depends upon the sufficiency of the record to address the claim to determine whether a defense counsel’s performance was deficient and whether the defendant was prejudiced by the alleged defi- cient performance. 21. : : . The record on direct appeal is sufficient if it estab- lishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy. 22. Effectiveness of Counsel: Appeal and Error. The fact that an inef- fective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. 23. Effectiveness of Counsel: Records: Appeal and Error. The deter- mining factor in deciding whether an ineffective assistance claim can be resolved on direct appeal is whether the record is sufficient to adequately review the question. Appeal from the District Court for Madison County: Mark A. Johnson, Judge. Affirmed. Mark E. Rappl for appellant. Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. Christine A. Theisen appeals her plea-based convictions of conspiracy to distribute or deliver a controlled substance (hydrocodone), conspiracy to distribute or deliver a controlled substance (tramadol), and child abuse. Theisen assigns the district court erred in accepting her guilty pleas, because the charging information contained insufficient allegations of overt acts and the factual basis was insufficient under Wharton’s Rule to support the conspiracy offenses. Theisen also claims she was denied the right to effective assistance of trial counsel, based upon a failure to properly inform her of the insufficient - 594 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 factual basis and application of Wharton’s Rule and upon trial counsel’s conflict of interest with a material witness for the State. For the reasons set forth herein, we affirm. BACKGROUND Theisen was charged by an amended information with seven charges, including: conspiracy to distribute or deliver a con- trolled substance (hydrocodone), conspiracy to distribute or deliver a controlled substance (oxycodone), conspiracy to dis- tribute or deliver a controlled substance (tramadol), tampering with evidence, felony child abuse, and two counts of misde- meanor child abuse. Theisen and the State entered into a plea agreement whereby Theisen would plead guilty to conspiracy to distribute or deliver hydrocodone and tramadol and to felony child abuse and the State would dismiss the remaining charges. This dismissal was noted by an interlineated copy of the amended information which contained the following remaining allegations: [Conspiracy to Distribute or Deliver Hydrocodone:] Theisen, on or about the 1st day of June, 2016, through the 23rd day of August, 2018, in Madison County, Nebraska, with intent to promote or facilitate the commission of a felony offense, did agree with another person or persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense of delivery or distribution of the controlled substance hydrocodone. Complainant further states that [Theisen] or another with whom [she] conspired with committed an overt act in furtherance of the conspiracy, to wit: [Theisen] was buying and/or sell- ing hydrocodone. .... [Conspiracy to Distribute or Deliver Tramadol:] Theisen, on or about the 1st day of June, 2016 through the 23rd day of August, 2018, in Madison County, Nebraska, with the intent to promote or facilitate the commission of a felony, did agree with another person or persons that - 595 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense of the delivery or the distribution of the controlled substance tramadol. Complainant further alleges that [Theisen] or another person with whom [she] conspired with committed an overt act in furtherance of the conspiracy, to wit: [Theisen] was buying and/or sell- ing tramadol. .... [Child Abuse:] Theisen, on or about the 1st day of June, 2016 through the 23rd day of August, 2018, in Madison County, Nebraska, did knowingly and intentionally cause or permit a minor child, or minor children, specifically K.S. to be a) placed in a situation that endangered the minor child’s or minor children’s life or physical or men- tal health; and/or b) cruelly confined or cruelly punished; and/or c) deprived of necessary food, clothing, shelter, or care; and/or d) placed in a situation to be sexually exploited by allowing, encouraging, or forcing such minor child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photog- raphy, films, or depictions; and/or e) placed in a situa- tion to be sexually abused as defined in Section 28-319, 28-319.01, or 28-302.01; and/or f) placed in a situation to be a trafficking victim as defined in Section 28-830[.] The district court was informed of this agreement at a pre- trial conference, and the court rearraigned Theisen on the three remaining counts, to which Theisen pled guilty. Following an advisement of Theisen’s rights, the court asked Theisen to explain what gave rise to these charges, to which Theisen answered: Last year in August, Department of Health and Human Services became involved in my life, and my children were removed because I admitted everything. I — I guess the painkillers stemmed from a back injury and I became addicted to them, and I was buying and selling - 596 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 them to support my habit. There is so much information, it’s hard to explain. In response to the court’s questioning regarding whether Theisen was selling hydrocodone and tramadol between the dates of June 1, 2016, and August 23, 2018, in Madison County, Nebraska, Theisen responded, “Yes.” The court then asked the State to provide the balance of the factual basis for the charges, and the State explained: In terms of the child abuse, law enforcement officers interviewed both the victim, [Theisen’s] mother, as well as [Theisen’s] other daughter. I think, approximately, vic- tim was age 17, the other daughter was approximately age 15, I believe, at the time. They all confirmed that [Theisen] physically and psy- chologically abused one daughter in particular over an extended period of time. Would hit her, slap her, essen- tially force her to do, you know, menial tasks around the home. Giving her deadlines to get things done rather than doing those tasks herself, those type of things. .... [As to the conspiracy to distribute or deliver hydroco- done and tramadol charges, Theisen] would, as she sort of said, she would buy and get painkillers and then sell them as well. Additionally, according to her daughter, she would actually have them text potential buyers ahead of time that the sales would be taking place. They reported — the daughters reported actually receiving threats back from some of those drug dealers and purchasers about the sales going on. Additionally, she would work with others involved in this ring to buy and sell the drugs. The court found there was a sufficient factual basis and accepted Theisen’s guilty pleas. Theisen was sentenced to con- secutive terms of 6 to 12 years’ imprisonment for conspiracy to distribute or deliver hydrocodone, 1 to 3 years’ imprisonment - 597 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 for conspiracy to distribute or deliver tramadol, and 1 to 3 years’ imprisonment for child abuse. ASSIGNMENTS OF ERROR Theisen assigns that the district court erred in accepting her guilty pleas to the conspiracy charges, because (1) the charging information was insufficient to establish overt acts in furtherance of the conspiracy and (2) the factual basis was insufficient under Wharton’s Rule to establish participation of two or more persons beyond those actions which are neces- sary for the commission of the underlying offenses. Theisen also assigns she received ineffective assistance, because trial counsel failed to advise her that under Wharton’s Rule, she could not be convicted of conspiracy, and trial counsel had a conflict of interest from previous representation of a State’s material witness. STANDARD OF REVIEW [1,2] A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court’s determination only in case of an abuse of discre- tion. 1 An abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters sub- mitted for disposition. 2 [3,4] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a ques- tion of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 3 We determine as a matter of law whether the record conclusively shows that (1) a defense counsel’s performance was deficient or (2) a defendant was 1 State v. Manjikian, 303 Neb. 100 , 927 N.W.2d 48 (2019). 2 State v. Tyler P., 299 Neb. 959 , 911 N.W.2d 260 (2018). 3 State v. Hood, 301 Neb. 207 , 917 N.W.2d 880 (2018). - 598 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 or was not prejudiced by a defense counsel’s alleged defi- cient performance. 4 ANALYSIS Sufficiency of Amended Information Theisen was charged, by the amended information, with conspiracy to distribute or deliver hydrocodone and tramadol. Under Neb. Rev. Stat. § 28-202(1) (Cum. Supp. 2018), a per- son is guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a felony: (a) He [or she] agrees with one or more persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense; and (b) He [or she] or another person with whom he [or she] conspired commits an overt act in pursuance of the conspiracy. Neb. Rev. Stat. § 29-2014 (Reissue 2016) specifies that the State must allege overt acts in charging conspiracy, by stating: In trials for conspiracy, in cases where an overt act is required by law to consummate the offense, no conviction shall be had unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts so alleged be proved on trial; but other overt acts not alleged in the indictment may be given in evidence on the part of the prosecution. Theisen assigns the amended information failed to suffi- ciently allege conspiracy to distribute or deliver hydrocodone and tramadol. Specifically, Theisen claims the amended infor- mation failed to allege overt acts conducted in furtherance of the alleged conspiracy. [5-8] An information must inform the accused with rea- sonable certainty of the crime charged so that the accused may 4 Id. - 599 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 prepare a defense to the prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for the same offense. 5 As such, an informa- tion must allege each statutorily essential element of the crime charged, expressed in the words of the statute which prohibits the conduct charged as a crime or in language equivalent to the statutory terms defining the crime charged. 6 Where an information alleges the commission of a crime using language of the statute defining that crime or terms equivalent to such statutory definition, the charge is sufficient. 7 However, when the charging of a crime in the language of the statute leaves the information insufficient to reasonably inform the defendant as to the nature of the crime charged, additional averments must be included to meet the requirements of due process. 8 [9-11] We have held that an “‘information first questioned on appeal must be held sufficient unless it is so defective that by no construction can it be said to charge the offense for which the accused was convicted.’” 9 And “‘a complaint or information is fatally defective only if its allegations can be true and still not charge a crime.’” 10 In addition, “‘[n]o infor- mation shall be deemed invalid for any defect or imperfection which does not prejudice the substantial rights of the defendant upon the merits.’” 11 Under each conspiracy charge, the amended informa- tion alleged Theisen “did agree with another person or per- sons” to “engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense of [delivery or distribution of hydrocodone and tramadol].” The 5 In re Interest of Jordan B., 300 Neb. 355 , 913 N.W.2d 477 (2018). 6 Id. 7 Id. 8 Id. 9 Peterson v. Houston, 284 Neb. 861 , 868, 824 N.W.2d 26 , 33 (2012). 10 Id. 11 Id. - 600 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 information further alleged Theisen “or another [person] with whom [Theisen] conspired with committed an overt act in fur- therance of the conspiracy, to wit: [Theisen] was buying and/ or selling [hydrocodone and tramadol].” The language used in the charging information modeled the statutory language of § 28-202(1)(a) in alleging Theisen “did agree” with another person or persons to “engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense.” The information continued by naming distribution or delivery of hydrocodone and tra- madol as each count’s underlying offense. The information likewise modeled the language of § 28-202(1)(b) in alleging Theisen “or another [person] with whom [Theisen] conspired” committed “an overt act in furtherance of the conspiracy.” Accordingly, the information was sufficient to inform Theisen that the State was charging her with conspiracy under § 28-202 and alleging she engaged with others for the distribution or delivery of hydrocodone and tramadol. Theisen further argues that the information was insufficient to reasonably inform her as to the nature of the crime by operation of § 29-2014. As quoted above, § 29-2014 requires a charging document “expressly” allege one or more overt acts in furtherance of a conspiracy. Theisen contends that § 29-2014 required the State to allege an overt action other than the underlying offense of distribution or delivery of a controlled substance. In support of this proposition, Theisen cites State v. Marco 12 and State v. McKay, 13 a Nebraska Court of Appeals unpublished opinion. [12] Contrary to this argument, neither of these opinions held § 29-2014 requires that the expressed overt acts cannot be allegations of the underlying crime for which the parties conspired. Instead, Marco held that an allegation the defend ant “‘or another person with whom he conspired did commit 12 State v. Marco, 230 Neb. 355 , 432 N.W.2d 1 (1988). 13 State v. McKay, No. A-92-057, 1993 WL 13458 (Neb. App. Jan. 26, 1993) (not approved for permanent publication). - 601 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 an overt act,’” without more, failed to expressly allege an overt act. 14 The case explained that “expressly” alleging an overt act cannot simply be stating that the parties committed an overt act. 15 [13,14] Similarly, in McKay, the defendant was charged with criminal conspiracy. The State’s information alleged that the defendant “‘agree[d] with one or more persons that they or one or more of them would harvest more than one pound of mar- ijuana and he or another person with whom he conspired did commit an overt act in pursuance of the conspiracy, to-wit: Defendant along with [another person] conspired together to harvest and possess more than one pound of marijuana.’” 16 The Court of Appeals explained that “[i]t is axiomatic that the open, manifest, and apparent conduct or overt act of a conspir- acy which tends to show a preexisting conspiracy . . . cannot be [the defendant’s and conspirator’s] conspiring together.” 17 Stated another way, the expressed overt act in furtherance of the conspiracy cannot be the act of conspiring. 18 Instead, a proper information charging conspiracy should indicate the offense which is the object of the conspiracy and expressly allege an overt act conducted in furtherance thereof. 19 Here, the information explicitly alleged overt acts. In addi- tion to its language mirroring § 28-202(1)(a) and (b) and alleging Theisen agreed with others to engage in the underly- ing offenses, the information also alleged “overt act[s] in fur- therance of the conspiracy, to wit: [Theisen] was buying and/ or selling [hydrocodone and tramadol].” These allegations are 14 Marco, supra note 12, 230 Neb. at 357 , 432 N.W.2d at 3. 15 Id. 16 McKay, supra note 13, 1993 WL 13458 at *1. 17 Id. at *2. 18 See id. 19 Id. - 602 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 sufficient to satisfy the requirement under § 29-2014 that the charging document expressly allege an overt act in furtherance of the conspiracy. Because the information sufficiently alleged conspiracy under § 28-202 and expressly alleged overt acts pursuant to § 29-2014, the information was sufficient to reasonably inform Theisen as to the nature of the crime charged and the district court did not err in accepting Theisen’s pleas. Sufficiency of Factual Basis Theisen challenges the sufficiency of the factual basis to support her convictions of conspiracy to distribute or deliver hydrocodone and tramadol. On this assignment, Theisen argues the State failed to establish conspiracy under Wharton’s Rule by failing to allege participation of two or more persons beyond those necessary for the commission of the underly- ing crimes. [15,16] To support a plea of guilty or no contest, the record must establish that (1) there is a factual basis for the plea and (2) the defendant knew the range of penalties for the crime with which he or she is charged. 20 A sufficient factual basis requires that the State present sufficient facts to support the elements of the crime charged. 21 One criminal statute regarding controlled substances explains that “it shall be unlawful for any person knowingly or inten- tionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dis- pense a controlled substance.” 22 Under Neb. Rev. Stat. § 28-401 (Supp. 2019), subsection (9) currently defines “[d]istribute” as “to deliver other than by administering or dispensing a con- trolled substance” and subsection (12) defines “[d]eliver” as “the actual, constructive, or attempted transfer from one person 20 State v. Jenkins, 303 Neb. 676 , 931 N.W.2d 851 (2019). 21 See id. 22 See Neb. Rev. Stat. § 28-416(1)(a) (Cum. Supp. 2018). - 603 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 to another of a controlled substance, whether or not there is an agency relationship.” Under § 28-202(1), all that is required for a conviction is proof that the agreement was entered into and an overt act in furtherance of the conspiracy was committed. 23 The criminal act is the agreement itself, and the ultimate act agreed to by the conspirators need never take place. 24 [17] In evaluating conspiracy charges, we have applied Wharton’s Rule as an exception to conspirator liability. 25 This exception stands for the principle that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. 26 [18,19] The application of Wharton’s Rule is limited to instances where the number and identity of persons involved in the conspiracy are the same as the number and identity of per- sons required to commit the underlying substantive offense. 27 As such, there is an exception to Wharton’s Rule that provides a conspiracy charge may be filed if more or different people participate in the conspiracy than are necessary to commit the substantive offense. 28 Theisen contends that distributing and delivering controlled substances necessarily involves multiple people, including the sellers and buyers of the product. Because of that necessary involvement, Theisen suggests that she could not be convicted 23 See §§ 28-202 and 29-2014. 24 See id. 25 State v. Utterback, 240 Neb. 981 , 485 N.W.2d 760 (1992), disapproved on other grounds, State v. Johnson, 256 Neb. 133 , 589 N.W.2d 108 (1999). 26 Id. See Iannelli v. United States, 420 U.S. 770 , 95 S. Ct. 1284 , 43 L. Ed. 2d 616 (1975). 27 See Utterback, supra note 25. See, also, State v. Clason, 3 Neb. Ct. App. 339 , 526 N.W.2d 673 (1994). 28 See Utterback, supra note 25. See, also, Clason, supra note 27, citing Baker v. United States, 393 F.2d 604 (9th Cir. 1968), and People v. Incerto, 180 Colo. 366 , 505 P.2d 1309 (1973). - 604 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 of conspiracy. In support of her contention, Theisen directs us to our holding in State v. Utterback. 29 In Utterback, the issue on appeal concerned the reliability of an informant and analyzed whether an admission by the informant that he bought marijuana from a specific individual was against his penal interests. Since purchasing marijuana was not a statutorily proscribed act in Nebraska, the court looked at whether such admission could be used to pros- ecute for conspiracy to distribute or deliver a controlled sub- stance. Applying Wharton’s Rule, we found that the informant could not be charged with conspiracy to distribute or deliver, because he was the buyer, a necessary party to the underly- ing crime. The instant case is distinguishable from Utterback. Here, the factual basis provided by the State sets forth sufficient facts to find the participation of conspirators beyond the specific sell- ers and buyers of the drugs. In the court’s receipt of Theisen’s pleas, Theisen confirmed that she had sold hydrocodone and tramadol between June 1, 2016, and August 23, 2018. The State then explained that Theisen “would actually have [her daughters] text potential buyers ahead of time that the sales would be taking place,” that “the daughters reported actually receiving threats back from some of those drug dealers and purchasers about the sales,” and that Theisen “would work with others involved in this ring to buy and sell the drugs.” We note as well that the police reports contained within the presentence investigation report further detail the participation of Theisen’s daughters in the overt act of purchasing controlled substances. Such participation involved more and different people than necessary for the delivery and distribution of hydrocodone and tramadol. Accordingly, Wharton’s Rule does not prohibit Theisen’s conviction for the conspiracy counts and the district court did not err in accepting Theisen’s pleas. 29 Utterback, supra note 25. - 605 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 Failure to Advise Theisen of Wharton’s Rule Theisen assigns her trial counsel was ineffective for failing to properly advise her that Wharton’s Rule prohibited her con- victions on the conspiracy charges. [20,21] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal depends upon the sufficiency of the record to address the claim to determine whether a defense counsel’s performance was deficient and whether the defendant was prejudiced by the alleged deficient performance. 30 We have said the record is sufficient if it estab- lishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy. 31 For the reasons stated above, Wharton’s Rule did not restrict Theisen from being charged and convicted of conspiracy to distribute or deliver hydrocodone and tramadol. Therefore, Theisen cannot show prejudice from trial counsel’s alleged failure to properly advise her on the application of Wharton’s Rule and this assignment is without merit. Conflict of Interest Theisen assigns she received ineffective assistance due to her trial counsel’s representation of a material witness for the State. Under this assignment, Theisen claims her counsel “pre- viously represented Brooks Boyer who was a defendant against [Theisen] in a divorce action which was filed by [Theisen].” 32 Theisen alleges Brooks Boyer “played a very large role in the criminal investigation being initiated against [her], includ- ing providing statements and documentary evidence against 30 See Hood, supra note 3. 31 State v. Stelly, 304 Neb. 33 , 932 N.W.2d 857 (2019). 32 Brief for appellant at 24. - 606 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 [Theisen].” 33 Citing a long-term attorney-client relationship between trial counsel and Boyer, Theisen argues there existed an actual conflict of interest which compromised trial counsel’s ability to adequately and properly represent Theisen. [22,23] The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. 34 The determining factor is whether the record is sufficient to adequately review the question. 35 The record on appeal contains no information as to trial counsel’s alleged representation of Boyer or how that previous relationship could have affected the representation of Theisen. Thus, the record is insufficient to review this assignment on direct appeal. CONCLUSION The information expressly alleged overt acts in further- ance of the charged conspiracy to distribute and deliver hydrocodone and tramadol, and the factual basis was suffi- cient to satisfy Wharton’s Rule and support Theisen’s guilty pleas. Accordingly, we affirm Theisen’s convictions and find Theisen’s assignment of ineffective assistance of trial coun- sel for failure to advise her of Wharton’s Rule to be without merit. However, we conclude the record is insufficient to reach Theisen’s claim of ineffective assistance due to her trial coun- sel’s alleged conflict of interest. Affirmed. 33 Id. 34 State v. Burries, 297 Neb. 367 , 900 N.W.2d 483 (2017). 35 Id.
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435 F.2d 561 R. J. HARRIS, Cleve G. Harris, a minor, by his guardian ad litem, R. J. Harris, and Wayne Brown, Appellees, v. MARION CONCRETE COMPANY, Inc., and Solomon Robinson, Appellants. No. 14791. United States Court of Appeals, Fourth Circuit. October 12, 1970. Appeal from the United States District Court for the District of South Carolina, at Florence; J. Robert Martin, Jr., Chief Judge. James Mozingo, III, D. Kenneth Baker, Darlington, S. C., C. Dexter Powers, Florence, S. C., and John R. Etheridge, Jr., Darlington, S. C., on the brief, for appellees. C. Weston Houck, Jr., Florence, S. C., J. Ralph Gasque, and William H. Seals, Marion, S. C., on the brief, for appellants. Before WINTER, CRAVEN and BUTZNER, Circuit Judges. PER CURIAM: 1 The appellees have filed a motion for summary affirmance. We have carefully reviewed the record, briefs, and appendix, and, deeming oral argument unnecessary, we grant the motion and affirm. 2 The findings of fact contained in the district court's opinion, Harris v. Marion Concrete Company, Inc., 320 F.Supp. 16 (D.S.C.1970), are supported by the evidence, and we find no error in the conclusions of law. 3 Affirmed.
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R. J. HARRIS, Cleve G. Harris, a Minor, by His Guardian Ad Litem, R. J. Harris, and Wayne Brown, Appellees, v. MARION CONCRETE COMPANY, Inc., and Solomon Robinson, Appellants
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<parties data-order="0" data-type="parties" id="b641-21">
R. J. HARRIS, Cleve G. Harris, a minor, by his guardian ad litem, R. J. Harris, and Wayne Brown, Appellees, v. MARION CONCRETE COMPANY, Inc., and Solomon Robinson, Appellants.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b641-24">
No. 14791.
</docketnumber><br><court data-order="2" data-type="court" id="b641-25">
United States Court of Appeals, Fourth Circuit.
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Oct. 12, 1970.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b641-28">
James Mozingo, III, D. Kenneth Baker, Darlington, S. C., C. Dexter Powers, Florence, S. C., and John R. Etheridge, Jr., Darlington, S. C., on the brief, for appellees.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b641-29">
C. Weston Houck, Jr., Florence, S. C., J. Ralph Gasque, and William H. Seals, Marion, S. C., on the brief, for appellants.
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Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
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. CoNley Byrd, Justice, dissenting. I dissent from that part óf the majority opinion which directs that title to the lands in controversy be quieted in appellant, Dierks Forests, Inc., by virtue of seven years’ payment of taxes under color of title, as provided in. Ark. Stat. Ann. § 37-102 (Repl. 1962). The facts show that when Dierks obtained its color of title in 1941, the premises in controversy were fenced with hog wire. When the Garretts obtained their deed and went into possession in 1942, they repaired the fences with barbed wire and built a house, on the property. Obviously, Dierks could not acquire title under § 37-102 as long as the premises were enclosed. Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193 (1941). Therefore-, Dierks could not have obtained any title under § 37-102 until seven years after the premises returned to a state of being wild and unenclosed. In Schmeltzer v. Schied, supra, in considering Ark. Stat. Ann. § 37-102, supra, we held that the obvious and declared purpose of § 37-102 was to encourage the payment of taxes and to protect persons who pay them. In Spradling v. Green, 226 Ark. 420, 290 S. W. 2d 430 (1956), we had before us Mr. Spradling, the owner of a five-acre tract in the SE1^ of the NE14, who had been erroneously paying taxes under a description in “the SW-pt. of the NE of ,the NE,” from 1902 until 1945, when the description was corrected to read “the SW-pt. of the SE of the NE.” The taxes on the 40 -acres described as the SE of the NE forfeited to the state for the tax year 1935, and the state’s title thereto was confirmed in 1941. Thereafter Mr. Green purchased the SE of the NE from the State Land Commissioner. In holding Mr. Green’s state land deed ineffective as against Sprad-ling’s payment of taxes under the erroneous description, which amounted to a double taxation, Ave there said: “‘...The right to sell is founded on the nonpayment of the tax. If the tax be paid before the sale, the lien of the State is discharged, and the right to sell no longer exists. Where the OAvner has performed all of his duties to the government, no court will sanction, under any circumstances, the forfeiture of his. rights of property. The laAv was intended to operate upon the unwilling and negligent citizen alone. The legislative power extends no further. The sale involves an assertion by the officer that the taxes áre due and unpaid, and the purchaser relies upon this, or on his own investigations, and his title depends upon its-truth . . .’ ” .Here it is- admitted that appellees and their predecessors have been paying taxes upon the disputed tract under a part description from 1901 to date. Since under our adjudicated cases a tax forfeiture upon the description used by Dierks Avould not defeat appellees’ title because of the double tax payments, I cannot interpret § 37-102 as creating a greater forfeiture against a property owner. - ■ . For these reasons I would affirm the action of the trial court in quieting title in appellees, since their .predecessors in title had apparently acquired the lands either by purchase or adversely from Dierks’ predecessors in title. J ONES,, J., joins in this dissent.
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opinion_xml_harvard
| 559 |
2022-09-07 17:40:58.761164+00
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040dissent
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t
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f
| 7,872,427 |
Brown, Byrd, Jones, Ones
| null |
U
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f
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Published
| 0 |
Dierks Forest, Inc. v. Garrett
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Garrett
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Dierks Forest, Inc. v. Elwood Garrett et ux
| null | null | null | null | null | null | null | null | null | 64,963,065 |
5-4172
| 0 |
ark
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S
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t
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Supreme Court of Arkansas
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Supreme Court of Arkansas
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4,379,475 |
FILED Mar 21 2019, 9:15 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Hope Fey J.T. Whitehead Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA David Hooker, March 21, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-2318 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Hon. David D. Kiely, Judge Appellee-Respondent. The Hon. Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-0812-PC-18 Bradford, Judge. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 1 of 18 Case Summary [1] In October of 2001, the State entered into a plea agreement with David Hooker, pursuant to which he would plead guilty to Class C felony burglary. At the change-of-plea hearing, while Hooker denied having to push the already-open door to gain entry to the residence in question, he did admit that he had squeezed through the opening. The trial court accepted Hooker’s guilty plea. In 2017, Hooker filed an amended petition for post-conviction relief (“PCR”) in which he claimed that the trial court erred in accepting his guilty plea because he had denied his guilt at the hearing. The post-conviction court concluded that Hooked had not simultaneously maintained his innocence when he pled guilty to Class C felony burglary and denied his PCR petition. Hooker contends that the post-conviction court’s conclusion is clearly erroneous. Because we disagree, we affirm. Facts and Procedural History [2] On October 1, 2001, the State charged Hooker with Class B felony burglary and Class D felony theft. Hooker and the State reached a plea agreement pursuant to which Hooker would plead guilty to Class C felony burglary in exchange for dismissal of the theft charge. At the time, Indiana Code section 35-43-2-1 provided that “[a] person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony.” Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 2 of 18 [3] A change-of-plea hearing was held on November 2, 2001. Then-Judge pro tempore Kelli Fink asked Hooker, “[D]id you break and enter a building that was owned by [Z.M.]?”, to which Hooker replied, “[y]es.” Prior App. p. 12.1 When Judge Fink asked Hooker again whether he had broken into the building, Hooker’s counsel interjected that Hooker “would not say he broke into the building” but that counsel’s “understanding of the law is that you do not have to break into the building [and] if he was in a building with the intention to commit a felony, that is sufficient.” Prior App. p. 13. The following exchange occurred: [The State]: He may have used some force to gain entry which might have been as simple as pushing a door open which was closed. [Judge Fink]: Right. How did he gain entry into the building? [Hooker’s counsel]: You went through a door, right? [Hooker]: Yeah [Judge Fink]: Did you go through a door? [Hooker]: Yes. [Judge Fink]: Did you push the door open? [Hooker]: It was … [Hooker’s counsel]: It was open wasn’t it? [Judge Fink]: Did you push the … 1 The appellate record includes a scanned appendix from a previous appeal, which contains the transcripts from the change-of-plea and sentencing hearings. We shall refer to this document as “Prior App.” and cite to the handwritten page numbers therein. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 3 of 18 [Hooker]: No, it was open. It had a box that was against the door. The door thing was open, it had a box against and some kind of metal thing was behind the door, I don’t … [Judge Fink]: Okay, did you have to physically touch the door and push it open in order to … [Hooker]: No. [Judge Fink]: … gain entry? [Hooker]: No, it was already open. Now I moved by the door. I remember the door was … you’ve got to squeeze through there to get in. Prior App. pp. 13–14. [4] Counsel requested a recess, and, when the hearing resumed, Hooker said that he wanted to plead guilty. The State read the factual basis into the record, followed by more discussion between Hooker and Judge Fink: [The State]: Your Honor, if this were to proceed at trial the State would call the owner of the residence, or the renter of the residence who had a contractual interest in it, a woman by the name of [Z.M.] and she’d testify that she was moving out, had left some items in the house behind and the State believes that she would testify that the door was closed when she left the residence at the last time she was there. The State would also call a witness by the name of David Mills who lived across the street from the burglarized residence and he would testify that at approximately 11:00 when he went to bed he didn’t notice anything unusual about the residence, but at 1:00 to 1:30 in the morning he heard some dogs barking and his own dogs were indicating something was unusual going on. He looked out and saw that the house at 1607 Evans, the door was open and that there was a red car parked in the alley way there that had not been there earlier at 11:00 when he went to bed. He also saw a set of hands that were reaching out through the opened rear door stacking items on the back porch and he contacted the police. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 4 of 18 When the police arrived, Officers Hoehn and several other officers with the Evansville Police Department arrived, looked around the residence, didn’t have any luck or get any response and the officer finally entered through the back of the house and called out and the defendant finally did come out from inside the residence, and that’s where he was located when officers arrived. The State heard and the Court heard the statements by the defendant earlier, and through the case law I believe the Court can establish a factual basis through the statements having been given by the defendant. He indicated that he did have to squeeze in to get into the residence. [….] He did place himself in a position to commit a felony inside. He did commit the entering element. He did ... he was found inside. He did indicate earlier that he was inside the residence and he did in fact commit a felony by committing theft. Several items that were originally inside the house including a circular saw, some stereo equipment and an area rug were found inside the defendant’s vehicle which was parked in the alleyway outside the house to show the element of theft. [….] [Judge Fink]: The agreement [is] that you plead guilty to Burglary as a Class C felony, which means you did break and enter the building and […] structure on October 8th, 2001 […] with the intent to commit a felony therein, to-wit Theft, contrary to Indiana law. Do you understand that’s a lesser included offense of Burglary a C felony that I’ve read to you? [Hooker]: Yes. [Judge Fink]: Do you want to plead guilty to that offense? [Hooker]: Yeah. [Judge Fink]: Now, based on the evidence that the State has read to you, do you still want to plead guilty to that offense? [Hooker]: Ain’t got no choice, yeah. Yes. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 5 of 18 [Judge Fink]: Well, you always have a choice, Mr. Hooker, and that’s what’s very important for you to understand is that you have a choice and we can go to trial Monday if you want to. [Hooker]: I have a choice, but yes I’ll take it. [Hooker’s counsel]: Well, are you aware Mr. Hooker that I’m prepared to go to trial on Monday? You know, I’ve met with the witnesses, I’m prepared to go. I’m not necessarily recommending that[,] but you need to understand that I’m ready to go on Monday. [Hooker]: I understand. [Judge Fink]: And that as I have explained to you and the State of Indiana, they’re not going to allow you to take a plea negotiation and deny that you did these things, do you understand? [Hooker]: Yes. [Judge Fink]: And if you are innocent you should say that and go to trial. [Hooker]: But if I did that still if I get hit, I […] ma’am, that’s twenty-three years I’d be facing. I’ll take this. I’ll take this. [Judge Fink]: Well, what’s very important, sir, is whether or not you committed the offense. Do you believe you committed the offense of Burglary, a Class C felony? [Hooker]: Somewhat yes. [Judge Fink]: Okay, what was … [Hooker]: I … I did it. I done that. [Judge Fink]: I don’t want you to plead guilty to anything that you don’t believe you’re guilty of, okay? [Hooker]: If I … [Judge Fink]: If you’re innocent of something then I don’t want to take your plea. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 6 of 18 [Hooker]: Ma’am, if I was innocent it wouldn’t make a difference now because of what he has it doesn’t matter, I would still be found guilty, so I … [Judge Fink]: But I did not … I cannot accept your plea … [Hooker]: I’m saying I did it. [Judge Fink]: … unless you admit that you committed the offense. [Hooker]: I did it, ma’am. [Judge Fink]: You want to admit that you committed the offense of Burglary as a Class C felony? [Hooker]: Yes. [Judge Fink]: And you’ve heard the facts from the State of Indiana? [Hooker]: Yes. [Judge Fink]: Do you have any comments regarding those facts? [Hooker]: No ma’am. [Judge Fink]: Anything else, [State]? [The State]: No ma’am. [Judge Fink]: This happened here in Vanderburgh County? [Hooker]: Excuse me? [Judge Fink]: Vanderburgh … happened in Vanderburgh County, is that correct? [Hooker]: Yes ma’am. [Judge Fink]: And the State of Indiana? [Hooker]: Yes ma’am. [Judge Fink]: And do you admit that you were in that residence in order to commit the crime of theft? Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 7 of 18 [Hooker]: Yes I was. [Judge Fink]: Show the Court at this time finds a factual basis for Count I, actually the lesser[–]included offense of Count I Burglary, a Class C felony. Prior App. pp. 15–17, 18–21. Judge Fink advised Hooker of his rights and set the matter for a sentencing hearing on December 5, 2001. [5] At the December 5 hearing, then-Magistrate David Kiely engaged in the following exchange: [Hooker]: Okay, now starting out, as far as this incident is concerned, initially, I want you to know that initially I didn’t go there to rob these people or steal anything from them, I went there because me and [the person to whom I am engaged], we were looking for a house for us and the kids and I didn’t break in either as far as kick any doors in or anything of that nature, and we’re talking about a house that was for rent, it was advertised in the paper, I have the article here if you would like to see it, I have the article for the day before of which we got it out of the paper, okay, that’s how I found out about the house. [Magistrate Kiely]: You opened the door? [Hooker]: No, it was open. [Magistrate Kiely]: Now, […] you were in front of Judge [Fink ] and [s]he found a factual basis or you admitted to him 2 that you committed this crime? [Hooker]: I’m saying I did it, but what I’m saying is … [Magistrate Kiely]: Well, you didn’t tell [her] that the door was open and you walked in? 2 Magistrate Kiely was apparently under the mistaken impression that it was Judge Carl Heldt who had conducted the change-of-plea hearing. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 8 of 18 [Hooker’s counsel]: You know, we had a mess on this thing when we did the factual basis[.] [….] [Magistrate Kiely]: I’m going to let [the other judge] do this. [Hooker’s counsel]: That’s what I thought. [Magistrate Kiely]: Because [s]he found the factual basis, I don’t believe you committed burglary unless you opened that door someway [sic] or pushed it open, so I’m going to let [the other judge] handle that. Prior App. pp. 35–37. [6] At the continued sentencing hearing later that month, there was no further inquiry concerning the factual basis or the plea of guilty. Judge Carl Heldt noted that he had reviewed the presentence investigation report and was “accept[ing] the parties’ plea agreement, accept[ing] the Defendant’s plea of guilty, and enter[ing] a judgment of conviction under Count I, to Burglary, as a Class C felony.” Prior App. p. 42. Judge Heldt sentenced Hooker to four years of incarceration. [7] On May 9, 2003, Hooker filed a pro se PCR petition, a petition he withdrew later that year. On December 18, 2008, Hooker filed another pro se PCR petition. On October 21, 2013, Hooker moved to withdraw his plea, which motion the trial court denied later that month. We affirmed the denial of the motion. See Hooker v. State, No. 82A01-1311-CR-523 (Ind. Ct. App. Sept. 3, 2014), trans. denied. While Hooker was pursing his appeal, the post-conviction Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 9 of 18 proceeding had been stayed. The post-conviction proceeding resumed following Hooker’s unsuccessful appeal. [8] In late 2017, Hooker’s PCR petition was amended to seek relief on the basis that the trial court had improperly accepted an unreliable plea. The State answered, denying the allegations and asserting that the amended PCR petition was barred by waiver, prior adjudication, laches, res judicata, collateral estoppel, and law of the case. On August 29, 2018, the post-conviction court, in an order prepared by now-Magistrate Fink and approved by now-Judge Kiely, denied Hooker’s PCR petition. Discussion and Decision 3 [9] In post-conviction matters, “[t]he petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5); see also Ind. Code § 35-35-1-4(e) (identifying this burden of proof for post-sentencing matters regarding the withdrawal of a plea of guilty). Thus, when a petitioner is appealing the denial of his petition for post-conviction relief, he appeals from a negative judgment. Humphrey v. State, 73 N.E.3d 677 , 681 (Ind. 2017). A party appealing from a negative judgment must show that the evidence leads unerringly and unmistakably to an opposite conclusion. Id. In conducting our review, we “shall not set aside the findings or judgment 3 The State argues that Hooker’s claim in this proceeding is barred by the doctrines of waiver, res judicata, and laches. In light of our “marked preference for deciding disputes on their merits and for giving parties their day in court[,]” Butler v. State, 933 N.E.2d 33 , 36 (Ind. Ct. App. 2010) (citation omitted), and in the interest of heading off potential future litigation, we choose to address the merits of Hooker’s claim. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 10 of 18 unless clearly erroneous,” and shall give “due regard” to the opportunity of the post-conviction court to judge the credibility of witnesses. Ind. Trial Rule 52(A); see P-C.R. 1(6) (requiring “specific findings of fact, and conclusions of law on all issues presented”). Put differently, “we do not defer to the post- conviction court’s legal conclusions” but will reverse its findings and judgment only upon a showing of clear error, or that which leaves us with a definite and firm conviction that a mistake has been made. Humphrey, 73 N.E.3d at 682 . [10] Hooker is essentially attempting to withdraw the guilty plea to Class C felony burglary that the trial court accepted and for which it sentenced him in 2001. Indiana Code Section 35-35-1-4(b) provides as follows: After being sentenced following a plea of guilty, or guilty but mentally ill at the time of the crime, the convicted person may not as a matter of right withdraw the plea. However, upon motion of the convicted person, the court shall vacate the judgment and allow the withdrawal whenever the convicted person proves that withdrawal is necessary to correct a manifest injustice. A motion to vacate judgment and withdraw the plea made under this subsection shall be treated by the court as a petition for postconviction relief under the Indiana Rules of Procedure for Postconviction Remedies. For purposes of this section, withdrawal of the plea is necessary to correct a manifest injustice whenever […] the plea was not entered or ratified by the convicted person[.] [11] “[A]n Indiana trial court may not accept a guilty plea that is accompanied by a denial of guilt.” Carter v. State, 739 N.E.2d 126 , 129 (Ind. 2000). [A] plea of guilty tendered by one who in the same breath protests his innocence, or declares he actually does not know whether or not he is guilty, is no plea at all. Certainly it is not a sufficient plea upon which to base a judgment of conviction. No plea of guilty Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 11 of 18 should be accepted when it appears to be doubtful whether it is being intelligently and understandingly made, or when it appears that, for any reason, the plea is wholly inconsistent with the realities of the situation. Harshman v. State, 232 Ind. 618 , 621, 115 N.E.2d 501 , 502 (1953). Before a trial court may accept a plea of guilty, the defendant must tender a reliable admission of guilt. Ellis v. State, 67 N.E.3d 643 , 650–51 (Ind. 2017). If a trial court accepts an unreliable plea, the court commits reversible error, Ross v. State, 456 N.E.2d 420 , 423 (Ind. 1983), providing a proper basis for PCR. See Ellis, 67 N.E.3d at 646 . [12] Hooker challenges the acceptance of his plea of guilty to burglary, an offense that contains the element of “breaking,” Ind. Code § 35-43-2-1, the element Hooker claims he failed to admit. Under the circumstances of this case, we conclude that Hooker’s equivocation at his guilty plea hearing did not amount to a denial of breaking into Z.M.’s residence. First, nothing Hooker said at any point amounted to an actual denial of breaking. While it is well-established that “[w]alking through an open door does not constitute a ‘breaking’ as such element is known in the crime of burglary[,]” Cockerham v. State, 246 Ind. 303 , 307, 204 N.E.2d 654 , 657 (1965), this is not what Hooker claimed to have done. Hooker admitted that he had to “squeeze” through an opening to enter the residence, and “[a] ‘breaking’ is established when even the slightest force is used to gain unauthorized entry[.]” Trice v. State, 490 N.E.2d 757 , 758–59 (Ind. 1986). At most, Hooker indicated that he did not have to push the door open, which still does not take him where he needs to go. Even if we assume that the Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 12 of 18 partially-open door did not move at all when Hooker squeezed through it, force was nonetheless used. See McCovens v. State, 539 N.E.2d 26 , 29 (Ind. 1989) (“Appellant committed a “breaking” when he either climbed over [a fence] or squeezed through its sections.”). [13] Moreover, when the trial court asked Hooker to agree to a factual basis establishing the element of breaking and acknowledge his guilt, he did. After the State read the factual basis into the record, which indicated that Z.M. had closed the door before leaving her residence, Hooker indicated that he wanted to plead guilty. When Judge Fink asked Hooker if he believed that he had committed burglary, he first replied “[s]omewhat yes” before admitting that “I did it” when asked to clarify. Prior App. p. 20. Hooker indicated twice more that he “did it” and that he wanted to admit that he had committed burglary. Prior App. p. 20. Hooker also did not dispute the accuracy of the State’s factual basis when asked. While Hooker seemingly wanted it known that he had not violently broken into Z.M.’s residence (by kicking in a door or the like), Hooker did not actually ever deny committing actions that qualify as breaking. Because this is not a case in which the trial court accepted a guilty plea while Hooker was simultaneously maintaining his innocence, he has failed to establish that the post-conviction court’s judgment is clearly erroneous. [14] The judgment of the post-conviction court is affirmed. Brown, J., concurs. Bailey, J., dissents with opinion. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 13 of 18 IN THE COURT OF APPEALS OF INDIANA David Hooker, Court of Appeals Case No. 18A-PC-2318 Appellant-Petitioner, v. State of Indiana, Appellee-Respondent. Bailey, Judge, dissenting. [15] I respectfully dissent. Indiana courts have broad discretion to reject a plea of guilty. Ind. Code § 35-35-3-3(b); Pannarale v. State, 638 N.E.2d 1247 , 1248 (Ind. 1994). However, when a trial court chooses to accept a proffered plea, the trial court is constrained to accept only a reliable plea of guilty. See Ellis v. State, 67 N.E.3d 643 , 650-51 (Ind. 2017). Should a court accept an unreliable plea, the defendant may file a petition for post-conviction relief, challenging acceptance. I.C. § 35-35-1-4(c); Ellis, 67 N.E.3d at 651 . In doing so, the defendant need only show—by a preponderance of the evidence—that the court accepted an unreliable plea. See Ind. Post-Conviction Rule 1(5); see also I.C. § 35-35-1-4(e). Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 14 of 18 [16] A plea of guilty is rendered unreliable if “the defendant protests his innocence while simultaneously attempting to enter the plea.” Ellis, 67 N.E.3d at 646 . Moreover, if a defendant disputes even a single element of an offense, the trial court should regard the defendant’s statements as a protestation of innocence. See id. at 650-51. Indeed, courts “cannot ignore such repudiations even though the defendant contributed to his own demise by pleading guilty.” Id. at 651. Ultimately, “as a matter of law, ‘a judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time.’” Id. at 646 (quoting Ross v. State, 456 N.E.2d 420 , 423 (Ind. 1983)). [17] The offense of Burglary contains an element of “breaking,” I.C. § 35-43-2-1—an element satisfied by even the slightest use of force, see Trice v. State, 490 N.E.2d 757 , 758-59 (Ind. 1986). Our supreme court long ago held that “[w]alking through an open door does not constitute a ‘breaking’” for the offense of Burglary. Cockerham v. State, 246 Ind. 303 , 204 N.E.2d 654 , 657 (1965). [18] At his plea hearing, Hooker attempted to plead guilty to Burglary—yet, he also asserted that he had “moved by” and “squeez[ed] through” a propped-open door. Prior App. at 11-12. The majority minimizes Hooker’s statements: [N]othing Hooker said at any point amounted to an actual denial of breaking. . . . At most, Hooker indicated that he did not have to push the door open, which still does not take him where he needs to go. Even if we assume that the partially-open door did not move at all when Hooker squeezed through it, force was nonetheless used. . . . Hooker did not actually ever deny committing actions that qualify as breaking. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 15 of 18 Slip op. at 12-13. It seems the majority is faulting Hooker for imprecision—in that “squeezing” through a doorway could have involved some force against the door or the frame. Thus, according to the majority, Hooker never really disputed any element.4 Yet, Indiana law holds trial courts—not defendants— accountable for scrutinizing guilty pleas prior to acceptance. See Patton v. State, 517 N.E.2d 374 , 375 (Ind. 1987) (“[G]uilty pleas should be cautiously received. The more serious the offense, the more cautious a trial court should be.”). This rule was “designed to heighten the reliability of the guilty plea.” Trueblood v. State, 587 N.E.2d 105 , 107 (Ind. 1992). This rule also avoids a practice that would “diminish respect” for courts: “conviction and sentencing without trial of citizens who tell the judge they committed no crime.” Id. As our supreme court has explained: “A requirement that a guilty plea manifest an unqualified admission of guilt does not exalt form over substance. It implements fundamental notions of due process essential to the fair and just administration of criminal law.” Ellis, 67 N.E.3d at 651 (quoting Patton, 517 N.E.2d at 376 ). [19] I cannot say the instant plea was unqualified and reliable. Even the majority identifies equivocation at the hearing, “conclud[ing] that Hooker’s equivocation at his guilty plea hearing did not amount to a denial of breaking into Z.M.’s residence.” Slip op. at 12. The trial court could have dispelled uncertainty by 4 The majority supposes that “Hooker seemingly wanted it known that he had not violently broken into Z.M.’s residence (by kicking in a door or the like).” Slip op. at 13. Yet, it appears that Hooker instead disputed having committed the offense of Burglary—which requires a breaking—while readily admitting that he had committed the lesser-included offense of Theft, for which he was charged under Count II. Yet, as the Theft was only a Class D felony, the State insisted upon squeezing Hooker for a Class C felony conviction. Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 16 of 18 asking what Hooker meant by squeezing by the door. Moreover, there was also opportunity for clarification at subsequent hearings, as Hooker again asserted the door had been open. It was not Hooker’s responsibility to clarify his own equivocation. Further, although Hooker eventually admitted to Burglary, he capitulated “only after the court repeatedly said that it could not otherwise let him plead guilty, after he said that he wanted to plead guilty because he was worried about the higher sentence he was facing, and after he said he believed that he was only ‘somewhat’ guilty of burglary.” Reply Br. at 8. Thus, any eventual admission was tainted by pervasive equivocation. See Huddleston v. State, 951 N.E.2d 277 , 281 (Ind. Ct. App. 2011) (“[D]espite the trial court’s efforts to extract an unequivocal admission . . . we cannot square any such admission with [the defendant’s] statements, made during the same proceeding, that he lacked the requisite culpability for that offense.”), trans. denied. [20] Under these circumstances, the plea was unreliable as a matter of law. I would therefore conclude that the post-conviction court clearly erred in denying relief. 5 5 In reaching this conclusion, I would reject each of the State’s affirmative defenses. Two of these defenses— res judicata and waiver—relate to an appeal Hooker pursued following the denial of his Verified Motion to Vacate the Judgment and Withdraw the Plea. Hooker filed that pro se motion during the pendency of the instant proceedings. Therein, Hooker presented a different issue—whether he was entitled to a particular advisement—and so the doctrine of res judicata does not bar the instant claim, which is that the plea itself was unreliable. See Ind. Dep’t of Envtl. Mgmt. v. Conard, 614 N.E.2d 916 , 923 (Ind. 1993). Further, Indiana Code Section 35-35-1-4(c) provides that “[a] motion to vacate judgment and withdraw the plea . . . shall be treated by the court as a petition for postconviction relief under the Indiana Rules of Procedure for Postconviction Remedies.” Thus, the post-conviction court was obligated to treat Hooker’s motion as a successive petition for post-conviction relief—and, under the Indiana post-conviction rules, a petitioner must take certain steps to pursue a successive petition. See Ind. P-C.R. 1(12). Hooker had not taken those steps. Therefore, I cannot say there was any preclusive adjudication—or, with respect to the defense of waiver, that Hooker waived the instant claim by failing to present the claim in an improper successive petition. See Court of Appeals of Indiana | Opinion 18A-PC-2318 | March 21, 2019 Page 17 of 18 generally P-C.R. 1(8) (“All grounds for relief available to a petitioner under this rule must be raised in his original petition.”). As to laches, the post-conviction court found that “most of the delays in this case were the result of a change in counsel, the time needed for [Hooker’s] attorneys to conduct a proper investigation and preparation, along with the Court’s failure to identify that the December 5, 2001 hearing was missing from the chronological case summary.” Appellant’s App. Vol. IV at 53. Thus, the court implicitly concluded that Hooker had not unreasonably delayed in seeking relief—and evidence adduced at the hearing does not lead unerringly and unmistakably to an opposite conclusion. See Willis v. Westerfield, 839 N.E.2d 1179 , 1185 (Ind. 2006) (noting that the proponent of an affirmative defense bears the burden of proof on that defense); cf. Armstrong v. State, 747 N.E.2d 1119 , 1120 (Ind. 2001) (observing that a petitioner for post-conviction relief “is not appealing from a negative judgment” when challenging the application of an affirmative defense). 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2019-03-21 15:04:27.289143+00
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010combined
|
f
|
f
| 4,602,222 |
Bailey
| null |
CU
|
f
|
Published
| 0 |
David Hooker v. State of Indiana
| null |
David HOOKER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
| null | null |
<parties id="p-1">
David HOOKER, Appellant-Petitioner,
<br/>
v.
<br/>
STATE of Indiana, Appellee-Respondent.
</parties><docketnumber id="p-2">
Court of Appeals Case No. 18A-PC-2318
</docketnumber><court id="p-3">
Court of Appeals of Indiana.
</court><decisiondate id="p-4">
Filed March 21, 2019
</decisiondate>
| null | null | null | null | null | null | 14,765,394 |
Court of Appeals Case 18A-PC-2318
| 0 |
indctapp
|
SA
|
t
|
Indiana Court of Appeals
|
Indiana Court of Appeals
|
5,462,915 |
By the Court, Davis, P. J. This appeal is taken from a judgment dismissing the complaint, with costs. The papers furnished us omit the judgment roll, and contain nothing but the bill of exceptions and notice of appeal. The bill of exceptions states that at the trial the plaintiff applied and had leave “ to amend his complaint by striking out such matters as might be inconsistent with such amendment, and by inserting instead thereof allegations that the defendant and the National Steam Navigation Company were separate and distinct corporations, and that the defendant accepted the National Steam Navigation Company’s property with a distinct agreement to pay the last mentioned company’s debts and liabilities.” The answer of the defendant was then “ so amended as to set up a general denial of these allegations.” The action, therefore, upon the amended pleadings, must be deemed to be one to enforce in favor of the plaintiff an agreement, alleged to have been made by the defendant to pay the debts and liabilities of another corporation, in consideration of the transfer by such corporation or its liquidators, of all its property to the defendant. The plaintiff gave evidence to show that his assignor, on the 23d day of June, 1868, recovered a judgment in the Superior Court of the city of New York, against the National Steam Navigation Company, for $3,289.05 damages and costs, on which an execution had been duly issued and returned unsatisfied. *287The judgment roll showed that the recovery was for an injury to the intestate of the plaintiff’s assignor, which caused the death of such intestate, and that such injury was produced by the wrongful act and negligence of the National Steam Navigation Company in the navigation of the ship Pennsylvania, on the 'iHh day of October, •1867, at which time, it was alleged, the said ship belonged to that company. It showed also that the Navigation Company appeared, and by its answer admitted its own incorporation, and that a collision occurred at the time mentioned between the ship Pennsylvania and the boat on which the intestate was injured; but put in issue the ownership of the Pennsylvania and all other allegations of the complaint. The plaintiff then gave evidence tending to show that the defendant in this action was incorporated under the laws of Great Britain, &c., on the 1st day of July, 1867, by the name of “ The Steamship Company, limited,” and that on the 8th day of August, 1867, its name was changed to “ The National Steamship Company, limited.” That the National Steam Navigation Company, preparatory to a dissolution of that corporation, transferred all its property to two liquidators, under the provisions of the act of parliament known as “ The Companies’ Act, 1862;” and that said liquidators transferred all of said property to the corporation now sued, on the 16th day of August, 1867, and on that day the Navigation Company ceased to do business, and commenced to wind up its affairs ; that such transfer was made substantially upon the agreement and condition that the National Steamship Company should take and accept such real and personal property, subject to the rights and equities therein subsisting, and in particular to the discharge of the several liabilities appearing on the books, papers and documents of the Navigation Company, and to all other liabilities of the last named company, to which the said real and personal property was then subject; and would *288bear, pay and discharge, in due course, the several liabilities disclosed in said books, papers and documents aforesaid, and all other debts, if any, of the said National Steam Navigation Company, and would devote and apply the real and personal property so to be made over to them for that purpose. It is of course apparent that the liability to the plaintiff’s assignor for an injury, which occurred to her intestate on the 24th of October, 1867, did not appear in the books, papers and documents of the Steamship Navigation Company on the 16th of August preceding; nor was it then a debt or liability of that, company which was or could be assumed by the present defendant. In fact the case shows that the action of the plaintiff’s assignor was brought against the wrong party. When the injury occurred, the National Steamship Company was the owner of the steamship Pennsylvania, engaged in its navigation, and the alleged wrongful act and negligence were its own, and not those of the corporation which was sued. Neither on sound law nor logic can it be held that by the agreement made on the transfer of the property the defendant bound itself to pay its own liabilities that might thereafter spring out of the wrongful acts and negligence of its own servants; nor did the agreement contemplate or provide for liabilities of that kind which might be asserted by actions improperly brought against the company, which had ceased to do business, and was existing only in the process of winding up its affairs. The agreement relied upon does not, therefore, embrace the plaintiff’s judgment, unless it appears that the injury happened by the act of the Navigation Company, or of its liquidators, in the course of the winding up of its affairs under the act referred to. That does not appear, and probably could not be made to appear consistently with truth, because the Pennsylvania had obviously become the property of another corporation *289which was using that ship for its own purposes. It is not shown that the present defendant was a privy to the suit against the former company, so that the judgment can either in law or equity be treated as a judgment against itself. It was not prosecuted; it had, so far as appears, no notice of the suit, and it had no opportunity to appear and defend, and the action was not one in which the present defendant was bound to respond to the defendant in that suit, on the ground that the wrong for which the action was brought was the negligence of the former and not of the latter. A., who is improperly sued for B.’s wrongs, cannot compel B. to defend or be liable for the result, by notice that he is sued for an act for which B. alone is liable. Nor can a plaintiff sue a party not liable for an injury, and then subject the actual wrongdoer to liability for the result, by notice of the pendency of such a suit. The privity essential to charge persons not parties to the record, and which makes notice of the suit an estoppel in pais, is altogether lacking in the supposed cases. As the defendant was not bound to defend an action brought against the National Steam Navigation Company for an injury committed by itself, the recovery in the case is no estoppel to any action brought against itself for the same alleged wrong. Nor is the finding of the jury, in that case, that the defendant therein was the owner or navigator of the Pennsylvania an estoppel on that question, against the present defendant. But if this were otherwise, there is a failure of proof, in this case to bring it within the rules governing the liability of privies. It was not error to exclude the statement of the agent, as to the ownership of the Pennsylvania. To make declarations of that character was no part of the duties of his employment by the defendant; and although his assertion that the National Steam Navigation Company was the owner of the Pennsylvania, doubtless led to the commencement of the suit against the wrong party, yet *290it does not establish the fact asserted, nor charge the present defendant with the judgment in that case by reason of its falsity. [First Department, General Term at New York, May 3, 1875. We think the complaint was properly dismissed; and that the judgment should be affirmed with costs. Judgment affirmed.(a) Davis, Brady and Darniels, Justices.] S. C., reported briefly, 4 Hun, 684.
|
opinion_xml_harvard
| 1,340 |
2022-01-09 19:41:50.186366+00
|
020lead
|
t
|
f
| 5,617,984 |
Davis
| null |
U
|
f
|
Published
| 0 |
Miller v. National Steamship Co.
| null |
Asa F. Miller v. The National Steamship Co.
|
<p>APPEAL by the plaintiff, from a judgment of the Special Term dismissing the complaint.</p>
| null | null |
<p>The National Steam Navigation Company, preparatory to a dissolution of that corporation, transferred all its property to two liquidators, under the provisions of an English statute, and the said liquidators transferred all of said property to the defendant, on the 16th day of August, 1867; and on that day the Navigation Company ceased to do business, and commenced to wind up its affairs. Such transfer was made substantially upon the agreement and condition that the defendant should take and accept such property subject to the rights and equities therein subsisting, and particularly to the discharge of the several liabilities appearing on the books, papers and documents of the Navigation Company, and to all other liabilities of that company to which the said property was then subject; and would bear, pay and discharge, in due course, the several liabilities disclosed in said books, papers and documents, and all other debts, if any, of the said Navigation Company, and would devote and apply the property so to be made over to it for that purpose. On the 23d of June, 1868, a judgment was recovered by the plaintiff’s assignor, as administratrix, against the Navigation Company for an injury to her intestate, caused by the negligence of that company in navigating its vessel, on the 24th of October, 1867. In an action brought by the plaintiff to enforce that judgment against the defendant on the ground that it had assumed to pay the debts and liabilities of the Navigation Company :</p> <p>Held, 1. That the liability to the plaintiff’s assignor for an injury which occurred to her intestate on the 24th of October, 1867, could not appear in the books, papers and documents of the Navigation Company on the 16th of August preceding, and was not then a debt or liability of that company which was or could be assumed by the defendant.</p> <p>2. That the action of the plaintiff’s assignor, in which the judgment was recovered, was brought against the wrong party. That the defendant being, at the time when the injury occurred, the owner of the vessel causing the injury, and engaged in its navigation, the alleged wrongful act and negligence were its own, and not those of the Navigation Company, the corporation which was sued.</p> <p>3. That it could not be held that by the agreement made on the transfer of the property the defendant bound itself to pay its own liabilities that might</p> <p>• thereafter spring out of the wrongful acts and negligence of its own servants ; nor did the agreement contemplate or provide for liabilities of that kind which might be asserted by actions improperly brought against the Navigation Company, which had ceased to do business, and was existing only in the process of winding up its affairs.</p> <p>4. That the agreement did not embrace the judgment in question, unless it appeared that the injury happened by the act of the Navigation Company, or of its liquidators, in the course of the winding up of its affairs, under the statute mentioned therein.</p> <p>6. That it not being shown that the defendant was a privy to the suit against the Ravigation Company, so that the judgment therein could he treated as a judgment against itself, the defendant was not hound, nor estopped hy such judgment; and that the complaint was properly dismissed.</p>
| null | null | null | null | null | 61,970,563 | null | 0 |
nysupct
|
ST
|
t
|
New York Supreme Court
|
New York Supreme Court
|
5,207,823 |
Application denied, with ten dollars costs.
|
opinion_xml_harvard
| 6 |
2022-01-06 16:06:13.43508+00
|
020lead
|
t
|
f
| 5,372,336 | null | null |
U
|
f
|
Published
| 0 |
Slavik v. Supreme Lodge of All Bohemian Ladies
|
Slavik
|
Frank Slavik v. Supreme Lodge of All Bohemian Ladies, etc.
| null | null | null | null | null | null | null | null | null | 61,720,498 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
5,165,033 |
OPINION PER CURIAM: Defendant appeals from his conviction for aggravated assault, a third degree felony, in violation of Utah Code Ann. § 76-5-103 (1990). Defendant pled guilty to the offense pursuant to a conditional plea agreement under State v. Sery, 758 P.2d 935 (Utah App.1988). He reserved his right to appeal the denial of a motion to suppress statements allegedly obtained in violation of the Miranda requirements. Subsequent to entry of the conditional plea and during the course of the present *911appeal, this court issued its decisions in State v. Montoya, 858 P.2d 1027 (Utah App.1993) and State v. Harris, 858 P.2d 1031 (Utah App.1993). Montoya held that in Sery plea cases, the disposition on appeal must effectively bring the prosecution to an end. Montoya, 858 P.2d at 1030. Accordingly, the court stated that “it is incumbent upon a trial court, when it allows a defendant to enter a guilty plea conditioned on his or her right to appeal a certain issue, to make sure the record clearly establishes that resolution of the issue on appeal, one way or another, will necessarily end the prosecution of the case.” Id. Because the plea in this case was entered prior to Montoya, the record does not contain the required finding. The case is therefore remanded to the trial court for entry of the finding as required by Montoya. Following remand, the trial court shall prepare and transmit to this court a supplemental record of its proceedings. If the trial court cannot make the requisite factual finding in support of a conditional guilty plea, the trial court shall allow withdrawal of the conditional plea and advise this court of its determination.
|
opinion_xml_harvard
| 278 |
2022-01-02 03:25:33.752719+00
|
020lead
|
t
|
t
| 5,333,959 |
Billings, Greenwood, Russon
| null |
U
|
f
|
Published
| 0 |
State v. Streeter
|
Streeter
|
STATE of Utah, and v. David C. STREETER, and
| null | null | null | null | null | null | null | null | null | 61,675,139 |
No. 930206-CA
| 0 |
utahctapp
|
SA
|
t
|
Court of Appeals of Utah
|
Court of Appeals of Utah
|
5,990,572 |
Order and judgment (one paper), Supreme Court, New York County (Carol Huff, J.), entered on or about May 13, 1994, which, inter alia, granted partial summary judgment to plaintiffs on several causes of action and granted partial summary judgment to defendant dismissing several causes of action, unanimously modified, on the law, to the extent of vacating the award of $2,500 attorneys’ fees to plaintiffs and remanding the matter for a hearing to determine the amount of attorneys’ fees due plaintiffs and otherwise affirmed, without costs. Since the By-Laws and Proprietary Lease of defendant contain no specific authority for the imposition of a sublet surcharge, and since defendant failed to follow the proper procedures to effectuate an amendment of the Proprietary Lease authorizing such a sublet surcharge, the IAS Court properly voided the surcharge ab initio and provided for an appropriate remedy whereby all the improperly obtained surcharges will be returned (see, Zuckerman v 33072 Owners Corp., 97 AD2d 736; Bailey v 800 Grand Concourse Owners, 199 AD2d 1). We also agree with the LAS Court that there is no evidence to support plaintiffs’ claims of bad faith, self-dealing, or breach of fiduciary duties on the part of the Board of Directors. As for attorneys’ fees, the court properly awarded such to plaintiffs in light of their successful prosecution of several of their claims and in light of the attorneys’ fee provision contained in the Proprietary Lease (see, Sperling v 145 E. 15th St. Tenants’ Corp., 174 AD2d 498). However, since there appears to be no evidence with respect to the attorneys’ fees actually incurred by plaintiffs, a hearing is warranted on said issue (see, Barrios v Klein, 133 AD2d 574, lv dismissed 70 NY2d 1002). We have considered the parties’ other claims and find them meritless. Concur—Murphy, P. J., Rubin, Kupferman and Mazzarelli, JJ.
|
opinion_xml_harvard
| 304 |
2022-01-13 08:58:38.161179+00
|
020lead
|
t
|
f
| 6,125,474 | null | null |
U
|
f
|
Published
| 0 |
Zimiles v. Hotel Des Artistes, Inc.
|
Zimiles
|
Murray Zimiles v. Hotel Des Artistes, Inc., Appellant-Respondent
| null | null | null | null | null | null | null | null | null | 62,485,612 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
1,505,662 |
865 F. Supp. 1180 (1993) The AMERICAN ANGUS ASSOCIATION, Plaintiff, v. SYSCO CORPORATION, Sysco Food Services, Inc., and Bell Sysco Food Services, Inc., Defendants. Civ. No. 1:92cv190. United States District Court, W.D. North Carolina, Asheville Division. August 20, 1993. Order on Reconsideration May 27, 1994. *1181 David M. Carter, Carter & Schnedler, Asheville, NC, and Richard T. Rossier, Marc Miller, McLeod, Watkinson & Miller, Washington, DC, for plaintiff. Steve Rosenblatt, Paula Morris, Rosenblatt & Associates, P.C., Houston, TX, and Joseph P. McGuire, Richard Wood, McGuire, Wood & Bissette, P.A., Asheville, NC, for defendants. MEMORANDUM OF OPINION AND ORDER RICHARD L. VOORHEES, Chief Judge. THIS MATTER is before the Court on Defendants' motion for summary judgment on Count II of their counterclaim, filed March 30, 1993 (Pleading No. 65), and Plaintiff's cross-motion for summary judgment on the same count, filed May 17, 1993 (Sealed Pleading No. 73). After considering the Defendants' motion, Plaintiff's memorandum in opposition and cross-motion, and Defendants' reply, the Court will deny Defendants' motion and grant Plaintiff's motion. I. BACKGROUND In the count at issue, Defendants seek cancellation of Plaintiff's registered certification mark based on various violations of 15 U.S.C. § 1064. Plaintiff defends the continued registration of its mark on several grounds, including equitable defenses such as laches and licensee estoppel [1] , and on the merits. Because the Court finds that Defendants do not have standing to challenge Plaintiff's registration of the mark, the Court will not address any other grounds for summary judgment for either party. Additional facts will be set out as they become relevant to the discussion. II. ANALYSIS A. Summary Judgment Standard On a motion for summary judgment, the moving party has the burden to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial. When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial. " Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 586-7, 106 S. Ct. 1348 , 1356, 89 L. Ed. 2d 538 (1986) (citations omitted; emphasis in original) (quoting Fed. *1182 R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248, 106 S. Ct. 2505 , 2510, 91 L. Ed. 2d 202 (1986). For purposes of Plaintiff's motion for summary judgment, the underlying facts have been viewed in a light most favorable to Defendants. B. Standing "[A]ny person who believes that he is or will be damaged by the registration of a mark on the principle register" may petition to have that mark cancelled. 15 U.S.C. § 1064 (1988). This statement appears to authorize an extremely broad range of persons to bring such a petition. However, the interpretation of this language has narrowed the class of person for whom the law authorizes his or her "belief" in damage. In American Auto. Ass'n v. Nat'l Auto. Ass'n, 127 U.S.P.Q. 423 (T.T.A.B.1960), the Trademark Trial and Appeals Board held that a competitor of an organization with a registered certification mark did not have standing to challenge the validity of the mark on the statutory grounds that Defendants claim here. Id. at 425. In that case, the Board held that: The type of "damage" alleged by applicant is merely that resulting from the competition that exists between applicant and [mark holder] or between any two concerns rendering similar services within the same territory; and such "damage" cannot serve as a ground for cancellation under this section of the statute. Id. A leading commentator suggests that the class of persons who may challenge the validity of a registered certification mark is even narrower than non-competitors. 2 J. McCarthy, Trademarks and Unfair Competition § 20-15[7] ("Standing to cancel under [the statutory grounds alleged in this case] exists for persons who were refused certification after meeting the prescribed standards or conditions of the certifier"). Plaintiff has shown that neither Defendant has been refused a license to use Plaintiff's mark. Exhibit F, Eichar Declaration, attached to Plaintiff's Memorandum in Opposition. In fact, Plaintiff has shown that neither Defendant has applied for a license to use Plaintiff's mark. Id. In addition, it is admitted that five of Defendant Sysco's wholly owned subsidiaries and an operating division of Defendant Sysco have applied for, and received, a license to sell "Certified Angus Beef." The Court finds that there is no genuine issue whether Defendants have been or may be damaged by Plaintiff's use of the mark. Thus, the Court will grant Plaintiff's motion for summary judgment on Count II of Defendants' counterclaim. Defendants argue that they may meet the statutory requirement for standing by showing that they have a "real interest" in cancelling Plaintiff's mark. Selva & Sons, Inc. v. Nina Footwear, Inc., 705 F.2d 1316 , 1325 (Fed.Cir.1983). Under such a test, the only persons without standing to bring such a suit (assuming that any party which goes through the effort and expense of bringing a lawsuit has "an interest" in its outcome) are "`meddlesome parties [acting as] self-appointed guardians of the purity of the Register.'" Id. at 1325-26 (quoting Norac Co. v. Occidental Petroleum Corp., 197 U.S.P.Q. 306, 320 (T.T.A.B.1977)). Even if the Selva & Sons Court adopted a more lenient test for standing [2] , this Court agrees with Professor McCarthy that the American Auto. Ass'n test is the proper one, and that mere competitors cannot establish standing to seek cancellation of the mark. The Court further notes that while an attack on the mark may give Defendants leverage in the underlying infringement action, that does not constitute "belief in damage" so as to give Defendants standing to challenge the mark. Morton Foods, Inc. v. Frito Co., 314 F.2d 822 , 823 (C.C.P.A.1963). III. ORDER IT IS, THEREFORE, ORDERED that Defendants' motion for summary judgment is DENIED. *1183 IT IS FURTHER ORDERED that Plaintiff's motion for summary judgment is GRANTED, and Count II of Defendants' First Amended Answer and Counterclaims is hereby DISMISSED WITH PREJUDICE. ORDER THIS MATTER is before the Court on the Defendants' "Motion for (1) Reconsideration, (2) Clarification, or (3) Certification for Appeal Regarding Opinion and Order Finding that Sysco Lacks Standing to Cancel Reg. No. 1,235,502 under 15 U.S.C. § 1064(5) (Docket No. 88)," filed September 3, 1993 ["Defendants' Motion for Reconsideration"]. Plaintiff has responded, and all parties have extensively briefed the issues. For the reasons stated below, the Court will deny the Defendants' motions. I. BACKGROUND On August 20, 1993, this Court entered its Memorandum of Opinion and Order denying the Defendants' motion for summary judgment on Count II of their counterclaim and granting the Plaintiff's cross-motion for summary judgment on the same count. Two weeks later, Defendants' filed this motion asking the Court to reconsider its ruling. [1] In the previous ruling, the Court found that Defendants lack standing to seek cancellation of the Plaintiff's registered certification mark based on violations of 15 U.S.C. § 1064. The Court there addressed, and rejected, the Defendants' argument that the correct method to determine standing is to show merely a "real interest" in cancelling the Plaintiff's mark. In the present motion, Defendants rehash earlier arguments and now claim that even under the Court's ruling of the appropriate standard, they have established standing. II. DISCUSSION A. Defendants' cause of action for cancellation of Plaintiff's mark Section 1064 of Title 15, United States Code, provides that a certification mark may be cancelled only by a party with standing to do so. Standing is a prerequisite because of the great weight to be afforded marks which have attained incontestability status. Shakespeare Co. v. Silstar Corp. of America, Inc., 9 F.3d 1091 , 1097 (4th Cir.1993) (citing Park `N' Fly, 469 U.S. 189 , 105 S. Ct. 658 , 83 L. Ed. 2d 582 (1985)). The incontestability provisions ... provide a means for the registrant to quiet title in the ownership of his mark.... This function of the incontestability provisions would be utterly frustrated if the holder of an incontestable mark could not enjoin infringement by others so long as they established that the mark would not be registrable but for its incontestable status. Id (quoting Park `N' Fly, 469 U.S. at 198, 105 S. Ct. at 663-64 ). Thus, the power of a district court to cancel a registered mark is limited to the criteria of 15 U.S.C. § 1064. Shakespeare Co., 9 F.3d at 1098. The language of the statute itself limits standing to those "who believe[] that he is or will be damaged." 15 U.S.C. § 1064. As previously noted by this Court, a leading authority further curtails standing to those who previously "were refused certification after meeting the prescribed standard or conditions of the certifier." 2 J. McCarthy, Trademarks and Unfair Competition, § 20-15[7] (3d ed. 1992). However, the Court reiterates its earlier ruling that the standing requirement to seek cancellation of a certification mark is outlined in American Auto. Ass'n v. Nat'l Auto. Ass'n, 127 U.S.P.Q. 423 (T.T.A.B.1960). That case was factually similar to the instant one, involving the attempt of a competitor to cancel the certification mark of the American Automobile Association, nationally known as "AAA." The Court there ruled As to applicant's counterclaim, it is applicant's contention ... (b) that AAA in addition to using the mark, shown in the registration sought to be canceled, to certify services rendered by hotels, motels, restaurants, and other service organizations *1184 meeting its standards, also used the mark in connection with such services as rating tourists accommodations, disseminating travel information and the like.... Referring to (b), the applicant has not alleged nor has it shown that it has been or could be damaged by AAA's asserted use of the certification mark as a service mark. Id. at 425. Defendants now argue that under the American Auto. Ass'n standard, Plaintiff has engaged in production and marketing of the beef to which the certification mark is applied, in violation of 15 U.S.C. § 1064. To support this, Defendants show that Plaintiff licenses packing houses to apply its mark to the beef which meets its specifications, that those licenses require the packing houses to sell the beef only to licensed distributors of American Angus, and that those distributors are licensed to sell the products only to licensed restaurants and grocers. Memorandum of Points and Authorities in Support of Motion for Reconsideration at 13. This, claims Sysco, limits their access to top quality beef which it could use in its certified beef program. Id. Thus, Sysco claims it has shown damage under the American Auto. Ass'n standard. The death knell of this argument is the very conduct which led to the lawsuit. Sysco embarked on a program to advertise, market and sell a new line of certified angus beef which meets its own specifications, the Supreme Angus Beef program. The evidence adduced at the hearing on the motion for a preliminary injunction clearly showed that Sysco was having no problem getting top quality beef which it was in fact selling to Plaintiff's customers. [2] Thus, Defendants' claims of inaccessibility amount to nothing more than an allegation of damage which is not sufficient to show standing. West Indian Sea Island Cotton Ass'n v. Threadtex, Inc., 761 F. Supp. 1041 , 1048 (S.D.N.Y.1991) ("[S]omething more than a plaintiff's mere subjective belief that he is injured or likely to be damaged is required"); Lipton, Ind., Inc. v. Ralston Purina Co., 670 F.2d 1024 , 1028 (C.C.P.A.1982) (a party is not "entitled to standing solely because of the allegation in its petition"). In fact, the gravamen of this whole litigation is not that Defendants cannot obtain angus beef, but that they want to use the phrase "Certified Angus Beef" to describe and promote their angus beef program. Defendants also argue that Plaintiff has used the certification mark as a service mark or trademark. Nonetheless, the evidence presented to counter Plaintiff's motion for summary judgment shows no conduct by Plaintiff other than promotion and advertising, both of which obviously are allowed and used by organizations holding certification marks. See, e.g., State of Florida v. Real Juices, Inc., 330 F. Supp. 428 (M.D.Fla.1971); Camel Hair & Cashmere Institute, Inc. v. Associated Dry Goods Corp., 799 F.2d 6 (1st Cir.1986) (holding that the plaintiff had failed to show irreparable injury warranting a preliminary injunction because it had not engaged in sufficient advertising or promotional activities to achieve a reputation); West Indian Sea Island Cotton Ass'n, supra . Thus, Defendants have not carried their burden to show that Plaintiff is engaged in using the certification mark as a service or trademark and that this constitutes damage sufficient to impose standing. Moreover, even if the Court were to adopt, arguendo, the "real interest" standard purported by Defendants, standing has not been established. Defendants have failed to show that they have been denied certification by Plaintiff ( See Memorandum of Opinion and Order, filed August 20, 1993 at 3-4, 865 F. Supp. 1174 , 1182), and as stated above, they have shown no conduct by Plaintiff other than advertising and promotion. Since no conduct has been shown which could damage Defendants, they have no "real interest" in cancelling the mark. In holding that a party has not shown "real interest" without showing damage as required by 15 U.S.C. § 1064, the Court follows the holdings of Park `N' Fly and Shakespeare that a district court may not exceed the limits imposed by 15 U.S.C. § 1064. Thus, the Court finds that the Defendants have failed to rebut the Plaintiff's showing of *1185 entitlement to summary judgment. Defendants have not come forward with "specific facts showing that there is a genuine issue for trial ". Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 586-7, 106 S. Ct. 1348 , 1355-56, 89 L. Ed. 2d 538 (1986) (citations omitted; emphasis in original). B. Defendants' request for the Court to clarify its Order On August 20, 1993, this Court also entered an Order which denied the Plaintiff's motion to strike affirmative defenses of the Defendants. Defendants now claim confusion as to whether this means no evidence may be introduced as to these affirmative defenses. While the Court denied the Plaintiff's motion to strike affirmative defense B (alleging that Plaintiff's certification mark should be cancelled), it granted Plaintiff's cross-motion for summary judgment, holding Defendants failed to show standing to petition the Court for cancellation of the mark. It is thus elementary that no evidence may be introduced at trial concerning the Defendants' affirmative defense that the mark should be cancelled because the counterclaim alleging that cause of action has been eliminated from the case. To the extent that Defendants claim the same evidence which would have proven entitlement to cancellation is relevant and admissible on the counterclaims concerning Lanham Act, state law and antitrust violations, it will be incumbent on Defendants to make such motions in limine prior to trial as necessary to obtain proper rulings. Defendants are cautioned not to file frivolous motions in this regard. Defendants also request clarification as to affirmative defense D1, concerning the status of the mark as generic or not. Defendants are referred to the language of the Order imposing a preliminary injunction in which the Court ruled that "for the purposes of the preliminary injunction, subject to further factual findings in the case, [] the term is descriptive, not generic." Order, filed June 11, 1993, at 14. Lastly, Defendants, without any supporting argument, ask the Court to reconsider the motion for summary judgment as a motion for summary judgment on an available defense and to reconsider the Plaintiff's motion for summary judgment as to licensee estoppel. Because of the above rulings, this motion is also moot. C. Defendants' request for certification of immediate appeal A district court may certify an order for immediate appeal when the Court is "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). The Defendants offer no argument that a controlling question of law is at stake and do not state that the appeal would advance the termination of the case. Nonetheless, it is clear that an immediate appeal from the dismissal of the counterclaim would not materially advance the termination of this case. This portion of the case may be reviewed by the Fourth Circuit along with the appeal which, certainly, will be taken after the trial. The Court finds the Defendants' motion, which fails to even attempt to meet the statutory criteria, borders on sanctionable conduct and warns against future filings of such character. III. ORDER IT IS, THEREFORE, ORDERED that the Defendants' motion for reconsideration is hereby DENIED; and IT IS FURTHER ORDERED that the Defendants' motion for clarification or consideration of the motion for summary judgment as a motion directed to an available defense and for reconsideration of the motion for summary judgment as to licensee estoppel is hereby DENIED; and IT IS FURTHER ORDERED that the Defendants' motion for certification for immediate appeal is hereby DENIED. *1186 This Order is in response to Pleading Nos. 91, 93, 95, 99, 100, 104, 108, and 109. NOTES [1] The Court has addressed, in a separate order filed this day, Plaintiff's motion for partial summary judgment based on licensee estoppel. Because the Court will grant Plaintiff's motion for summary judgment on the grounds that Defendants lack standing to challenge Plaintiff's mark, the Court, in that separate order, has denied that motion as moot. [2] The Court finds it suggestive that the Selva & Sons Court failed to mention American Auto. Ass'n in its analysis, and believes that such an omission indicates that there is a difference in the requirements to establish standing to challenge a trademark and the requirements to establish standing to challenge, as here, a certification mark. [1] The Court notes that Defendants' also moved the Court to reconsider its ruling in October 1992 which granted Plaintiff a preliminary injunction. The Court encourages Defendants to make sparing use of the motion. [2] The evidence from the hearing was referred to by Plaintiff in its motion for summary judgment.
|
opinion_html_with_citations
| 3,137 |
2013-10-30 06:30:41.653011+00
|
010combined
|
f
|
f
| 1,505,662 |
Richard L. Voorhees
| null |
LU
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Published
| 0 |
American Angus Ass'n v. Sysco Corp.
| null |
The AMERICAN ANGUS ASSOCIATION, Plaintiff, v. SYSCO CORPORATION, Sysco Food Services, Inc., and Bell Sysco Food Services, Inc., Defendants
| null | null |
<parties id="b1242-21">
The AMERICAN ANGUS ASSOCIATION, Plaintiff, v. SYSCO CORPORATION, Sysco Food Services, Inc., and Bell Sysco Food Services, Inc., Defendants.
</parties><br><docketnumber id="b1242-24">
Civ. No. 1:92cv190.
</docketnumber><court id="APd">
United States District Court, W.D. North Carolina, Asheville Division.
</court><br><otherdate id="b1242-28">
Aug. 20, 1998.
</otherdate><br><decisiondate id="b1242-29">
Order on Reconsideration May 27, 1994.
</decisiondate><br><attorneys id="b1243-10">
<span citation-index="1" class="star-pagination" label="1181">
*1181
</span>
David M. Carter, Carter & Sehnedler, Asheville, NC, and Richard T. Rossier, Marc Miller, McLeod, Watkinson & Miller, Washington, DC, for plaintiff.
</attorneys><br><attorneys id="b1243-11">
Steve Rosenblatt, Paula Morris, Rosen-blatt & Associates, P.C., Houston, TX, and Joseph P. McGuire, Richard Wood, McGuire, Wood & Bissette, P.A., Asheville, NC, for defendants.
</attorneys>
| null | null | null | null | null | null | 996,385 |
Civ. 1:92cv190
| 0 |
ncwd
|
FD
|
t
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W.D. North Carolina
|
District Court, W.D. North Carolina
|
6,965,076 |
Mr. Justice Baker delivered the opinion of the Court: This was debt against James M. Smith and his sureties on a bond given in compliance with the requirements of section 5 of the Dram-shop act, and the bond was conditioned for the payment to all persons of all damages that they might sustain, either in person or property or means of support, by reason of said Smith selling or giving aWay any intoxicating liquors. The suit was prosecuted in the name of the People of the State of Illinois, for the use of Anna Williamson. The declaration contained two assignments of breaches. The substance of one was, that said Smith, on divers occasions, sold and gave away intoxicating liquors to William Williamson, the husband of said Anna Williamson, by means whereof said William became, and was habitually intoxicated, and, by reason of so being habitually intoxicated, wasted and squandered his moneys, income and property, and became and was greatly impoverished, reduced, and degraded in mind and body, as well as in his estate, and greatly neglected his duties as a farmer and stock raiser and other business, and thereby said Anna, being his wife, lost and was deprived of her means of support. And the substance of the other was, that on the 12th day of August, 1889, said William Williamson, being in a state of intoxication caused by said Smith selling and giving to him intoxicating liquors, was incapacitated, by reason of such intoxication, from properly and safely managing, driving and controlling a team of horses drawing a wagon in which he was riding, by. means whereof said team ran away and said William Williamson was thrown out of the wagon and killed, and that thereby said Anna Williamson was injured in and deprived of her means of support. Upon the issues formed in the case there was a jury trial, and a verdict and judgment for the penalty of the bond and for $1000 damages, and the judgment was afterwards affirmed in the Appellate Court. Complaint is made by Smith and the other appellants of some four or five of the instructions which were given on the motion of the plaintiff below, on these grounds: that by them the court submitted to the jury the question of the giving of intoxicating liquors as well as the question of the- selling of such liquors, and also submitted the question whether or hot the beer which William Williamson drank at the saloon of Smith during the afternoon and night of the 12th of August, 1889, was an intoxicating liquor. In.respect to the first objection, suffice it to say that the declaration alleged as well the giving as the selling of intoxicating liquors, and that there was some evidence, though but slight, tending to prove the giving of such liquors. The second objection is likewise untenable. It may be that no witness testified, in positive terms, that the beer that Williamson drank on the 12th day of August was an intoxicating liquor; but that fact, like most, other facts, may be established by other than direct and positive proof, and here the proof was ample that Williamson drank beer very many times during the afternoon, and until about nine o’clock at night, in the saloon of Smith, and became intoxicated, and left there with a bottle of whisky in his pocket. If the direct result of drinking Smith’s beer was intoxication, it may reasonably be presumed that Smith’s beer was an intoxicating liquor. Instruction No. 5 did not assume that beer is an intoxicating liquor, but left it to the jury to determine, from the evidence, whether the death of Mrs. Williamson’s husband “was occasioned by intoxication produced by beer which was intoxicating, or other intoxicating liquors sold or given to him.by the defendant.” We have difficulty in comprehending the point of the criticism made by appellants on the clause found in instruction No. 6, which reads as follows: “caused from intoxication in whole or in part produced by the sale of intoxicating liquors sold to him by the defendant James M. Smith.” Very plainly this means, “in whole or in part produced by the sale of intoxicating liquors sold to him by the defendant James M. Smith,” and does not mean either “intoxication in whole or in part,” or “caused from intoxication in whole or in part.” We do not see how it could reasonably be understood by the jury otherwise than we have suggested; but even if there was intoxication “in part,” or partial intoxication, yet if such intoxication was sufficient to have “caused” the death of the deceased, we are unable to see why the case is not within the purview of the statute. So, also, if, notwithstanding the intoxication of the deceased, he would not- have been killed if his horses had not run away, yet nevertheless there would be a good cause of action. The very gravamen of the case is, that he, in consequence of his intoxication, was unable to properly manage and control his team, and that in consequence thereof they ran away, and he was thrown out of the’ wagon and killed. It is assigned as error that the court refused to give certain of the instructions asked by appellants. It was not error to refuse to tell the jury that, as a matter of law, the word “intoxication,” used in the Dram-shop act, means “excited to frenzy.” The denial of the instruction that no .recovery could be had in the case if the death of the deceased was occasioned by the negligence or want of caution or willful act of the deceased in handling or driving a dangerous team, was clearly not error. The instruction does not exclude the hypothesis that such negligence, want of caution or willful act was due to or caused by his intoxication. Instruction No. 3 was properly refused, and for like reason. Even if the clips or fastenings on the whiffletrees dropped off and allowed the tongue of the wagon to drop down upon the road, and in consequence the team became frightened and unmanageable, and ran away, yet, non constat, that if the deceased had been duly sober and in fit condition to manage and control the team he would not have been able to prevent the running away of the horses or the overturning of the wagon. The court refused to instruct the jury that they had “no right to consider any evidence in relation to William Williamson having been drunk on former occasions not connected with the time of his death, or any habit the deceased may have had of using intoxicating liquors prior to the day of his death.” It also, over the objections of appellants, admitted evidence of the habit of the deceased, prior to the day of his death, in relation to drinking liquors and becoming intoxicated. These rulings of the court are questioned by the assignments of error. It must be borne in mind that there are two assignments of breach in the declaration, and that the first of them is, that appellant Smith, in the lifetime of William Williamson, sold and gave said Williamson intoxicating liquors, he, said Williamson, then being an habitual drunkard, and that thereby his wife, the appellee, was injured in respect to her means of support. The challenged evidence was admissible under this first breach, and the giving of the proffered instruction would have been understood by the jury as excluding from their consideration all claim for damages based on said breach. There was no error in said rulings. The evidence was not admissible, however, for the purpose of forming a basis for the allowance of punitive damages. In Cobb v. The People, 84 Ill. 511, this court held, that in a suit on a bond executed under section 5 of the Dram-shop act exemplary damages can not be recovered, but only such actual damages as the party for whose use the suit is brought may sustain, either in person, property or means of support. This case wa.s, by the instructions of the court, submitted to the jury upon the theory of actual damages, only, and therefore the qualification just noted is here unimportant. We find no error in the judgment of affirmance rendered in the Appellate Court. It is affirmed. Judgment affirmed.
|
opinion_xml_harvard
| 1,388 |
2022-07-24 01:52:25.140247+00
|
020lead
|
t
|
f
| 7,061,085 |
Baker
| null |
U
|
f
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Published
| 0 |
Smith v. People
| null |
James M. Smith v. The People, for use of Anna Williamson
|
<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Carjroll county; the Hon. William Shown, Judge, presiding.</p>
| null | null | null | null | null | null | null |
<p>1. Intoxicating liquors—action against saloon-keeper—for death caused by intoxication—instruction as to negligence of deceased. In an action against a saloon-keeper on his bond, by a wife, to recover for a loss of her means of, support, caused by the death of her husband while intoxicated, an instruction that no recovery could be had if the death of the deceased was occasioned by.the negligence, want of caution or willful act of the deceased, is properly refused, as it does not exclude the hypothesis that such negligence, want of caution or willful act was not due to or caused by his intoxication.</p> <p>2. Same—evidence that deceased was an habitual drunkard. Where the declaration contains two counts or assignments of breaches, one for causing the death of the plaintiffs husband by the sale of intoxicating liquor to him, and the other charging that the principal defendant, in the lifetime of the husband, sold and gave him intoxicating liquors, he being then an habitual drunkard, whereby plaintiff was injured in her means of support, it was held, that under the count last named, evidence of the habits of the deceased prior to his death, in relation to drinking liquor, is properly admitted, and it is not error to refuse to instruct the jury not to consider such evidence.</p> <p>3. Such evidence is not admissible, however, for the purpose of forming a basis for the allowance of punitive damages, as the sureties on the bond are not liable to exemplary damages, but only for such actual damages as the party for whose use the action is brought may sustain either in person, property or means of support.</p> <p>4. Same—instruction submitting whether beer is intoxicating. The fact that beer sold to a party is intoxicating liquor may be shown by other than direct and positive proof. Proof that the party drank beer many times during the afternoon of the day of his death, and until nine o’clock at night, in a saloon, and became intoxicated, and left there with a bottle of whisky, is sufficient evidence that the beer drank was intoxicating upon which to base an instruction submitting to the jury the question of whether the beer was intoxicating.</p> <p>5. Same—degree of intoxication. In an action by a widow upon the bond of a dram-shop keeper for depriving her of her means of support, .an instruction in relation to the death of her husband was given, which contained the words, “caused from intoxication in whole or in part produced by the sale of intoxicating liquor sold to him by the defendant, S.” It was held, that the words plainly mean, in whole or in part produced by the sale of intoxicating liquor sold to him by such defendant, and do not mean either intoxication in whole or in part, or caused from intoxication in whole or in part.</p> <p>6. In such case, even if there was intoxication “in part,” or partial intoxication, yet if such intoxication was sufficient to have caused the death of the plaintiff’s husband the case would still be within the purview of the statute. So if, notwithstanding the intoxication of the -deceased, he would not have been killed if his horses had not run .away, yet, nevertheless, there would have been a good cause of action, the gravamen of the action being, that he, in consequence of his intoxication, was unable to properly manage and control his team, and that in consequence thereof they ran away.</p> <p>7. Same—giving of liquor—allegation and, proof. In an action on the bond of a dram-shop keeper by a widow, to recover damages for being deprived of her means of support by the sale of intoxicating .liquor to her husband, causing his intoxication, the submission to the jury of the question of the giving of such liquors to the husband is not -error, where the declaration alleges the giving as well as the sale of such liquors to him, and there is some evidence, though slight, of- the .gift of such liquor to the husband.</p> <p>8. Same—defined. It is not error to refuse to instruct the jury, on behalf of the defendant, that as a matter of law the word “intoxication,” used in the Dram-shop act, means "excited to frenzy.”</p>
| 64,049,423 | null | 0 |
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S
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t
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Illinois Supreme Court
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Illinois Supreme Court
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628,651 |
3 F.3d 163 Michael SCOTT, Plaintiff-Appellant, v. Marco GLUMAC, Defendant-Appellee. No. 92-2432. United States Court of Appeals, Seventh Circuit. Argued April 13, 1993. Decided Aug. 6, 1993. Kenneth N. Flaxman and Stacey L. Beckman, Chicago, IL, for plaintiff-appellant. Richard T. Ryan and Mark F. Smolens, Flynn, Murphy & Ryan, Chicago, IL, for defendant-appellee. Before POSNER and FLAUM, Circuit Judges, and RONEY, Senior Circuit Judge. 1 FLAUM, Circuit Judge. 1 Marco Glumac and three other Calumet City police officers arrested Michael Scott on October 4, 1989, pursuant to a "no-bond" arrest warrant issued by the Cook County Circuit Court for felony possession of a controlled substance. After the arrest, Officer Glumac searched Scott's car and ordered it towed. Scott filed a civil suit under 42 U.S.C. Sec. 1983, alleging that his car had been wrongfully seized. The district court granted Glumac's motion for summary judgment based on qualified immunity, and Scott appeals. We reverse. I. 2 The facts are undisputed. Officer Glumac and his partner knew about the arrest warrant from Chicago and drove to Scott's residence. They watched him exit a 1982 Cadillac El Dorado, legally parked in the parking lot of his apartment complex. A male passenger remained in the car while Scott walked into the building. The officers called for additional police support. When two other officers arrived, all four approached the Cadillac and arrested the passenger. Then three of the four went to the front door of Scott's apartment, knocked and asked for Michael Scott. A voice responded that he would be right out. After three more minutes of knocking, the officers broke down the door and entered. They found Scott, wearing the same clothes he had been wearing when he entered the house, standing in the upstairs hallway. 3 Approximately twenty to twenty-five minutes had elapsed. The officers arrested Scott pursuant to the outstanding warrant. They searched him and recovered $541, a number of small zip-lock bags, and 0.1 gram of cocaine. Officer Glumac went back to the parking lot and searched the car, in which he found no contraband. He ordered the car towed. Scott's passenger was released without being charged by the police. The Cadillac fared less well; it was destroyed by the towing company. II. 4 We review the decision to grant summary judgment de novo. Doe v. Allied Signal Corp., 925 F.2d 1007 , 1008 (7th Cir.1991). Because the doctrine of qualified immunity entitles officers to immunity from both civil liability and the burdens of litigation, it is important to resolve the immunity question at the earliest possible stage of the case. Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534 , 536, 116 L.Ed.2d 589 (1991). 5 Qualified immunity shields police officers "from suit for damages if 'a reasonable officer could have believed [the action] to be lawful, in light of clearly established law and the information the officers possessed.' " Id., quoting Anderson v. Creighton, 483 U.S. 635 , 641, 107 S.Ct. 3034 , 3040, 97 L.Ed.2d 523 (1987). The availability of immunity depends not on an officer's subjective good faith but rather on an objective reasonableness standard. Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). Frequently the general rule, such as the right to be free from unreasonable seizures, is well-established; the crucial question is whether the law was clear in relation to the specific facts confronting the police officer. Maxwell v. City of Indianapolis, 998 F.2d 431 , 436 (7th Cir.1993). Scott must show that a reasonable officer in Officer Glumac's position could not have believed that probable cause existed to seize his car. III. 6 In Illinois, a police officer may seize a vehicle believed to have been used in the course of committing or attempting to commit a Controlled Substances Act violation. Such a vehicle is subject to forfeiture, under ILL.REV.STAT. ch. 56 1/2, p 1505(a)(3) (1991), 2 formerly under ILL.REV.STAT. ch. 38, p 36 (1989). 3 When deciding whether a vehicle is forfeitable, the primary focus is whether it facilitated the commission or attempted commission of the drug offense. See People v. 1946 Buick, 127 Ill.2d 374 , 130 Ill.Dec. 419 , 421, 537 N.E.2d 748 , 750 (1989). 7 Illinois cases, including two recent Illinois Supreme Court cases, which neither party cited suggest that a reasonable officer could not believe Scott's car was subject to forfeiture. In People v. 1988 Mercury Cougar, 154 Ill.2d 27 , 180 Ill.Dec. 323 , 326, 607 N.E.2d 217 , 220 (1992), the Illinois Supreme Court reaffirmed the key facilitation requirement under the forfeiture statute. Because a paraplegic driver who had been stopped for a traffic violation attempted to hide a packet containing 0.4 gram of cocaine as police officers approached his car, the court ordered his specially-equipped car forfeited. Citing its own earlier case, People v. 1946 Buick, 127 Ill.2d 374 , 130 Ill.Dec. 419 , 537 N.E.2d 748 (1989) as instructive, the court reasoned that the driver attempted to hide the cocaine under the carpet on the rear floor of the car, in order to retain possession of it. The car, therefore, had been used to attempt to commit a Controlled Substances Act violation. 8 In 1946 Buick, police officers observed a driver who had been stopped for a moving violation emptying a packet onto the car floor as they approached. The police recovered 0.33 gram of cocaine from the floor of the car. The Illinois Supreme Court reversed the lower courts' order to release the car, but expressly reserved ruling on the question of whether mere possession while travelling in a car would subject the car to forfeiture. Instead, the Court found that more substantial evidence than simple possession was present: "Smith not only possessed the drug on his person while in the vehicle, but used the vehicle to hide the cocaine from the police." Id. 130 Ill.Dec. at 421, 537 N.E.2d at 750. "[T]he inescapable conclusion is that the vehicle was used, unsuccessfully in this case, to make Smith's continued possession of the drug easier. Consequently, his vehicle is subject to forfeiture...." Id. Both of these cases emphasize the car's direct involvement in the Controlled Substances Act violation. 9 Other situations in which Illinois courts have found vehicles forfeitable include carrying drugs from the car to a point of sale, see People v. One 1990 Chevrolet Suburban, 239 Ill.App.3d 815 , 178 Ill.Dec. 653 , 605 N.E.2d 92 (2d Dist.1992); keeping a small quantity of drugs in the glove compartment of a vehicle, see People v. One 1986 Ford Ranger Pickup, 213 Ill.App.3d 1085 , 157 Ill.Dec. 737 , 572 N.E.2d 1201 (3d Dist.1991); and concealing a controlled substance in a bag while driving, see People ex rel. Daley v. 1986 Honda, 182 Ill.App.3d 322 , 130 Ill.Dec. 748 , 537 N.E.2d 1077 (1st Dist.1989) (car was "not so far removed from the crime charged to be unaffected by the illegal possession"). As one Illinois court explained, a vehicle facilitates the drug offense sufficiently to justify forfeiture when "[a] person carrying drugs [uses] a car to be more elusive, move about at will, travel further, and escape observation, detection and capture." Id. 130 Ill.Dec. at 750, 537 N.E.2d at 1079. 10 Even the Illinois cases cited as supportive authority by the defendant and the district court do not help establish probable cause to seize Scott's car. In People ex rel. Carey v. 1975 Mercedes 4-Door, 86 Ill.App.3d 893 , 41 Ill.Dec. 955 , 408 N.E.2d 377 (1st Dist.1989), the car owner removed a large quantity of drugs from the trunk of his car just prior to selling them to an undercover agent. The court found the car forfeitable because the "car was an integral, constituent part of the offense arising from the sale transaction." Id. 41 Ill.Dec. at 956, 408 N.E.2d at 378. In People ex rel. Mihm v. Miller, 89 Ill.App.3d 148 , 44 Ill.Dec. 470 , 411 N.E.2d 592 (3d Dist.1980), the court held that "to the extent the automobile adds a dimension of privacy, ... it does facilitate the possession" of even a very small amount of a controlled substance. Id. 41 Ill.Dec. at 471, 411 N.E.2d at 593. In that case, which has been the source of some controversy among Illinois appellate courts, 4 the driver dropped from his pocket 0.08 gram of cocaine as he exited his car during a routine traffic stop. In both cases, there is a palpable connection between the vehicles seized and the drug offense, a connection not found between Scott's car and his possession of cocaine. 11 We know from the caselaw that if Scott had sold drugs from his car or had hidden them in his car, an arresting officer would have probable cause to seize the car. The law in Illinois is not clearly established in regard to a driver's possession of a concealed, small quantity of drugs while riding in a car. Reasonable officers could disagree about whether forfeiture is authorized in that situation. For the purposes of qualified immunity, uncertainty in the law protects as well as law that clearly authorizes the officer's action. In Scott's case, however, the officers discovered his Controlled Substances Act violation, his possession of cocaine, twenty to twenty-five minutes after he left his car. Officer Glumac has offered no evidence which would support a reasonable belief that Scott had been carrying the cocaine while he was in the car. 12 The defendant relies almost exclusively on one of our cases, United States v. Pace, 898 F.2d 1218 (7th Cir.1990), instead of Illinois law, to support his argument for qualified immunity. He argues that, as in Pace, it was reasonable to believe that the arrestee had driven the car to facilitate his Controlled Substances Act violation. We are not persuaded. In Pace, we affirmed the district court's decision not to suppress evidence stemming from the search and seizure of two cars owned by drug traffickers. The police executed a residential search warrant and discovered a multikilogram cocaine deal in progress. After arresting the homeowner and the guests, the police searched and seized the cars in the garage owned by the guests. Probable cause existed for the seizure under the federal and Illinois forfeiture statutes since it was reasonable to believe they had transported the guest-dealers to the point of sale. We found that "the police could reasonably believe that [the guests] used the cars to commit a violation of Illinois drug laws, [and therefore] the police had probable cause to believe the cars were subject to forfeiture." Id. at 1242. Pace does not help Officer Glumac, however, because Scott drove his car home, not to a drug transaction location. When the officers entered Scott's residence, there was no evidence of a drug transaction taking place; Scott was alone, with a very small amount of cocaine in his pocket. 13 At argument, counsel for Glumac offered a theory linking the car to the offense for the first time. He suggested that the police officers believed the car passenger to be Scott's customer, waiting for Scott to return to the car with cocaine. When Scott realized the police had arrived, counsel speculated, he flushed most of the drugs before the officers gained entry to the apartment. This argument does not suffice. The problem is not that the officer failed to articulate a reason for believing that Scott was using the car to commit a Controlled Substances Act violation. If we could tell from the record that a reasonable officer could have believed it, we would affirm the grant of qualified immunity, regardless of what Officer Glumac actually believed or what theory he argued. The real problem is that Glumac failed to offer evidence which could support a reasonable belief that the car was being used to commit a drug offense. There is nothing in the record--no evidence that Scott possessed the cocaine while he was in the car, no evidence that Scott was heading back to the car with the cocaine, no evidence that Scott had purchased the cocaine from the passenger and was bringing it into the building--to tie the car to the offense. 14 If the police had arrested Scott as he alighted from his car and had found the cocaine on him, Glumac could have towed the car under Miller and the line of cases following it. If the officers had waited for Scott to return to the car and then arrested him in possession of cocaine, Glumac could have towed the car. Under either scenario, a reasonable officer could believe that the mere possession of the cocaine permitted forfeiture of the car. If the police saw the passenger exit the car and enter the building and then had interrupted a sale inside the apartment, Glumac could have towed the car. In that situation, as in Pace, a reasonable officer could believe that the car had been used as transportation incident to a drug deal. Instead, the officers arrested Scott in his own home twenty to twenty-five minutes after he had left his car. They found no evidence linking his possession of cocaine to the car, either through the search of the car or the car passenger. 15 We find that while the officers may have supposed that Scott either possessed the cocaine while he was in the car or was preparing to sell cocaine to the car passenger, that belief is closer to "mere suspicion" than probable cause. See United States v. Certain Real Property, 943 F.2d 721 , 725 (7th Cir.1991). If we were to affirm the grant of summary judgment based on qualified immunity in this case, we would be immunizing the seizure of a car based simply on ownership by an arrestee for drug possession. The Illinois statute cannot be reasonably interpreted to reach so far. At least minimal connection between the drug offense and the vehicle is needed. Here, a reasonable officer could not have believed that the car was subject to forfeiture under the Illinois statute, and therefore would not have found probable cause to seize the car. The judgment is 16 REVERSED. 1 The Honorable Paul H. Roney, Senior Circuit Judge for the Eleventh Circuit, sitting by designation 2 "The following are subject to forfeiture: ... all conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession, or concealment of [substances in violation of the Illinois Controlled Substances Act]." 3 "Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit ..., an offense prohibited by [the Illinois Controlled Substances Act] may be seized...." Paragraph 36-2 authorized forfeiture proceedings by the State's Attorney. The chapter 38 laws no longer cover violations of the Illinois Controlled Substances Act, as of September 10, 1990. Since this seizure took place in 1989, the district court used the chapter 38 statute. By then, however, the Illinois Supreme Court had signalled the switch to using the chapter 56 1/2 statute as authority for forfeitures. See People v. 1946 Buick, 127 Ill.2d 374 , 130 Ill.Dec. 419 , 421, 537 N.E.2d 748 , 750 (1989). The distinction is mostly academic because the caselaw reflects no difference in the application of the statutes 4 Since Miller, Illinois courts have struggled with the issue of whether mere possession of a small amount of a controlled substance inside a car constitutes facilitation. Compare People ex rel. Kilquist v. One 1978 Mazda GLC, 165 Ill.App.3d 540 , 116 Ill.Dec. 307 , 518 N.E.2d 1287 (5th Dist.1988) (shaving kit containing benzphetamine in unzipped duffle bag found in car, but no forfeiture because no facilitation) and People ex rel. Barra v. Lee, 128 Ill.App.3d 128 , 83 Ill.Dec. 291 , 470 N.E.2d 46 (3d Dist.1984) (van not forfeitable despite controlled substance found in closed purse of driver because the "vehicle furnished no additional dimension of privacy") with People ex rel. Broch v. Hogg, 213 Ill.App.3d 188 , 156 Ill.Dec. 908 , 571 N.E.2d 888 (4th Dist.1991) (the dimension of privacy, elusiveness, speed of departure, etc. offered by car facilitates possession of any quantity of drugs)
|
opinion_html_with_citations
| 2,700 |
2012-04-16 03:09:06+00
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010combined
|
f
|
f
| 628,651 |
Flaum, Posner, Roney
| null |
RU
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f
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Published
| 5 |
Michael Scott v. Marco Glumac
| null |
Michael SCOTT, Plaintiff-Appellant, v. Marco GLUMAC, Defendant-Appellee
| null | null |
<parties id="b229-6">
Michael SCOTT, Plaintiff-Appellant, v. Marco GLUMAC, Defendant-Appellee.
</parties><br><docketnumber id="b229-9">
No. 92-2432.
</docketnumber><br><court id="b229-10">
United States Court of Appeals, Seventh Circuit.
</court><br><otherdate id="b229-11">
Argued April 13, 1993.
</otherdate><br><decisiondate id="b229-12">
Decided Aug. 6, 1993.
</decisiondate><br><attorneys id="b229-26">
Kenneth N. Flaxman and Stacey L. Beck-man, Chicago, IL, for plaintiff-appellant.
</attorneys><br><attorneys id="b229-27">
Richard T. Ryan and Mark F. Smolens, Flynn, Murphy & Ryan, Chicago, IL, for defendant-appellee.
</attorneys><br><judges id="b229-28">
Before POSNER and FLAUM, Circuit Judges, and RONEY, Senior Circuit Judge.
<a class="footnote" href="#fn1" id="fn1_ref">
1
</a>
</judges><div class="footnotes"><div class="footnote" id="fn1" label="1">
<a class="footnote" href="#fn1_ref">
1
</a>
<p id="b229-29">
. The Honorable Paul H. Roney, Senior Circuit Judge for the Eleventh Circuit, sitting by designation.
</p>
</div></div>
| null | null | null | null | null | null | 290,503 |
92-2432
| 1 |
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Seventh Circuit
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Court of Appeals for the Seventh Circuit
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8,447,874 |
MEMORANDUM ** Crowley Marine Services, Inc. appeals the district court’s finding that its tug was 75% at fault for a maritime collision during a pre-arranged escort operation of Maritrans Inc.’s tanker. Crowley raises three issues on appeal. First, Crowley disputes the district court’s finding that two of the International Regulations for Preventing Collisions at Sea, Oct. 20, 1972, 28 U.S.T. 3459, T.I.A.S. 8487, adopted by statute at 33 U.S.C. § 1602 (“COLREGS”), did not apply to Maritrans because of its participation in a pre-arranged escort plan with Crowley. Crowley’s claims with respect to the district court’s application of the COLREGS are addressed in a published opinion filed concurrently with this memorandum disposition. Crowley also argues that the court applied the wrong standard of care and improperly admitted evidence. *417We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the last two issues in this memorandum disposition. The district court applied the proper standard of care. Crowley knew or reasonably should have known of Captain Nekeferoffs serious medical and alcohol problems. Those problems clearly indicated that Nekeferoff might have problems as a captain of a vessel. Under general negligence principles, Crowley thus had a duty to conduct a further inquiry before allowing Nekeferoff to captain its tug. See Crisman v. Pierce County Fire Prot. Dist. No. 21, 115 Wash.App. 16, 60 P.3d 652, 654 (2002).1 The district court did not abuse its discretion by admitting evidence regarding Captain Nekeferoffs medical and alcohol problems. Cf. Madeja v. Olympic Packers, LLC, 310 F.3d 628, 635 (9th Cir.2002). The evidence was relevant because the district court determined that an episode related to Captain Nekeferoffs medical history and alcohol problems contributed to the collision. Cf. Fed.R.Evid. 401. Nor did the district court abuse its discretion by admitting the testimony of Maritrans’ expert on hydrodynamics, Dr. Browne. Cf. Madeja, 310 F.3d at 635. Dr. Browne’s testimony was adequately supported by testing that simulated the tugs and the tanker in conditions similar to those on the night of the collision. Dr. Browne had no duty to test Crowley’s version of how the vessels came into contact. Admission of the evidence was well within the court’s discretion. Once admitted, it was up to the court as the fact-finder to accord the evidence the appropriate weight. Cf. Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 919 (9th Cir. 2001) (“Authority to determine the victor in ... a ‘battle of expert witnesses’ is properly reposed in the jury”). This Court affirms the district court’s application of the standard of care, its admission of evidence regarding Captain Nekeferoffs problems, and its admission of the testimony of Maritrans’ expert. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 839, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996) ("In ruling upon whether a defendant’s blameworthy act was sufficiently related to the resulting harm to warrant imposing liability for that harm on the defendant, courts sitting in admiralty may draw guidance from ... the extensive body of state law applying proximate causation requirements and from treatises and other scholarly sources.”).
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| 0 |
Crowley Marine Services Inc. v. Maritrans Inc.
| null |
CROWLEY MARINE SERVICES INC., a Delaware corporation, Plaintiff—Appellant v. MARITRANS INC, a Delaware corporation Maritrans Transportation Inc, a Delaware corporation Maritrans Operating Company LP, a Delaware Limited partnership Maritrans General Partner Inc, a Delaware corporation, Defendants—Appellees
| null | null | null | null | null | null |
See also 447 F.3d 719.
| null | null | 65,701,654 |
No. 04-35724
| 0 |
ca9
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Ninth Circuit
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Court of Appeals for the Ninth Circuit
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4,638,522 |
League of Women Voters of New York State v New York State Bd. of Elections ( 2020 NY Slip Op 07135 ) League of Women Voters of New York State v New York State Bd. of Elections 2020 NY Slip Op 07135 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Friedman, J.P. Renwick, Webber, González, JJ. Index No. 160342/18 Appeal No. 12397&[M-03397] Case No. 2020-03996 [*1]League of women Voters of New York State, et al., Plaintiffs-Appellants, v New York State Board of Elections, et al., Defendants-Respondents. Law Professors, Amici Curiae. Latham & Watkins LLP, New York (Alexander R. DeLisi of counsel), for appellants. Letitia James, Attorney General, New York (Philip J. Levitz of counsel), for respondents. Frankfurt Kurnit Klein & Selz, P.C., New York (Edward H. Rosenthal and Jared Benjamin of counsel), for Amici Curiae. Order of the Supreme Court, New York County (J. Machelle Sweeting, J.), entered September 25, 2020, which denied plaintiffs' motion for a preliminary injunction to enjoin defendant from enforcing New York Election Law provisions requiring voters to register at least [*2]25 days before elections, including the November 3, 2020 general election, unanimously affirmed, with costs. In seeking to enjoin defendant from enforcing New York Election Law provisions requiring voters to register at least 25 days before elections, including the November 3, 2020 general election, plaintiffs' motion for a preliminary injunction was properly denied to the extent it sought the ultimate relief in the action (see SportsChannel Am. Assoc. v National Hockey League , 186 AD2d 417, 418 [1st Dept 1992] ). Moreover, the motion for a preliminary injunction was properly denied because plaintiffs failed to show a likelihood that they will be able to prevail on the underlying merits of their claim that a 25-day voter registration deadline (or any deadline beyond the 10-day minimum found in the State Constitution) is now unconstitutional ( Nobu Next Door, LLC v Fine Arts Hous., Inc. , 4 NY3d 839, 840 [2005] ["[T]he party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor"]). M-03397 - League of Women Voters of New York State, et al. v New York State Board of Elections, et al., Motion by Law Professors to file amicus curiae brief granted, and the brief deemed filed. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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| 4,834,743 | null | null |
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League of Women Voters of New York State v. New York State Bd. of Elections
| null | null | null | null | null | null | null | null | null | null | null | 18,703,201 |
Index No. 160342/18 Appeal No. 12397&[M-03397] Case No. 2020-03996
| 0 |
nyappdiv
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SA
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t
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Appellate Division of the Supreme Court of New York
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Appellate Division of the Supreme Court of the State of New York
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542,038 |
903 F.2d 1430 Willie Lee SCRUGGS, Petitioner-Appellee, v. Doug WILLIAMS, Warden, Respondent-Appellant. No. 89-8251. United States Court of Appeals, Eleventh Circuit. June 22, 1990. Paula K. Smith, Asst. Atty. Gen., William Hill, Deputy Atty. Gen., Susan Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant. Michael M. Worth, University of Georgia Law School, Prisoner Legal Counseling Project, Athens, Ga., for petitioner-appellee. Appeal from the United States District Court for the Southern District of Georgia. Before VANCE * and ANDERSON, Circuit Judges, and LYNNE ** , Senior District Judge. ANDERSON, Circuit Judge: 1 Willie Lee Scruggs brought this habeas corpus action to set aside his state conviction for rape and sodomy. Scruggs contended that the jury had not unanimously found him guilty beyond a reasonable doubt, as evidenced by a poll of the jury taken in court after the verdict was announced. Scruggs also argued that the trial judge coerced jurors into giving their assent during the jury poll. The district court agreed with both contentions and held that Scruggs had been denied due process, citing United States v. Edwards, 469 F.2d 1362 (5th Cir.1972) and United States v. Sexton, 456 F.2d 961 (5th Cir.1972). The state now appeals. We conclude that Edwards and Sexton interpret federal rules of procedure and do not set constitutional standards for due process. Applying the fourteenth amendment's requirement of fundamental fairness, we find that no juror was coerced, and that Scruggs failed to carry his burden of proving that he was not found guilty beyond a reasonable doubt. Accordingly, we reverse. I. BACKGROUND 2 Scruggs was indicted in Richmond County, Georgia of rape and aggravated sodomy. A two-day jury trial was held. The state presented testimony from the complaining witness, her attending physician, a forensic scientist, a Sheriff's investigator, and a polygraph examiner who had interviewed Scruggs. The defense called Scruggs and another witness, contending that no rape had occurred because the complainant had consented. After counsel made their closing arguments, the court instructed the jury. In particular, the court gave a lengthy instruction concerning the state's burden to prove every material allegation "to a moral and reasonable certainty and beyond a reasonable doubt." 1 The jury deliberated for two hours and forty minutes before finding Scruggs guilty of rape and guilty of sodomy. 3 After the verdict was read, the court polled the jury on behalf of the defendant. The first juror initially denied having joined the verdict: 4 THE COURT: Call the jurors' names, please. When your name is called I will ask you a couple of questions. 5 THE CLERK: Julia B. Leverett. 6 THE COURT: Was that your verdict? 7 JUROR LEVERETT: Beg your pardon. 8 THE COURT: Was that your verdict that the jury returned in this case? 9 JUROR LEVERETT: No sir. 10 THE COURT: That was not your verdict? 11 JUROR LEVERETT: No sir. 12 THE COURT: All right. Call the next juror. 13 The second juror indicated that she had doubts about her vote: 14 THE CLERK: Lillie Bell Beard. 15 THE COURT: Was that your verdict? 16 JUROR BEARD: It was my verdict, but I had some doubts. 17 THE COURT: Was it your verdict or not? 18 JUROR BEARD: I voted yes. 19 THE COURT: Was it freely and voluntarily entered into by you? 20 JUROR BEARD: It was free and voluntary, but I still had some doubts. 21 THE COURT: In other words, you're saying that was not your verdict? 22 JUROR BEARD: Well, I went by the evidence, but I'm not sure, you know. The only thing I could go by was the evidence, but I'm not sure if the evidence was right. But, I mean, that's what I went by. 23 THE COURT: Well, is that still your verdict? 24 JUROR BEARD: Yes, I voted. 25 THE COURT: And you knew what you were doing? 26 JUROR BEARD: I knew what I was doing, but in my heart I really had some doubts. 27 THE COURT: Well, you could have some doubts and still--in other words, there is nothing in the law that says beyond all doubt. It was what was referred to in the Charge as reasonable doubt. So if that is your verdict ... 28 JUROR BEARD: Yes. 29 THE COURT: Call the next juror, please. 30 The next five jurors were polled without incident. The eighth juror, however, also expressed doubt: 31 THE CLERK: Patricia A. Mayo. 32 THE COURT: Was that your verdict? 33 JUROR MAYO: Yes. 34 THE COURT: Was it freely and voluntarily entered into by you? 35 JUROR MAYO: With doubt, but freely and voluntarily. 36 THE COURT: Is it still your verdict? 37 JUROR MAYO: Yes. 38 The remaining four jurors acknowledged the verdict as their own without comment. At the end of the poll, the court returned to the first juror: 39 THE COURT: Call the first juror. 40 THE CLERK: Julia B. Leverett. 41 THE COURT: You raised your hand a minute ago, when I was questioning one of the other jurors. Did you understand the question that I propounded to you originally? 42 JUROR LEVERETT: No sir, I'm sorry I didn't understand you. 43 THE COURT: I will go over it again. Was that your verdict? 44 JUROR LEVERETT: Yes. 45 THE COURT: Was it freely and voluntarily entered into by you? 46 JUROR LEVERETT: Yes sir. 47 THE COURT: Is it still your verdict? 48 JUROR LEVERETT: Yes sir. 49 Counsel for Scruggs moved for a mistrial. The trial court denied the motion, noting that the jury had continued to stand by its verdict and that "reasonable doubt does not mean all doubt." 50 Scruggs appealed his conviction, arguing among other things that the verdict was not unanimous and that the trial court had coerced the jurors into voting in open court. The Court of Appeals of Georgia ruled that the jurors had clearly agreed to the verdict, and that even reluctant agreement is sufficient. Scruggs v. State, 181 Ga.App. 55, 351 S.E.2d 256 , 258 (1986). The court also found no error in the trial judge's conduct of the poll, Id. 351 S.E.2d at 257, and the judgment was affirmed. 51 Scruggs initiated the present action by petitioning the district court for a writ of habeas corpus under 28 U.S.C. Sec. 2254, claiming that he had been convicted without due process in violation of the fourteenth amendment. The petition sought relief based upon the same grounds that Scruggs had urged on appeal: that the verdict was not unanimous and that it was the result of coercion. The case was referred to a magistrate. Finding the record complete and an evidentiary hearing unnecessary, the magistrate issued a report recommending that the petition be granted. The magistrate concluded that (1) Georgia's guarantee of a unanimous verdict is safeguarded by the constitution, (2) the jury's verdict was not unanimous (citing Edwards ), and (3) the judge's questions improperly invaded the jury's deliberations by effectively forcing jurors to vote in open court (citing Edwards and Sexton ). The state filed objections to the magistrate's findings, but the district court adopted the magistrate's report and granted the writ. The state now appeals. II. APPLICABILITY OF EDWARDS AND SEXTON 52 The court below found the jury poll in this case similar in key ways to those in Edwards and Sexton. As a result, it felt bound by precedent to order a new trial, as had been done in those cases. The state contends that the district court's reliance on Edwards and Sexton was misplaced because both involved interpretations of Rule 31(d) of the Federal Rules of Criminal Procedure ("Rule 31(d)"), not the due process clause of the fourteenth amendment. We agree; neither decision is controlling in this case. 53 In order to have his state conviction set aside under 28 U.S.C. Sec. 2254, the petitioner must show that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. Sec. 2254(a). A state court does not violate federal law merely because it does not follow federal rules of procedure. By their own terms, the Federal Rules of Criminal Procedure only apply to federal courts. Fed.R.Crim.P. 1, 54(a). Indeed, the Supreme Court's authority to promulgate rules of procedure is limited to proceedings in federal court. 18 U.S.C. Secs. 3771, 3772. The Court has no such supervisory power over state court proceedings. Smith v. Phillips, 455 U.S. 209 , 221, 102 S. Ct. 940 , 948, 71 L. Ed. 2d 78 (1982). 54 Neither Sexton nor Edwards involved petitions for habeas corpus. Both were direct appeals from criminal trials in federal court, where federal rules of procedure governed. Each case was decided based upon Rule 31(d). 2 In Sexton, the Court of Appeals quoted Rule 31(d) in full at the outset of its ruling and cited the rule three times thereafter. 456 F.2d at 966-67 . The court did not mention any other provision of law. Id. In particular, the court did not cite the Constitution or refer to "due process." 55 In Edwards, the court also cited Rule 31(d) at the start, quoted it in full, and detailed the purposes served by the rule. 469 F.2d at 1366-67 . Immediately after quoting Rule 31(d), the court declared that it was following the holding of Sexton. This is further evidence that both decisions were based on an interpretation of the Federal Rules of Criminal Procedure. 56 Scruggs contends that a single sentence in Edwards shows that both it and Sexton established a constitutional standard: 57 In United States v. Sexton, 456 F.2d 961 (5th Cir.1972), this court held that forcing a juror to state his verdict in the presence of the court, without further deliberation with other jurors, amounts to coercion and denies a defendant due process. 58 Edwards, 469 F.2d at 1367 . This sentence plainly misstates the holding in Sexton. It erroneously suggests that the Sexton court found a violation of due process. As we have already observed, there is absolutely nothing in Sexton to suggest a constitutional basis for the court's decision. We conclude that the lone reference in Edwards to due process was merely inadvertent. Reading Edwards and Sexton as a whole, it is clear that both cases were decided under Rule 31(d). As a result, neither decision sets the standard applicable to this habeas action by a state prisoner. III. DUE PROCESS 59 The district court mistakenly relied on Rule 31(d) cases to find a violation of due process, but that does not necessarily mean that no violation of due process occurred. Due process requires that state criminal prosecutions be fundamentally fair. Applying this standard, we turn now to the two issues presented by Scrugg's petition: whether the trial judge coerced jurors into voting guilty, and whether the jury unanimously found Scruggs guilty beyond a reasonable doubt. A. Coercion 60 A trial by jury is fundamental to the American scheme of justice and is an essential element of due process. Duncan v. Louisiana, 391 U.S. 145 , 88 S. Ct. 1444 , 20 L. Ed. 2d 491 (1968). A trial judge's efforts to coerce reluctant jurors into delivering a verdict may sufficiently invade the province of the jury so as to deny the defendant fundamental fairness. Here, however, the trial judge did not speak to the jurors until after they had reached a verdict through private deliberations. All twelve jurors voted for conviction during those deliberations, as the jury poll clearly indicates. Scruggs does not argue, and the record does not suggest, that any juror was coerced in the jury room or even was coerced into acknowledging that she had previously voted to convict. 61 Instead, Scruggs contends that during the poll the trial judge coerced jurors Beard and Mayo into reaffirming their votes after they had expressed doubts. We find little or nothing coercive in the questions asked by the trial court. Juror Beard was the only person questioned at length. The judge asked her two leading questions, but they led in different directions: first, "In other words, you're saying that is not your verdict?," and later, "So if that is your verdict...." Even if we assume that coercion at this stage in proceedings could render the trial fundamentally unfair, we conclude that the judge's questioning in this case was not sufficiently coercive to violate due process. Cf. Edwards, 469 F.2d 1362 (finding coercion under Fed.R.Crim.P. 31(d)); Sexton, 456 F.2d 961 (same). B. Reasonable Doubt 62 Scruggs contends that the verdict against him was not unanimous because two jurors, jurors Beard and Mayo, stated that they had doubts. Although the Constitution does not guarantee state defendants the right to a unanimous jury verdict, Apodaca v. Oregon, 406 U.S. 404 , 92 S. Ct. 1628 , 32 L. Ed. 2d 184 (1972) (upholding felony verdicts of 11-1 and 10-2), it does require that criminal charges be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358 , 361-62, 90 S. Ct. 1068 , 1070-72, 25 L. Ed. 2d 368 (1970). When a juror states during a jury poll that he voted with reasonable doubt, that vote is invalid. Sincox v. United States, 571 F.2d 876 , 877-79 (5th Cir.1978). 63 When juror Beard stated during the polling of the jury that the verdict was her verdict, but that she had "some doubts," the trial judge gave her an explanation of the appropriate law--i.e., that the standard is beyond a reasonable doubt, not beyond all doubt. With that explanation, she readily affirmed that the verdict was her verdict. The most plausible interpretation of juror Beard's answers is that while she had some doubt, she was persuaded beyond a reasonable doubt. The trial judge, explicitly applying the correct standard, so found. In a habeas corpus proceeding, the burden is on petitioner to establish a constitutional violation. Hill v. Linahan, 697 F.2d 1032 , 1036 (11th Cir.1983). With respect to juror Beard, Scruggs has failed to meet his burden of proof. 64 Scruggs makes the same argument with respect to juror Mayo. Juror Mayo stated affirmatively that the verdict was her verdict, but when asked whether it was freely and voluntarily entered, she responded that it was freely and voluntarily entered, but "with doubt." The argument has greater force with respect to Mayo because the trial judge did not repeat to her the explanation previously given to juror Beard. However, it is apparent from the record that the polling was conducted with all jurors present. Thus, it is obvious that juror Mayo also heard the explanation previously given to juror Beard. The most plausible interpretation is that juror Mayo understood the previous colloquy with Beard and the charge to the jury, and that juror Mayo, like Beard, had some doubt but not a reasonable doubt. The trial judge, who clearly understood the correct standard, so found. We conclude that Scruggs has failed to meet his burden of proving a constitutional violation with respect to juror Mayo. 65 For the foregoing reasons, the judgment of the district court is 66 REVERSED. * Judge Robert S. Vance was a member of the panel which heard oral argument but due to his death on December 16, 1989, did not participate in this decision. This case is decided by a quorum. See 28 U.S.C. Sec. 46(d) ** Honorable Seybourn H. Lynne, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation 1 The court's complete instructions on reasonable doubt are set forth below: Now, Members of the Jury, the defendant enters into the trial of this case with a presumption of innocence in his favor, and that presumption remains with him throughout the trial of the case until his guilt is established by the evidence beyond a reasonable doubt. The burden is upon the State to prove every material allegation in the bill of indictment against the defendant to a moral and reasonable certainty and beyond a reasonable doubt. I Charge you a reasonable doubt is a doubt of a fair minded, impartial juror, who is honestly and diligently seeking the truth. It is not a fanciful, arbitrary, or capricious doubt, but is such a doubt that arises from the evidence, or the want of evidence, or from a conflict of the evidence. If, after considering all the evidence, facts, and circumstances of the case, your minds are wavering, unsettled and unsatisfied, it would be your duty to give the defendant the benefit of that doubt and acquit him. If you do not entertain such a doubt as that, and you believe beyond a reasonable doubt that he is guilty as charged, it would be your duty to find him guilty. A moral and reasonable certainty is all that can be expected in a legal investigation. The true question in all criminal cases is not whether it be possible that the conclusion to which the evidence points may be false, but is whether the evidence is sufficient to, and does, satisfy your minds and consciences to a moral and reasonable certainty and beyond a reasonable doubt that the defendant is guilty as charged. The lack of consent on the part of the female is an essential element of the crime of rape, and the burden is on the State to show a lack of consent on the part of the alleged female victim beyond a reasonable doubt; and if the State fails to prove such beyond a reasonable doubt, then you should acquit the defendant. Transcript 160-161, 167. 2 Subdivision (d) provides: (d) Poll of Jury. When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged. Fed.R.Crim.P. 31(d).
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| 542,038 |
Anderson, Lynne, Vance
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| 0 |
Willie Lee Scruggs v. Doug Williams, Warden
| null |
Willie Lee SCRUGGS, Petitioner-Appellee, v. Doug WILLIAMS, Warden, Respondent-Appellant
| null | null |
<parties id="b1494-11">
Willie Lee SCRUGGS, Petitioner-Appellee, v. Doug WILLIAMS, Warden, Respondent-Appellant.
</parties><br><docketnumber id="b1494-14">
No. 89-8251.
</docketnumber><br><court id="b1494-15">
United States Court of Appeals, Eleventh Circuit.
</court><br><decisiondate id="b1494-16">
June 22, 1990.
</decisiondate><br><attorneys id="b1495-22">
<span citation-index="1" class="star-pagination" label="1431">
*1431
</span>
Paula K. Smith, Asst. Atty. Gen., William Hill, Deputy Atty. Gen., Susan Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.
</attorneys><br><attorneys id="b1495-23">
Michael M. Worth, University of Georgia Law School, Prisoner Legal Counseling Project, Athens, Ga., for petitioner-appel-lee.
</attorneys><br><judges id="b1495-25">
Before VANCE
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
and ANDERSON, Circuit Judges, and LYNNE
<a class="footnote" href="#fn**" id="fn**_ref">
**
</a>
, Senior District Judge.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b1495-19">
Judge Robert S. Vance was a member of the panel which heard oral argument but due to his death on December 16, 1989, did not participate in this decision. This case is decided by a quorum.
<em>
See
</em>
28 U.S.C. § 46(d).
</p>
</div><div class="footnote" id="fn**" label="**">
<a class="footnote" href="#fn**_ref">
**
</a>
<p id="b1495-28">
Honorable Seybourn H. Lynne, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.
</p>
</div></div>
| null | null | null | null | null | null | 507,864 |
89-8251
| 1 |
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Eleventh Circuit
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Court of Appeals for the Eleventh Circuit
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4,421,480 |
In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-19-00016-CR TIMOTHY DECARLOS SIMS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 27895 Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION After a jury found Timothy Decarlos Sims guilty of aggravated assault causing serious bodily injury, he was sentenced to eighty years’ confinement in prison. In his sole point of error on appeal, Sims contends the trial court abused its discretion when it repeatedly admonished him in the presence of the jury. 1 Because we find there was no abuse of discretion, we affirm the trial court’s judgment. Sims contends there were several instances during trial when the trial court abused its discretion by admonishing him in front of the jury. 2 According to Sims, the trial court’s repeated admonishments “may well have affected the juries [sic] consideration on guilt[/]innocence, and almost certainly affected the jury’s consideration in punishment.” We disagree. The record shows that there were several times Sims muttered or mumbled out loud during trial, but received no admonishment from the trial court. Sims points out, however, that on some occasions, when he spoke or mumbled during a witness’ testimony, he “was met with an immediate 1 The bulk of Sims’ appellate brief raises issues related to a civil application for a protective order filed by the victim in this case, which is not at issue on appeal. Although we find no application for protective order in the record, prior to the commencement of the jury trial, the trial court discussed with the parties, outside the presence of the jury, that it intended to carry the application for protective order through to the end of Sims’ criminal trial, making a decision on the application on the completion of the trial. The trial court admonished the parties that they were to refrain from referring to the application while in the jury’s presence. The record shows that the parties complied with the trial court’s admonishments. On appeal, Sims contends the trial court erred when it failed to appoint an attorney, or to allow him to represent himself, in relation to the application for the protective order. However, because Sims appeals his judgment of conviction for aggravated assault causing bodily injury, as opposed to any perceived error regarding the separate issue of the protective order, we decline to address his argument. 2 We analyze questions committed to the trial court’s exercise of discretion by inquiring whether the trial court acted without reference to guiding rules and principles or, stated otherwise, whether the court acted arbitrarily or unreasonably. See Lyles v. State, 850 S.W.2d 497 , 502 (Tex. Crim. App. 1993). If a trial court’s discretionary ruling falls “within the zone of reasonable disagreement,” we must affirm. Wheeler v. State, 67 S.W.3d 879 , 888 (Tex. Crim. App. 2002); Burks v. State, 227 S.W.3d 138 , 144 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). 2 or subsequent admonishment from the Court, often in front of the jury.” Those admonishments, according to Sims, were noticed by the jury and prejudiced the jury against him. During one instance, the trial court stated, “[Counsel], we’ve had a number of discussions off the record regarding your client’s conduct. Could you please visit with him again about him making statements and comments in open court[?]” The record shows that counsel complied with the trial court’s request, and for a time, Sims appeared to remain in control of his behavior. Sims also points to a particular instance when the victim in the case spoke directly to Sims while she was testifying, stating, “You’re not coming back no more. You’re not going to ruin my life no more. I’m tired. I can’t take the mental abuse anymore.” Sims complains that he was not allowed to respond or object to her direct statements to him. The record shows, however, that Sims’ counsel objected to the testimony as nonresponsive. The trial court sustained the objection and then instructed the witness to “[j]ust answer [the] question.” There were some instances when the trial court attempted to address Sims’ behavior outside the presence of the jury. At one point when Sims was mumbling out loud, the trial court interrupted the witness’ testimony and asked counsel to approach the bench. The trial court then stated, “[T]his is the third time since we started that your client continues to spit or laugh and make noises. Even right now he’s talking -- muttering under his breath and making comments directed towards the jury.” The court continued, “I will ask that you do your best to stop him from doing that. I know you will.” As to that specific incident, Sims maintains the trial court “[improperly] admonished [him] in front of the jury for attempting to participate in a trial which he had the absolute right to 3 do so.” (Emphasis added). Despite Sims’ contention, we fail to see how spitting, laughing, or making noises in front of a jury could be construed as “participating” in the proceedings. Moreover, during the State’s closing argument, Sims was “sobbing loudly and mumbling,” prompting the trial court to call defense counsel and the State to the bench and speak with them outside the hearing of the jury. The trial court stated, [Counsel], your client is inconsolable. He is crying and sobbing out loud and calling out Jesus’ name and so on and so forth. He indicated the desire to leave the courtroom a moment ago. The deputy stopped him. If he wants to leave, he certainly can do so. It’s entirely up to him . . . . A trial court has the power and obligation to control the courtroom for the purposes of ascertaining the truth, promoting judicial economy, and protecting witnesses. Rule 611(a) of the Texas Rules of Evidence states: The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. TEX. R. EVID. 611(a). In a similar vein, this Court has previously recognized that, “[a]lthough the trial judge has the inherent power to control the orderly proceedings in the courtroom, he should always be careful not to jeopardize the rights of the parties by criticizing or embarrassing [them] in front of the jury.” Gonzales v. State, 2 S.W.3d 600 , 607 (Tex. App.—Texarkana 1999, pet. ref’d). “Nonetheless, to constitute reversible error, a comment by the trial judge must be calculated to injure the rights of the accused or it must appear from the record that the accused has not had a fair and impartial trial.” Id. (citing Billings v. State, 725 S.W.2d 757 , 763 (Tex. App.—Houston [14th Dist.] 1987, no pet.)). 4 Here, the trial court made repeated attempts—over the course of the trial—to ensure that Sims acted in a nondisruptive fashion and in accordance with the procedural and evidentiary requirements of the forum. Based on the remarks made here, we cannot say that they were calculated to injure Sims’ rights or that Sims did not have a fair and impartial trial because of them. We therefore find that these remarks did not deprive Sims of a “substantial right” and that any alleged error in their making was harmless. We overrule Sims’ point of error. We affirm the trial court’s judgment. Josh R. Morriss, III Chief Justice Date Submitted: July 29, 2019 Date Decided: July 31, 2019 Do Not Publish 5
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Timothy Decarlos Sims v. State
| null | null | null | null | null | null | null | null | null | null | null | 15,992,317 |
06-19-00016-CR
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Court of Appeals of Texas
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Court of Appeals of Texas
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3,172,038 |
Filed 1/25/16 P. v. Hamilton CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, B260657 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA396475) v. ALBERT HAMILTON, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County. George G. Lomeli, Judge. Affirmed. Hancock and Spears, Alan E. Spears for Defendant and Appellant. No appearance for Plaintiff and Respondent. After a jury trial, defendant Albert Hamilton (defendant) was convicted on a charge that he inflicted corporal injury on a spouse/cohabitant, and the jury found true several alleged sentencing enhancements. Defendant’s attorney on appeal filed an opening brief pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende) that raised no issues and asked us to independently review the record. We invited defendant to submit a supplemental brief and he has, arguing various claims that in his view warrant reversal. We summarize the facts below and we explain why defendant’s contentions lack merit. BACKGROUND A. The Offense Conduct Defendant and the victim had been dating for about three years and lived in separate houses that were several blocks apart. They stayed at defendant’s house when they wanted to be together. The victim worked at a liquor store, and on April 11, 2012, defendant picked her up when she got off work. They traveled to his house and sat in his car drinking and listening to some music; the electricity had been turned off in defendant’s house. Defendant and the victim began arguing when defendant became angry because the victim accused defendant of being bisexual. They left defendant’s car and went into his house, where the argument continued. Defendant took a picture frame and broke it on the victim’s face, and then used a piece of the frame’s broken glass to cut her on the side of her face.1 She was bleeding, and defendant tried to wash her face. Afterwards, she had sex with defendant because she did not want to upset him any further. When she woke up the next morning and saw how serious the cut on her face was, she went to a 1 At trial, the victim recanted her statements to the police and hospital personnel— and while testifying at the preliminary hearing in the case—accusing defendant of cutting her, variously claiming that she could not recall what happened or that defendant did not cut her face with glass from the picture frame. The victim also denied at trial her previous statement that defendant told her to tell the authorities that she sustained the injury when she fell against a glass table. 2 hospital where medical personnel treated her wounds with stitches to her face, ear, and lip. Defendant, who also travelled to the hospital, was arrested by the police. Detective Margrita Ramirez was assigned to investigate the incident between defendant and the victim. Detective Ramirez served a search warrant at defendant’s home after the incident and found a picture frame with blood smeared on it and shard of glass stuck to the frame with a strand of hair that matched the color of the victim’s hair. The detective also observed blood smeared on a wall and more blood in a bathtub. Glass on top of a coffee table at the residence was intact, meaning there were no broken pieces of glass around it or on it. B. Procedural History The Los Angeles County District Attorney charged defendant in a two-count second amended information. Count 1 charged defendant with corporal injury to a spouse/cohabitant (Penal Code § 273.5,2 subd. (a)), with the further allegation that he used a dangerous weapon in the commission of the offense (§ 12022, subd. (b)(1)), and that he inflicted great bodily injury in the commission of the offense (§ 12022.7, subd (e)). Count 2 charged defendant with forcible rape (§ 261, subd. (a)(2)). The amended information further alleged as to both counts that defendant had a prior conviction for a serious or violent felony (§§ 667, subds. (a)(1), (b)-(i)), 1170.12, subds. (a)-(d)); that the offenses were serious and violent felonies or an offense requiring registration pursuant to section 290, subdivision (c); and that any time in custody must be served in state prison pursuant to section 1170, subdivision (h)(3). Prior to trial, defendant made a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess) for discovery of the personnel records of Officer Margrita Ramirez, the officer who responded to defendant’s apartment and who spoke with the victim. The trial court found good cause for disclosure of any complaints, and 2 All further statutory references that follow are to the Penal Code. 3 ordered an in camera hearing. After conducting the in camera hearing, the court concluded no materials needed to be turned over to defense counsel in discovery. After hearing the evidence presented during a four-day trial, the jury found defendant guilty on Count 1, the corporal injury to a spouse/cohabitant charge. The jury further found true the use of a dangerous weapon and infliction of great bodily injury allegations in connection with that count. The jury returned a verdict of not guilty on Count 2, the forcible rape charge. Defendant made a Marsden3 motion and a motion for new trial, both of which were denied. The court found the allegation that defendant suffered a prior conviction true. The court granted defendant’s Romero4 motion, and sentenced defendant to an aggregate term of thirteen years, consisting of the midterm of three years, plus five years under section 667 for defendant’s prior conviction, four years for the great bodily injury enhancement, and one year for the enhancement alleging he used a dangerous weapon in the commission of the offense. The court imposed a restitution fine pursuant to section 1202.4, subdivision (b), imposed and stayed a parole revocation fine pursuant to section 1202.45, imposed a $40 court operations assessment pursuant to section 1465.8, subdivision (a)(1), a $30 criminal conviction assessment pursuant to Government Code section 70373, and a $400 domestic violence fund fine pursuant to section 1203.097. Defendant was ordered to provide a DNA sample pursuant to section 296, and was granted 838 days of actual custody and 126 days of conduct credits for total credits of 964 days. DISCUSSION We appointed counsel to represent defendant on appeal. After examining the record, defendant’s attorney filed an opening brief raising no issues but asking that our 3 People v. Marsden (1970) 2 Cal. 3d 118 (Marsden). 4 People v. Superior Court (Romero) (1996) 13 Cal. 4th 497 (Romero). 4 independent review include the Pitchess proceedings in the trial court. On September 14, 2015, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider. Defendant submitted a handwritten brief, filed October 5, 2015, asserting various errors in the proceedings below.5 Although defendant’s contentions of error are often difficult to decipher, he appears to argue: (1) a police report prepared by Detective Ramirez was not disclosed to the defense in discovery, (2) the trial court erred in denying his motion for new trial because the evidence was insufficient and the court improperly deferred to the jury’s credibility findings, (3) some of the trial court’s minute orders do not “match up” with what 5 After the 30-day deadline to submit a supplemental brief expired, defendant on three occasions submitted additional materials to the court. On November 9, 2015, the court received five volumes of materials from defendant that he characterized as exhibits in support of his supplemental brief. By order dated November 25, 2015, we construed defendant’s submission as a motion to augment the record and denied the motion. On December 9, 2015, after the cause had been submitted, the court received a 19- page handwritten submission from defendant with several attachments. Defendant’s submission asserts that a court reporter who transcribed the proceedings in the trial court prepared a “false” or “altered” set of trial transcripts. Defendant also reprises the argument made in his October 5, 2015, supplemental brief that the trial court erroneously denied his new trial motion. Permission to file the untimely December 9, 2015, submission is hereby denied. Were we to consider the submission, we would hold its claims of altered and falsified transcripts are meritless. On December 30, 2015, the court received another handwritten submission from defendant that again argued the court reporter had altered or falsified trial transcripts. In defendant’s 8-page submission (which attaches a trial court order), defendant asks that we order the trial court to provide him with “microfilm court reporter transcripts of the proceedings. . . . ” Defendant further argues his appellate attorney was constitutionally ineffective for filing a Wende brief and asks this court to appoint new counsel. Permission to file the untimely December 30, 2015, submission is hereby denied. Were we to consider the submission, we would hold its arguments for relief are meritless. 5 transpired during court proceedings, and (4) trial counsel provided constitutionally ineffective assistance.6 We briefly describe why each of defendant’s contentions fails. A. Detective Ramirez Report Detective Ramirez was assigned to investigate the incident between defendant and the victim on April 13, 2012, and the detective attempted to interview the victim by phone on that date. The victim told Detective Ramirez she did not have time to talk. Four days later, on April 17, 2012, Detective Ramirez interviewed the victim in person at her home. Ramirez had with her the original arrest report dated April 12, 2012, that had been written by other investigators. Based on both contacts with the victim, Detective Ramirez testified that she prepared two reports, one dated April 13 and another dated April 17, 2012. Defendant complains that the prosecution did not provide to the defense a third police report that Detective Ramirez allegedly prepared. Defendant’s contentions lack merit. Defendant raised the issue of the purportedly missing police report in his new trial motion. At the hearing on that motion, the prosecution explained that there was no “third report.” Rather, on an occasion when Detective Ramirez spoke to defendant, she wrote down what he told her on the reverse of the face sheet of the original arrest report in the case and then asked defendant to review the statement and sign it. The trial court found that it was likely Detective Ramirez did not consider the statement signed by defendant, written on the back of the face sheet of the arrest report, to be a separate report when asked while testifying how many reports she had written. The trial court further found, based on the prosecution’s representations, that the handwritten statement had been turned over to the defense in discovery. We see no error in either of these findings. 6 At several places in his supplemental brief, defendant presents other conclusory claims of error, sometimes just a heading with no further relevant discussion, e.g., “Judicial Misconduct.” We need not and do not address these claims. 6 B. Motion for New Trial A trial judge “has broad discretion in ruling on a new trial motion, and the court’s ruling will not be overturned absent a clear and unmistakable abuse of that discretion. [Citation.] The court abuses its discretion, however, where it misconceives its duty, applies an incorrect legal standard, or fails to independently consider the weight of the evidence. [Citation]” (People v. Carter (2014) 227 Cal. App. 4th 322 , 328 (Carter).) Defendant contends the trial court erroneously denied his motion for a new trial arguing insufficiency of the evidence. Defendant’s motion claimed the evidence was insufficient because the victim recanted at trial her prior statements that demonstrated defendant was responsible for cutting her face. The trial court was entitled to rely, however, on the victim’s prior statements to investigators and her preliminary hearing testimony—all of which were consistent in identifying defendant as responsible for cutting her—notwithstanding the victim’s trial testimony. (Evid. Code § 1235; see also People v. Brown (2004) 33 Cal. 4th 892 [referencing the tendency of domestic violence victims to later recant or minimize their descriptions of that violence].) Citing Carter, however, defendant argues the trial court did not make an independent assessment of the evidence and instead deferred to the jury’s determination concerning the victim’s credibility. Certain of the trial court’s comments, taken in isolation, would give that impression. For instance, the trial court stated “that the victim was quite steadfast in her testimony at trial that what happened to her was an accident and that the story or the statement that she made to the police was incorrect or they misheard it, but the credibility of that witness wasn’t—was a judgment to be made by the jurors. And in this case, there was evidence that the victim had told quite a different story not once, not twice, but three times to the police to the nurse and then in vivid detail at the preliminary hearing.” But viewed in full, the record of the new trial motion hearing indicates the court understood its obligation to independently consider the evidence. The court expressly stated at the outset of the hearing that it had reviewed the new trial motion and the People’s opposition, and both filings set forth the correct “thirteenth 7 juror” standard the court should apply in deciding the motion. (See, e.g., People v. Robarge (1953) 41 Cal. 2d 628 , 633; Carter, supra , 227 Cal.App.4th at p. 327.) The trial court’s comments also indicate the court had itself considered issues concerning the victim’s credibility: “The story that [the victim] kind of fell on a coffee table or even on a picture frame would not explain the shape of the injury in this case. That was, I think, a point that was quite well made in arguments by counsel. [¶] And the story that the victim told, other than when she got to court, was, basically, consistent to the police, the nurse and during the preliminary hearing.” There is nothing in the court’s comments that would suggest this case involves a situation akin to the facts in Carter, where the trial court stated it found alibi evidence credible and had a reasonable doubt about the defendant’s guilt but nevertheless denied the defendant’s new trial motion. ( Carter, supra , 227 Cal.App.4th at pp. 327-328.) We accordingly hold there was no abuse of discretion. C. Claimed Discrepancies between Transcripts and Minute Orders Defendant asserts a July 5, 2012, minute order does not accurately reflect the proceedings that transpired in court on that date. Defendant is incorrect. The record contains a version of a July 26, 2012, minute order correcting the July 5, 2012, order nunc pro tunc to include the section 261, subdivision (a)(2) charge. Defendant appears to also take issue with a July 10, 2012, minute order claiming that a transcript of the proceedings will: “properly reflect the details of the statement about the L.A.P.D. police sex report from L.A.P.D. Detective Ramirez-Mendoza on 4/13/2012, by Angela Jordan (DA), on July 10, 2012. The L.A.P.D. DR-numbers [that] match the L.A.P.D.-arrest police report[] number are, #XX-XXXXXXX. This is factual evidence of courts records.” Defendant does not specify the purported error in the minute order or transcript, and in any event, we have already discussed why defendant’s claims about the Detective Ramirez police report fail. 8 D. Ineffective Assistance of Trial Counsel Defendant’s supplemental brief argues trial counsel provided ineffective assistance of counsel. The precise nature of the claimed ineffective assistance is not clear, but it appears defendant believes his attorneys should have made greater or different use of Detective Ramirez’s April 13, 2012, police report. (We assume defendant means either the report itself or defendant’s written statement on the back of the original arrest report, see ante, at p. 6.) The record does not support defendant’s contention that counsel provided constitutionally deficient representation during the trial court proceedings. (Strickland v. Washington (1984) 466 U.S. 668 , 686; People v. Mendoza Tello (1997) 15 Cal. 4th 264 , 266-267.) To the extent defendant’s claim is based on matters outside the record, it is more appropriately assessed in a habeas corpus proceeding that permits, where circumstances warrant, the relevant facts to be developed. (People v. Mendoza Tello, supra , at pp. 266-267.) E. Pitchess Hearing In his Wende brief, counsel for defendant specifically requested that we review the Pitchess proceedings in connection with our independent examination of the record. We have done so, including the transcript of the in camera hearing conducted August 30, 2012, which we find constitutes an adequate record of the trial court’s review of any documents provided to it. The record reveals no abuse of discretion. F. Conclusion We have examined the record and are satisfied defendant’s attorney on appeal has complied with the responsibilities of counsel and no arguable issue exists. (People v. Wende (1979) 25 Cal. 3d 436 , 441; see also Smith v. Robbins (2000) 528 U.S. 259 , 278- 282; People v. Kelly (2006) 40 Cal. 4th 106 , 122-124.) 9 DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS BAKER, J. We Concur: TURNER, P.J. KUMAR, J. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 10
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People v. Hamilton CA2/5
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B260657
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California Court of Appeal
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California Court of Appeal
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2,655,452 |
Case: 12-50668 Document: 00512548863 Page: 1 Date Filed: 03/03/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 12-50668 March 3, 2014 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff – Appellee v. JOSHUA DEVON BARROW, also known as JJ, Defendant – Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:10-CR-345 Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges. PER CURIAM:* At the time appellant Joshua Barrow pleaded guilty to a drug offense, the district court advised him that he faced a twenty-year minimum sentence, in accordance with the statutory minimum then in effect. By the time Barrow was sentenced, the Fair Sentencing Act of 2010 (“FSA”) had lowered the mandatory minimum for Barrow’s crime, which now required a ten-year minimum sentence. Barrow was sentenced to ten years as per the revised statute. Barrow seeks resentencing on the grounds that his plea was not * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 12-50668 Document: 00512548863 Page: 2 Date Filed: 03/03/2014 No. 12-50668 knowing and voluntary because it was made pursuant to misinformation that a higher mandatory minimum would apply. We AFFIRM Barrow’s conviction and sentence. I On December 15, 2010, a federal grand jury indicted Joshua Barrow for the offense of conspiracy to distribute and to possess with intent to distribute fifty grams or more of crack cocaine from January 1, 2009, until July 31, 2010, in violation of 21 U.S.C. §§ 841 (a)(1), 841 (b)(1)(A), and 846. The prosecution filed a Sentencing Enhancement Information that same day, alleging that Barrow had been convicted in 2005 of a felony drug offense for possession of more than one gram but less than four grams of a controlled substance. The Information notified the court and the defense that upon Barrow’s conviction for conspiracy, the prosecution intended to request a sentencing enhancement based on Barrow’s prior conviction. Pursuant to § 841(b)(1)(A) as it existed at the time, this would require a minimum sentence of twenty years and a maximum term of life imprisonment. The parties filed a Plea Agreement in the district court on April 21, 2011, that noted Barrow’s agreement to plead guilty to the charge in the Indictment and his understanding that the applicable minimum and maximum prison sentences for his offense were twenty years to life imprisonment. Barrow was rearraigned that same day. In a colloquy with the magistrate judge, Barrow affirmed that he understood that the statutory range of punishment applicable to his offense was twenty years to life imprisonment. Barrow then entered a guilty plea pursuant to the terms of the Plea Agreement. In the factual summary contained in the Plea Agreement, Barrow acknowledged that on April 29, 2010, a confidential source working for the Midland Police Department contacted Barrow’s brother, Mandis Barrow, to 2 Case: 12-50668 Document: 00512548863 Page: 3 Date Filed: 03/03/2014 No. 12-50668 arrange the purchase of a quantity of crack cocaine. Mandis Barrow instructed the confidential source to pick up the crack cocaine from Joshua Barrow’s residence. At his brother’s direction, Joshua Barrow delivered 56.2 grams of crack cocaine to the confidential source for redistribution in Midland, Texas. The Addendum to the Presentence Report (“PSR”) reflects that Barrow objected to the paragraph included therein about the statutory term of imprisonment. His objection alleged that the FSA revisions to the punishment ranges for Barrow’s quantity of cocaine should be applied in determining Barrow’s statutory minimum punishment, despite the fact that the effective date of the FSA was after Barrow’s offense dates as alleged in the indictment. At that time, Fifth Circuit precedent was clear that the FSA did not apply retroactively to defendants whose offense preceded the FSA but were sentenced after the FSA’s enactment. 1 At Barrow’s sentencing on June 21, 2012, the prosecution advised the district court judge that the Supreme Court had ruled that very morning on the retroactivity of the FSA. In Dorsey v. United States, 2 the Court held that the reduced mandatory minimum penalties of the FSA, which lowered the crack-to-powder sentencing disparity, did apply to offenders whose crime preceded the effective date of the FSA but who were sentenced after that date. This decision overruled our circuit precedent to the contrary. 3 With the sentencing enhancement pursuant to Barrow’s prior conviction, the new statutory range applicable to Barrow’s crime involving fifty grams or more of crack cocaine was ten-years-to-life, not the twenty-years-to-life that 1 See United States v. Tickles, 661 F.3d 212 , 215 (5th Cir. 2011). 2 132 S. Ct. 2321 (2012). 3 Tickles, 661 F.3d at 215 . 3 Case: 12-50668 Document: 00512548863 Page: 4 Date Filed: 03/03/2014 No. 12-50668 applied before the FSA revisions. 4 The district court applied the reduced mandatory minimum sentence of the FSA pursuant to Dorsey and sentenced Barrow to ten years of imprisonment plus eight years of supervised release. Barrow timely appealed. He contends on appeal that his guilty plea must be vacated because of the district court’s error in advising him that he faced a minimum prison sentence of twenty years when the true term, under a retroactive application of the FSA, was ten years. II A. Standard of Review The standard of review that applies to this case is disputed. Federal Rule of Criminal Procedure 11 lays out the steps that a judge must take to ensure that a guilty plea is knowing and voluntary, and provides that any variance from its requirements is harmless error if it does not affect the defendant’s substantial rights. Although Rule 11 does not include a provision comparable to Fed. R. Crim. P. 52(b), which provides that plain error review applies to claims “not brought to the court’s attention,” the Supreme Court held in United States v. Vonn 5 that a defendant who lets Rule 11 error pass without objection in the trial court is subject to Rule 52(b)’s plain-error standard. Barrow argues that harmless error review applies because he preserved his claim by objecting to the PSR’s application of the twenty-year term on the grounds that a lower minimum applied pursuant to the FSA. The Government argues that plain error review is appropriate because Barrow neither objected at rearraignment to the Magistrate Judge’s advice that the statutory minimum 4 See 21 U.S.C. § 841 (a)(1). 5 535 U.S. 55 , 58–59 (2002). 4 Case: 12-50668 Document: 00512548863 Page: 5 Date Filed: 03/03/2014 No. 12-50668 term was twenty years, nor did he move to withdraw his guilty plea. We are not persuaded that Barrow was required to withdraw his guilty plea in order to preserve the error he alleges here. In United States v. Carreon- Ibarra, 6 we rejected an argument that defendant had forfeited harmless error review by not moving to withdraw his guilty plea before sentencing. Here, Barrow objected to the higher pre-FSA sentencing ranges being applied in the PSR, in a manner highly similar to Carreon-Ibarra’s objection: he invoked the statute but did mention Rule 11 or claim his plea was unknowing. Furthermore, the timing of the underlying events here was highly unusual, in that both the parties and the district court judge learned literally in the midst of the sentencing hearing that the Supreme Court had only minutes or hours beforehand overturned Fifth Circuit precedent and applied the FSA retroactively in Dorsey. The defendant bears the burden of establishing a fair and just reason for withdrawing his plea, 7 and before Dorsey Fifth Circuit precedent was clear that no such reason existed. 8 We thus apply the more searching harmless error review here. 6 673 F.3d 358 , 363 (5th Cir. 2012). 7 United States v. Brewster, 137 F.3d 853 , 858 (5th Cir. 1998). 8 Additionally, we have used general language about the principles underlying the preservation of Rule 11 error. See, e.g., United States v. Powell, 354 F.3d 362 , 367 (5th Cir. 2003) (characterizing United States v. Vonn, 535 U.S. 55 , 71–74 (2002), as holding that plain error review applies to Rule 11 objections raised for the first time on appeal and harmless error review applies to Rule 11 objections raised before appeal is taken); United States v. Marek, 238 F.3d 310 , 315 (5th Cir. 2001) (en banc) (“[Appellant] did not raise a challenge to the adequacy of the factual basis underlying her guilty plea in district court, either by making her plea conditional pursuant to Rule 11(a)(2) or by objecting thereafter, such as at her sentencing. Rather, she raised it for the first time on appeal. . . . [W]e will review that issue for plain error.”). Here, we conclude that Barrow’s PSR objection that he was informed of a twenty-year minimum when, he argued, the correct minimum was ten years fairly encompassed the concept that he was misinformed, which is by definition a Rule 11 error that by its own terms can render a defendant’s plea unknowing. 5 Case: 12-50668 Document: 00512548863 Page: 6 Date Filed: 03/03/2014 No. 12-50668 III Barrow claims his guilty plea must be vacated because the statutory twenty-year minimum of which the court advised him was higher than the statutory minimum of ten years that the court later determined to be correct in light of Supreme Court’s intervening interpretation of the FSA in Dorsey. This misinformation, he argues, rendered his plea unknowing, in violation of Rule 11. Harmless error review in this context involves a two-step inquiry: “(1) whether the sentencing court in fact varied from the procedures required by Rule 11 and (2) whether such variance affected the ‘substantial rights’ of the defendant.” 9 In evaluating “whether an error affects substantial rights, i.e., is harmful,” we look to “whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty.” 10 The Government must bear the burden of establishing the harmlessness of a preserved Rule 11 violation. 11 A. We first decide whether the district court erroneously varied from the procedures required by Rule 11. 12 Rule 11 provides that “[b]efore the court accepts a plea of guilty . . . the court must inform the defendant of . . . any mandatory minimum penalty.” 13 It is well-settled in this and other circuits that the district court committed Rule 11 error by advising Barrow that a higher, pre-FSA minimum sentence would apply, even though that was a correct statement of the law at 9 United States v. Powell, 354 F.3d 362 , 367 (5th Cir. 2003) (citation omitted). 10 Id. (citation omitted). 11 See United States v. Vonn, 535 U.S. 55 , 62–63 (2002). 12 Powell, 354 F.3d at 367 . 13 Rule 11(b)(1)(I). 6 Case: 12-50668 Document: 00512548863 Page: 7 Date Filed: 03/03/2014 No. 12-50668 the time of Barrow’s plea agreement. 14 B. We next determine whether the Rule 11 error was harmless, i.e. whether it affected Barrow’s substantial rights. 15 Unlike under plain error review, harmless error review does not require Barrow to show a reasonable probability that, but for the error, he would not have pleaded guilty. 16 But within our inquiry into whether the Rule 11 error affected Barrow’s substantial rights, we look to “whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty.” 17 “In other words, we examine the facts and circumstances of the case to see if the district court’s flawed compliance with Rule 11 may reasonably be viewed as having been a material factor affecting defendant’s decision to plead guilty.” 18 In United States v. Hughes, 19 we recently decided issues very similar to the claims Barrow raises here. At Hughes’s plea hearing, the district court 14 See, e.g., United States v. Hughes, 726 F.3d 656 , 661 (5th Cir. 2013) (holding that the district court committed plain error where it advised defendant that a higher mandatory minimum would apply when Dorsey later mandated that the lower FSA mandatory minimum apply); Johnson v. United States, 520 U.S. 461 , 468 (1997) (explaining that where the error is clear and obvious on appellate review, it satisfies the error prong of a Rule 11 inquiry); United States v. Escalante-Reyes, 689 F.3d 415 , 418 (5th Cir. 2012) (en banc) (same); United States v. Martinez, 277 F.3d 517 , 530 (4th Cir. 2002) (finding Rule 11(c)(1) error where the district court informed appellant that he faced a mandatory minimum sentence of ten years when the post-plea case of Apprendi v. New Jersey, 530 U.S. 466 (2000), directed that appellant face no mandatory minimum sentence). 15 Carreon-Ibarra, 673 F.3d at 366. The same question whether the error affected Barrow’s substantial rights applies if this Court uses plain error review, see United States v. Castro-Trevino, 464 F.3d 536 , 541 (5th Cir. 2006). 16 See United States v. Dominguez Benitez, 542 U.S. 74 , 76 (2004). 17 Carreon-Ibarra, 673 F.3d at 366 (citations omitted). 18 Id. (quotation marks, alterations, and citations omitted); see also United States v. Cuevas-Andrade, 232 F.3d 440 , 443 (5th Cir. 2000) (applying same standard in harmless error Rule 11 review). 19 726 F.3d 656 (2013). 7 Case: 12-50668 Document: 00512548863 Page: 8 Date Filed: 03/03/2014 No. 12-50668 informed him that he faced a mandatory sentence of ten years to life imprisonment if he pleaded guilty to conspiracy to distribute fifty grams or more of crack cocaine. 20 This sentencing range was correct prior to enactment of the FSA, but under the terms of the FSA, which was passed after Hughes’s offenses were committed but before he was sentenced, the new sentencing range was five to forty years of imprisonment. 21 Hughes moved to withdraw his plea on other grounds, and the motion was denied by the district court. 22 Hughes argued on appeal, among other claims, that his plea hearing was deficient under Rule 11 because the district court overstated the mandatory minimum and maximum sentences he faced, requiring vacatur of his plea. 23 Because Hughes raised this claim for the first time on appeal, we applied plain error review. 24 We held that although the district court committed Rule 11 error in advising Hughes of a sentencing range that Dorsey later determined to be incorrect, Hughes was not entitled to vacatur because he did not show a reasonable probability that, but for the Rule 11 error, he would not have pleaded guilty. 25 We denied Hughes relief because he could not “direct this court to any portion of the record supporting the proposition that the maximum sentence he faced affected his plea decision,” and we explained that “[i]n the absence of evidence of this sort of causation, we have declined to find vacatur warranted on the basis of similar Rule 11 errors, even in circumstances in which the district court’s error was far more prejudicial to the defendant than 20 Id. at 661 . 21 Id. 22 Id. at 659 . 23 Id. 24 Id. 25 Id. at 661–62. 8 Case: 12-50668 Document: 00512548863 Page: 9 Date Filed: 03/03/2014 No. 12-50668 was the case [for Hughes].” 26 Barrow presents an even weaker case for relief than Hughes. Hughes directly contended on appeal that, if he had not been told that he faced a higher sentence, he would not have pleaded guilty. 27 Barrow claims on appeal only that, had he been properly informed that a lower mandatory minimum would apply to his guilty plea, “he may very well have utilized the lighter sentence in deciding whether to plead guilty or go to trial,” and “he very well may have chosen to challenge the government’s evidence” at trial. Under harmless error review, we look to whether the error was a “material factor” in appellant’s decision to plead guilty. Thus, even under harmless error review, Barrow cannot show that the Rule 11 error “would have been likely to affect his willingness to plead guilty” or was a “material factor” affecting his decision when he does not even directly make that claim on appeal and did not move to withdraw his plea. 28 26 Id. at 662 (alterations, quotation marks, and citations omitted). 27 Id. at 661–62. 28 Case law from other circuits supports the conclusion that Barrow cannot show that his substantial rights were affected by the district court’s error. In United States v. Hogg, 723 F.3d 730 (6th Cir. 2013), for example, the court faced the same issue: Whether a district court’s Rule 11 error, in advising a defendant that a higher, pre-FSA mandatory minimum applied to his pre-Dorsey plea, was harmless. In surveying that circuit’s precedent in similar situations, the court noted patterns in cases where the court fell on either side of the harm inquiry. One salient series of decisions found the error to be harmless in the absence of any indication that the defendant would have declined the Government’s plea offer if accurately informed of the correct (lower) statutory penalty range. Id. at 748 . Error was also harmless where the defendant never claimed he would have refused the plea bargain had he been correctly informed, nor contended on appeal that the information would have altered his decision to plead guilty, nor indicated he was confused by the district court’s misstatements, nor attempted to withdraw his guilty plea. Id. See also United States v. Martinez, 277 F.3d 517 , 532–33 (4th Cir. 2002) (rejecting under plain error review appellant’s claim that had he known a lower minimum applied, he would have “calculated the risks and benefits of proceeding to trial differently”; the court declined to find this affected appellant’s substantial rights because he was facing eight separate criminal charges and a potential sentence far exceeding the mandatory minimum at issue). Barrow did none of these. 9 Case: 12-50668 Document: 00512548863 Page: 10 Date Filed: 03/03/2014 No. 12-50668 IV We affirm Barrow’s conviction and sentence. 10
|
opinion_html_with_citations
| 3,001 |
2014-03-04 22:50:39.904665+00
|
010combined
|
f
|
f
| 2,655,452 |
Higginbotham, Jolly, Per Curiam, Southwick
| null |
CU
|
f
|
Unpublished
| 0 |
United States v. Joshua Barrow
| null |
UNITED STATES of America, Plaintiff-Appellee v. Joshua Devon BARROW, Also Known as JJ, Defendant-Appellant
| null | null |
<parties id="b384-8">
UNITED STATES of America, Plaintiff-Appellee v. Joshua Devon BARROW, also known as JJ, Defendant-Appellant.
</parties><br><docketnumber id="b384-11">
No. 12-50668.
</docketnumber><br><court id="b384-12">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate id="b384-14">
March 3, 2014.
</decisiondate><br><attorneys id="b385-6">
<span citation-index="1" class="star-pagination" label="363">
*363
</span>
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.
</attorneys><br><attorneys id="b385-7">
Leon Schydlower, El Paso, TX, for Defendant-Appellant.
</attorneys><br><judges id="b385-9">
Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
</judges>
| null | null | null | null | null | null | 137,468 |
12-50668
| 1 |
ca5
|
F
|
t
|
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
5,349,561 |
Order unanimously reversed, with twenty dollars costs and disbursements, and motion denied. No opinion. Present — Martin, P. J., O’Malley, Glennon, Dore and Cohn, JJ.
|
opinion_xml_harvard
| 25 |
2022-01-08 06:33:32.473688+00
|
020lead
|
t
|
f
| 5,509,636 | null | null |
U
|
f
|
Published
| 0 |
Pacific Finance Corp. v. Cameo Cab Corp.
| null |
Pacific Finance Corporation v. Cameo Cab Corporation, Impleaded with Another
| null | null | null | null | null | null | null | null | null | 61,861,999 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
8,167,234 |
ORDER PER CURIAM. On March 17,1995, the Court affirmed the November 17, 1992, decision of the Board of Veterans’ Appeals (Board) which denied the appellants’ claims for entitlement to payment of educational assistance benefits under Public Law 101-366, Title II, § 207, 104 Stat. 442 (Aug. 15, 1990), as amended by Public Law 102-83, § 5(c)(2), 105 Stat. 406 (Aug. 6, 1991) (currently found at 38 U.S.C. § 3222 note). On January 21, 1997, the United States Court of Appeals for the Federal Circuit reversed the decision of the Court and remanded for an award of benefits. Tallman/Diffie v. Brown, 105 F.3d 613 (Fed.Cir.1997). On March 14, 1997, the Court of Appeals for the Federal Circuit issued its mandate. On consideration of the foregoing, it is ORDERED that the Board’s November 17, 1992, decision is REVERSED and this matter is REMANDED to the Board for an award of benefits in accordance with the January 21, 1997, decision of the Court of Appeals for the Federal Circuit.
|
opinion_xml_harvard
| 166 |
2022-09-09 21:01:42.417367+00
|
020lead
|
t
|
f
| 8,205,253 |
Farley, Holdaway, Nebeker
| null |
U
|
f
|
Published
| 0 |
Tallman v. Brown
|
Tallman
|
Wade C. TALLMAN, and Craig M. Diffie v. Jesse BROWN, Secretary Of Veterans Affairs
| null | null | null | null | null | null | null | null | null | 65,303,106 |
Nos. 92-1506 and 93-49
| 0 |
cavc
|
FS
|
t
|
Veterans Claims
|
United States Court of Appeals for Veterans Claims
|
9,653,306 |
PARKER, Circuit Judge. In February 1944, we entered a decree enforcing an order of the National Labor Relations Board which, in general terms, directed that the Wallace Corporation offer reinstatement with back pay to 43 named employees, who were found to have been discriminatorily discharged in violation of the terms of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. Wallace Corporation v. N. L. R. B., 4 Cir., 141 F.2d 87, affirmed by Supreme Court 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216. The Board has now made application for an order authorizing it to hold a hearing and make findings as to whether and to what extent ten of these employees wilfully incurred losses in their earnings, as to the amounts of back pay due to each of them, and as to whether the company’s offer of reinstatement made to five of them was in compliance with our decree. The Wallace Corporation, hereafter referred to as the company, opposes this application on the grounds that its failure to tender back pay to the ten employees was because they had voluntarily remained unemployed and had failed to make reasonable efforts to obtain employment during the back pay period, and that its failure to reinstate the five was because it had discontinued its wood dish department for business reasons and had no positions to which it could reinstate them. In support of its contentions, the company has filed affidavits in which are contained quotations from statements allegedly made by the employees in question, and in which the policy of the company with respect to back pay and reinstatement is fully set forth. The company asks that upon the facts therein stated the application of the Board be denied, particularly in view of the hardship involved, under the peculiar circumstances of the case, in the order of reinstatement. It asks, further, that any reference of the matters in dispute which may be ordered be to a commissioner of the court and not to the Board. It is admitted on all sides that the ten employees have not received back pay and that the five have not been reinstated. There is a controversy, however, as to the facts which would be decisive of the rights to back pay and reinstatement on the part of the employees concerned; and there has been no finding as to these facts. We are of opinion that they should be found by the Board, which should thereupon determine, as a part of the administrative process committed to it, what action should be taken to remove the effect of the unfair labor practices of which the company has been adjudged guilty in discharging these employees. Such findings and determination will be subject to review by us; and our decree heretofore entered will be modified or supplemented on such review as may be appropriate in the premises. It will be observed that, while we are granting the first portion of the prayer *954of the application, viz., that relating to the amount of back pay due-the ten employees of the company, and are authorizing findings with respect to the reinstatement controversy, we are not granting the second portion of the prayer, i. e.; we are not referring to the determination of the Board the question as to whether or not the action of the company with respect to the reinstatement of the five employees has been in accordance with our decree. That is not a question which arises in the exercise of administrative powers by the Board, but one which, if it were properly before us, we should determine ourselves in the exercise of one of our most important judicial powers, the power to punish for contempt. When we desire a finding made to serve as a basis for the exercise of that power, we shall either make it ourselves or have it made by a commissioner of our own appointment, whose findings will be subject to review by us under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and not under the statutory rule that they must be accepted if sustained by substantial evidence, whether we agree with them or not. When a court undertakes the serious business of punishing for contempt for disobedience of its orders, it should manifestly have complete control of the proceedings leading up to the punishment; and under no circumstances should it, directly or indirectly, farm out its powers over contempt to an administrative agency. The facts with respect to reinstatement which we authorize the Board to find, therefore, are facts upon which a modification of our original décree may properly be asked, not facts upon which an attachment for contempt might issue. The order of the Board which we have heretofore ordered enforced does not specifically provide what amounts are to be paid to the employees named or what positions are to be tendered to them, but covers these matters in general terms. General orders of this sort entered by the Board with respect to back pay and reinstatement manifestly contemplate further administrative action on its part, i. e. determination of the exact amount of back pay to be tendered and determination as to what positions are available and substantially equivalent for the purposes of the reinstatement ordered. Such general orders are analogous to interlocutory judgments of courts fixing liability but leaving for future determination questions as to amount of liability; and our decrees affirming or enforcing them are analogous to our affirmance of interlocutory judgments on appeal. After the general order of the Board for back pay and reinstatement is affirmed or ordered enforced by us, the Board must work out the details of' reinstatement and of the amounts to be paid as back pay under the general provisions of the order. This can ordinarily be done by negotiation; but, if controversy arises, the facts must be found by the Board, the body to which Congress has committed the administrative process. Phelps Dodge Corporation v. N. L. R. B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217. Under sec. 10(e) of N.L.R.A., 29 U.S.C.A. § 160(e), we are given power to refer the case back to the Board for the taking of additional evidence in order that such findings may be made; and we agree with the Second Circuit that, not until they have been made and our decree has been modified so as to prescribe definitely what the employer is to do, can he be said to be guilty of contempt in failing to comply with the order. N. L. R. B. v. New York Merchandise Co., 2 Cir., 134 F.2d 949, 952. As said by Judge Learned Hand in .the case cited: “We start with the premise that sec. 10 (c) makes the fixing of back pay a part of that ‘affirmative relief’ which is confided solely to the Board; so that no court should assume the duty, whether directly or through a master; we have as little power over it as over ‘equivalent employment.’ Phelps Dodge Corporation v. N. L. R. B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217. At some stage in the proceeding the Board must therefore fix it as an original tribunal and not as the surrogate of the court. However, in so performing this duty the Board must, as upon other issues, give the employer a hearing at which he may ‘adduce’ his evidence and be allowed to present his arguments; and until such a hearing has been had and a decision rendered fixing the amount, the 'employer cannot be guilty of contempt, be*955cause it is cardinal in that subject that no one shall be punished for the disobedience of an order which does not definitely prescribe what he is to do. McFarland v. United States, 7 Cir., 295 F. 648, 650; In re Olsen, 2 Cir., 70 F.2d 253; National Labor Relations Board v. Bell Oil & Gas Co., 5 Cir., 99 F.2d 56; Berry v. Midtown-Service Corporation, 2 Cir., 104 F.2d 107, 111, 122 A.L.R. 1341. So far as an enforcement order directs back pay to discharged employees it cannot therefore be interpreted as peremptory in the sense that will support a proceeding to punish for contempt. Pro tanto it is interlocutory, though it is final as to any of its other provisions that require no further definition. We cannot delegate to the Board power to fill in the amount of the back pay as a merely ministerial duty.” See also Marlin-Rockwell Corporation v. N. L. R. B., 2 Cir., 133 F.2d 258; Corning Glass Works v. N. L. R. B., 2 Cir., 129 F.2d 967; N. L. R. B. v. Condenser Corporation, 3 Cir., 128 F.2d 67, 78; Rapid Roller Co. v. N. L. R. B., 7 Cir., 126 F.2d 452, 461, 462; N. L. R. B. v. Newberry Lumber & Chemical Co., 6 Cir., 123 F.2d 831, 839. Whether questions affecting the duty to reinstate, as distinguished from ■questions relating to back pay, should be referred to the Board for findings or be heard in a contempt proceeding, is a matter which, as Judge Hand points out in the case above cited, has caused the courts some difficulty; but we think it clear that, where mere administrative determination is involved, these questions, as well as those relating to back pay, should be referred to the Board. We think it equally clear that, whether positions involving substantially equivalent employment are open or not so that the order of reinstatement can apply to them, and what sort of reemployment will wipe out the effects of unfair labor practices, are essentially administrative questions. Only after these have 'been answered, are we in position to direct the employer to take specific action of such a character that disobedience of our order will justify punishment for contempt. This was the decision of the Second Circuit in the case cited, which held that general orders as to reinstatement, as well as general back pay orders, were to be deemed interlocutory in character. Cases have come before us in which the Board has determined in its general order that employees are not entitled to reinstatement because the positions held by them have been abolished. No one would question the propriety of such a finding; and, if a finding with respect to such matter is proper in advance of a decree of enforcement, there is no reason why it should not be made after entry of the decree. Very much in point in this connection is the decision of this Court in the case of Mooresville Cotton Mills v. N. L. R. B., 4 Cir., 97 F.2d 959. In that case, we at first set aside a portion of the order of the Board directing the reinstatement of four employees, holding that as they had obtained substantially equivalent employment elsewhere, they were not entitled to reinstatement. 4 Cir., 94 F.2d 61, 66. On petition for rehearing, we vacated this portion of the decree and remanded the case to the Board for further findings on the equivalence of the employment obtained, saying: “ * * * we conclude, upon further consideration of the case, that our former decision should be modified. The statute contemplates that questions of fact should be decided by the Board and that these findings, if supported by evidence, shall be conclusive. Section 10(e). The equivalence of the employment of the four men above mentioned, as compared with their former positions, is a question of fact that must be decided in view of our construction of the Act; but as we now understand the situation, it has not been passed upon by the Board. We shall therefore remand the case to the Board for a determination of this matter.” 97 F.2d at page 963. Upon remand the Board made additional findings of fact which were upheld on petition for review. 4 Cir., 110 F.2d 179. Our last opinion in that case deals with questions of fact arising in connection with reinstatement of employees, and holds that these are matters for the decision of the Board. If the order with respect to reinstatement be regarded as final rather than interlocutory, however, we are nevertheless of opinion that the Board should be directed to make further findings with regard thereto in view of the changed conditions which *956have developed since the entry of the order. N. L. R. B. v. Harbison-Walker Refractories Co., 8 Cir., 137 F.2d 596. The wood dish department of the company has been abolished; and it may well be that the company is not in position to reinstate the five employees to positions that they held at time of discharge. If not, questions arise as to whether there are substantially equivalent positions in the company’s service; and as to what action should be taken, in view of changed conditions, to wipe out the effects of the unfair labor practice. These are questions to be answered by the Board in the exercise of its administrative power. Answers thereto may require that the Board’s order and our decree enforcing it be modified or supplemented; but action by the Board is a prerequisite to any modification or change of the decree on such grounds. American Chain & Cable Co. v. Federal Trade Commission, 4 Cir., 142 F.2d 909, 912. In the case cited, which involved the power of the court to modify a decree enforcing an order of the Federal Trade Commission,* and in which we held that a modification of our decree must 'be predicated upon a modification of the Commission’s order, we said: “We entertain no doubt as to the power of the Court to modify its enforcement decree as other decrees in equity are modified; but there must be sufficient ground shown for such modification and this is not done where no change is shown in the order, since the decree is based on the order, not on the conditions which called it forth. To hold otherwise, would be to clothe the Circuit Courts of Appeals with the administrative powers of the Commission in cases in which they have entered decrees of enforcement. It is more consonant with the intention of Congress, we think, to hold that modification of. enforcement decrees should be made only after the Commission has taken action under the provision of the statute above quoted, and that, in the meantime, the power of the Court with respect to modification is limited ordinarily to requiring that the Commission give consideration to matters said to require action on its part. Any action taken by the Commission would then be subject to review by the Court, as in the case of other orders, and any modification of the original orders, whether reviewed or not, would serve as a basis for the modification by the Court of its original decree.” We are not impressed with the argument that we should deny enforcement of the Board’s order because of the hardship involved in enforcing it. It is well settled that the court may not modify or refuse to enforce an order of the Board, even though it may not approve of the relief awarded, since this is a matter which Congress has intrusted to the Board. N. L. R. B. v. Bradford Dyeing Ass’n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; Virginia Electric & Power Co. v. N. L. R. B., 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568; N. L. R. B. v. Condenser Corporation of America, 3 Cir., 128 F.2d 67. See also El Moro Cigar Co. v. Federal Trade Commission, 4 Cir., 107 F.2d 429, wherein this court held that it was without power to order any delay in putting into effect a lawful order of the Federal Trade Commission. For the reasons stated, we deny the application in so far as it asks that we authorize the Board to make findings as to whether the company’s offer of reinstatement to the five named employees was in compliance with the court’s decree. Order will be entered), however, authorizing the Board to hold hearings and make findings as to the amount of back pay due Dorothy Nutter, Lilly Mollahan, Roxie Dodrill, Grace Trim-ble, Carrie Griffie,- Mabel Hinkle, Glenna Hanna Dickesson, Pearl Stewart, Ella Brown and Mary Facemire, and also as to what action should be taken by the company, in view of changed conditions,, with respect to the reinstatement of Dorothy Nutter, Roxie Dodrill, Grace Trimble, Glenna Hanna Dickesson and Ella Brown. Application granted in part and denied in part. The provisions for review by this Court of orders of the National Labor Relations Board are similar to those for review and enforcement of orders of the Federal Trade Commission. Cf. 29 U.S.C.A. § 160(e) (f), 15 U.S.C.A. § 45(c).
|
opinion_xml_harvard
| 2,804 |
2023-08-23 17:43:29.959728+00
|
020lead
|
f
|
f
| 1,565,883 |
Parker, Soper, and Dobie, Circuit Judges
| null |
LU
|
f
|
Published
| 17 |
Wallace Corp. v. National Labor Relations Board, Local No. 129
| null |
WALLACE CORPORATION v. NATIONAL LABOR RELATIONS BOARD, LOCAL No. 129, Et Al.
| null | null |
<parties data-order="0" data-type="parties" id="b1032-3">
WALLACE CORPORATION v. NATIONAL LABOR RELATIONS BOARD, LOCAL No. 129, et al.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b1032-4">
No. 5135.
</docketnumber><br><court data-order="2" data-type="court" id="b1032-5">
Circuit Court of Appeals, Fourth Circuit.
</court><decisiondate data-order="3" data-type="decisiondate" id="abo-dedup-0">
Feb. 14, 1947.
</decisiondate><br><p data-order="4" data-type="judges" id="b1033-5">
<span citation-index="1" class="star-pagination" label="953">
*953
</span>
SOPER, Circuit Judge, dissenting.
</p><br><attorneys data-order="5" data-type="attorneys" id="b1033-9">
A. Norman Somers, Asst. General Counsel, National Labor Relations Board, of Washington, D. C. (Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushien, Associate Gen. Counsel, and Owsley Vose and Reeves R. Hilton, Attys., National Labor Relations Board, all of Washington, D. C., on the application), for National Labor Relations Board.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b1033-10">
R. Walston Chubb, of St. Louis, Mo., for Wallace Corporation.
</attorneys><br><p data-order="7" data-type="judges" id="b1033-11">
Before PARKER, SOPER, and DOBIE, Circuit Judges.
</p>
| null | null | null | null | null | null | 1,129,818 |
5135
| 0 |
ca4
|
F
|
t
|
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
2,233,380 |
831 N.E.2d 171 (2005) Robert DENNIS and Viola Dennis, Appellants-Plaintiffs, v. GREYHOUND LINES, INC., Cecil Frink, Stephen Quarles, Anita Akeers, and Eddie Walker, Appellees-Defendants. No. 49A05-0406-CV-302. Court of Appeals of Indiana. July 20, 2005. *172 John H. Hovanec, Anthony M. Campo & Associates, Indianapolis, for Appellants. Paul T. Fulkerson, Skiles DeTrude LLC, Indianapolis, for Appellees. OPINION KIRSCH, Chief Judge. Robert and Viola Dennis (the "Dennises") appeal an order of the trial court granting summary judgment in favor of Greyhound Lines, Inc. ("Greyhound Lines"), Cecil Frink, Stephen Quarles, Anita Akeers, and Eddie Walker (collectively "Greyhound"). [1] The Dennises raise the following issue on appeal: [2] whether the trial court erred in granting summary judgment in favor of Greyhound. We reverse and remand. FACTS AND PROCEDURAL HISTORY On July 19, 2000, Robert Dennis was traveling from Illinois to Kokomo on a Greyhound bus. He arrived at the Indianapolis bus terminal at 6:00 p.m., but his connecting bus was not scheduled to depart until 8:00 a.m. Robert decided to stay overnight in the terminal. At approximately 6:30 p.m., Robert left his suitcase by a bench and entered the restroom at the bus terminal. While in the restroom, Robert was attacked by an unknown assailant. Robert stated that the attack lasted "a couple three minutes." Appellants' Appendix at 46. A security guard desk was located fifty feet from the bathroom. Eddie Walker, an eighteen-year veteran of the Marion County Sheriff's Department, was the guard stationed *173 at the security desk at the time of the attack. Walker did not notice anything suspicious while the incident was occurring in the restroom. However, there was a door, which was closed at the time of the attack, separating the restroom and the remainder of the terminal. On February 27, 2002, the Dennises filed a complaint, alleging that Greyhound Lines had been negligent in its oversight of the restroom area. Thereafter, on July 8, 2002, the Dennises filed an amended complaint naming as additional defendants several off-duty police officers who were hired by Greyhound Lines to provide security for the station. On June 9, 2003, Greyhound moved for summary judgment, and on April 12, 2004, the trial court granted its motion. The Dennises now appeal. DISCUSSION AND DECISION The Dennises argue on appeal that there are genuine issues and inferences of fact that preclude summary judgment in favor of Greyhound. Specifically, they contend that a question of fact exists as to whether Greyhound owed a duty of care to Robert while in the terminal and whether Greyhound breached that duty. This case, like Jarboe v. Landmark Cmty. Newspapers, 644 N.E.2d 118 (Ind.1994) and its progeny, once again exposes the distinct difference in Indiana's summary judgment procedure and the federal procedure. Our supreme court has expressly disavowed the federal standard set forth in Celotex v. Catrett, 477 U.S. 317 , 106 S. Ct. 2548 , 91 L. Ed. 2d 265 (1986), and instead, has forged a separate path for Indiana practice. Jarboe, 644 N.E.2d at 123. In Indiana, the party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists. Id. at 123. Only when the moving party has met this burden, does the burden shift to the nonmovant to establish that a genuine issue does actually exist. Id. In federal practice, the party seeking summary judgment is not required to negate an opponent's claim; instead, summary judgment must be granted when the nonmovant has failed to establish an essential element of its claim. Schmidt v. American Trailer Court, Inc., 721 N.E.2d 1251 , 1253 (Ind.Ct.App.1999), trans. denied (2000). Under Indiana law, however, "Merely alleging that the plaintiff has failed to produce evidence on each element. . . is insufficient to entitle the defendant to summary judgment." Jarboe, 644 N.E.2d at 123. In addressing the Dennises' claim, we initially observe that to prevail on a theory of negligence, the Dennises must prove: 1) a duty on the part of the defendant owed to the plaintiff; 2) a breach of that duty; and 3) an injury to the plaintiff proximately caused by that breach. Hayden v. Paragon Steakhouse, 731 N.E.2d 456 , 458 (Ind.Ct.App.2000). Our task is not to judge whether the Dennises have proven each element, but instead is to determine whether Greyhound has adequately met its burden of proving a lack of any genuine issue of material fact in the evidence designated to the trial court. [3] An owner of a premise owes a duty of care to its invitees. Markle v. Hacienda Mexican Restaurant, 570 N.E.2d 969 , 973 (Ind.Ct.App.1991). `(1) An invitee is either a public invitee or a business visitor. (2) A public invitee *174 is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.' Id. (quoting Burrell v. Meads, 569 N.E.2d 637 (Ind.1991) (quoting RESTATEMENT (SECOND) OF TORTS § 332)). Robert paid to take the bus from Illinois to Kokomo. Greyhound's bus routes and schedules necessitated Robert's stop at the terminal. Since Robert was a paying customer and patron of Greyhound, Robert was an invitee as defined by law. Therefore, Greyhound owed Robert the duty owed to invitees. The duty Greyhound owes to business invitees, such as Robert, is to exercise ordinary and reasonable care to protect them from injury caused by third persons. Bearman v. Univ. of Notre Dame, 453 N.E.2d 1196 , 1198 (Ind.Ct.App. 1983). However, the duty only binds the proprietor to prevent acts that are reasonably foreseeable to occur. Id. Consequently, our analysis must now turn towards whether the designated evidence demonstrates either that Greyhound did not breach its duty of due care or that such breach was not the proximate cause of Robert's injuries. In its motion for summary judgment, Greyhound asserted that Plaintiff was injured by an unidentified assailant while using a restroom at Greyhound's downtown Indianapolis terminal. Plaintiff claims that Greyhound Lines had a duty to safeguard him from attacks. Greyhound Lines, Inc. had two off-duty police officers providing security at the facility at the time plaintiff was injured. Greyhound Lines, Inc. had no prior notice that the bathroom area could be an attack site on its premises. Appellants' Appendix at 34. Greyhound further designated: (1) an affidavit from the manager of its terminal stating that during his stint as manager, there were no attacks on patrons in the bathroom; (2) excerpts from Robert's deposition describing the incident; (3) an affidavit from the security guard on duty at the time of the incident indicating that he saw nothing suspicious during his shift that evening; and, (4) Greyhound's responses to the Dennises' interrogatories. Appellants' Appendix at 34-59. Greyhound's burden in supporting its motion for summary judgment was to establish the absence of any genuine issue of material fact as to a determinative issue. Greyhound has not met this difficult burden. To be sure, the materials designated by Greyhound constitute evidence relevant to the issue of whether Greyhound breached its duty of care. They fail, however, to establish as a matter of law that it met that duty, which is its burden under Jarboe. Consider that while the materials establish that Greyhound had a security guard on duty at the time of the attack and that he saw nothing suspicious, they do not establish (1) what the guard was doing at the time of the attack; (2) whether he was attentive or, indeed, whether he was even awake; (3) whether he saw the attacker follow Robert into the restroom; (4) whether he should have seen the attacker follow Robert into the restroom; (5) whether he noticed anything about the attacker that would cause a reasonably careful security guard to follow him into the restroom or make further investigation; (6) whether there was anything about the attacker that should have caused him to do so; (7) whether he heard any sounds from the attack in the restroom that would have prompted further inquiry; (8) whether he should have heard such sounds; (9) how a vicious attack on an elderly man could occur fifty feet from where he was sitting and he noticed nothing suspicious. Each *175 of these matters constitutes a material question of fact bearing upon whether Greyhound breached its duty of due care. None of these questions is resolved by the designated materials. We note that Greyhound would be entitled to summary judgment under the federal summary judgment standard. The Dennises have designated little evidence substantiating their claims that Greyhound breached its duty of due care and that Robert's injuries were proximately caused by that breach. Nevertheless, Jarboe dictates that this is insufficient for a grant of summary judgment in Greyhound's favor. Instead, Jarboe requires Greyhound to negate the existence of all genuine issues of material fact, an often effectively impossible burden, even though the Dennises seem to have little chance of proving Greyhound's negligence at trial. As a result of the dichotomy between Indiana practice and its federal counterpart, cases fall into a legal limbo in which the plaintiff (or other party bearing the burden of proof on an issue) cannot come forward with evidence to support an essential element of its case, and, hence, cannot survive a motion for judgment on the evidence at trial, but the defendant cannot obtain a summary judgment because it cannot meet its burden under Jarboe. We cannot find Greyhound's designated evidence to be sufficient under Indiana's standard to negate the possibility of there being a set of facts demonstrating that it breached its duty and that such breach was the proximate cause of Robert's injuries. Reversed. NAJAM, J., concurs. VAIDIK, J., concurs in result. NOTES [1] Cecil Frink, Stephen Quarles, Anita Akeers, and Eddie Walker are security guards for Greyhound Lines. Greyhound Lines and the security guards are all represented by the same attorney and seem to be acting as a single entity. Consequently, we will refer to Greyhound and the security guards collectively as "Greyhound." [2] The Dennises also raise the issue of whether the trial court erred in granting Greyhound's motion for summary judgment even though Greyhound failed to comply with the Dennises' discovery requests. Finding that summary judgment was improperly granted, we do not address the Dennises' argument regarding discovery. [3] We note that the trial court made no specific findings regarding the elements of negligence, but merely determined that "there are no genuine issues of material fact precluding summary judgment and the Defendant is entitled to judgment as a matter of law on the designated evidence." Appellants' Appendix at 12.
|
opinion_html_with_citations
| 1,794 |
2013-10-30 08:45:02.834071+00
|
010combined
|
f
|
f
| 2,233,380 |
Kirsch, Najam, Vaidik
| null |
LU
|
f
|
Published
| 14 |
Dennis v. Greyhound Lines, Inc.
|
Dennis
|
Robert DENNIS and Viola Dennis, Appellants-Plaintiffs, v. GREYHOUND LINES, INC., Cecil Frink, Stephen Quarles, Anita Akeers, and Eddie Walker, Appellees-Defendants
| null | null |
<parties id="b227-4">
Robert DENNIS and Viola Dennis, Appellants-Plaintiffs, v. GREYHOUND LINES, INC., Cecil Frink, Stephen Quarles, Anita Akeers, and Eddie Walker, Appellees-Defendants.
</parties><br><docketnumber id="b227-7">
No. 49A05-0406-CV-302.
</docketnumber><court id="AJq">
Court of Appeals of Indiana.
</court><br><decisiondate id="b227-8">
July 20, 2005.
</decisiondate><br><attorneys id="b228-6">
<span citation-index="1" class="star-pagination" label="172">
*172
</span>
John H. Hovanee, Anthony M. Campo & Associates, Indianapolis, for Appellants.
</attorneys><br><attorneys id="b228-9">
Paul T. Fulkerson, Skiles DeTrude LLC, Indianapolis, for Appellees.
</attorneys>
| null | null | null | null | null | null | 112,392 |
49A05-0406-CV-302
| 1 |
indctapp
|
SA
|
t
|
Indiana Court of Appeals
|
Indiana Court of Appeals
|
4,793,574 |
PER CURIAM. Affirmed.
|
opinion_xml_harvard
| 3 |
2021-08-20 02:55:54.807391+00
|
020lead
|
t
|
f
| 4,983,921 | null | null |
U
|
f
|
Published
| 0 |
Duncan v. Valparaiso Realty Co.
|
Duncan
|
Finley B. DUNCAN and Carole L. Duncan, his wife v. VALPARAISO REALTY COMPANY, a Florida Corporation, Appellees Finley B. DUNCAN and Carole L. Duncan, his wife v. Ramonde R. Byrne WILLIAMS and Lewis H. Williams, Jr., her husband
| null | null | null | null | null | null | null | null | null | 60,221,249 |
Nos. F-48, F-47
| 0 |
fladistctapp
|
SA
|
t
|
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
5,167,775 |
Pbiceett, J., delivered the opinion. Hollistee, C. J., and Clase, J., concurred. • Action upon a promissory note made by the appellant to the respondent. The answer expressly admits the execution of the note, but avers that at the time of its execution and delivery it was agreed between the maker, Ainslie, and Bowman, the payee, “that the Idaho World printing company, a corporation, was indebted to the appellant, Ainslie, in a sum exceeding that mentioned in the promissory note; that the said Bowman, who had previously disposed of stock *645and shares in said corporation, had reserved the outstanding accounts and bills due said corporation at the time of such sale, amounting to a large sum; that out of collections to be made upon such accounts, said Bowman was to retain the amount of said note and interest and pay off the same.” It is further alleged that Bowman did subsequently collect on said accounts more than sufficient to discharge said note. To this answer the plaintiff and respondent interposed a general demurrer on the ground that it did not contain facts sufficient to constitute a defense. The court sustained the demurrer and rendered judgment on the complaint. The appellant excepted to the ruling of the court below, and appeals from the judgment so rendered. The question to be determined here is whether the district court erred in sustaining the demurrer to the answer. The appellants claim that the facts stated in the answer are equivalent to a plea of payment; that they do in fact allege payment and satisfaction of the note sued upon; while the respondent claims, in support of the decision of the district court upon the demurrer: 1. That the agreement alleged in the answer was a promise by Bowman to answer for the debt of the Idaho World Printing Company to Ainslie, which, not being alleged to have been made in writing, appears, from the face of the answer, to be void under the statute of frauds; and 2. That the agreement alleged is not valid between Bowman and the maker of the note, and not binding upon Bowman, because the Idaho World Printing Company, whose funds were to be disposed of under the agreement, did not authorize, sanction, or consent to such disposition. The first position assumed by the respondent is not tenable, for even if the answer could be regarded as alleging a promise on the part of Bowman to pay the debt of the Idaho World Printing Company to Ainslie, it is not alleged, nor does it appear upon the face of the answer, that such contract or agreement was verbal; and it is the well-settled law, that the statute of frauds does not change the rules of pleading. Unless the agreement appears, from the com*646plaint or pleading, to bave been yerbal, the court will presume that it was in writing, when the nature of the agreement is such that it could not be valid unless in writing; but when the party alleging the agreement comes to the proof of his allegations, he must show such an agreement as is valid under the statute of frauds. But the answer, as we construe it, sets up an agreement made contemporaneously with the giving of the note sued on, whereby Bowman undertook to collect money upon the bills and accounts of the Idaho World Printing Company, then in his hands, and apply the same, when collected, in satisfaction of the note, at the same time agreeing between themselves that Ainslie was a creditor of said printing company. And the real question to be determined is, whether such an agreement is valid. Is it such an agreement as could have been introduced in evidence, provided the plea of payment had been directly interposed instead of attempting to set up probative facts, from which the ultimate fact of payment is to be inferred ? It was not lawful for Bowman to agree that there was money due from the printing company to Ainslie, unless he had authority, and none is alleged; and it ivas not proper for him to pay the money of the company to Ainslie, even though he was a creditor of the company, unless the consent or authority of the company had first been obtained, and no such consent or authority is alleged. If Bowman collected money for that company, as alleged in the answer, unless he had its authority to make some other disposition of it, he became liable to pay it to the company, and no agreement made by him, without the authority of the company, to pay it to any other person, even a creditor of the company, could relieve him from that liability. It follows that the agreement between Bowman and Ainslie, stated in the answer, is invalid, and can not be enforced. The district court properly sustained the demurrer to the answer; and the judgment must be affirmed. The judgment of the district court is affirmed, with costs to the respondent.
|
opinion_xml_harvard
| 833 |
2022-01-02 04:49:36.483135+00
|
020lead
|
t
|
f
| 5,336,337 |
Clase, Hollistee, Pbiceett
| null |
U
|
f
|
Published
| 0 |
Bowman v. Ainslie
|
Bowman
|
J. H. BOWMAN v. GEORGE AINSLIE and JOHN WEST
|
<p>Appeal from the second judicial district, Boise county.</p>
| null | null |
<p>Pleading — Agreement— Presumptions. — 'Unless an agreement appears from the complaint to have been verbal, the court will presume that it was in writing, where the nature of the agreement is such that it could not be valid unless in writing.</p> <p>Agreement. — An agreement by A., who has assets in his hands belonging to B., to apply the same for the benefit of C., who is a creditor of B., is not valid, and can not be enforced by C. against A., unless B. has authorized or consented to such application of such assets.</p>
| null | null | null | null | null | 61,677,521 | null | 0 |
idaho
|
S
|
t
|
Idaho Supreme Court
|
Idaho Supreme Court
|
3,282,978 |
THE COURT. An action to determine the respective interests of the defendants in a fund in the possession of the plaintiff. The facts are as follows: Peter J. McGovern, who died on March 15, 1922, by his last will disposed of a portion of his estate; the residue passed by the law of succession to his heirs, among whom was his sister Bridget Cullen. The latter *Page 785 executed to E.A. Platt a power of attorney to act for her in the matter of the estate, and also assigned to him one-third of her interest therein. In June, 1922, Platt executed his power of attorney to defendant McColgan, giving him full power to act under the Cullen assignment and power of attorney, the purpose being to secure the repayment to McColgan of sums loaned to Platt. Defendant Ford, an attorney representing Mrs. Cullen, Platt and one Blakemore, appeared in the proceeding and procured a partial distribution of the estate. Shortly thereafter Isidor Golden, an attorney, was substituted for Ford as the attorney for Mrs. Cullen, and the latter thereupon instituted an action against Platt and all those to whom he had given powers of attorney or assignments, including defendant McColgan, to cancel and annul her assignment to Platt and to quiet the title to her interest in the McGovern estate against the various claimants. The plaintiff, who was also an attorney, appeared in the action upon behalf of several of the defendants, including Ford and McColgan. The action was compromised, and all claimants under the assignment to Platt, including defendant Ford, agreed to accept in satisfaction of their claims the sum of $500 and five per cent of Mrs. Cullen's distributive share of the estate. The plaintiff claimed, and the court found, that by agreement with the parties he was to receive as compensation for his services in the litigation five per cent of all sums collected by him under the compromise agreement. In accordance with the latter agreement the executor of decedent's will paid to the plaintiff by check the sum of $2,000, which check he in turn indorsed to McColgan, who thereupon paid him five per cent thereof, or $100. Subsequently, the executor paid plaintiff the further sum of $2,161.46, which, after deducting the percentage claimed by him, namely, $108.07, he deposited in his commercial bank account. Thereafter defendants asserted conflicting claims thereto, and the present action was brought to determine these claims. The compromise agreement was evidenced by a letter signed by the defendants and directed to the executor, its material portions being as follows: ". . . It is the express understanding and agreement of the parties signatory hereto that the said sum of $500 plus the said five (5%) per cent is a payment in full to all of the persons who have filed *Page 786 notices of assignment or who have made claims adverse to the rights and interests of said Bridget Cullen in said estate, or on whose behalf such notices have been filed or claims made; and it is further understood that it is likewise in full payment of all moneys coming to the undersigned George K. Ford for services rendered by him on behalf of Bridget Cullen herein." The court found that defendant Ford had at the request of Platt and Mrs. Cullen rendered services in securing a partial distribution of the estate, and that the services were reasonably worth $1,050. It also found that plaintiff necessarily expended $275 as attorneys' fees and $56 as costs in the present case, but should be charged with interest in the sum of $130.69 upon the balance remaining in his hands. The judgment directed that after deducting the difference between the amounts allowed as attorneys' fees and costs and the sum charged as interest the balance should be paid as follows: to defendant George K. Ford $1,050, and to defendants R. McColgan and Ross R. Chorley the sum of $803.08. McColgan and Chorley have appealed from portions of the judgment. [1] They contend that plaintiff was not entitled to attorneys' fees or a commission, and that the court erred in awarding defendant Ford any part of the fund. It is undisputed that McColgan and Platt shared in the interest in the estate acquired by the latter from Mrs. Cullen, and that Ford — who had frequently acted in similar transactions for McColgan — was employed to protect the interests of Platt and Mrs. Cullen, all of which McColgan knew. These circumstances taken with the compromise agreement, which impliedly recognized Ford's claim to a part of the fund, sufficiently supported the conclusion of the trial court that he was to be paid therefrom the reasonable value of his services; and the evidence also supports the finding that the plaintiff by agreement of the parties was entitled to the commission claimed by him. Plaintiff's testimony shows that he was either paid his commission when the collection was made or that the amount was deducted by him at the time, and that when the action was brought there remained in his hands a balance of $2,053.39, upon which he was entitled to no further commissions. *Page 787 The original complaint was filed by a firm of attorneys of which plaintiff was a member. Thereafter an amended complaint praying for additional compensation was filed by another attorney, for whose services an allowance from the fund was asked. The pleadings alleged that plaintiff was threatened with litigation by the defendants; that their claims were conflicting and that the present suit was necessary in order to determine the same. It was shown that plaintiff had no duties to perform other than to collect the amounts paid by the executor, and the trial court denied the extra compensation sought, but allowed an attorney's fee. [2] It is clear from the evidence that plaintiff was acting as defendants' agent and bailee. While his duties were in some respects analogous to those of a trustee he was not such within the meaning of section 2250 of the Civil Code, and was not entitled to attorney's fees under section 2273 of the same code. ( Los Angeles Trust Sav. Bank v. Ward, 197 Cal. 103 [ 239 P. 847 ].) Notwithstanding there was no denial of certain allegations in the complaint to the effect that plaintiff was a trustee, and that he was so described in a communication from defendant McColgan, the facts show that as to the amounts collected he was but a stakeholder, and the finding that he was a trustee is unsupported. The action in legal effect was but a suit in interpleader, in which case attorney's fees cannot be allowed (Code Civ. Proc., sec. 1021; Los Angeles Trust Sav. Bank v. Ward, 197 Cal. 103 [ 239 P. 847 ]). [3] It is also the rule that one who has received money for the use of another and is charged merely with the duty of holding the same and paying it over to the proper person, is not, in the absence of an agreement, chargeable with interest unless guilty of bad faith or unreasonable delay (33 Cor. Jur., Interest, sec. 58, p. 202). [4] In the present case no such contentions are made, nor is it claimed that plaintiff received any benefit from the fund; and not being a trustee within the above section of the code, the conclusion that he was legally chargeable with interest cannot be sustained. [5] It is further contended by appellants that plaintiff having claimed an interest in the fund, the action of interpleader *Page 788 could not be maintained. The action, however, was tried on that theory; all questions between the parties were fully litigated, and the error, if any, was in a matter of procedure. Under such circumstances a judgment cannot be set aside unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error resulted in a miscarriage of justice; and in the present case there is nothing to support that conclusion ( Baker v. Miller, 190 Cal. 263 [ 212 P. 11 ]). For the foregoing reasons the judgment is modified by striking therefrom the following paragraphs: "It is hereby ordered, adjudged and decreed that on the 7th day of August 1924 plaintiff received two thousand one hundred sixty-one and 46/100 ($2,161.46) dollars in trust for the uses and purposes set forth in the findings; that he was entitled to immediately deduct therefrom five per cent thereof, to wit, one hundred eight and 07/100 ($108.07) dollars as compensation to himself for services theretofore rendered; that thereupon he became chargeable with the sum of two thousand fifty-three and 39/100 ($2,053.39) dollars as trustee. "It is further ordered, adjudged and decreed that plaintiff is entitled to deduct from said sum of two thousand fifty-three and 39/100 ($2,053.39) dollars the sum of two hundred and seventy-five ($275.00) dollars, attorney's fees paid to Stanley R. Sterne, and the sum of fifty-six ($56.00) dollars, costs incurred in this suit. "It is further ordered, adjudged and decreed that plaintiff held as trustee out of such fund for and on behalf of George K. Ford one thousand and fifty ($1,050.00) dollars. "It is further ordered, adjudged and decreed that plaintiff is chargeable with interest at seven per cent per annum on one thousand three and 39/100 ($1,003.39) dollars from the 7th day of August 1924 to the date of judgment, which said interest is one hundred thirty and 69/100 ($130.69) dollars. "It is further ordered, adjudged and decreed that the defendants and cross-complainants R. McColgan and Ross R. Chorley take the balance of the trust fund conveyed, deducting from the said fund the amount herein adjudged to plaintiff as compensation for trustee and for costs of suit and for attorney's fees, and the amount herein adjudged to cross-complainant *Page 789 George K. Ford, to wit, the balance of such sum, viz., eight hundred three and 08/100 ($803.08) dollars." And it is ordered that in lieu thereof the following be inserted therein: It is ordered, adjudged and decreed that on the seventh day of August, 1924, plaintiff received $2,161.46 for the use of defendants McColgan, Chorley and Johnson; that he was entitled to deduct therefrom five per cent thereof, to wit, $108.07 as compensation for services theretofore rendered, and that he thereupon became chargeable with the sum of $2,053.39. It is further ordered, adjudged and decreed that plaintiff is entitled to deduct from said sum of $2,053.39 the sum of $56, costs incurred in this suit. It is further ordered, adjudged and decreed that defendants George K. Ford, R. McColgan and Ross R. Chorley have judgment against plaintiff for the balance of said fund in accordance with their respective interests therein, namely, George K. Ford in the sum of $1,050 and R. McColgan and Ross R. Chorley in the sum of $947.39, and that they have execution therefor unless the plaintiff shall within ten days pay said amounts to the county clerk of the city and county of San Francisco, to be applied in satisfaction of said judgments, in which event he shall be discharged from liability to the defendants or any of them. As so modified the judgment is affirmed; and it is further ordered that the plaintiff and defendants McColgan and Chorley each bear his own costs on appeal. *Page 790
|
opinion_html_with_citations
| 1,894 |
2016-07-05 16:57:13.020751+00
|
020lead
|
f
|
f
| 3,284,549 | null | null |
ZU
|
f
|
Published
| 5 |
Peterson v. Chorley
|
Peterson
|
FRED C. PETERSON, Plaintiff and Respondent, v. ROSS R. CHORLEY Et Al., Appellants; GEORGE K. FORD, Defendant and Respondent
| null | null |
<docketnumber id="b817-8">
[Civ. No. 6091.
</docketnumber><court id="A_n">
First Appellate District, Division One.
</court><decisiondate id="A9-">
February 10, 1930.]
</decisiondate><br><parties id="b817-10">
FRED C. PETERSON, Plaintiff and Respondent, v. ROSS R. CHORLEY et al., Appellants; GEORGE K. FORD, Defendant and Respondent.
</parties><br><attorneys id="b818-10">
<span citation-index="1" class="star-pagination" label="784">
*784
</span>
Brobeck, Phleger & Harrison and George B. Keane for Appellants.
</attorneys><br><attorneys id="b818-11">
Stanley R. Sterne for Plaintiff and Respondent.
</attorneys><br><attorneys id="b818-12">
Elliott Johnson and M. M. Bourquin for Defendant and Respondent.
</attorneys>
| null |
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J.J. Trabucco, Judge Presiding. Modified and affirmed.
The facts are stated in the opinion of the court.
| null | null | null | null | 3,156,670 |
Docket No. 6091.
| 0 |
calctapp
|
SA
|
t
|
California Court of Appeal
|
California Court of Appeal
|
692,963 |
51 F.3d 288 311 U.S.App.D.C. 145 UNITED STATES of America, Appellee, v. Mohammad Hassan HAMMOUDE, Appellant. No. 91-3081. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 6, 1995. Decided March 17, 1995. Certiorari Denied June 5, 1995. See 115 S.Ct. 2290 . Sandra G. Roland, Asst. Federal Public Defender, argued the cause, for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Lilly Ann Sanchez, Asst. U.S. Atty., argued the cause, for appellee. With her on the brief were Eric H. Holder, Jr., U.S. Atty., Roy W. McLeese, III, John R. Fisher and Craig S. Iscoe, Asst. U.S. Attys. Before: BUCKLEY, RANDOLPH, and TATEL, Circuit Judges. Opinion of the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: 1 Mohammad Hassan Hammoude was arrested after purchasing several custom-made rubber stamps that could be used to make copies of United States nonimmigrant visas. Officers of the Immigration and Naturalization Service, who arrested him, also confiscated a piece of paper on which was smeared an image of the stamps. On the basis of this and other evidence presented at trial, a jury convicted Hammoude of two counts of violating 18 U.S.C. Sec. 1028(a)(5), which bars the possession of instruments that can be used to make false "identification documents," and on two counts of violating 18 U.S.C. Sec. 1546(a), which criminalizes various forms of fraud in connection with the reproduction of visas. We reverse Hammoude's convictions under section 1028, holding that a visa is not an identification document, and also reverse one of the section 1546(a) convictions because no reasonable juror could conclude that Hammoude had created a "counterfeit" visa. We sustain Hammoude's conviction on the second section 1546(a) count because the admission of certain evidence--his only point of appeal applicable to that conviction--was not plain error. I. 2 The heart of Hammoude's appeal is a challenge to the sufficiency of the evidence introduced at trial, and we thus consider that evidence in the light most favorable to the government. United States v. Teffera, 985 F.2d 1082 , 1085 (D.C.Cir.1993). So understood, the evidence tells us the following. 3 On January 12, 1990, Hammoude and his father entered the Baumgarten Company, a vendor of rubber stamps in Washington, D.C. Hammoude asked the company's owner, Melvin "Buddy" Gusdorf, if Gusdorf could make a stamp that would reproduce a nonimmigrant United States visa. As a sample, Hammoude showed Gusdorf a Jordanian passport that belonged to his sister-in-law, directing his attention to a nonimmigrant visa printed inside. 4 The visa, issued by the United States consulate in Kuwait, is a multicolored image made of seven horizontal bands of different colored ink, beginning at the top in blue and then alternating red, blue, and green to the bottom. We reproduce the visa, though not in color, in Appendix A. It has a serial number at the top, followed by a United States seal, the words "United States of America nonimmigrant visa issued at Kuwait," and the date of issue. At the bottom of the visa is the signature of the consular officer, surrounded by a simple filigree. In the middle of the visa, printed in green, are spaces the consulate fills in when issuing the visa. Handwritten in the visa Hammoude showed Gusdorf were the "B2" (tourist) classification of the visa, an expiration date, and the name of Hammoude's sister-in-law, to whom the visa had been issued. Other than the name, none of the information on the visa--including the serial number--was necessarily unique to the person to whom it was issued. 5 Gusdorf concluded that the best way to reproduce the visa would be to make seven different stamps, one for each differently-colored strip of the visa. These stamps could then be inked with different colors, and the impressions aligned on a piece of paper to create the multicolored copy. Hammoude approved this approach, but requested that Gusdorf omit from the rubber stamps the original visa's handwritten features, date of issue, and serial number. He ordered a separate number stamp to supply new serial numbers, and also ordered a date stamp, which he asked Gusdorf to rearrange to conform to the "day, month, year" form of the date on the visa. On the order form, Hammoude gave his name as "Abbas Ayood," and provided a false address and phone number. Gusdorf kept the passport to use as a master for the stamps. 6 Unfortunately for Hammoude, Gusdorf was a past chair of his trade association's Fraudulent Marking Device Committee. Gusdorf's company had also worked for federal agencies on several occasions, so he knew that Hammoude could not reproduce visas without official authorization. Gusdorf contacted the Immigration and Naturalization Service, which instructed him to fill Hammoude's order and assigned investigators to the case. 7 On January 19th, Hammoude returned to Gusdorf's shop to pick up the stamps. According to Gusdorf, he and Hammoude attempted to create a finished copy of a visa by aligning the images from the seven inked stamps. Gusdorf guessed that they completed two or three full impressions, although he was not certain, and the impressions were not recovered. Although somewhat frustrated with the difficulty of aligning the images, Hammoude left the store with the stamps, colored ink pads, and date and number stamps. Gusdorf was unable to contact the I.N.S. agent staking out the store when Hammoude left, so the agent could not positively identify him as the suspect. Although the agent did question Hammoude briefly as he left the store--apparently Hammoude matched Gusdorf's original description enough to raise suspicions--the agent allowed him to leave. 8 Hammoude's brush with the law did not deter him. Later that day, still frustrated with his inability to align the seven stamps, Hammoude called Gusdorf and asked him to make a single stamp of the entire visa. Gusdorf agreed, and told him to return in three days. 9 On January 22nd, Hammoude returned to the store to pick up the new stamp. He had the old stamps with him, but they were in a curious form: In an attempt to align the images, Hammoude had pulled the raised plastic piece off each stamp's wooden base and arranged them, with glue, onto a piece of paper. The result was a single "composite" stamp which was an approximation--albeit a poor one--of the one-piece visa stamp that Hammoude was picking up that day. We provide a photograph of this composite stamp in Appendix B. To carry this somewhat inky composite stamp, Hammoude had folded the backing paper over it, leaving a faint image of the stamp on the paper, which we reproduce to the right of the stamp at Appendix B. 10 As Hammoude left the store this time, an I.N.S. agent arrested him, confiscating the new stamp, the ink pads, the date and number stamp, the composite stamp, and the impression it had left on the paper to which it was glued. Gusdorf also gave the I.N.S. a photocopy of the visa that he had made as part of the production process. 11 Hammoude was indicted on four counts: two violations of 18 U.S.C. Sec. 1028, which criminalizes the possession of false identification documents or instruments used to make them; and two violations of 18 U.S.C. Sec. 1546(a), which bars various forms of fraud with respect to immigration papers. At trial, the government introduced the stamps as well as testimony indicating that they could be used to create imperfect but passable counterfeit visas. In defense, Hammoude claimed that he only wanted the stamps to print sample visas in a pamphlet that he was creating for Arabic visitors to the United States. He testified that he did not give Gusdorf his real name because overseas organizations could trace him and kill him "because they can call me a puppet, since I have [become an] American citizen." He also claimed that he glued the seven stamps to the paper in order to render them "useless" after discovering that their production might have been illegal. 12 A jury returned guilty verdicts under all four counts. Hammoude was sentenced to four months in prison, four months of house arrest, three months' supervised release, and $200 in fines. He has already served the prison term. The district court suspended the house arrest pending this appeal. II. 13 Hammoude was charged with two violations of section 1028 because he allegedly possessed "a document-making implement"--rubber stamps--"with the intent such document-making implement will be used in the production of a false identification document." 18 U.S.C. Sec. 1028(a)(5) (1988). Hammoude's primary argument on appeal is that a visa is not an "identification document" as defined under the statute and, thus, that there was insufficient evidence to convict him of violating 18 U.S.C. Sec. 1028(a)(5). We review his convictions de novo to determine "whether, viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Teffera, 985 F.2d at 1085 (quoting Jackson v. Virginia, 443 U.S. 307 , 319, 99 S.Ct. 2781 , 2789, 61 L.Ed.2d 560 (1979)). 14 We must first address the government's assertion, presented only in a footnote, that Hammoude has waived this statutory argument by failing clearly to raise it in either of his motions for a judgment of acquittal--one at the close of the government's case, and one at the close of the trial. We disagree. Hammoude's second motion for acquittal was broadly stated, without specific grounds, and was therefore sufficient to preserve the full range of challenges, whether stated or unstated, to the sufficiency of the evidence. See United States v. Milton, 8 F.3d 39 , 45 (D.C.Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 299 , 130 L.Ed.2d 212 (1994). Moreover, the heart of Hammoude's appeal is that, under any conceivable interpretation of the facts, he could not have violated section 1028. Whether his appeal is framed as a due process claim, a failure to award a judgment of acquittal, or otherwise, we must reverse the conviction if Hammoude's actions were not a violation of the statute. See United States v. Baxley, 982 F.2d 1265 , 1268 (9th Cir.1992) (holding that argument that defendant was not "in custody" at time of escape, as required by statute, was not waived by failure to raise in motion for judgment of acquittal). 15 Our examination of the merits of Hammoude's appeal begins with the statutory definition of "identification document." According to section 1028(d)(1), an "identification document" is "a document made or issued by or under the authority of the United States Government ... which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals." The House Report accompanying what became section 1028 demonstrates that the definition includes not only "identification documents, such as driver's licenses, which are widely accepted for a variety of identification purposes," but also those " 'commonly accepted' in certain circles for identification purposes, such as identification cards issued by state universities and Federal government identification cards." H.R.Rep. No. 802, 97th Cong., 2d Sess. 9 (1982), reprinted in 1982 U.S.C.C.A.N. 3519, 3527. The House Report also notes that identification documents "normally will include such identifying elements as an individual's name, address, date, or place of birth, physical characteristics, photograph, fingerprints, employer, or any unique number assigned to an individual by any Federal or State government entity." Id. 16 We have not found, nor have the parties cited, any reported decisions involving the application of section 1028 to visas. In fact, only two published circuit court decisions, both by the Fourth Circuit, have applied the definition of "identification documents" under section 1028, and they involved Social Security cards and Form I-94 Arrival-Departure Records, which the courts concluded were "identification documents" within the meaning of the statute. See United States v. Pahlavani, 802 F.2d 1505 (4th Cir.1986) (I-94 forms); United States v. Quinteros, 769 F.2d 968 (4th Cir.1985) (Social Security cards). In the Quinteros case, the court relied on testimony that Social Security cards were "commonly accepted" as identification documents. An employee of the Social Security Administration testified that the Administration often issued cards for older persons to use as identification for cashing checks. She also testified that because the cards were so often used for identification, the government removed a notice from the back of the cards that had stated that they were "Not for Identification Purposes." In all, the court concluded, there was a "common understanding that Social Security cards are identification documents." 769 F.2d at 970. 17 In Pahlavani, the court found a similar "common understanding" that immigration papers known as Form I-94 Arrival-Departure Records were identification documents, noting that they were regularly used to identify an immigrant seeking employment or public benefits. The court emphasized that the papers bore an individual's name, passport number, U.S. and foreign addresses, date of birth, and other information--the very type of information, according to the legislative history, that is contained in an "identification document" as defined under the statute. 802 F.2d at 1506 (citing H.R.Rep. No. 802, 97th Cong., 2d Sess. 9 (1982)); see also 769 F.2d at 970. 18 In contrast to the Fourth Circuit cases, the government in this case provided no evidence reasonably sufficient to persuade anyone that a visa is "intended or commonly accepted" as an identification document. We cannot comprehend the bare assertion in the government's brief that "a visa provides equivalent if not more identification information than a Social Security card." At least a Social Security card associates the bearer with a "unique number"; a visa associates an individual's name with no unique information. 19 The little evidence that the government presented on this point does not support its argument that a visa is an identification document within the meaning of section 1028. John Caulfield, Jr., Deputy Director of Fraud Prevention Programs at the State Department, testified that "[a] visa is a document which identifies someone as eligible to come to the United States." When asked by the government whether it was "fair to say that the visa itself identifies the passport bearer as a party that has been issued that visa," Caulfield answered, "Yes, right. It identifies the bearer of the passport as eligible to travel to the United States." None of this testimony, however, establishes that a visa is "intended or commonly accepted" as identification--i.e., that it actually assures or is intended to assure one who examines it that the bearer is the same individual as the person it "identifies." Caulfield's "yes" answer proves the unremarkable assertion that if a person has a visa in a passport, a visa has been issued to that person. And the qualification to his answer merely reinforces the fact that the only "identification" function of a visa is to "identify" someone as eligible to enter the United States--not to identify the bearer as him- or herself. 20 We are not persuaded by the government's argument that a visa is an identification document within the meaning of the statute because it "identifies" an individual for a certain purpose. Under this theory, any document issued by any governmental body that served any purpose specific to the individual could be considered an "identification document," including tax documents, notices of jury duty, and unemployment checks. Absent more explicit language from Congress, we read the statute to cover only those documents that are "intended or commonly accepted" for the identification of individuals as themselves, and decline to expand its meaning to cover documents that merely identify individuals as eligible for some benefit or subject to some liability. 21 The government relies on the legislative history to argue that since visas are used by customs officials in their "certain circle," they are "identification documents." See H.R.Rep. No. 802, 97th Cong., 2d Sess. 9 (1982). But as we note above, the government presented no evidence--and we do not see how it could have--that customs officials use a visa to identify an individual. A visa is not designed to assure a customs officer or anyone else that the bearer of the visa is the individual it names. Even customs officials must look to the passport, with its name, address, photograph, and other identifying information, to verify that the bearer is the individual he or she claims to be. 22 Finally, the government presented evidence of a black market for visas, and claims that, as in Pahlavani and Quinteros, the presence of a black market supports its argument that they are intrinsically valuable as identification. See 802 F.2d at 1506; 769 F.2d at 970. The Pahlavani and Quinteros courts, however, concluded that presence of a black market merely reinforced their conclusions that the documents at issue were "identification documents." The existence of a black market means no more than that a visa has value, and adds nothing to our inquiry. 23 We hold that no reasonable jury could conclude that a nonimmigrant visa is an identification document as defined by 18 U.S.C. Sec. 1028(d)(1). We thus reverse Hammoude's convictions under the first and second counts of the indictment, which charged him with a violation of section 1028. III. 24 Hammoude next challenges the sufficiency of the evidence convicting him on the third count for violating 18 U.S.C. Sec. 1546(a) (1988), which includes at least two different theories of criminal liability. In the first paragraph, the statute provides for a "counterfeit" theory, establishing penalties for anyone who "knowingly forges, counterfeits, alters, or falsely makes any ... nonimmigrant visa." The second paragraph provides, in part, for an "impression" theory of liability for anyone who, without authorization, "knowingly ... makes any ... impression in the likeness of any ... nonimmigrant visa." The third and fourth counts of the indictment used both the counterfeit and impression language in charging Hammoude with violating the statute on or about January 19th and 22nd, respectively. 25 In defending the convictions, the government points out that Hammoude made many "impressions" of visas; at the very least, the rubber stamps might be considered impressions, as might the photocopies Gusdorf made in preparing those stamps. The government also argues that the faint smear on the folded-over paper is an impression. These multiple impressions on multiple days were more than sufficient, the government argues, to convict Hammoude under both counts of the indictment on an "impression" theory. This is certainly true with respect to count four, which the government pursued at trial on the sole theory that Hammoude had created an impression of a visa. Indeed, the verdict form for count four specifically asked the jury whether Hammoude had made unauthorized impressions. Recognizing the weight of evidence supporting this theory of liability, Hammoude does not challenge the sufficiency of evidence on this fourth count. 26 If the verdict form had stated a similar theory for the third count, or even if it had asked the jury whether Hammoude violated section 1546(a) generally--that is, if Hammoude was guilty of the third count as stated in the indictment--we might agree with the government and uphold the conviction on an impression theory. But that is not what happened. At trial and in the verdict forms, the government pursued the third count solely on the counterfeit theory. Indeed, at the close of the trial, although Hammoude's attorney requested that the jury verdict form simply restate the language of the indictment, the prosecutor asked that the jury be presented with much more specific questions. In particular, the government expressly stated that although both the impression and the counterfeit theories were possible under the third count, it was "only charging [the counterfeit offense] and not both," and did not want to confuse the jury by presenting it with general language, or even language outlining both theories. The trial court sided with the government, and the jury verdict form on the third count read as follows:Count Three 27 [A.] As to Count Three, knowingly counterfeiting or falsely making a 28 nonimmigrant visa by use of a multiple-piece rubber stamp within the premises 29 of the Baumgarten Company of Washington, how do you find the defendant? 30 Guilty Not Guilty 31 [B.] As to Count Three, knowingly counterfeiting or falsely making a 32 nonimmigrant visa by use of a multiple-piece rubber stamp glued to a piece of 33 paper, how do you find the defendant? 34 Guilty Not Guilty 35 ---------- 36 The jury marked "Not Guilty" for the first question and "Guilty" for the second. The court gave it no opportunity to find Hammoude "guilty" of a violation under 1546(a) on any theory other than the counterfeit theory presented in the jury verdict form. Absent such an opportunity, we cannot, as the government argues, presume that the jury relied on an alternative "impression" theory of liability when it checked the "guilty" box in the second question. By giving the jury a special verdict only, the government tied its--and our--hands. We therefore review Hammoude's conviction on the third count only to determine whether any reasonable juror could have concluded that Hammoude was guilty, beyond a reasonable doubt, of "counterfeiting or falsely making a nonimmigrant visa by use of a multiple-piece rubber stamp glued to a piece of paper." 37 To pass as a counterfeit, an image must bear such a likeness to the original as "is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care dealing with a person supposed to be upright and honest." United States v. Gomes, 969 F.2d 1290 , 1293 (1st Cir.1992) (citation and quotation marks omitted). Hammoude argues, and the government does not really contest, that, using this standard, no evidence exists to prove that he created a counterfeit "by use of a multiple-piece rubber stamp glued to a piece of paper." The image of the composite stamp on the folded-over paper, reproduced at Appendix B, is far too smeared and faint for any individual to think it an actual visa. This is especially true since it is not printed in a passport, which, as the government's witness testified, is necessary for a valid visa in all but a few instances. 38 Even if the impression of the composite stamp had transferred perfectly, it would have been far from a counterfeit. Each of the individual stamps had a thin rubber border along its edge, making it impossible for Hammoude to press the stamps or their images close enough together to create a good replica of a visa. An image from the composite stamp would have been nearly half an inch larger than the real visa and would have had six gaps interrupting the text and lines of the image wherever the color changed. In addition, no image before the jury contained other identifying features--such as a date of issuance, serial number, or the handwritten notations regarding the name, expiration date, and classification--necessary to a valid visa. See Gomes, 969 F.2d 1290 , 1294-95 (holding that blank social security cards are not counterfeits since they had no identifying features printed onto them). 39 For all these reasons, the composite stamp did not create--and could not have created--a sufficiently exact replica to have been a "counterfeit." Because the jury verdict form effectively prevented the jury from finding Hammoude guilty on any alternative set of facts, we reverse Hammoude's conviction under the third count. IV. 40 Because we have reversed his conviction on the first three counts, Hammoude's final point of appeal relates only to the fourth count--his conviction for making an impression of a visa in violation of section 1546(a). He argues that the trial court committed plain error by admitting a letter from his brother to a Kuwaiti colleague of his brother's, which included a postscript stating that if the colleague wanted a visa, he should send a "copy of his passport and photographs" to Hammoude's brother. The government's use of this letter, Hammoude claims, was an impermissible attempt to prove guilt by association. It was also prejudicial, he claims, because it discredited his testimony regarding his intent to use the stamps only to produce sample visas in a tourist pamphlet. 41 Because Hammoude did not object to the admission of the letter at trial, we review the district court's decision to admit it for plain error. We reverse only if the admission of the letter was clear error under established law of the circuit and significant enough to prejudice the jury. See United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770 , 1777, 123 L.Ed.2d 508 (1993); United States v. Mitchell, 996 F.2d 419 , 422 (D.C.Cir.1993). The Supreme Court has warned that we should reverse a conviction only if the error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." See Olano, --- U.S. at ----, 113 S.Ct. at 1779 (citation and quotation marks omitted). 42 We need not address the question of clear error because we find that Hammoude has not proven that he was prejudiced by the admission of the letter, let alone that it "seriously affected" the fairness of the proceedings. Overwhelming evidence, such as the order forms for the stamps, the photocopy that Gusdorf made at Hammoude's direction, and the stamps themselves, supports the jury's verdict that Hammoude created an "impression" of a visa in violation of section 1546(a). Even if the jury had ignored the letter and believed Hammoude's defense, he still would have reproduced a visa without authorization, and still would have violated the statute. The admission of the letter into evidence was thus not plain error. V. 43 Because a visa is not an identification document, and because the composite stamp could not have created an image of sufficient precision to be a counterfeit, we reverse Hammoude's convictions on the first three counts and remand for resentencing. The admission of the letter was not plain error, so we sustain Hammoude's 1546(a) conviction under the fourth count of creating an unauthorized impression of a visa. So ordered.Appendix A 44 (VOID stamp added by the court) 45 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLEAppendix B 46 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
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opinion_html_with_citations
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2012-04-17 05:18:08+00
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010combined
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f
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| 692,963 |
Buckley, Randolph, Tatel
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RU
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f
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Published
| 14 |
United States v. Mohammad Hassan Hammoude
| null |
UNITED STATES of America, Appellee, v. Mohammad Hassan HAMMOUDE, Appellant
| null | null |
<parties id="b376-3">
UNITED STATES of America, Appellee, v. Mohammad Hassan HAMMOUDE, Appellant.
</parties><br><docketnumber id="b376-6">
No. 91-3081.
</docketnumber><br><court id="b376-7">
United States Court of Appeals, District of Columbia Circuit.
</court><br><otherdate id="b376-8">
Argued Jan. 6, 1995.
</otherdate><br><decisiondate id="b376-9">
Decided March 17, 1995.
</decisiondate><br><otherdate id="b376-10">
Certiorari Denied June 5, 1995.
</otherdate><seealso id="AnG">
See 115 S.Ct. 2290.
</seealso><br><attorneys id="b377-5">
<span citation-index="1" class="star-pagination" label="289">
*289
</span>
Sandra G. Roland, Asst. Federal Public Defender, argued the cause, for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.
</attorneys><br><attorneys id="b377-6">
Lilly Ann Sanchez, Asst. U.S. Atty., argued the cause, for appellee. With her on the brief were Eric H. Holder, Jr.,, U.S. Atty., Roy W. McLeese, III, John R. Fisher and Craig S. Iscoe, Asst. U.S. Attys.
</attorneys><br><judges id="b377-7">
Before: BUCKLEY, RANDOLPH, and TATEL, Circuit Judges.
</judges>
| null | null | null |
See 115 S.Ct. 2290.
| null | null | 64,372 |
91-3081
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D.C. Circuit
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Court of Appeals for the D.C. Circuit
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4,827,786 |
CRAIN, J. | premier Performance Marine, L.L.C. appeals a judgment in favor of Bourg Insurance Agency, Inc., taxing Premier with costs in the amount of $1,457.78. Given the disposition of a related appeal, we find the judgment taxing costs to be premature, vacate the judgment, and remand for further proceedings. The trial court taxed costs in response to a motion filed by Bourg and in conjunction with a prior judgment that sustained Bourg’s exception of peremption and dismissed Premier’s claims against Bourg, with prejudice and at Premier’s cost. Where a final judgment casts one party with the payment of costs but does not specifically set forth the amount of those costs, the party in whose favor costs are awarded may file a rule to show cause to have the precise amount of costs set and taxed if not agreed upon by the parties. Cormier v. Roberson, 96-1107 (La.App. 1 Cir. 3/27/97), 691 So.2d 807, 810; see also La.Code Civ. Pro. art.1920; La. R.S. 13:3666(2). However, in a separate appeal decided this same date, this court reversed the judgment sustaining Bourg’s exception of peremption and remanded the case for further proceedings. See Atain Specialty Insurance Company v. Premier Performance Marine, LLC, 15-1128 (La.App. 1 Cir. 4/8/16), 193 So.3d 187. As a result of that ruling, Premier’s claims against Bourg remain pending and are no longer the subject of a final judgment. Therefore, the assessment of costs against Premier at this time is premature and must be vacated. See Cashio v. Encompass Insurance Company of America, 14-1035, 2014 WL 7332538, p. 2 (La.App. 1 Cir. 12/23/14). Accordingly, the June 23, 2015 judgment taxing costs in the amount of $1,457.78 against Premier is vacated, and this mat*194ter is remanded to Rthe trial. court for further proceedings. All costs of this appeal are assessed to .Boui;g Insurance Agency, Inc. VACATED AND REMANDED.
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opinion_xml_harvard
| 308 |
2021-08-22 15:05:47.066327+00
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020lead
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t
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f
| 5,014,969 |
Crain, Higginbotham, Pettigrew
| null |
U
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f
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Published
| 0 |
Atain Speciality Insurance Co. v. Premier Performance Marine, LLC
| null |
ATAIN SPECIALITY INSURANCE COMPANY v. PREMIER PERFORMANCE MARINE, LLC, Wendell Payne, Trudy G. Thibodeaux, Vickie Banker, Philip Banker and XYZ Insurance Company William P. Cambre and Rosa L. Cambre v. Premier Performance Marine, L.L.C., Bourg Insurance Agency, Inc., and XYZ Insurance Company
| null | null | null | null | null | null |
See also, 193 So.3d 187, 2016 WL 1394642.
| null | null | 60,255,660 |
Nos. 2015 CA 1308, 2015 CA 1309
| 0 |
lactapp
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SA
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t
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Louisiana Court of Appeal
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Louisiana Court of Appeal
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4,177,674 |
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For the reasons explained below, we affirm all of the convictions I. FACTUAL AND PROCEDURAL BACKGROUND In the weeks preceding the deaths of Nicole'Hiles and Larry Whiteker, _ Appellant and Nicole experienced serious marital discord and their fifteen-year marriage Was in jeopardy.' Nicole became romantically involved with Whiteker. Evidence presented at trial demonstrated that Appellant was very upset about that and that he was preoccupied with their relationship to the extent that he monitored their whereabouts After Nicole moved out of the marital re'sidence, Appellant threw her belongings onto the lawn and challenged her to come retrieve them. Police were called to keep the peace. Appellant also posted social media messages stating that he had discovered that Nicole was seeing someone else and that “the war has began.” On the day of the crimes, Appellant sent intimidating text messages to Nicole. He removed the door handles from Nicole’s car and challenged her to come get them. l-Ie also made hostile statements about the ' situation to others. Also on that day, Nicole sought an emergency protective order against Appellant. That evening, Nicole met Whiteker at his workplace and the two left together in Whiteker’s truck. At about the same time, Appellant was seen speedingand driving recklessly in his SUV. A short time later, witness Deborah Collins came upon the scene of the crimes. She found Appellant’s SUV, with smoke coming from its engine, crashed into the rear passenger’s side of Whiteker’s truck. Appellant stood on the ground near his truck, wounded but alive. Collins could see the bodies of Nicole and Whiteker slumped over inside of the truck; both were dead of gunshot wounds. Collins called 91 1 and While she was on the phone with the dispatcher, Appellant told her, “I killed my wife [and] I shot the homewrecker in there.” He also told Collins that he had shot himself. Before being taken to the hospital for treatment, Appellant admitted to police that he had killed Nicole and Whiteker. Investigators concluded that Appellant had crashed his vehicle into the rear quarter panel of Whiteker’s pickup, forcing it to spin around and come to a stop. The Commonwealth theorized that Appellant then fired several shots at Nicole and Whiteker, killing them before shooting himself twice, once in the left side of his chest and once in the abdominal area. Appellant survived the self- inflicted wounds, however his colon was destroyed and he has a permanent colostomy. Appellant was charged with two counts of murder, a capital offense,2 and two counts of wanton endangerment, a Class D felony. Appellant does not deny that he fired the shots that killed his wife, Nicole, and her friend, Larry Whiteker. Instead, he claimed that his crime was mitigated because he acted under the influence of an extreme emotional disturbance (EED). The jury rejected his EED defense; he was convicted of all charges and sentenced as noted above. This appeal followed as a matter of right. II. OPINION TESTIMONY CONCERNING WHETH_ER_ APPELLANT WAS ACTING UNDER EED AT THE TIME OF THE SHOO_TINGS Appellant’s first argument is that “the Commonwealth repeatedly elicited inadmissible opinion testimony and legal conclusions that [Appellant] was not acting under EED.” Appellant concedes that this issue is not preserved but requests review for palpable error under RCr 10.26. Appellant cites the testimony of four witnesses: Police Officer'Tony Stigers; Officer Brian Cochran, 2 The Commonwealth did not seek the death penalty. 4 a crime scene specialist; Dr. Timothy Fritz; and Paramedic Ken Ball. We begin with a summary of the cited testimony. A. Officer Stigers Officer Stigers was one of the police officers who responded to the crime scene. His testimony for the Commonwealth recounted his investigatory activities on the night of the crimes. On cross-examination, Appellant’s attorney asked Stigers if he could ascertain Appellant’s state of mind during the shooting. Stigers responded that he could not say whether Appellant was acting under EED at the time of the shooting. Upon redirect, t_o follow-up on that line of inquiry, the Commonwealth asked the following: Commonwealth: So let’s deal with that, in your investigation Did I understand you to testify that Shaun Hiles, immediately after he killed these two people, was calm in his demeanor? Stigers: Yes, Sir. Commonwealth: He Was not showing any emotions? Stigers: No, Sir. Commonwealth: He didn’t cry to you that I became enraged, and I was ~ out of my mind when I shot and killed these people, did he? In fact, he coolly and calmly told you that he had just killed two people, is that ' correct? _Stigers: That’s correct. Appellant also cites as improper the section-.of` Stiger’s testimony in which the Commonwealth elicited Stiger’s opinion that, because Appellant tore off the door handles of Nicole’S car and bragged about it, he must have acted intentionally When he shot Nicole and Whiteker. 5 B. Officer Cochran Officer Cochran is a crime scene specialist who investigated the shooting. Cochran surmised upon direct examination that there had been a “concentrated line of [gun] fire” directed toward the two victims. On cross- examination, Cochran explained that he was not testifying about Appellant’s state of mind, only the direction of the gunfire. Then, upon re-direct and in response to Appellant’S inquiry, the Commonwealth asked Cochran how he might go about determining someone’s mental state: Cochran: There’s a lot of background information that goes in. It’s generally not a crime scene aspect, it’s a lot of background work; talking to folks and things of that nature. Commonwealth: So if I’m hearing what_you’re saying, you investigate the circumstances both before and after the act, and based on that, a determination of state of mind is made? Cochran: That’s correct; this is a small component of that overall determination Commonwealth: And what you’ve determined here, as it goes to state of mind, is whoever was firing this weapon, knew what they were doing, because they fired a concentrated set of bullets, didn’t they? ' Cochran: I Would say it’s in a very controlled manner. C. Dr. Fi'itz Dr. Fritz treated Appellant’s wounds at the hospital. Fritz described Appellant as “combative and in extremis,” behavior he considered consistent with someone who had suffered a significant wound to the chest. The Commonwealth then asked Fritz if Appellant had shown “any remorse or any type of emotion whatsoever in regard” to having just killed two people. Fritz 6 . responded, “We were not discussing that situation.” He said Appellant made no mention of the circumstances surrounding his injury. The Commonwealth again asked if Appellant was “in any way remorseful or emotional.” Fritz responded that Appellant was “emotional consistent with someone shot in the chest, he was appropriately upset.” D. Ken Ball Ball is a paramedic Who treated Appellant at the scene of the shootings. Over Appellant’S objection, Ball was permitted to testify concerning Appellant’s vital signs immediately after the shooting. After Ball read off the medical information, the prosecutor stated that the readings did not seem abnormal, and in regards to the blood pressure reading stated, “In fact, I should have as good, correct.” Ball confirmed the accuracy of that conclusion. E. Analysis Appellant casts the foregoing testimony as testimony of non-expert witnesses expressing, in violation of KRE 701, opinions that Appellant was not acting under EED 'at the time of the shootings. He concedes that this issue is not preserved for appellate review. “Under RCr 10.26, we may grant relief for an unpreserved error when the error is: (1) palpable; (2) affects the substantial rights of a party; and (3) has caused a manifest injustice.” Spears v. Commonwealth, 448 S.W.3d 781 , 791 (Ky. 2014) (citing Commonwealth v. Jones, 283 S.W.3d 665 , 668 (Ky. 2009)). For an error to be palpable, “it must be easily perceptible, plain, obvious and readily noticeable.” Brewer v. Commonwealth 206 S.W.3d 343 , 349 (Ky. 7 2006). “Implicit in the concept of palpable error correction is that the error is so obvious that the trial court was remiss in failing to act upon it sua sponte.” Lamb v. Commonwealth 510 S.W.3d 316 , 325 (Ky. 2017). “‘Manifest’ injustice requires showing a probability of a different result or errorrso fundamental as to threaten a defendant's entitlement to due_process of law, i.e., the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be “shocking or jurisprudentially intolerable.” Spears, 448 S.W.3d at 791 (citing Martin v. Commonwealth, 207 S.W.3d 1 , 3-4 (Ky. 2006)]. KRE 701 states: lf the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are: (a) Rationally based on the perception of the witness; (b] Helpful to a clear understanding of the witness' testimony or the determination of a fact in issue; and [c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Our review of the testimony cited by Appellant as improper opinion evidence exposes the inaccuracy of Appellant’s initial premise that the Commonwealth “repeatedly elicited inadmissible opinion testimony and legal conclusions that Shaun was not acting under EED” at the time of the shooting. Fritz and Ball provided no testimony at all that could reasonably be construed as an opinion or conclusion concerning whether Appellant was acting under EED at the time of the shooting. With regard to the cited testimony of Stigers and Cochran, we first note that it was Appellant, during cross-examination, who broached the subject § concerning the issue of Appellant’s state of mind (presumably in the advancement of his EED defense], and so the cited re-direct testimony is in large part a product of Appellant having previously “opened the door” to the issue by raising it himself on cross-examination. Professor Lawson describes the concept of “_curative admission” or “opening the door” as follows: ‘The term “opening the door” describes What happens when one party introduces evidence and another introduces counterproof to refute or contradict the initial evidence If the first party objects to the counterproof, or loses the case and claims error in admitting it, typically the objection or claim of error is rejected because he opened the door.’ Lawson, Kentucky Evidence § 1.10[5], at 43 (quoting Mueller 85 Kirkpatrick, Federal Evidence § 12 (2d ed. 1994)) [ellipsis in original). With Appellant himself having first questioned Stigers and Cochran about Appellant’s emotional state-of~mind, the`Common-wealth’s limited follow-up on redirect falls well within the rule that if one party opens the door to an issue, the opposing party is entitled to follow-up, clarify, and rebut the evidence as raised by his opponent. Stigers’ testimony concerned Appellant’s outward, observable demeanor, which is proper testimony. KRE 602 permits a witness to describe another person’s “conduct, demeanor, and statements [ ] based upon his or her observations to the extent that the testimony is not otherwise excluded by_.the Rules of Evidence.” Ordway v. Commonwealth, 391 S.W.3d 762 , 777 (Ky. 9 2013). Similarly; on cross-examination, Cochran specifically disclaimed any ability to testify about Appellant’s state of mind. He confined his opinion testimony to the gunshot trajectories. Cochran’s only testimony regarding a shooter’s mental state was directed toward the'manner in which Such a sequence of shots might be fired. He gave no opinion concerning the motivation or mental state of the shooter or whether Appellant was acting under EED on this particular occasion. In summary, we find no error at all within the cited testimony, and so we are unpersuaded that a manifest injustice occurred as a result of the testimony to which Appellant has directed us. R_Cr 10.26. III. TESTIMONY CONCERNING APPELLANT’S DEMEANOR PRIOR TO THE SHOOTING Appellant contends that palpable error occurred when witness Mark Miller testified that when he saw Appellant earlier on the day of the fatal incident. Appellant Was visibly upset and Was cursing repeatedly. Appellant also complains that Miller testified that his granddaughter received baby- sitting care at a residence also frequented by Nicole and Whiteker. Miller explained that he had feared for his granddaughter’s well-being because “if he [Appellant] goes down to that house, it won’t be good.” Miller testified that he was so worried about what Appellant might do that he could not- sleep that night, and that he ended up at the hospital “because of the stress of the whole situation.” 10 Because EED was Appellant’s defense against the murder charges, testimony about his emotional condition in the hours leading up to the killings was decidedly relevant, and probative of a crucial issue in the trial_t_he emotions that may have motivated Appellant’s later behavior. Miller’s description of Appellant’s demeanor was admissible However, Miller’s testimony about his concern for his granddaughter’s safety'and his contemporaneous speculations about what might happen if Appellant went to the residence While Nicole was there, and his Subsequent resort to medical assistance because of the stress was all inadmissible as irrelevant, and it should not have been presented. Appellant never objected to the testimony so We are again constrained to palpable error review under RCr 10.26. As noted above, in order to be entitled to relief under the palpable error standard, a defendant must show that absent the error --that there is a reasonable probability that a different result would have occurred, or that the _ error was so fundamental as to threaten a defendant‘s entitlement to due process of law, i.e., that the error so seriously affected the fairness, integrity, or public reputation of the proceeding so as to be “shocking or jurisprudentially intolerable.” Spears, 448 S.W.3d at 791 . We are not persuaded that Miller’s irrelevant testimony was so consequential that it affected the verdicts,- or that its admission was error so fundamental as to threaten Appellant’s entitlement to due process of law, or undermine the fairness, integrity, or public reputation of the proceeding as to 11 be “shocking or jurisprudentially intolerable.” Accordingly, we reject Appellant’s claim that reversal is required. IV. IMPROPER CLOSING ARGUMENT Appellant contends that the prosecutor engaged in two instances of ~ improper closing arguments First, he contends that the prosecutor misstated the law applicable to EED. Second, he contends that the prosecutor argued facts not in evidence. Appellant concedes that this argument is not preserved but requests palpable error review under RCr 10.26. A. Misstating the Law of EED In McClellan v. Commonwealth, we defined extreme emotional disturbance as: a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgrnent, and -to cause one to act uncontrollany from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes lt is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under circumstances as defendant believed them to be. 715 S.W.2d 464 , 468-69 (Ky. 1986] (emphasis added). This definition is incorporated into KRS 507 .020(1)(a]: a person shall not be guilty [of murder] if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. 12 Appellant argued at trial that the circumstances surrounding the collapse of his marriage provided the reasonable explanation for his violent outburst. While addressing Appellant’s EED defense during closing arguments, the prosecutor told the jury that EED did not apply in this case unless there was “some reasonable explanation” for the disturbance, and that by urging the jury to find that he acted under EED, Appellant was asking them “to say going through a divorce [is] somehow explainable as EED.” Appellant contends that these remarks -to the jury “distorted the law.” We disagree The prosecutor’s statement that Appellant’s claim of EED could not stand unless accompanied by a “reasonable explanation” is fundamentally consistent with McClellan and KRS 507.020(1)(a). To qualify as EED, the temporary loss of judgment that mitigates a murder charge must have a reasonable explanation that accounts for the temporary loss of sound judgment by a person in the'defendant’s situation. Moreover, we do not regard the prosecutor’s argument as an attempt to explain the law to the jury. Rather, we see it as simply a response to Appellant’s contrary assertion, an attempt to persuade the jury that the rather common stress of going through a divorce, even under the difficult circumstances faced by Appellant, would not reasonably explain Appellant’s loss of judgrnent, causing him to “act uncontrollany from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.” 13 In summary, Appellant overstates the significance of the prosecutor’s remarks. The prosecutor’s comment did not distort the law applicable to EED. We see no error here, B. Arguing of Facts not in Evide.`nce Appellant also contends that the prosecutor’s closing argument urged the jury to consider facts not in evidence. Although an attempt to commit suicide may be the most plausible explanation for the fact that Appellant shot himself in the chest and the abdomen, the prosecutor`challenged that hypothesis with the suggestion that Appellant may have intended only to Wound himself. The prosecutor argued to the jury, “I do know one thing, if I had that marksmanship ability that he did and l wanted to kill myself, l would’ve done it, that gun barrel would have gone in my mouth or up against my heart.” Appellant contends that no evidence at trial supported the prosecutor’s charge that Appellant was a skilled marksman, and thus the prosecutor improperly interjected that fact, “[Attorneys] may draw reasonable inferences from the evidence and propound their explanations of the evidence and why the evidence supports their respective theories of the case. l-lowever, they may not argue facts that are not'in evidence or reasonably inferable from the evidence.” Garrett v. Commonwealth, 48 S.W.3d 6 , 16 (Ky. 2001](citations omitted). We disagree with Appellant’s contention. Evidence indicated that he had a concealed carry license which requires a basic level of competence with firearms. The proficiency of his marksmanship was evidenced by the fact that 14 he targeted both Nicole and Whiteker and he hit both of them. The prosecutor did not attribute to Appellant a greater level of marksmanship than that which could be reasonably inferred from the evidence. We find no error in that aspect of the prosecutor’s closing argument V. PENALTY PHASE ARGUMENTS AND INSTRUCTIONS Appellant next contends that the penalty phase jury instructions were configured so as to compel the jurors to impose either life without parole or life without.parole for 25 years if it found the existence of an- aggravating factor, thereby preventing the jury from imposing the lesser alternatives of either: 1) a term of imprisonment for life; or 2] imprisonment for a term of not less than 20 nor more than 50 years. The jury found the existence of the aggravating factor, that Appellant’s acts were intentional and_ resulted in multiple deaths, and fixed his sentence for each death at life without the possibility of parole. Appellant concedes that this issue is not preserved but requests palpable error review pursuant to RCr 10.26. A. The Instructions The penalty phase instructions for both the Nicole and Whiteker murders contain the same alleged idefect. In order to illustrate the alleged error we use the penalty phase instructions applicable to Whiteker. Instruction No. 5 sets forth the authorized -sentences for capital murder and clearly indicated the full range of possible sentences: INSTRUCTION NO. 5 MURDER 15 You may fix the Defendant’s punishment for the Murder of Larry Whiteker at: (1) Confinement in the penitentiary for not less than twenty (20] years nor more than fifty (50) years; OR', (2) Confinement in the penitentiary for life; OR, (3) Confinement in the penitentiary for life without benefit of probation or parole until he has served a minimum of twenty-five (25) years of his sentence; OR, ~ (4) Confinement in the penitentiary for life without benefit of probation or parole. But you cannot fix his sentence at confinement in the penitentiary for life without benefit of probation or parole, or at confinement in the penitentiary for life without benefit of probation or parole until he has served a minimum of twenty-five (25) years of his sentence, unless you are satisfied from the evidence beyond a reasonable doubt that the statement listed in Instruction No. 3 (Aggravating Circumstance) is true in its entirety, in which event you must state in writing, signed by the foreman, that you find the aggravating circumstance to be true beyond a reasonable doubt. You shall use Verdict Form “2” in reaching your verdict under this Instruction. Continue to Instruction 6. The latter portion of Verdict Form No. 2 contains the alleged error: 16 VERDICT FORM NO. “2” MURDER M We, the jury, fix the Defendant Shaun E. l-liles’ punishment for the offense of Murder of Larry Whiteker at: Confinement in the penitentiary for not less than twenty (20) years nor more than fifty (50) years years Foreperson NO. 2 We, the jury, fix the Defendant Shaun E. Hiles’ punishment for the Murder of Larry Whiteker at confinement in the penitentiary for life. Foreperson NO. 3 We, the jury, find beyond a reasonable doubt that the aggravating circumstance described in Instruction No. 3, “The offense of Murder was committed, and Defendant’s act or acts of killing were intentional and resulted in multiple deaths” (CLEARLY CIRCLE ONE OF THE FOLLOWING): HAS [Cr`rcled] HAS NOT _ been proven from the evidence beyond a reasonable doubt. We, the jury, fix the Defendant Shaun E. Hiles’s punishment for the Murder of Larry Whiteker at: (CLEARLY CIRCLE A. or B.) A. Confinement in the penitentiary for life without benefit of probation or parole until he has served a minimum of twenty-five (25) years of his sentence; OR, B. Confinement in the penitentiary for life without benefit of probation or parole. [B. was circled by the Jury] 17 Foreperson B. The Prosecutor’s Er'roneous Statement Appellant further contends that the error was compounded based upon h the Commonwealth’s misleading statement during its closing argument concerning the ramifications of a finding of an aggravating factor: , ¢_,~.’ ln other words, the defendant committed the acts intentionally and did it result in multiple deaths? If you start there and you apply the law that you swore you would apply, then you ’ve got but two options out of the four, and that is, as shown on down the page, A or B, either life without the benefit of probation or parole or life without parole, period. . C. Analysis We begin by noting that the prosecutor’s statement that if the jury found an aggravating factor “then you’ve got but two options out of the four, and that is, as shown on down the page, A or B, either life without the benefit of probation or parole or life without parole, period” is an egregious misstatement of the relevant sentencing law and indeed is utterly contradicted by Instruction No. 5 as set forth above. In fact, contrary to the prosecutor’s statement, if a capital case jury finds an aggravating circumstance, it need not impose a sentence authorized only in the event of the finding of an aggravator; rather, even in that instance it may still impose a sentence authorized in the absence of the finding of an aggravator. See Dunlap v. Commonwealth, 435 S.W.3d 537 , 610 (Ky. 2013). The prosecutor’s statement was thus erroneous. 18 With regard to the configuration of the jury instructions, Verdict Form 2 first gives the jury an opportunity to impose a non-capital sentence of a term of years or life. Only if it refrains from doing that does it then move to ascertaining the presence of an aggravating factor, and at this point, the instructions are indeed flawed. As guided by the instructions, if the jury determines the existence of an aggravating factor, it then has only the option of two capital case sentencing ranges: life without parole or life without parole for twenty-five years (the Commonwealth did not seek the death penalty in this case). lf the instructions are faithfully followed, the jury that finds the existence of an aggravating factor, such as multiple deaths, is limited to two sentencing options: life without-parole or life without parole for twenty-five years. That is an incorrect presentation of the applicable sentencing options. -Under the Statutory Scheme for capital offense sentencing, even after finding a capital offense sentencing aggravator, the jury may still recommend a sentence of imprisonment for a term of years (not less than twenty nor more than fifty), o_r imprisonment for life. Dunlap at 610. The instructions should have presented the jury with the additional options of fixing a sentence of imprisonment for a term of years or for life, even if the jury found the presence of an aggravating factor, We agree with Appellant that the jury instructions and the prosecutor’s statement are both erroneous. Erroneous jury instructions are presumed prejudicial Harp v. Commonwealth, 266 S.W.Bd 813, 818 (Ky. 2008]. “Of 19 course, that presumption can be successfully rebutted by showing that the error ‘did not affect the verdict or judgment.’” Id. Clearly, the prosecutor compounded the problem by emphasizing the erroneous instruction in his closing argument Nevertheless, under the applicable standard for unpreserved claims _of error, we are not persuaded that manifest injustice occurred, given the facts of this case. Most compelling is the fact that after the jury found the aggravating factor, it by-passed the lower sentencing option_life without parole for twenty- five` years_and instead selected the higher sentence of life without the possibility of parole, the greatest sentence possible in this case. From this unique circumstance, logic dictates that if the jury were otherwise inclined toward the lesser sentences of imprisonment for life of a term of years, then it would have chosen the lesser of the two sentencing options before it: life without parole for twenty-five years Having rejected that lesser option, we see no realistic prospect that the jury might have chosen an even lesser alternative of either imprisonment for life or a term of years which should have been before it. We are also influenced by other aspects of the jury instructions which informed the jurors that their full range of sentencing options included life imprisonment and imprisonment for a term of years Jury Instruction 5 specifically informed the jury that these sentencing options were authorized sentences Further, a different aspect of the way Verdict Form 2 was structured arguably favored Appellant in that the jury was first invited to 20 recommend a term of years or life, and only then was directed to move to the aggravating factor section with its capital sentencing options In other words, if the jury had been inclined to recommend a sentence of fifty years (or some other term of years], it could have done that in'the first section of Jury Form 2 and in that event, it would never have reached the erroneous capital sentencing section further down the page. ‘While we agree that the jury instructions contained flaws and that the n prosecutor misstated the jury’s sentencing options upon the finding of aggravating circumstances theSe€I'rors were never brought to the attention of the trial court. We are convinced that these unpreserved errors did not affect the ultimate sentencing decision made by the jury, and we are convinced that these unpreserved errors were not so fundamental so as to deprive Appellant of his right to due process of law. The errors did not fundamentally affect the fairness, integrity, or public reputation of the proceeding as to be “shocking or jurisprudentially intolerable.” Spears, supra . Accordingly, we are satisfied that the errors did not cause manifest injustice so as to require reversal of the judgment under RCr 10.26. VI. APPELLANT WAS NOT ENTITLED TO A DIRECT_ED ilERDICT ON THE WANTON ENDANGERMENT CHARGES Appellant’s convictions for wanton endangerment are predicated upon the allegations that he intentionally crashed his SUV into Whiteker’s truck, thus wantonly endangering the occupants of that vehicle, Nicole and Whiteker. Appellant argues that`he was entitled to a directed verdict on the two wanton 21 endangerment charges He concedes that the issue is not preserved for appellate review but requests review nonetheless under the palpable error standard. KRs 503.060("1) provides that A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct Which creates a substantial danger of death or serious physical injury to another ,person. KRS 501.020(3] defines wantonly as follows: “Wantonly” -- A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto. To prove these charges the Commonwealth presented the testimony of an automobile collision reconstructionist who opined that when Appellant’s SUV crashed into Whiteker’s truck, both vehicles were traveling on a narrow country roadway at a speed of more than seventy miles per hour. The expert deduced that when Whiteker braked to turn right onto a second narrow road, Appellant caught up and rammed into the right rear side of the Whiteker vehicle, spinning it to a stop. ln his brief, Appellant frames his argument as follows: [t]here was no evidence that Shaun _was acting wantonly when he hit Whiteker’s pickup truck. To the contrary, the Commonwealth called accident reconstructionist Scott Conrad to testify that 22 Shaun’S collision with Whiteker appeared to be the result of an intentional hit. (Emphasis in original). As we construe the argument, Appellant contends that he could not be convicted of wanton endangerment because, as the Commonwealth’s evidence establishes he was acting intentionally rather than wantonly, when he crashed his SUV into Whiteker’s occupied pickup. We find no basis to support the proposition suggested by Appellant. The definition of Wanton conduct explicitly embodies the notion that the defendant “is aware of and consciously disregards a substantial and unjustifiable risk” entailed by his dangerous behavior, but then proceeds to engage in the conduct despite that risk. The quintessential example of wanton conduct is intentionally firing a gun into a crowd or intentionally throwing a bomb into an occupied building Upon viewing the evidence in the light most favorable to the Commonwealth, a reasonable jury could easily conclude that Appellant intentionally crashed into Whiteker’s truck and that he was at that time aware of substantial risk created by his conduct and yet he consciously disregarded those risks and proceeded nonetheless Appellant was-not entitled to a directed verdict on the wanton endangerment charges regardless of his failure to preserve the issue. lt follows that Appellant is not entitled to relief under the manifest injustice standard of RCr 10.26 VII. THE WANTON ENDANGERMENT CONVICTIONS ARE NOT BARRED BY DOUBLE JEOPARDY ' 23 Finally, Appellant contends his convictions for murdering Nicole and Whiteker and for wantonly endangering them violate the statutory double jeopardy provisions of KRS 505.020(1). Specifically, he argues that “the act of slamming into Whiteker’s truck and shooting the occupants was one event, _ uninterrupted by legal process and cannot be prosecuted as two separate crimes[.]” KRS 505.020[1) provides as follows (1) When a single course of conduct of a defendant may establish the commission -of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense When: (a) One offense is included in the other, as defined in subsection (2); 01’ (b) Inconsistent findings of fact are required to establish the commission of the offenses; or (c) The offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process unless the law expressly provides that specific periods of such conduct constitute separate offenses Appellant does not elaborate upon his parsing of why KRS 505.020(1) would preclude convictions for both Wanton endangerment and murder under the facts of this case; however, it is clear that the plain language of the statute permits prosecutions for both wanton endangerment and murder under the circumstances presented here. The statute begins by accentuating this general rule: When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. Assurning, 24 therefore, that-Appellant’s conduct of crashing his vehicle into Whiteker’s truck and then shooting the occupants is but a single course of conduct, if two offenses may be established by the conduct, then he may be prosecuted for both. Plainly, the ramming of the occupied truck establishes the two offenses of wanton endangerment and the separate act of shooting the occupants during the same course of conduct establishes the two offenses of murder. _ The remainder of KRS 505.020[1) proceeds to establish exceptions to the general rule. A defendant may not be convicted for two (or more) crimes for the same course of conduct if (a) one of the crimes is a lesser included offense of the other; [b] inconsistent facts would have to be reached to convict the defendant of both of the crimes; or [c) the offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process unless the law expressly provides that specific periods of such conduct constitute separate offenses Subsection (a) does not apply because the wanton endangerment charges are not, under these circumstances a lesser included offense of the murder charges indeed the wanton endangerment charges resulted from Appellant’s crashing his vehicle into Whiteker’s vehicle Whereas the murder charges involved the entirely separate event of his shooting of the victims As we explained in Spicer v. Commonwealth, KRS 505.020(1) “does not bar the prosecution or conviction upon multiple offenses arising out of a single course of conduct when the facts establish that two or more separate and distinct attacks occurred during the episode of criminal behavior. [F]or multiple 25 convictions to be proper, there must have been a cognizable lapse in his course of conduct during which the defendant could have reflected upon his conduct, if only momentarily, and formed the intent to commit additional`acts.” 442 S.W.3d 26 , 31 (Ky. 2014] (citing Kiper v. Commonwealth, 333 S.w.3d 736, 745 ' (Ky. 2012)). Subsection [b) similarly does not apply because the jury need not have reached inconsistent facts in order to have convicted Appellant under each of the sets of charges Finally, Subsection (c) does not apply because it applies only to offenses “designed to prohibit a continuing course of conduct[.]” Unlike, for example, the crime of the offense of nonsupport of a dependent, neither the crimes of murder nor wanton endangerment were'designed by the` legislature to prohibit a continuing course of conduct. Accordingly, this subsection is inappl`icable. Welbom v. Commonwealth, 157 S.W.3d 608 , 612 (Ky. 2005) ln summary, Appellant’s convictions for the multiple crimes of murder and wanton endangerment are not barred by KRS 505.020[1]. VIII. CONCLUSION For the foregoing reasons the judgment of the Grant Circuit Court is affirmed. All sitting. All concur. 26 COUNSEL FOR APPELLANT: Erin l-Ioffman Yang Assistant Public Advocate COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky David Bryan Abner Assistant Attorney General 27
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2017-06-15 14:11:43.213242+00
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| 4,400,421 | null | null |
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Shaun Hiles v. Commonwealth of Kentucky
| null | null | null | null | null | null | null | null | null | null | null | 6,074,590 |
2016 SC 000127
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Kentucky Supreme Court
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Kentucky Supreme Court
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5,530,509 |
Jasen, J. The principal issue presented for our consideration is whether, in a prosecution for homicide,1 a defendant, in support of his contention that he had reasonable grounds to believe himself in imminent danger from an assault by the deceased, may offer evidence to show that, prior to the homicide, the deceased committed specific acts of violence of which the defendant had knowledge. Defendant Willie Miller was charged with fatally shooting his sister Minnie in the course of a violent family quarrel. After work on October 12, 1972, the members of the Miller family returned home from their various places of employment. Among the persons present in the home were the defendant, then 20 years old, the deceased, 22 years old, their mother, Mrs. Mae Miller, their sister and the deceased’s boyfriend, a man named Eddie Brooks. Brooks came prepared with a quantity of Seconal capsules which he distributed to the members of the family. Both Willie and Minnie ingested at least two pills apiece. Brooks also had marijuana, which was proffered to a number of persons, again including the defendant and the deceased. After Brooks left the house, Willie and Minnie went out to cash her paycheck, using some of the cash thus obtained to purchase liquor. During the course of the next few hours, the family and friends played some records, danced and drank quantities of "screwdrivers”, wine and beer. At some point in the evening, Minnie announced that she was drunk and retired upstairs to take a nap. Sometime after midnight, Minnie awakened and discovered that the remaining money from her cashed paycheck was missing. She became extremely distraught and accused her mother of stealing the money. After Minnie had left the party, *547Mae Miller had gone out to visit a nearby friend. Willie brought her back to the house so that she might deny the accusation. As soon as Mae Miller returned home, Minnie stridently repeated her allegations and endeavored to strike her mother. Willie grabbed her arm and forced her down to her side. The mother started to cry and frightened, she sat down out of harm’s way. Minnie, however, directed her attentions at her brother. She began to punch, kick and grab him, cursing and swearing at him all the while. Willie, on the other hand, was simply trying to calm his sister down. When others attempted to subdue Minnie, she pushed them out of the way. Minnie ripped out the wires from a television set she had purchased for her mother. At one point, Willie attempted to hold Minnie down in a chair but could not restrain her for very long. Still incensed, Minnie went into the kitchen, followed by Willie. Minnie warned him off, telling him "Get out of here before I kill you”. She reached into a drawer and removed a large barbecue fork. When this was wrestled away from her without damage, she went back to the drawer and pulled out a butcher knife. She slashed at one side of Willie’s face, knocking off his glasses and cutting his chin. Willie fled from the kitchen and ran upstairs. Minnie returned to the living room where she stood for a time in the corner "slobbering” at the mouth. According to Willie’s testimony at the trial, Minnie returned upstairs, remarked that she should have cut his throat when they were downstairs, and told him that she was going to kill him. When she continued to advance, Willie backed up into his room and lifted his shotgun from a corner of his closet. When Willie emerged from his room, Minnie was still outside, holding the knife in her upraised hand. As she started walking towards him, he fired the shotgun, inflicting a fatal abdominal wound. After the shooting, defendant co-operated fully with the police. He voluntarily gave them a sworn statement which shed great doubt on his claim of self-defense. In the statement Willie stated that his shotgun was stored in a closet, that he loaded it and took care to be certain that the safety was off. "My mother had come into the room, and tried to get the gun away from me. I pushed her away, walked into the hallway, where my sister was still screaming about what she was going to do to me; I looked to my sister who was then standing about eight to ten feet away from my room, and pointed the *548gun at her from my hip, and discharged same toward her.” He also stated that he did not actually see a knife in her hand, although it was his opinion that she still had the knife. Even more damaging was his statement that, after being cut, he told his sister, "OK, I’m going to get you.” At the trial, to substantiate the defense claim of justification, counsel attempted to elicit from various witnesses the details of specific instances of violent behavior on the part of the deceased of which the entire family, including defendant, was aware. The defense offered to prove that Minnie would become extremely violent when under the influence of alcohol or drugs, that she had been confined in a mental institution, that she had once fought with her mother and bit her mother’s finger so severely that the nail had to be removed, that she had pushed her mother down a flight of stairs, that Minnie had, on occasion, thrown objects at her mother, and had once, for no apparent reason, jumped through a glass window. The trial court, citing People v Rodawald (177 NY 408), refused to permit the defendant to introduce evidence of specific violent acts of the deceased. In response to defense counsel’s argument that as a matter of commonsense proof of specific acts should be admissible because of its probative value, the court stated that "[ujnfortunately the law of the State of New York hasn’t gone into that.” The jury found the defendant guilty of murder. The Appellate Division, with one Justice dissenting, affirmed the conviction, noting that, in its view, "the trial court properly refused to allow questions framed by the defense counsel which were directed to specific acts of violence”. (People v Miller; 46 AD2d 108, 109.) A defendant in a homicide or assault prosecution may assert, as a defense, that his use of physical force upon the alleged victim was not unlawful since it was necessary to protect himself or others from the victim’s aggression. (See Penal Law, § 35.15.) The defense is only available where the belief of the defendant that he was subject to an imminent attack is a reasonable one. Thus, the perceptions, the state of mind, of the participants to the encounter are critical to a ^plaim of justification. It has long been the rule in this State that a defendant, in a prosecution for homicide, may introduce evidence that the deceased had a reputation as a "quarrelsome, vindicative or violent” person, provided that the defendant was aware of this *549reputation at the time of the incident. (People v Rodawald, 177 NY 408, 423, supra; People v Gaimari, 176 NY 84, 95; People v Flournoy, 14 AD2d 854.) "The character of the deceased with reference to violence, when known to the accused, enables him to judge of the danger and aids the jury in deciding whether he acted in good faith and upon the honest belief that his life was in peril. It shows the state of his mind as to the necessity of defending himself.” (People v Rodawald, supra, p 423; see, generally, Evidence—Self-Defense—Reputation, Ann., 1 ALR3d 571.) Similarly, the threats of the deceased against the defendant are admissible, whether communicated to the defendant or not. Even if the defendant was not aware of the threat, the threat still is probative of the deceased’s state of mind and bears, thus, on whether the deceased was the aggressor. (Stokes v People, 53 NY 164, 174.) On the other hand, if the defendant did hear of the threat, the threat may also serve to indicate the defendant’s own apprehensive state of mind. (People v Gaimari, 176 NY 84, 95, supra; Richardson, Evidence [10 ed], § 157.) The courts of our State have consistently held that while the deceased’s general reputation for violence is provable, evidence of specific acts of violence by the deceased is inadmissible. (Eggler v People, 56 NY 642; Thomas v People, 67 NY 218, 223; People v Druse, 103 NY 655; People v Gaimari, 176 NY 84, 95, supra.) "[T]his is improper”, we said in People v Rodawald (supra), "not only because character is never established by proof of individual acts, but because each specific act shown would create a new issue.” (177 NY 408, 424; see 40 CJS, Homicide, § 222, subd a, par [2], pp 1141-1142.) Today we are called upon to reconsider this aspect of the rule. The rule we have followed in New York is the traditional rule and, for many years, was the general rule. (See Self-Defense—Evidence—Admissibility, Ann., 121 ALR 380, 382.) However, the trend of the decisions in other jurisdictions, even in certain jurisdictions which formerly denied the admissibility of testimony as to specific acts, is towards the admissibility of such evidence.2 *550The States that authorize the admission of prior violent acts of the deceased, known to the defendant, stress the relevance of such evidence on the issue of whether the defendant’s asserted fear of the deceased was reasonable. (See McMorris v State, 58 Wis 2d 144; State v Gordon, 37 Del 219, 222.) Noted commentators have taken similar positions. (See 1 Wigmore, Evidence [3d ed], § 198, pp 676-677; Richardson, Evidence [10th ed], § 157, p 128; see, also, Comment, 1974 Wis L Rev 266.) A few jurisdictions have gone so far as to permit the defendant to introduce into evidence the criminal record of the deceased. (See Commonwealth v Amos, 445 Pa 297; cf. Ruffin v State, 50 Del 83.) On the other hand, the States that continue to adhere to the traditional rule of exclusion place emphasis upon the theory that a reputation for violence cannot be proved by evidence of specific acts. (See State v Maggitt, 517 SW2d 105 [Mo]; Johnson v Commonwealth, 477 SW2d 159 [Ky].) While it has long been recognized that circumstantial evidence of the victim’s character and reputation is relevant to show the state of the defendant’s mind as to the necessity of defending himself, such evidence was not always admissible. (Cf. Richardson, Evidence [10th ed], §§ 145, 149, 157.) Reasons of policy have led the courts to impose restrictions upon the method by which this relevant evidence may be proved and to regulate, carefully, the extent to which such evidence may be received in particular cases. The most fundamental policy consideration is that every person, regardless of his relative worth to the community, has the right to live undisturbed by unlawful assault. Since "the worst man has the right to live the same as the best, no one may attack another because his general reputation is bad.” (People v Rodawald, 177 NY 408, 422-423, supra.) Thus, evi*551dence that the deceased generally had a poor reputation in the community is not admissible lest a jury find a homicide justifiable for the wrong reason—i.e., that the deceased was unworthy of life. This fear has also militated against the admission of proof that the deceased committed specific vicious, immoral or illegal acts in the past. A second consideration is the need to carefully limit and narrow the issues that the jury must decide. In our adversary system, it is important to rivet the jury’s attention on the real issues at trial without undue diversion to collateral matters having little or no bearing on the guilt or innocence of the defendant. (Cf. People v Van Gaasbeck, 189 NY 408, 418.) These considerations are, of course, not without counterbalancing factors. The paramount purpose of all rules of evidence is to ensure that the jury will hear all pertinent, reliable and probative evidence which bears on the disputed issues. The considerations heretofore discussed do not mandate the total exclusion of character evidence; rather, they explain the need for careful and reasonable rules by which relevant facts may be adduced in an orderly manner, without causing needless confusion and obfuscation. Upon due reflection, we believe that the present New York rule should be modified to permit a defendant in a criminal case, where justification is an issue, to introduce evidence of the victim’s prior specific acts of violence of which the defendant had knowledge, provided that the acts sought to be established are reasonably related to the crime of which the defendant stands charged. Generally, character and reputation may not be proved by reference to specific acts, except to impeach the credibility of character witnesses. However, the crucial fact at issue, where a claim of justification is presented, is not the character of the victim, but, rather, the state of mind of the defendant. Knowl- | edge of prior violent acts of the victim may weigh heavily upon the mind of a defendant when, as asserted, he moved to blunt the aggression of the victim. Indeed, knowledge of specific instances of violence by the victim may have a more significant impact on a defendant’s mental state than any vague awareness of a general reputation for violence. A demonstrated capacity for acts of extreme violence will no doubt instill a fear more quickly and more deeply than a veiled threat or knowledge of a generally violent proclivity. For this reason, we believe that a defendant, asserting at trial *552justification as a defense, ought to be permitted to adduce evidence of violent acts of the victim and his knowledge thereof. At the same time, however, the jury must be cautioned that this evidence may only be considered with respect to the issue of the reasonableness of defendant’s apprehensions, and, further, that the character of the deceased and his specific past violent acts are not otherwise relevant to the issues before them. We can discern no valid distinction as to admissibility between violent acts that the victim directed at the defendant and acts which the victim directed towards identified third persons. The crucial factor is not who was the target of the violence, but that the defendant was aware at the time of the incident of the victim’s past violent behavior. On the other hand, not all acts of violence committed by the victim in the past are necessarily relevant to the issues presented by a claim of justification. There may be instances where acts are too remote in time or of a greatly different quality than the one which the defendant accuses the victim of committing. In such cases, the trial court may, upon consideration of an offer of proof, decline, in the exercise of its sound discretion, to admit the proof into evidence. (McMorris v State, 58 Wis 2d 144, supra; 1 Wigmore, Evidence [3d ed], § 198.) However, that some acts should properly be excluded does not justify a general rule of exclusion. The appropriate test is whether the acts sought to be proved relate reasonably, in time and quality, to the defense raised by the defendant. The extent to which prior violent acts may be proved rests also in the discretion of the trial court. We are ever mindful of the danger that the principal issues to be resolved may be lost in an endless maze of collateral matters. Moreover, we share the concern that the progress of a criminal trial may become stalled by evidentiary conflicts over matters of tangential relevance, thereby impeding the expeditious administration of justice. Yet, a basic sense of fairness mandates that the defendant be permitted to substantiate his claim that the victim committed specific violent acts in the past because it enlightens the jury on the state of the defendant’s mind at the time of the difficulty, and thereby enables them to decide whether he acted rationally under the circumstances. By the same token, the prosecution should be given a fair opportunity to dispute the defendant’s contention through presentation of its evidence, as well as by vigorous cross-examination of the *553defendant and his witnesses. The trial court, having the opportunity to view the witnesses as they testify, may place limitations on the extent that such matters may be proved or disproved in a particular case. We have previously noted that some States permit the defendant to introduce into evidence the criminal record of the victim. Evidence of a conviction for a violent act is, of course, acceptable documentary evidence that would support the defendant’s contention, provided he was aware of the conviction at the time of the incident. However, the defendant is not thereby authorized to introduce, without limitations, an entire criminal record which may include convictions for petty matters or for crimes that in no sense could be considered violent. Admission of an entire criminal record is, truly, an effort to disparage the victim’s general character and is not probative of the defendant’s apprehensive state of mind. We, therefore, are careful to note that while specific convictions for violent acts may be admissible, provided the defendant had knowledge of same, general proof of the victim’s criminal disposition is not. "The decision in each case as to similar nature and remoteness, however, rests within the sound discretion of the trial judge.” (Commonwealth v Amos, 445 Pa 297, 305, supra.) In sum, then, we believe that our present rule precluding the admission of prior violent acts of victims in cases where a claim of justification is made should be changed to allow such evidence where it is shown that the defendant was actually aware of such particular acts at the time of the homicide or assault. Applying the new rule to the case before us, we conclude that a new trial is necessary. There is evidence in the record that the defendant killed his sister in the aftermath of a family dispute stimulated by the sister’s extreme aggravation over an asserted theft of money. The principal question of fact before the jury was whether the defendant shot his sister in self-defense, believing to be in imminent danger of an assault by the sister, or whether he shot her deliberately, without justification, after the family dispute had been broken off. Under these circumstances, the jury should be permitted to consider proof that the defendant was aware of his sister’s prior violent attacks upon her mother who, after all, was asserted by the sister to be the thief, and was, thus, the source of her anger. Since this evidence, if believed by the jury, would be probative on the reasonableness of defendant’s *554apprehension for his own safety, we are compelled to conclude that there is a significant probability that the jury might have credited the defense of justification had it been apprised of the victim’s prior acts of violence. (People v Crimmins, 36 NY2d 230, 242.) We do not, however, imply that at a new trial the court must admit into evidence all the instances which the defense sought to establish at the first trial. We hold simply that, under the newly announced rule, evidence of specific acts of violence committed by deceased should not be excluded if the evidence is relevant and probative to show the state of the defendant’s mind as to the necessity of defending himself. As previously noted, the trial court also has discretion in the extent and in a manner in which the incidents are sought to be proved. We have examined the other points advanced by the defendant and find that, in no respect, did the courts below fall into error. We reverse not because the courts below failed to properly administer the law, but because we believe the law itself should be changed, and that the defendant is entitled to the benefit of that change. Accordingly, the order of the Appellate Division should be reversed and a new trial ordered. Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur. Order reversed, etc. . Similar considerations, of course, obtain in prosecutions for assault. For convenience, we need only make reference to that type of case as is presently before us, homicide. . An examination of the more recent cases in other American jurisdictions is instructive. California, Pennsylvania, Delaware, Virginia, Texas, Wisconsin, North Carolina and one Federal court permit the introduction of evidence establishing specific violent acts of the victim, provided that the defendant knew of them. (See Cal Evidence Code, § 1103, subd [1]; People v Rowland, 262 Cal App 2d 790, 797; Commonwealth v Amos, 445 Pa 297; Ruffin v State, 50 Del 83 [where defendant was *550allowed to prove some specific acts, not error to preclude further inquiry into deceased’s criminal record]; Stover v Commonwealth, 211 Va 789, cert den 412 US 953; Wood v State, 486 SW2d 359 [Tex]; McMorris v State, 58 Wis 2d 144; State v Johnson, 270 NC 215; United States v Burks, 470 F2d 432; see, also, Mortimore v State, 24 Wyo 452; Mendez v State, 27 Ariz 82.) Maryland, Missouri, Kentucky, Nebraska, Minnesota, Iowa and Louisiana have adhered to the rule of exclusion. (See Williamson v State, 25 Md App 338; State v Maggitt, 517 SW2d 105; Johnson v Commonwealth, 477 SW2d 159 [Ky]; State v Kimbrough, 173 Neb 873; State v Keaton, 258 Minn 359; State v Rhone, 223 Iowa 1221; People v Singleton, 311 So 2d 881 [La].) Several jurisdictions have adopted a middle ground, permitting the introduction of evidence relating to specific violent acts directed at the defendant, but excluding evidence of acts directed at third persons. (See People v Davis, 29 Ill 2d 127; People v Farrell, 137 Mich 127; Henley v State, 520 SW2d 361 [Tenn]; Chaffin v State, 209 Tenn 590.)
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| 3,627 |
2022-01-10 18:05:29.927389+00
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020lead
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| 5,682,023 |
Jasen
| null |
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Published
| 5 |
People v. Miller
| null |
The People of the State of New York v. Willie Miller
| null | null | null | null | null | null | null | null | null | 62,035,405 | null | 0 |
ny
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S
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New York Court of Appeals
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New York Court of Appeals
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3,720,572 |
This is an appeal on questions of law from a judgment entered in the Court of Common Pleas of Cuyahoga County reversing a decision of the Council of the village of Orange, which decision discharged Charles Vajner, appellee here, from the office of marshal and chief of police after a full and proper hearing on charges preferred by the mayor pursuant to Section 733.35 , Revised Code. The village of Orange, appellant here, in its lone assignment of error claims that: *Page 228 "The Common Pleas Court erred in substituting its judgment for that of the Council of the village of Orange in determining that there was not sufficient cause for the removal of the Chief of Police, which judgment is contrary to law." The salient facts are not in dispute. The police of the village had arrested Philip Lotenero and Arnold Lowe for breaking and entering the inhabited dwelling of George Russo. They had an unimpeachable case against them, including a confession. Lotenero also had admitted that he had broken into the homes of Elmer Jensick and Philip Geraci, residents of the village of Orange, some months before. The chief and the sergeant of police then took Lotenero to a pawnship where a stolen ring from the Geraci home was recovered, and they later proceeded to a garage where a gun, stolen from the Jensick home, was recovered. The chief of police was anxious to recover two mink stoles which had also been stolen from the Geraci home. Lotenero told the chief that he could get the fur pieces back if allowed to go unaccompanied by police officers. Upon such assurance, the chief of police freed both men from custody with instructions not to leave town and that he wanted "to talk to them again." The breaking and entering of the Russo home took place on Sunday, August 13, 1961. The mayor of the village held a court session on Monday, August 14, at which time he learned that the prisoners had been released, and upon obtaining such information, ordered the sergeant of police to apprehend them immediately, which was accomplished the following day, and appropriate charges filed against them. Section 733.35 , Revised Code, reads as follows in parts pertinent here: "The mayor of a municipal corporation shall have general supervision over each department and the officers provided for in Title VII of the Revised Code. When the mayor has reason to believe that the head of a department or such officer has been guilty, in the performance of his official duty, of bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality, or habitual drunkenness, he shall immediately file with the legislative authority, except when the removal of such head of department or officer is otherwise provided for, written charges against such person, setting forth *Page 229 in detail a statement of such alleged guilt, and, at the same time, or as soon thereafter as possible, serve a true copy of such charges upon the person against whom they are made. * * *." The mayor on August 21, 1961, filed written charges in conformity with such statute, which read as follows: "State of Ohio ) ) ss. Charges re "County of Cuyahoga ) Charles Vajner, Chief of Police of the Village of Orange, Ohio. "To the Council of the Village of Orange: "I, Charles Mehlman, the duly elected, qualified and acting Mayor of the Village of Orange, have reason to believe that Charles Vajner, the Chief of Police of said Village, has been guilty of malfeasance, nonfeasance, misconduct in office and gross neglect of duty in the following particulars: "1. The said Charles Vajner, as Chief of Police of said Village, without just cause, and with full knowledge of the facts set forth herein, released from the custody of the Police Department of said Village, and set free, Philip Lotenero and Arnold Lowe, who had been identified and taken into custody by said Village Police Department for, and later had confessed to, the crime of breaking and entering the residence of George Russo, 4599 Lander Road in said Village during the afternoon of the 13th day of August, 1961, all contrary to and in violation of the criminal statutes of Ohio. "2. The said Charles Vajner, as such Chief of Police, released from custody the said Philip Lotenero and Arnold Lowe, not only knowing of the burglary of the home of George Russo, but also knowing that the said Philip Lotenero was suspected of having been involved in the burglary of the home of Frank Geraci, 4489 Brainard Road in the Village of Orange, and the home of Elmer Jensick, 4019 Brainard Road in the Village of Orange; that said Philip Lotenero was awaiting Grand Jury action on the charge of burglary in the City of Solon, Ohio. "Wherefore, I, Charles Mehlman, as the Mayor of the Village of Orange, request that a true copy of the above charges be personally served on the said Charles Vajner and a return of such service be filed with the Council of said Village as is provided *Page 230 for the return of service of summons in civil actions, and that said charges be heard under the authority of, and pursuant to Section 733.36 et. seq., of the Revised Code. "(Signed) Chas. Mehlman Mayor of the Village of Orange." Upon a full and properly conducted hearing as required by Section 733.36 , Revised Code, the council sustained the charges by a four-to-two vote and the chief of police was removed from office. An appeal thereupon was made to the Court of Common Pleas under favor of Section 737.15 , Revised Code, pertinent parts of which read: "* * * In case of the removal of a marshal or chief of police of a village, an appeal may be had from the decision of the legislative authority to the Court of Common Pleas to determine the sufficiency of the cause of removal. * * *." (Emphasis supplied.) The marshal of a village, designated chief of police, is a public officer deriving his authority from the state for the purpose of enforcing the observance of the law. 38 Ohio Jurisprudence (2d), 566, Municipal Corporations, Section 184; 43 Ohio Jurisprudence (2d), 465, Police, Section 3. The marshal, designated as chief of police, takes an oath of office to support the Constitution of the United States and the Constitution of this state and to faithfully, honestly, and impartially discharge the duties of his office. Section 737.19 , Revised Code, states that he has the duty to arrest any person in the act of committing any offense against the laws of the state, and forthwith bring such person before the mayor or other competent authority for examination or trial. Amended Section 2935.05 , Revised Code, effective January 1, 1960 (128 Ohio Laws, 97, 98), states: "When a person named in Section 2935.03 of the Revised Code has arrested a person without a warrant, he shall, without unnecessary delay, take the person arrested before a court or magistrate having jurisdiction of the offense, and shall file or cause to be filed an affidavit describing the offense for which the person was arrested. Such affidavit shall be filed either with the *Page 231 court or magistrate, or with the prosecuting attorney or other attorney charged by law with prosecution of crimes before such court or magistrate and if filed with such attorney he shall forthwith file with such court or magistrate a complaint, based on such affidavit." (Emphasis supplied.) It is clear under the law that the power of a chief of police is merely to arrest and detain a person violating the law of the state until a warrant can be obtained, and such power exists only to the end that there may not be a failure of justice through the escape of criminals. 5 Ohio Jurisprudence (2d), 31, Arrest, Section 19. And his further duty under the law, when making an arrest without a warrant, is to take the person arrested without unnecessary delay before a court or magistrate having jurisdiction of the offense and there make or cause to be made a complaint stating the offense for which the person was arrested. The chief of police in this case arrested two individuals for committing a serious offense against the state. The evidence against them was conclusive and the bringing of charges required no further investigation. These two persons were also involved in two previous cases of breaking and entering inhabited dwellings and the chief of police and his assistants did noteworthy police work in recovering some of the property stolen from those two homes. Releasing the prisoners, however, to obtain the return of the "two mink stoles" was highly improper and only seemed to serve the private purpose of accommodation to a resident of the village. It is well settled in Ohio that the state has general control of police matters, and that police officers, by whomever appointed or elected, are regarded as public officers deriving their authority from the sovereignty for the purpose of enforcing the observance of the law. 43 Ohio Jurisprudence (2d), 465, Police, Section 3; 38 Ohio Jurisprudence (2d), 566, Municipal Corporations, Section 184. It is manifest, therefore, that the state of Ohio, as well as the village of Orange, was interested in the chief of police fulfilling his duty under the law in this case. Breaking and entering an inhabited dwelling is a felony, dangerous in nature and vicious in character, and demands the strictest of law enforcement. The sole consideration of the chief of police, under the law, should have been to bring these men before *Page 232 the mayor under proper charges with due dispatch to facilitate their being bound over to the county grand jury. Letting them go free, for whatever purpose, under the circumstances of a clear case against them, was in total disregard of the law which he was sworn to uphold and a violation of the basic purpose for which a police force exists. Such action constituted malfeasance and misconduct tantamount to gross neglect of duty in office, and, as a consequence, we hold and conclude that the charges brought by the mayor before the village council and proven by clear and convincing evidence was sufficient cause for his dismissal. In State, ex rel. Rockwell, v. State Board of Education, 213 Minn. 184 , paragraph eight of the syllabus reads: "8. To justify an order removing a public officer, substantial grounds specially relating to and affecting the administration of his office and directly affecting the rights and interests of the public must exist." From the above it is patent that the trial court, contrary to law, substituted its judgment for that of the Council of the village of Orange in determining that there was insufficient cause for the removal of the chief of police and thereby committed error in reversing the decision of the village council and reinstating the chief of police to his office. The judgment is, accordingly, reversed and the decision of the Council of the village of Orange removing the chief of police, Charles Vajner, from his office is affirmed. Judgment reversed. SKEEL, C. J., and CORRIGAN, J., concur. *Page 233
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020lead
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| 3,969,732 |
Corrigan, Kovachy, Skeel
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Published
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Vajner v. Orange
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Vajner
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Vajner, Plaintiff-Appellee, v. Orange (Village), Defendant-Appellant
| null | null |
<parties id="b432-7">
Vajner, Plaintiff-Appellee,
<em>
v.
</em>
Orange (Village), Defendant-Appellant.
</parties><br><court id="b432-8">
Ohio Appeals, Eighth District, Cuyahoga County.
</court><br><docketnumber id="b432-9">
No. 26371.
</docketnumber><decisiondate id="AOm">
Decided July 5, 1963.
</decisiondate><br><attorneys id="b433-12">
<span citation-index="1" class="star-pagination" label="411">
*411
</span>
<em>
Mr. Phillip C. Barragate,
</em>
of
<em>
Messrs. Barragate, Gottermeyer <& Pahrenbach,
</em>
for plaintiff-appellee.
</attorneys><br><attorneys id="b433-13">
<em>
Mr. Albert M. Heavilin,
</em>
solicitor, for defendant-appellant.
</attorneys>
| null |
APPEAL: Court of Appeals for Cuyahoga County.
| null | null | null | null | 3,841,874 |
26371
| 0 |
ohioctapp
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SA
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t
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Ohio Court of Appeals
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Ohio Court of Appeals
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4,606,351 |
Title & Trust Company of Florida, Petitioner v. Commissioner of Internal Revenue, Respondent Title & Trust Co. v. Commissioner Docket No. 749-68 United States Tax Court 58 T.C. 900 ; 1972 U.S. Tax Ct. LEXIS 66 ; August 28, 1972 , Filed *66 Decision will be entered for petitioner . Held , petitioner, a Florida title insurance company, is entitled to deduct at the end of 1965, as unearned premiums on outstanding business within the meaning of sec. 832(b)(4), I.R.C. 1954 , the amount of an unearned-premium reserve required by Florida law to be established in prior years but first required by Florida law to be returned to income by an amendment to the Florida statute enacted in 1965. Kenneth G. Anderson , for the petitioner. Robert J. Shilliday , for the respondent. Scott, Judge . SCOTT *900 OPINION Respondent determined deficiencies in petitioner's income taxes for the taxable years 1962, 1963, and 1964, in the amounts of $ 58,103.84, $ 8,381.01, and $ 8,587.10, respectively. The issue for decision is whether petitioner is entitled to deduct from its underwriting income in the year 1965 the total unearned-premium reserve accumulated on its books during the years 1959 through 1964 and carry back to the years 1962 through 1964 the net operating loss created by that deduction. In the alternative, petitioner contends that *68 it is entitled to deduct the unearned-premium reserve set up on its books for each year in issue or to deduct in 1967 the unearned-premium reserve accumulated as of December 31, 1964, and carry back the loss created by that deduction to the years 1964 and 1965. All of the facts have been stipulated and these facts, including the *901 stipulated exhibits, are found accordingly. We will set forth herein only those facts necessary to an understanding of this opinion. Petitioner, a Florida corporation since 1922, with its principal place of business when the petition in this case was filed, in Jacksonville, Fla., filed its Federal income tax returns for the years 1962 through 1965 and for the year 1967, with the district director of internal revenue, Jacksonville, Fla. Petitioner's books and records have at all times here pertinent been maintained on an accrual basis of accounting and its financial statements and Federal tax returns prepared on an accrual basis for the calendar year. During the years 1959 through 1967, petitioner issued policies of title insurance on real property, as defined in section 624.0407, Florida Statutes. 1 During the years in issue, petitioner was subject *69 to taxation under the provisions of section 831, et seq ., I.R.C. 1954 , 2 as an insurance company other than life or mutual. In conducting its insurance business, petitioner was required to comply with all statutes of the State of Florida relating to title insurance and with applicable rules and regulations and orders and notices of the insurance commissioner of the State of Florida. In 1959, the legislature for the State of Florida enacted section 625.111 of the Florida Statutes which provided in part as follows: In addition to an adequate reserve as to outstanding losses as required under § 625.041, a title insurer shall *70 maintain a guaranty fund or unearned premium reserve of not less than an amount computed as follows: (1) Ten per cent of the total amount of risk premiums written in the calendar year for title insurance contracts shall be assigned originally to the reserve. (2) During each of the twenty years next following the year in which the title insurance contract was issued, the reserve applicable to the contract may be reduced by five per cent of the original amount of such reserve. Although petitioner derived risk premiums on title insurance contracts for the years 1959 and 1960, it did not establish an unearned-premium reserve with respect to risk premiums on title insurance contracts on its books until May 1961. Under date of May 3, 1961, petitioner's board of directors adopted a resolution creating such reserve for unearned premiums. This unearned-premium reserve was established in 1961 after an audit of petitioner's books had been conducted by the office of the commissioner of insurance for the State of Florida, for the years through 1960, and that office had issued to petitioner a *902 report on the examination stating that such a reserve was required under section 625.111 of *71 the Florida Statutes. After establishing a premium reserve on its books in 1961 covering the years 1959 and 1960, petitioner each year thereafter computed and established annual additions to its unearned-premium reserve. For each of the years 1959 through 1967, petitioner added to its reserve 10 percent of the total amount of the risk premiums on title insurance contracts as unearned premiums. Also, for each of the years involved after 1959, petitioner restored to its income from the unearned-premium reserve an amount computed by reducing the reserve in each year following the year each policy was issued by 5 percent of the amount of reserve set up for the policy when issued. For the years 1961 through 1967, petitioner's net additions to the unearned-premium reserve, the amounts restored to income, the net reserve addition, and the reserve balances were as follows: 10 percent of Restored to Net reserve Year premium income addition Reserve balance reserve 1961 $ 24,419.02 $ 1,196.63 $ 23,222.39 $ 46,570.82 1962 47,407.03 2,417.58 44,989.45 91,560.27 1963 48,565.16 4,787.93 43,777.23 135,337.50 1964 52,687.32 7,220.16 45,467.16 180,804.66 1965 53,855.91 9,846.59 44,009.32 224,813.98 1966 53,906.01 12,543.35 41,398.66 266,212.64 1967 59,699.36 15,238.65 44,424.91 310,637.55 *72 Petitioner claimed no deduction for unearned premiums on its 1959 and 1960 Federal income tax returns. After the reserve for unearned premiums was established in 1961, petitioner filed claims for refund of its Federal income taxes for 1959 and 1960 based on deducting the reserves in 1959 and 1960 which it had set up on its books for those years in 1961. Respondent disallowed these claims, and petitioner filed suit for refund in the U.S. District Court for the Middle District of Florida. In the refund suit, petitioner claimed that it was entitled to deductions for unearned premiums for the years 1959 and 1960. The U.S. District Court granted the motion for summary judgment of the United States and sustained the disallowance of the deductions for unearned premiums for the years 1959 and 1960. Petitioner appealed this judgment of the U.S. District Court for the Middle District of Florida to the U.S. Court of Appeals for the Fifth Circuit which sustained the judgment of the District Court in Title & Trust Co. of Florida v. United States , 360 F. 2d 285 (C.A. 5, 1966), affirming 243 F. Supp. 42 ">243 F. Supp. 42 (M.D. Fla. 1965). For the years *73 1961 through 1964, petitioner claimed a deduction in its *903 Federal income tax returns for the net addition to its unearned-premium reserve for each year, in amounts as follows: Year Amount 1961 $ 23,222.39 1962 44,989.45 1963 43,777.23 1964 45,467.16 Respondent disallowed these claimed deductions. In the year 1965, the legislature for the State of Florida amended section 625.111 of the Florida Statutes to read in part as follows: In addition to an adequate reserve as to outstanding losses as required under section 625.041, a title insurer shall establish, segregate and maintain a guaranty fund or unearned premium reserve of not less than an amount computed as follows: (1) Ten per cent of the total amount of risk premiums written in the calendar year for title insurance contracts shall be assigned originally to the reserve. (2) During each of the twenty years next following the year in which the title insurance contract was issued, the reserve applicable to the contract shall be reduced by five per cent of the original amount of such reserve. Said sums herein required to be reserved for unearned premiums on contracts of title insurance shall at all times and *74 for all purposes be considered and constitute unearned portions of the original premiums and shall be held in trust for the benefit of policyholders. In December 1965, after the Florida legislature amended section 625.111 of the Florida Statutes , petitioner adopted a resolution with respect to its unearned-premium reserve providing: that the officers of the corporation are hereby directed to immediately and forthwith comply with Section 625.111 of the Florida Statutes , as amended, by establishing and hereafter maintaining in the amounts specified by said statute an unearned premium reserve and sufficient assets at least equal to all amounts previously allocated to the unearned premium reserve prior to June 25, 1965, in compliance with said Section 625.111 , prior to being amended and to any and all amounts due to be allocated to said reserve by reason of any risk premiums received since June 25, 1965, shall be immediately segregated from the general assets of the corporation as and for such unearned premium reserve, and the officers shall henceforth maintain said segregated reserve in full compliance with said statute. In December 1965, petitioner funded the reserve for unearned *75 premiums by placing 20,000 shares of T & T Co. Abstract Co. stock in escrow, or trust, with the First Bank & Trust Co. The amount so placed in escrow was at least adequate in value to fund the reserve for unearned premiums on petitioner's books as of December 31, 1965. About April 19, 1967, petitioner submitted a letter to the insurance commissioner of the State of Florida concerning unearned premiums on title insurance policies. In that letter, petitioner requested the insurance commissioner to issue a regulation or directive on the point of *904 whether it was mandatory or permissive that 5 percent of the portion of premiums reserved for title insurance policies issued between 1959 and 1964 be restored to the general funds of the corporation. On July 14, 1967, the insurance commissioner issued the following directive to petitioner (a similar directive was mailed to other title insurers in Florida): The Unearned Premium Reserve established by your company on its Title insurance policies must be handled in the following manner. The amount of the unearned premium reserve established by a title insurer pursuant to Section 625.111 , F.S., shall be reduced during each of the *76 twenty years next following the year in which the title insurance contract was issued by five percent of the amount (ten percent of the risk premium) orginally assigned to the reserve, as required by Sub-section (2). The reduction shall be made for all title insurance contracts, of which ten percent of the risk premiums have been assigned to the reserve, issued during 1959 and in all subsequent years. In the event that any title insurer has not reduced the amount of its unearned premium reserve by five percent of any amount originally assigned to the reserve pursuant to Sub-section (1) of Section 625.111 , F.S., for any given year since 1958, said title insurer shall effect such reduction in this calendar year, and shall thereafter reduce its unearned premium reserve in accordance with Sub-section (2), Section 625.111 , F.S., for all title insurance contracts issued since 1958. For the year 1965, petitioner claimed a deduction on its Federal income tax return in the amount of $ 224,813.98 for the accumulated net balance of its reserve for unearned premiums as of December 31, 1965. Petitioner as a result of this claimed deduction reported for its taxable year 1965 a net operating loss *77 which it carried back to its taxable years 1962, 1963, and 1964 by filing net operating loss carryback claims for those years. The net operating loss carrybacks to the years 1962 through 1964 were tentatively allowed by respondent. Respondent increased petitioner's income as reported for 1965 by disallowing $ 170,958.07 of the $ 224,813.98 accumulated balance of unearned-premium reserve as of December 31, 1965, allowing only the $ 53,855.91 representing the 10 percent of the premiums reserved in 1965. Because of the disallowance of $ 170,958.07 of the deduction claimed by petitioner in 1965 for unearned-premium reserve, respondent determined deficiencies in petitioner's income tax for 1962, 1963, and 1964 because of disallowing the net operating loss carrybacks to those years from 1965 which he had previously tentatively allowed. In each of the years 1966 and 1967, petitioner claimed as a deduction its net reserve addition for the year and respondent did not disallow these claimed deductions. Section 832(b)(1) provides that the "gross income" of an insurance company subject to taxation under section 831 shall consist of its "investment income" and "underwriting income" plus certain *78 other items. Section 832(b)(3) provides that the term "underwriting income" *905 means the premiums earned on insurance contracts during the taxable year less losses incurred and expenses incurred. Section 832(b)(4) defines the term "premiums earned on insurance contracts during the taxable year" as follows: (A) From the amount of gross premiums written on insurance contracts during the taxable year, deduct return premiums and premiums paid for reinsurance. (B) To the result so obtained, add unearned premiums on outstanding business at the end of the preceding taxable year and deduct unearned premiums on outstanding business at the end of the taxable year. This definition of "premiums earned on insurance during the taxable year" has been in the revenue statutes since the enactment of the Revenue Act of 1921. See Bituminous Casualty Corp ., 57 T.C. 58 ">57 T.C. 58 , 78 (1971). It is well established that a premium reserve which a title insurance company is required by State law or regulation to set up and hold for a specified period solely for the purpose of discharging its liability under its policies constitutes "unearned premiums" within the meaning of *79 section 832(b)(4)(B) during the period that the reserve is unavailable to the company for its ordinary purposes. Early v. Lawyers Title Ins. Corporation , 132 F. 2d 42 (C.A. 4, 1942). During the time that the company is required to hold the reserve the percent of the premiums required to be placed in the reserve is "held in trust for the benefit of the contract holders" and does not become income to the company until it is restored to income upon the expiration of the time the State statute requires it to be held. Early v. Lawyer Title Ins. Corporation, supra . As we pointed out in Houston Title Guaranty Co ., 22 T.C. 989 ">22 T.C. 989 , 993 (1954), whether a premium reserve constitutes "unearned premiums" within the meaning of section 832(b)(4)(B) or is merely a nondeductible insolvency reserve depends on whether the State statute requires the segregation of the reserve for a specified time when the risk insured is greatest, and its release for general use of the company at the expiration of that time, thus causing the released portion to become taxable income or whether the reserve is of indefinite *80 duration and never actually outside the use and control of the company. The primary basis of the decision of the District Court holding that petitioner was not entitled to deduct its premium reserves as unearned premiums for the years 1959 and 1960 was that the Florida statute did not set a mandatory time within which the reserve should be restored to income. Title & Trust Co. of Florida v. United States , 243 F. Supp. 42 ">243 F. Supp. 42 (M.D. Fla. 1965), affirmed per curiam 360 F. 2d 285 (C.A. 5, 1966). 3 It was apparently on this same basis that respondent disallowed *906 the deduction claimed by petitioner for each of the years 1962, 1963, and 1964 for the net additions in each of those years to its premium reserve. Respondent recognizes that the Florida law as amended in 1965 required the restoration of the premium reserves to income over a 20-year period and therefore the net reserve for 1965 and subsequent years constitutes deductible unearned premiums. *81 Petitioner contends that its unearned premiums on outstanding business at the end of 1964 within the meaning of section 832(b)(4) was zero, since the reserves it had set aside prior to 1964 had been held not to constitute "unearned premiums." Petitioner contends that its unearned premiums on outstanding business at the end of 1965 was $ 224,813.98. Petitioner states that the very language of the Code section requires that it be allowed to deduct from its underwriting income for its taxable year 1965, the full amount of its outstanding unearned premiums at the end of 1965, or $ 224,813.98. In the alternative, petitioner contends that it is entitled to deduct from its underwriting income for its taxable years 1962, 1963, and 1964, the annual additions to its unearned-premium reserve. As a second alternative, petitioner contends that the directive of the insurance commissioner of Florida issued to it in 1967 cured any and all defects in the amended legislation establishing unearned-premium reserves for title insurance companies thereby entitling it to deduct from its underwriting income for its taxable year 1967 as unearned premiums an amount equal to the difference between the full *82 amount of its outstanding unearned-premium reserve at the end of 1967 and the sum of the amounts added to this unearned-premium reserve during the years 1965 and 1966. As we pointed out in Modern Home Fire & Casualty Insurance Co ., 54 T.C. 839 ">54 T.C. 839 , 848 (1970), where under the governing State statutes it cannot be determined whether funds in a reserve will ever be released and returned to income, no part of the reserve is deductible. Therefore in order to decide the primary issue raised in this case, we must determine whether section 625.111 of the Florida Statutes as amended in 1965 required that unearned-premium reserves established under the law in effect from 1959 until amended in 1965 be returned to income by the insurance company. Section 625.111 of the Florida Statutes as originally enacted in 1959 required that title insurance companies doing business in the State of Florida establish unearned-premium reserves. This legislation did not, however, provide for a mandatory return of funds in the unearned-premium reserve to the title insurance company's income. The pertinent section of the Florida statute states as follows: During each of the twenty *83 years next following the year in which the title insurance contract was issued, the reserve applicable to the contract may be *907 reduced by five per cent of the original amount of such reserve. [Emphasis supplied.] Therefore the Florida statute prior to its amendment in 1965 did not authorize the creation of unearned-premium reserves for title insurance companies in Florida which would qualify under section 832(b) (4) as "unearned premiums" deductible from underwriting income. Modern Home Fire & Casualty Insurance Co., supra at 848 , and cases there cited. Petitioner is correct therefore in its position that the reserve on its books at December 31, 1964, did not constitute as of the time set up "unearned premiums" within the meaning of section 832(b) (4) . Petitioner contends that the fair interpretation of section 625.111 as amended in 1965 is that the return of the unearned-premium reserve to general corporate purposes and thus into taxable income is mandatory for all additions made to the reserve under the statute as enacted in 1959 and not merely for those additions made for 1965 and subsequent years. After being amended in 1965, section *84 625.111 of the Florida Statutes required that "During each of the twenty years next following the year in which the title insurance contract was issued, the reserve applicable to the contract shall be reduced by five per cent of the original amount of such reserve." Since the 1965 Act amended the 1959 Act, petitioner contends that the reasonable interpretation of the amendment is that it applies to all reserves accumulated since 1959. The unearned-premium reserve which existed on petitioner's books of account at the end of 1965 consisted both of the amount added by petitioner to the reserve in 1965 and the amount accumulated prior to 1965. Respondent concedes that the amended statute clearly required reserve additions for 1965 and subsequent years to be returned to income. Respondent has not disallowed petitioner's claimed deduction in 1965 for the reserve addition in that year. The amount disallowed by respondent was the additions for the years 1959 through 1964 which he contends the amended statute did not require to be returned to income. It is respondent's position that the Florida statute as amended did not require the return to income of the reserves set up prior to 1965. *85 The issue involved requires an interpretation of a Florida statute. Neither party has directed our attention to any decision by a Florida court, nor have we found a Florida case interpreting section 625.111 of the Florida Statutes as amended in 1965. Petitioner points out that the directive of the insurance commissioner of July 14, 1967, interpreted the Florida law to require the restoration to income of all unearned-premium reserves established *908 during 1959 and the years thereafter. 4 We agree with petitioner that the directive of the insurance commissioner did interpret the Florida statute as amended in 1965 to require the return to income of premium reserves established from 1959 through 1964. Even though in situations where this had not been done by any company prior to 1967, the directive required that the return to income be made in 1967, it interpreted the amended section to require as of the date of its enactment in 1965 that the accumulations from 1959 to 1964 be returned to income. *86 As heretofore pointed out, neither party has cited a case nor have we found any cases from the courts of the State of Florida dealing with the interpretation of section 625.111 as made by the insurance commissioner in his 1967 directive. However, in our view the Supreme Court of Florida would hold that the 1967 directive of the insurance commissioner did not express an improper interpretation of section 625.111 as amended in 1965. The construction given a statute by the administrative agency charged with its enforcement and interpretation is entitled to great weight and the Florida courts generally will not depart from such an interpretation by a State agency except for the most cogent reasons. Daniel v. Florida State Turnpike Authority , 213 So. 2d 585 ">213 So. 2d 585 (Fla. 1968). In our view, petitioner is correct in its contention that section 625.111 of the Florida Statutes as amended in 1965 required the return to income in the year 1965 of unearned-premium reserves established by title insurance companies from 1959 through 1964. Respondent apparently does not contend that the reserve for prior years is not deductible in 1965 if the law required that the *87 reserve for those years be restored to income in 1965. We held in Title & Trust Co ., 15 T.C. 510 ">15 T.C. 510 (1950), affirmed per curiam 192 F. 2d 934 (C.A. 9, 1951), that a reserve meeting the requirement of unearned premiums as used in section 832(b)(4)(B) may be deducted in the year required by law to be set aside even though relating to or measured by premium income of prior years. It would follow from this holding that the fact *909 that the reserve petitioner contends is deductible in 1965 was based on premium income of prior years, does not prohibit it from being deductible as unearned premiums in 1965. Respondent makes some argument that the funds for the premium reserve were not placed in trust outside petitioner's control. In our view, the stipulated facts show otherwise. We, therefore, sustain petitioner on its primary contention and do not reach petitioner's two alternative contentions. Decision will be entered for petitioner . Footnotes 1. Sec. 624.0407 , now designated sec. 624.608, Fla. Stat. Ann. (1967), states as follows: 624.608 Title insurance defined Title insurance is insurance of owners of property or others having an interest therein, or liens or encumbrances thereon, against loss by encumbrance, or defective titles, or invalidity, or adverse claim to title. ↩ 2. All references are to the Internal Revenue Code of 1954. ↩ 3. The appeals court affirmed on the second basis of the District Court's decision which was that the reserve had not actually been set aside in 1959 and 1960 since it was not established until May of 1961. ↩ 4. Respondent argues that the July 14, 1967, directive is illegal since it was issued without the notice and hearing required by sec. 624.0124 of the Florida Statutes (enacted in 1959, now designated as sec. 624.325) which states any rule or regulation of the insurance commissioner shall be made only after a hearing, notice of which is given to all persons whose pecuniary interests are to be directly and immediately affected thereby. In our view sec. 624.0107 of the Florida Statutes had been modified by the Florida Administrative Procedures Act of 1961 which unified the procedures to be used by agencies of the State of Florida including the office of the commissioner of insurance. See sec. 120.011 of the Florida Statutes and Bay National Bank & Trust Co. v. Dickinson , 229 So. 2d 302 ">229 So. 2d 302 (Fla. App. 1969). Under this act a public hearing is not required prior to the adoption of any rule by an administrative agency. See sec. 120.041, Fla. Stat. Ann. , and Bay National Bank & Trust Co. v. Dickinson, supra ↩ . We think it so clear under Florida law that a directive of the type issued by the insurance commissioner on July 14, 1967, could be issued without a prior hearing, that we do not deem further discussion of respondent's contention to the contrary to be required.
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| 4,703,394 |
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Title & Trust Co. v. Commissioner
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Title & Trust Company of Florida v. Commissioner of Internal Revenue
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Held, petitioner, a Florida title insurance company, is entitled to deduct at the end of 1965, as unearned premiums on outstanding business within the meaning of sec. 832(b)(4), I.R.C. 1954, the amount of an unearned-premium reserve required by Florida law to be established in prior years but first required by Florida law to be returned to income by an amendment to the Florida statute enacted in 1965.
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Decision will be entered for petitioner.
| null | 16,711,065 |
Docket No. 749-68
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U.S. Tax Court
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United States Tax Court
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771,303 |
233 F.3d 1117 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID PHILLIP MUNOZ; BENNIE E. MCGREGOR; DONALD L. THOMSON, Defendants-Appellants. Nos. 99-50195, 99-50196, 99-50203. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 12, 2000 Filed December 6, 2000 [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted] Michael D. Abzug, Los Angeles, California, for defendant appellant David P. Munoz. William J. Kopeny, William J. Kopeny & Associates, Irvine, California, for defendant-appellant Bennie E. McGregor. Thomas H. Wolfsen and James M. Crawford, Orange, California, for defendant-appellant Donald L. Thomson. Alejandro N. Mayorkas, United States Attorney, and George S. Cardona and Paul G. Stern, Assistant United States Attorneys, Los Angeles, California, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California Alicemarie H. Stotler, District Judge, Presiding. D.C. Nos.CR-96-00155-AHS-2 CR-96-00155-AHS-3 CR-96-00155-AHS-1 Before: Robert Boochever, A. Wallace Tashima, and Richard C. Tallman, Circuit Judges. TALLMAN, Circuit Judge: 1 David Munoz, Bennie McGregor, and Donald Thomson appeal their convictions and sentences for mail fraud and aiding and abetting under 18 U.S.C. SS 1341 & 2 (2000). After a month-long trial a jury found all three defendants guilty of mail fraud for participating in a fraudulent "Ponzi" investment scheme. We have jurisdiction and affirm their convictions but vacate the sentences of Munoz and McGregor and remand for resentencing. We affirm Thomson's conviction and sentence. 2 The three defendants press numerous claims of error on appeal. Two major questions predominate. First, we must decide whether for the purposes of calculating loss under U.S.S.G. S 2F1.1 the district court erred in refusing to offset the intended loss by (1) payments made to investors as an alleged return on their investment and (2) the actual value of the investment after the illicit company reorganized in bankruptcy and began doing business as a legitimate enterprise. We hold that the district court properly calculated the loss for sentencing purposes by using the intended loss standard, without offsetting the loss by the value recovered by the victims. 3 Second, we must decide whether the district court erred at sentencing by using the preponderance of the evidence standard in determining the relevant conduct of Munoz and McGregor. The relevant conduct determination resulted in a fourteen-level rather than a five-level upward adjustment for each defendant. Because the law has changed since Munoz and McGregor were sentenced, we vacate their sentences and remand for resentencing. The district court should reexamine the relevant conduct evidence using the clear and convincing evidence standard in considering the appropriate sentence for these two defendants. I. FACTUAL BACKGROUND 4 To understand the issues better, we set forth the relevant facts in some detail. 5 In 1986, Jean Claude Leroyer formed a corporation called Metro Display Advertising, Inc. (MDA) to sell bus stop shelters as investments to the public. From 1986 to 1991, MDA ostensibly sold bus stop shelters to investors through its sales agents for $10,000 each, then leased the shelters back from the investors for a fee of $200 per month, less a $30 maintenance fee. As part of the sales contract, MDA agreed to repurchase the shelters from the investors after five years for $10,000. MDA was to solicit advertisers to place ads on the shelters in order to generate the necessary revenue to make the lease payments. 6 Over the five years that MDA was in business, it sold approximately 4,600 bus stop shelters to 1,442 investors, but installed no more than 2,600 shelters. MDA's advertising revenues were insufficient to cover the lease payments and overhead, so MDA used the capital investments from new investors to cover those expenses. In short, the shelter investment was a Ponzi scheme. 7 In December 1991, MDA agreed with the Securities and Exchange Commission, after a ten-month investigation, to stop selling the bus stop shelter investment. The investment scheme inevitably collapsed. MDA no longer made lease payments to investors and promptly filed for bankruptcy, declaring over $100 million in debt and less than $1 million in assets. 8 The company subsequently reorganized and was taken over by an investor. The investor, with the help of other victim investors, rebuilt the company into a legitimate, profit generating business. In 1998 it was sold to a bona fide purchaser and $37 million in proceeds from that sale were deposited in escrow as restitution for the victim investors. 9 The three defendants, Munoz, McGregor, and Thomson, were independent sales agents of MDA. They made several fraudulent and misleading statements to perpetuate the scheme. For example, they and their agents told investors that MDA was a financially sound company with adequate advertising revenues to cover its lease payments. Moreover, they concealed from investors the fact that the SEC was investigating MDA for potential securities violations beginning in March of 1991. 10 To generate sales they used a sales brochure given to them by MDA. The sales brochure contained a breakdown of the costs of the shelter accounting for the entire $10,000 investment. The brochure itemized $9,000 in materials, labor, and permits for the construction of the shelter, and $500 each for "marketing fees" and "consulting fees." This led investors to believe that sales agents were only receiving $1,000 in commissions. The sales agents, however, were receiving $2,500 total in commissions from each $10,000 shelter sale. 11 The defendants also used opinion letters prepared by attorneys, which stated that the sales contracts were not securities. The attorneys based their opinions on the representations of Leroyer that the investments were not advertised to the public and that purchasers would be only sophisticated investors who were financially qualified in advance to purchase. The defendants did not, however, financially pre-qualify the investors as required. 12 Munoz, McGregor, and Thomson were indicted on ten counts of mail fraud stemming from the mailing of lease payments to ten investors on December 15, 1991. The jury convicted Munoz and McGregor on two counts each, only for those mailings to the investors to whom they or their companies directly sold the shelters. Thomson was convicted on all ten counts. 13 A. Defendant David Munoz. 14 Munoz sold shelters from 1989 to 1991, first as a sub-agent of Thomson, then as a direct agent of MDA through his company, IBT Financial. IBT sold approximately 883 shelters during its operation for a total of $8.7 million in investor loss. The jury convicted Munoz on two counts for the December 15, 1991, mailings of lease payments to two investors who purchased shelters from IBT. The sales were made in October and November of 1991. 15 Using the "intended loss" standard under U.S.S.G. S 2F1.1, cmt. n.8, the probation officer in the presentence report (PSR) calculated the loss caused by Munoz's conduct at $8.7 million, the total amount of investment money generated by IBT. This resulted in a fourteen-level upward adjustment, which, when combined with a two-level upward adjustment for "more than minimal planning," put Munoz's offense level at 22 with a corresponding guideline range of 41 to 51 months. 16 Munoz objected to the loss calculation on two grounds. He argued first that he should only be held accountable for the loss to the two investors named in the indictment, not for all of the investors to whom IBT sold shelters. He also argued that the loss should be offset by the amount of money recovered by the two investors through the lease payments and the 1998 sale of MDA, placing the total loss amount at $62,890.37. Offsetting the loss by investor recovery returns would have resulted in a five-level upward adjustment to an offense level of 13, with a corresponding guideline range of 12 to 18 months. 17 The district court agreed with the recommendation in the PSR and found that the intended loss formula was the appropriate standard. The court further concluded that the relevant conduct for which Munoz was accountable included all sales by IBT to investors, not merely the sales to the two investors named in the indictment. Finally, the court found that the value of the investments at the time of the transactions was negligible. Thus, the court would not offset the loss by the amount of the lease payments and the revenue the victims realized by selling MDA six years after MDA declared bankruptcy. The court sentenced Munoz to 41 months' imprisonment and three years of supervised release. He was ordered to pay restitution in the amount of $97,200. 18 B. Defendant Bennie McGregor. 19 McGregor sold shelters from 1989 to 1991 through his companies, McGregor Financial Group, Inc., and McGregor Investment Group, Inc. (MFG and MIG). MFG and MIG sold approximately 550 shelters during their operation for a total of $5,505,000 in investor loss. 20 The jury convicted McGregor on two counts for the December 15, 1991, mailings of lease payments to two investors who purchased shelters from MIG and MFG. The sales to those investors were also made in October and November of 1991. 21 The PSR calculated the loss caused by McGregor's conduct at $5.5 million based upon the total amount of investment money generated by MFG and MIG. McGregor challenged the loss calculation at sentencing on the same grounds as did Munoz. The district court again followed the recommendation of the PSR, leading to a fourteen-level upward adjustment rather than the five-level upward adjustment argued for by McGregor. The court granted McGregor a two-level downward departure based on his level of culpability and his history, leading to an offense level of 20, with a corresponding guideline range of 33 to 41 months. The court sentenced him to 36 months' imprisonment. 22 C. Defendant Donald Thomson. 23 Thomson sold shelters from 1986 to 1991 through his company, Financial and Accounting Consultants (FAC). The jury convicted Thomson on all ten counts in the indictment, including the four counts pertaining to the mailings to Munoz and McGregor's customers. The jury apparently found that Thomson played a more extensive role in the investment scheme than did his co-defendants. 24 At sentencing, the district court followed the recommendation of the PSR and used the standard of "intended loss," calculating the loss caused by Thomson's conduct at $46,497,800 for the total sales of MDA. The court refused Thomson's request to offset the loss by the amount the investors were expected to recover from escrow on closing of the sale of MDA. 1 25 The district court also rejected Thomson's argument that he should only be held accountable for the sales made by his own company rather than all MDA sales. Thomson argued that the loss calculation should have been $17,115,000, a fourteen-level upward adjustment. Instead, Thomson received a seventeen-level upward adjustment. The court also enhanced his sentence by three levels for playing a managerial/supervisory role and by two levels for obstruction of justice. The court granted Thomson a one-level downward departure based on a combination of other factors, placing his total offense level at 29, with a corresponding guideline range of 87 to 108 months. The court sentenced him to 92 months and ordered him to pay restitution in the amount of $138,798. II. DISCUSSION 26 A. Calculation of Loss. 27 Munoz, McGregor, and Thomson contend that the district court erred by sentencing them according to intended rather than actual loss. They argue that the total loss should be offset by the amounts recovered by the victims through the lease payments made to the victims over the course of the scheme and the reorganization and sale of MDA in 1998. See U.S.S.G. S 2F1.1, cmt. n.8(a). We affirm the district court's use of the intended loss standard without offsetting the loss by the amounts ultimately recovered by the victim investors. 28 In calculating the amount of loss attributable to a defendant for sentencing purposes in a fraud case, the district court should use the amount of loss that the defendant attempted to inflict, provided such a figure can be determined with reasonable certainty and is greater than the actual loss inflicted. U.S.S.G. S 2F1.1, cmt. n.8. The district court's application of the Sentencing Guidelines to the facts of a case is reviewed for abuse of discretion. United States v. Leon-Reyes, 177 F.3d 816 , 824 (9th Cir. 1999). Its factual findings in the sentencing phase are reviewed for clear error. United States v. Barnes, 125 F.3d 1287 , 1290 (9th Cir. 1997). 29 Several circuits have grappled with the issue of whether, in a Ponzi scheme case, the loss calculation should include the total investment money generated by the schemers, or should be offset by any value received by the defrauded parties. The Second, Fourth, Fifth, and Seventh Circuits have held that the loss calculation in a Ponzi scheme should not be offset by the amount of the victims' recovery. See United States v. Carrozzella, 105 F.3d 796 , 805 (2d Cir. 1997); United States v. Loayza, 107 F.3d 257 , 265 (4th Cir. 1997); United States v. Deavours, 219 F.3d 400 (5th Cir. 2000); United States v. Lauer, 148 F.3d 766 , 768 (7th Cir. 1998); but see United States v. Holiusa, 13 F.3d 1043 , 1046-47 (7th Cir. 1994) (holding that intended loss in a Ponzi scheme case did not include amounts ultimately returned to investors). 30 These courts reason that the gravity of the crime should be measured by the entire sum of money that the schemers put at risk through the misappropriation regardless of whether some victims were fortunate enough to recover part of their loss. Lauer, 148 F.3d at 768 ; cf. United States v. Janusz, 135 F.3d 1319 , 1324 (10th Cir. 1998) (adopting this line of reasoning in a fraud case where the financial consultant misappropriated clients' funds, most of which were recovered by the clients when the consultant's accounts were frozen). Because the schemers typically return money to investors to perpetuate the fraud and ensnare new investors, and not to mitigate damages to the current investors, these courts reason that they should be held accountable for all of the funds that are misappropriated. See Carrozzella, 105 F.3d at 805 . 31 The Eleventh Circuit is the only circuit that has not adopted the "risk" theory of loss calculation. See United States v. Orton, 73 F.3d 331 , 334 (11th Cir. 1996). In Orton, however, the court was not directly presented with the issue of whether the risk theory is an appropriate loss calculation theory. The court did state that "risk of harm" was not an appropriate measure of loss calculation, but the parties in Orton were actually debating about two types of "net loss " calculation theories, one focusing on the actual loss to each individual victim, the other focusing on the actual gains made by the defendant. Id. 32 We believe that the "risk" theory of loss calculation is the sensible approach in this case. The goal in sentencing is to deter criminals from engaging in illegal behavior, such as making fraudulent or misleading statements, that deliberately leads unwitting investors to put their money at risk. A Ponzi scheme, in which new investor funds are used to pay returns to prior investors, creates a situation where the business will inevitably collapse at the expense of the investors. If it does not collapse, it is usually by luck alone. Thus, whether a Ponzi scheme produces some value for the investors is irrelevant to calculating the intended loss. 33 In Lauer, the Seventh Circuit likened this situation to a person who embezzles money from his employer, planning to gamble with it and put the embezzled money back before he is discovered. Lauer, 148 F.3d at 768 . If he is caught prior to placing any bets, and the company recovers all of its money, the embezzler should still be held accountable for the money he stole. Id. Likewise, if the theft is discovered after the embezzler gambled the money, won, and replaced the embezzled money, he should still be held accountable for the amount embezzled. 34 The defendants contend that the shelter investments produced tangible goods--the shelters--that have independent value as fixed point outdoor advertising sites. Thus, according to the defendants, the proper loss calculation should be the difference between the amount the investors paid for the shelters ($10,000) and the total amounts they recovered once MDA was sold and the $37 million escrow fund was distributed to the victim investors. 35 The value of the shelter investment, however, was in the advertising revenues that MDA promised to generate and the resulting lease payments representing a 20% return on the investment. The value was not in the actual physical structures, as evidenced by the fact that none of the investors at the time of purchase refused the leaseback provision, instead opting to generate advertising revenues themselves. Moreover, MDA sold 4,600 shelters, but constructed only 2,600. Thus,the shelter investment was essentially a security, and its value depended on the value of the company as a whole. 36 When the scheme collapsed and MDA declared bankruptcy the investment had no value. The company declared debts of over $100 million and assets of only $1 million. Between the bankruptcy in 1992 and the sale of MDA in 1998, the investors received nothing for their investments. The investments eventually acquired value only because a victim investor took over the company and, with the help of other victim investors, turned it into a legitimate business by constructing more shelters and selling sufficient advertising to make the lease payments. For these reasons, we hold that the district court properly calculated the loss attributable to each defendant based on intended loss, without offsetting the calculation by amounts ultimately recovered by the victim investors. 37 B. Determining Relevant Conduct. 38 In determining relevant conduct for sentencing purposes in a fraud case, a district court may consider fraudulent conduct by the defendant other than that for which evidence was offered at trial. See United States v. Amlani , 111 F.3d 705 , 719 (9th Cir. 1999). The factual findings underlying the relevant conduct enhancement generally must be supported by a preponderance of the evidence. See United States v. Collins, 109 F.3d 1413 , 1420 (9th Cir. 1997). In the time since the defendants were sentenced, however, this Court has held that a sentencing factor that has an extremely disproportionate effect on the sentence may require a district court to find that factor by clear and convincing evidence, rather than by a preponderance of the evidence. See, e.g. , United States v. Mezas de Jesus, 217 F.3d 638 , 643 (9th Cir. 1999); United States v. Hopper, 177 F.3d 824 , 829 (9th Cir. 1999). 39 Munoz and McGregor each received a fourteen-level rather than a five-level upward adjustment on the basis of uncharged relevant conduct--the sale of all the shelters by themselves and their companies--despite being charged with and convicted of only two fraudulent sales each. This upward adjustment effectively increased their individual sentencing ranges from 12-18 months to 41-51 months. They each contend that the nine-level difference in the upward adjustment was sufficiently disproportionate to require the district court to apply the clear and convincing evidence standard to the factual findings. 40 In Mezas de Jesus, this Court found that a nine-level upward adjustment based on an uncharged kidnaping that resulted in a sentence increase from 21-27 months to 57-71 months was sufficiently disproportionate to trigger the clear and convincing evidence standard. Mezas de Jesus , 217 F.3dat 643. 41 In United States v. Romero-Rendon, 220 F.3d 1159 (9th Cir. 2000), this Court held that a sixteen-level upward adjustment for a prior conviction that increased the defendant's sentencing range from 4-10 months to 41-51 months triggered the clear and convincing evidence standard. Id. at 1161 . We further held that the clear and convincing evidence standard was met in Romero-Rendon on the basis of the facts outlined in the PSR. Id. at 1163 . Romero-Rendon , however, is different from this case. There, the defendant did not challenge the factual allegations contained in the PSR upon which the enhancement was based. Id. 42 Munoz and McGregor's PSRs listed all of the individual sales by IBT and MFG/MIG. Munoz and McGregor did not challenge the PSR conclusion that they and their companies made those sales. But they did dispute the findings that they had knowledge of the fraudulent scheme at the time each of those sales were made. They argue that the jury only found that they had knowledge of the fraud at the time of the sales to the two customers to whom they were convicted of making fraudulent sales. According to Munoz and McGregor, the district court therefore should have included as relevant conduct only the two sales upon which each defendant was convicted. 43 Munoz and McGregor are incorrect in their assertion that the district court could not include relevant conduct other than the two sales for which they were convicted. The district court is entitled to take into account all relevant conduct, charged and uncharged, provided that the relevant conduct findings are supported by sufficient evidence. The caselaw is clear on this point. See, e.g., Amlani, 111 F.3d at 719. 44 We hold, however, that in this case the district court should have relied at sentencing only on those factual findings supported by clear and convincing evidence. The upward adjustments in Munoz and McGregor's cases are sufficiently disproportionate to justify a remand to the district court to determine whether the evidence is clear and convincing that Munoz and McGregor knowingly and intentionally engaged in all of the uncharged conduct upon which the upward adjustments were based. We state no opinion on what the district court's determination should be under this heightened standard of proof. That is within the province of the sentencing court to decide. 45 C. Munoz's Remaining Claims. 46 1. Attorney-Client Privilege. 47 Attorney Alvin Sherron was a key witness for the government in the case against Munoz. Munoz had hired Sherron to assist him in unrelated matters prior to his involvement with MDA. He referred Sherron to MDA to prepare one of the opinion letters used to attract investors. Sherron testified, over Munoz's objection, that Munoz stated to Sherron in late 1990 that MDA was inadequately funded and was in financial trouble. We affirm the district court's decision to admit the testimony. 48 The party asserting attorney-client privilege has the burden of establishing all of the elements of the privilege. See United States v. Plache, 913 F.2d 1375 , 1379 n.1 (9th Cir. 1990). We review de novo whether the party has met these requirements including whether he establishes an attorney-client relationship. United States v. Bauer, 132 F.3d 504 , 507 (9th Cir. 1997). 49 Munoz argues that he had an attorney-client relationship with Sherron both as an individual and jointly with MDA. As evidence, he points to the following facts: (1) he referred Sherron to MDA based on his prior relationship with Sherron; (2) he furnished information to Sherron about MDA to assist Sherron in preparing the opinion letter; (3) Sherron consulted Munoz more often than he consulted Leroyer; and (4) Munoz believed at the time he made the damaging statements that Sherron was his attorney. 50 We agree with the district court that this evidence is insufficient to establish an attorney-client relationship. Sherron addressed all correspondence to Leroyer and MDA without copying Munoz. Munoz offered no evidence that he consulted with Sherron for personal legal advice about his own involvement in the investment scheme. In addition, Sherron issued a sworn declaration and testified at the pre-trial hearing that he was not acting as Munoz's attorney in these transactions. 2 51 Most importantly, only MDA was paying Sherron's fees and only MDA signed a retainer agreement with Sherron. Although an attorney-client relationship may exist even though a third party is paying the legal fees, see Dole v. Milonas, 889 F.2d 885 (9th Cir. 1989), Munoz offered scant evidence to refute the proof that Sherron was only working for MDA in this transaction. We therefore affirm the district court's decision that Munoz did not establish an individual attorney-client relationship with Sherron. 52 Munoz further asserts that he held the privilege jointly with MDA. For the same reasons that he did not establish an attorney-client relationship in an individual capacity, we find that he did not establish the relationship in a joint capacity. See Sky Valley Ltd. P'ship v. ATX Sky Valley, Ltd. , 150 F.R.D. 648 (N.D. Cal. 1993) (holding that an attorney-client relationship for the purposes of joint-client privilege can only be formed by express or implied contract). Although Munoz supplied Sherron with information regarding the transaction, he did not sign a retainer agreement with Sherron, and did not seek Sherron's advice in an individual capacity. In short, Munoz offered no evidence of an express or implied contract between himself and Sherron. For these reasons we find that the district court did not err in admitting the testimony of Sherron. 53 2. Closing Argument. 54 At the close of the trial, Munoz's attorney reserved two hours for closing argument. He concluded the argument on a Friday afternoon after using only one and one-half hours. The court then recessed for the weekend after the government finished its rebuttal argument. The following Monday, Munoz's attorney asked the court to re-open closing arguments so that he could use the remaining thirty minutes to address some issues that he felt he had left open. The court rejected his motion after a hearing and it found that Munoz had not made an adequate showing of prejudice. 55 A district court has wide discretion in limiting time for closing arguments. Barnard v. United States, 342 F.2d 309 , 321 (9th Cir. 1965). Provided a defendant has adequate time to make all legally tenable arguments supported by the facts of the case, the district court will not be reversed for limiting closing arguments. United States v. Gaines, 690 F.2d 849 , 858 (11th Cir. 1982). 56 Munoz's attorney did not identify any specific issues that he had failed to address in his closing argument. The district court reviewed the transcript of his closing argument and found that he had covered all of the obvious arguments on his client's behalf. The court then decided that granting his request would give Munoz an unfair advantage because the government had already completed its closing arguments. We hold that the district court did not abuse its discretion in denying Munoz's request to reopen closing arguments. 57 D. McGregor's Remaining Claims. 58 1. Sufficiency of the Evidence. 59 McGregor argues that the evidence was insufficient to establish that he knowingly made false statements in furtherance of the fraudulent scheme. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, a rational jury could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 319 (1979). When sufficiency of the evidence is preserved by making a motion for acquittal after the close of the evidence, we review the district court's denial of the motion de novo. United States v. Tucker, 133 F.3d 1208 , 1214 (9th Cir. 1998). 60 Under 18 U.S.C. S 1341 the elements of mail fraud are: (1) proof of a scheme or artifice to defraud, and (2) using or causing the use of the mails in order to further the fraudulent scheme. See United States v. Serang, 156 F.3d 910 , 914 (9th Cir. 1998). The government must demonstrate specific intent to defraud but intent may be inferred from the defendant's statements and conduct. See United States v. Beecroft, 608 F.2d 753 , 757 (9th Cir. 1979). 61 The government points to four categories of evidence that demonstrate McGregor knew the scheme was fraudulent at the time of the December 15, 1991, mailings. First, McGregor made statements to Paul Noe, one of his salesmen, as early as April 1991 that MDA was using new investment money to make the lease payments. He told another salesman, Peter Castillo, in July 1991 that he thought MDA was operating a Ponzi scheme. 62 Second, in mid-1991, McGregor left MDA to form his own company, Shelter Concepts Advertising Network. McGregor operated Shelter Concepts as a Ponzi scheme, using new investor money to make the lease payments to old investors. Despite making several sales, he never constructed a shelter and never solicited companies to place advertisements on shelters. Castillo testified that, to his knowledge, no one solicited advertisers to place ads on shelters and Shelter Concepts had only three or four sites on which to build shelters. Yet Shelter Concepts continued to make lease payments until the fall of 1991, when McGregor folded those investments back into MDA because he was unable to continue making the lease payments. 63 Third, he used the opinion letters drafted by the attorneys knowing that the factual premises on which the opinions were based were false. The opinion letters were issued, in part, on the assumption that all investors would be qualified financially in advance to invest in the scheme and that the investment would not be advertised to the general public. 64 When the SEC began investigating MDA, MDA told its sales agents to pre-qualify investors by requiring them to fill out forms that requested information about the investors' assets and investment experience. According to testimony by investors, McGregor never pre-qualified them to invest. McGregor had the investors sign the signature page of the forms without showing them the pages containing the investor requirements. He then attached the investor requirement pages afterwards to make it look as if the investors had been prequalified. Several investors testified that they would not have passed the financial requirements set out in the forms. Moreover, in order to get around the prohibition on general advertisement of the shelter investment, McGregor told his salesmen to attempt to sell the shelter investment by placing general advertisements for living wills, then making sales pitches for the shelter investment to those who responded to the ads. 65 Finally, McGregor used the sales brochure to lead investors to believe that the salesmen were only making $1,000 in commissions for each sale when they were actually making $2,500 in total commissions. 66 From all of this evidence a rational jury could find that McGregor had the specific intent to defraud and that all of the elements of mail fraud were established by proof beyond a reasonable doubt. We therefore conclude that the evidence was sufficient to support McGregor's conviction. 67 2. Jury Instructions. 68 At the conclusion of the trial, McGregor requested that the jury be instructed that if an allegedly false statement made by McGregor could reasonably be interpreted to be true, the jury must find that McGregor did not make a false statement. The district court rejected this proposed instruction, reasoning that the good faith instruction adequately covered this aspect of McGregor's defense theory. 69 McGregor also requested that the jury be given an advice of counsel instruction. The district court also rejected that request. 70 In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are adequate to guide the jury's deliberation. See United States v. Frega , 179 F.3d 793 , 807 n.16 (9th Cir. 1999). We review de novo a trial court's denial of a proposed jury instruction when the issue is whether the instructions given adequately presented the defendant's theory of the case. See United States v. Knapp, 120 F.3d 928 , 930 (9th Cir. 1997). We affirm the district court's decision to refuse McGregor's proffered jury instructions. 71 a. Reasonable Interpretation Instruction. 72 On appeal McGregor argues that the rejection of his proffered "reasonable interpretation" jury instruction violated his right to a fair trial. His specific complaint relates to the allegation that he misled investors regarding the amount of commissions the salesmen were making. The jury was instructed that it must unanimously agree on the type of fraudulent behavior upon which it was convicting. But the jury did not render a special verdict disclosing the behavior that they had agreed was fraudulent. Because the prosecution offered evidence of several different types of fraudulent activity, McGregorargues that the jury may have convicted him based solely on the sales brochure that misled investors to believe the salesmen were only making $1,000 in commissions. 73 He further argues that there is a reasonable interpretation of the sales brochure that makes it true--that is, that the salesmen were only receiving $1,000 in commissions from the revenues generated by the individual shelter sales and that the remaining $1,500 in commissions were coming from some other revenue source. Thus, he contends, the district court's refusal to give the reasonable interpretation jury instruction may have led the jurors to convict based on an incomplete or misleading statement of the applicable law. 74 As support for his argument, McGregor cites to several cases involving 18 U.S.C. S 1001. See United States v. Dale, 991 F.2d 819 (D.C. Cir. 1993); United States v. Race, 632 F.2d 1114 (4th Cir. 1980); United States v. Anderson, 579 F.2d 455 , 460 (8th Cir. 1978). Section 1001 criminalizes the making of false statements to governmental agencies. In the cases cited by McGregor, the defendants were required to report certain items to government agencies at each agency's request. The defendants argued that the agencies' requests were susceptible to more than one interpretation. These courts held that the prosecution must prove beyond a reasonable doubt that the requests were subject to no reasonable interpretation that would make the defendants' responses to the agencies' requests factually true. Cf. United States v. Migliaccio, 34 F.3d 1517 (10th Cir. 1994) (holding that the reasoning in S 1001 cases applies equally well in mail fraud cases in a reporting case where the defendants' statements to the agencies were allegedly susceptible to more than one interpretation). 75 This case is distinguishable from the cases cited by McGregor, however, all of which involved prosecutions where the defendant was convicted of making false statements. Under the mail fraud statute the government is not required to prove any particular false statement was made. See United States v. Halbert, 640 F.2d 1000 , 1007 (9th Cir. 1981). Rather, there are alternative routes to a mail fraud conviction, one being proof of a scheme or artifice to defraud, which may or may not involve any specific false statements. Id.; see also Lustiger v. United States, 386 F.2d 132 , 136 (9th Cir. 1967) (affirming mail fraud conviction of a real estate salesman who mailed purchasers brochures that, while not literally false, misled purchasers to believe that the real estate had access to water). 76 McGregor argues that the government prosecuted him on a false statement theory of mail fraud. One of the jury instructions--that the jury must unanimously agree on which false statement it believed the defendant made in order to convict--tends to support this conclusion. The jury instructions, however, defined false statements as including statements of half-truths and concealment of material facts. Moreover, McGregor was aware of the prosecution's theory of the case since the indictment charged the defendants with a scheme to defraud, and the specific instances of fraudulent behavior listed as evidence of the scheme are more reasonably characterized as deliberately misleading than as literally false statements. We think on this record that the jury's verdict must have been based on a theory of scheming to defraud, not on a theory of making specific false statements. 77 Finally, McGregor's defense theory was that he was innocent because he had no knowledge that the statements he was making were untrue; in other words, he had no intent to defraud. The jury was given a "good faith" instruction that stated, in part: "A person who acts . . . on a belief or opinion honestly held is not punishable under this statute merely because the belief or opinion turns out to be inaccurate, incorrect, or wrong. An honest mistake in judgment or an honest error in management does not rise to the level of criminal conduct." A good faith instruction is adequate to cover a defense theory that the defendant did not act with fraudulent intent. See United States v. Lawrence, 189 F.3d 838 , 843 (9th Cir. 1999). 78 The jury instructions, taken as a whole, covered both the prosecution's theory of the case as a scheme to defraud, and McGregor's theory that he had no knowledge of the fraud and thus no intent to defraud. We therefore affirm the district court's decision to reject McGregor's reasonable interpretation jury instruction. 79 b. Advice of Counsel Instruction. 80 McGregor also requested an advice of counsel instruction, arguing that he honestly believed the opinion letters written by the attorneys were accurate and that he did not understand the importance of not advertising the shelters to the general public and of financially pre-qualifying potential investors. The district court refused the suggested jury instruction after finding that McGregor's theory of the case in this area was adequately covered by the good faith instruction. 81 To qualify for an advice of counsel instruction, a defendant must demonstrate that he fully disclosed to his attorney all material facts and relied in good faith on the attorney's recommended course of conduct. United States v. Ibarra-Alcarez, 830 F.2d 968 , 973 (9th Cir. 1987). 82 McGregor offered no evidence that he consulted anyattorney, including either of the two who drafted the opinion letters, on the legal status of the shelter investments. Moreover, the two attorneys who drafted the opinion letters were not given all of the material facts by McGregor or any other defendant. Finally, McGregor did not follow the attorneys' advice to financially pre-qualify investors and to refrain from general advertising. Thus, we find that the district court did not err in refusing the proffered advice of counsel instruction. 83 E. Thomson's Remaining Claims. 84 1. Sufficiency of the Evidence. 85 Thomson argues that there was insufficient evidence to establish that he had a specific intent to defraud and that he knowingly made false statements in furtherance of the fraudulent scheme. He contends that several pieces of evidence indicate a lack of intent to defraud. For example: (1) he personally lost money on the scheme; (2) he had only minimal contact with MDA and Leroyer; (3) many MDA employees who worked closely with Leroyer did not know of the fraud; (4) none of his customers ever complained about the investments; and (5) he and his family invested heavily in the scheme, which would be irrational if he knew that it was on the verge of collapsing. Thomson further asserts that the evidence was insufficient to establish that he aided and abetted Munoz and McGregor, which resulted in convictions on the four counts pertaining solely to Munoz and McGregor's customers. We conclude that the evidence was sufficient for a rational jury to conclude beyond a reasonable doubt that Thomson committed and aided and abetted mail fraud. 86 a. Mail Fraud. 87 Thomson told numerous investors that he had access to MDA's books and records and that he monitored them regularly. He represented MDA as a financially sound company based on his review of the records. According to government exhibits, however, the records demonstrated that MDA was not performing well financially, showing losses of $2.9 million in 1989, $5.9 million in 1990, and $10.2 million in 1991. If Thomson did monitor MDA's books, he must have known that his representations that MDA was a financially healthy company were false. 88 The government presented evidence that Thomson was involved in preparing misleading financial statements that showed MDA operating at a profit by combining advertising revenues with the revenues generated from the sale of the shelters. The government introduced a photocopy of an old MDA financial statement that separated the advertising revenues from the shelter sales revenues. It contained handwritten notes identified as Thomson's suggesting that the two columns be combined in order to lead investors to believe that MDA was generating a profit. Thomson gave copies of the new, misleading financial statements to Munoz and McGregor to assist them in soliciting investors. 89 Several investors testified that Thomson informed them that a major accounting firm had agreed to perform an audit of MDA in the fall of 1991. In fact, Thomson knew that the firm had declined to perform the audit. When pressed by the investors for the results of the audits, Thomson showed them copies of the misleading financial statements he had prepared and attempted to pass them off as preliminary audit findings of the accounting firm. 90 Thomson also misrepresented the sales commissions received by him and his salesmen. Several investors testified that they were misled by the sales brochure into believing that the salesmen were only receiving $1,000 in commissions. One investor testified that Thomson directly told her that the commissions were only $500. The investors further testified that had they known that the salesmen were receiving $2,500 in commissions they would have reconsidered their investments. Even Thomson's brother testified that he believed Thomson was only making 10% to 15% in commissions for each sale. Moreover, Thomson testified in a prior trial that the marketing and consulting fees listed in the brochure went to him, but in this trial testified that those fees did not go to him. 91 Thomson knew about the SEC investigation in March 1991, as did Munoz and McGregor. Yet, he continued selling the shelter investment until December 1991 without informing investors of the ongoing investigation. 92 Thomson also knew that the factual premises upon which the securities opinion letters were based were false. He knew that at least one of his sales agents was soliciting shelter sales through newspaper advertisements. Moreover, Thomson, like McGregor, falsified forms in order to make it look as if he had financially pre-qualified the investors to whom he sold when, in fact, he had not pre-qualified them. 93 Investors testified that Thomson represented to them that he had received IRS approval to use the shelter investment as an individual retirement account (IRA). At trial, he attempted to introduce into evidence a letter ostensibly sent to him fromthe IRS indicating that the IRA had been approved. The government demonstrated, on cross-examination of Thomson, that the letter did not belong to FAC, Thomson's company. Rather, the letter was sent to a different company expressing approval for an unrelated pension plan. The name and employer identification number of that company had been masked, but the serial number was inadvertently left on the letter, clearly indicating that the letter belonged to the other company, not FAC. Other than this fraudulent letter purporting to grant IRS approval for FAC's IRA, Thomson offered no evidence that he either sought or obtained IRS approval for the IRA. 94 Finally, several investors testified that Thomson told them he was a CPA, when, in fact, he was not. Thomson also falsely represented himself as a former IRS agent. He argues on appeal that these statements did nothing to further the fraudulent scheme. He might have made them, however, to instill confidence in prospective investors that they were making a sound, legitimate investment. 95 From all of this evidence, a rational jury could conclude beyond a reasonable doubt that Thomson intended to defraud the investors. Sufficient admissible evidence satisfied the elements of mail fraud. 96 b. Aiding and Abetting. 97 Numerous investors testified that Thomson informed them that he assisted Leroyer in designing and marketing the fraudulent investment scheme. Moreover, Leroyer's assistant testified that Thomson met with Leroyer behind closed doors two to three times a week to discuss the company. Thomson also gave to Munoz and McGregor the misleading financial statements that he had prepared to assist them in selling the investment. Finally, the government offered testimony from Munoz's brother that Thomson recruited Munoz to sell shelters for MDA, that Munoz worked as a sub-agent for Thomson from 1989 to 1990 before striking out on his own, and that Thomson received a substantial portion of Munoz's commissions for each sale Munoz made. 98 From this evidence the jury could have rationally concluded beyond a reasonable doubt that Thomson had aided and abetted Munoz's and McGregor's fraudulent behavior. 99 2. Admission of Evidence of Investor Recovery. 100 Before trial, the government moved in limine to exclude all reference to the sale of MDA. At trial, Thomson attempted to cross-examine three victim investors on the amount of money they actually lost on the investment, arguing that the evidence was relevant to rebut the implication that the investors had lost all of their investment money. The district court initially sustained the government's objections to the line of questioning, but eventually allowed Thomson to introduce the evidence through the cross-examination of one government witness because the government had opened the door to the evidence on direct examination. 101 A trial court's limitation of a defendant's crossexamination of a witness is reviewed for abuse of discretion. See United States v. Bensimon, 172 F.3d 1121 , 1128 (9th Cir. 1999). We review de novo whether the limitation on crossexamination violated the defendant's Sixth Amendment confrontation rights. Id. This Court makes a two-part inquiry to determine whether a defendant's right to confrontation was violated. Wood v. Alaska, 957 F.2d 1544 , 1549-50 (9th Cir. 1992). First, the evidence must be relevant since a defendant does not have a constitutional right to present irrelevant evidence. Id. at 1550 . If the evidence is relevant, the court will then inquire "whether other legitimate interests outweigh the defendant's interest in presenting the evidence. " Id. The trial court violates the defendant's right to confrontation if it abuses its discretion in excluding the evidence. Id. 102 We hold that the district court did not abuse its discretion in excluding this testimony. The evidence was marginally relevant at best. At the time of trial the investors had not yet recovered any money from the sale of MDA, and the defendants offered no proof that they would, in fact, recover any of the escrowed funds. The sale of MDA took place well after reorganization in bankruptcy when the defendants were no longer operating the company. Because it was not relevant, Thomson's Sixth Amendment rights were not violated. 103 Moreover, even if the evidence were relevant, Thomson was eventually allowed on cross-examination to introduce the evidence of the sale of MDA and the existence of the escrow fund. Any further testimony would have been cumulative. 104 3. Admission of Evidence of Investigation of MDA. 105 Eugene Zech, an attorney for MDA, testified at trial that he had sent a letter to all MDA salesmen in May 1990 requesting that they suspend selling the investment. On direct examination, the court allowed Zech to discuss a conversation that he had with Leroyer regarding an inquiry into the investment scheme by the State of Michigan. The court allowed the testimony over Thomson's hearsay objection, for the limited purpose of explaining what caused Zech to write the letter. 106 Thomson argues that the district court erred by admitting Zech's testimony regarding Leroyer's statement about the Michigan investigation into MDA. He asserts that this testimony is hearsay that does not fall into an exception to the hearsay rule. We review a district court's evidentiary rulings for abuse of discretion. See United States v. Fleming, 215 F.3d 930 , 938 (9th Cir. 2000). We hold that the district court did not abuse its discretion in admitting this testimony. 107 Rule 801 of the Federal Rules of Evidence prohibits the introduction of a statement made by an out-of-court declarant that is offered at trial to prove the truth of the matter asserted. Fed. R. Evid. 801(c). 3 We conclude, however, that this testimony is not hearsay because it was not offered for its truth. 108 The district court allowed the government to question Zech only generally about the chain of events causing him to send the letters. Zech never described the nature or the result of the investigation and the government did not address the investigation in its closing argument. Zech's testimony was not offered for its truth but to explain why Zech wrote the letters to the defendants requesting that they suspend further sales. We therefore hold that the district court did not abuse its discretion in admitting Zech's testimony over the hearsay objection. 109 4. Cross-examination of Thomson. 110 Thomson testified at the trial in his own defense. During direct examination, he mentioned another sale-leaseback investment in which he had been involved that had failed. On cross-examination, the government asked him about the failure of a third sale-leaseback investment called Copymaid that he sold from 1984 to 1986. Thomson objected on the grounds that the evidence was too remote to be relevant, but the objection was overruled. 111 Rule 608(b) of the Federal Rules of Evidence allows a party to inquire on cross-examination into specific instances of a witness's conduct provided those instances of conduct concern the witness's character for truthfulness or untruthfulness. Evidence of prior frauds perpetrated by the witness is generally considered probative of the witness's truthfulness, see United States v. Gay, 967 F.2d 322 , 328 (9th Cir. 1992), although such evidence may in some cases be too remote in time to be deemed probative of the witness's truthfulness. See United States v. Jackson, 882 F.2d 1444 , 1447 (9th Cir. 1989). 112 Here, the evidence of the Copymaid investment was relevant to the truthfulness of Thomson's claim that he was an unwitting participant in the bus stop shelter scheme. The terms of the Copymaid investment were similar to the MDA investment, and Copymaid collapsed after two years in business. Moreover, the evidence was not too remote to be probative of Thomson's truthfulness. See id. at 1448 (holding that the prosecution could permissibly question a testifying attorney about his disbarment fourteen years earlier for misappropriating client funds). Thus, we hold that the district court did not abuse its discretion in admitting the impeachment evidence. 113 5. Jury Instructions. 114 Thomson argues, on the basis of our holdings in United States v. Aguilar, 80 F.3d 329 (9th Cir. 1996), and United States v. McAllister, 747 F.2d 1273 (9th Cir. 1984), that the district court erred in giving the jury an instruction that the defendant's reckless indifference to the truth or falsity of a statement would be sufficient to establish specific intent under the mail fraud statute. We review de novo whether a jury instruction misstates the intent element of mail fraud as a matter of law. Gay, 967 F.2d at 326 . 115 This Court has repeatedly held that reckless indifference to the truth or falsity of a statement satisfies the specific intent requirement in a mail fraud case. See, e.g., id. (affirming a reckless indifference instruction in a mail fraud case on the grounds that it conforms with a long line of Ninth Circuit precedent); United States v. Schaflander, 719 F.2d 1024 , 1027 (9th Cir. 1983) (same); United States v. Cusino , 694 F.2d 185 , 187 (9th Cir. 1982) ("Fraudulent intent is shown if a representation is made with reckless indifference to its truth or falsity."). Aguilar and McAllister concern a different type of intent instruction where a defendant is accused of trying to avoid obtaining actual knowledge of the illegality in order to avoid the potential legal consequences. These cases are therefore inapposite. We conclude that the district court properly included the reckless indifference language in the jury instruction. 116 6. Sentencing Adjustments. 117 a. Role in the Offense. 118 At sentencing, the district judge increased Thomson's offense level by three levels, finding that he played a managerial or supervisory role in the criminal activity pursuant to U.S.S.G. S 3B1.1(b). Such an adjustment is permissible if the district court finds that defendant was a "manager or supervisor and the criminal activity involved five or more participants or was otherwise extensive . . . ." Id. 119 Thomson challenges this upward adjustment on the grounds that the district judge failed to identify those participants over whom Thomson exercised control. He relies on United States v. Luca, 183 F.3d 1018 (9th Cir. 1999), for this proposition. In Luca, however, the court found no evidence in the record that anyone other than the defendant actually participated in the criminal behavior. Id. at 1024 . The district court there had concluded that it need not identify any other participants, because it found that the criminal activity was otherwise extensive. Id. This Court reversed, holding that the terms "manager" and "supervisor" imply the existence of a person or persons over whom the defendant exercises control and thus, as a matter of law, there must be some evidence of other participants in the criminal activity to justify an upward adjustment of a defendant's sentence for being a manager/ supervisor. Id. 120 Thomson misinterprets Luca as requiring that the district court specifically list the other participants in its factual findings in order to justify an upward adjustment on the basis of role in the offense. This Court has stated on a number of occa-sions that the district court need not make any specific findings of fact to support an upward adjustment for role. See, e.g., United States v. Govan, 152 F.3d 1088 (9th Cir. 1998); United States v. Lopez-Sandoval, 146 F.3d 712 , 716 (9th Cir. 1998); United States v. Ponce, 51 F.3d 820 , 826 (9th Cir. 1995). 121 Here, there was ample evidence of other participants in the criminal activity (for example, Thomson's codefendants), and there was ample evidence for the district court to conclude that Thomson played a managerial or supervisory role. Thomson repeatedly informed investors that he assisted in creating and marketing the investment. Moreover, he created and provided materials such as the financial statements to Munoz and McGregor to assist them in selling the investment. In fact, Thomson was responsible for recruiting Munoz into the fraudulent scheme. Munoz worked directly under Thomson for a time and gave Thomson a portion of his commissions. His company, FAC, employed over twenty salespeople. 122 Perhaps most importantly, the jury convicted Thomson on all counts, including those relating to Munoz and McGregor's customers. This indicates that the jury found that Thomson had exercised some measure of control and responsibility over the actions of Munoz and McGregor. Thus, we hold that the district court did not clearly err in giving Thomson an upward adjustment for his role in the fraudulent scheme. 123 b. Obstruction of Justice. 124 One of the issues at trial was whether Thomson lied to investors when he told them that he had obtained a letter from the IRS qualifying the shelter investment as an IRA. As evidence that he had told investors the truth, Thomson produced a letter purportedly granting IRS approval to FAC to sell the investment as an IRA. The letter contained no company name or address, or employer identification number, but did contain a serial number. On cross-examination the government introduced a second letter written by the IRS to a bank regarding a pension plan. This letter was the same letter as the one Thomson had introduced, but contained the name, address and EIN of the bank. The serial numbers on the two letters were identical, indicating that on the letter produced by Thomson someone had deliberately masked the other identifying information to pass off the letter as belonging to FAC. 125 Thomson also attempted to prove that he had purchased a shelter investment as late as November 1991 to demonstrate his continuing belief in the financial stability of MDA. He produced a sales contract that purportedly documented the November sale. The government demonstrated that there was no listing of the sale in MDA's books and that the contract was typed in a different font on a different printer than were all of the other sales contracts. Moreover, the government introduced Thomson's list of shelter purchases that he claimed as credits at the bankruptcy hearing. The list did not contain the November shelter purchase. Finally, Thomson's bank account records demonstrated that the check he ostensibly used to purchase the shelter had never been cashed. 126 Based on these two incidents, the district court granted a two-level upward adjustment for obstruction of justice pursuant to U.S.S.G. S 3C1.1. The court found that Thomson testified falsely and produced fabricated documents to show that he received IRS approval for the shelter investment as an IRA and that he purchased a shelter investment in November 1991. 127 Thomson argues that the district court erred in assessing the upward adjustment for three reasons. First, he asserts that the district court did not articulate which testimony was false and which evidence was fabricated. Second, he says that the court did not make specific findings that Thomson's false testimony and production of false evidence was willful and material. Finally, he argues that upwardly adjusting a defendant's sentence merely because his testimony was inconsistent with the government's theory of the case would serve to stifle defendants from testifying on their own behalf. 128 In its March 5, 1999, order the district court did, however, make specific findings identifying the testimony and documents that constituted obstruction of justice and it found that Thomson's actions in testifying and producing the false evidence were both willful and material. Thus, Thomson's first two objections to the upward adjustment are without merit. 129 Thomson's argument that his testimony was merely inconsistent with the government's theory of the case is a gross mischaracterization. He testified falsely on the basis of documents he introduced that were deliberately fabricated to make it look as if he had received IRS approval for his IRA and had purchased a shelter as late as November 1991. The district court therefore properly found by a preponderance of the evidence that Thomson had obstructed justice. Accordingly we affirm the upward adjustment. 130 c. Calculation of Loss. 131 Thomson raises the issue, as did Munoz and McGregor, of whether the district court erred in calculating loss based on the intended loss standard. For the reasons stated above, weaffirm the district court's decision to use intended loss. 132 Thomson also contends that the district court erred in holding him responsible for the entire loss caused by MDA. In United States v. Blitz, 151 F.3d 1002 (9th Cir. 1998), this Court upheld the district court's decision to hold telemarketers in a fraudulent telemarketing scheme responsible for the loss caused by the entire scheme, despite the fact that the telemarketers did not design or implement the scheme. Id. at 1013 . The telemarketers worked together to further the scheme, helping each other with sales, teaching each other sales pitches, and providing each other with advice on how to sell the scheme. Id. This Court held that the loss was foreseeable to the telemarketers and they should be held responsible for it. Id. 133 Thomson argues that Blitz is distinguishable because the telemarketers were not competing with one another for customers, as were Thomson, Munoz, and McGregor. The evidence in this case indicates, however, that the defendants were all working together in the scheme more than they were working in competition with each other. The evidence showed that Thomson was responsible, along with Leroyer, for creating the sale-leaseback scheme and the marketing plan including the misleading sales brochure. In addition, he provided Munoz and McGregor and the other salesmen with financial statements to assist them in making sales. 134 Perhaps most importantly, Thomson was convicted on all ten counts, including those counts relating to Munoz and McGregor's customers, indicating that the jury found that Thomson assisted Munoz and McGregor in perpetrating the fraud. From the evidence adduced at trial and the jury convictions for those counts relating to Munoz and McGregor's customers, the district court could reasonably have found that Thomson provided other salesmen with sufficient assistance to justify holding him responsible for the loss that they caused. We therefore hold that the district court did not err in including all loss caused by MDA in its loss calculation for Thomson's sentencing. III. CONCLUSION 135 We commend the district court for the manner in which it conducted this difficult, lengthy trial in a major white collar criminal case with multiple defendants. We find that the district court erred only in using the old preponderance of the evidence standard rather than the new clear and convincing evidence standard in determining the relevant conduct of David Munoz and Bennie McGregor where the resulting offense level was extremely disproportionate. We therefore vacate their sentences and remand to the district court for resentencing. The district court should apply the heightened standard of clear and convincing evidence to the evidence adduced at trial. We affirm the convictions of Munoz, McGregor, and Thomson, as well as Thomson's sentence, and we affirm the district court's decisions on all other issues raised on appeal by the defendants. 136 AFFIRMED in part, VACATED & REMANDED in part. Notes: 1 Thomson, unlike Munoz and McGregor, did not request an offset at sentencing for the amount of lease payments made to the investors. 2 In limited circumstances courts have stated that the privilege may apply where a party reasonably but mistakenly believes that an attorney represents him rather than another party. See , e.g., In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 , 923 (8th Cir. 1997) (acknowledging, in dicta, that a party's reasonable belief about the nature of his relationship with an attorney may be relevant to the determination of whether the privilege applies); United States v. Hart, No. Crim.A.92-219, 1992 WL 348425 , at *1-*2 (E.D. La. Nov. 16, 1992). This Court has never addressed this issue. On appeal Munoz urges us to adopt such a rule but we decline to do so in this case. Munoz, who was represented by a different attorney at trial than on appeal, did not directly make this argument at the district court level and, as a result, the record is insufficient for us to decide the issue. 3 The Rules provide for several exceptions none of which was applicable here. The government argues that the co-conspirator exception to the hearsay rule should apply. See Fed. R. Evid. 801(d)(2)(E). The district court never made a preliminary finding that this rule should apply, however, so this argument is unavailing. See Bourjaily v. United States, 483 U.S. 171 , 175 (1987).
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Boochever, Tallman, Tashima
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United States v. David Phillip Munoz Bennie E. McGregor Donald L. Thomson
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UNITED STATES of America, Plaintiff-Appellee, v. David Phillip MUNOZ; Bennie E. McGregor; Donald L. Thomson, Defendants-Appellants
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<parties id="b1153-8">
UNITED STATES of America, Plaintiff-Appellee, v. David Phillip MUNOZ; Bennie E. McGregor; Donald L. Thomson, Defendants-Appellants.
</parties><br><docketnumber id="b1153-9">
Nos. 99-50195, 99-50196, 99-50203.
</docketnumber><br><court id="b1153-10">
United States Court of Appeals, Ninth Circuit.
</court><br><otherdate id="b1153-11">
Argued and Submitted Oct. 12, 2000
</otherdate><decisiondate id="AUl">
Filed Dec. 6, 2000
</decisiondate><br><attorneys id="b1158-4">
<span citation-index="1" class="star-pagination" label="1122">
*1122
</span>
Michael D. Abzug, Los Angeles, California, for defendant-appellant David P. Munoz.
</attorneys><br><attorneys id="b1158-5">
William J. Kopeny, William J. Kopeny
<em>
&
</em>
Associates, Irvine, California, for defendant-appellant Bennie E. McGregor.
</attorneys><br><attorneys id="b1158-6">
Thomas H. Wolfsen and James M. Crawford, Orange, California, for defendant-appellant Donald L. Thomson.
</attorneys><br><attorneys id="b1158-7">
Alejandro N. Mayorkas, United States Attorney, and George S. Cardona and Paul G. Stern, Assistant United States Attorneys, Los Angeles, California, for the plaintiff-appellee.
</attorneys><br><judges id="b1158-10">
Before: BOOCHEVER, TASHIMA, and TALLMAN, Circuit Judges.
</judges>
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99-50195, 99-50196, 99-50203
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Court of Appeals for the Ninth Circuit
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502 F. Supp. 969 (1980) UNITED STATES of America v. Robert WYLER and Dianne Becker, Defendants. No. 79 Cr. 779. United States District Court, S. D. New York. October 24, 1980. John S. Martin, U. S. Atty. by Minna Schrag, Asst. U. S. Atty., New York City, for United States of America. Paul Goldberger, Goldberger, Feldman, Dubin & Young, New York City, for defendant, Robert Wyler. Jerry Feldman, Goldberger, Feldman, Dubin & Young, New York City, for defendant, Dianne Becker. PIERCE, District Judge. OPINION AND ORDER The Court has previously granted defendants' motion to suppress physical evidence unlawfully seized from a house which they rented at 3800 N.W. 89th Avenue, Hollywood, Florida (hereinafter "3800" or the "Florida house" alternatively) and which was entered and searched by federal agents without a warrant. Among the documents seized during that search the government found the names of one William Miles and Gulfport Seafoods Co. International (hereinafter "Gulfport"). Approximately six months later, the agents located Miles and interviewed him. During the interview they learned about the extortion charged in this indictment. The Court now addresses whether the statements and testimony of William Miles, the victim of the alleged extortion, must be suppressed as a "fruit" of the unlawful search. The government contends, inter alia, that the motion to suppress Miles' testimony *970 should be denied because the evidence of this live witness has become so attenuated from the unlawful search as to dissipate the taint of the illegality. Wong Sun v. United States, 371 U.S. 471 , 487-88, 83 S. Ct. 407 , 417, 9 L. Ed. 2d 441 , 455 (1963). At an "attenuation" hearing the government presented two witnesses, F.B.I. Special Agent Christopher Mattiase and William Miles. After considering their testimony and having observed the demeanor of these witnesses during the hearing, the Court finds that the testimony of William Miles will be admissible during a trial of the charges in the indictment. Accordingly, the Court denies the motion to suppress Miles' testimony based upon the findings set forth hereinbelow. DISCUSSION It is well settled that the exclusionary rule is applicable to both direct and indirect products of unlawful searches, Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S. Ct. 182 , 64 L. Ed. 319 (1920), and that it protects against the use of unlawfully obtained verbal statements as well as use of papers and other physical evidence. Wong Sun v. United States, supra , 371 U.S. at 485, 83 S. Ct. at 416 . Thus, "verbal evidence which derives so immediately from an unlawful entry ... is no less the `fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion." Id. Yet, unlawfully obtained "fruits" are not per se inadmissible. Rather, as the Court concluded in Wong Sun: "We need not hold that all evidence is `fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is `whether, granting establishment of the primary illegality, the evidence ... has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Maguire, Evidence of Guilt 221 (1959). Id. at 487-88, 83 S. Ct. at 417 . In support of its claim of attenuation the government relies upon the standards set forth in United States v. Ceccolini, 435 U.S. 268 , 98 S. Ct. 1054 , 55 L. Ed. 2d 268 (1978) and United States v. Leonardi, 623 F.2d 746 (2d Cir. 1980). Also relying upon Ceccolini, the defendants additionally urge, inter alia, that Miles' testimony should be suppressed based upon the holdings of United States v. Scios, 590 F.2d 956 (D.C.Cir.1978) (en banc); United States v. Karathanos, 531 F.2d 26 (2d Cir.), cert. denied, 428 U.S. 910 , 96 S. Ct. 3221 , 49 L. Ed. 2d 1217 (1976); and United States v. Tane, 329 F.2d 848 (2d Cir. 1964). The holdings in these cases instruct that a determination by this Court should not be predicated solely "on the basis of causation in the logical sense", United States v. Ceccolini, supra , 435 U.S. at 274, 98 S. Ct. at 1059 . Rather, while "no mathematical weight can be assigned to any of the factors", id. at 280, 98 S. Ct. at 1062 , this Court's determination of attenuation must be based upon the totality of the circumstances and events surrounding the witness' testimony. Ceccolini, Leonardi and Scios present an array of factors which the Court may consider in determining attenuation. They include: a. Whether the identity and relationship of the witness would have been known to the investigators without the illegally seized evidence. b. Whether the witness' testimony was an act of free will, neither coerced nor induced by official authority. c. Whether the illegally seized evidence was used in questioning the witness. d. The passage of time between the seizure, the initial contact with the witness and the time of trial. e. Whether the purpose of the search was to find evidence or identify witnesses. f. Whether application of the exclusionary rule in this context would deter future police misconduct. IDENTITY OF THE WITNESS AS TAINTED FRUIT When the agents entered the Florida house they found documents relating to *971 "Shawn's Camelot" (a nightclub owned by defendant Shawn Becker), William Miles, and his company, Gulfport. F.B.I. agent Mattiase and DEA agent Oakes were, and had been engaged in, a joint investigation seeking information about the defendant Robert Wyler, who was then a fugitive; any involvement by him in illegal drug trafficking; and any racketeering activities on his part. Specifically, they were seeking to locate Wyler and to ascertain information about any use of monies obtained from drug sales in the operation of legitimate businesses. After finding the names of Gulfport and Miles at the Florida house, they determined to locate and question him about his involvement with Robert Wyler and Shawn Becker. Prior to the unlawful search, the government had received information about Gulfport from the Sheriff's Office in the town of Gulfport, Mississippi. In 1976 or early 1977 that office had instituted an investigation into allegations that the company had used its boats for narcotics shipments. Apparently, no conclusions were reached by these Mississippi authorities regarding these allegations. Although the government had this information regarding Gulfport they had no knowledge of the identity of William Miles, nor of any relationship between Miles and Wyler, until the unlawful search occurred at the Florida house, when they discovered documents mentioning both Miles and Gulfport. Agent Mattiase explicitly testified that " he first learned about Miles from the documents seized in the Florida house" and that Miles' name had not earlier come to his attention. The evidence at the hearing establishes that the records illegally seized on May 29, 31, 1978 contained no clue to the crimes charged in the indictment. On their face they were business records relating to Shawn Becker's affairs. Mattiase admitted that he had no knowledge of the crime until he questioned Miles. Miles testified that he did not report the crimes charged in this indictment to any federal law enforcement officials until November 29, 1978 when he told the federal agents about the extortion. [1] The Court finds the testimony of Mattiase and Miles on this issue to be credible and finds that the federal agents had no knowledge of the extortion charged in this indictment until Miles was interviewed at DEA headquarters in November 1978. Additionally, the Court finds that "but for" the documents seized unlawfully at the Florida house on May 29 and 31, 1978, the agents would have had no knowledge of Miles' "existence, identity and potential value as a witness", United States v. Leonardi, supra, at 752, and therefore would, in all likelihood, not have discovered the alleged crimes. To the extent that the government argues that Miles' identity would have been learned through "inevitable discovery", United States v. Falley, 489 F.2d 33 , 40-41 (2d Cir. 1973) because of the leads provided by the Mississippi sheriff's office, based on the evidence presented during the hearing, the Court concurs with the view of the defendants that this claim is much too speculative to credit. VOLUNTARINESS AND USE OF TAINTED FRUIT IN QUESTIONING As discussed, "but for" the unlawful search the identity of Miles and the existence of the crimes charged in this indictment would not have been known to the government. However, as the Court in Wong Sun and Ceccolini has cautioned, "but for" causation, while an important factor which the Court must consider, is, standing alone, an insufficient basis upon which to suppress the testimony of a live witness. *972 Restating the principles of Ceccolini this Circuit has recently held that "where the identity and potential usefulness of a witness is revealed as the result of an unlawful search, the willingness of that individual to testify ... represents a significant attenuation of the link between the police misconduct and its evidentiary fruits." United States v. Leonardi, supra, at 752. However, "for an act of free will [in testifying] to operate as a dissipation of taint, it must occur in circumstances devoid of coercion." United States v. Scios, supra, at 960. At the attenuation hearing the government initially sought to demonstrate the voluntariness of Miles' statements to the agents through the testimony of Agent Mattiase, who stated that Miles came to the DEA office voluntarily, in response to a telephone call from Mattiase. Once there, he was questioned by Agents Mattiase and Oakes about his association with Wyler. Because of his acknowledged association with the defendant Wyler, a DEA fugitive, Miles was given Miranda warnings prior to the commencement of questioning and signed a waiver of his rights. Although Agent Mattiase interviewed Miles "armed with the knowledge of what was in the unlawfully seized documents," he testified that he never referred to their contents in any of his questions. Mattiase did use photographs seized from the Florida house and notes gleaned in part from documents taken during the illegal intrusion. There is no evidence that any reference to the agent's notes prompted Miles' responses and the photographs were shown to Miles only after he had revealed the alleged crimes and related the circumstances surrounding them. Thus, while some use was made of photographs and information obtained from records seized from the Florida house in questioning the witness, they were not used to induce his statement. As the alleged victim, Miles' testimony must be considered crucial to the government's case in the eventual trial of this matter. Accordingly, in considering whether to suppress that testimony as "tainted fruit", the Court deemed it essential that Miles, himself, testify at the attenuation hearing regarding the voluntariness of his statements to the federal agents and the circumstances surrounding his interview with them. Miles testified and corroborated the testimony of Agent Mattiase that he was told that the agents were investigating a narcotics matter, and that he was not a suspect. He was also asked about Gulfport and his relationship to the company, about the financial arrangements for the company, and about the involvement of Shawn Becker and Robert Wyler. He then voluntarily revealed the circumstances surrounding the extortion charged in this indictment, a matter about which the agents had no knowledge at the time. His direct testimony concluded with his statement that when he went to the DEA office at the invitation of the agents and spoke with them he "felt under no pressure whatsoever to talk with them." Miles' behavior on the day of the interview confirms the voluntariness of his statement. He took with him to the DEA office a bloodstained jacket which he had kept more than one and one-half years since his alleged kidnapping. He took this action in response to nothing more than a telephone invitation from Agent Mattiase asking him if he would come and meet with the agents concerning Robert Wyler. The Court concludes that taking the jacket to the interview reflected Miles' intention to voluntarily report the alleged crime which caused the staining. Therefore, the Court finds that Miles was not coerced, threatened with prosecution, or in any other way induced to cooperate or reveal information regarding the crimes charged in the indictment. The testimony of both Mattiase and Miles indicates that Miles himself voluntarily revealed the circumstances surrounding the alleged extortion which forms the basis of this indictment-alleged events wholly unknown to the agents until this revelation. THE TIME SPAN FROM SEARCH TO CONTACT WITH WITNESS TO TESTIMONY AT TRIAL The "length of the road" from the unlawful search, to the initial contact with the *973 allegedly tainted witness, to his actual testimony at trial is yet another factor to be assessed in determining whether the events are sufficiently attenuated so as to purge the taint. United States v. Ceccolini, supra , 435 U.S. at 279, 98 S. Ct. at 1061 ; United States v. Scios, supra, at 960. Here the road was not short. Six months elapsed from May 29, 31, 1978, when federal agents entered the Florida house and seized business records mentioning Miles, and November 29, 1978 when Miles was interviewed at DEA headquarters. Miles' association with and knowledge of Wyler and the alleged circumstances of the extortion now charged in the indictment preceded by at least two years the agents' contact with him. Moreover, Miles was first questioned by the federal agents on November 29, 1978; but, he did not actually testify until March of 1980 during the trial of Patrick Growich and Michael Sutter, alleged co-conspirators in this indictment. During this eighteen month period the Court finds that Miles had sufficient time for "detached recollection" and contemplation of his testimony. United States v. Ceccolini, supra , 435 U.S. at 277, 98 S. Ct. at 1060 . These lengthy time spans from search to contact to interview are sufficient to convince the Court that Miles' willingness to testify is the product of a persistent desire to cooperate rather than the "tainted fruit of an illegal search." THE PURPOSE OF THE SEARCH AND FUTURE DETERRENCE Where the specific purpose of an alleged illegal search is to identify witnesses the exclusionary rule must be scrupulously applied. United States v. Ceccolini, supra , at 276 n.4, 98 S. Ct. at 1060 n.4. Agent Mattiase testified that the agents were initially conducting an investigation of the whereabouts of the fugitive Wyler and of his involvement in narcotics. Also underway was a RICO investigation to determine whether monies obtained from Wyler's drug trafficking had been used to finance legitimate businesses. The agent admits that the illegally seized evidence at the Florida house expanded and accelerated the RICO investigation. However, as previously indicated, at the time of the unlawful entry into the Florida house the agents had no knowledge of the alleged crimes involving Miles and were not investigating extortion or kidnapping charges against Robert Wyler. In the words of Agent Mattiase, "the search of the house in Florida was to find Robert Wyler"-who was then a much sought fugitive from a federal narcotics prosecution. The Court finds that the government has demonstrated that the purpose of the search was not to find Miles, or information about Gulfport, or evidence about the crimes alleged in the indictment herein. Rather, the information discovered about these matters was a "by product" of the search. Thus, Miles is indeed a "found" witness. United States v. Leonardi, supra, at 752. Cf., United States v. Scios, supra, at 961. The Supreme Court has long held that the exclusionary rule was designed to deter willful and flagrant police misconduct in violation of Fourth Amendment rights. Weeks v. United States, 232 U.S. 383 , 34 S. Ct. 341 , 58 L. Ed. 652 (1914). The rule is best applied when "its remedial objectives are thought most efficaciously served." United States v. Calandra, 414 U.S. 338 , 348, 94 S. Ct. 613 , 620, 38 L. Ed. 2d 561 , 571 (1974). The record in this case establishes that the agents entered the house of Shawn Becker and Robert Wyler with the good faith belief, albeit mistaken, that the house was vacant (abandoned), and that William Schukter, the mortgage holder who authorized their entry, had the authority to do so. The Fifth Circuit has recently held that "evidence is not to be suppressed under the exclusionary rule where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized." United States v. Williams, 622 F.2d 830 , 840 (5th Cir. 1980). The Williams Court reasoned that the exclusionary rule was designed to deter wilful or flagrant action by police and if the reasons for the *974 rule ceased, its application should cease also. Thus, they concluded, "[t]he costs to society of applying the rule beyond the purposes it exists to serve are simply too high ... with few or no offsetting benefits." Id. Thus far, this Circuit has not read a good faith exception into the exclusionary rule, hence, the documents and business records seized in the unlawful search of the Florida house herein were suppressed. With the suppression of this physical evidence the exclusionary rule has already had a limiting effect on the prosecution of this case and has been an "obstruction to the ascertainment of truth." United States v. Ceccolini, supra , 435 U.S. at 277, 98 S. Ct. at 1061 . However, Ceccolini cautions that "the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object." Id. at 280, 98 S. Ct. at 1062 . Expressing concern that such exclusion would "perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search," id. at 277, 98 S. Ct. at 1060 , and relying on the earlier decisions of Stone v. Powell, 428 U.S. 465 , 96 S. Ct. 3037 , 49 L. Ed. 2d 1067 (1976) and United States v. Calandra, 414 U.S. 338 , 94 S. Ct. 613 , 38 L. Ed. 2d 561 (1974), Ceccolini instructs the Court to consider not only the benefits of protecting Fourth Amendment rights but the substantial costs the rule imposes. Thus, this Court must balance the cost to society of suppressing competent, voluntary, live testimony against the prospect of deterring unlawful law enforcement activity and incrementally enhancing Fourth Amendment values. In Ceccolini the Court found that "[t]he cost of permanently silencing Hennessy [the live witness] is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect.", supra 435 U.S. at 280, 98 S. Ct. at 1062 . As in Ceccolini, the Court finds that the rule would not be well-served by excluding the testimony of the live witness, Miles. The officers entered the Florida house in good faith and with the reasonable belief that they were authorized to do so. Under these circumstances, to suppress evidence of another crime which they inadvertently discovered much later would not, in the Court's view, deter such unlawful entries in the future. Moreover, the Court finds in the context of this case that the public interest is best served by "prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, 394 U.S. 165 , 175, 89 S. Ct. 961 , 967, 22 L. Ed. 2d 176 , 182 (1969). Where, as here, documents "found" in a good faith warrantless search lead to the identity of a victim in a previously undiscovered crime, neither the purposes of the exclusionary rule nor the public interest would be benefitted by suppressing the evidence. CONCLUSION Having considered the totality of the circumstances surrounding the discovery and the statements and testimony of the witness Miles, and considering the important purposes of the exclusionary rule, the Court finds that his testimony is sufficiently attenuated from the unlawful search to purge the taint of the illegality. The motion to suppress Miles' statements and testimony is denied. This matter will proceed to trial on Monday, November 10, 1980, at 9:30 a. m. NOTES [1] Miles testified that he did not report the incidents surrounding his assault until late spring of 1977. At that time, in response to the insistence of a resident female friend who, he states, was frightened, and after having received several intimidating telephone calls from persons he believed to have been involved in the alleged earlier extortion, he contacted the 24th Precinct of the New York City Police Department. He reported the incidents to uniformed officers who came to his home and then to detectives at the precinct. They referred him to the District Attorney's Office. He never contacted that office nor any other law enforcement agency until November 1978 when he spoke with Agents Mattiase and Oakes.
|
opinion_html_with_citations
| 3,535 |
2013-10-30 06:32:03.671743+00
|
010combined
|
f
|
f
| 1,512,907 |
Pierce
| null |
LU
|
f
|
Published
| 1 |
United States v. Wyler
|
Wyler
|
UNITED STATES of America v. Robert WYLER and Dianne Becker, Defendants
| null | null |
<parties id="b1025-4">
UNITED STATES of America v. Robert WYLER and Dianne Becker, Defendants.
</parties><br><docketnumber id="b1025-6">
No. 79 Cr. 779.
</docketnumber><br><court id="b1025-7">
United States District Court, S. D. New York.
</court><br><decisiondate id="b1025-9">
Oct. 24, 1980.
</decisiondate><br><seealso id="b1025-12">
See also, D.C., 502 F.Supp. 959.
</seealso><br><attorneys id="b1025-20">
John S. Martin, U. S. Atty. by Minna Schrag, Asst. U. S. Atty., New York City, for United States of America.
</attorneys><br><attorneys id="b1025-21">
Paul Goldberger, Goldberger, Feldman, Dubin & Young, New York City, for defendant, Robert Wyler.
</attorneys><br><attorneys id="b1025-22">
Jerry Feldman, Goldberger, Feldman, Dubin & Young, New York City, for defendant, Dianne Becker.
</attorneys>
| null | null | null |
See also, D.C., 502 F.Supp. 959.
| null | null | 1,048,918 |
79 Cr. 779
| 1 |
nysd
|
FD
|
t
|
S.D. New York
|
District Court, S.D. New York
|
4,148,041 |
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted February 21, 2017 * Decided February 23, 2017 Before DIANE P. WOOD, Chief Judge RICHARD A. POSNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 16-3697 ORLANDER K. NORTHERN, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 16 C 7200 JOHN H. STROGER, JR., HOSPITAL OF COOK COUNTY, Edmond E. Chang, Defendant-Appellee. Judge. ORDER In the span of two months, Orlander Northern filed two nearly identical civil- rights lawsuits against the hospital where he worked as a paramedic. Because the allegations in the second suit are included within the first, the district court dismissed this second suit without prejudice to proceeding in the first case, which is before a different judge in the same district. Because it is reasonable for a judge to dismiss * The defendant was not served with process in the district court and is not participating in this appeal. We have agreed to decide the case without oral argument because the appeal is frivolous. See FED. R. APP. P. 34(a)(2)(A). No. 16-3697 Page 2 without prejudice a complaint whose claims are subsumed within an earlier, pending suit, we affirm. Northern filed his first case, 16 C 05926, before Judge Tharp. The operative complaint invokes 42 U.S.C. § 1983 against Stroger Hospital in Cook County. Northern alleges that in June 2015 his “Superiors” at the hospital required him “to perform a fitness for duty evaluation,” which included supplying a “urine sample.” Though the “sample came back clean,” hospital officials also required a “mental evaluation,” after which they “deemed [him] a threat.” He is now on paid administrative leave, but has lost overtime pay. He accuses the hospital of retaliating against him for past grievances. Within a month of filing his suit, Northern filed his second case, which was assigned to Judge Chang. Like the first suit, this complaint also invokes § 1983 against Stroger Hospital. Northern attached a photocopy of the allegations that he appended to his first complaint, thereby raising the same allegations that we recounted above. Although the complaint in the first case, before Judge Tharp, contains a few related allegations that Northern left out of his second suit, all the facts alleged in the second suit are included in the first case. Judge Chang dismissed the second suit as duplicating the first case. The case before Judge Tharp is ongoing (the latest docket entry says that the defendant has until February 27 to answer the complaint). Northern appeals the district court’s dismissal of this suit, but we find no error. When a plaintiff has filed two suits that involve similar claims against different defendants, a district court should consolidate them rather than dismiss the second one. See Taylor-Holmes v. Office of the Cook Cnty. Pub. Guardian, 503 F.3d 607 , 610 (7th Cir. 2007). But a district court may dismiss a complaint if it duplicates another federal case, such as when the “claims, parties, and available relief do not significantly differ between the two actions.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873 , 888–89 (7th Cir. 2012) (quoting Ridge Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 572 F. Supp. 1210 , 1213 (N.D. Ill. 1983)); see also Trippe Mfg. Co. v. Am. Power Conversion Corp., 46 F.3d 624 , 629 (7th Cir. 1995). In Northern’s second case, he sues the same defendant (Stroger Hospital), invokes the same legal claim (§ 1983), recites the same narrative (about improper testing and leave placement), and seeks the same relief (compensation) as in his earlier-filed lawsuit. So the district court reasonably dismissed the second suit without prejudice. The judgment is AFFIRMED.
|
opinion_html_with_citations
| 637 |
2017-02-23 21:01:02.435178+00
|
010combined
|
f
|
f
| 4,370,781 |
David, Diane, Hamilton, Posner, Richard, Wood
|
civil
|
CU
|
t
|
Unpublished
| 0 |
Orlander Northern v. John Stroger, Jr.
| null |
Orlander K. NORTHERN, Plaintiff-Appellant, v. John H. STROGER, Jr., Hospital of Cook County, Defendant-Appellee
| null | null |
<parties id="b621-13">
Orlander K. NORTHERN, Plaintiff-Appellant, v. John H. STROGER, Jr., Hospital of Cook County, Defendant-Appellee.
</parties><br><docketnumber id="b621-16">
No. 16-3697
</docketnumber><br><court id="b621-17">
United States Court of Appeals, Seventh Circuit.
</court><br><otherdate id="b621-18">
Submitted February 21, 2017
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</otherdate><decisiondate id="A8F">
Decided February 23, 2017
</decisiondate><br><attorneys id="b622-3">
<span citation-index="1" class="star-pagination" label="608">
*608
</span>
Orlander K. Northern, Pro Se
</attorneys><br><judges id="b622-4">
Before DIANE P. WOOD,. Chief Judge, RICHARD A. POSNER, Circuit Judge, DAVID F. HAMILTON, Circuit Judge
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b621-8">
<em>
</em>
The defendant was not served with process in the district court and is not participating in this appeal. We have agreed to decide the case without oral argument because the appeal is frivolous. See Fed. R. App. P. 34(a)(2)(A).
</p>
</div></div>
| null | null | null | null | null | null | 4,609,476 |
16-3697
| 0 |
ca7
|
F
|
t
|
Seventh Circuit
|
Court of Appeals for the Seventh Circuit
|
6,979,310 |
Mr. Justice Thompson delivered the opinion of the court: This writ of error is brought to review a decree of the circuit court of Cook county confirming a decision of the-Industrial Commission awarding defendant in error compensation for a period of 416 weeks and thereafter an annual pension for life, the circuit court having certified that this is a proper case to be considered by this court. December 26, 1916, defendant in error was employed as yardman by plaintiffs in error, paving contractors. In a building on their premises was a desk phone. Shortly before noon this telephone rang, and defendant in error in answering it picked tip the phone with his right hand and lifted the receiver with his left. He received a shock of sufficient severity to make it difficult for him to release himself from the instrument. It was raining that morning arid his clothing and shoes were damp. He felt the shock all over his body but mostly on his right side. The numbness continued to grow worse until afternoon, when he first realized that his face was partially paralyzed. He then discovered that he could not use his lips to draw his pipe. He went home about four o’clock and there found that his left eye and the left side of his mouth were drawn down. The next morning he could not close his eyes and had pains in his back and head. He has done no work since the day of the accident. Physicians who examined him testified that he was suffering from arterio sclerosis, and that while the shock may have aggravated this condition, the real cause of his disability is the disease. There is much conflict in the evidence concerning the cause and extent of Vail’s disability. While we think a clear preponderance of the evidence shows that the present condition of defendant in error is due largely, if not entirely, to an organic disease, caused, in part at least, by the habitual use of intoxicating liquors, we cannot disturb the holding on this ground. Defendant in error is only fifty-four years old but it is said he appears to be sixty-five. It is the duty of the Industrial Commission to consider all the evidence in a hearing of this kind and to render its decision in accordance with the preponderance of the evidence. It should not grant an award merely because there is evidence in the record which tends to support that award, nor should it speculate upon a possible state of facts which does not reasonably appear to exist from the evidence. We have said with tiresome regularity that we cannot weigh the evidence but must confirm the decision of the Industrial Commission if there is any competent evidence in the record which justifies its finding. Western Electric Co. v. Industrial Com. 285 Ill. 279; Peoria Terminal Co. v. Industrial Board, 279 id. 352; Big Muddy Coal Co. v. Industrial Board, id. 235. Plaintiffs in error have filed no brief in this cause. They have filed a printed argument, but that does not meet the rule requiring a printed brief of the points and authorities relied upon for a reversal of the trial court. (Gillespie v. Rout, 40 Ill. 58.) Rule 15 requires that the brief of plaintiff in error shall contain the points made and authorities relied upon in support of them, and rule 27 provides that if such a brief is not filed by the plaintiff in error within the time prescribed the judgment of the court below will be affirmed. (Rules of Practice, 273 Ill. 11, et seq.) While we must hold that the decree of the circuit court was right on the merits, we might well affirm this decision for failure to file a brief for plaintiffs in error. The circuit court erred, however, in entering a decree directing the payment of the award of the commission and ordering execution thereon. When the trial court considers the findings and award of the Industrial Commission to be correct, its only authority is to confirm the decision. Baum v. Industrial Com. 288 Ill. 516; Otis Elevator Co. v. Industrial Com. id. 396. The decree is therefore reversed and the cause remanded to the circuit court of Cook county, with directions to enter an order confirming the decision of the Industrial Commission. Reversed and remanded, with directions.
|
opinion_xml_harvard
| 728 |
2022-07-24 02:16:43.580983+00
|
020lead
|
t
|
f
| 7,074,643 |
Thompson
| null |
U
|
f
|
Published
| 0 |
McGarry v. Industrial Commission
|
McGarry
|
John A. McGarry in Error v. The Industrial Commission—Jas. A. Vail, in Error.)
|
<p>Writ oe Error to the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.</p>
| null | null |
<p>1. Workmen’s compensation — decision of commission should be according to preponderance of evidence. The Industrial Commission should render its decision in accordance with the preponderance of all the evidence given on the hearing and not make an award merely because there is some evidence which tends to sustain it nor speculate upon a state of facts which does not reasonably appear from the evidence to exist, but if there is any competent evidence to justify the award the Supreme Court cannot set it aside as unsupported by the evidence.</p> <p>2. Same — circuit court has no power to direct payment of the award and order execution. If the circuit court, in reviewing an award of the Industrial Commission, is of opinion the award should be sustained, its only authority is to confirm the award, and it can not direct payment of the award and order an execution.</p> <p>3. Practice — plaintiff in error should file brief as well as argument. Under the rules of the Supreme Court the plaintiff in error should file a brief containing points and authorities relied upon for a reversal of the judgment and not merely an argument, and under the rules the judgment may be affirmed if no such brief is filed.</p>
| null | null | null |
Reversed and remanded.)
| null | 64,062,984 |
No. 12867
| 0 |
ill
|
S
|
t
|
Illinois Supreme Court
|
Illinois Supreme Court
|
6,355,705 |
CP-46-CR-0004797-2013 (Montgomery) Vacated/Remanded
|
opinion_xml_harvard
| 3 |
2022-06-24 22:09:03.177898+00
|
020lead
|
t
|
f
| 6,483,545 | null | null |
U
|
f
|
Published
| 0 |
Com. v. Miller
|
Com.
|
COM. v. MILLER, O.
| null | null | null | null | null | null | null | null | null | 63,413,093 |
29 EDA 2017
| 0 |
pasuperct
|
SA
|
t
|
Superior Court of Pennsylvania
|
Superior Court of Pennsylvania
|
726,423 |
95 F.3d 1160 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. William Russell SNOW, Jr., Defendant-Appellant. No. 96-30053. United States Court of Appeals, Ninth Circuit. Submitted Aug. 12, 1996. * Decided Aug. 26, 1996. Before: BROWNING, SCHROEDER, and RYMER, Circuit Judges. 1 MEMORANDUM ** 2 Federal prisoner William Russell Snow appeals pro se the district court's denial of his 18 U.S.C. § 3582 (c)(2) motion to modify his sentence following his conviction for manufacturing over 100 marijuana plants in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. 3 Snow contends that the district court erred by failing to apply Amendment 516 of the Sentencing Guidelines retroactively. Snow, however, was sentenced to sixty months imprisonment which is the mandatory minimum sentence under 21 U.S.C. § 841 (b)(1)(B). Accordingly, we agree with the district court's conclusion that the application of Amendment 516 would have no effect upon Snow's sentence. See U.S.S.G. § 5G1.1(b); See also United States v. Sharp, 883 F.2d 829 , 831 (9th Cir.1989) (statutory minimums trump the guidelines). 1 4 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 We do not find persuasive Snow's argument that Amendment 516 reflects a change in Congressional intent with regards to the penalty provisions of 21 U.S.C. § 841 . Cf. Neal v. United States, 116 S.Ct. 763 , 768-69 (1996) (amendment to sentencing guidelines did not displace existing interpretation of corresponding statute; Congress has responsibility for revising its statutes)
|
opinion_html_with_citations
| 327 |
2012-04-17 09:27:07+00
|
010combined
|
f
|
f
| 726,423 | null | null |
R
|
f
|
Unpublished
| 0 |
United States v. William Russell Snow, Jr.
| null | null | null | null | null | null | null | null | null | null | null | 1,058,725 |
96-30053
| 0 |
ca9
|
F
|
t
|
Ninth Circuit
|
Court of Appeals for the Ninth Circuit
|
374,754 |
615 F.2d 555 63 A.L.R.Fed. 148 Thomas M. FASANO, Petitioner, Appellant, v. Frank HALL et al., Respondents, Appellees. No. 79-1507. United States Court of Appeals, First Circuit. Argued Jan. 7, 1980. Decided Feb. 21, 1980. Amended on Denial of Rehearing April 1, 1980. Martin C. Gideonse, Cambridge, Mass. by appointment of the Court, for petitioner, appellant. Barbara A. H. Smith, Asst. Atty. Gen., Chief, Crim. App. Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondents, appellees. Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. 1 Appellant Fasano appeals from the denial of his petition for a writ of habeas corpus by the district court. The petition is based on Fasano's claim that the steps taken by the Commonwealth of Massachusetts leading to his conviction constituted violations of the Interstate Agreement on Detainers Act, 18 U.S.C. App., § 2, Mass.Gen.Laws c. 276, § 1-1 (IAD). The district court in dismissing the petition ruled against appellant on the merits of his claim, finding no violations of the IAD. The appellee supports this finding; however, in addition it contends that appellant's claims are not cognizable under the habeas corpus statute, 28 U.S.C. § 2254 . Finding this contention correct, we address only the issue of cognizability on this appeal. First, however, we summarize the relevant facts leading up to this appeal. A. 2 Fasano was indicted by a Middlesex County (Massachusetts) grand jury in 1974 on charges of forging and uttering, larceny, attempted larceny, and possession of an altered license to operate a motor vehicle. On March 19, 1976, the district attorney of Middlesex County lodged a detainer against Fasano at the Federal Correctional Institute in Danbury, Connecticut, where he was serving a two year sentence. In accordance with Article III of the IAD, on April 13 Fasano filed a request for final disposition of the Middlesex indictments. 3 Before Middlesex County responded by requesting custody of Fasano for a trial, the Superior Court of Massachusetts in Suffolk County, acting with regard to an indictment unrelated to the Middlesex indictment, issued a writ of habeas corpus ad prosequendum pursuant to which Fasano was delivered to the custody of Suffolk County authorities on April 28, 1976. On May 17, the Middlesex district attorney requested temporary custody of Fasano from Danbury officials for a trial tentatively set for May 21. The Danbury officials replied on May 19 that Fasano was unavailable since he had been transferred to Suffolk County. 4 Defaults under the Middlesex indictments were entered against Fasano, and no other actions were taken by the Middlesex district attorney concerning Fasano until he was informed by Danbury officials that Fasano had returned to Danbury. The Middlesex district attorney again requested custody, and, on July 23, Fasano was delivered to the custody of Middlesex County. 5 The defaults on the indictments were removed and trial was set for September 20. The trial date was then continued to September 28, at which time counsel was for the first time appointed. The newly appointed counsel requested a "mid-October" trial, which was scheduled for October 7. 6 On October 7, Fasano declared his intention to file a pro se Motion to Dismiss under the IAD. The district attorney requested a week's delay to study the issues raised by the motion, and, with the agreement of appointed counsel, a continuance was granted until October 15. On that date, neither Fasano, who was in the courthouse lock-up, nor his appointed counsel were present at the call of the list. The court therefore continued the case again, until November 2. On that date, the court heard and denied the Motion to Dismiss, and reset the trial for November 8, when it finally commenced. 7 Fasano was convicted and filed an appeal in state court on the basis of the denial of his Motion to Dismiss. He claimed that the failure of the Middlesex district attorney to attempt to try him before he was returned to Danbury from Suffolk County constituted a violation of Article III(d) of the IAD, and that the continuances granted beyond October 10, which was 180 days after his filing of the written request for final disposition, violated Articles III(a) and V(a). The Massachusetts Appeals Court ruled against Fasano, finding no violations of the IAD, and further review was denied by the Supreme Judicial Court of Massachusetts. The district court, in dismissing Fasano's petition, also found that the IAD had not been violated. B. 8 Under the general habeas corpus statute, 28 U.S.C. § 2254 , relief is available from a federal court on the grounds that a state prisoner "is in custody in violation of the Constitution or laws or treaties of the United States." Despite the broad language of the statute, its application historically has been limited in various respects since the enactment of its original version in 1867, Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385 . See Stone v. Powell, 428 U.S. 465 , 475, 96 S.Ct. 3037 , 3043, 49 L.Ed.2d 1067 (1976). See generally, P. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963); Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1042-72 (1970). 9 Generally, the question of cognizability of claims under § 2254 and its federal counterpart, 28 U.S.C. § 2255 , has focused on claims which are based upon assertions of constitutional violations, rather than violations of other federal laws. Indeed, despite the literal language of the statute, there was substantial confusion about whether or not any nonconstitutional claims, other than perhaps those pertaining to jurisdictional matters, were cognizable. See Hill v. United States, 368 U.S. 424 , 428, 82 S.Ct. 468 , 471, 7 L.Ed.2d 417 (1962); Townsend v. Sain, 372 U.S. 293 , 312, 83 S.Ct. 745 , 756, 9 L.Ed.2d 770 (1963) ("State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.") (dictum); Developments in the Law, supra, 83 Harv.L.Rev. at 1071. 10 In Davis v. United States, 417 U.S. 333 , 345, 94 S.Ct. 2298 , 2304, 41 L.Ed.2d 109 (1974), the Supreme Court ended this confusion for federal habeas corpus and held that nonconstitutional federal claims were cognizable under § 2255 if "the claimed error of law (is) 'a fundamental defect which inherently results in a complete miscarriage of justice.' " Davis v. United States, supra, at 346, 94 S.Ct. at 2305 , quoting Hill v. United States, 368 U.S. 424 , 429, 82 S.Ct. 468 , 472, 7 L.Ed.2d 417 (1962). Under Davis, therefore, it would appear that the question presented by this appeal is whether the asserted violations of the IAD upon which Fasano bases his petition are "fundamental defect(s)" leading to "a complete miscarriage of justice". 11 Appellant, however, contends that the above stated standard of cognizability set forth in Davis, a § 2255 case, should not be applied in this § 2254 case. He argues, in effect, that a policy underlying the availability of habeas relief is the need to have a federal forum to determine issues of federal law, and that therefore § 2254 cases, in which the first forum is state, should have a lower threshold of cognizability than § 2255 cases, in which the trial forum is federal. 12 While this argument is not without some force, it is nevertheless unpersuasive. To the extent that issues of federalism have affected the interpretation of § 2254, the tendency may be towards making § 2254 more, rather than less, restrictive than § 2255 due to considerations of comity. See Francis v. Henderson, 425 U.S. 536 , 539, 96 S.Ct. 1708 , 1710, 48 L.Ed.2d 149 (1976). Compare Stewart v. Cox, 344 F.2d 947 (10th Cir. 1965) ("State prisoners may obtain relief in federal courts only when rights guaranteed them by the Constitution of the United States have been denied.") with Hall v. United States, 410 F.2d 653 (4th Cir.), cert. denied, 396 U.S. 970 , 90 S.Ct. 455 , 24 L.Ed.2d 436 (1969) (habeas review of nonconstitutional errors by federal district court allowed). Moreover, the reliance that appellant's federal forum rationale places upon an assumption that state judges will be less conscientious than federal judges in enforcing the IAD is not in our opinion sound. See Stone v. Powell, supra, 428 U.S. at 493-94 , 96 S.Ct. at 3052. 13 More importantly, the Supreme Court precedents leave no room for appellant's suggested dual standard. Starting with its first substantial discussion of § 2255, see United States v. Hayman, 342 U.S. 205 , 72 S.Ct. 263 , 96 L.Ed. 232 (1952), the Court has without exception repeatedly held that sections 2254 and 2255 are identical in scope. See e.g., Heflin v. United States, 358 U.S. 415 , 421, 79 S.Ct. 451 , 454, 3 L.Ed.2d 407 (1959)) (concurring opinion of five justices); Hill v. United States, supra ; Davis v. United States, supra. In this circuit, we have already taken cognizance of this fact, see Vitello v. Gaughan, 544 F.2d 17 , 18 (1st Cir. 1976), cert. denied, 431 U.S. 904 , 97 S.Ct. 1696 , 52 L.Ed.2d 388 (1977). Even in those § 2254 cases in which appellant's suggested "federal forum" rationale for a lower standard of cognizability would apply most forcefully, i. e., cases in which claims of constitutional magnitude are rejected by state courts, the Supreme Court has applied the Davis standard. See Stone v. Powell, supra, 428 U.S. at 477, n. 10 , 96 S.Ct. at 3044, n. 10. 14 We therefore hold that the Davis standard of cognizability applies to this § 2254 petition. C. 15 Applying this standard, we find that the alleged violations of the IAD upon which Fasano bases his claims are not "fundamental defects" indicating a "miscarriage of justice". In reaching this finding, we note first that the two circuit courts that have addressed the issue in light of Davis have held that IAD violations are generally not cognizable in a habeas proceeding. See Hitchcock v. United States, 580 F.2d 964 , 966 (9th Cir. 1978) (asserted violation of IAD provisions "falls far short of a 'fundamental defect' . . . that might justify section 2255 relief"); Edwards v. United States, 564 F.2d 652 (2d Cir. 1977) (violations of IAD not cognizable under § 2255). Those courts that have held that claims based on IAD violations are cognizable in habeas proceedings have done so simply because they found the IAD to be a "law" of the United States, and thus they were apparently unaware of the analysis mandated by Hill and Davis. See Echevarria v. Bell, 579 F.2d 1022 , 1025 (7th Cir. 1978); United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975). Cf. the two opinions of the Sixth Circuit in Stroble v. Egeler, 547 F.2d 339 (6th Cir. 1977), opinion following decision on remand, 587 F.2d 830 (1978), cert. denied, 440 U.S. 940 (1979) (granting habeas corpus for an IAD violation, but stating that more than a bare violation of the IAD time limits had to be shown). 16 Additionally, the fact that the violations of the IAD alleged by appellant had no bearing on the determination of his guilt or innocence is particularly important, although not necessarily dispositive, in determining cognizability in a habeas proceeding. The central purpose of the habeas writ is to provide a collateral means of redressing the wrong inherent in the incarceration of one who is not guilty. Schneckloth v. Bustamonte, 412 U.S. 218 , 256-58, 93 S.Ct. 2041 , 2062-63, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). In Davis itself, the Court found the asserted violation of a nonconstitutional federal law cognizable because it raised the possibility that the petitioner might be incarcerated for acts that were not a crime. In sharp contrast, there is no such possibility of a similar injustice in this case nor are there alleged here such egregious IAD violations that might present " 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' " Davis v. United States, supra, 417 U.S. at 346 , 94 S.Ct. at 2305 ; see Stroble v. Egeler, supra. Hence there is no need to provide collateral relief. * 17 Denial of petition affirmed. * Our holding is by no means intended to imply that the policies underlying the IAD are not important. The fact that policies underlying a law are important is not, however, sufficient to render a claimed violation of that law cognizable in a habeas proceeding. For example, the policies of the Fourth Amendment are incontestably important, yet claims based upon asserted violations of the Fourth Amendment are generally not cognizable in habeas proceedings. Stone v. Powell, supra. In either case, the policies, while important, are not related to the guilt or innocence of the petitioner Moreover, the policies underlying the IAD sanctions would not in fact be furthered by making habeas relief available in cases such as this one. To follow the reasoning of the Court in Stone, it is almost inconceivable that state officials would less carefully adhere to the IAD if they knew that violations of the agreement could be raised only in state court or on direct review by the Supreme Court.
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010combined
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| 374,754 |
Aldrich, Campbell, Coffin
| null |
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Published
| 23 |
Thomas M. Fasano v. Frank Hall
| null |
Thomas M. FASANO, Petitioner, Appellant, v. Frank HALL Et Al., Respondents, Appellees
| null | null |
<parties data-order="0" data-type="parties" id="b649-11">
Thomas M. FASANO, Petitioner, Appellant, v. Frank HALL et al., Respondents, Appellees.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b649-14">
No. 79-1507.
</docketnumber><br><court data-order="2" data-type="court" id="b649-15">
United States Court of Appeals, First Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b649-17">
Argued Jan. 7, 1980.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b649-18">
Decided Feb. 21, 1980.
</decisiondate><br><otherdate data-order="5" data-type="otherdate" id="b649-19">
As Amended on Denial of Rehearing April 1,1980.
</otherdate><br><attorneys data-order="6" data-type="attorneys" id="b650-4">
<span citation-index="1" class="star-pagination" label="556">
*556
</span>
Martin C. Gideonse, Cambridge, Mass, by-appointment of the Court, for petitioner, appellant.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b650-5">
Barbara A. H. Smith, Asst. Atty. Gen., Chief, Crim. App. Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondents, appellees.
</attorneys><br><p data-order="8" data-type="judges" id="b650-6">
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
</p>
| null | null | null | null | null | null | 507,829 |
79-1507
| 1 |
ca1
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F
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t
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First Circuit
|
Court of Appeals for the First Circuit
|
9,433,693 |
Justice Kennedy, concurring. A Nation cannot plunder its own treasury without putting its Constitution and its survival in peril. The statute before us, then, is of first importance, for it seems undeniable the Aet will tend to restrain persistent excessive spending. Nevertheless, for the reasons given by Justice Stevens in the opinion for the Court, the statute must be found invalid. Failure of political will does not justify unconstitutional remedies. I write to respond to my colleague Justice Breyer, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree. See post, at 496-497. The argument is related to his earlier suggestion that our role is lessened here because the two political branches are adjusting their own powers between themselves. Post, at 472,482-483. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution’s structure requires a stability which transcends the convenience of the moment. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 276-277 (1991); Bowsher v. Synar, *450478 U. S. 714, 736 (1986); INS v. Chadha, 462 U. S. 919, 944-945, 958-959 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 73-74 (1982). The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powei’s. Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 301 (C. Rossiter ed. 1961). So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84, pp. 513,515; G. Wood, The Creation of the American Republic 1776-1787, pp. 536-543 (1969). It was at Madison’s insistence that the First Congress enacted the Bill of Rights. R. Goldwin, From Parchment to Power 75-153 (1997). It would be a grave mistake, however, to think a Bill of Rights in Madison’s scheme then or in sound constitutional theoiy now renders separation of powers of lesser importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131,1132 (1991). In recent years, perhaps, we have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not. so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one *451branch to influence basic political decisions. Quoting Montesquieu, the Federalist Papers made the point in the following manner: “ ‘When the legislative and executive powers are united in the same person or body/ says he, ‘there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.’ Again: Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.’ ” The Federalist No. 47, supra, at 308. It follows that if a citizen who is taxed has the measure of the tax or the decision to spend determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened. Money is the instrument of policy and policy affects the lives of citizens. The individual loses liberty in a real sense if that instrument is not subject to traditional constitutional constraints. The principal object of the statute, it is true, was not to enhance the President’s power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another. Yet these are its undeniable effects. The law establishes a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in order to disfavor the group or to extract further concessions from Congress. The law is the functional equivalent of a line item veto and enhances the President’s powers beyond what the Framers would have endorsed. It is no answer, of course, to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or *452enacted over his veto, could restore to Congress the power it now seeks to relinquish. That a congressional cession of power is voluntary does not make it innocuous. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow. See Freytag v. Commissioner, 501 U. S. 868, 880 (1991); cf. Chadha, supra, at 942, n. 13. Abdication of responsibility is not part of the constitutional design. Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority. Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power. If this point was not clear before Chadka, it should have been so afterwards. Though Chadha involved the deportation of a person, while the case before us involves the expenditure of money or the grant of a tax exemption, this circumstance does not mean that the vertical operation of the separation of powers is irrelevant here. By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure. The Constitution is not bereft of controls over improvident spending. Federalism is one safeguard, for political accountability is easier to enforce within the States than nationwide. The other principal mechanism, of course, is control of the political branches by an informed and responsible electorate. Whether or not federalism and control by the electorate are adequate for the problem at hand, they are two of the structures the Framers designed for the problem the statute strives to confront. The Framers of the Consti*453tution could not command statesmanship. They could simply provide structures from which it might emerge. The fact that these mechanisms, plus the proper functioning of the separation of powers itself, are not employed, or that they prove insufficient, cannot validate an otherwise unconstitutional device. With these observations, I join the opinion of the Court.
|
opinion_xml_harvard
| 1,278 |
2023-08-02 23:41:03.971671+00
|
030concurrence
|
f
|
f
| 118,238 |
Breyer, Kennedy, Rehnquist, Scaiia, Soutek, Stevens, Thomas
| null |
LRU
|
f
|
Published
| 391 |
Clinton v. City of New York
|
Clinton
|
CLINTON, PRESIDENT OF THE UNITED STATES, Et Al. v. CITY OF NEW YORK Et Al.
| null | null |
<parties id="b461-4">
CLINTON, PRESIDENT OF THE UNITED STATES, et al.
<em>
v.
</em>
CITY OF NEW YORK et al.
</parties><br><docketnumber id="b461-6">
No. 97-1374.
</docketnumber><otherdate id="AZL">
Argued April 27, 1998
</otherdate><decisiondate id="APyU">
Decided June 25, 1998
</decisiondate><br><judges id="b464-7">
<span citation-index="1" class="star-pagination" label="420">
*420
</span>
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Soutek, Thomas, and Ginsburg, JJ., joined. Kennedy, J., filed a concurring opinion,
<em>
post,
</em>
p. 449. Scalia, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, and in which Breyer, J., joined as to Part III,
<em>
post,
</em>
p. 453. Breyer, J., filed a dissenting opinion, in which O'Connor and Scalía, JJ., joined as to Part III,
<em>
post,
</em>
p. 469.
</judges><br><attorneys id="b464-8">
<em>
Solicitor General Waxman
</em>
argued the cause for the appellants. With him on the briefs were
<em>
Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart,
</em>
and
<em>
Douglas N. Letter.
</em>
</attorneys><br><attorneys id="b464-9">
<em>
Louis R. Cohen
</em>
argued the cause for appellees Snake River Potato Growers, Inc., et al. With him on the brief were
<em>
Lloyd N. Cutler, Lawrence A. Hasten, Donald B. Hol-brook, Randon W. Wilson,
</em>
and
<em>
William H. Orton. Charles J. Cooper
</em>
argued the cause for appellees City of New York et al. With him on the briefs were
<em>
M. Sean Laane, Leonard J. Koerner, Alan G. Krams, David B. Goldin,
</em>
and
<em>
Peter F. Nadel
</em>
<a class="footnote" href="#fn*" id="fn*_ref">
<em>
*
</em>
</a>
</attorneys><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b464-12">
Briefs of
<em>
amici curiae
</em>
urging reversal were filed for the United States Senate by
<em>
Thomas B. Griffith, Morgan J. Frankel,
</em>
and
<em>
Steven F. Huejner;
</em>
for
<em>
Marci Hamilton, pro se,
</em>
and
<em>
David Schoenbrod, pro se;
</em>
for Congressman Dan Burton et al. by
<em>
James M. Spears;
</em>
and for
<em>
John S. Baker, Jr., pro se.
</em>
</p>
<p id="b464-13">
Briefs of
<em>
amici curiae
</em>
urging affirmance were filed for the Bar of the City of New York by
<em>
Louis A. Craco, Jr., James F. Parver,
</em>
and
<em>
David P. Felsher;
</em>
for Senator Robert C. Byrd et al. by
<em>
Michael Davidson
</em>
and
<em>
Mark A Patterson;
</em>
and for Representative Henry W. Waxman et al. by
<em>
Alan B. Morrison.
</em>
</p>
</div></div>
| null | null | null | null | null | null | 412,434 |
97-1374
| 1 |
scotus
|
F
|
t
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Supreme Court
|
Supreme Court of the United States
|
9,817,768 |
MELLOY, Circuit Judge. John S. La Tour appeals several district court1 orders in his 42 U.S.C. § 1983 challenge to the constitutionality of a municipal ordinance prohibiting him from displaying a flashing or blinking electronic sign. We affirm. I. La Tour is a certified public accountant who lives and works in Fayetteville, Arkansas (the “City”). On December 23, 1999, he contacted the City’s sign inspector to inquire about purchasing a sign for the window of his office. The inspector told La Tour that indoor signs were not regulated.2 La Tour then purchased an electronic sign that displays messages up to twenty-one characters long. The sign can be programmed to display one set of characters, go blank, and then display another set of characters. Used in this manner, the sign can display messages that would not fit on the sign if used only in a non-flashing, static mode. After La Tour used the sign to display political messages,3 City officials ordered him to remove the sign because it violated Unified Development Ordinance Section 174.08(B) (the “Ordinance”), which prohibits any “sign which flashes, blinks, or is animated.” 4 This section does not contain any exceptions, but the City admits that it has not enforced the regulation with respect to flashing signs that display only the time and/or temperature, without advertising matter. The parties agree that La Tour’s sign operates in the same manner as the time and temperature signs that the City allows. When La Tour refused to remove the sign, the City filed a criminal summons. La Tour was tried and convicted in municipal court. He appealed the conviction, and the City settled the case. The City agreed to allow La Tour to change the message on his sign once every three hours and refunded his fines and court costs. La Tour then filed a claim in the United States District Court for the Western District of Arkansas on January 3, 2002, seeking civil damages under 42 U.S.C. § 1983. The district court found some sections of the Ordinance unconstitutional, but held that Section 174.08(B) was constitutional on its face and as applied. The district court also found that La Tour’s rights under the Equal Protection Clause had not been violated and denied La Tour’s request to amend his complaint to add certain City officials as defendants. In a separate ruling, the district court prohibited La Tour from presenting evidence regarding additional signs in and around the City. La Tour timely appealed. *1096II. We assume, without deciding, that La Tour successfully preserved an objection to the district court’s ruling which excluded La Tour from offering testimony regarding other flashing signs. “We review a trial court’s evidentiary rulings under the abuse of discretion standard, affording the district court substantial deference.” Shelton v. Consumer Prods. Safety Comm’n, 277 F.3d 998, 1009 (8th Cir.2002). After a careful review of the record, we believe that La Tour’s proffered evidence would not have significantly impacted the constitutional analysis. As such, we find no abuse of discretion in excluding it. We engage in de novo review of the district court’s determination that the Ordinance is constitutional. Fraternal Order of Police v. Stenehjem, 431 F.3d 591, 596 (8th Cir.2005). Before making our own determination of the constitutionality of the Ordinance, we must determine which level of scrutiny to apply. Whitton v. City of Gladstone, 54 F.3d 1400, 1403 (8th Cir.1995), If the Ordinance is content-based, it faces exacting scrutiny. Burson v. Freeman, 504 U.S. 191, 198, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992). If the Ordinance is content-neutral, it faces only intermediate scrutiny. United States v. Dinwiddie, 76 F.3d 913, 923 (8th Cir.1996). The Ordinance is clearly content-neutral on its face as it does not allow any flashing, blinking or animated signs, regardless of their content. However, La Tour argues that the Ordinance is content-based “as applied” because City officials do not prohibit flashing signs that display time and temperature readings. La Tour argues that anytime one must look at the contents of a message to determine if it is prohibited, the regulation at issue must necessarily be content-based. In support of this argument, La Tour cites our statement in Whitton that “a restriction on speech is content-based when the message conveyed determines whether the speech is subject to the restriction.” 54 F.3d at 1403-04. There are a number of reasons that Whitton is distinguishable. First, the regulation in Whitton was deemed to be content-based on its face, whereas the Ordinance is only arguably content-based as applied. Second, the regulation in Whit-ton imposed restrictions only on one type of speech: political election signs. The Ordinance bans all flashing signs and, as applied, only provides one narrow exception for signs displaying the time and temperature. Third, although one technically has to examine the content of the signs in each case to see if the sign is prohibited, the inquiry is much more searching in Whitton. It takes some analysis to determine if a sign is “political,” but one can tell at a glance whether a sign is displaying the time or temperature. Fourth, and most importantly, we found that the regulation in Whitton did not apply restrictions “to identical signs displaying nonpolitical messages which present identical concerns.” 54 F.3d at 1407 (emphasis in original). Here, the ubiquitous time and temperature signs allowed by the City do not pose identical concerns as signs that function similarly but that display messages that are more distracting. Allowing only time and temperature signs cannot be said to “give one side of a debatable public question an advantage in expressing its views to the people” or allow the City to “select the permissible subjects for public debate and thereby to control the search for political truth.” City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (internal quotations and citations omitted). Even if Whitton could not be distinguished on its facts, it is not our most recent analysis of a content-based restric*1097tion. In Excalibur Group, Inc. v. City of Minneapolis, 116 F.3d 1216, 1220 (8th Cir.1997), we stated that an ordinance “is content-neutral if it is ‘justified without reference to the content of the regulated speech.’ ” (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). Here, the City’s desire to promote traffic safety is in no way tied to the content of the flashing signs it seeks to regulate. More recently, we also stated that “[a] regulation that distinguishes between speech activities likely to produce the consequences that it seeks to prevent and speech activities unlikely to have those consequences ‘cannot be struck down for failure to maintain “content neutrality.” ” ’ Fraternal Order of Police, 431 F.3d at 596-97 (quoting Hill v. Colorado, 530 U.S. 703, 724, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)) (reversing the district court’s invalidation of a portion of an act which the district court deemed content-based because it banned telephone “solicitation” but not “advocacy”). We agree with the district court that, because a message displaying the time and/or temperature is short and rudimentary, such a message poses less of a traffic hazard than other messages. In light of all of these reasons, we find the Ordinance to be content-neutral. Because the regulation is content-neutral, it is constitutional if it “is ‘narrowly tailored to serve a significant governmental interest, and ... leaves open ample alternative channels for communication of the information.’ ” United States v. Nenninger, 351 F.3d 340, 345-46 (8th Cir.2003) (quoting Clark v. Cmty for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). The interests expressed by the City are esthetics and traffic safety. These are significant governmental interests. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). To be narrowly tailored, the regulation does not have to be the least restrictive means of furthering the City’s interest. Thorburn v. Austin, 231 F.3d 1114, 1120 (8th Cir.2000). A message displaying the time and/or temperature poses less of a traffic hazard than other messages. Thus, the City may allow such an exception and still have a regulation that is narrowly tailored. We also agree with the district court that La Tour has ample alternative channels to communicate his messages including non-electronic signs and his electronic sign operating in a non-flashing manner. Thus, the regulation is constitutional. Because La Tour’s Equal Protection claim is dependant on the argument that the City enforced the Ordinance in a content-based manner, that claim necessary fails. Similarly, because the Ordinance is constitutional, we reject all of La Tour’s claims against the City officials who enforced the Ordinance. As such, we need not address whether La Tour should have been allowed to amend his complaint to add additional officials, whether those officials are entitled to absolute or qualified immunity, or whether La Tour is entitled to punitive damages. III. For the foregoing reasons, we affirm the orders of the district court. . The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas. . The City claims that La Tour did not inform the inspector that he was interested in purchasing an electronic sign that would be displayed to persons outside his office. . La Tour’s messages included the statements: “Choose Life,” "God Listens,” and "Recall-Coody.com.” . The district court also examined other provisions in Chapter 174 of the Ordinance and found several to be unconstitutional. The City has not appealed that ruling.
|
opinion_xml_harvard
| 1,584 |
2023-09-01 04:43:35.442869+00
|
020lead
|
f
|
f
| 3,040,293 |
Colloton, Hansen, Melloy
| null |
CU
|
f
|
Published
| 0 |
John S. LaTour v. City of Fayetteville
| null |
John S. LA TOUR, Plaintiff-Appellant, v. CITY OF FAYETTEVILLE, ARKANSAS; Brandt Warwick; Casey Jones; Kit Williams; Bob Estes; Mike McKimmey, Defendants, in Both Their Individual and Official Capacities, Defendants-Appellees
| null | null |
<parties id="b1120-3">
John S. LA TOUR, Plaintiff-Appellant, v. CITY OF FAYETTEVILLE, ARKANSAS; Brandt Warwick; Casey Jones; Kit Williams; Bob Estes; Mike McKimmey, Defendants, in both their individual and official capacities, Defendants-Appellees.
</parties><br><docketnumber id="b1120-6">
No. 03-2824.
</docketnumber><br><court id="b1120-7">
United States Court of Appeals, Eighth Circuit.
</court><br><otherdate id="b1120-8">
Submitted: March 31, 2004.
</otherdate><br><decisiondate id="b1120-9">
Filed: April 6, 2006.
</decisiondate><br><attorneys id="b1121-5">
<span citation-index="1" class="star-pagination" label="1095">
*1095
</span>
John La Tour, Fayetteville, AR represented himself.
</attorneys><br><attorneys id="b1121-6">
Paul E. Thompson, Jr. and Woody Bas-sett, argued, Fayetteville, AR, for appellee.
</attorneys><br><judges id="b1121-7">
Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
</judges>
| null | null | null | null | null | null | 2,897,719 |
03-2824
| 0 |
ca8
|
F
|
t
|
Eighth Circuit
|
Court of Appeals for the Eighth Circuit
|
6,620,680 |
BROADDUS, J. This is an áction on a policy of insurance against accident and sickness made by the Northwestern Benevolent Society to the plaintiff on the 16th day of June, 1900. The defendant is the successor of said Northwestern Benevolent Society. By said policy the plaintiff was insured against loss by accident or sickness and in case of immediate or total disability by reason of injury suffered by him, so as to cause total loss of time and wholly prevent him from attending to or engaging in any business or occupation, a benefit of forty dollars per month, or at that rate for any part of a month should be paid to him for such total disability, and also a partial indemnity at one-fourth of said monthly rate for loss of time, by reason of a material but not a total disability not resulting immediately after an accident; provided that the total of time for which indemnity shall be paid, for any one disabling injury shall not exceed one year, and only while the insured is under the strict care of a legally qualified surgeon. As the suit was instituted in a justice’s court defendant filed no answer, but judging from what appears in the record it denies all liability. The only evidence of the manner of plaintiff’s injury which he claims occurred on the 15th day of October, 1900, in the State of Texas, was his own. His statement was that he got on a freight train at Dallas for the purpose of going to Hearne, Texas; that when the train got somewhere between forty and .seventy-five miles from Dallas the engine gave out at night on a curve at which time he heard a passenger train coming and apprehending danger of a collision he jumped off into a ditch about eight feet deep; that in alighting he was injured in his breast and ankle; and that afterwards he did not know what happened; that he was taken out of the ditch by some one unknown to him, and taken to a farmhouse where he stayed about six or seven weeks. He says that then he still did not know anything — did not know where he was. He states that after he halfway came to his senses he thought of his *414"wife and then he wanted to come home. He then came home and went to bed, after which, he went to sleep but awakened and said he did not know where he was — that he talked to his wife and did not know that he was talking to her, and did not know his whereabouts; and that he got home on the last day of November, but he was not positive. This examination showed that he was uncertain as to the date of events if he was not simulating forgetfulness. It was shown that on the 1st day of December the defendant’s agent went to plaintiff’s home and received from plaintiff’s wife payment of existing dues, at which time said agent was aware of plaintiff’s condition. Up to this time plaintiff had given to defendant no- notice of his injury and loss, and he states his reason for not so doing in the following language, viz.: “Well, I didn’t have any papers with me. I was unconscious. I didn’t know that I was insured, really. ’ ’ The defendant asked to have the statement of plaintiff stricken out for the reason that he had not provided against such a contingency in his contract, as an excuse for not giving notice as required by the policy. The court refused defendant’s request. Plaintiff further testified that he was at home a week or so before he recovered his mind; that in a day or two thereafter he gave defendant notice of his injury by the accident; that he made out his proof of loss upon a blank furnished to him by a Mr. Beedle, defendant’s agent in Kansas City; and that he had no physician at any time until after he arrived home from Texas. ' Plaintiff’s report of his injury was sent to the company by defendant’s said agent Beedle on December 12th. On the 24th day of December, 1900, the defendant company notified the plaintiff in writing that it would not allow his claim for the reason that he had not filed in its office within ten days after the happening of the accident a report thereof. The defendant introduced several physicians at the trial whose testimony was to the effect that while *415•plaintiff’s injuries may have caused unconsciousness, it would not have lasted for the length of time claimed by him. It also introduced the evidence of railroad officials, the purport of which was that there had been no wreck on the road named by the plaintiff at the time he designated. In regard to this evidence of the physicians, _we need only say that it was a question for the jury to determine whether it would believe them or the plaintiff. The evidence of the railroad officials may have been, and doubtless was true in every respect, yet it is not to be taken as overturning that of plaintiff for he did not say that he was in a wreck, but that he jumped under the impression that a wreck was impending. Defendant contends mainly that the plaintiff was not entitled to recover for the following reasons, viz.: first, because he did not give defendant written notice within ten days after the happening of the accident and make his proof of loss as required by the terms of the policy; second, because he did not have a surgeon in strict attendance upon himself during the time of his injury; third, because the allegations of the petition are that he was injured in a railroad wreck, whereas the proof shows that there was no such wreck at the time. The latter objection only amounts to a variance between the proof and the allegations of the petition, to which defendant should have called the attention of the court at the time, as provided by section 655, Revised Statutes 1899'; and having failed to do so, it has waived all error in that respect. In Whittemore v. Sills, 76 Mo. App. 248, this court held: “While the law never imposes upon any one the duty to perform what is impossible, it allows people to enter into contracts as they please and the interference of third persons will not excuse performance.” And that, ‘ ‘when the law creates a duty and the party is disabled to’ perform it, without any default in him, and he has no remedy over, the law will excuse him. But when a party by his own contract, creates a charge or duty *416upon himself, he is bound to make it good, if he may, notwithstanding any accident, by inevitable necessity, because he might have provided against it by his contract.” The court citing Davis v. Smith, 15 Mo. 467, Harrison v. Railroad, 74 Mo. 364. It was one of the conditions precedent to plaintiff’s right of recovery that he should give the requisite notice of the accident within ten days after the happening thereof. This was not done in this case because plaintiff’s evidence tended to show that he was rendered incapable of complying with that condition of his policy by reason of his mental incapacity caused by the accident itself. The plaintiff contends, and we think justly, that the foregoing rule does not apply to a case of this kind, for it certainly was not in the contemplation of the parties that if the accident for which the indemnity was provided should render the insured incapable of giving such notice that thereby defendant would escape liability. It is a rule of law in this State that “Forfeitures in insurance policies are not favored and conditions which effect such forfeitures should be strongly construed against the party making them.” And it was held that where “an accident policy provided that in case of an injury totally disabling insured from carrying on his work, notice of the accident should immediately be given the company, and in case such injuries caused the death of the injured, notice should be given in like manner, that it was not necessary where the injuries caused death but did not totally disable the insured at the time from working, to give notice of the time it occurred, as the policy omitted to provide for any such notice.” McFarland v. Accident Ins. Co., 124 Mo. 204. The case under consideration is similar on principle, as the policy fails to provide for such a condition as that which resulted to the plaintiff from the accident itself. It was one of the conditions imposed by the by-laws of the defendant and which the plaintiff accepted as a *417part of Ms contract of insurance that no indemnity would be paid the insured on account of any sickness or disability, except for such time as he might be under the professional care of a physician or surgeon, which in case of injury should date from the first employment for professional purposes to the last call made by such sur'geon. There was evidence that there was a physician or surgeon, in attendance upon plaintiff for only a part of the time for which he recovered indemnity. Whereas that fact would not preclude plaintiff from recovery under his proof, he should not be entitled to recover for the loss of time in which he had no surgeon as he was permitted to do. It is true that the court at the instance of defendant gave instruction number four which limited his right to recover for only such time as he was under the strict care of a qualified surgeon but the court also gave instruction number four on behalf of plaintiff allowing him to recover for the entire time he was wholly prevented by his injuries from engaging in business. This is claimed as prejudicial error and no doubt was, as the action was commenced in January, 1901, less than two months from the time that the plaintiff first had the care of a surgeon, whereas plaintiff recovered for the sum of $120, which amounted to an indemnity under the policy for a period of three months. The jury evidently disregarded defendant’s instruction, which was the law, and followed that of plaintiff, which, as we have seen, was not the law of the case. During the argument to the jury the counsel for plaintiff was reading from a law report an extract from a decision when defendant’s counsel objected to his action in so doing, whereupon the court after ascertaining that the book in question was a law report caused the said counsel to desist from further reading from said report, and instructed the jury to disregard what it had already heard. The court did all that could be done *418under the circumstances, and it is more than probable that the jury was not influenced by such conduct upon the part of plaintiff’s counsel; yet such a course of pracr tice is not to be encouraged, as it might impose upon the court the duty in some instances of reversing a cause. The defendant asked the court to define the term “strict care” as used in the policy, as “immediate care,” which the court refused because the definition would not enlighten the jury in that respect. The term “strict care” has no technical significance, but is to be interpreted as the language is usually understood. The defendant contends that plaintiff should have been required to prove that he made proper proof of loss of time, as a condition precedent to his right of recovery. As it was shown that defendant upon receiving notice of the accident in question denied all liability under the policy, it waived such proof. The law does not require the doing of an unnecessary act. Hoffman v. Acc. Ins. Co., 56 Mo. App. 301. The further point is made that it was not proved that the defendant had assumed the liabilities of the Northwestern Benevolent Society. As this proof can be supplied on a trial anew it has no significance at present. For the reasons given, the cause is reversed and remanded. All concur.
|
opinion_xml_harvard
| 2,052 |
2022-07-20 20:29:26.019978+00
|
020lead
|
t
|
f
| 6,738,752 |
Broaddus
| null |
U
|
f
|
Published
| 0 |
Hayes v. Continental Casualty Co.
|
Hayes
|
FRANKLIN S. HAYES, in Error v. CONTINENTAL CASUALTY COMPANY, in Error
|
<p>Appeal from Jackson Circuit Court. — How. James Gibson, Judge.</p> <p>(1) Where the contract of insurance provides that the amount shall be payable after ‘ ‘ due notice and proof thereof,” no action can be maintained until after the notice is given and the required proof furnished; for the liability of the insurer does not become absolute unless the preliminary proof, as required by the conditions of the contract of insurance, is obtained. Bacon on Benefit Societies and Life Insurance, sec. 410; Burn-ham v. Ins. Co., 75 Mo. App. 399; Cohn v. Ins. Co., 62 Mo. App. 276; Albers v. Ins. Co., 68 Mo-. App. 545; Summers v. Ins. Co., 45 Mo-. App. 51. (2) Where a contract is made between the parties, they are bound by it even though the act of God intervenes, unless there is a condition or qualification providing against it. White-more v. Sills, 76 Mo. App. 251; Beatie v. Coal Co., -56 Mo. App. 221; Brinkerhoof v. Elliott, 43 Mo. App. 185. (3) Contracts of insurance should be construed and. interpreted by the same principles governing other contracts. Renn v. Supreme Lodge, 83 Mo. App. 446; Brewing Company v. Ins. Co., 63 Mo. App. 666; Renshaw v. Ins. Co., 103 Mo. 604. (4) The court erred in refusing to define the term “under the strict care of a legally qualified surgeon” as asked by instruction numr ber nine, by defendant and after having refused instruction number eight offered by defendant defining said term. Quirk v. Elevador Co., 126 . Mo. 293; Warder v. Henry, 117 Mo. 545; Lovelace v. Ins. Co., 126 Mo. 104; Hester v. Ins. Co., 69 Mo. App. 193. (5) The court erred in permitting plaintiff’s attorney to read a law book to the jury. Heller v. Pub. Co., 153 Mo. 216.</p> <p>(1) Forfeitures are not favored by the law. Ins. Co. v. Walker, 60 S. W. 820; Screwmen’s Ben. Assn, v. O ’Donohoe, 60 S. W. 684; Ins. Co. v. Heflin, 60 S. W. 394; Ins. Co. v. Unsell, 144 U. S. 439; Ins. Co. v. Kearney, 21 U. S. 326. (2) It was not necessary to- define the words “under the strict care of a legally qualified surgeon, ’ ’ as they are used in the contract of insurance in their usual and conventional sense. Warder v. Henry, 117 Mo. 545. (3) The plaintiff was entitled to an instruction to the effect that he would be excused from a strict compliance with the condition of the policy requiring notice of his injuries within ten days after the accident occurred, if he was rendered unconscious or mentally incompetent by such injuries and remained in that condition for six or seven weeks, and if he, under all the facts and circumstances in proof, exercised due diligence in giving such notice after he recovered his senses. The question of due diligence being for the jury. Indemnity Co. v. Fletcher, 5 Ohio- Bep. 633; Kentzler v. Mutual Ass’n, 88 Wis. 584. (4) If the proof of injuries made by plaintiff were informal, then the acts of defendant after the receipt by it of such informal proof, dispensed with any further proof on the part of plaintiff. Kautrener v. Ins. Co., 5 Mo. App. 581. (5) It is not correct to- say that the attorney for plaintiff was “permitted” to read from a law book. The trial court expressly excluded from the jury what had been read and summarily stopped the reading, and the attorney promptly withdrew all he had read.</p>
| null | null |
<p>1. Trial Practice: VARIANCE: AFFIDAVIT: STATUTE. Under the statute no variance is material unless its misleading character •is shown by tbe affidavit of the adverse party.</p> <p>2. Contracts: IMPOSSIBLE PERFORMANCE: INSURANCE: NOT- • ICE. Where a party by his contract creates a charge upon himself he must make it good notwithstanding any accident, because he might have provided against such accident by his contract; but the provision in an accident insurance policy for notice of injury does not apply to a ease where the accident renders the insured unconscious and unable to give the notice, since tlie policy does not provide for such a case.</p> <p>3. Accident: INJURY: CARE OF PHYSICIAN: INSTRUCTIONS. An accident policy provided for indemnity only while the injured person was under the care of a physician. Where such party was under such care for only part of the time, such fact would not defeat his recovery, but he could only recover, for such time as he was under such care, and certain instructions on this subject are eon- ■ • sidered and Condemned as conflicting.</p> <p>4. Trial Practice: MISCONDUCT OF COUNSEL: READING LAW REPORT. Counsel in an argument to the jury undertook to read from a law report, when the court caused him to desist and instructed the jury to disregard what he had read. Held, the court’s action was right ahd the practice condemned as likely to produce reversals of judgments.</p> <p>5. Insurance: DEFINITION: STRICT CARE: INSTRUCTION. “Strict care” in an insurance policy relating to the professional services of a physician, has no technical significance, and need not be defined in an instruction to the jury.</p> <p>6. -: PROOFS OF LOSS: DENIAL OF LIABILITY. Where an insurance company denies its liability in toto, proofs of loss are not necessary.</p>
| null | null | null |
Affirmed.
| null | 63,719,807 | null | 0 |
moctapp
|
SA
|
t
|
Missouri Court of Appeals
|
Missouri Court of Appeals
|
6,508,496 |
B. F. SAFFOLD, J. — I concur in the opinion of Justice Brickell, and, as a supplement to it, I read the following expression of my views on points not directly treated of by him. The indictment charged the defendant, under R. C. § 3564, in three counts, with accepting a bribe as solicitor of Dallas County. On the trial he denied his character as such solicitor, basing the denial on the fact that another was, at the time the offence was alleged to have been committed, the duly elected and qualified incumbent, and two persons could not hold the said office and perform the duties thereof at the same time. The state Constitution created the solicitor’s office ; and it requires that he shall be elected in each county by the electors thereof, and shall perform such duties as may be required of him by law. He shall hold office for a term of four years; and in case of vacancy, such vacancy shall be filled by the judge of the circuit, until his successor is elected and qualified. The legislature has not prescribed the duties of this officer. All of the statutes in the Revised Code relate to the circuit solicitor then in existence. Many of them are inapplicable to the present county solicitor; and such of them as have been applied to him in practice and usage have been so applied on account of their fitness to. the acquired meaning of the term “ solicitor,” as a political officer of the State, rather than from any presumed or construed regulation of his duties by the legislature. Section 859 of the Revised Code, in authorizing the presiding judge, when the solicitor is absent, or it would be improper for him to act, to appoint a competent attorney in his place, only recognizes, or declares, what is the inherent right of the court. The court, as the guardian of justice, is the representative of all suitors, and, in criminal cases, it can suffer neither the State nor the accused to be undefended. As this section (859) was not adopted in direct application to the county solicitor, and is a part of the regulation of a distinct officer, it cannot have the effect to limit or vary the power which the court has inherently to supply the place of the county solicitor who for any cause is not acting. As the Constitution bestows the *325power of appointment, in case of a vacancy, on the judge of the circuit, and it is the duty of that judge to see to the proper enforcement of the criminal law, both in term time and in vacation, except when he is displaced in term time by a presiding judge, an appointment of solicitor made by him at any time cannot technically be said to be void. The duties of solicitor are not confined in performance to the terms of the court; for instance, he must issue subpoenas in vacation to witnesses to appear before the grand jury. When he is not acting, unless the judge of the circuit can supply his place, no other is authorized to do so, and there must be a failure of justice. The conclusion is, that the judge of the circuit, from his power to appoint to a vacancy, and his duty as a conservator of the peace, must be authorized to supply any lapse in the service of the solicitor; and that, having jurisdiction of the subject matter, no appointment he may make is ip>so facto void, however irregular and subject to be set aside. If, then, the party appointed accepts the position, and performs the duties of the office, and while in the exercise of the rights, privileges, and responsibilities thereof, commits, as such officer, what the law denominates crime, he cannot defend on the ground that he was not solicitor de jure. As to whether the defendant was appointed to the office charged in the indictment to have been held by him, the transcript shows the following: “ April 1st, 1870. Ordered, J. S. Diggs, Esq., act as solicitor pro tem. of this court, until further ordered.” “ At Chambers, October 17th, 1870. Ordered, That the order heretofore made appointing Sheppard S. Diggs solicitor pro tem. of this court until further ordered, be hereby revoked, and that S. W. John be appointed solicitor pro tem. until further order.” Whether the appointment thus made ought to be construed as filling entirely the office of county solicitor temporarily of not, it authorized the appointee to act as such in matters pertaining to the Circuit Court, and was color of title for as much more as he assumed to do. Therefore, proof of such an appointment, and of acceptance and service under it by the defendant, would constitute him a defacto county solicitor, and subject to prosecution for malfeasance. That a de facto officer is subject to all the pains and penalties of a de jure officer is abundantly shown by the following authorities: 1 Bish. Crim. Law, § 917; 2 Bish. Crim. Law, § 378; 1 Gab. Crim. Law, 783; The State v. McEntyre, 3 Ired. 171, 174; The State v. Sellers, 7 Rich. 368, 372; People v. Cook, 4 Seld. 67; Rex v. Borrett, 6 Car. & P. 124; 3 Hawkins Pl. C. 261, § 28.
|
opinion_xml_harvard
| 889 |
2022-07-19 18:20:16.501826+00
|
030concurrence
|
t
|
f
| 6,631,978 |
Brickell, Peters, Saffold
| null |
U
|
f
|
Published
| 0 |
Diggs v. State
|
Diggs
|
Diggs v. State
|
<p>Appeal from the Criminal Court of Dallas.</p> <p>Tried before the Hon. Geo. H. Craig.</p> <p>The indictment in this case was in the following words : —</p> <p>“ The-grand jury of said county charge that, before the finding of this indictment, one J. Sheppherd Diggs was the solic-. itor of Dallas County, duly appointed and qualified to perform all the duties of said office, and duly assigned to attend before the grand jury of said county, to examine witnesses brought before such grand jury, and to give to such grand jury legal advice as to any matter or matters connected with their duties, and to give to such grand jury information as to any matters cognizable by them, as well as to prosecute the pleas of the State in the courts of said county. And the grand jury of said county do further charge, that on the-day of May, 1870, the said J. Sheppherd Diggs, while then and there acting as solicitor as aforesaid in said county, did corruptly receive, or agree to receive, intending and contriving to corrupt the due course of law and justice, from one Samuel M. Hill, Jr., a gift, or gratuity, to wit, a draft, or order for money, drawn by said S. M. Hill) Jr.) for the sum of two hundred and ninety-eight xtnr dollars, on L. Brewer & Co., a commission firm, doing business in the city of Mobile, State of Alabama, dated May, 1870, and payable ten days after the date thereof to the order of said J. S. Diggs, of the value of two hundred and ninety-eight XTnr dollars, as a gift, or gratuity, bribe, and pecuniary reward, to prevent or to cease, or to advise against, or not to begin a prosecution against the said S. M. Hill, for the criminal offence of living in said county, openly and notoriously, in a state of fornication or adultery, with a woman named Margaret Evans, or to influence, or induce, or advise the said grand jury, not to consider or act upon the said criminal conduct of the said Samuel M. Hill, Jr., of which said Diggs as aforesaid was well informed, or not to appear before the said grand jury, and give information of such violation of the law by the said Hill; and that the said J. Sheppherd Diggs did thereby, as solicitor as aforesaid, wilfully and corruptly prostitute, violate, and betray, for the gift, or gratuity, bribe, or pecuniary reward aforesaid, so as aforesaid by him, in his said office, taken and rereived, the duties of his said office, and the trust and confidence in him reposed ; against the peace and dignity,” &c.</p> <p>“ 2. And the grand jury of said county further charge, that on the-day of -, 1870, in the county aforesaid, one J. Sheppherd Diggs was the solicitor of Dallas County, duly and legally appointed, and acting and qualified to perform and discharge the duties of that office, tbe same being an office of importance and trust, concerning the administration of justice within the- State; and the said J. Sheppherd Diggs, being then and there such solicitor as aforesaid, contriving and intending the duties of his said office, and the trust and confidence thereby reposed in him, to prostitute and betray, did then and there, unlawfully and corruptly, accept and receive of one Samuel M. Hill, Jr., a draft, or order, for the sum of two hundred and ninety-eight Tw dollars, drawn by said S. M. Hill, Jr., on L. Brewer & Co., the commission merchants of said Hill in Mobile, in said State, dated May, 1870, and payable ten days after the date thereof, for the sum of two hundred and ninety-eight xw dollars, of the value of two hundred and ninety-eight dollars, payable to the order of said J. Sheppherd Diggs, and as solicitor as aforesaid, as a gift, gratuity, bribe, and pecuniary reward, to influence or induce him, the said J. Sheppherd Diggs, to prevent, or not to begin, or not to give information as solicitor of the said county as aforesaid, that would lead to the prosecution of said Hill, for then and there, as was well known to the said J. Sheppherd Diggs, living in a state of adultery or fornication with a woman named Margaret Evans; and that he, the said j. Sheppherd Diggs, did thereby unlawfully, wilfully, and corruptly prostitute, violate, and be-try, for the aforesaid bribe, gift, gratuity, or pecuniary reward, so as aforesaid by him, the said J. Sheppherd Diggs, in his said office taken, the duties of his office and the trust and confidence in him therein and thereby reposed, and did thereby, wilfully and corruptly agree to cloak, or screen, or protect a person, wéll known to him, the said J. Sheppherd Diggs, to be in the open, notorious, and continuous commission of an offence against the laws of the State; against the peace and dignity,” &c.</p> <p>“3. The grand jury of said county do further charge, that on or about the-day of May, 1870, Samuel M. Hill, Jr., at that time being a resident citizen of the said county, was, and had been for many months previous, to wit, for six months, living in a state of adultery or fornication, in said county, with a woman named Margaret Evans; and that such living and violation of the laws was well known to one J. Sheppherd Diggs, hereinafter mentioned, and was amenable to, and deserving of the punishment of the laws. of the State of Alabama, in such cases made and provided. And the grand jury further charge, that on the- day of May, 1870, the said J. Sheppherd Diggs, an attorney-at-law, in the county aforesaid, was, by due appointment, solicitor in the county aforesaid, and for th'e County of Dallas as aforesaid, duly and legally qualified to discharge and perform all the duties of that office, the same being an office of importance and trust concerning the administration of justice in the county aforesaid ; and the said J. Sheppherd Diggs, being then and there such solicitor for Dallas County, intending and contriving the duties of said office, and the trust and confidence thereby reposed in him, to prostitute and betray, did then and there unlawfully and corruptly accept and receive of the said S. M. Hill, Jr., a draft, or order, on L. Brewer & Co., commission merchants in Mobile, Alabama, for the sum of two hundred and ninety-eight Tw dollars, dated May-, 1870, and payable ten days after the date thereof, to the order of the said J. S. Diggs, and signed by the said S. M. Hill, of the value of two hundred and ninety-', eight dollars, as a gift, or gratuity, bribe, and pecuniary reward, to influence him, the said J. S. Diggs, as solicitor as aforesaid, not to prosecute the said Hill before the grand jury of said county, for his said offence of adultery or fornication, or not to give information before said grand jury, that would lead to a finding by said grand jury of a true bill against the said S. M. Hill for such offence, or to otherwise prevent such finding by such grand jury, or otherwise to protect said Hill against an indictment being found or prosecuted against the said Hill, for his said violation of the law; and that he, the said J. Sheppherd Diggs, did thereby unlawfully, wilfully, and corruptly prostitute, violate, and betray, for the aforesaid gift, gratuity, bribe, or pecuniary reward, so as aforesaid by him, the said J. Sheppherd Diggs, in his said office taken and accepted, the duties of his said office, and the trust and confidence in him therein and thereby reposed ; against the peace and dignity,” &c.</p> <p>The judgment entry recites, that the defendant, when arraigned, pleaded not guilty; but the bill of exceptions states that on the trial, when the parties had announced themselves ready, the acting solicitor “ moved the court to strike from the files the defendant’s plea of misnomer, on the ground that it was frivolous.” The plea, as set out in the bill of exceptions, was in these words : “ James Shepard Diggs, indicted by the name of J. Sheppard Diggs, in his own proper person cometh into court here, and, having heard the said indictment read, saith that his name is, and always hath been from his nativity, James Shepard Diggs, and by that name he hath always been called and known ; without this, that he, the said James Shepard Diggs, now is, or at any time hitherto hath been, called or known by the name of J. Sheppard Diggs, as by said indictment is supposed ; and this he, the said James Shepard Diggs, is ready .to verify. Wherefore he prays judgment of the said indictment, and that the same may be quashed.” The court sustained the motion, and struck said plea from the files, as frivolous ; to which the defendant excepted.</p> <p>“ Thereupon,” as the bill of exceptions then states, “ the defendant interposed a demurrer to said indictment, and to each count thereof, on these grounds : 1st. That no'offence is charged in or by the said indictment, nor in either count thereof. 2d. That the act or acts set forth in said indictment, or in either of the counts thereof, do not constitute bribery in the defendant. 3d. That Hill is not described, by name or otherwise, as a man, in any part of said indictment, or in any count thereof. 4th. That the date, as to the time when the said offence is alleged to have been committed, is set out in figures, instead of words or names. 5th. That tbe first count charges, if anything, two offences; one for receiving, and the other for agreeing to bribe the grand jury. 6th. That it does not appear therein, from the date alleged, that the offence was not barred by the Statute of Limitations when the indictment was preferred. 7th. That the second count fails to inform the defendant whom he is charged with knowing lived in adultery or fornication; and also that the words ‘ then and there ’ vitiate this count, because they may refer to the words therein, ‘ that on the-day of-, 1870, in the county aforesaid,’ or to the words therein, ‘ in Mobile, in said State, dated May, 1870, and payable ten days after date.’ 8th. That the third count is bad, because it charges the “defendant with agreeing not to prosecute Hill, and also with compromising or compounding the offence, by agreeing not to give information to the grand jury of knowledge in his possession. The court overruled said several demurrers, to which said defendant excepted. Thereupon the jury was empanelled, and the State introduced as evidence the following orders of the Circuit Court of Dallas County,” &c.</p> <p>The orders referred to, the last one of which was signed by Hon. M. J. Saffold, judge of the first judicial district, were in these words: “ September 9, 1869. On application of the grand jury, it is ordered by the court that E. W. Pectus be appointed special solicitor, to advise the grand jury in all eases in which the solicitor of the county is incompetent or disqualified.” “ September 11,1869. Ordered, S. W. John is hereby appointed solicitor pro tern, of the County of Dallas; the solicitor, Jasper N. Haney, having absented himself from the discharge of his official duties.” “ October 2, A. D. 1869. Ordered, That S. W. John continue to act as the solicitor for the Circuit Court, until further ordered.” “ April 1st, 1870. Ordered, J. S. Diggs, Esq., act as solicitor pro tern, of this court, until further orders.” “At Chambers, October 17th, 1870. Ordered, That the order heretofore made, appointing Sheppard S. Diggs solicitor pro tern, of this court until further orders, be hereby revoked, and that S. W. John be appointed, solicitor pro tern, until further order.” The State introduced one John Silsby as a witness, who was the clerk of the Circuit Court of Dallas County iñ 1869 and 1870, and who testified “that the said order, dated April 1st, 1870, was so made and entered on the minutes of said court after the business was disposed of, and after said court had adjourned, and simultaneously with the signing of the minutes by said presiding judge ; that said court remained adjourned from said first day of April, 1870, until the next regular term thereof in November, there being no term of said court, either general or special, in the interval; also, that he, witness, only knew said Jasper N. Haney as the solicitor of said county at the time of said appointment of S. W. John; that said Haney, after the appointment of said John, asserted his right to act and perform the duties as such solicitor, but was not permitted to do so .by the said judge of the Circuit Court.”</p> <p>The State introduced evidence tending to show that in May, 1870, said S. M. Hill and Margaret Evans were living together in a state of adultery or fornication ; that the defendant, about that time, had in his possession a draft for $298, drawn by said Hill on L.'Brewer. & Co., payable to said defendant, on which he endeavored to obtain a loan or advance of money, and which he said was given to him by said Hill; “ that he had charged him that much for keeping his case for living in adultery or fornication with Margaret Evans from going before the grand jury.” “ The solicitor pro tern, then testified, against the objection of the defendant to each and every part thereof, that he acted as solicitor at the time the grand jury investigated this charge against the defendant; that he telegraphed, at the request of the grand jury, to L. Brewer & Co., at Mobile, for the draft hereinafter mentioned, and received a letter in reply by mail; that said letter was in the handwriting of Col. Harris, the junior member of said firm, and that said letter had been lost or mislaid from his bag of state papers. Defendant’s said several objections to the foregoing statement of said witness, and to each sentence and part thereof, were overruled by the court, and said statements were allowed to go to the jury as evidence; to which the defendant excepted. Thereupon, against , the objection of the defendant, because the same was variant in date, amount, and in the name thereto, from the draft described in the indictment, the court permitted the State to introduce the said draft in evidence.” The draft was dated “Selma, May 14, 1870; ” was signed “ S. M. Hill, Jr.,” indorsed “ J. S. Diggs,” addressed to L. Brewer & Co., Mobile, and in the words and figures following : “ $298aa. Ten days after date, pay to the order of J. S. Diggs the sum of two hundred and ninety-eight dollars, and charge same to my account.” To the introduction of said draft the defendant excepted. The court then allowed the solicitor, as a witness, to explain to the jury, that n drawing a draft or bill he always used the particular fractional form shown in the indictment, to express the want of cents in the amount; and to this evidence, also, the defendant reserved an exception.</p> <p>The court charged the jury as follows: “ The defendant is on trial, charged with the offence of bribery. The statute, under which the indictment is framed, is as follows,” setting out section 3564 of the Devised Code. “If the State has proved to your satisfaction, beyond a reasonable doubt, that at the Spring Term, 1870, of the Circuit Court of Dallas County, the defendant was appointed solicitor of said court, by the order thereof,. and took upon himself the duties of said office, and so acted until said order was revoked; and that Samuel M. Hill, Jr., a man, and Margaret Evans, a woman, were living in a state of adultery or fornication, in Dallas County, before said order was revoked; and that the defendant knew it, and, acting as such solicitor, under and by virtue of said order, he corruptly received from said Hill the draft mentioned in the indictment, and received said draft under an agreement, understanding, or promise, express or implied, that he would not report, or prosecute as solicitor, said S. M. Hill for said offence, before the grand jury of said county ; and that said draft was of value ; and that these acts occurred in said County of Dallas, within three years before the finding of the indictment in this case, — then the defendant is guilty. The jury must give the defendant the benefit of any reasonable doubt which they may have relative to any one of the points mentioned ; and if there is such reasonable doubt, they must acquit the defendant. It is the duty of the jury to weigh carefully every part and portion of the evidence in the case, and give to it such consideration as, in their judgment, it justly merits ; and it is their province to discard and treat for nought any part of the same. No jury should be influenced, in this or any other case, by prejudices of any character ; for " the law presumes every man innocent until his guilt is established beyond any reasonable doubt whatever.”</p> <p>The defendant excepted to this charge] and to each part thereof, and then requested, in writing, the following charges : 1. “ If the jury believe, from the evidence, that the defendant alone was appointed the solicitor of the Circuit Court of Dallas County, under the order of Hon. M. J. Saffold, on the last day of the Spring Term of said court, 1870 ; and that he, neither then nor afterwards, did any act or duty in or under said appointment, he was not, in contemplation of law, the solicitor of said county, and should be acquitted.” 2. “ If the jury believe, from the evidence, that Jasper N. Haney was the regular solicitor for Dallas County in 1869, the constitutional term of office continued until November, 1872; and that both he and another could not hold said office generally, (?) and as solicitors discharge all its duties at the same time.” The court refused these charges, and the defendant excepted to their refusal.</p>
| null | null |
<p>
Indictment against County Solicitor for Accepting Bribe.
</p> <p>1. Description of defendant’s name in indictment; plea in abatement of misnomer; striking out plea as frivolous. — Where the defendant’s name is so stated in the indictment that, prima facie, a plea in abatement for a misnomer will lie; as e. g. where his name is averred to be “ J. Sheppherd Diggs; ” a plea in abatement, in proper form, and regularly filed, averring that his true name is “ James Shepard Diggs,’’ and that he has always been known and called by that name, should not" be stricken out, on motion, as frivolous.</p> <p>2. Sufficiency of common law indictment; use of figures instead of letters, in statement of time. — Asa general rule, an indictment which would be good at common law is good under our statutes ; and the use of figures instead of letters, in stating the time when the offence was committed, is not objectionable, since the statute (Rev. Code, § 4115) dispenses with the necessity of any statement of the time.</p> <p>3. Presumption of injury from admission of irrelevant evidence. — The admission of irrelevant evidence is an error which will work a reversal of the judgment, unless the record clearly shows that no injury could possibly have resulted.</p> <p>4. Variance in description of draft, or money order. — Where the indictment (under Rev. Code, § 3564) described the bribe alleged to have been received by the defendant as a draft “ for two hundred and ninety-eight xtnr dollars, dated May, 1870;” and the draft offered in evidence was for two hundred and ninety-eight dollars, and dated May 14, 1870, — held, that there was no substantial variance.</p> <p>5. Charge tending to mislead jury. — A charge to the jury, which asserts that “ it is the province of the jury to discard and treat for nought any part of the evidence,” though tending to mislead the jury, by inducing them to suppose that they might reject any part of the evidence capriciously or arbitrarily, is not a reversible error; the defendant should ask an explanatory charge.</p> <p>6. County solicitor indictable as “ ministerial officer "for receiving bribe. —A county solicitor is a “ ministerial officer,” within the meaning of the statute (Rev. Code, § 3564) fixing the punishment for the acceptance of a bribe by “ any ministerial officer of any court.”</p> <p>7. Officer defacto; how constituted, and criminal responsibility of. — An order of the Circuit Court, made by the presiding judge on the last day of the term, by which a person named therein is appointed “ to act as solicitor pro tern, of this court until further orders,” and the acceptance of the appointment by the person named, constitute him the county solicitor efe facto, so long as he acts under the appointment, although there was no vacancy in the office of county solicitor at the time the order was made; and as such officer de facto, he is indictable for malfeasance iri office, as if he were an officer de jure. (Peters, C. J., dissenting; held the order void.)</p> <p>8. Charge misleading jury. — A charge asked, which tends to mislead the jury, is properly refused.</p>
| null | null | null | null | null | 63,609,408 | null | 0 |
ala
|
S
|
t
|
Supreme Court of Alabama
|
Supreme Court of Alabama
|
4,904,585 |
Ector, P. J. The defendant, John Garling, was indicted in the district court of Bexar county, charged with the theft of one hack of the value of $40, the property of S. S. Corder. He was convicted by the jury, and his punishment assessed at two years’ confinement in the penitentiary. The counsel for the defendant filed quite a number of exceptions to the indictment, and also motions for new trial and in arrest of judgment, all of which were properly overruled. The district judge delivered to the jury a written charge, in which he distinctly set forth the law applicable to the facts. The indictment had all the legal requisites required by the Code of Criminal Procedure. It commenced : “In the name and by the authority of the state of Texas. The grand jurors of Bexar county, state of Texas, duly elected, tried, impaneled, sworn, and charged, at a term of the district court of Bexar county, beginning on the first Monday of May, A. D. eighteen hundred and seventy-six, to inquire for the body of said county of Bexar, upon their oaths, in said district court of Bexar county, present,” etc. The bill was returned into court by the grand jury, and filed on May 11, 1876. The court did not commit any error in refusing to give the instructions asked by the defendant’s counsel. The possession of Moke was the possession of Corder. Most of the errors assigned were so fully discussed and decided, during the present term of this court, in the case of Alfred Harris v. The State, that we deem it necessary only to refer to the case and the authorities there cited. We have carefully examined the entire record, and the *46brief of counsel, and find no error committed on the trial of the case at bar. The jury are fully warranted by the evidence in finding their verdict. The judgment of the district court is affirmed. Judgment affirmed.
|
opinion_xml_harvard
| 327 |
2021-09-03 05:54:35.918528+00
|
020lead
|
t
|
f
| 5,087,252 |
Ector
| null |
U
|
f
|
Published
| 0 |
Garling v. State
|
Garling
|
John Garling v. State
|
<p>Appeal from the District Court of Bexar. Tried below before the Hon. George H. Noonan.</p> <p>The defendant’s exceptions alleged that the indictment failed to show when the district court of Bexar county was held, or that there was any term of that court in session at the time the indictment was presented, or that the district court of Bexar county was held in and for Bexar county, or that the property was taken with the intent then and there to deprive the owner of its value, or that any legal offense had been committed.</p> <p>The opinion of this court sets out so much of the indictment as is involved in the rulings.</p> <p>The evidence showed that Corder purchased the hack and left it in Moke’s yard. No witness testified when or how it was taken from the yard, but both Corder and Moke swore that it was taken without their authority. The appellant, however, was found using the hack, representing himself as the owner, and stating that he had owned it some time. He sold it to B. Coopwood, Esq.</p> <p>No countervailing evidence was offered by the defense.</p>
| null | null |
<p>1. Indictment.—See recitals held sufficient to state the court, the term of court, and the other preliminary allegations requisite to indictments under the Code of Criminal Procedure.</p> <p>2. Same—Theft.—C. left his hack temporarily in the inclosure of M., from which it was stolen. Held, that the possession of M. was the possession of C., and the indictment correctly charged that the taking was from the possession of C.</p>
| null | null | null | null | null | 60,357,798 | null | 0 |
texapp
|
SA
|
t
|
Court of Appeals of Texas
|
Court of Appeals of Texas
|
8,124,477 |
Wallace, .1. The demurrer to the complaint raises tbe question whether the plaintiff can recover as for money had and received, upon the following facts: In May, 1883, the defendants sought subscriptions to a loan to be made to it of $2,000,000, to aid in constructing the railroad of the Mexican National Bailway Company, and on May 30, 1883, the plaintiff became a subscriber to the extent of $25,000, upon the terms of a contract of subscription. By this contract the defendant agreed to deposit in trust with a trustee named certain securities, aggregating in nominal value $20,000,000, as collateral for the repayment of the $2,000,000 loan on or before *523September 15, 1884. On October 1, 1883, the plaintiff had paid the amount subscribed by him in installments, as called by the defendant, and had received receipts therefor, which were not transferable without the consent of the defendant. It was provided by the contract of subscription that such receipts should be exchanged for formal certificates of interest in the loan authenticated by the trustee, upon payment of the last installment of the subscription. Before the payment of the last installment by the plaintiff the defendant transferred to the trustee named in the contract the securities specified therein, but this was done by a trust indenture which prescribed the powers and duties of the trustee respecting the use and sale of the securities. Among other tilings, this trust indenture provided that the trustee should execute from time to time, as requested by defendant, certificates of interest entitling the registered holders to an interest in the securities, or the proceeds thereof in case of a sale by him “under the provisions of the trust indenture,” bearing the same proportion to the whole as the amount of each certificate should bear to $2,000,000. The indenture also provided that the trustee should not sell the securities to satisfy the loan unless holders of certificates representing 25 per cent, of the whole amount should request him to do so; and it also provided that the holders of a majority in interest might waive any default in the payment of the loan on the part of the defendant, or instruct the trustee to do so, and extend the defendant’s time for payment, and suspend or postpone the sale by the trustee of the collaterals at their discretion. So far as appears, the plaintiff was ignorant of the terms of the indenture when he paid the installments of his subscription, but, after it was executed, demanded a certificate of defendant of the character specified in the contract of subscription. The defendant refused such a certificate, but offered one such as it had authorized the trustee to execute by the terms of the trust indenture. The first question is whether the deposit made of the collaterals under the terms of the trust indenture was such a departure from tlio contract of subscription as to amount to a breach of that contract. The contract was silent as to the conditions upon which the bonds should be deposited with the trustee, aside from the stipulation that the loan should be secured by an assignment in trust of the specified collaterals which were to be deposited with the trustee. The reasonable implification, however, is that they were to be deposited to secure the repayment of the loan on the contract day, and that the trustee was to exercise the ordinary rights of a pledgee to sell the securities and satisfy the debt for the benefit of tlio subscribers. Such a pledge would, doubtless, confer upon every subscriber a qualified right to call upon the trustee to satisfy the amount due to him by a sale of the securities. But the fund created was a joint fund for the benefit and protection of the whole body of subscribers, and therefore is not to be dealt with upon the intervention of a single cestui *524que trust to tbe disadvantage of the. others. If the trust indenture provided that the trustee should not sell the securities unless a sale should be advantageous to the common interests of the cestuis que trust, it would be unobjectionable, because it would only prescribe a condition which would be implied, and which a court of equity would impose in the exercise of its jurisdiction over trusts, if applied to by any of the parties in interest. But the indenture contains arbitrary restrictions upon the powers of the trustee, which he cannot disregard, and which materially impair the rights of the subscribers. It substitutes the discretion of 25 per cent, in interest of the cestuis que trust in place of the discretion of the trustee, and requires him, at the intervention of a majority of the subscribers, to extend the time of payment, and postpone a sale of the securities. The plaintiff did not consent to the creation of such a trust. The conditions may have been designed to promote the best interests of all the subscribers; they may have been wise and expedient, but they were not such as were authorized by the plaintiffs contract. A court of equity might reform the terms of the trust indenture if a suit were brought for that purpose, but, so long as they stand, would have to adhere to them, if called upon to intervene upon the application of the cestuis que trust. It remains to consider whether the plaintiff can recover back his money in an action for money had and received, or whether his remedy is merely one for damages for a breach of contract. The subscription agreement was a separate and independent contract between the defendant and each subscriber. The defendant could maintain a suit against each subscriber upon his failure to pay the amount of the subscription ; and it must follow that each subscriber has a corresponding right of action against the defendant for any breach of the contract on its part towards him. Similar contracts have been frequently adjudged to confer a several liability and a several -right of action on the part of each subscriber. Thomp. Liab. Stockh. § 114; Whittlesey v. Frantz, 74 N. Y. 456. It is a familiar rule that when one party to an executory contract puts'it out of his power to perform it, the other may regard it as terminated, and has an immediate right of action to recover whatever damages he has sustained. Ford v. Tiley, 6 Barn. & C. 325; Bowdell v. Parsons, 10 East, 359; Heard v. Bowers, 23 Pick. 455-460; Shaw v. Republic Life Ins. Co. 69 N. Y. 293; U. S. v. Behan, 110 U. S. 339; S. C. 4 Sup. Ct. Rep. 81; Lovell v. St. Louis Mut. Life Ins. Co. 111 U. S. 264; S. C. 4 Sup. Ct. Rep. 390. The plaintiff was under no obligation to tender his receipts. They were merely vouchers. They were to be exchanged for formal certificates, but when the defendant had put .it beyond its power to deliver the proper certificates, the plaintiff was not bound to tender them. No demand of the certificates was necessary after defendant had incapacitated itself from giving them. Where money is advanced upon an executory contract, which the contracting party fails to perform, *525It is in the election of the other party either to sue upon the agreement and recover damages for a breach, or to treat the contract as rescinded, and recover back his money as paid upon a consideration hick lias failed. Hill v. Rewee, 11 Motc. 271; Brown v. Harris, 2 Gray, 359; Wheeler v. Board, 12 Johns. 363; Lyon v. Annable, 4 Conn. 350; Appleton v. Chase, 19 Me. 74; Shepherd v. Hampton, 3 Wheat. 200; Smethhurst v. Woolston, 5 Watts & S. 106. If there had been a part performance of the contract by which the plaintiff received some benefit, and the defendant could not he restored, to the previous situation, the plaintiffs only remedy would have been for a breach of the agreement, and his damages would be measured by his loss. Hunt v. Silk, 5 East, 449; Foss v. Richardson, 15 Gray, 306; Nash v. Lull, 102 Mass. 60. He has received nothing, however, under the contract, and the law implies a promise on the part of the defendant to pay back what it has received. Judgment is ordered for plaintiff on the demurrer.
|
opinion_xml_harvard
| 1,392 |
2022-09-09 15:04:24.57468+00
|
020lead
|
t
|
f
| 8,162,803 |
Wallace
| null |
U
|
f
|
Published
| 0 |
Reusens v. Mexican National Construction Co.
|
Reusens
|
Reusens v. Mexican National Construction Co.
|
<p>At Law.</p>
| null | null |
<p>Action for Monet Had and Received — Breach of Contract.</p> <p>In .May, 1883, tbe Mexican National Construction Company sought subscriptions to a loan of $2,000,000 to aid in constructing the Mexican National Railway, and plaintiff subscribed $20,000 upon the terms of a contract whereby the construction company agreed to deposit in trust securities of the nominal value of $20,000,000 as collateral for the repayment of the $2,000,000 loan on or before September 15, 1884. October 1, 1883, plaintiff paid the installments of his subscription as called by the company, and received receipts therefor, which, under the contract, were not transferable without consent of the company, but could be exchanged for formal certificates of interest in the loan, authenticated by the trustee. Before payment of the last installment, the company transferred to the trustee the securities by indenture, prescribing the powers and duties of the trustee, and providing that he should execute, as requested by the company, certificates of interest entitling the registered holders to an interest in the securities, or the proceeds of the sale thereof, bearing the same proportion to the whole as the amount of each certificate bore to the $2,000,-000; but that he should not sell the securities to satisfy the loan unless the holders of certificates representing 25 per cent, of the whole amount requested, and that the holders of a majority in interest might waive default in payment of the loan, or extend the time of payment, or suspend or postpone the sale of the collaterals, at their discretion. Plaintiff had no knowledge of the terms of this indenture, and demanded a certificate, as provided in the contract, and, on a refusal to deliver the same, brought suit for money had and received. Reid (1) that the deposit of the collaterals, under the terms of the trust indenture, was a breach of the subscription contract; (2) that, inasmuch as the defendant had put it out of its power to perform an executory contract with the plaintiff, the latter had the right to treat the contract as terminated; (3) that the plaintiff could, at his election, sue upon the agreement and recover damages for a broach, or treat it as rescinded and recover back the money he had advanced.</p>
| null | null | null | null | null | 65,258,881 | null | 0 |
circtsdny
|
F
|
f
|
U.S. Circuit Court for the District of Southern New York
|
U.S. Circuit Court for the District of Southern New York
|
7,456,701 |
Case dismissed, sua sponte.
|
opinion_xml_harvard
| 4 |
2022-07-29 03:23:50.79523+00
|
020lead
|
t
|
f
| 7,532,192 | null | null |
U
|
f
|
Published
| 0 |
Lanier v. State
|
Lanier
|
Willie LANIER v. STATE of Florida
| null | null | null | null | null | null | null | null | null | 64,533,196 |
No. 43986
| 0 |
fla
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S
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t
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Supreme Court of Florida
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Supreme Court of Florida
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6,468,449 |
OPINION OP THE COURT. ROBERTS, J. This suit was instituted in. the court below by appellant to quiet her title in and to certain real estate situated in Union county. Appellee answered, setting up the fact that he was the owner of the land by deed from one Lenora Sullivan; that appellant claimed title under a tax deed which was alleged to be invalid on various grounds, the principal one being that the tax certificate upon which the deed was based was not made by the collector in office at the time said sale was held, or by any of his deputies. In other words, the validity of the deed was attacked on the ground that it was based upon a void certificate of sale. Another defense set up was, that under chapter 84, Laws 1913, the owner had the right to redeem the land at any time within three years from the date the certificate of sale was recorded, and that proper tender had been made within such time. To the answer appellant demurred, and, her demurrer being overruled, she filed a reply. The facts may be briefly stated as follows: The land in question was listed for assessment in the year 1909. Taxes were levied thereon, and remained unpaid, and the land was advertised for sale. This much is shown by the record evidence introduced by the plaintiff at the trial. Appellant then introduced. R. Q. Palmer, as her witness, who testified that he was county treasurer of Union county from 1909 to January, 1912. He also testified that the land was advertised for- sale for delinquent taxes together with other real estate; that it was all offered for ■sale on the 15th day of January, 1911; that there were no bidders for the land in question; and that he thought he thereafter struck it off to Union county. He made no record whatever of the transaction. In January, 1912, Nestor C. He Baca became county treasurer, and on March 4, 1913, He Baca or one of his deputies marked on the roll opposite this land the words, “Sold to the County, ’ ’ and at the same time a record was made in the treasurer’s record of delinquent tax sales showing a sale of the land to the county on January 15, 1911. At the same time he made a certificate of sale in which he recited that he, Nestor C. He Baca, did, on January 15, 1911, sell the land in question to the county of Union. The certificate was signed by him, and was indorsed “March 4, 1913, as for January 15, 1911.” This certificate was not recorded until September 17, 1915. The court refused to find that a sale of the land for taxes to the county was made, and entered judgment for the appellee. [1, 2] But two questions will be considered here, one being decisive-of the case, and the other being determined because fairly presented and of great public interest. The first question is as to whether or not the evidence established the fact that a sale of the land in question for delinquent taxes actually occurred. If no sale was in fact made, title did not pass to the county, and the attempted issuance of the certificate of sale and its- subsequent assignment to Gow, through whom appellant obtained title, would be a nullity. The taxes were levied and the sale was made, if there was a sale under the -provisions of chapter 22, Laws 1899. Under section 25 of that chapter it is provided: “And no bill of review or other action attacking- the title to any property sold at tax sale in accordance with this act shall be entertained by any court, nor shall such sale or title be invalidated by any proceedings except upon the ground that the taxes, penalties, interest, and costs had been paid before the sale, or that the property was not subject to taxation.” Tile effect of this curative provision has been before this court in several cases. It was first considered in the case of Straus v. Foxworth, 16 N. M. 442, 117 Pac. 831. It was there held that the sale vests a title in the purchaser which can be invalidated only on the ground that the taxes, penalties, interest, and costs have been paid before the sale, or that the property was not subject to taxation, and that it could not be invalidated for irregularities in the proceedings leading up to the sale unless they' were fraudulent or amounted to jurisdictional defects. The rule.in this case was followed in the later cases of Maxwell v. Page, 23 N. M. 356, 168 Pac. 492; Hiltscher v. Jones, 23 N. M. 674, 170 Pac. 884; Knight v. Fairless, 23 N. M. 479, 169 Pac. 312. In all of these cases it is conceded that jurisdictional defects are not cured by the curative provisions of the statute. In other words, it is essential that the property should have been listed for taxation, and that the tax should have been laid. The fact that the property was in fact sold for delinquent taxes is likewise jurisdictional; for, if rio sale in fact occurred, the basis for subsequent proceedings would not exist. In Black on Tax Titles, § 452, the author sets out the indispensable requirements essential to constitute a valid exercise of the taxing power, without which no tax sale could be validly made, which is as follows: ‘‘First, that a tax has been levied; second, that the property sold is subject to taxation; third, that the property has been assessed; fourth, that the taxes had not been -paid; fifth, a statutory warrant for the sale; sixth, a sale made under such warrant.” “The proceedings on which tax sales depend are to be proved by the records or by the originals from which the records should be made up.” Black on Tax Titles, § 446. [3-5] The fact that real estate was sold for delinquent taxes must necessarily be established by the record, .and cannot be proved by the parol evidence of the county treasurer who made the sale. Section 23, e. 22, Laws 1899, provides: “The collector shall keep a book of sale containing the date of sale, description of the property sold, name of purchaser and amount for which sold.” Section 22 of the same chapter provides that, when there are no bidders for real estate offered for sale, i!; shall be struck off to the county, and that the collector shall make an entry, “Sold to the County,” on the tax roll opposite the tax. The book of sales required by section 23 'is intended to provide an official record of the sale and to give information to the public and to the party whose property has been sold of such fact. It is the register wherein the collector records the fact known to him and done bjr him, or under his direction, that he has sold, the real estate therein described to the county or to the individual purchaser who may have bought at the sale; it is designed to afford evidence of the official act, and in order to be competent evidence and establish the fact recorded therein, it is essential that the entry should have been made by the person whose duty it was to do so. In other words, the entry should be .made by the party who performed the act recorded. In Greenleaf on Evidence (16th Ed.) vol. 1, § 485, the author says: “It is deemed essential to the official character of these books that the entries in them be made promptly, or at least without such long delay as to impair their credibility, and that they may be made by the person whose duty it was to make them and in the mode required by law, if any has been prescribed.” In Jones on Evidence, vol. 3, § 509, the same' rule is announced. In the case of Warren v. Bray, 8 B. & C. 813, 108 Eng. Reprint, 1245, the question arose as to the admissibility of a register in evidence for the purpose of establishing the date of birth; the entry not having been made by the minister of the parish at the time the act occurred, but by his successor in office. The court said: “Tlie register ought not to have been received in evidence. Registers should be made up promptly, and by the person whose duty it is to make them up. The register of baptism in this case purports to bear date the 6th of February, 1776, but it was not made up till June, 1777, and then it was made up not by the person who was minister of the parish at the time of the baptism, or by a. person who appeared at that time to have any connection with the parish, but by one who after-wards became the minister of the parish. It must be taken, therefore, that he made this entry after the death.of the minister of the parish who was present at this baptism. He was recording a fact, therefore, not within his own knowledge, but one of which he received information from the clerk.” The same facts substantially exist in the present case. Palmer was the treasurer who is supposed to have made the sale, and, if made by him, it was his duty to have recorded the fact. ITe failed to do so, and left no written memorandum or evidence of any kind of the fact that he had made the sale. ITis successor in office, without any personal knowledge of the matter whatever, made the record show that a sale had in fact taken place some two years and three months prior to the entry of the record, a fact wholly without his knowledge, and which, if it had occurred, it was the duty of his predecessor to have recorded. De Baca had no authority to make the entry, and the record thus afforded no evidence of the fact that a sale took place, thereby justifying the issuance of the certificate of sale, and the subsequent proceedings wholly failed to show that a sale of the land in question to the county actually was made. It would lead to manifest injustice and afford ample opportunities for fraud to announce a rule that would .justify such a proceeding. The owner of real estate might examine the records in the treasurer’s office from time to time and fail to find any record showing that his property had been sold for taxes. After the time had expired for redemption, in case a sale had actually been made, the county treasurer or his successor in office might make up a record, issue a certificate of sale to the county, assign the certificate to a private individual, issue a deed, and take from the landowner his real estate, and he would be without remedy. In Minnesota (Smith v. Lambert, 68 Minn. 313, 71 N. W. 381) it is held that a certificate of sale required to be issued by the county auditor to a purchaser at a sale of forfeited lands to the state is not valid unless executed at the time of sale or within a reasonable time thereafter. Many Minnesota cases will be found collected and discussed in this opinion, all to the same effect. It is not necessary for us to follow or approve the rule adhered to by the Minnesota courts. If the record of the sale had been made by the county treasurer who made the sale, it is probable that his successor could have legally issued the certificate of sale; but here the succeeding treasurer not only issued the certificate of sale some two and a quarter years after the sale is supposed to have occurred, which would have been invalid under the rule announced by the Minnesota courts, but he made up the record upon which the certificate was issued. "We think the court below properly refused to find that a sale in fact had taken place, and for this reason the judgment will be affirmed. There is another question which should be considered because of the public interest, and that is as to whether the owner of land sold under the law of 1899 has a right to redeem within three years from the date of the sale as provided by that law' or whether the right of redemption is governed by chapter 84, Laws 1913. The former act authorizes redemption within three years from the date of sale. The latter act authorizes redemption within three years from the date the certificate of sale is recorded. As the certificate in question was owned by Union county, it is undoubtedly true, as contended by appellee, that the state could pass a retroactive law dealing with such property and the right of redemption. 8 Cyc. 902; 6 Am. & Eng. Ency. of Law, 940; Commissioners v. Lucas, 93 U. S. 108, 23 L. Ed. 822. The question remains, however, as to whether the Legislature intended that the latter act should apply to certificates of sale theretofore issued to and held by the various counties. Section 38 of the latter act provides that the county shall give to the purchaser a certificate of sale, and that such certificate must be recorded, and that redemption may be made at any time within three years from the date of recording such certificate, or duplicate certificate, provided for in section 36 of said act. The provisions of said section as to what the certificate shall contain, where it shall be recorded, and how it can be redeemed apply solely to certificates thereafter issued. It is our opinion that certificates issued under the 1899 law are controlled by that law. It is only certificates issued by the collector “under section 36” of said act that must be recorded and from which the former owner may redeem within three years from the date of the recording of such certificate. Sections 4100 and 4101 of the Com1 piled Laws of New Mexico 1897 were in force at the time of the said tax sale and at the time the right of redemption therefrom expired, and these sections were not repealed by the 1913 law. Section 4100 provided for the issuance of a tax deed three years after the date of sale. Section 38, c. 84, Laws 1913, provides: "Such former owner may at any time, within three years from the date of recording such certificate, or duplicate certificate, provided for in section 36 thereof, redeem the property.” To construe said section 38 as applying to certificates issued under the 1899 law would be to make it conflict with and nullify said section 4100. It is the duty of the court to give force and effect to both sections. In the case of Crane v. Cox, 18 N. M. 377, 137 Pac. 589, it was held that the act of 1913 should be limited to prospective operation. It is a general rule of law that statutes are to be construed as prospective, and not retrospective, unless constrained to the contrary course by the rigor of the phraseology. 1 Cooley on Taxation, 495. In the casé of Smith v. Auditor General, 20 Mich. 398, in an opinion written by Justice Cooley, it was said: “We do not understand it to he questioned that it was coinpetent for the Legislature to make-the greneral provisions of the act of 1869 apply to the taxes previously assessed and returned, so far as the subsequent proceedings to be taken by the state were concerned, if they had seen fit to do so. The question is whether they have expressed an intention to that effect. Unless the intention distinctly appears, the familiar rule of construction which presumes that legislation is designed to have prospective operation only will require the court to hold that the legislative purpose was that this act should apply only to the taxes subsequently assessed.” In the case of Blakemore v. Cooper, 15 N. D. 5, 106 N. W. 566, 4 L. R. A. (N. S.) 1074, 125 Am. St. Rep. 574, the court cites a great many cases in support of the rule that the repeal .or revision of a statute is to have prospective operation only, unless the intent of the Legislature to the contrary clearly appears. There is nothing in the act under consideration wrhich makes it clearly apparent that it was the intention of the Legislature that the redemption feature should apply to sales made under the former statute. We conclude that said section 38 of the Act of 1913 does not act retrospectively and does not in any way affect or refer to tax certificates issued under the 1899. law, and does not extend or revive the right of redemption on certificates issued under said law. For the reasons stated, the judgment of the district court will be affirmed; and it is so ordered. ITanna, C. J., concurs.
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opinion_xml_harvard
| 2,841 |
2022-06-26 14:08:39.991034+00
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020lead
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f
| 6,593,673 |
Itanna, Parker, Raynolds, Roberts
| null |
U
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f
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Published
| 0 |
Pace v. Wight
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Pace
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PACE v. WIGHT
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<p>Appeal from District Court, Union County; Leib, Judge.</p> <p>Suit to quiet title by- Susie S. Pace against Mark D. Wight. Judgment for defendant, and plaintiff appeals.</p>
| null | null | null | null | null | null |
Affirmed.
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<p>SYLLABUS BY THE COURT.</p> <p>1. The curative provision of section 25, c. 22, Laws 1899, relative to tax sales, does not apply to jurisdictional defects.</p> <p>P. 279</p> <p>2. The fact that property was in fact sold for delinquent taxes is jurisdictional; for, if no sale in fact occurred, the bases for the subsequent proceedings would not exist. P. 27 9</p> <p>3. The proceedings on which tax sales depend are to be proved by the records or by the originals from which the records should be made up. The fact that real estate was sold for delinquent taxes must necessarily be established by the record, and cannot be proved by the parol evidence of the county treasurer who made the sale. P. 280</p> <p>4. Section 23, c. 22, Laws 1899, requires the collector to keep a book of sales containing the date of sale, description of the property sold, name of the purchaser, and amount for which sold. Section 22 of the same act provides that, where property is struck off to the county, the collector shall make an entry, “Sold to the county,” on the tax roll opposite the tax. It is the duty of the county treasurer making the sale to record the facts in the official record, and such entry cannot be made by the successor in office of the county treasurer who made the sale, such successor having no personal knowledge of the fact recorded, and there being no memorandum from which to make the same. P. 280</p> <p>5. It is essential to the official character of official registers that the entries in them be made promptly, or at least without such long delay as to impair their credibility, and that they be made by the person whose duty it was to make them and in the mode required by law, if any has been prescribed. P. 280</p> <p>On Rehearing.</p> <p>6. The Legislature may pass a retroactive law operating on property belonging to the state, and such law will not be unconstitutional so long as private rights are not infringed.</p> <p>P. 287</p> <p>7. Where a tax sale certificate is held by a private individual, the purchaser has a vested right to a deed at the time specified in the law under which the purchase was made, and the Legislature cannot subsequently extend the period of redemption, as such extension would be an impairment of the obligation of the contract. But this rule is held not to apply where the state itself is the purchaser at the tax sale, as the extension of the time in that case is not a violation of contract rights, but an act of grace. P. 287</p> <p>8. Chapter 22, Laws 1899, which provide that the owner 'of land might redeem from a tax sale at any time within three years from the date of sale, was specifically repealed by chapter 84, Laws 1913. Under the later act it was provided that the owner might redeem at any time within three years from the date of recording the certificate of sale. Held, that the later act applied to certificates of sale held by the county acquired under the former law, and that the owner was entitled to redeem at any time within three years from the recording- of such certificate of sale. P. 288</p>
| 63,523,878 |
No. 2200
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nm
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S
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t
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New Mexico Supreme Court
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New Mexico Supreme Court
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5,363,734 |
Judgment by a city magistrate, sitting as a Court of Special Sessions of the City of New York, Borough of Brooklyn, convicting the defendant of violating section 2147 of the Penal Law (public traffic on Sunday), unanimously affirmed. The defense provided by section 2144 of the Penal Law, is not available against a violation of section 2147 of such law. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.
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opinion_xml_harvard
| 71 |
2022-01-08 07:37:16.926847+00
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020lead
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t
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f
| 5,523,395 | null | null |
U
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f
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Published
| 0 |
People v. Rudnick
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Rudnick
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The People of the State of New York v. Daniel Rudnick
| null | null | null | null | null | null | null | null | null | 61,875,761 | null | 0 |
nyappdiv
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SA
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t
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Appellate Division of the Supreme Court of New York
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Appellate Division of the Supreme Court of the State of New York
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8,366,471 |
The following order has been entered on the motion filed on the 8th of March 2016 by Defendant to Appoint Counsel:"Motion Dismissed as moot by order of the Court in conference, this the 13th of April 2016."
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opinion_xml_harvard
| 37 |
2022-10-18 01:04:27.13681+00
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020lead
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t
|
f
| 8,396,217 | null | null |
U
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f
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Published
| 0 |
State v. Oliveros
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Oliveros
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STATE v. Raul OLIVEROS.
| null | null | null | null | null | null | null | null | null | 65,577,094 |
No. 80P16–1.
| 0 |
nc
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S
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t
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Supreme Court of North Carolina
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Supreme Court of North Carolina
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2,805,647 |
Supreme Court of Florida No. SC15-176 IN RE: AMENDMENTS TO RULES OF THE SUPREME COURT RELATING TO ADMISSIONS TO THE BAR. [June 4, 2015] PER CURIAM. This matter is before the Court for consideration of an amendment to Rule of the Supreme Court Relating to Admissions to the Bar 1-21 (Membership) proposed by The Florida Board of Bar Examiners (Board). See Fla. Bar Admiss. R. 1-12.1 After considering the Board’s proposal, rather than amending rule 1-21 as proposed, we adopt new rule 1-21.1 (Additional Members). Rule 1-21 currently provides that the “Florida Board of Bar Examiners consists of 12 members of The Florida Bar and 3 public members who are not lawyers.” The Board asks the Court to amend rule 1-21 to allow the Board to petition the Court for additional members to serve on the Board, as necessitated by 1. We have jurisdiction. See art. V, § 15, Fla. Const. the Board’s fluctuating workload. According to the Board, having the option to request additional members will allow the Board to process applicant files in the most efficient manner possible. The Board recognizes that its workload may vary as the number of applicants fluctuates. Therefore, the proposed amendment to rule 1-21 is intended to allow the size of the Board to expand when necessary, while allowing for a reduction to standard membership when the additional members’ terms end, if no replacement for the additional members proves necessary. In the petition seeking to amend the rule, the Board also asks the Court to appoint two additional attorney members and one additional public member.2 The Board’s general proposal to allow for additional Board members is well justified. However, the Board’s proposed rule amendment fails to include procedures for requesting additional members and for appointing specific public or attorney members once the Court approves adding members. The proposed rule amendment also fails to clarify the duration of the terms of the additional members. Therefore, rather than amending rule 1-21 as proposed, we adopt new rule 1-21.1 (Additional Members) to provide the necessary procedures, as follows: 1-21.1 Additional Members. The board may submit to the court a request for additional members to serve, as necessary. The request and appointee recommendations must be submitted in the 2. Although the Board’s request for appointment of additional members suggests terms of service for the additional members, it fails to include specific appointee recommendations. -2- same manner as appointee recommendations under rules 1-22.2 and 1- 23.2. The term of service of a member appointed under this rule will be as provided in rules 1-22.3 and 1-23.3 or as otherwise approved by the court. We also decline to address the Board’s request for appointment of additional members in this rules case. Accordingly, we amend the Rules of the Supreme Court Relating to Admissions to the Bar as set forth in the appendix to this opinion. New language is indicated by underscoring. The amendment shall become effective immediately upon the release of this opinion. The Board may submit its request for additional members and appointee recommendations to the Court in accordance with new rule 1-21.1. It is so ordered. LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur. THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS. Original Proceeding – Rules of the Supreme Court of Florida Relating to Admissions to the Florida Bar Daryl M. Manning, Chair, Michele A. Gavagni, Executive Director, and Robert G. Blythe, General Counsel, Florida Board of Bar Examiners, Tallahassee, Florida, for Petitioner -3- APPENDIX 1-20 Florida Board of Bar Examiners. 1-21 Membership. The Florida Board of Bar Examiners consists of 12 members of The Florida Bar and 3 public members who are not lawyers. 1-21.1 Additional Members. The board may submit to the court a request for additional members to serve, as necessary. The request and appointee recommendations must be submitted in the same manner as appointee recommendations under rules 1-22.2 and 1-23.2. The term of service of a member appointed under this rule will be as provided in rules 1- 22.3 and 1-23.3 or as otherwise approved by the court. -4-
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opinion_html_with_citations
| 688 |
2015-06-04 15:04:45.186493+00
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010combined
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f
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f
| 2,805,647 |
Canady, Labarga, Lewis, Pariente, Per Curiam, Perry, Polston, Quince
| null |
CU
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f
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Published
| 0 |
In Re AMENDMENTS TO RULES OF the SUPREME COURT RELATING TO ADMISSIONS TO the BAR
|
In Re: Amendments to Rules of the Supreme Court Relating to Admissions to the Bar
|
In Re: Amendments to Rules of the Supreme Court Relating to Admissions to the Bar
| null | null |
<parties id="b250-12">
In re AMENDMENTS TO RULES OF the SUPREME COURT RELATING TO ADMISSIONS TO the BAR.
</parties><docketnumber id="A7A">
No. SC15-176.
</docketnumber><court id="Ajii">
Supreme Court of Florida.
</court><decisiondate id="AAu">
June 4, 2015.
</decisiondate><br><attorneys id="b250-18">
Daryl M. Manning, Chair, Michele A. Gavagni, Executive Director, and Robert G. Blythe, General Counsel, Florida Board of Bar Examiners, Tallahassee, FL, for Petitioner.
</attorneys>
| null | null | null | null | null | null | 2,662,020 |
SC15-176
| 0 |
fla
|
S
|
t
|
Supreme Court of Florida
|
Supreme Court of Florida
|
4,851,107 |
App.dism.
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opinion_xml_harvard
| 1 |
2021-08-24 09:32:01.339523+00
|
020lead
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t
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f
| 5,037,417 | null | null |
U
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f
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Published
| 0 |
Pompliano v. J P Morgan Chase Bank National Ass'n
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Pompliano
|
Pompliano v. J P Morgan Chase Bank National Association
| null | null | null | null | null | null | null | null | null | 60,281,181 |
2D16-3204
| 0 |
fladistctapp
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SA
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t
|
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
9,317,952 |
OTT, J., Plaintiffs Richard S. Fleming and Rita Fleming appeal from this court’s order directing them to submit to independent medical examinations by a physician of defendant’s choosing. FACTS Richard and Rita Fleming were injured in an automobile accident on March 1, 1989. At the time of the accident they were insured under a policy *424issued by CNA Insurance Companies through Continental Casualty Insurance Company. • Following the accident the Flemings experienced neck and back pain for which they received physical therapy and treatment by Dr. William Tsoubanos, a chiropractor, and Dr. James Nicholson, an osteopathic physician. Through February 12, 1990, CNA reimbursed Richard Fleming $6,475 for medical bills and $2,000 for lost wages and Rita Fleming $6,965.04 for medical bills and $1,812.30 for lost wages. On February 12, 1990, a representative of CNA wrote to plaintiffs’ attorney and advised that no further benefits would be paid, citing the Flemings’ refusal to submit to physical exams and CNA’s assessment that each had been overtreated. Plaintiffs filed a complaint on March 6, 1990, to compel CNA to continue paying benefits. On August 13, 1990 CNA filed a motion to compel medical examination of plaintiffs pursuant to Pa.R.C.P. 4010. Plaintiffs filed a timely response and following oral argument we issued an order on October 2, 1990 denying the motion because it failed to establish good cause to compel the examinations. The order was issued without prejudice to CNA’s right to file a subsequent motion. On November 19, 1990, CNA filed á second motion to compel medical examination of plaintiffs pursuant to Pa.R.C.P. 4010, and section 1796 of Pennsylvania’s Motor Vehicle Financial Responsibility Law.1 Plaintiffs again filed a timely response. Discovery was neither requested nor pursued by any party. Following oral argument we issued an order dated February 12, 1991 granting the motion and directing each of the Flemings to submit to an *425independent medical examination within 30 days. They have appealed this order to the Superior Court. ISSUES Appellants’ concise statement of matters complained of filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) raises three issues: (1) Did CNA show good cause for the requested examinations? (2) Was this court’s record sufficient to justify the order? (3) Should this court havé considered the medical reports of Earl C. Marmar, M.D. attached to the motion to compel examinations, to the extent they critiqued the treatment rendered by a chiropractor? DISCUSSION The Good Cause Standard The Financial Responsibility Law authorizes a court to require a claimant to submit to a mental or physical examination by a physician upon a showing of good cause whenever the mental or physical condition is material to the claim.2 The subject of what constitutes good cause under this section has been addressed several times by Superior Court. The averments within a petition or *426motion to compel a medical examination must rise to a level of specificity that ensures a claimant will not be forced to submit to an unnecessary examination sought in bad faith. Thus, the petition must illustrate a need, rather than a mere desire, for an independent medical examination. State Farm Insurance Companies v. Hunt, 390 Pa. Super. 620, 569 A.2d 365 (1990); State Farm Mutual Automobile Insurance Company v. Allen, 375 Pa. Super. 319, 544 A.2d 491 (1988); State Farm Mutual Automobile Insurance Company v. Zachary, 370 Pa. Super. 386, 536 A.2d 810 (1987). Nevertheless, each of the foregoing decisions was the product of a different three-judge panel. These panels have not agreed on the elements a petitioner must establish to prove good cause. In Zachary and Allen, supra, the Superior Court adopted the analyses of the Honorable R. Stanton Wettick of the Court of Common Pleas of Allegheny County as espoused in Nationwide Mutual Insurance Company v. Fandray, 12 D.&C. 3d 65 (1979), and Erie Insurance Exchange v. Dzadony, 39 D.&C. 3d 33 (1986). Judge Wettick employed a three-prong test. An insurer’s petition must contain facts demonstrating: (1) that the proofs supplied in support of the claim are inadequate; (2) that the proposed physical examination will substantially assist the insurer in evaluating the claim; and (3) the amount of the claim justifies a court order compelling the claimant to submit to an examination. Judge Wettick also determined that an insurance company must demonstrate that the information supplied by the insured in support of a claim does not eliminate reasonable doubt as to its validity. In Hunt, supra, at 623, 569 A.2d at 367, Superior Court opined that before ordering a party to submit to an examination, a trial court should require a *427showing that a bona fide controversy exists regarding the nature of the claimant’s injuries, and it must further be shown that the requested examination will substantially aid the insurer in evaluating the claim. To this end, it was suggested that whether the same information can be obtained by other means is also a proper consideration. We believe that under either set of criteria, CNA has established good cause to request the examinations of the Flemings. CNA has reimbursed the Flemings for more than $13,400 in medical bills generated over a period of almost one year for the treatment of soft tissue injuries. A medical doctor who reviewed the medical reports submitted in support of plaintiffs’ claims, has opined that the injuries attributed to plaintiffs by their physicians should have resolved in four to six months post-accident and that no further treatment is warranted. By this analysis, the Flemings have already been treated for twice the customary length of time. Moreover, CNA has alleged that the Flemings suffered similar soft tissue injuries in the past which add to the doubt surrounding the bona fide nature of the continuing claims. Under Judge Wettick’s approach, the adequacy of the plaintiffs’ proofs are challenged by the reports of Dr. Marmar. That being the case, an actual physical examination should assist the insurer in evaluating the claims. Certainly the amount in question is significant and justifies the order. Stated differently, a reasonable doubt exists as to the need for additional treatment. Likewise, the foregoing shows that a bona fide controversy exists as to the nature of plaintiffs’ injuries and an objective medical examination Should substantially aid the insurer in resolving the conflict. Good cause has been established. *428 Adequacy of the Court Record Plaintiffs challenge the adequacy of the record and point to the fact that CNA failed to pursue discovery pursuant to Pennsylvania Rule of Civil Procedure 209 and further, that no record hearing was held. We acknowledge that where the petition and answer demonstrate that factual disputes exist, the petitioner has the burden of pursuing discovery pursuant to Pa.R.C.P. 209. Keystone Insurance Company v. Caputo, 365 Pa. Super. 431, 529 A.2d 1134 (1987). Plaintiffs believe that their blanket denials of virtually all of the allegations set forth in CNA’s petition place the' facts alleged at issue. They are wrong. For instance, plaintiffs denied the allegations contained in paragraphs 8 and 9 as to the amount of medical bills paid by CNA, on the basis that they had no knowledge as to the truth of the allegation. Nevertheless, such an answer, though permitted by Pa.R.C.P. 1029(c), does not excuse a failure to admit or deny a factual allegation when knowledge of the fact is available to the party. Cercone v. Cercone, 254 Pa. Super. 381, 386 A.2d 1 (1978). Likewise, in response to paragraphs 16 and 17 which allege that each of the plaintiffs suffered similar soft tissue injuries in 1986, the Flemings denied the allegations as irrelevant and further averred that the injuries were not the same. These answers simply dodge the allegations; they do not properly deny them. More important than the foregoing, however, is that this motion and the plaintiffs’ answer thereto do not exist in a vacuum. The procéedings have been contentious and contested ever since the filing of the complaint and have proceeded through preliminary objections, a motion to strike preliminary objections, a motion to strike certain pleadings and two motions to compel physical examinations. The ear*429lier pleadings and the arguments held with respect to each provide additional background information as to the contested nature of this claim. The record is more than adequate in this case. Dr. Marmar’s Reports In paragraph 5 of CNA’s motion, they reference Dr. Marmar’s reports and attach them as exhibit B. The Flemings responded by claiming that they had no knowledge as to the validity of the reports and then opined that Dr. Marmar, as an M.D., is unqualified to pass judgment upon the treatment of a chiropractor. We believe it is safe to conclude without citation that a medical doctor is qualified to pass upon the treatment plan of a chiropractor. The appeal should be dismissed. . Act of February 12, 1984, P.L. 26, No. 11, §3, 75 Pa.C.S. §1796. . 75 Pa.C.S. §1796(a) provides in pertinent part: “(a) General rule — Whenever the mental or physical condition of a person is material to any claim for medical, income loss'or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. . .”
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opinion_xml_harvard
| 1,546 |
2022-12-02 17:47:18.964282+00
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020lead
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f
| 9,322,643 |
Ott
| null |
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f
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Published
| 0 |
Fleming v. CNA Insurance
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Fleming
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Fleming v. CNA Insurance Co
| null | null | null | null | null | null | null | null | null | 66,602,991 |
no. 90-04193
| 0 |
pactcomplmontgo
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ST
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f
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Montgomery County Court of Common Pleas
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Pennsylvania Court of Common Pleas, Montgomery County
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1,109,592 |
541 So.2d 910 (1989) Janice WILLIAMS v. EXXON CORPORATION, Oliver Mack and Neal Chellette. No. 87 CA 1272. Court of Appeal of Louisiana, First Circuit. February 6, 1989. Writ Denied April 17, 1989. *911 Glenn Marcel, Baton Rouge, for plaintiff-appellee Janice Williams. Kenneth Barnette, Baton Rouge, for intervenor-appellee St. Paul Fire & Marine Ins. Co. Myron Walker, Jr., Baton Rouge, for third party defendants-appellee Crotty Bros., Inc., Oakbrook Consolidated, Inc. and Szabo Food Service Co. William H. Bennett, III and Louise White, New Orleans, for defendant-appellant Exxon Corp. Before COVINGTON, C.J., and EDWARDS, CARTER, LANIER and LeBLANC, JJ. CARTER, Judge. This is an action for personal injury damages. FACTS On September 13, 1984, plaintiff, Janice Williams, was employed as a cook by Szabo Food Service Company (Szabo) and was assigned to the cafeteria in the Exxon plant in Baton Rouge, Louisiana. Shortly after arriving at the plant on September 13, 1984, plaintiff was returning to her work area from the restroom when she slipped and fell through a plate glass door located between the lobby and the cafeteria dining room. As a result of this fall, plaintiff suffered serious injuries to her left hand. On March 18, 1985, plaintiff filed this suit for personal injuries against Exxon Corporation and two of its employees who supervised the Exxon cafeteria, namely Oliver Mack and Neal Chellette. [1] Exxon answered plaintiff's petition, denying liability and asserting numerous defenses. Thereafter, Exxon filed a third party demand against Crotty Brothers, Incorporated (Crotty Brothers) and Oakbrook Consolidated, Inc. (Oakbrook), and Szabo, a principal operating division of Oakbrook. Exxon alleged that the third party defendants are liable to Exxon, pursuant to its indemnity contract with Szabo, for any judgment rendered against Exxon. *912 On June 10, 1986, St. Paul Fire and Marine Insurance Company, Szabo's worker's compensation insurer, filed a petition of intervention, seeking to recover the worker's compensation and medical benefits paid to plaintiff. After trial, the jury returned a verdict in favor of plaintiff and against Exxon. Pursuant to specific jury instructions, the jury determined that Exxon was at fault and that such fault was the cause of plaintiff's damages. The jury also determined that Szabo and plaintiff were not guilty of any negligence which caused plaintiff's damages. The jury then awarded plaintiff $604,000.00. Thereafter, judgment was rendered in favor of plaintiff and against Exxon for $604,000.00, together with court costs and judicial interest. Judgment was also rendered in favor of St. Paul Fire and Marine Insurance Company and against Exxon and plaintiff for $40,999.59, [2] plus all additional sums paid as weekly indemnity or medical payments, costs, and interest. The judgment also dismissed Exxon's third party demand for indemnification against Crotty Brothers, Oakbrook, and Szabo. On April 9, 1987, Exxon filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial, which was denied on June 19, 1987. From these adverse judgments, Exxon appeals, assigning the following errors: 1. The trial court erred in denying Exxon's Motion for JNOV and Motion for a New Trial. 2. The jury's finding that Exxon's fault was a legal cause of any damages sustained by plaintiff was error. 3. The jury's finding that plaintiff and Szabo were not guilty of any negligence which was a legal cause of any damages sustained by plaintiff was error. 4. The trial court erred in awarding excessive damages. 5. The trial court erred in excluding the accident report from evidence. 6. The trial court erred in dismissing Exxon's third party demand against Oakbrook, Crotty Brothers, and Szabo. Exclusion of Accident Report (Assignment of Error No. 5) Exxon contends that the trial court erred in refusing to allow the introduction of the accident report prepared by Szabo following plaintiff's accident. Exxon reasons that such report did not constitute hearsay. Hearsay evidence is generally inadmissible as being unreliable because it is based on statements made by persons who are not before the court, have not been sworn, and are not available for cross-examination. LaSalle Pump & Supply Co., Inc. v. Louisiana Midland Railroad Co., Inc., 433 So. 2d 745 (La.App. 3rd Cir.1982), writ denied, 435 So.2d 450 (La.1983). Louisiana courts have recognized the business records exception to the hearsay rule. A four-fold test is generally applied by the courts in determining whether or not business records are admissible in evidence. This test is (1) whether the person who himself made the record is unavailable for testimony or production of said person would be a needless burden; (2) the writing is the first writing reflecting the transaction; (3) the records are identified at trial by one familiar with the bookkeeping procedure used by the business keeping the records; and (4) the evidence is reliable. American Supply Co. of Morgan City, Inc. v. Genina Marine Services, Inc., 470 So.2d 964 (La.App. 1st Cir.), writ denied, 475 So.2d 1107 (La.1985); LaSalle Pump & Supply Co., Inc. v. Louisiana Midland Railroad Co., Inc., supra . See Herlitz Construction Company, Inc. v. Clegg Concrete, Incorporated, 378 So.2d 1002 (La.App. 1st Cir.1979). Further, when the trial judge rules that evidence is inadmissible, a proffer (offer of proof) can be made. LSA-C.C.P. art. 1636. It is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, *913 he cannot contend such exclusion was error. Engineered Mechanical Services, Inc. v. Langlois, 464 So.2d 329 (La.App. 1st Cir.1984), writ denied, 467 So.2d 531 (La. 1985); Grusich v. Grusich, 447 So.2d 93 (La.App. 4th Cir.1984); Jeffers v. Amoco Production Company, Inc., 405 So.2d 1227 (La.App. 1st Cir.1981). In the instant case, although Exxon attempted to introduce a copy of the accident report, Exxon failed to proffer such report after the trial judge determined that the evidence was inadmissible. Since Exxon failed to avail itself of the opportunity to proffer this evidence, it cannot now complain that such exclusion was error. Engineered Mechanical Services, Inc. v. Langlois, supra ; Canty v. Terrebonne Parish Police Jury, 397 So.2d 1370 (La.App. 1st Cir.), writ denied, 401 So.2d 988 (La.1981). This assignment of error is without merit. Factual Finding of Fault (Assignments of Error Nos. 2 & 3) Exxon contends that the trial court erred in finding that Exxon's negligence or strict liability was the legal cause of plaintiff's damages. Exxon reasons that the legal cause of plaintiff's damages was plaintiff's own negligence and/or the negligence of Szabo. The owner, or person having custody, of immovable property has a duty to keep such property in a reasonably safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. Farr v. Montgomery Ward and Company, Inc., 430 So.2d 1141 (La.App. 1st Cir.), writ denied, 435 So.2d 429 (La.1983); Haney v. General Host Corporation, 413 So.2d 624 (La.App. 1st Cir.1982); Boutte v. Pennsylvania Millers Mutual Insurance Company, 386 So.2d 700 (La.App. 3rd Cir.1980); Albritton v. J. C. Penney Company, Inc., 385 So.2d 549 (La.App. 3rd Cir.), writ denied, 393 So.2d 727 (La.1980). This duty is the same under the strict liability theory of LSA-C.C. art. 2317 as under the negligent liability theory of LSA-C.C. art. 2315. See Shipp v. City of Alexandria, 395 So.2d 727 (La.1981) and Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La. 1976). LSA-C.C. art. 2315 provides in pertinent part: Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. LSA-C.C. art. 2316 further provides: Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill. Under these articles, the elements of a cause of action in negligence are fault, causation, and damage. Buckley v. Exxon Corporation, 390 So.2d 512 (La.1980); Buxton v. Fireman's Fund Insurance Company, 422 So.2d 647 (La.App. 3rd Cir. 1982). To establish liability under LSA-C.C. art. 2317, a plaintiff bears the burden of proving three things: (1) the thing which caused damage was in the custody of the defendant; (2) the thing was defective (created an unreasonable risk of injury); and (3) the injury was caused by the defect. Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La. 1980); Loescher v. Parr, 324 So.2d 441 (La.1975); Carter v. Board of Supervisors of Louisiana State University, 459 So.2d 1263 (La.App. 1st Cir.1984), writ denied, 462 So.2d 1248 (La.1985); McSweeney v. Department of Transportation and Development of Louisiana, 442 So.2d 659 (La.App. 1st Cir.1983). The only difference between the negligent liability of LSA-C.C. art. 2315 and the strict liability of LSA-C. C. art. 2317 is the element of proof of the defendant's scienter. In negligent liability, the plaintiff must show that the defendant either knew or should have known of the defect, whereas under strict liability, the plaintiff is relieved of proving this element. Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982); Carter v. Board of Supervisors of Louisiana State University, supra ; Buchanan v. Tangipahoa *914 Parish Police Jury, 426 So.2d 720 (La.App. 1st Cir.1983). In both negligent and strict liability cases, the reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing. Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980). Under either theory of liability, the court must decide if the risk which causes the injury is within the ambit of protection of the duty. Hessifer v. Southern Equipment, Inc., 416 So.2d 368 (La.App. 1st Cir.), writ denied, 420 So.2d 982 (La.1982). See Entrevia v. Hood, 427 So.2d 1146 (La.1983). Further, a defendant's conduct is actionable under the duty-risk analysis where it is both a cause in fact of the injury and a legal cause of the harm incurred. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Fowler v. State Farm Fire & Casualty Insurance Co., 485 So.2d 168 (La.App. 2nd Cir.), writ denied, 487 So.2d 441 (La.1986). See South Central Bell Telephone Company v. Hartford Accident & Indemnity Company, 385 So.2d 830 (La.App. 1st Cir.), writ denied, 386 So.2d 356 (La.1980). The cause in fact test requires that but for the defendant's conduct, the injuries would not have been sustained. The legal cause test requires that there be a substantial relationship between the conduct complained of and the harm incurred. Sinitiere v. Lavergne, supra ; Fowler v. State Farm Fire & Casualty Insurance Co., supra . In the instant case, under either LSA-C.C. art. 2315 or LSA-C.C. art. 2317, Exxon owes a duty to maintain its premises in a reasonably safe condition. Under either theory of recovery, plaintiff must prove that a defect in the Exxon premises caused plaintiff's injuries. On September 13, 1984, plaintiff arrived at the Szabo cafeteria in the Exxon Refinery at about 5:00 a.m. Approximately one hour after arriving, plaintiff left the kitchen, traversed the dining area and lobby, and entered the restroom. A set of solid plate glass, aluminum-framed doors, which opened into the dining room, separated the dining area from the lobby. At the time plaintiff travelled through the doors on her way to the restroom, one of the doors had been propped opened and the other door had remained closed. On her way back to the kitchen, plaintiff slipped and fell, falling through one of the plate glass doors. Plaintiff testified that she did not see anything on the floor which caused her to slip and fall. She simply recalls falling through the glass door and cutting her hand when she attempted to break her fall. Plaintiff testified as follows: Q. Now, Janice, where on this doorassuming it has glass in itwhere on this door did your hand come in contact with the door? A. When I went into the door here my hands come in contact with the door here. I hit it and busted it out and knocked this out. Q. Let the record reflect that she pointed out an area which would be the lower third or the lower half of this metal plate which was on the left-hand side of the door and does not have glass. A. I was trying to catch. Q. Was there anything for you to catch hold of? A. No, there wasn't anything there. I was falling and I was trying to catch something. It wasn't nothing to catch on. * * * * * * Q. Now, Janice, if there had been a bar on that door at approximatelyI'm going to point out to you the spot which is the lower part of this plate, this metal plateif there had been a bar at approximately this spot, would you have been able to grab hold of that bar? A. It would have stopped me. It would have stopped my hand from going up into the glass. On cross-examination, plaintiff further described how the accident happened as follows: Q. Do I understand your testimony correctly then that your body basically knocked out the glass? A. No, not my body. *915 Q. What part of A. When I went into it like my knee went into burst it out, compact from my knee by me sliding and going into it, burst it out and by me trying to catch my hand caught those prongs. Q. So your knee is what hit the glass and broke it in that regard? A. Not just my knee, no. The compact from my knee and then when I hit it all the glass went out. Q. But your knee hit it first then your body weight was falling forward and you went through that door, isn't that right? A. No, I slid. Like I just kind of slid like and when my kneelike me trying to catch on my knee went first and then my body. Francis Abbott, assistant manager with Szabo, also testified at trial. He testified that Exxon owns the building and fixtures and that Szabo simply prepares and serves food at the site. Abbott was the supervisor on duty at the time of plaintiff's accident. Abbott further testified that for many years the glass doors had been propped open at all times, but that during the last year, the lobby doors had been locked and the doors were opened only when the cafeteria was opened for business. Shortly after the accident, Abbott carefully examined the area in which the accident occurred. He determined that there were no foreign substances on the restroom or lobby floors which could have caused plaintiff's fall. He also testified that the lobby floor was clean and dry, except for blood and glass which resulted from the accident. Scott B. Berry, general manager of Szabo, testified that he arrived at work shortly after the accident occurred. Berry also examined the floor, and, like Abbott, he did not find any foreign substance, other than blood and glass, in or around the area in which plaintiff fell. Berry also testified that Exxon owns the building and all of the fixtures inside the building. W.J. Evans, a licensed architect since 1949 and a licensed civil engineer since 1947, testified at trial on plaintiff's behalf. He was accepted by the court as an expert in architecture, including fire marshall regulations and the breakage tendencies of glass. Evans testified that the glass doors plaintiff fell through were made of ¼ inch polished plate glass. The doors were installed during 1949-50 and were substituted for the ½ inch solid tempered glass doors originally called for in the building plans and specifications. Evans did not know why the substitution was made, but stated that tempered glass doors were readily available at the time. Evans also stated that tempered glass doors were less expensive than plate glass doors. Evans also explained the differences in the breaking patterns of plate glass as opposed to tempered glass. He testified that tempered glass, because of its high compression, is difficult to break, but once broken it breaks into small pieces. Plate glass, on the other hand, is easier to break and separates into very irregular, jagged pieces with extremely sharp edges. He concluded that a person is more likely to receive serious injury from polished plate glass than from tempered glass. Evans further testified that there were no push bars on the doors, although they were required in the original plans and specifications and in the modified specifications. He stated that it was below industry standards not to have push bars on plate glass doors and that push bars would prevent a person from falling through the door. Evans opined that there are three distinct reasons for the inclusion of push bars on glass doors. First, push bars afford a place to push the door open. They also signal persons approaching that the doors are there. Finally, push bars act as guards to prevent walking or falling through the door. When asked if push bars would have prevented the accident, Evans asserted that, although there is no guarantee that the push bars would have prevented the accident, it was his opinion that plaintiff's injury would not have been as severe had push bars been in place. Evans also testified that it was widely known that plate glass doors were dangerous *916 in the early 1960's. By the mid 1960's building codes and regulations, which required the use of plate glass, mandated the use of push bars. He added that the law now requires the use of safety glass. Evans testified that, although the law did not require Exxon to replace the plate glass with safety glass, Exxon should have made the change out of concern for safety and that, regardless of the position of the doors (opened or closed), the plate glass was hazardous. Exxon presented the testimony of John L. Webb, an architect and engineer. Webb is licensed in several states including Louisiana and was accepted by the court as an expert in architecture. Webb testified that the original plans and specifications called for ¾ inch tempered glass doors known as Herculite doors, which were changed by modification of the building contract. He further testified that the original specifications included the use of push bars. Webb asserted that tempered glass has been available since Roman times, but that when the building was built (in 1950) it was common practice to use plate glass. Webb testified that it was also common practice in 1950 to install push bars on plate glass doors. Webb stated that the Life Safety Codes in effect at the time the building was constructed did not prohibit the practice followed by Exxon in construction, but acknowledged that compliance with the codes is done more or less on a voluntary basis. Webb testified that, in his opinion, the accident would not have been prevented by the use of push bars. Webb reasoned that the door did not cause plaintiff to fall, but merely got in her way as she was falling. Webb further testified that plaintiff's knee initially made contact with the plate glass door and actually caused the door to break. Plaintiff's hand merely came in contact with the door as she fell. Webb testified that he could not say that, had there been a push bar, she would not have been injured. Webb also testified that, in his opinion, the accident would not have been prevented if tempered glass had been installed instead of plate glass, primarily because the door did not cause plaintiff's fall. Webb acknowledged, however, that the use of tempered glass would lessen the possibility that a person falling into it would be cut. He also acknowledged that plaintiff's injuries would not have been as severe had the door been made of tempered glass. He stated that tempered glass has about four times the impact resistance as plate glass and, if tempered glass is broken, it breaks into small pieces. Webb further agreed that plaintiff's fall did not cause her injuries, but that her fall into the plate glass door caused them. Exxon also called Jerry W. Jones, chief architect for the State Fire Marshall's office. Jones has a degree in architecture and was licensed as a professional architect in 1984. Jones had been employed by the State Fire Marshall's office since 1981. The court accepted Jones as an expert in interpreting fire marshall regulations. Jones opined that the set of plate glass doors involved in the instant case complied with the fire marshall regulations in existence when the building was constructed. Jones testified that if he had inspected the doors in the cafeteria the day before plaintiff's accident, he would not have ordered Exxon to make any changes. On cross-examination, however, Jones acknowledged that he would not have ordered Exxon to make any changes because his office does not have the authority to order the removal of the doors. Jones stated that if he had known that the doors were made of plate glass, and not safety glass, he would have at least made a verbal recommendation to install safety glass. He further acknowledged that, if after inspecting the premises he felt the hazard was severe, he would have put his recommendation in writing. He also testified that plate glass doors were recognized as hazardous in the late 1960's and early 1970's, which prompted the Consumer Product Safety Commission to address the issue. In the instant case, the pivotal issue is whether the use of plate glass doors, without push bars, constitutes an unreasonable risk of harm. *917 Exxon contends that the jury erred in finding it was solely at fault. Exxon contends that plaintiff was solely at fault. In support of this contention, Exxon relies on Wilson v. Allstate Insurance Company, 278 So.2d 814 (La.App. 4th Cir.1973), Veillon v. State Farm Fire & Casualty, 424 So.2d 477 (La.App. 5th Cir.1982), and Miguez v. Urban Developments, Inc., 451 So.2d 614 (La.App. 5th Cir.), writ denied, 452 So.2d 1176 (La.1984). Exxon's reliance on these cases is misplaced, and each case is clearly distinguishable from the instant case. In Wilson v. Allstate Insurance Company, supra , the trial judge determined, and the appellate court affirmed, that plaintiff's own negligence was the proximate cause of her injuries. [3] The court stated: We are however of the opinion that Debra Lynn Wilson was negligent and that her negligence was the proximate cause of the accident. It is an uncontested fact that Debra knew the door was there as she herself closed it an hour beforehand. Having done so she is charged with the knowledge of its presence. She also admitted that the door was not invisible and could be seen from across the room. Therefore we are constrained to find that had Debra been exercising reasonable attention to her surroundings, the accident would not have occurred. [278 So.2d at 816]. Likewise, in Veillon v. State Farm Fire & Casualty, supra , the jury determined that although the individual defendant was negligent, his negligence was not a proximate cause of the accident. The jury determined that plaintiff was guilty of contributory negligence, which barred his recovery. [4] The court stated: Our finding of negligence on the part of the plaintiff is based upon the fact that, as stated above, while continuing to run he looked back over his shoulder to see if the other boy was still chasing him and turned to look forward just as he ran into the glass door. We are satisfied that under all of the circumstances here plaintiff would have run into the glass door even if it had contained decals, masking tape or similar devices to indicate the door was closed. Indeed, it appears he would have run into the door even if it had been made of wood instead of glass. Plaintiff's negligence was the sole proximate cause, or sole cause in fact, of the accident. Even assuming negligence on the part of the individual defendant, as the jury found, and further even assuming such defendant negligence was a proximate cause of the accident, which the jury correctly refused to find, plaintiff's contributory negligence would prevent any recovery. [424 So.2d at 478-479]. In Miguez v. Urban Developments, Inc., supra , the trial judge determined that the legal cause or cause in fact of the injury to plaintiff was a result of the fight in which he willingly participated. Accordingly, the trial judge found that victim fault and/or third party fault relieved defendants from strict liability. The court stated: In determining cause-in-fact, it must be decided whether the acts complained of were a substantial factor without which the accident would not have occurred. Head v. St. Paul Fire and Marine Ins. Co., 408 So.2d 1174 (La.App. 3rd Cir. 1982). The trial court's finding was obviously correct, and the only duty breached was the mutual obligation of Michael and Dudley to refrain from deliberately injuring one another. [451 So.2d at 616]. In the instant case, the evidence clearly established that plaintiff left her work area to use the restroom and, upon her return, slipped and fell into the plate glass door. The evidence also shows that there were no foreign substances on the restroom or lobby *918 floors which caused plaintiff to fall. From the evidence, it appears that plaintiff was carefully and cautiously returning to her assigned work area, was maintaining a proper lookout, and was proceeding in a safe and prudent manner, when she slipped and fell into the plate glass doors, seriously injuring herself. In determining liability, the jury determined that Exxon was solely at fault, which was the legal cause of plaintiff's damages. Generally, care should increase with the magnitude of the harm which might befall a victim. Large, thin, clear, transparent, untempered, plate glass doors, without any push bars, present such an obvious risk of serious injury that it must be considered hazardous. See Dixon v. Allstate Insurance Co., 362 So.2d 1368 (La.1978). The location of such glass doors in entry and exit openings designed as passageways in heavily travelled areas multiply the opportunities for serious accidents. Exxon further contends that its compliance with existing building codes is exculpatory. This alone, however, does not relieve Exxon of liability. While the use of plate glass did not violate any legislative enactments, which now prohibit the use of plate glass, and Exxon was not legislatively mandated to retrofit the doors, we consider the legislative enactments to have been a logical response to an attempt to protect persons from the dangers inherent in the use of plate glass doors. See Dixon v. Allstate Insurance Co., supra . Further, the testimony established that the use of plate glass, though not unlawful, was considered hazardous. See Morrison v. Clearview Medical Plaza, 357 So.2d 1386 (La.App. 4th Cir.), writ refused, 359 So.2d 622 (La.1978). The evidence at trial clearly established that the plate glass doors were in the custody of Exxon, that the plate glass doors created an unreasonable risk of harm, and that plaintiff's injury was caused by this defect. Further, the evidence also demonstrated that Exxon knew or should have known of such defect. Accordingly, we find that the jury properly determined that Exxon was solely at fault in causing plaintiff's damages. These assignments are without merit. Quantum (Assignment of Error No. 4) In this assignment of error, Exxon contends that the jury erred in assessing quantum. Exxon reasons that the award of $604,000.00 is excessive. We have a constitutional duty to review the law and facts and render a judgment on quantum based on the merits, determining whether the trier of fact abused the "much discretion" that the law accords it in awarding damages. LSA-Const. art. 5, § 10(B); LSA-C.C. art. 1999; Ard v. Samedan Oil Corporation, 483 So. 2d 925 (La.1986); Carollo v. Wilson, 353 So.2d 249 (La.1977); Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976); Sexton v. Louisiana Vacuum Services, Inc., 506 So.2d 780 (La.App. 1st Cir.1987). When we review either an in globo award or a particularized award, whether made by a trial judge or of a jury, we consider the legal sufficiency of the proof of the elements of damage that are claimed in the light of the discretion afforded the trier of fact to assess damage or damages. We consider what elements of damage were proved, the range of the amount that might have been assessed for each particular element, and whether the total for all elements (or the in globo amount) was within the trier of fact's discretion. Wactor v. Pickens Lumber Company, 505 So.2d 815 (La.App. 2nd Cir.), writ denied, 508 So.2d 827 (La.1987). See Mullin v. Vessier, 400 So.2d 1192 (La.App. 1st Cir. 1981). Further, a jury is granted great discretion in fixing an award for general damages which cannot be fixed with any degree of certainty, such as pain and suffering. In such cases, our review must be limited to a determination of whether the jury has abused its discretion, based on the circumstances of the case. Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977); Cage v. Shainberg's Stores of La., *919 413 So.2d 564 (La.App. 1st Cir.1982); Rheams v. McCray, 346 So.2d 834 (La.App. 1st Cir.1977); Averett v. Alexander, 336 So.2d 227 (La.App. 1st Cir.1976). And, since the jury does have much discretion in fixing damages, the appropriate procedure for testing whether the jury abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Cage v. Shainberg's Stores of La., supra ; Bevil v. Heath Timber Company, Inc., 347 So.2d 889 (La.App. 3rd Cir.1977). In the event the appellate court finds from the record an abuse of discretion, the award may be disturbed by lowering (or raising) it to the highest (or lowest) point which is reasonably within the discretion afforded the trier of fact. Ard v. Samedan Oil Corporation, supra ; Reck v. Stevens, 373 So.2d 498 (La.1979); Carollo v. Wilson, supra ; Coco v. Winston Industries, Inc., supra ; Sexton v. Louisiana Vacuum Services, Inc., supra . Accordingly, in the instant case, we must first examine the record to determine whether it reveals that the trial court abused its discretion in its award to plaintiff. If we find an abuse of discretion, the award should be reduced to the maximum amount or increased to the minimum amount which is reasonably within the discretion of the trial court. In the instant case, plaintiff testified that immediately after the accident, she and a co-worker went into the cafeteria to bandage her left hand, which was bleeding profusely. Plaintiff was then taken by Exxon's rescue unit to the Baton Rouge General Hospital, where medical personnel stitched plaintiff's wounds. After receiving treatment, plaintiff returned to Exxon. While there, her wounds again began to bleed. Dr. Nealy, Exxon's on-site physician, attempted to stop the bleeding and gave plaintiff medication for pain. Plaintiff saw Dr. Nealy for the next eight days. When Dr. Nealy removed the stitches from plaintiff's hand, plaintiff's wounds opened, and she again began to bleed. Thereafter, Szabo sent plaintiff to Dr. Joe Morgan, an orthopedic surgeon, who performed surgery on plaintiff's hand. Plaintiff testified that she remained awake during this surgery, although she was given a nerve block. Plaintiff further testified that she began having pain on the day of the accident and experienced extreme pain in her wrist daily. On the day of trial, plaintiff stated that she continued to experience pain on and off every day. The pain usually began in her wrist and split down into her two numb fingers. Although plaintiff had prescribed pain medication, she took aspirin during the day and utilized the pain pills only at night. Plaintiff explained that she refrained from using the prescription medication during the day because it induced drowsiness. Plaintiff further testified that although the aspirin does not completely alleviate her pain, it does reduce the pain to a tolerable level. Despite the medication, plaintiff has trouble sleeping at night because when she inadvertently touches her hand, shocking pain radiates up her arm. Plaintiff further testified that, after Dr. Morgan performed the initial surgery, her hand was placed in a cast, which extended to her elbow. She was thereafter hospitalized for almost eleven days because of an infection. While hospitalized, plaintiff received physical therapy which she described as follows: Q. During that time you were in the hospital what was done for your hand? A. He had taken all the stitches out and they would come get me every morning, take me down to therapy and put it in the whirlpool. Then she would come with a little thing and put my hand on it and then she would pick all the dead flesh and everything out of it. Q. What would she use to pick in it? A. Something about like that, it looked like big tweezers. Q. Did it cause you any pain? A. Yes, indeed. *920 Q. When your hand was open and she was doing that could you see any bone? A. I couldn't see nothing but looked like dead raw meat in it. They had to do it everyday. Plaintiff also underwent two subsequent surgeries. Plaintiff further testified that she underwent physical therapy three times a week from approximately October 18, 1984, until November 25, 1985. Plaintiff testified that the therapy consisted of placing her hand in a hot wax box, then placing her hand in a hot sand box for approximately thirty minutes. Thereafter, the therapist would massage plaintiff's hand and fingers and then have plaintiff exercise the hand. Plaintiff was often in pain to the point of screaming and crying. Plaintiff continues to do physical therapy at home. Plaintiff testified that after the accident her hand was swollen and remains several times larger than her uninjured hand. To reduce the swelling, plaintiff wears a Jobst glove. Plaintiff attempted to wear three different Jobst gloves until one was found which could be worn comfortably. The two earlier gloves constricted her hand, failed to reduce the swelling, and caused pain. Although the third glove does not keep plaintiff's hand from swelling, she is able to wear it without significant pain. The injuries plaintiff sustained have drastically changed her life. Prior to sustaining the injuries to her left hand, plaintiff enjoyed gardening, bike riding, and fishing, but she has been unable to do either since her accident. When plaintiff attempts to cook at home, if she inadvertently touches her left hand, she jerks from pain and burns herself. Further, she is unable to drive a vehicle and must depend on neighbors, friends, or the state van to make doctor appointments. Plaintiff does not drive herself because she fears that she will bump her hand, lose control of her vehicle, and injure someone. Further, plaintiff's hand has remained scarred, primarily on the top of her hand and wrist. Plaintiff has virtually no use of her left handshe cannot lift a book, pour milk out of a carton, or brush her hair or teeth. Plaintiff testified that because of her physical condition, she cannot return to her former job and cannot perform any task which requires the use of two hands or involves eight hours of activity because prolonged activity causes her left hand to swell. Dr. Joe Morgan also testified. Dr. Morgan first examined plaintiff on September 25, 1984. Plaintiff's history revealed that she had sustained a laceration on the back of her left wrist on September 14, 1984. The laceration was repaired at the emergency room at the Baton Rouge General Hospital. Dr. Morgan's examination showed that the index finger of plaintiff's left hand had been partially amputated from previous injury. He also observed a healing raised laceration on the back of the left wrist. There was also some weakness of extension of the index and middle fingers and the ring finger. X-rays of the hand revealed no abnormalities. Dr. Morgan's initial impression was that plaintiff had reactive synovitis and partial laceration of the extensor tendons to the index, long, and ring fingers of the left hand. Dr. Morgan recommended and performed surgery on September 26, 1984. The surgery revealed a partial laceration of the extensor tendon to the index finger. Dr. Morgan also found evidence of synovitis within the extensor tendons. Dr. Morgan placed plaintiff's hand in a plaster splint. Thereafter, plaintiff developed an infection, and on October 1, 1984, she developed drainage from the surgical site. Plaintiff was then admitted to the hospital to treat the infection and was discharged on October 11, 1984. Dr. Morgan testified that plaintiff initially had swelling from the accident and continues to experience swelling. He noted that the swelling appears to have increased over time and that the swelling plaintiff now experiences is greater than it was immediately after the accident. While treating plaintiff, Dr. Morgan observed that plaintiff was unable to make a fist with her left hand and prescribed physical therapy. Dr. Morgan testified that plaintiff underwent physical therapy on a *921 regular basis until April 1, 1985, when he performed another surgery on plaintiff's left hand. Dr. Morgan explained that: She had tenderness over the palmar aspect of her wrist, carpal tunnel area. Had a nerve conduction test performed that showed delay in the median nerve conduction. It was compatible with a carpal tunnel syndrome. I took her to surgery for release of that and I also did surgery on the back of her hand and wrist to try to help relieve the swelling and try to improve the drainage. She was improved for a while with that but it didn't last. Plaintiff subsequently returned to physical therapy on April 15, 1985, but she failed to improve. Dr. Morgan indicated that the shock-like sensations plaintiff experiences are due to an interruption of the sensory branch of the radial nerve, which probably occurred when she initially cut her hand. Dr. Morgan opined that nerve injury, which combined with the infection, probably caused the injuries plaintiff currently experiences. Dr. Morgan testified that he does not contemplate performing any additional surgeries because he does not feel that plaintiff will improve. In his opinion, plaintiff is currently experiencing sympathetic dystrophy, which is a condition of the autonomic nervous system. Dr. Morgan further testified: Q. Doctor, is it a reasonable alternative at this point to amputate her hand? A. I don't really think so, because if she had an amputation this condition of sympathetic dystrophy may just be transferred to an amputation stump. I don't think that that'sI would be very hesitant to recommend that. Q. So if you amputated her hand the pain would go up into her forearm? A. I couldn't predict that it wouldn't. Q. But you've seen and read cases of that happening? A. Well, we don't know how to cure sympathetic dystrophy completely. We know how to treat it, and some cases will respond and will recover and others won't. We have to be very cautious about operating on sympathetic dystrophy for not just adding to the problem. With regard to plaintiff's current disability, Dr. Morgan testified: Q. Doctor, I want to make sure I understand. The problems that Janice is currently having with her hand you foresee that she is going to probably have those for the rest of her life? A. Yes. Q. Doctor, is it your opinion that Janice is permanently disabled from performing manual labor? A. Manual labor as I understand manual labor is something that requires use of both hands, lifting, carrying, manipulating, gripping, releasing, and if I understand it to be that, yes, she is disabled from that. Terri Todd Wilton, a licensed occupational therapist, testified as an expert witness on plaintiff's behalf. Wilton testified that she first saw plaintiff on March 11 and 12, 1986. Initially Wilton performed the functional capabilities evaluation, which is a standardized evaluation consisting of seventeen different test items. The goal of the assessment is to determine the functional abilities of an injured person. Wilton explained what the tests are designed to measure as follows: In general what the test does is look at general cardiovascular fitness and endurance. We look at strength in her legs and her arms. We look at how well she can perform hand manipulation activities, how well she can use her arms and also her legs in many job activities. Our findings for Ms. Williams was that she had general decreased strength and endurance. Her number one weakness was her non-functional use of her left hand, and that was determined by a series of hand manipulation activities, testing her strength in that hand and just seeing how well she could use it to assist her right hand in any different activities. And that was her major limiting factor through the assessment. Specifically, the test results revealed that plaintiff performed adequately with her *922 right hand and could perform activities like walking, kneeling, stooping, etc. However, the tests performed with plaintiff's left hand revealed that her grip strength was functionally limited and that she was unable to perform coordination activities and overhead work. Wilton also measured plaintiff's hand on each day of her evaluation both before and after testing. The measurement had to be made manually with a tape measure because plaintiff's hand was too large to place into the volumeter. The measurements revealed that plaintiff's hand showed a marked increase in swelling after testing on each day. Wilton also testified that plaintiff often complained of pain during the tests. After complete evaluation, Wilton determined that plaintiff could not safely perform manual labor. Wilton testified that, even if the work involved using only her right hand, plaintiff could not perform the work because her left hand would inevitably be affected due to the pain and swelling. Wilton concluded that plaintiff could not be placed for employment. Dr. Jan W. Duggar, an economist, was called by plaintiff and was accepted by the court as an expert for purposes of computing lost wages. Dr. Duggar explained that his calculations would include past lost wages from the time of the injury until the date of trial and a separate calculation for future lost wages from the date of the trial until the end of plaintiff's expected worklife. Dr. Duggar estimated plaintiff's past lost wages to be $30,015.00. This figure included an allowance for certain fringe benefits, such as employer provided medical insurance, social security payments, and vacation pay. Dr. Duggar estimated plaintiff's future lost earnings to be $178,712.00, using a discount of 8% and a 6% increase factor. This figure was also based on an expected worklife of 17½ years (until plaintiff reached age 65). Dr. Duggar offered other figures based on different discount values and worklife expectancies. The lowest calculation made by Dr. Duggar was $109,623.00, and the highest calculation was $195,036.00. When added to past lost wages, total lost earnings (both past and future) are respectively $139,638.00, $208,727.00, and $225,051.00. Dr. Duggar acknowledged that these calculations did not include the cost of meals currently provided to plaintiff by her employer. Exxon called Dr. Kenneth J. Boudreaux, a professor of economics and finance at Tulane University, who was accepted as an expert economist. Dr. Boudreaux based his calculation of future lost earnings on a worklife expectancy of 8.87 years and used $10,440.00 as plaintiff's wage base. He estimated future lost income between $71,890.00 and $80,610.00 and past lost income at $26,098.00. Dr. Boudreaux rejected the age 65 basis for a worklife calculation. Instead, he used tables provided by the U.S. Government, which are reflective of the attrition of women from the work force. The tables included married women and all others who drop out of the work force for whatever reason. Dr. Boudreaux estimated that plaintiff's wages would have increased over her worklife from 2% to 5%. He based this estimate on a historical average income increase from as early as 1913. Dr. Boudreaux did not include any fringe benefits in his calculations. He testified, however, that fringe benefits are a valid consideration and that he did not use them because he did not know what they included. After thoroughly reviewing the entire record, we cannot say that the jury abused its much discretion in awarding quantum. The evidence established that plaintiff sustained a serious and painful injury to her left hand. The hand is physically deformed and has little or no functional value. Although the injury occurred in 1984, the medical evidence established that plaintiff would continue to suffer from pain indefinitely. The expert testimony established that plaintiff is unable to return to work as a manual laborer and has sustained lost wages, both past and future, of between approximately $98,000.00 and $225,000.00. *923 Considering all of the foregoing, we cannot say that the jury erred in awarding quantum based upon the circumstances of the instant case. This assignment is without merit. Motion for Judgment Notwithstanding the Verdict and, alternatively, For a New Trial (Assignment of Error No. 3) In this assignment of error, Exxon contends that the trial judge erred in denying its motion for judgment N.O.V. and, alternatively, for a new trial. A. Motion for Judgment N.O.V. The standard for a trial court to follow in granting a judgment N.O.V. is to determine whether, after considering all of the evidence in the light most favorable to the party opposed to the motion, the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict on the issue. Stafford v. Unsell, 492 So.2d 94 (La.App. 1st Cir.1986); Robertson v. Penn, 472 So.2d 927 (La.App. 1st Cir.), writ denied, 476 So.2d 353 (La.1985). In reviewing the granting of a motion for judgment N.O.V. on the issues of liability and damages, the appellate court must examine the record to determine whether the trial court's conclusions on liability and quantum were manifestly erroneous. Robertson v. Penn, supra . The ground for Exxon's motion for judgment N.O.V. was that the evidence at trial pointed so strongly and overwhelmingly in favor of Exxon that reasonable men could not have arrived at a contrary verdict. Exxon reasoned that the evidence on liability clearly showed that plaintiff's negligence was the sole proximate cause of the accident. Exxon further reasoned that the quantum award was excessive. Based upon our previous findings in assignments of error two, three, and four, we cannot say that the trial court's findings were manifestly erroneous. B. Motion for New Trial Further, peremptory grounds for granting a new trial in a jury case are present if it be proven that the verdict or judgment appears clearly contrary to the law and the evidence, there is newly discovered evidence which could not, with due diligence, have been obtained previously, or the jury was bribed or behaved improperly so that impartial justice has not been done. LSA-C.C.P. art. 1972. Otherwise, the trial judge is granted wide discretion in allowing or denying the motion. LSA-C.C.P. art. 1973. Miller v. Chicago Insurance Company, 320 So.2d 134 (La.1975); Conner v. Florida Farm Bureau Casualty Insurance Company, 446 So.2d 383 (La.App. 3rd Cir. 1984). In reviewing the grant or denial of a motion for new trial, we are bound to affirm absent clear error in the findings of fact or abuse of discretion in assessment of the award. Karl v. Amoco Production Company, 507 So.2d 263 (La.App. 3rd Cir.), writ denied, 512 So.2d 461 (La.1987); LeBlanc v. Gibbens Pools, Inc., 447 So.2d 1195 (La.App. 5th Cir.), writ denied, 450 So.2d 958 (La.1984). Exxon filed the alternative motion for new trial, contending that the quantum award was excessive and the verdict on liability was contrary to the law and the evidence. In the instant case, based upon our findings in assignments of error numbers two, three, and four, we cannot say that the trial judge erred in refusing to grant Exxon's motion for new trial. Third Party Demand (Assignment of Error No. 6) Exxon contends that the trial court erred in dismissing its third party demand for contractual indemnity against Szabo. Exxon reasons that under the indemnity agreement Szabo is liable for its proportionate share of fault in negligence as well as any and all strict liability. On or about May 22, 1982, Exxon and Szabo entered into an agreement wherein Szabo agreed to operate and provide food *924 services at the Exxon Refinery in Baton Rouge. The original contract provided for indemnification as follows: Contractor [Szabo] shall be responsible for any loss of or damage to existing structures and other property belonging to Owner [Exxon] or for which Owner is responsible (other than the Work) and for any loss or damage to property of others arising out of, or in connection with, or by reason of, Work done by Contractors, its employees, agents, representative, or subcontractors under this contract, expressly excepting any loss or damage caused by the sole negligence of Owner, its employees, agents, or representative. (emphasis added). Thereafter, on about July 2, 1982, the language of the indemnity agreement was amended to delete the word "sole." On appeal Exxon contends that under the amended indemnity agreement, Szabo should indemnify Exxon for any and all fault attributable to Szabo and for any and all strict liability. The Louisiana Supreme Court recently addressed the issue of indemnification in Soverign Insurance Company v. Texas Pipe Line Company, 488 So.2d 982 (La. 1986). In interpreting an indemnification agreement, which is substantially similar to the instant indemnification agreement, [5] the court stated: When a contract of indemnity makes no express provisions for indemnification against the consequences of the indemnitee's negligence, and an unequivocal intention to so indemnify cannot be found after interpreting each contractual provision in light of the whole contract and the general rules of contractual interpretation, the court will presume that the parties did not intend to hold the indemnitee harmless from such liability. On the other hand, this presumption does not apply to the question of whether the parties intended to indemnify against the indemnitee's strict liability under Civil Code article 2317. [488 So.2d at 983]. The court also found that strict liability was within the contemplation of the parties when they agreed that indemnity should cover each and every claim, demand or cause of action, and liability, except for those resulting solely from Texas' negligence. Soverign Insurance Company v. Texas Pipe Line Company, supra . In the instant case, the jury determined, and we agree, that plaintiff's damages were caused by the sole negligence of Exxon. As Exxon is 100% at fault, it is not entitled to indemnification under the contract. Accordingly, we find that the trial judge properly denied Exxon's third party demand for indemnification. CONCLUSION For the above reasons, the judgment of the trial court is affirmed in all respects. Exxon is cast for all costs. AFFIRMED. LeBLANC, J., dissents and assigns reasons. LANIER, J., dissents and joins in the reasons assigned by LeBLANC, J. LeBLANC, Judge, dissenting. We respectfully dissent, concluding the harm suffered by plaintiff was not within the ambit of protection of any duty owed to plaintiff by Exxon. *925 The majority opinion apparently predicates Exxon's liability both on theories of negligent liability under La.C.C. art. 2315 and strict liability under La.C.C. art. 2317. Regardless of which theory is relied upon for recovery, the court must initially determine what duties the defendant owed to the plaintiff, and then whether the risk which caused the injury was within the scope of these duties. Farr v. Montgomery Ward and Co., Inc., 430 So.2d 1141 (La.App. 1st Cir.) writ denied, 435 So.2d 429 (1983). The duties owed to the plaintiff are exactly the same under both theories of liability. Id. It is not seriously disputed that the use of plate glass doors such as those in this case falls below today's safety standards. The majority holds that by failing to replace the plate glass in the doors with safety glass, Exxon breached its duty to correct an unreasonably dangerous condition on its premises and is therefore liable for plaintiff's resulting injuries. We agree with the majority's statement of law to the effect that the owner of an unreasonably dangerous thing generally has a duty either to correct the unreasonably dangerous condition created by the thing or warn of its existence. However, the majority fails to properly recognize that this general rule has been legislatively modified to eliminate the duty to correct (by replacement with safety glass) the dangerous condition created by the use of plate glass doors which were installed before January 1, 1973. La.R.S. 40:1713 [1] made it unlawful for plate glass to be used in certain locations where people are commonly present. However, this provision specifically provided that its application was to be prospective only from its effective date of January 1, 1973. The doors involved herein were installed in 1949-50. The legislature's decision to make this provision prospective only was obviously based upon its balancing of competing interests, including the economic costs involved in replacing plate glass with safety glass in residential, commercial and public buildings throughout Louisiana. In view of the clear manifestation of legislative will evidenced by the provisions of La.R.S. 40:1713, we disagree with the majority's conclusion that Exxon had a duty to replace the plate glass doors with safety glass. The majority erred in finding Exxon liable on the basis that it breached this duty to plaintiff. Although Exxon as discussed above had no duty to replace the plate glass doors, it did have a duty to warn of the dangerous condition it created. The majority opinion does not examine this duty under a duty-risk analysis. From our own analysis, we conclude that plaintiff's injury did not fall within the scope of Exxon's duty to warn plaintiff. The duty to warn in situations involving plate glass doors is directed primarily to the possibility that unwary persons might mistake the closed glass doors as an open passageway and walk into them. See, Dixon v. Allstate Ins. Co., 362 So.2d 1368 , 1370 (La.1978). In this case, Exxon posted no warnings regarding the doors. However, we do not believe the risk that someone who was fully aware of the doors existence might stumble without apparent cause and fall through the doors was a risk which the duty to warn was intended to prevent. See, Dartez v. City of Sulphur, 179 So.2d 482 (La.App. 3rd Cir. 1965). Plaintiff's injuries occurred, not as a result of Exxon's failure to warn of the danger created by the existence of the doors, of which plaintiff was fully aware, but as a result of plaintiff's inexplicable fall. A warning of the doors condition obviously would not have prevented plaintiff from falling and receiving injuries. Even a general warning to proceed with caution, if defendant had a duty to give such a warning, would not have prevented plaintiff's injuries, since the record reflects *926 that plaintiff was walking in a safe and prudent manner when she stumbled and fell without any apparent cause. Accordingly, even though Exxon breached its duty to warn, it is not liable for plaintiff's injuries because the particular risk causing those injuries was not within the ambit of protection afforded by Exxon's duty to warn. Since plaintiff failed to establish that her injuries resulted from the breach of any duty Exxon owed to her, the jury erred in assigning any fault to Exxon. Judgment should have been rendered in favor of Exxon dismissing plaintiff's suit on the main demand. Since we find that plaintiff's main demand against Exxon should be dismissed, we further find that the third party demand for contractual indemnity against Szabo should be dismissed. Nevertheless, since the majority opinion addresses this issue, we feel compelled to analyze the majority's reasoning on this issue. The majority's analysis compares the pertinent contractual indemnification language in this case with the contractual indemnification language in Soverign Insurance Company v. Texas Pipe Line Company, 488 So.2d 982 (La.1986). The analysis notes that the indemnification language in Soverign is similar to the indemnification language in the present case. The analysis explains that in Soverign the Supreme Court found that the parties to the indemnification intended to include indemnification for the indemnitee's strict liability. Then, the focus of the majority opinion abruptly shifts to Exxon's negligence. The majority reasons that Exxon is not entitled to indemnification in the present case because the jury determined that plaintiff's damages were caused by the sole negligence of Exxon. Since the indemnification language in this case expressly excludes indemnification by Szabo of any loss or damage caused by the negligence of Exxon, the majority reasons that Szabo is not liable to Exxon for indemnification. However, the majority reasoning disregards the fact that it has premised Exxon's liability pursuant to the main demand on principles of strict liability as well as negligent liability. Furthermore, the majority misstates the jury's findings. The interrogatories show that the jury found Exxon to be legally at fault in causing the accident. The interrogatories made no distinction between negligent or strict liability. Thus, we feel the majority opinion fails to address the significant issue of whether the present contract provides indemnity by Szabo against Exxon's strict liability under La.C.C. art. 2317. NOTES [1] By order dated July 15, 1986, plaintiff dismissed, without prejudice, her claims against Neal Chellette and Oliver Mack. [2] At trial, the parties stipulated that, as of that date, St. Paul Fire and Marine Insurance Company had paid plaintiff worker's compensation and medical benefits totalling $40,999.59. [3] The accident in Wilson v. Allstate Insurance Company, 278 So.2d 814 (La.App. 4th Cir.1973), occurred on June 9, 1970, prior to the effective date of Acts 1979, No. 431, which amended and reenacted LSA-C.C. art. 2323 and changed our long existing law of contributory negligence to that of comparative negligence. [4] The accident in Veillon v. State Farm Fire & Casualty, 424 So.2d 477 (La.App. 5th Cir.1982), occurred on January 1, 1978. See footnote 3. [5] In Soverign Insurance Company v. Texas Pipe Line Company, 488 So.2d 982 (La.1986), the indemnity agreement provided as follows: Contractor [Atlas] shall fully defend, protect, indemnify and hold harmless the Company [Texas], its employees and agents from and against each and every claim, demand or cause of action and any liability, cost, expense (including but not limited to reasonable attorney's fees and expenses incurred in defense of the Company), damage or loss in connection therewith, which may be made or asserted by Contractor, Contractor's employees or agents, subcontractors, or any third parties, (including but not limited to Company's agents, servants or employees) on account of personal injury or death or property damage caused by, arising out of, or in any way incidental to, or in connection with the performance of the work hereunder, whether or not Company may have jointly caused or contributed to, by its own negligence, any such claim, demand, cause of action, liability, cost, expense, damage or loss, except such as may result solely from the Company's negligence. [1] La.R.S. 40:1713 provides as follows: It shall be unlawful within the State of Louisiana to knowingly sell, fabricate, assemble, glaze, install, consent or cause to be installed glazing materials other than safety glazing materials in, or for use in, any hazardous location, as defined herein above, after the effective date of this Part. This Part shall not be construed as being retroactive and shall become effective on January 1, 1973. This statute is part of La.R.S. 40:1711-1715 enacted by Acts 1972, No. 719.
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542 F.2d 539 10 ERC 1610 , 6 Envtl. L. Rep. 20 ,800 SAVE OUR INVALUABLE LAND (SOIL), INC., et al., Appellants, v. Colonel William R. NEEDHAM et al., Appellees, and City of Olathe, Kansas, et al., Intervenor-Appellees. No. 75-1511. United States Court of Appeals, Tenth Circuit. Argued and Submitted May 21, 1976. Decided Sept. 29, 1976. Arthur A. Benson, II, Kansas City, Mo., for appellants. Eva R. Datz, Dept. of Justice, Washington D.C. (Peter R. Taft, Asst. Atty. Gen., Washington D.C., E. Edward Johnson, U. S. Atty., Roger K. Weatherby, Asst. U. S. Atty., Topeka, Kan., and Jacques B. Gelin, Dept. of Justice, Washington D.C., on the brief), for federal appellees. F. Philip Kirwan, Kansas City, Mo. (Lyman Field, Kansas City, Mo., Joseph H. McDowell, Kansas City, Kan., Margolin & Kirwan, Washington D.C., of counsel; Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, Mo., on the brief), for intervenor-appellees. Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges. McWILLIAMS, Circuit Judge. 1 This is a suit to enjoin the Corps of Engineers from constructing the Hillsdale Dam on the Big Bull Creek in Miami County, Kansas. The action was instituted by Save Our Invaluable Land (SOIL), Inc., a non-profit organization organized under the laws of Kansas, whose members are, in the main, landowners who reside in the area of the proposed dam site. The gist of the complaint is that the Corps of Engineers has not complied with the requirements of the Federal Water Pollution Control Act, the National Environmental Policy Act, and the Water Supply Act. Named as parties defendant, in addition to the Corps of Engineers, were various administrative officers of the Environmental Protection Agency. By answer the federal defendants alleged compliance with the several acts of Congress with which we are here concerned, and attached to the answer a copy of the final Environmental Impact Statement (EIS) prepared by the Corps of Engineers in November 1971, and filed with the Council on Environmental Quality on February 2, 1972. 2 Trial of this matter was to the court, sitting without a jury, and after a four-day trial the judge found in favor of the defendants and dismissed the action. The trial court made elaborate findings and conclusions, consisting of some 43 pages. SOIL now appeals. We affirm. 3 On appeal SOIL raises essentially three points: (1) the trial court erred in finding that Section 102(b)(3) of the 1972 Amendments to the Federal Water Pollution Control Act did not apply to the Hillsdale Dam; (2) the trial court erred in concluding that the Corps's EIS met the requirements of the National Environmental Policy Act of 1969, and that the Corps otherwise met the requirements of the Fish and Wildlife Coordination Act of 1958; and (3) the trial court erred in concluding that the inclusion of storage for water supply as a project purpose met the requirements of the Water Supply Act of 1958, as amended. We shall discuss these several matters seriatim. 4 I. 1972 Amendments to the Federal Water Pollution Control Act 5 SOIL initially argues that the trial court erred in holding that Section 102(b)(3) of the 1972 Amendments to the Federal Water Pollution Control Act did not apply to the Hillsdale Dam. That section, which appears as 33 U.S.C. § 1252 (b)(3), reads as follows: 6 (3) The need for, the value of, and the impact of, storage for water quality control shall be determined by the Administrator, and his views on these matters shall be set forth in any report or presentation to Congress proposing authorization or construction of any reservoir including such storage. 7 The above quoted statute needs to be set in a bit of historical context. Prior to the 1972 amendments, storage of water for the purpose of controlling the quality of a stream was one method, though not the only one, authorized by Congress in its attack on the problem of water pollution. Under this particular approach water was stored to be released when the natural flow in a stream was low, thereby augmenting the stream flow and diluting the pollution entering the stream below the storage facility. This low flow augmentation did nothing to eliminate pollution, as such, but was only designed to keep pollution at acceptable levels. 8 In 1972 Congress shifted the emphasis to an elimination of the so-called point sources of pollution. Illustrative of this changed approach to the water pollution problem is 33 U.S.C. § 1252 (b)(1), which reads as follows: 9 (b)(1) In the survey or planning of any reservoir by the Corps of Engineers, Bureau of Reclamation, or other Federal agency, consideration shall be given to inclusion of storage for regulation of streamflow, except that any such storage and water releases shall not be provided as a substitute for adequate treatment or other methods of controlling waste at the source. 10 The Hillsdale Dam was authorized by Congress in 1954 as one segment of a nine-part reservoir system in the Osage-Marias des Cygnes River Basin in Kansas. In 1961, and again in 1966, the project was deferred for further study. The restudy was finally completed and the project entered the advanced engineering and design phase with Congress appropriating funds for such planning for fiscal years 1968 through 1972. On August 25, 1972, Congress appropriated funds to initiate construction of the dam. The 1972 Amendments to the Federal Water Pollution Control Act became law on October 18, 1972. It was in this setting that the trial court held that 33 U.S.C. § 1252 (b)(3) did not apply to the Hillsdale Dam. Under the circumstances, we agree. 11 In the instant case one of the purposes of the Hillsdale Dam was admittedly water quality control. Other purposes were flood control, water supply, recreation, and fish and wildlife. And each of these purposes, as well as other matters, was taken into consideration in arriving at a final cost/ benefit ratio. It is SOIL's position that the Corps of Engineers failed to comply with 33 U.S.C. § 1252 (b)(3) in that the EPA Administrator did not determine the need for, the value of, and the impact of storage for water control, nor were his views on these matters set forth in "any report or presentation to Congress proposing authorization or construction of any reservoir including such storage," as mentioned in the statute. As indicated, both the Corps, as well as the EPA, are of the view that § 1252(b)(3) does not apply to the Hillsdale Dam inasmuch as the authorization for the dam and its construction had cleared Congress before the enactment of § 1252(b)(3). 12 As above indicated, we are of the view that § 1252(b)(3) does not apply to the Hillsdale Dam. In support thereof, see, for example, Cape Henry Bird Club v. Laird, 359 F.Supp. 404 (W.D.Va.1973), aff'd on appeal, 484 F.2d 453 (4th Cir. 1973). In its affirmance the Fourth Circuit held that neither § 1252(b)(1) nor (3) applied to the dam there under consideration, because "(t)he dam is neither in the survey or planning stage, nor is it before Congress for authorization or construction. Those stages have long passed." The foregoing applies to the instant case with equal vigor, even though actual construction of the Hillsdale Dam was delayed by temporary impoundment of budgeted funds. The issue is not whether the Corps because of such delay could have complied with § 1252(b)(3), if it chose to do so. Rather the issue is whether under the circumstances, the Corps, and the EPA, were required to comply with § 1252(b) (3). We think they were not. 13 In further support of our holding, see also Environmental Defense Fund v. Tennessee Valley Authority, 371 F.Supp. 1004 (E.D.Tenn.1973), aff'd, 492 F.2d 466 (6th Cir. 1974). To the same effect, see Sierra Club v. Froehlke, 392 F.Supp. 130 (E.D.Mo.1975), where that court flatly declared that "the plain language of the statute ( 33 U.S.C. § 1252 (b)(1) and (3)) indicates that it is applicable only to projects which are in the planning or preauthorization stages." 14 We do not regard State of Ohio ex rel. Brown v. Callaway, 497 F.2d 1235 (6th Cir. 1974) to be apposite to the present problem. There the problem was primarily one of intervention. In any event, we believe that the result reached by the Fourth Circuit in Cape Henry Bird Club is the proper one and more properly fits the particular facts of our case. 15 As indicated, the interpretation we have given § 1252(b)(3) concerning its applicability to Hillsdale Dam is the interpretation which has heretofore been adopted by both EPA and the Corps. The interpretation given a statute by the administrative agency charged with its administration is entitled to weight. Such fact fortifies us in our conclusion that the interpretation which we give § 1252(b)(3) is " 'correct,' to the extent that any particular interpretation of a complex statute such as this is the 'correct' one." Train v. Natural Resources Defense Council, 421 U.S. 60 , 95 S.Ct. 1470 , 43 L.Ed.2d 731 (1975). 16 II. Sufficiency of the Environmental Impact Statement (EIS) 17 SOIL contends that the Corps has not complied with 42 U.S.C. § 4332 (A)(B) and (C). Sections (A) and (B) are, in a sense, declarations of policy, and to effectuate such policies, Section (C) requires that an environmental impact statement be filed on all major federal actions, and lists five specific matters to be covered in such statement. Section (C) is apparently designed to make certain that there be compliance with the statement of policy announced in Sections (A) and (B). In the instant case the Corps filed a 57-page EIS, which included some 32 pages of comments by other governmental agencies, both state and federal, together with the Corps's response to each comment. Such was not enough, asserts SOIL. We disagree. 18 Judicial review of an EIS is limited to a consideration of the following: (1) does the EIS discuss all of the five procedural requirements listed in 42 U.S.C. § 4332 (C); (2) does the EIS constitute a good faith compliance with the demands of NEPA; and (3) does the statement contain a reasonable discussion of the subject matter involved in the five respective areas? Sierra Club v. Stamm, 507 F.2d 788 (10th Cir. 1974) and National Helium Corporation v. Morton, 486 F.2d 995 (10th Cir. 1973), cert. denied, 416 U.S. 993 , 94 S.Ct. 2405 , 40 L.Ed.2d 772 (1973). Thus, in a real sense, an EIS is to be tested by the concepts of "good faith" and a "reasonable" discussion of the five mandated areas of subject matter. Perfection is not the test. Environmental Defense Fund v. Corps of Engineers of the United States Army, 470 F.2d 289 (8th Cir. 1972), cert. denied, 412 U.S. 931 , 93 S.Ct. 2749 , 37 L.Ed.2d 160 (1972). Nor should the courts in evaluating an EIS engage in hindsight judgment by way of second guessing. 19 Judged by the foregoing standard, our study of the EIS filed by the Corps in the instant case convinces us, as it did the trial court, that there was compliance with 42 U.S.C. § 4332 (A)(B) and (C). In sum, the Corps did consider the impact on the environment of the construction of the Hillsdale Dam, possible alternatives, and ways of easing the impact on the environment from the building of the dam. In preparing its EIS the Corps did not ignore the Fish and Wildlife Coordination Act of 1958, 16 U.S.C. § 661 , et seq. Also, the cost/benefit ratio was in our view adequately covered, when the EIS is considered in its entirety. Sierra Club v. Stamm, 507 F.2d 788 (10th Cir. 1974). We think the EIS was sufficient. III. Water Supply Act of 1958 20 SOIL's final contention is that the Corps has failed to comply with the Water Supply Act of 1958, as amended. 43 U.S.C. § 390 , et seq. Section 390b declares it to be the policy of the Congress to recognize that the primary responsibility for developing water supplies for local domestic use rests on "the States and local interests." In furtherance of this policy § 390b(b) provides that prior to the construction of any federal project which includes water supply provisions for present demands, "State or local interests shall agree to pay for the cost of such provisions." As regarding future water demands, that same section further provides that a certain per cent of the "total estimated cost of any project may be allocated to anticipated future demands when the State or local interests give reasonable assurance, and there is reasonable evidence, that such demands for the use of such storage will be made within a period of time which will permit paying out the costs allocated to water supply within the life of the project." 21 As mentioned at the outset, one of the purposes of the Hillsdale Dam is to store water for domestic use by the surrounding communities. It is agreed by the parties that, insofar as present demand is concerned, there is an existing contract between the United States and the State of Kansas acting through the Kansas Water Resource Board which requires state and local interests to pay for the cost of storage to meet such present demand. 22 The dispute here is over whether the State and local interests have given the Corps reasonable assurances as to anticipated future demand, and whether there is reasonable evidence on the basis of which the Corps could conclude that demands will be made within a period of time which will permit paying out the allocated costs within the life of the project. This particular matter was fully explored at the trial of this matter, and the trial court concluded, in effect, if not in so many words, that the Corps did have "reasonable assurances," and that there was "reasonable evidence" that there would be such future demand. SOIL suggests that this finding is not supported by the record and is indeed clearly erroneous. We do not agree. 23 As indicated, it is agreed that State and local interests have contractually agreed to pay for the project insofar as present demand is concerned. We think the record indicates that the Corps was also given " reasonable assurances" by these same State and local interests that there will be a future demand for water which will permit paying out the allocated costs within the life of the project, and that there was "reasonable evidence" to indicate that there would be such demand. In this regard we refer to the letter from the Kansas Water Resource Board, dated August 2, 1973, wherein the Board advised the Corps that it would have need for the project's anticipated water supply. That letter itself sets forth data which establishes the factual basis for the prediction. Moreover, a contract was later entered into between the State and local interests and the United States concerning both present and future water supply, and the payment thereof. All things considered, then, the record shows compliance with the Water Supply Act of 1958. 24 Judgment affirmed.
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opinion_html_with_citations
| 2,516 |
2011-08-23 09:01:16+00
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010combined
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f
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f
| 339,236 |
Barrett, Doyle, McWILLIAMS
| null |
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| 16 |
Save Our Invaluable Land (Soil), Inc. v. Colonel William R. Needham, and City of Olathe, Kansas, Intervenor-Appellees
| null |
SAVE OUR INVALUABLE LAND (SOIL), INC., Et Al., Appellants, v. Colonel William R. NEEDHAM Et Al., Appellees, and City of Olathe, Kansas, Et Al., Intervenor-Appellees
| null | null |
<parties id="b615-9">
SAVE OUR INVALUABLE LAND (SOIL), INC., et al., Appellants, v. Colonel William R. NEEDHAM et al., Appellees, and City of Olathe, Kansas, et al., Intervenor-Appellees.
</parties><br><docketnumber id="b615-14">
No. 75-1511.
</docketnumber><br><court id="b615-15">
United States Court of Appeals, Tenth Circuit.
</court><br><otherdate id="b615-16">
Argued and Submitted May 21, 1976.
</otherdate><br><decisiondate id="b615-17">
Decided Sept. 29, 1976.
</decisiondate><br><attorneys id="b616-10">
<span citation-index="1" class="star-pagination" label="540">
*540
</span>
Arthur A. Benson, II, Kansas City, Mo., for appellants.
</attorneys><br><attorneys id="b616-11">
Eva R. Datz, Dept, of Justice, Washington D.C. (Peter R. Taft, Asst. Atty. Gen., Washington D.C., E. Edward Johnson, U. S. Atty., Roger K. Weatherby, Asst. U. S. Atty., Topeka, Kan., and Jacques B. Gelin, Dept, of Justice, Washington D.C., on the brief), for federal appellees.
</attorneys><br><attorneys id="b616-12">
F. Philip Kirwan, Kansas City, Mo. (Lyman Field, Kansas City, Mo., Joseph H. McDowell, Kansas City, Kan., Margolin & Kirwan, Washington D.C., of counsel; Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, Mo., on the brief), for intervenor-appellees.
</attorneys><br><judges id="b616-13">
Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.
</judges>
| null | null | null | null | null | null | 620,225 |
75-1511
| 0 |
ca10
|
F
|
t
|
Tenth Circuit
|
Court of Appeals for the Tenth Circuit
|
4,086,341 |
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 382 KA 10-01179 PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER CHARLES J. ALLEN, ALSO KNOWN AS CJ, DEFENDANT-APPELLANT. (APPEAL NO. 1.) CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered December 10, 2009. The judgment convicted defendant, upon his plea of guilty, of arson in the third degree. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of arson in the third degree (Penal Law § 150.10 [1]). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (§ 140.20). We note at the outset that defendant’s contentions on appeal concern only the judgment in appeal No. 1, and we therefore dismiss appeal No. 2. With respect to the judgment in appeal No. 1, we reject the contention of defendant that his sentence violated the terms of the plea agreement (see People v Abdallah, 50 AD3d 1312, 1313; see also People v Tatro, 8 AD3d 823, 824, lv denied 3 NY3d 682). During the plea proceeding, the prosecutor stated that the People “would consider” any cooperation by defendant with respect to uncharged burglaries in determining whether to recommend a reduced sentence. The prosecutor, however, clearly indicated that defendant “should not plead [guilty] expecting anything other than” the promised maximum sentence, and County Court advised defendant of that maximum sentence before accepting his plea. The record belies the further contention of defendant that the People and the court failed to consider the extent of his cooperation with law enforcement prior to sentencing. Finally, we agree with defendant that his valid waiver of the right to appeal does not encompass his challenge to the severity of -2- 382 KA 10-01179 the sentence, inasmuch as he waived his right to appeal before he was advised of the maximum possible sentence (see People v Farrell, 71 AD3d 1507, lv denied 15 NY3d 804). We nevertheless conclude that the sentence is not unduly harsh or severe. Entered: March 23, 2012 Frances E. Cafarell Clerk of the Court
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opinion_html_with_citations
| 406 |
2016-10-08 00:06:55.012847+00
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010combined
|
f
|
f
| 4,309,080 | null | null |
C
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f
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Published
| 0 |
ALLEN, CHARLES J., PEOPLE v
| null | null | null | null | null | null | null | null | null | null | null | 4,475,855 |
KA 10-01179
| 0 |
nyappdiv
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SA
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t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
1,023,638 |
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6389 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus THOMAS FLOYD LITTLEJOHN, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:90-cr-231; 1:05-cv-00249) Submitted: August 30, 2007 Decided: September 6, 2007 Before MICHAEL, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas Floyd Littlejohn, Appellant Pro Se. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Thomas Floyd Littlejohn appeals the district court’s order denying his motion for relief from judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Littlejohn, Nos. 1:90-cr-231; 1:05-cv-00249 (W.D.N.C. Dec. 12, 2006). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 2 -
|
opinion_plain_text
| 180 |
2013-07-04 23:41:01.871702+00
|
010combined
|
f
|
f
| 1,023,638 | null | null |
C
|
f
|
Unpublished
| 0 |
United States v. Littlejohn
|
Littlejohn
| null | null | null | null | null | null | null | null | null | null | 2,075,816 |
07-6389
| 0 |
ca4
|
F
|
t
|
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
738,419 |
109 F.3d 770 Taylor v. Quest Care, Inc. *** NO. 95-6910 United States Court of Appeals, Eleventh Circuit. Feb 21, 1997 Appeal From: S.D.Ala. , No. 93-00700-CB-M 1 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3 ** Local Rule 36 case
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opinion_html_with_citations
| 40 |
2012-04-17 19:04:51+00
|
010combined
|
f
|
f
| 738,419 | null | null |
R
|
f
|
Published
| 0 |
Taylor v. Quest Care, Inc.
|
Taylor
| null | null | null | null | null | null | null | null | null | null | 1,166,598 |
95-6910
| 0 |
ca11
|
F
|
t
|
Eleventh Circuit
|
Court of Appeals for the Eleventh Circuit
|
1,924,524 |
122 Mich. App. 449 (1983) 332 N.W.2d 501 BULLARD v. TITUS CONSTRUCTION COMPANY Docket No. 56153. Michigan Court of Appeals. Decided January 19, 1983. Williams, Klukowski, Wood, Drew & Fotieo, P.C. (by Stephen R. Drew and Ronald C. Love), for plaintiff-appellee. Smith, Haughey, Rice & Roegge (by Craig R. Noland), for Titus Construction Company and Hartford Accident and Indemnity Company. Cholette, Perkins & Buchanan (by Edward D. Wells), for A.F. Murch Company and Pacific Employers Insurance Company. *451 Before: MacKENZIE, P.J., and D.E. HOLBROOK, JR., and D.S. DEWITT, [*] JJ. (ON REHEARING) D.S. DEWITT, J. We granted defendants A.F. Murch Company's and Pacific Employers Insurance Company's application for rehearing in this case to consider whether we incorrectly ordered the case remanded to the Workers' Compensation Appeal Board for a determination of whether plaintiff's two stepchildren are dependents in fact. We now conclude that remand was unnecessary. In this Court's original opinion, 118 Mich App 631 ; 325 NW2d 521 (1982), we concluded that plaintiff's two stepchildren did not fit within the conclusive presumption of dependency set forth in MCL 418.353(1)(a)(ii); MSA 17.237(353)(1)(a)(ii). However, MCL 418.353(3); MSA 17.237(353)(3) only permits an increase in the amount of disability payments when the number of conclusive dependents increases following the employee's injury. The statute does not provide for an increase for those dependent in fact upon the injured employee. Therefore, it is irrelevant, for purposes of an increase, whether plaintiff's children are, in fact, dependent upon him. Furthermore, under Gusler v Fairview Tubular Products, 412 Mich 270 ; 315 NW2d 388 (1981), reh gtd 414 Mich 1102 ; 323 NW2d 909 (1982), the issue of dependency is now moot. Gusler holds that only the maximum benefit is adjustable. Thus, plaintiff's benefits will not exceed two-thirds of plaintiff's average weekly wage irrespective of whether plaintiff has none or three dependents. The order remanding this case to the appeal board for a determination of whether plaintiff's children are dependents in fact is vacated. This case is remanded to the appeal board for further proceedings not inconsistent with this opinion. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.
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opinion_html_with_citations
| 355 |
2013-10-30 07:50:02.520259+00
|
010combined
|
f
|
f
| 1,924,524 |
DeWitt, Holbrook, MacKenzie
| null |
LU
|
f
|
Published
| 1 |
Bullard v. TITUS CONSTRUCTION CO.
|
Bullard
|
Bullard v. Titus Construction Company (On Rehearing)
| null | null |
<parties id="b467-4">
BULLARD v TITUS CONSTRUCTION COMPANY (ON REHEARING)
</parties><br><docketnumber id="b467-5">
Docket No. 56153.
</docketnumber><otherdate id="A9Tf">
Submitted September 28, 1982, at Lansing. —
</otherdate><decisiondate id="AW4">
Decided January 19, 1983.
</decisiondate><br><attorneys id="b468-10">
<span citation-index="1" class="star-pagination" label="450">
*450
</span>
<em>
Williams, Klukowski, Wood, Drew & Fotieo, P.C.
</em>
(by
<em>
Stephen R. Drew
</em>
and
<em>
Ronald C. Love),
</em>
for plaintiff-appellee.
</attorneys><br><attorneys id="b468-11">
<em>
Smith, Haughey, Rice & Roegge
</em>
(by
<em>
Craig R. Noland),
</em>
for Titus Construction Company and Hartford Accident and Indemnity Company.
</attorneys><br><attorneys id="b468-12">
<em>
Cholette, Perkins & Buchanan
</em>
(by
<em>
Edward D. Wells),
</em>
for A. F. Murch Company and Pacific Employers Insurance Company.
</attorneys><br><judges id="b469-2">
<span citation-index="1" class="star-pagination" label="451">
*451
</span>
Before: Mackenzie, P.J., and D. E. Holbrook, Jr., and D. S. DeWitt,
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
JJ.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b469-6">
Circuit judge, sitting on the Court of Appeals by assignment.
</p>
</div></div>
| null | null | null | null | null | null | 1,698,037 |
Docket 56153
| 0 |
michctapp
|
SA
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t
|
Michigan Court of Appeals
|
Michigan Court of Appeals
|
7,521,155 |
PER CURIAM. Affirmed. Stonewall Insurance Company v. Emerald Fisheries, Inc., 388 So.2d 1089 (Fla. 3d DCA 1980); Bass v. Aetna Casualty and Surety Company of Hartford, Connecticut, 199 So.2d 790 (Fla. 4th DCA 1967); Circle 4 Stables, Inc. v. National Surety Corporation, 451 S.W.2d 564 (Tex.Civ.App.1970).
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opinion_xml_harvard
| 46 |
2022-07-29 04:54:29.461307+00
|
020lead
|
t
|
f
| 7,591,858 |
Barkdull, Jorgenson, Schwartz
| null |
U
|
f
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Published
| 0 |
Ashby v. Hobojo Racing Stables, Inc.
|
Ashby
|
Brian R. ASHBY and/or Lloyd's Underwriters v. HOBOJO RACING STABLES, INC.
| null | null | null | null | null | null | null | null | null | 64,592,912 |
No. 81-1855
| 0 |
fladistctapp
|
SA
|
t
|
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
6,718,743 |
WESTENHAVER, J. Epitomized Opinion Young was' appointed ancillary receiver to proceedings in bankruptcy to the American Strawboard Co. After this appointment he filed a petition to make new parties defendant, to , marshal liens, sell and convert the bankrupt’s property into money. The defendant filed a motion to dismiss upon the ground that when a trustee in bankruptcy has been elected and qualified, full power to all the assets of the bankrupt’s estate, wherever situated, is at once vested in such trustee, and that the power and possession of the ancillary receiver of another jurisdiction is thereby ousted.. In overruling the motion, the court held: 1. Section 70a Bankruptcy Act vests a trustee by operation of law with the title of the bankrupt to all of his property and estate wherever situated, and this title relates back to the date the petition was filed. 2. An ancillary receiver may, before adjudication, be appointed in another jurisdiction and exercise the powers usually conferred in equity upon an auxiliary receiver. (Sec. 2, Par. 20, amendment to Bankruptcy Act.) 3. Where a U. S. district court’s ancillary jurisdiction has been invoked and exercised, it will retain that jurisdiction and fully and properly administer the estate within the jurisdiction for which a receiver has been appointed, notwithstanding Section 70a of the Bankruptcy Act. •Attorney — Willis Bacon, Akron, for plaintiff; Tolies, Hogsett, Ginn'& Morley, for defendant. 4. The manner and extent of the court’s ancillary jurisdiction depends upon the circumstances in each case. 5. If in this case, the court of primary jurisdiction, •or its duly elected and qualified trustee, desires this court to discharge its receiver and surrender the assets to its trustee, the latter may and should make application to this court, supported by sufficient reason.
|
opinion_xml_harvard
| 294 |
2022-07-20 22:50:58.107937+00
|
020lead
|
t
|
f
| 6,831,640 |
Westenhaver
| null |
U
|
f
|
Published
| 0 |
Young v. American Strawboard Co.
|
Young
|
YOUNG (Ancillary) v. AMERICAN STRAWBOARD CO.
| null | null | null | null | null | null | null | null | null | 63,813,363 |
No. 802
| 0 |
ohnd
|
FD
|
t
|
N.D. Ohio
|
District Court, N.D. Ohio
|
9,694,288 |
OPINION NEWMAN, Justice. The Commonwealth appeals the Superior Court’s Order of March 15,1994, vacating the judgment of sentence entered by the Court of Common Pleas of Philadelphia County (trial court) against Charles Gordon (Gordon) for receiving stolen property,1 and remanding the matter for a new trial. We reverse. FACTS The record reveals that on December 8, 1991, Philadelphia police officer Frank Pavgouzas received police radio information that a white male, approximately twenty years old with blond hair, wearing a .gray or brown jacket and jeans, had snatched a purse from Cathy Babe (victim). Officer Pavgouzas arrived at the crime scene, near Frankford and Cheltenham Avenues, within five minutes of receiving the call. The officer proceeded to a rear alley where an elderly man told him that a man fitting the description of the perpetrator had been living in an abandoned house down the alley. *69As Officer Pavgouzas walked through the alley, he observed a house that stood out from the rest of the row houses on the block because the exterior of the house was extremely dilapidated, there were no window treatments and knee-high weeds covered the yard. The rear door was open and the top door hinge had broken away from the door frame. Officer Pavgouzas entered the kitchen of the house and observed that the sink was filled with dirt, trash was piled throughout the room, and there were no kitchen appliances. When hearing a television in the next room, Officer Pavgouzas pushed aside a sheet hanging from a doorway leading to the dining room. The officer observed a near empty room with a television on a milk crate, a lamp, a “beer ball” and a black pocketbook lying on the floor. He saw no personal effects such as clothing, mail or other furniture in the room. Gordon, a blond-haired young man wearing a brown jacket and blue pants, was sitting on a mattress on the floor. Officer Pavgouzas ordered Gordon to stand up and the officer observed a blue change purse that was underneath Gordon on the mattress. The officer opened the blue change purse and found the identification of the victim. He ordered Gordon to leave the house, radioed the officer who was with the victim and asked him to bring the victim to the scene. She arrived and identified Gordon as the man who grabbed her purse, and she also identified the black pocketbook and blue change purse as her property. PROCEDURAL HISTORY Gordon filed a motion to suppress evidence found in the house. The Court of Common Pleas of Philadelphia County, sitting as a suppression court (suppression court) denied Gordon’s motion to suppress, holding that the warrantless search of the house did not violate Gordon’s rights under either the Fourth Amendment of the U.S. Constitution or Article I, Section 8 of the Pennsylvania Constitution. Following a non-jury trial, the trial court found Gordon guilty of receiving *70stolen property, but acquitted him of robbery2 and simple assault.3 The trial court denied Gordon’s post-verdict motion challenging the constitutionality of the warrantless search of the house and sentenced him to five years of probation. The Superior Court reversed the suppression court’s denial of Gordon’s motion to suppress, vacated the trial court’s judgment of sentence and remanded the matter for a new trial.4 The Superior Court held that the police violated Gordon’s right to be free from unreasonable governmental searches and seizures under Article I, Section 8 of the Pennsylvania Constitution. The Commonwealth filed a timely Petition for Allowance of Appeal challenging the Superior Court’s conclusion that Gordon had a constitutionally protected zone of privacy in a room of an abandoned house. ISSUE We must decide whether an individual has a reasonable and legitimate expectation of privacy in a room of an abandoned5 house under Article I, Section 8 of the Pennsylvania Constitution. DISCUSSION Article I, Section 8 of the Pennsylvania Constitution provides as follows: Security from Searches and Seizures Section 8. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. *71Evidence discovered as a result of a search that violates the fundamental constitutional guarantees of Article I, Section 8 will be suppressed. Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539 (1991). We note that in Pennsylvania any defendant charged with a possessory crime, including receiving stolen property, has automatic standing to challenge a search and seizure under Article I, Section 8. Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). In Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993), we held that a warrantless police search of an abandoned storefront does not violate Article I, Section 8 of the Pennsylvania Constitution. In Peterson, a police officer approached a “gate house” to make a controlled purchase of cocaine using a ten dollar bill marked with indelible ink, which was activated by perspiration to become blue dye.6 After exchanging the ten dollar bill for a package of white powder, police entered the gate house without a warrant and found the defendant in a back room with blue dye on his body. The trial court denied the defendant’s motion to suppress, found him guilty of delivery and possession with intent to deliver cocaine, and sentenced him to three to six years imprisonment. The Superior Court affirmed the judgment of sentence. On appeal, we analyzed the defendant’s claim that the police violated his rights under Article I, Section 8 of the Pennsylvania Constitution using a twofold test. That test requires a person to (1) have exhibited a subjective expectation of privacy and (2) have demonstrated that the expectation is one that society is prepared to recognize as reasonable and legitimate. Peterson. The defendant bears the burden of proving that his subjective expectation of privacy is one that society is willing to recognize as legitimate.7 Id. The defen*72dant must establish more than just a subjective expectation of freedom from intrusion, because [a] burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’ Peterson, 535 Pa. at 500, 636 A.2d at 619, quoting Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978). We consider the totality of the circumstances and carefully weigh the societal interests involved when determining the legitimacy of such an expectation. Peterson. Particularly, a defendant must establish a possessory interest, a legitimate presence, or some “factor from which a reasonable and justifiable expectation of privacy could be deduced” to prove that this subjective expectation of privacy is legitimate. Peterson, 535 Pa. at 501, 636 A.2d at 619. In Peterson, we referred to Commonwealth v. Cameron, 385 Pa.Super. 492, 561 A.2d 783 (1989), alloc. denied, 525 Pa. 576, 575 A.2d 108 (1990), a Superior Court case with a similar fact pattern. The Superior Court in Cameron overruled the trial court, who granted the defendant’s motion to suppress evidence found by the police when they entered an abandoned house without a warrant. After finding packets of cocaine that Cameron had thrown behind a couch, the police arrested him. The trial court granted the defendant’s motion to suppress, holding that the presence of a working television, a couch and food exhibited that the abandoned house was a dwelling place and was accordingly protected by Article I, Section 8. When reversing the trial court, the Superior Court acknowledged that Cameron manifested a subjective expectation of privacy by keeping a television, couch and food in the abandoned house. However, the Superior Court held that while Cameron did not need to show a property interest, he did need to establish some legal or defacto right to control the premises at issue to establish a reasonable and legitimate expectation of privacy. Because there was no evidence of Cameron’s right to control the house, the Superior Court concluded that society was not willing to recognize his subjec*73tive expectation of privacy in the abandoned house as legitimate. Similar to Cameron, the defendant in Peterson did not establish either a possessory interest, a legitimate presence or a characteristic of ownership in the abandoned storefront from which society could recognize an expectation of privacy. Thus, he did not prove that his expectation of privacy was legitimate. As this legitimacy is the “sine qua non for establishing that the government’s intrusion was unlawful,” Peterson, 535 Pa. at 501, 636 A.2d at 619, we held that the warrantless police entry into an abandoned storefront where drugs were being sold did not violate Article I, Section 8’s prohibition against unreasonable searches and seizures. Peterson. With this analysis in mind, we now examine the suppression court’s decision to deny Gordon’s motion to suppress the evidence discovered in the dining room of the abandoned house. When reviewing the suppression court’s denial of a motion to suppress, the “appellate court’s responsibility is to determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings.” Peterson, 535 Pa. at 496, 636 A.2d at 617. Here, the suppression court concluded that although Gordon may have had a subjective expectation of privacy in a room of the abandoned house, he did not carry his burden of proving that his subjective expectation of privacy is one society is willing to recognize as legitimate. At the suppression hearing, Gordon did not present any witnesses and the Commonwealth presented only one witness, Officer Pavgouzas. Gordon asserts that the officer’s testimony concerning the presence of a sheet separating his room from the rest of the house, electricity, a mattress and a television, was sufficient to prove that he had a subjective expectation of privacy in the dining room of the abandoned house. We do not disagree. However, Gordon must also establish that his subjective expectation of privacy is legitimate before we will declare the *74warrantless police search of the dining room to be a violation of his rights under Article I, Section 8. As previously discussed, to prove a legitimate expectation of privacy in a structure, a defendant must establish that he has either a possessory interest or a legitimate presence, or he must establish some factor from which a reasonable and justified expectation of privacy can be deduced. Peterson. Here, Gordon concedes that he had no property interest in the abandoned structure. Gordon has never argued that he had an ownership interest such as seisin or adverse possession. Also, there was no evidence that Gordon had a legal right to enter or use the building or that he was legitimately on the premises. We will therefore examine the totality of the circumstances to determine if Gordon established some possessorybased factor from which we could find a reasonable expectation of privacy. Id. Gordon argues that his obvious and known use of the vacant building as a dwelling place created a reasonable and legitimate expectation of privacy thus invoking the protections of Article I, Section 8. Gordon suggests that if a structure looks like it is being used as a home, then it is a home. However, we held in Peterson that mere use of property, as exhibited by the presence of attributes of a home, is not a sufficient characteristic of ownership that would evidence a legitimate expectation of privacy protected by Article I, Section 8. Accordingly, Gordon must identify some other factor from which we can ascertain a legitimate expectation of privacy. In analyzing whether a claimant has established a factor from which society could find a legitimate expectation of privacy, we are guided by the U.S. Supreme Court, which noted: One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch.l, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations *75of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest.... But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment. Rakas v. Illinois, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12 (1978). Therefore, a defendant can establish a legitimate expectation of privacy, despite lacking a common-law interest in the real property, if he demonstrates certain characteristics of ownership. Among the critical characteristics of ownership is the right to exclude others from the premises in question. Rakas; Cameron. Here, for example, the Superior Court concluded that the sheet hanging from the doorway in the kitchen effectively closed the room off from the rest of the house and society. The Superior Court clearly interpreted the presence of the sheet as an indication of Gordon’s right to exclude other people from the dining room in the abandoned house. However, we do not agree that Gordon sustained his burden of proving that the sheet served to exclude others from the dining room. Gordon did not present any testimony that he excluded other people living in the house from the dining room. Furthermore, as there was no testimony that Gordon hung the sheet himself, there was no reason for the Superior Court to conclude this sheet evidenced Gordon’s right to exclude others. Finally, Gordon’s claimed exclusion of the public from the dining room is implausible because the evidence revealed that the house had an unlocked, open exterior door. Thus, Gordon failed to produce sufficient evidence that the sheet hanging in the interior doorway of the open abandoned house exhibited his right to exclude others from the room in which he was claiming a legitimate expectation of privacy. In the alternative, Gordon urges this Court to recognize a legitimate expectation of privacy in the room of the *76abandoned house to respect the dignity of the homeless. However we find Gordon’s argument on behalf of the homeless disingenuous in light of Gordon’s testimony that he has a residence and a job. He testified at the sentencing hearing that he lives with his common-law wife and their three children at his wife’s grandmother’s house. Additionally, his attorney indicated at the sentencing hearing that Gordon’s family life is so stable that house arrest during his probation was not necessary. Also, Gordon testified at trial that he was a self-employed electrician who earned between $200.00 and $300.00 a week in non-reported income. Consequently, Gordon’s advocacy on behalf of the homeless rings hollow. We conclude that, like the defendants in Cameron and Peterson, Gordon here has failed to prove that he has either a possessory interest, a legitimate presence or any factor from which society could recognize a reasonable expectation of privacy in the room in the abandoned house. Thus, we agree with the suppression court that although Gordon may have established a subjective expectation of privacy in the dining room of the abandoned house, he did not meet his burden of proving an expectation of privacy that society is willing to recognize as legitimate.8 Therefore, the officer’s warrantless search of the house did not violate Gordon’s rights under Article I, Section 8 of the Pennsylvania Constitution. The suppression court properly denied Gordon’s Motion to Suppress. Accordingly, we reverse the Order of the Superior Court and reinstate the trial court’s judgment of sentence. NIX, Former C.J., did not participate in the consideration or decision of this case. ZAPPALA, J., concurs in the result. FLAHERTY, J., files a dissenting opinion. . 18 Pa.C.S. § 3925. . 18 Pa.C.S. § 3701. . 18 Pa.C.S. § 2701. . Commonwealth v. Gordon, 433 Pa.Super. 157, 640 A.2d 422 (1994). . The identity of the title holder of the house here is not of record. There was no evidence presented that the title holder had asserted his property rights against Gordon. Hence, we will concentrate only on Gordon’s alleged rights in the house. . A gate house is an abandoned structure used by drug dealers to exchange money and drugs. Heavily fortified metal grates over the windows prevent the buyer and seller from seeing each other. . This does not alter the Commonwealth's burden of proving at the suppression hearing that the government’s search did not violate the rights of the defendant. Pa.R.Crim.P. 323(h); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979). . We do not decide whether under other circumstances an individual living in an abandoned structure might demonstrate a legitimate expectation of privacy under Article I, Section 8.
|
opinion_xml_harvard
| 2,821 |
2023-08-25 17:34:59.04981+00
|
020lead
|
f
|
f
| 1,907,753 |
Cappy, Castille, Flaherty, Former, Newman, Nigro, Nix, Zappala
| null |
LU
|
f
|
Published
| 31 |
Commonwealth v. Gordon
|
Com.
|
COMMONWEALTH of Pennsylvania, Appellant, v. Charles GORDON, Appellee
| null | null |
<citation id="b189-6">
683 A.2d 253
</citation><br><parties id="b189-7">
COMMONWEALTH of Pennsylvania, Appellant, v. Charles GORDON, Appellee.
</parties><br><court id="b189-10">
Supreme Court of Pennsylvania.
</court><br><otherdate id="b189-11">
Argued April 30, 1996.
</otherdate><decisiondate id="AJb">
Decided Sept. 16, 1996.
</decisiondate><otherdate id="Ax0">
Reconsideration Denied Feb. 18, 1997.
</otherdate><br><attorneys id="b192-6">
<span citation-index="1" class="star-pagination" label="68">
*68
</span>
Catherine Marshall, Joan Weiner, Philadelphia, for Commonwealth.
</attorneys><br><attorneys id="b192-7">
John W. Packel, Stuart B. Lev, Philadelphia, for Charles Gordon.
</attorneys><br><judges id="b192-8">
Before FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
</judges>
| null | null | null | null | null | null | 1,501,247 | null | 0 |
pa
|
S
|
t
|
Supreme Court of Pennsylvania
|
Supreme Court of Pennsylvania
|
3,922,361 |
Appellant filed this suit against appellee in one of the justice's courts of Jefferson county to recover damages, alleging that he was a subscriber to appellee's telephone system in the city of Port Arthur, and that appellee wrongfully cut out his phone and kept it cut out for a period of three days; that appellant's wife was in ill health at the time, and frequently used the phone to communicate with her physician and for ordering medicine and other things, as well as for communicating with appellant when she would feel uneasy about her condition, and also that appellant used the phone for the purpose of communicating with his wife while absent from home, and at his place of business. It was then alleged that appellee knew of Mrs. Stripling's ill health, and that she needed the phone for the uses aforesaid, and that she would be greatly annoyed and inconvenienced if the phone should be cut out, and that appellant would be annoyed and inconvenienced also, but that, notwithstanding appellee's knowledge of such facts, it caused the phone to be cut out, and kept it cut out for a period of three days, claiming as its reason for doing so that appellant was in arrears for his phone service, but that, in fact, such claim was false and untrue. Appellant further alleged that in consequence of his phone being cut out and being deprived of the use of it, he was caused to lose time from his employment, and thereby sustained a loss of $16.20. He further alleged that, according to his contract price for the phone service, he was entitled to recover from appellant 25 cents, by reason of the fact that the phone was cut out for a period of three days. He prayed for judgment in the aggregate of $195.25. Appellee answered by general demurrer and general denial. On trial in the justice's court, verdict was returned in favor of appellant, Stripling, for $195.25, the full amount sued for, and judgment was entered accordingly. From that judgment, the appellee, the telephone company, appealed to the county court at law, and, upon trial in the latter court with a jury, verdict was returned in favor of appellant for $16.20. We cannot tell from the record how the county judge submitted the case to the jury, there being no intimation whether it was by a general charge or upon special issues. After his motion for new trial in the county court was overruled, appellant prosecuted an appeal to this court. On the trial of the case it was shown, without dispute, that appellant was not in arrears for his phone service, as was claimed by appellee, and that his phone was cut out for a period of three days because of a mistake of some employé in appellee's office. It was also shown by appellant's evidence (and the effect of the jury's verdict is to affirm that showing) that appellant lost $16.20 worth of time in consequence of appellee's wrongful act in cutting out his phone. It was further shown that, according to the contract price for the rent of the phone, which had been paid in advance to appellee, appellant was entitled to recover 25 cents for the three days that the phone was cut out. This element was pleaded by appellant, and, upon the admitted facts, as reflected by this record, he should have been awarded recovery for this additional 25 cents, making in all $16.45. This matter was called to the trial court's attention in appellant's motion for a new trial, and his claim in that regard should have been conceded by appellee, but it was not, and appellant insists in this court that we should reverse and remand the case upon this ground alone. After carefully reviewing the record, we have concluded that it is not necessary to reverse and remand the case on account of this small matter, but can correct it by reforming the judgment. Appellant next insists that the judgment should be reversed, because the jury acted arbitrarily and in the face of the undisputed evidence before them in not awarding appellant damages because of the inconvenience and annoyance suffered by himself and wife in consequence of appellee's wrongful *Page 631 act in cutting out and depriving them of the use of their phone. Both Mr. Stripling and Mrs. Stripling were witnesses on the trial below, and both testified to the alleged inconvenience and annoyance, and their testimony in this connection was sufficient to warrant a finding by the jury in their favor as to this element, but would not compel such a finding, they being interested parties. It has often been held in this state that a jury is not compelled to give credence to the evidence of an interested witness or to that of a party to the suit, and the jury in this case, as is reflected by the verdict, concluded that no substantial damage was suffered by Mr. and Mrs. Stripling because of inconvenience and annoyance in being deprived of the use of their phone during the three days it was cut out. We therefore overrule appellant's contention on this point. What we have said has the effect to dispose of all contentions found in appellant's brief, and requires no further mention of any of them. The trial court's judgment is reformed to the extent of allowing appellant recovery of an additional 25 cents, making the judgment in appellant's favor $16.45, and as so reformed is affirmed, and the costs of this appeal are adjudged against the appellee.
|
opinion_html_columbia
| 931 |
2016-07-06 09:49:14.173239+00
|
020lead
|
f
|
f
| 4,156,976 |
Hightower
| null |
ZU
|
f
|
Published
| 0 |
Stripling v. Southwestern Bell Telephone Co.
|
Stripling
|
Stripling v. Southwestern Bell Telephone Co.
| null | null |
<parties id="b642-4">
STRIPLING v. SOUTHWESTERN BELL TELEPHONE CO.
</parties><docketnumber id="ACZ4">
<em>
(No.
</em>
1015.)
</docketnumber><br><court id="b642-5">
(Court of Civil Appeals of Texas. Beaumont.
</court><br><decisiondate id="b642-6">
Nov. 30, 1923.)
</decisiondate><attorneys id="AVqd">
J. E. Rose, of Port Arthur, for appellant.
</attorneys><br><attorneys id="b642-13">
R. E. Masterson, of Beaumont, for appel-lee.
</attorneys>
| null |
Appeal from Jefferson County Court; D. P. Wheat, Judge.
Action by J. J. Stripling against the Southwestern Bell Telephone Company. From a judgment for plaintiff in an unsatisfactory amount, he appeals. Reformed and affirmed.
| null | null | null | null | 4,029,118 |
No. 1015.
| 0 |
texapp
|
SA
|
t
|
Court of Appeals of Texas
|
Court of Appeals of Texas
|
7,354,092 |
No opinion. Judgment affirmed, with costs. Order filed.. See, also, 144 N. Y. Supp. 1117.
|
opinion_xml_harvard
| 15 |
2022-07-26 03:31:26.047709+00
|
020lead
|
t
|
f
| 7,434,132 | null | null |
U
|
f
|
Published
| 0 |
Gardner v. Kelly
|
Gardner
|
GARDNER v. KELLY
|
<p>Action by John M. Gardner and others against Ann Kelly, as administratrix, impleaded with John Q. Adams.</p>
| null | null | null | null | null | null | null | null | 64,425,352 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
6,180,733 |
Hugh S. Coyle, J. The plaintiff landowner brings this action in equity to enjoin and restrain defendants, sued individually, and as the Board of Education of Union Free School District No. 5 of the Village of Ardsley, from casting and diverting surface drainage waters from defendant’s school property into a pond located to the north of land of the plaintiff, and in which pond or lake the plaintiff has certain easement rights. Alternative relief for money damages in the sum of $25,000 is claimed by the plaintiff. It has been stipulated by the attorneys for the respective parties that the action is to be determined upon the question of damages resulting from the casting of surface waters only upon plaintiff’s premises. The action was tried by the court without a jury and the facts show that plaintiff acquired title to his property in September of *3401952. By the deed of conveyance he was granted easements in, and to, a pond covering about one acre of land located as aforesaid to the north of plaintiff’s land. Said pond has a depth of from 1 to 10 feet, is oval in shape and extends for approximately 160 feet along plaintiff’s land and is separated from plaintiff’s land by a dam or dike on one face of the pond. The easement rights as contained in plaintiff’s deed are as follows: ‘ ‘ The above described premises are conveyed subject to the fact that the above premises border on or touch upon a pond, and it is agreed between the grantors and grantees that all owners of land bordering upon or touching upon the pond shall have a common casement to the said pond area and that no person owning land which abuts the said pond shall change the contours or depth of the said pond without the written consent of all owners of other lands abutting the said pond ”. It should be observed that the land of the defendant does not physically abut the pond, and the waters draining from defendant’s property cross under a roadway through and under lands of others into the pond. At the end of the pond nearest plaintiff’s property, the dam or dike hereinbefore referred to consists of a rubble wall, approximately 3 feet wide, and about 9 to 10 feet hi depth extending along plaintiff’s property in front of which there exists an outlet stream or channel and both the dam and the stream or channel designed to receive the overflow from the pond have been in existence for a period of approximately 50 years. Plaintiff constructed a residence on his land and installed a swimming pool and made expenditures for planting, seeding and landscaping. He also testified that he made intermittent use of the pond until approximately 1958 when defendant’s property was acquired for school purposes and upon which a school building and other facilities were subsequently installed. The school premises of the defendant lie a distance north of the pond and are substantially higher in el ovation than plaintiff’s land and the testimony shows that the elevation, if anything, has been reduced rather than increased by the installation of the school facilities and the adoption of the drainage plan. In improving the school site and the surrounding areas it is alleged that defendants caused the surface waters which would normally flow from the area to bo diverted from their natural course by the use of pipes, catch basins and other artificial channels thereby causing an excessive amount of water to flow into said pond, resulting in an overflow onto plaintiff’s land and causing damage to his property. In substance, defendant is an upland owner, and its property is separated from the area of the pond by intervening land owned by others. It is claimed, *341among other things, that the channeling of surface waters by artificial means off of defendant’s lands concentrates the flow of water, and thus raises the pond level to a point where the natural overflow gate and drainage channel in front of the dam or wall cannot absorb the waters thus caused to overflow. There is no contention here that waters other than those naturally flowing to the pond area prior to the construction of the school are now caused to enter the pond. Plaintiff’s theory seems to be that the concentrated collection of waters through the installation of catch basins and pipes causes water eventually to enter into the pond with greater force at a given time than otherwise would be the case; that defendant’s acts in channeling the waters prevent a more natural or slower flow into the pond by reducing the degree of natural absorption. It is defendant’s position that in laying out the school site engineers and qualified experts were requested to submit a drainage and site plan; the severity of the slope existing prior to plaintiff’s construction was reduced and that the net result of the plan finally adopted was to improve the drainage situation with respect to its land, the land of other owners and the pond, and not to interfere with or to damage surrounding properties. Our highest courts have determined the law in this State with respect to the rights of lower and upper owners to improve their lands, and recent cases have contained a full discussion of the rights of property owners in connection with this vexatious problem, to wit, the disposition and flow of surface waters. It is now established that our courts have adopted the so-called “ common law ” rule in order to avoid discrimination against a lower proprietor. Under the “ civil law ” as distinguished from the ‘ ‘ common law ’ ’ the upper owner was held to be the dominant estate and the lower property owner held to be the servient estate. Under the common law neither holds a dominant or servient estate or position with respect to the other. Both have equal rights to improve their property come what may to the surface water, provided the improvements are made in good faith to fit the property for some rational use to which it is adapted and that the water is not drained into the other’s property by artificial means, such as pipes and ditches. It seems apparent that no question of good faith on the part of the defendant is here present. The question for determination is whether or not the defendant in improving its land, and admittedly with the use of artificial means such as catch basins and pipes, thereby caused the discharge of waters into the pond and then onto plaintiff’s land which otherwise would not have occurred had the land been left in its original state. There is *342testimony in the record that at all times prior to the school improvement a water .channel or pipe of substantial size crossed under the roadway immediately to the south of defendant’s property and carried the drainage waters into a swale or swampy area and eventually into the pond. All parties admit that the pond is the natural drainage area for the premises in question. Some testimony was adduced indicating that there was another area of drainage by natural means prior to the improvements made by the municipality and by the School District, but the testimony indicates that as to this portion of the improvement the drainage waters so-called were and are diverted from eventual entry into the pond rather than channeled into it. The testimony as to the evidence of additional waters being cast into the pond or natural dranage area resulting from the improvement of the school property is fragmentary and far from conclusive. True it is that testimony was elicited that the rubble wall forming the dam or dike emitted waters when the pond was high, usually following a torrential down pour or heavy run-off from melting snow or ice. This condition, however, existed prior to the improvement of defendant’s property and there is no tangible evidence in the record indicating that it exists in a greater degree following the improvement than it did prior thereto. A long-time resident of the area testified that he had observed leaking in the dam itself, with water spouting intermittently therefrom for a period exceeding 25 years. The burden cast upon the plaintiff to show that in fact the acts of the defendant caused the level of the water in the pond to be unnaturally raised has not been met. It was likewise testified upon the trial that the raising and lowering device situate approximately midway in the wall or dike had in the past overflowed and that the drainage ditch or channel parallel to and immediately south of the Avail or dike had been, on occasions prior to defendant’s construction, inadequate to accept and handle the surface waters draining from the area north of the pond. This court is aware of the limitation of the rights of a property OAvner in disposing of surface waters where the water is collected and drained onto other property by means of pipes or ditches, and is likewise aAvare that the waters here are in fact handled in and out by pipes and artificial means, to cause them to flow into the pond and the natural drainage area, but no proof has been offered to indicate that the acts of the defendant have caused a condition to arise differing from that which existed prior to defendant’s improvement of its property. Likewise, it has not been established that any deleterious effect or damage was caused to the dike or dam by reason of the installa*343tion of the drainage system as it now exists and the collection of waters artificially with possible additional force. An inspection of the premises by the court, with the consent of all parties, bears out the court’s view of the testimony given at the trial and of the conclusions reached herein. It is unfortunate that all parties in interest are unable to properly repair the rubble wall or dike in question which would seem to be a solution to the problem, coupled with a repair of the drain-off channel immediately to the south of the rubble wall. This court, however, on the evidence presented may not assist the parties in that regard for the reason that plaintiff has shown no actionable wrong on the part of the defendant herein. Plaintiff’s claim for injunctive relief is denied as is plaintiff’s alternate claim for damages.
|
opinion_xml_harvard
| 1,738 |
2022-02-05 19:48:42.019778+00
|
020lead
|
t
|
f
| 6,312,334 |
Coyle
| null |
U
|
f
|
Published
| 0 |
Treadwell v. Waldeier
|
Treadwell
|
Robert C. Treadwell v. Anthony Waldeier, Individually and Constituting the Board of Education, Union Free School District No. 5 of the Village of Ardsley, Town of Greenburgh
| null | null | null | null | null | null | null | null | null | 62,943,494 | null | 0 |
nysupct
|
ST
|
t
|
New York Supreme Court
|
New York Supreme Court
|
1,016,543 |
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-1109 EKANEM UFIA EKANEM, Petitioner, versus ALBERTO R. GONZALES, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. (A79-745-883) Submitted: May 25, 2005 Decided: July 5, 2005 Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges. Petition denied by unpublished per curiam opinion. Ekanem Ufia Ekanem, Petitioner Pro Se. Daniel Eric Goldman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Ekanem Ufia Ekanem, a native and citizen of Nigeria, petitions for review of an order of the Board of Immigration Appeals (Board). The order denied his motion to reopen the Board’s summary dismissal of his appeal from the Immigration Judge’s order denying relief from removal. We have reviewed the record and the Board’s order and find no abuse of discretion in the Board’s denial of the motion to reopen. See 8 C.F.R. §§ 1003.1 (d)(2)(i)(E); 1003.2(a)(2005). In addition, we deny Ekanem’s pending motion for a stay of removal. See 8 U.S.C. § 1252 (f)(2) (2000). Accordingly, though we grant Ekanem’s motion to proceed on appeal in forma pauperis, we deny the petition for review. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED - 2 -
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opinion_html_with_citations
| 239 |
2013-07-04 21:50:50.651842+00
|
010combined
|
f
|
f
| 1,016,543 |
Duncan, Motz, Per Curiam, Wilkinson
| null |
CU
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t
|
Unpublished
| 0 |
Ekanem v. Gonzales
|
Ekanem
|
Ekanem Ufia EKANEM, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent
| null | null |
<parties data-order="0" data-type="parties" id="b543-12">
Ekanem Ufia EKANEM, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b543-14">
No. 05-1109.
</docketnumber><br><court data-order="2" data-type="court" id="b543-15">
United States Court of Appeals, Fourth Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b543-16">
Submitted: May 25, 2005.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b543-17">
Decided: July 5, 2005.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b543-19">
Ekanem Ufia Ekanem, Petitioner pro se. Daniel Eric Goldman, United States Department of Justice, Washington, D.C., for Respondent.
</attorneys><br><judges data-order="6" data-type="judges" id="b543-20">
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
</judges><br><p data-order="7" data-type="misc" id="b543-21">
Petition denied by unpublished PER CURIAM opinion.
</p><br><p data-order="8" data-type="misc" id="b543-22">
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
</p>
| null | null | null | null | null | null | 1,035,357 |
05-1109
| 0 |
ca4
|
F
|
t
|
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
6,727,870 |
motion for Cuyahoga Appeals to certify. Overruled.
|
opinion_xml_harvard
| 7 |
2022-07-20 23:06:19.68055+00
|
020lead
|
t
|
f
| 6,840,720 | null | null |
U
|
f
|
Published
| 0 |
Cuyahoga Towel & Supply Co. v. Fodor
|
Fodor
|
Cuyahoga Towel & Supply Co. v. Betty Fodor et
| null | null | null | null | null | null | null | null | null | 63,822,505 |
19537
| 0 |
ohio
|
S
|
t
|
Ohio Supreme Court
|
Ohio Supreme Court
|
5,181,634 |
Rumsey, J. On the 18th day of April, 1896, the relator was appointed to the position of teamster with team, in the employ of the park commission, from which position he was removed on the 30th of May, 1896, *537without any hearing being had on notice to him upon charges made. He made this motion for a writ of mandamus, which was denied at the Special Term, and he now appeals from the order denying his motion. Where one moves upon notice of motion for a peremptory mandamus he is entitled to it only when there is no conflict of fact in the paper's presented to the court on the hearing, The Code provides that a peremptory writ of mandamus can be issued upon motion only where the applicant’s right depends upon questions of law. (Code Civ. Proc. § 2070.) In considering, therefore, whether the applicant here is entitled to a peremptory writ of mandamus, any averments contained in his papers which are denied in the opposing affidavits must be disregarded and the facts set out in those affidavits must be assumed to be true. (In re Haebler v. New York Produce Exchange, 149 N. Y. 414; People ex rel. Thompson v. Brookfield, 6 App. Div. 398.) It is not contradicted that the relator is a veteran. He says in his moving papers that at the time of his application for appointment he stated to one of the commissioners, to whom he made the application, that he was a veteran, and that fact is not denied. He further states in his moving affidavits, upon information and belief, that there is kept upon the records of the board of park commissioners a list of all the employees of the department of public works who are veterans, and that the fact that he was an honorably discharged sailor was known to the board of park commissioners of the city of Few York. This fact is stated solely upon information and belief, and the sources of the information and the grounds of belief are not stated, so that the allegation itself amounts to nothing as proof of the assertions which are said to be believed by the applicant. (Buell v. Van Camp, 119 N. Y. 160, 165.) Theró is no other proof in the moving ¡capers from which it could be inferred that it was known to the park commissioners that this man was a veteran. The affidavit of the respondents alleges that it does not appear upon the records or from any information which had been furnished by the relator, that he was a veteran. So, in the decision of this case, it must be borne in mind that although the relator was a veteran, that fact had not been made to appear to the respondents so that it had been entered upon their records. At the • time O’Brien was appointed he was not within- the provisions of the Veteran Act, *538and there was no reason why the fact that he was a veteran should have been made to appear, because the position which he had was not one which would have entitled him to a hearing before discharge. The act which entitled him to the privileges of a veteran only became a law nine days before his removal, and it is not at all likely, in view of the delay which always exists in publishing statutes, that' anybody was aware of the existence of this act at the time wlien the-relator was discharged on the thirtieth of May, nine 'days after its. passage. But the respondents were bound by it, of course, whether they knew anything of it or not, and the only question is whether,, upon the facts which it appears were then known to them, it-was. their duty to have given to this man the privileges of a veteran td which lie would have been entitled if that fact had been made known to them-. It did not appear upon their records. "There is no proof that any one of them had been informed of it except Commissioner McMillan, and there is no proof that he. was ever informed of it in such a way as to bring it to the notice of the board, or that they in fact did have notice of it. If they had no notice that this man was. a veteran, they were not in default for failing to give him the privileges of "one until, at least, he had brought the fact .to their notice and demanded the hearing which the law entitled him to. The respondents say that no such demand was ever made upon them, and that statement in their opposing affidavit must be assumed to be true. The question is then presented whether it was the duty of’ the relator to inform the park commissioners of his standing as a-veteran and of his right to a hearing and to demand such a hearing-before he would be entitled to a writ of mandamus to enforce that right. We are of the opinion that he was bound to make such a. demand, and that until he had made it and been refused, he was not entitled to a peremptory writ of mandamus’ to restore him to the-position from which he had been removed. It is well settled that; previous to the making of an application to the court for a writ of' mandamus to compel the performance of an official act, a demand must be made by the applicant upon the officer-that he do the act; which it is sought to compel him to perform, and the respondent must have refused to comply with the demand, either in distinct terms, or by conduct from which a refusal can be implied, because it is due to. the defendant to have the option of doing the act before an applica*539tion shall be made to the court to compel him to do it. (United States v. Boutwell, 17 Wall. 604; 14 Am. & Eng. Ency. of Law, 106; High on Extr. Leg. Rem. §§ 13, 41.) While this is the general rule,. yet there is undoubtedly an exception to it in cases where the duty to be performed is public in its nature. In such a case, the duty being-public, it is not the business of any particular person to demand that it shall- be performed, and if the officer has neglected to perform it when he should, the writ may issue without any previous demand and refusal. This distinction is recognized by the text writers and the authorities, and it was the express ground upon which the writ was issued without a demand in the case of Commonwealth ex rel. Middleton v. Comrs. (37 Penn. St. 237), and Attorney-General v. City of Boston (123 Mass. 460). In each of these cases the fact that the duty of the defendant was a public duty was made the; ground of the exception from the rule that a demand should be made-upon them to perform the duty before a writ of mandamus issued to-require it. The duty which is sought to be imposed upon the defendants here is not public at all. The writ is sought simply to protect a. private right, in the performance of which nobody but the relator has any interest. The case is, therefore, within the general rule; cited above. But it is claimed that it is apparent from the papers that a demand and refusal would have been of no avail. There is not, however, one particle of evidence in the case from which that could have been inferred. At the time the relator was appointed, and until nine days before his removal, it was settled law that' he did not hold a position by appointment, so as to entitle him to a hearing before; his removal. (Meyers v. Mayor, etc., 69 Hun, 291.) There is an almost necessary presumption in this case, -not only that the commissioners did not know that the relator was a veteran, but that they were in truth ignorant of the law which gave him the privilege of a hearing, and that they supposed the law remained, as it undoubtedly had been down to nine days before, and that the removal of the; relator without a hearing took place solely because they were ignorant of his rights. There is no suggestion in the papers, even upon, the information and belief of the applicant, that the respondents; would not reconsider their action and give him a hearing if they were asked to do it. • *540It is riot too much to say in such a case that the person insisting -upon a private right shall make application to a public officer to give him that which the law assures him he should have, and until he does make .such application he ought not to be permitted to ask the court ■ for its compulsory writ to give him the thing which,- for aught that . appears, he might have obtained by the asking. For th„e reason that the relator did not make this demand, which 'it is still in his power to make, the order denying the writ was . proper and should be affirmed, with costs. Van Brunt, P. J., Patterson and Ingraham, JJ., concurred; Williams, J., dissented. "
|
opinion_xml_harvard
| 1,553 |
2022-01-06 04:42:56.956958+00
|
020lead
|
t
|
f
| 5,348,568 |
Rumsey, Williams
| null |
U
|
f
|
Published
| 0 |
People ex rel. O'Brien v. Cruger
|
Cruger
|
The People of the State of New York ex rel. John J. O'Brien v. S. Van Rensselaer Cruger and Others, Constituting the Board of Park Commissioners for the City of New York
|
<p>Appeal hy the relator, John J. O’Brien, from an order of ths> Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the Ith day ■of August, 1896, denying his motion for a peremptory writ of mandamus to compel the respondents, as park commissioners, to reinstate him in the position of “ teamster with team,” from which he had been removed.</p>
| null | null |
<p>
Veteran—when dischm'ged without a hearing a ‘veteran must demand, it before applying for 'a mandamus—•allegations on information and' belief, not' proof of the facts alleged —on an application for a peremptory mandamius the allegations in opposing papers are presumed to be true.
</p> <p>It is the general rule that before a writ of mandamus will be issued the applicant must show a demand and a refusal, either in express terms or by conduct from which such refusal can be implied; but where the duty, the performance of which is sought to be compelled, is public, the rule does not apply.</p> <p>An employee of the board of park commissioners of the city of New York who, as a veteran, is entitled to a hearing before he can be discharged from such employment, must, where it does not appear that such board has notice that he is á veteran, make a demand for a hearing before he is entitled to apply for a-mandamus to compel it. Williams, J., dissented.</p> <p>It seems, that an allegation on information and belief, where no grounds for the information and belief are stated, contained in an affidavit used on an application for a mandamus, is. no proof of the fact alleged.</p> <p>In determining whether an applicant is entitled to a peremptory writ of mandamus, the court must disregard any averments contained in his papers which are denied in the opposing affidavits, and assume the facts set out in the latter" to be true.</p>
| null | null | null | null | null | 61,696,349 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
6,396,740 |
LAGAKOS, J., This matter came before the court on a petition filed by defendant, Pepperidge Farm, Inc. (hereinafter referred to as petitioner) to open a default judgment entered against it on February 16, 1977. The salient facts surrounding the entry of said default judgment, as gleaned from the various pleadings, are as follows: On July 18, 1975, Keith *489Butler (hereinafter referred to as respondent) was a passenger in an automobile which was involved in an accident with a vehicle allegedly owned and being operated by petitioner. Suit was instituted on November 1, 1976, when respondent filed a complaint in trespass against petitioner. Service was duly made on November 19, 1976, and when petitioner failed to file an answer thereto, judgment by default was entered against it on February 16, 1977, some three months after petitioner was served with process. Petitioner was notified of the entry of this default judgment on the same date. On May 3, 1977, 76 days later, petitioner filed the instant petition, praying that we open the said judgment. It is axiomatic that a petition to open judgment in trespass is a matter of judicial discretion which is to be exercised only if (1) the petition to open was promptly filed, and (2) there exists a legitimate explanation or excuse for the delay that occasioned the default judgment: Schutte v. Valley Bargain Center, Inc., 248 Pa. Superior Ct. 532, 375 A. 2d 368 (1977); Zellman v. Fickenscher, 452 Pa. 596, 307 A. 2d 837 (1973). In the instant case, petitioner avers by way of excuse that the complaint was somehow lost between the time it was accepted and the time it was supposed to have reached the company’s controller. Affidavits in support of those averments are attached to the petition. The cases in this Commonwealth on the question of whether losing court papers constitutes sufficient legal justification to open a default judgment are far from unanimous in their results. Perhaps the leading case in this area is Balk v. Ford Motor *490Co., 446 Pa. 137 (1971), a case ignored by both sides in their opposing memoranda of law. In Balk, supra, it appeared that the complaint somehow vanished after having been received by defendant’s insurance carrier. A default judgment was entered for failure to answer the complaint and the trial court opened the judgment on defendant’s petition. The Supreme Court affirmed, noting however that “[b]y our decision today we do not intend to reward an insurance company for admittedly negligent conduct.” 446 Pa., supra, at 143. See also, Scott v. McEwing, 337 Pa. 273, 10 A. 2d 436 (1940). More recently, in Schutte v. Valley Bargain Center, Inc., 248 Pa. Superior Ct. 532, 375 A. 2d 368 (1977), our Superior Court accepted as a legitimate explanation for the delay which occasioned a default judgment, the fact that a mix-up occurred between insurance companies as to which would defend the suit, the complaint being lost somewhere along the line. The court again noted, however, as did the Balk court, that not all negligent conduct on the part of an insurance company or a defendant would be excused. See also, Fishman v. Benjamin Noble, Inc., 236 Pa. Superior Ct. 611, 346 A. 2d 359 (1975). Thus, it can be seen that it is not at all clear which types of “negligent conduct” on the part of a defendant will be excused for purposes of opening a default judgment. It appears, however, that the loss of record papers has been generally considered as that type of conduct given to sympathetic treatment by the court. With that in mind, we will accept petitioner’s claimed loss of the instant complaint as a valid excuse for failure to file an answer. *491This, however, does not aid the petitioner in the instant case, for, as noted infra, the factors must coalesce: there must be a legitimate excuse, which we have found, and the petition to open the default judgment must be promptly filed. Here, the default judgment was entered on February 16, 1977, and notice to petitioner under Pa.R.C.P. 236 was given on the same day. In addition, it is admitted by counsel for petitioner that he received a letter from respondent’s attorney, dated March 11, 1977, further advising of the entry of the default judgment, yet it was not until May 3, 1977, that the instant petition was filed with the court. Thus, even if we were to accept petitioner’s argument that it had no knowledge of the entry of the default judgment prior to respondent’s letter, we are still left with an almost two-month gap between the time petitioner received notice of the default and the time it filed its petition to open. The cases in this Commonwealth are legion wherein our courts have refused to set aside judgments where the petition to open was not timely filed. In Pappas v. Stefan, 451 Pa. 354, 358, 304 A. 2d 143 (1973), our Supreme Court noted: “[We cannot] construe these facts as corroborative of the court’s conclusion that the appellee ‘acted promptly’ in filing his petition to open. Default judgment was taken November 9, 1971. By appellee’s own admission, notice of the default judgment was brought home to appellee about one week later. The petition to open was not filed until January 13, 1972. In Texas & B.H. Fish Club v. Bonnell Corp., 388 Pa. 198, 203-204, 130 A. 2d 508, 510 (1957) this Court held that, where a petition to *492open was filed twenty-seven days after notice of the default judgment was communicated to petitioner, the petition was properly denied. Here counsel for the appellee waited approximately fifty-five days from the date of notice to file his petition to open. N o satisfactory explanation is offered for this eight-week delay. The finding of the court below that counsel acted promptly in filing his petition to open is unsupported by the evidence.” See also, Texas & B.H. Fish & Game Club v. Bonnell Run Hunting & Fishing Corp., 388 Pa. 198, 130 A. 2d 508 (1957) (27-day delay between notice of default and filing of petition held untimely); Schutte v. Valley Bargain Center, Inc., supra (47-day delay between notice of default and fifing of petition held untimely). It is thus indubitably clear that our courts have become quite strict in their requirement that a petition to open a judgment be promptly filed. While we may perhaps sympathize with the instant petitioner, we cannot ignore established case law on this subject. We are thus constrained to conclude that the unexplained delay of 52 days between the time petitioner admits receiving notice of the default judgment (March 11,1977) and the filing of the petition to open (May 2, 1977) renders the instant petition untimely. Accordingly, November 2, 1977, we affirm our order of June 15, 1977, dismissing the petition to open the default judgment.
|
opinion_xml_harvard
| 1,139 |
2022-06-25 00:25:28.089579+00
|
020lead
|
t
|
f
| 6,523,066 |
Lagakos
| null |
U
|
f
|
Published
| 0 |
Butler v. Pepperidge Farm, Inc.
| null |
Butler v. Pepperidge Farm, Inc.
| null | null | null | null | null | null | null | null | null | 63,452,903 |
no. 199
| 0 |
pactcomplphilad
|
ST
|
f
|
Philadelphia County Court of Common Pleas
|
Pennsylvania Court of Common Pleas, Philadelphia County
|
7,682,822 |
In re Trustees LA St. Retire. System;— Defendant(s); applying for writ of certiorari and/or review; Parish of East Baton Rouge, 19th Judicial District Court, Div. “I”, No. 306,856; to the Court of Appeal, First Circuit, No. CA93 0902. Denied. MARCUS, J., would grant the writ. DENNIS, J., not on panel.
|
opinion_xml_harvard
| 50 |
2022-07-30 03:13:56.03606+00
|
020lead
|
t
|
f
| 7,746,104 |
Dennis, Grant, Marcus, Writ
| null |
U
|
f
|
Published
| 0 |
James v. State
|
James
|
Douglas D. JAMES, Individually and on Behalf of Josephine Reynolds v. STATE of Louisiana
| null | null | null | null | null | null | null | null | null | 64,750,977 |
No. 94-C-1608
| 0 |
la
|
S
|
t
|
Supreme Court of Louisiana
|
Supreme Court of Louisiana
|
6,567,861 |
MR. Justice Allen delivered the opinion of the court. It appears from the pleadings and the evidence in this case that on or about February 10, 1914, the defendants below, who owned a tract of land, entered into an oral contract with plaintiffs below, with reference to carrying on farming on the land. By the terms of the agreement the defendants were to furnish the grain necessary to seed the ground, and machinery; the plaintiffs were to do the work of farming, including the irrigation of the land, and were to receive one-half of everything that was raised; and the defendant A. L. Pace was to show the plaintiffs “about irrigating” and how and where to do the work pertaining to the cultivation and raising of the crops. *92On September 1, 1914, the plaintiffs below brought this action against the defendants below. The complaint briefly mentions the contract above referred to, and then alleges, in substance, that pursuant to the agreement the plaintiffs worked on the land, each of them about five months, having worked almost continuously until and including the 9th day of July, 1914. The complaint further alleges, in effect, that the contract was wrongfully terminated by the defendants on July 9, 1914 and plaintiffs were no longer permitted to work thereunder or to have any further control over the crops raised or to be raised under the contract; that certain planting was done by the plaintiffs and that the defendants have received the benefit thereof; that plaintiffs worked and irrigated about thirty acres of timothy hay; and that the reasonable value of the services performed by plaintiffs for defendants under the contract is $780.00, which the defendants have never paid plaintiffs, save and except a certain sum in cash and a certain amount o,f groceries. The prayer is for the recovery of the value of the services mentioned, less the items received from defendants. The defendants filed an answer which, for the purposes of this review, may be regarded as a general denial. Defendants also filed a cross-complaint concerning matters which are not involved in any assignment of error. Upon trial, the jury found the issues for the plaintiffs. Thereafter judgment was entered in favor of plaintiffs and the defendants bring error. At the trial, which was to a jury, the plaintiffs introduced evidence tending to prove the contract above mentioned, that the contract had been performed in part by the plaintiffs, and that its further performance had been prevented by the act of the defendants. On cross-examination a witness for the plaintiffs testified that plaintiffs “never had any understanding with either Mr. or Mrs. Pace that they should be paid by the day, and the only understanding and agreement was that they should get their pay out of the crop that was raised on the place.” *93Over the objections of the defendants the plaintiffs testified that the customary and prevailing wage for men doing such work as the plaintiffs did, in that vicinity, during that period of time, was $1.50 a day and board or $2.00 a day and board yourself.” The admission of this evidence, that the usual and customary wages paid for labor was $2.00 per day, is assigned as error. The plaintiffs, defendants in error here, contend that since they have performed, in part, a specific agreement and further performance has been prevented by the act of the defen'dants, they, the plaintiffs, are entitled to recover of and from the defendants what the former’s services were reasonably worth, measured by the prevailing rate of wages paid for similar work. If the contract between plaintiffs and defendants was one of employment, or if by reason of the contract the plaintiffs were servants of the defendants, the theory upon which the case was conducted, and the rule now contended for, by the plaintiffs would be correct. We cannot, however, regard the contract as one of employment. The parties were not, among themselves, masters and servants. The contract was one for the cultivation of land for a share of the crops. There is much diversity in the decisions of the courts as to the nature of such contracts and the measure of damages for breach of the same. In so far as the intention of the parties is concerned, the record in this case is unfavorable to the conclusion that the parties regarded the contract as one of employment. In the complaint the plaintiffs refer to the contract as a “lease” and “agreement of lease,” and that they worked “under the terms of said lease.” T. B. Beckett, one of the plaintiffs, testified that the land of the Paces was “leased.” In considering the authorities, it seems that the most satisfactory view of such contracts as the one in question is that they are special, partaking somewhat of the nature of an adventure, entitling the party to a chance in the profits or benefits derivable therefrom. This view more nearly *94carries out the intention of the parties than any other. Such appears to be the nature of the contract between the parties that is the subject of this controversy. It was not-a contract of employment. The plaintiffs were not servants of the defendants, either before or after the breach of the agreement by defendants. Reasons for this conclusion can be found in the case of Bowers v. Graves & Vinton Co., 8 S. D. 385, 66 N. W. 931, from which we quote extensively later in this opinion. Other authorities in support of this view are: Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; James v. James, 151 Wis. 78, 137 N. W. 1094; and Cull v. San Francisco, etc., Land Co., 124 Calif. 591, 57 Pac. 456. The defendants in error, plaintiffs below, in their brief say: “Under the decisions, as we read them, this was what is termed a ‘cropping contract,’ rather than a lease.” Assuming that this statement is correct, it is not sufficient to support plaintiffs’ theory that they could recover as for work and labor and that the evidence as to the prevailing rate of wages was admissible. The syllabus in 124 Calif. 591, in the case of Cull v. San Francisco, etc., Land Co., supra, reads as follows: “A contract for the cropping of.land upon shares does not include any element of a contract of employment; and there being no original employment by the terms of the contract, the cropper does not become a servant or employe by the breach thereof on the part of the owner of the land, and he cannot, on account of such breach, maintain an action upon a quantum meruit for the value of his services.” In the case of Bowers v. Graves & Vinton Co., supra, the same contention was made by a cropper, and the same relief sought, as that by the plaintiffs in the instant case, except that in the Bowers case the compensation claimed was a certain sum per acre. The farming or cropping contract involved in that case was very similar to the one in the case at bar, under the terms of which each party was to receive a share of the crops raised. The case was brought on the same theory as that on which the plaintiffs *95here have proceeded. The supreme court of South Dakota in. the case just mentioned, among other things, said: . “The contract in this case belongs to that class of contracts for the cultivation of lands for a share of the crop that has given 'rise to much diversity in the decisions of the courts as to their nature and the measure of damages for a breach of the same. Some courts have been inclined to regard them in the nature of leases and to apply to them the rules applicable to breaches of contracts for leasing. Other courts have treated them as more in the nature of contracts for hire, the services to be paid for by a share of the crop. Porter v. Chandler, 27 Minn. 301, 7 N. W. 142; Am. & Eng. Enc..Law, pp. 897-899. Much of this diversity in the decisions has undoubtedly arisen by reason of the various stipulations in such contracts, in which slight changes in their terms have produced important differences in the views of courts as to the character of the contracts and the rules that should govern the measure of damages for breach of the same. Warner v. Abbey, 112 Mass. 355. In the early case of Walker v. Fitts, 24 Pick. 191, the supreme court of Massachusetts, in discussing a contract quite similar to the one before us, says: ‘The occupant was not the mere servant of the owner. It was not a contract of hire, in which the laborer was to receive a portion of the crop as a compensation for his services. It Was not-a mere license to enter upon and cultivate the farm, nor a tenancy at will. He had a right to occupy, and an interest in the land. * * * The owner could not exclude him, nor maintain an action against him for anything done in pursuance of the agreement. But what the precise nature and character of his interest was, is not so easily determined.’ And the court of appeals of New York, in the well-considered case of Taylor v. Bradley, 39 N. Y. 129, take the same view of contracts of this class, and hold that such contracts are special, and partake somewhat of the nature of an adventure, entitling the party to a chance in the profits or benefits derivable therefrom. This seems to us to be the most satisfactory view of such contracts, and *96one that more nearly carries out the intention of the parties than any other. That such is the nature of the contract before us seems clear from its terms. * * * He (the cropper) is subject to no direction of the defendant, other than to sow and plant said land in such crops as the defendant should .direct. He is not subject to the orders, nor under the control, of the defendant, in the performance of his labors. He is in fact, his own master, and master of such help as he might employ. His services are not to be paid for by any definite or fixed standard, but depend entirely upon the nature and value of the crop. If the season is a favorable one, his remuneration may be large; if unfavorable, his crop may be light* and his remuneration or profits small; and the remuneration of the owner of the land for its use is subject to the same contingencies. In entering into the contract therefore, the plaintiff must be presumed to have taken into consideration all these circumstances, and elected .to make the venture, and take the chances of success or failure. “* * * But the plaintiff cannot claim that, by reason of the breach, the relations of the parties to each other have been changed. If the plaintiff was not a servant or employe of the defendant under the terms of the contract, he does not become such by the breach thereof. «* * * The defendant had neither directly nor indirectly assumed the payment for any such services, as such, * * The court in Bowers v. Graves & Vinton Co., supra, overruled the plaintiff’s contention hereinbefore mentioned. In the case of Rockwell Stock Co. v. Castroni, 6 Colo. App. 521, 42 Pac. 180, the plaintiff was prevented by defendant from carrying out a partnership agreement to raise hens, chickens and eggs for market, after plaintiff has spent about three months’ time in acting under the agreement. The plaintiff in that case brought an action to recover, among other items, $100.00 for one hundred days lost time, at $1.00 a day. As in the case at bar, and also as in the Bowers case in South Dakota, the remuneration of the *97plaintiff under the contract in the Castroni case depended on the profits of the enterprise, and the services were “not to be paid for by any definite or fixed standard” and the defendant had not assumed the payment for such services, as such. In the Castroni case the plaintiff at the trial was permitted, over the objections of the defendant, to offer evidence in regard to the item of $100.00 for one hundred days time lost. The Colorado Court of Appeals in reversing the case said: “The chief trouble is the case was not correctly conceived and it was tried on a wholly erroneous hypothesis. * * * when the company refused to carry (the agreement) out it was guilty of a breach of contract for which it must respond in damages. * * ❖ ❖ • ^ “The damages, however, do not take the form of the per diem value of the labor of the person against whom the wrong was committed. The court clearly erred in admitting proof concerning the value'of her time for one hundred days.” The opinion in the case of Smart v. Burquoin, 51 Wash. 274, 66 Pac. 666, indicates that the court there took a view similar to that entertained by the court in the case of Bowers v. Graves & Vinton Co., supra. The court said: “In this case the pleadings show that appellants seek to recover upon a quantum meruit the value of their plowing, while holding under a lease with the rent reserved in kind, with no promise or obligation whatever upon the respondent to pay in money for any work done in tilling the land. * * * If they (the appellants) were evicted, they have mistaken their remedy.” The claim of the plaintiffs in the case at bar for a per diem compensation for their services is quite analogous to that of the plaintiff in the case of Rockwell Stock Co. v. Castroni, supra, and as said in that case, “the court erred in admitting testimony concerning what should constitute the measure of damages.” In all the cases cited-herein and in the case at bar there was no agreement to pay in money *98for any work done under the contract. As in the case of Smart v. Burquoin, supra, the plaintiffs “have mistaken their remedy,” and as in the Castroni case, the plaintiffs proceeded “on a wholly erroneous hypothesis.” Under the principles laid down'in the authorities quoted, it was error for the trial court to overrule defendants’ objections to the admission of testimony concerning the prevailing rate of wages for men doing the work which plaintiffs did under the contract in question, and the value of plaintiffs’ services measured by such per diem rate. It is not necessary to consider other assignments of error. The defendants in error in their answer brief raise some objections to the record on error. These objections are made for the first time in the answer brief and after plaintiffs in error had prepared and filed their abstract of record and their brief. Under these circumstances the objections must be deemed to have been made too late. Lavelle v. Julesburg, 49 Colo. 290, 302. For the reasons hereinbefore stated, the judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.
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| 2,547 |
2022-07-20 19:21:30.253469+00
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020lead
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| 6,688,258 |
Allen
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Pace v. Beckett
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Pace
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Pace v. Beckett
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<p>Action to recover for services rendered in connection with farm cropping contract. Judgment for plaintiffs.</p> <p>
Error to the District Court of La Plata County, Hon. W. N: Searcy, Judge.
</p>
| null | null |
<p>1. Contract — Construction. A contract for tlie cultivation of land for a share of the crop is a special one, partaking somewhat of the nature of an adventure. It is not a contract of employment.</p> <p>2. Action — Breach of Contract. Under a contract for the cropping of land upon shares, the cropper does not become a servant by a breach thereof on the part of the owner of the land and he can not, on account of such breach, maintain an action upon quantum meruit for the value of his services.</p> <p>3. Appeal and Error — Evidence. In the trial of an action for breach of a cropping contract, it is error to permit the introduction, over objection, of evidence concerning the prevailing rate of wages for work performed by the cropper while carrying out the terms of the contract.</p> <p>4. - Objections to the Record on Error; made for the first time in the appellate court, are too late.</p>
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Reversed.
| null | 63,668,899 |
No. 8656
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colo
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S
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Supreme Court of Colorado
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Supreme Court of Colorado
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3,073,698 |
IN THE TENTH COURT OF APPEALS No. 10-13-00366-CV DAN DANIEL, Appellant v. ROBERT WILLIS AND FREESTONE COUNTY SHERIFF'S OFFICE, Appellees From the 87th District Court Freestone County, Texas Trial Court No. 13-022-CR MEMORANDUM OPINION On November 6, 2013, the Clerk of this Court sent the following letter to Appellant Dan Daniel after receiving his initial notice of appeal: Appellant has filed in this Court his notice of appeal, in which he asks that the Court advise him of his rights. Neither the judges nor the staff of this Court can give legal advice. Therefore, you may wish to contact 1) your attorney, 2) Inmate Legal Services, Texas Department of Criminal Justice, Institutional Division, P.O. Box 99 Huntsville, Texas 77340, or 3) the trial court for further information or assistance. Appellant is also notified that the notice of appeal sent to this Court is defective in that it fails to identify the trial court judgment or other appealable order from which he desires to appeal. See TEX. R. APP. P. 25.2(c), (f); 37.1. Appellant is ordered to file a proper amended notice of appeal with the trial court clerk, with notice given to this Court, within 30 days from the date of this notice. If a proper amended notice of appeal is not filed in the trial court within 30 days from the date of this notice, this appeal must be referred to the Court for appropriate orders. TEX. R. APP. P. 37.1. On December 3, 2013, we received Daniel’s amended notice of appeal. It appeared that Daniel was attempting to sue Appellees Robert Willis and/or the Freestone County Sheriff’s Office in this Court for allegedly “stealing” his animals while Daniel was incarcerated. On December 18, 2013, the Clerk notified Daniel by letter that this Court does not have jurisdiction of an original claim for relief pertaining to alleged theft of animals and that his amended notice of appeal was defective in that it still failed to identify the trial court judgment or other appealable order from which he desired to appeal. Accordingly, the letter further stated: Appellant is ordered to file a proper amended notice of appeal with the trial court clerk, with notice given to this Court, within 30 days from the date of this notice letter. The amended notice of appeal should identify the trial court cause number of the case and the trial court judgment or other appealable order from which Appellant desires to appeal. Appellant should also attach a copy of the trial court judgment or other appealable order from which he desires to appeal. Appellant is also directed to separately file a written statement with this Court that clearly states the nature of this appeal. On January 16, 2014, we received a letter from Daniel accompanied by a document that states that he wants to sue Robert Willis, the Freestone County Sheriff’s Daniel v. Willis Page 2 Office, and others for “theft” of his animals while he was incarcerated. Neither the letter nor the document identifies any other trial court cause number, trial court judgment, or other appealable order from which Daniel desires to appeal. As stated in our December 18, 2013 letter to Daniel, this Court does not have jurisdiction of an original claim for relief pertaining to alleged theft of animals; therefore, we dismiss this appeal for want of jurisdiction. Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP. P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007); see also TEX. R. APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b), 51.941(a), 51.208 (West 2013). Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2. The write-off of the fees from the accounts receivable of the Court in no way eliminates or reduces the fees owed. REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Opinion delivered and filed January 30, 2014 [CV06] Daniel v. Willis Page 3
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opinion_html_with_citations
| 700 |
2015-10-16 00:56:44.502209+00
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010combined
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f
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f
| 3,073,698 | null | null |
C
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f
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Published
| 0 |
Dan Daniel v. Robert Willis and Freestone County Sheriff's Office
| null | null | null | null | null | null | null | null | null | null | null | 2,931,173 |
10-13-00366-CV
| 0 |
texapp
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SA
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t
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Court of Appeals of Texas
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Court of Appeals of Texas
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1,045,218 |
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE February 19, 2013 Session WILLIAM H. THOMAS, JR. v. TENNESSEE DEPARTMENT OF TRANSPORTATION Appeal from the Chancery Court for Davidson County No. CH-10-1777-IV Russell T. Perkins, Chancellor No. M2012-00672-COA-R3-CV - Filed April 9, 2013 An applicant for billboard permits sought judicial review of the decision of the Tennessee Department of Transportation to deny the applications. Finding no error, we affirm the trial court’s decision upholding the Department’s denial. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL, M.S., P.J., and F RANK G. C LEMENT, J R., J., joined. William H. Thomas, Memphis, Tennessee, Pro Se. Robert E. Cooper, Jr., Attorney General and Reporter, and Bruce M. Butler, Assistant Attorney General, for the appellee, Tennessee Department of Transportation. OPINION F ACTUAL AND P ROCEDURAL B ACKGROUND The relevant facts in this case are not in dispute. On September 29, 2008, William H. Thomas, Jr., submitted to the Beautification Office of the Tennessee Department of Transportation (“TDOT” or “Department”) two applications for billboard permits for a location within 660 feet of and visible from I-240 eastbound at log mile 1.82 in Shelby County. For decades prior to that time, Clear Channel Outdoor, Inc. and its predecessors had a two-sided billboard situated on top of a commercial building located at I-240 eastbound, log mile 1.86. Clear Channel’s billboard was covered by TDOT permits 79-3102 and 79- 3103. In 2008, Memphis authorities determined that the commercial building on which Clear Channel’s billboard was located needed to be demolished. In response to the city’s determination, Clear Channel removed its billboard from the rooftop in August 2008. Clear Channel then built a new monopole sign on an adjacent piece of property. It was Clear Channel’s understanding that the new sign was in the location of its existing billboard permits and that those permits would cover the new sign. On October 31, 2008, Mr. Thomas informed TDOT that the new Clear Channel sign was not on the same parcel of land as the original rooftop sign. After an investigation, TDOT notified Clear Channel that the new sign was not in the same location (footprint) as permits 79-3102 and 79-3103 and would, therefore, require new billboard permits. The Department also advised Clear Channel that it would have to cancel permits 79-3102 and 79- 3103 in order to have permits issued for the new location. Clear Channel submitted applications for new permits to TDOT on November 3, 2008, but these applications were returned to Clear Channel because they lacked sufficient filing fees. On November 5, 2008, Clear Channel submitted another set of applications for permits along with the appropriate filing fees. These applications were stamped as received by TDOT on November 6, 2008. Included with each of Clear Channel’s permit applications was a letter requesting that the existing permits be cancelled simultaneously with the approval of the new permits: While these are separate requests they are concurrent and simultaneous so that there is no intervention of any kind between the process of cancelling our existing permits referenced above and issuing new permits for the applications enclosed. On November 6, 2008, TDOT conducted field inspections of the locations covered by Clear Channel’s applications and Mr. Thomas’s applications for new billboard permits. On November 10, 2008, TDOT notified Clear Channel that its new sign was illegal because new permits had not been issued before the sign was constructed. On November 13, 2008, Mr. Thomas was notified by TDOT that his permit applications were denied because the applied for location was 200 feet from the existing Clear Channel monopole sign and Clear Channel permits 79-3102 and 79-3103. Thus, the location did not comply with the statutory requirement that there be 1000 feet of spacing. On November 14, 2008, Clear Channel sent an e-mail to TDOT requesting withdrawal of its previous request for cancellation of permits 79-3102 and 79-3103. Clear Channel renewed these permits at the end of 2008 for the year 2009. -2- TDOT removed Clear Channel’s “illegal” monopole sign on June 15, 2009, and Clear Channel rebuilt the monopole sign within the footprint covered by permits 79-3102 and 79- 3103. Administrative review After his billboard permit applications were denied on November 13, 2008, Mr. Thomas requested an administrative hearing. The hearing was held on November 12 and 13, 2009; the ALJ heard testimony from Connie Gilliam, the TDOT employee responsible for processing billboard permit applications; her supervisor, Shawn Bible; Robert Shelby, TDOT regional manager; and Larry Quas, the Clear Channel employee who handled the permit applications at issue. The ALJ entered an initial order on March 4, 2010 upholding TDOT’s decision to deny Mr. Thomas’s permit applications. The ALJ’s initial order includes detailed factual findings and analysis. The ALJ rejected Mr. Thomas’s argument that Clear Channel effectively cancelled its permits by requesting cancellation in the letters submitted on November 5, 2008. The ALJ noted that Mr. Thomas’s applications were filed prior to any applications or cancellations by Clear Channel. Under TDOT’s “first come, first served” rule, therefore, Mr. Thomas’s applications “should have been processed first, and any other applications for locations within 1000 feet of his Applied for Location should not have been processed until Mr. Thomas’[s] rights in his applications are fully resolved.” The ALJ found that TDOT’s beautification office properly processed Mr. Thomas’s applications first. Addressing Mr. Thomas’s argument that Clear Channel’s existing permits were cancelled effective November 6, 2008 (when TDOT received Clear Channel’s applications and letters), prior to any field inspection, the ALJ discussed the language of Clear Channel’s letters as well as its actions evidencing the intent not to cancel the existing permits unless and until it obtained new permits. The ALJ went on to state: The procedure urged by Mr. Thomas would require the Beautification Office to not only ignore Mr. Quas’[s] letter(s) of November 5, 2008, but to arbitrarily act in direct contradiction to the express instructions therein, and thereby destroy Clear Channel’s property rights in its existing permits. Such action would be indefensible. It would also require the Beautification Office to give immediate effect to permit cancellations without regard to whether or not the related sign had been removed. Both Ms. Gilliam and Mr. Shelby testified that while there is no written policy on processing cancellation requests that accompany new -3- applications, such cancellations could not be effective until a field inspection was conducted to assure that related signage was removed. Otherwise, it would create un-permitted outdoor advertising in violation of the [Billboard Regulation and Control Act]. ... Mr. Thomas filed applications for a location that was within the prohibited 1000 feet space of Clear Channel permits 79-3102 and 79-3103. Clear Channel’s earlier removal of its sign from its roof top support onto a monopole did not cause those permits to be cancelled. Its error in so rebuilding at other than the exact same location did not cause such a cancellation. Mr. Quas[’s] cancellation request of November 5, 2008, by its own unequivocal terms, did not cause such a cancellation, before it was withdrawn. The Clear Channel permits were in full force and effect for a conforming location and Clear Channel had full legal rights to rebuild its sign at that exact location, which it ultimately did. Consequently, the Department’s denial of Mr. Thomas[’s] applications within 1000 feet of the Clear Channel permits was not only appropriate, but was mandated by the Act and the Rules. (Citations to record omitted). Mr. Thomas filed an administrative appeal of the ALJ’s initial order. A final order affirming the initial order was issued on September 24, 2010. Proceedings in chancery court Mr. Thomas filed the instant petition for judicial review on November 4, 2010. The chancellor held a hearing on September 26, 2011. On March 23, 2012, the trial court entered an order affirming the decision of TDOT’s commissioner. The trial court adopted the findings of fact set forth in the ALJ’s March 4, 2010 initial order and went on to make additional findings of fact regarding letters and e- mails between Clear Channel and TDOT and Mr. Thomas and TDOT. With regard to Mr. Thomas’s cancellation arguments, the trial court stated: Clear Channel’s communications in November 2008 caused some confusion, as did the circumstances surrounding the changing of the configuration of its billboard. The Court agrees with the ALJ and the Commissioner’s conclusion that none of this conduct operated as a voluntary cancellation of Clear Channel’s billboard permits. Clear Channel’s letters of November 5, 2008 were meant to be conditional and its E-mail of November 14, 2008 cleared up -4- the confusion about whether it was voluntarily cancelling its permits. Similarly, the [ALJ] and the Commissioner were well within the law and were supported by the substantial and material evidence in the record in deciding that Clear Channel’s conduct in reconfiguring its billboard did not operate, in a self-executing involuntary manner, to cancel Clear Channel’s billboard permits. On appeal, Mr. Thomas argues that the trial court erred in its interpretation and application of TDOT’s rules regarding applications for billboard permits. S TANDARD OF R EVIEW The applicable standard of review is found at Tenn. Code Ann. § 4-5-322(h): The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (5) (A) Unsupported by evidence that is both substantial and material in the light of the entire record. (B) In determining the substantiality of evidence, the court shall take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. Under the Uniform Administrative Procedure Act (“UAPA”), this court, like the trial court, must apply the substantial and material evidence standard to the agency’s factual findings. City of Memphis v. Civil Serv. Comm’n, 239 S.W.3d 202 , 207 (Tenn. Ct. App. 2007); Bobbitt v. Shell, 115 S.W.3d 506 , 509-10 (Tenn. Ct. App. 2003). Substantial and -5- material evidence is “‘such relevant evidence as a reasonable mind might accept to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration.’” Macon v. Shelby Cnty. Gov’t Civil Serv. Merit Bd., 309 S.W.3d 504 , 508 (Tenn. Ct. App. 2009) (quoting Pruitt v. City of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL 2043542 , at *7 (Tenn. Ct. App. Aug. 24, 2005)). It is “‘something less than a preponderance of the evidence, but more than a scintilla or glimmer.’” Id. at 508 (quoting Wayne Cnty. v. Tenn. Solid Waste Disposal Control Bd., 756 S.W.2d 274 , 280 (Tenn. Ct. App. 1988)). We may overturn the administrative agency’s factual findings “only if a reasonable person would necessarily reach a different conclusion based on the evidence.” Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256 , 265 (Tenn. 2009) (citing Martin v. Sizemore, 78 S.W.3d 249 , 276 (Tenn. Ct. App. 2001)). This narrow standard of review for an administrative body’s factual determinations “suggests that, unlike other civil appeals, the courts should be less confident that their judgment is preferable to that of the agency.” Wayne Cnty., 756 S.W.2d at 279. With respect to questions of law, our review is de novo with no presumption of correctness. Cnty. of Shelby v. Tompkins, 241 S.W.3d 500 , 505 (Tenn. Ct. App. 2007). Issues of statutory construction present questions of law and are therefore reviewed de novo with no presumption of correctness. Carter v. Bell, 279 S.W.3d 560 , 564 (Tenn. 2009). A NALYSIS Mr. Thomas argues that the trial court erred in its interpretation and application of TDOT rules, specifically the “first come first served” rule and its rules regarding cancellation, in this case. For the reasons set forth below, we cannot agree with Mr. Thomas’s arguments. The Department has responsibility for enforcement of the provisions of the Billboard Regulation and Control Act of 1972,1 Tenn. Code Ann. §§ 54-21-101–54-21-123. See Tenn. Code Ann. §§ 54-21-112, 54-21-116. Under this act, a person cannot erect outdoor advertising within 660 feet of an interstate or primary highway without obtaining a permit from TDOT. Tenn. Code Ann. § 54-21-104(a). Department rules provide that applications for billboard permits will be “considered on a first come first serve basis.” Tenn. Comp. R. & Regs. § 1680-2-3-.03(1)(a)(5)(i).2 These rules further provide that “[n]o two structures 1 Tennessee’s billboard regulation law was enacted in response to the Federal Highway Beautification Act of 1965, 23 U.S.C. §§ 131, 136, and 319. 2 The “first come first served” provision in the current rules, amended effective December 2008, (continued...) -6- shall be spaced less than 1000 feet apart on the same side of the highway.” Tenn. Comp. R. & Regs. § 1680-2-3-.03(1)(a)(4)(i)(I). Mr. Thomas’s primary argument on appeal is that Clear Channel’s permits 79-3102 and 79-3103 were cancelled pursuant to the two letters received by TDOT on November 6, 2008. According to Mr. Thomas’s reasoning, this cancellation should have been effective on November 6, 2008, prior to TDOT’s receipt of Clear Channel’s letter of November 14, 2008 withdrawing its cancellation letter. There are, however, several flaws in Mr. Thomas’s position. Under the first come first served rule, TDOT had to consider Mr. Thomas’s applications before the later applications of Clear Channel. The Department takes the position that, to give effect to the first come first served rule, “no conflicting applications could be considered by the Department until the conclusion of Mr. Thomas’[s] appeal.” The Department’s interpretation of its own rules “controls unless it is plainly erroneous or inconsistent with the regulation itself.” Clear Channel Outdoors v. Tenn. Dep’t of Transp., 337 S.W.3d 801 , 806 (Tenn. Ct. App. 2010). We find no such error or inconsistency here. According to Mr. Thomas, TDOT should have processed the cancellation request included in Clear Channel’s November 6, 2008 immediately. The Department presented testimony concerning its unwritten policy during the relevant time period that a cancellation request not be granted until after a field inspection to confirm that the advertising had been removed.3 The Department’s field inspection revealed that Clear Channel had erected an “illegal” sign near the site of Clear Channel’s new applications. Thus, even in the absence of Mr. Thomas’s intervening application, TDOT would not have processed Clear Channel’s new applications. Permits 79-3102 and 79-3103 remained in effect as they had not been cancelled or abandoned. See Tenn. Comp. R. & Regs. § 1680-2-3-.02(1). We find Mr. Thomas’s assertion that TDOT should have processed Clear Channel’s cancellation request without processing the associated applications for new permits to be unpersuasive. The ALJ made an express finding concerning Clear Channel’s intent not to cancel its existing permits until TDOT granted its applications for new permits. We find nothing in TDOT regulations that would require the Department to ignore the conditional nature of the cancellation submitted by Clear Channel. The Department’s decision to consider the entire package–applications and cancellations–together is entirely consistent 2 (...continued) appears at Tenn. Comp. R. & Regs. § 1680-02-03-.03(1)(a)(7)(v). This opinion refers to the TDOT rules in effect prior to December 2008. 3 The new rules and regulations that took effect on December 8, 2008 address the processing of applications in detail. Tenn. Comp. R. & Regs. § 1680-02-03-.03(1)(a)(7) (2008). -7- with its rules and enabling statutes. Having considered all of Mr. Thomas’s objections, we must affirm the trial court’s decision upholding the Department’s actions.4 C ONCLUSION The judgment of the trial court is affirmed. Costs of appeal are assessed against Mr. Thomas, and execution may issue if necessary. ANDY D. BENNETT, JUDGE 4 We find it unnecessary to consider Mr. Thomas’s argument concerning whether the application of TDOT’s rules to the undisputed facts should be treated as a question of law or of fact. -8-
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opinion_html_with_citations
| 2,710 |
2013-10-08 02:24:24.695045+00
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010combined
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f
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f
| 1,045,218 |
Judge Andy D. Bennett
| null |
C
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f
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Published
| 0 |
William H. Thomas, Jr. v. Tennessee Department of Transportation
| null | null | null | null | null | null | null | null | null | null | null | 2,131,470 |
M2012-00672-COA-R3-CV
| 0 |
tennctapp
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SA
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t
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Court of Appeals of Tennessee
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Court of Appeals of Tennessee
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8,051,113 |
Memorandum Opinion Batchelder, J. The defendant, David M. Hale, abandoned his pickup truck in a North Concord, Vermont dooryard. The vehicle registration plates had been stolen from a vehicle in Hanover, New Hampshire. The defendant fled into nearby woods and was captured after pursuit by law enforcement authorities. The Vermont State Police towed the truck to the state police office in St. Johnsbury and conducted an inventory search of its contents with the knowledge of the stolen plates and the further knowledge that there was an outstanding Vermont warrant for Hale’s arrest for failure to appear to answer to burglary. The search revealed a .22 caliber pistol located in a duffel bag. When confronted by the pistol in the hands of law enforcement authorities, the defendant confessed to its theft in New Hampshire. He was tried in Grafton County Superior Court in a non-jury trial (Perkins, J.) and was convicted of theft of the pistol. His pretrial motion to suppress the pistol as evidence was heard by the trial judge and was denied in a written order. It is from this ruling *44that the defendant appeals. We note that the State claims that the issue so raised was not preserved for appeal. Without ruling on such assertion, we will proceed as if the issue were properly before us. See State v. Hurlburt, 135 N.H. 143, 145, 603 A.2d 493, 494 (1991). The language of the motion to suppress which is before us provides in pertinent part: “5. . . . During their search, the police opened containers and consulted computer services in an effort to identify stolen goods. If such activities are not in accord with written procedures which are regularly utilized by the police in all cases where abandoned cars are impounded, the search will be tainted by bad faith regarding the purpose of the investigation. Colorado v. Bertice [sic], 479 U.S. 367 . . . [(1987)].” We point out at the outset that the notice of appeal posits one specific question for review. “1. Whether a warrantless search of defendant’s automobile, conducted without probable cause or exigent circumstances, can be upheld as a [sic] inventory when the investigating authorities believed the owner to be a fugitive from justice, when they referred to the items inventoried as ‘evidence,’ and when their ‘inventory’ procedures exceeded the written inventory procedure of the department (including a concerted effort to identify stolen property)?” The only question set forth in the defendant’s brief, however, and argued here differs from the notice of appeal and involves a claim of constitutional infirmity dealing with the opening of closed containers, which was not argued in the trial court. Motions to suppress in the superior court are governed in the first instance by Rule 94 of the Superior Court Rules, which provides in pertinent part that “every motion to suppress evidence shall . . . set forth all the facts and grounds . . . upon which the motion is based.” The rule, it appears, contemplates at least some factual basis upon which to assert constitutional infirmity violative of part I, article 19 of the New Hampshire Constitution and the Fourth Amendment to the United States Constitution. We hasten to recognize, however, that there may be cases where the facts relied upon are so peculiarly within the control or knowledge of the government that the defendant is hardpressed to know of their existence and that the resolution of these matters is left in the first instance to the discretion of the trier of fact at the motion hearing. *45It is a simple judicial task to answer the abstract question set forth in the defendant’s brief. Where the police have no policy with respect to the opening of closed containers during inventory searches, evidence found in such containers must be suppressed. Florida v. Wells, 495 U.S. 1 (1990). The defendant’s original claim in his notice of appeal that the search was, in fact, investigatory and not simply done for inventory purposes might have produced a closer constitutional question for us in view of the fact that, with respect to those items bearing serial numbers, the police entered them in an NCIC computer to determine whether they had been stolen. This may be at odds with the purposes of an inventory search. See id. at 4 (“police officer must not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime’” (citation omitted)). However, the trial court ruled against the defendant on this issue and it was not pressed in his brief nor argued on appeal and we, accordingly, deem it to have been waived here. With respect to the claim relating to the closed container aspect of the inventory search which is the only issue before us, Superior Court Rule 94 requires a setting forth of “facts and grounds.” (Emphasis added.) No facts were set forth in the motion, nor were they pursued at the hearing, to suggest that the gun sought to be suppressed was seized from a closed container. The following colloquy during Attorney Apfel’s cross-examination of Trooper Ledo sets forth the entire record on this issue: “Q. Okay. Are you familiar with the .22 that’s at issue in this case here in the State of New Hampshire? The Jennings? A. Yes. Q. Yes? A. Yes, sir. Q. Let’s talk about that one. You found that where? A. It was in a duffle bag. Q. And that was taken out and the serial number was checked, wasn’t it? A. Yes sir.” The record, as well as the motion to suppress, is barren of any facts indicating the nature of the duffel bag, its description or whether or not it was closed in any manner. At hearings on motions to suppress evidence such as the one involved here, it is basic that *46the burden of proof of the legality of the search rests with the State in all cases. SUPER. Ct. R. 94. The closed container aspect of the inventory procedure was not argued at the hearing nor did it play any role in the trial court’s ruling. It is just plain asking too much of us to lean a claim of constitutional infirmity against such a slender reed as this record provides. The defendant’s burden in this court is to provide us with a record upon which relief may be granted. State v. Parra, 135 N.H. 306, 309, 604 A.2d 567, 569 (1992). We do not have such a record before us in this case. Affirmed. All concurred.
|
opinion_xml_harvard
| 1,091 |
2022-09-09 04:12:00.259257+00
|
020lead
|
t
|
f
| 8,090,988 |
Batchelder
| null |
U
|
f
|
Published
| 0 |
State v. Hale
|
Hale
|
The State of New Hampshire v. David M. Hale
| null | null | null | null | null | null | null | null | null | 65,186,604 |
No. 90-470
| 0 |
nh
|
S
|
t
|
Supreme Court of New Hampshire
|
Supreme Court of New Hampshire
|
4,737,881 |
Cox, J. — Vernon Turner appeals his three convictions of first degree theft. The charges were based on a series of unauthorized payments from his employer’s bank accounts and purchases on his employer’s credit card. These events occurred over a period of 10 months. The State’s multiple charges under the first degree theft statute were based on variations in the methods by which Turner allegedly stole the funds. Turner claims that the multiple convictions for violation of the same statute subjected him to double jeopardy under the state and federal constitutions. We agree. *204The theft statute is ambiguous as to the unit of prosecution for theft by different schemes or plans against the same victim over the same period of time. Thus, the rule of lenity dictates that the multiple convictions in this case cannot stand because they violate double jeopardy. Accordingly, we reverse two of Turner’s three convictions. Vernon Turner worked at Washington Citizen Action (WCA) as its financial director from June 1997 until March 1998. In that position, Turner was responsible for administering payroll, paying bills, and preparing financial statements. Within a few months of Turner assuming his duties, his supervisor, David West, noticed discrepancies in the financial statements Turner prepared. Based on these discrepancies, West ordered an independent investigation of the financial records. Prior to the investigation, Turner took a medical leave. He never returned to work. From the investigation of financial records, it appeared that Turner had stolen from WCA in several ways. First, he made a series of unauthorized payments in varying amounts to himself from WCA’s payroll accounts. Second, he made unauthorized payments to another person from the payroll accounts. Third, he made unauthorized payments to himself from a nonpayroll checking account. Finally, he made a series of unauthorized purchases with WCA’s credit card. In all, there appeared to have been 72 individual acts of theft. The State initially charged Turner with one count of first degree theft for all 72 alleged thefts. At the time of trial and over Turner’s objection, the trial court granted the State’s motion to amend the information to four counts of first degree theft. The variations in the counts were based on the different methods by which Turner allegedly stole from WCA. A jury found Turner guilty of three of the four counts.1 At sentencing, the trial court concluded that Turn*205er’s convictions did not constitute the same criminal conduct and sentenced him to concurrent sentences within the standard range. Turner appeals. Double Jeopardy Turner argues that his convictions of two of the three counts of first degree theft violate state and federal constitutional guarantees against double jeopardy. We agree. The double jeopardy clause of the Fifth Amend*206ment offers three separate constitutional protections.2 It protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.3 The State constitutional rule against double jeopardy offers the same scope of protection as its federal counterpart.4 Turner did not raise below the double jeopardy argument. Rather, his objection to the trial amendment from one count to multiple counts was based on the fact that multiple convictions would increase his offender score.5 But he may raise this issue for the first time on appeal because it is a manifest error affecting his constitutional right to be free from double jeopardy.6 The aspect of double jeopardy at issue here protects a defendant from being punished multiple times for the same offense.7 When a person is charged with violating the same statutory provision a number of times, multiple convictions can withstand double jeopardy challenge only if each is a separate “unit of prosecution.”8 The proper inquiry for considering double jeopardy challenges is what “unit of prosecution” the Legislature intends as a punishable act under the statute.9 In making this determination, we apply *207the rules of statutory construction to the statute at issue.10 If there is any ambiguity, then “the ambiguity should be construed in favor of lenity.”11 Here, the State charged Turner with multiple counts of first degree theft. That crime must involve property or services exceeding $1,500 in value.12 Turner maintains that the first degree theft statute is unclear whether multiple thefts by different schemes or plans from the same person and over the same period of time may be punished more than once. Citing Adel, Turner argues that the rule of lenity dictates that the ambiguity in the theft statutes should be resolved in his favor.13 In response, the State argues that its discretion under former RCW 9A.56.010(17)(c) (1998) to aggregate various third degree thefts to first degree theft14 demonstrates that the relevant unit of prosecution here is each of the multiple schemes or plans under which Turner stole funds. Under that theory, the State argues that Turner’s theft of funds from the payroll account is distinct from his theft from the nonpayroll account. And, according to the State, each of these first degree thefts is, in turn, distinct from the theft by the unauthorized use of WCA’s credit card. The first step in determining the unit of prosecution is to *208examine the statute in question.15 The first degree theft statute, RCW 9A.56.030, provides in part that “[a] person is guilty of theft in the first degree if he or she commits theft of. . . [p]roperty or services which exceed(s) one thousand five hundred dollars in value.”16 RCW 9A.56.020(1)(a) defines “theft” as: To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services .... The relevant portion of RCW 9A.56.010(19)(b) defines “exerts unauthorized control” as: (b) Having any property or services in one’s possession, custody or control as . . . employee ... of any person, estate, association, or corporation, ... to secrete, withhold, or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto.[17] The plain words of the above statutory provisions make clear that the unit of prosecution for first degree theft by an employee from an employer under these circumstances is the employee’s exertion of unauthorized control over the property of the employer, where the property exceeds $1,500 in value. The only distinction between the varying degrees of theft is the value of property stolen. Thus, the unit of prosecution for first degree theft is distinguished from that of either second degree or third degree theft by the value of the property or services in question.18 Neither party appears to dispute this aspect of the unit of prosecution for first degree theft. The dispute between the parties appears to be centered on whether the Legislature intended multiple punishments *209for thefts by different schemes or plans over the same period of time from the same victim. In this respect, the question here is similar to that posed in Adel.19 There, the question was whether the Legislature intended multiple prosecutions for drug possession based on an illegal drug being found in multiple places at the same time. We conclude that the Legislature’s intent in this case is unclear. Our examination of the theft statute reveals that the Legislature intended to punish first degree theft as a more serious crime than second degree or third degree theft. The former is a Class B felony, while second degree theft is a Class C felony and third degree theft is a misdemeanor. In making these distinctions, the Legislature focused on the value of the property and services to define the level of seriousness of the crime. The first degree theft statute makes no mention of schemes or plans in distinguishing the seriousness of the crime from other degrees of theft. And there is no wording in the statute that indicates any other relevant distinction between multiple acts of theft committed against the same person over the same period of time.20 We conclude that the lack of clarity creates ambiguity whether multiple schemes or plans constitute separate units of prosecution under the first degree theft statute. Thus, the rule of lenity dictates that we construe this ambiguity in favor of Turner. Nevertheless, the State contends that former RCW 9A.56.010(17)(c) (1998) defines the unit of prosecution for first degree theft. This argument is not persuasive. That statute states: Whenever any series of transactions which constitute theft, would, when considered separately, constitute theft in the third degree because of value, and said series of transactions are a part of a common scheme or plan, then the transactions may be aggregated in one count and the sum of the value of all said *210transactions shall be the value considered in determining the degree of theft involved. The statute allows the State, in its discretion, to aggregate the values of individual acts of third degree theft to determine the value of a higher degree theft charge, where the individual thefts are part of a common scheme or plan.21 We read the statute to vest discretion in the prosecutor to increase the degree of the theft charge, not to define what the Legislature intended as the punishable act of first degree theft.22 The State’s argument confuses the critical distinction between a prosecutor exercising discretion to aggregate third degree thefts to either a first or second degree theft charge and the Legislature’s intent in defining the punishable act. We note that the unit of prosecution analysis is designed in part to avoid overzealous charging by the prosecution.23 While the record shows that the prosecutor here sought to divide the acts of theft into schemes or plans for clarity of presentation to the jury, not in a fit of prosecutorial zeal, the reason for the rule applies with equal force here. We seriously doubt that the Legislature could have intended to delegate to the prosecution the discretion to define the punishable act in this way.24 Citing a Wisconsin case, State v. Davis,25 the State maintains that the proper unit of prosecution here is each of the three common schemes or plans under which it aggregated multiple counts of third degree theft to first degree theft counts. But Davis is distinguishable. *211There, Leola Davis opened a telephone account under a false name and obtained services under that account.26 More than a month later, she opened another account using a different false name.27 The conviction was on two counts of obtaining telephone service by fraud. On appeal, Davis argued that her two convictions violated double jeopardy because there was only one scheme to obtain telephone services in the name of others.28 In upholding her convictions, the Wisconsin appellate court held that the unit of prosecution under the telecommunications service theft statute is each separate plan or scheme to obtain telecommunications service by fraud.29 That statute specifically provides that “any . . . contrivance ... or means to avoid payment” as the unit of prosecution.30 In contrast, Washington’s first degree theft statute does not expressly define the unit of prosecution. Rather, our theft statute is ambiguous as to whether multiple theft schemes or plans over the same period of time and against the same victim may be punished separately. The State also relies on additional authority, none of which is persuasive. The State cites State v. Bobic,31 where our Supreme Court held that Bobic’s multiple conspiracy convictions violated double jeopardy because the unit of prosecution for conspiracy is an agreement and an overt act in furtherance of that agreement rather than the specific criminal objective of the conspiracy.32 The State appears to argue that like the unit of prosecution for conspiracy, the unit of prosecution for first degree theft is not the criminal *212objective to steal but rather any scheme to steal. But conspiracy is not at issue. Thus, Bobic does not apply. In supplemental briefing, the State cites State v. Carosa33 and State v. Hoyt.34 While each case involves multiple thefts, neither case addresses the double jeopardy issue that we consider here. Thus, they are inapposite. We do not address whether the State was free to charge 72 individual counts of theft in this case. Because of our resolution of the double jeopardy issue, we need not reach the question of whether the court erred by determining that the multiple counts did not constitute the same criminal conduct. In sum, viewing the theft statute as a whole, we conclude that former RCW 9A.56.010(17)(c) (1998) does not define the unit of prosecution for first degree theft.35 We reverse the convictions on two of the three counts and remand for resentencing in accordance with this opinion. Webster and Barer, JJ., concur. After modification, further reconsideration denied October 13, 2000. Review denied at 143 Wn.2d 1009 (2001). The three counts of the amended information on which Turner was convicted state in relevant part: *205Count I That [Turner] .. . during a period of time intervening between June 1, 1997, through April 1, 1998, through a series of transactions pursuant to a common scheme or plan, as part of a continuing course of conduct and continuing criminal impulse pursuant to the execution of a general larcenous scheme or plan, with intent to deprive another of property, to-wit: United States currency, did exert unauthorized control over such property belonging to [WCA], by paying Vernon L. Turner unauthorized salary increases and bonuses, that the value of such property did exceed $1,500; Count III That [Turner] . . . during a period of time intervening between June 1, 1997, through April 1, 1998, through a series of transactions pursuant to a common scheme or plan, as part of a continuing course of conduct and continuing criminal impulse pursuant to the execution of a general larcenous scheme or plan, with intent to deprive another of property, to-wit: United States currency, did exert unauthorized control over such property belonging to [WCA], by writing unauthorized checks to Vernon L. Turner and Rita Joseph, a.k.a. Rita Turner, from [WCA’s] corporate account, that the value of such property did exceed $1,500; Count IV That [Turner] . .. during a period of time intervening between June 1, 1997, through April 1, 1998, through a series of transactions pursuant to a common scheme or plan, as part of a continuing course of conduct and continuing criminal impulse pursuant to the execution of a general larcenous scheme or plan, with intent to deprive another of property, to-wit: United States currency, did exert unauthorized control over such property belonging to [WCA], by making unauthorized credit card purchases, that the value of such property did exceed $1,500 [.] (Emphasis added.) State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998) (citing State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995)). Gocken, 127 Wn.2d at 100 (citing North Carolina v. Pearce, 395 U.S. 711, 717, 726, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)). Adel, 136 Wn.2d at 632. Report of Proceedings (May 6, 1999) at 3-4. RAP 2.5(a); Adel, 136 Wn.2d at 631-32. Adel, 136 Wn.2d at 632. Id. at 633-34 (citing Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955)). Adel, 136 Wn.2d at 634; State v. Bobic, 140 Wn.2d 250, 261, 996 P.2d 610 (2000). Adel, 136 Wn.2d at 634. Id. at 634-35. RCW 9A.56.030(1)(a). Adel, 136 Wn.2d at 635 (where the statute fails to indicate whether the Legislature intended to punish a person multiple times for simple possession based on the controlled substance being found in multiple places, lenity dictates that only one count of possession is permitted). Former RCW 9A.56.010(17)(c) (1998), which was amended to what is now RCW 9A.56.010(18)(c) provides: Whenever any series of transactions which constitute theft, would, when considered separately, constitute theft in the third degree because of value, and said series of transactions are a part of a common scheme or plan, then the transactions may be aggregated in one count and the sum of the value of all said transactions shall be the value considered in determining the degree of theft involved. Adel, 136 Wn.2d at 635; State v. Tili, 139 Wn.2d 107, 113, 985 P.2d 365 (1999). RCW 9A.56.030(1)(a). (Emphasis added.) But see Tili, 139 Wn.2d at 113-14 (noting that parallel construction of the statutes for various degrees of rape dictates that the “unit of prosecution” for rape remains the same for the various degrees of rape). State v. Adel, 136 Wn.2d 629, 965 P.2d 1072 (1998). See Till, 139 Wn.2d at 114 (holding that the statutory definition of sexual intercourse indicated that any single act constituted sexual intercourse, making separate acts in the context of a rape charge separate units of prosecution). See State v. Hoyt, 79 Wn. App. 494, 496-97, 904 P.2d 779 (1995) (under former RCW 9A.56.010(12)(c) (1975), review denied, 129 Wn.2d 1004 (1996), a series of third degree thefts committed pursuant to a common scheme or plan may be aggregated into a single count of either first degree theft or second degree theft). Adel, 136 Wn.2d at 634 (the unit of prosecution refers to the act or course of conduct the Legislature defined as punishable). See id. at 635. See Sanabria v. United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978) (Congress, not the prosecutor, establishes and defines offenses). 171 Wis. 2d 711, 492 N.W.2d 174, review denied, 494 N.W.2d 210 (1992). 492 N.W.2d 176. Id. Id. Id. at 177-78. Wis. Stat. § 943.45(1)(e) states that “[n]o person may intentionally obtain .. . telecommunications service .. . by ... [a] contrivance ... or means to avoid payment of the lawful charges .. ..” (emphasis added). 140 Wn.2d 250, 996 P.2d 610 (2000). Id. at 265-66. 83 Wn. App. 380, 921 P.2d 593 (1996). 79 Wn. App. 494, 904 P.2d 779 (1995). State v. Hansen, 122 Wn.2d 712, 717, 862 P.2d 117 (1993) (courts determine legislative intent not by unduly emphasizing any one section of a statute but rather by examining the statute as a whole).
|
opinion_xml_harvard
| 3,019 |
2021-08-12 17:32:26.751159+00
|
020lead
|
t
|
f
| 4,930,253 |
Cox
| null |
U
|
f
|
Published
| 0 |
State v. Turner
|
Turner
|
The State of Washington v. Vernon L. Turner
| null | null | null | null | null | null | null | null | null | 60,150,717 |
No. 44924-9-I
| 0 |
washctapp
|
SA
|
t
|
Court of Appeals of Washington
|
Court of Appeals of Washington
|
8,283,340 |
Mark S. Love, for appellant; Joseph Ewing, for appellee First Pennsylvania Bank, N.A.; Ralph A. Matergia, did not submit a brief on behalf of appellee Pocono International Raceway, Inc.
|
opinion_xml_harvard
| 29 |
2022-10-17 09:02:45.203104+00
|
010combined
|
t
|
f
| 8,316,122 | null | null |
U
|
f
|
Published
| 0 |
World Series of Auto Racing Corp. v. Pocono International Raceway, Inc.
| null |
The World Series of Auto Racing Corp. v. Pocono International Raceway, Inc. and First Pennsylvania Bank, N.A., Intervenor
| null | null | null | null | null | null | null | null | null | 65,494,501 |
Appeal, No. 2104
| 0 |
pasuperct
|
SA
|
t
|
Superior Court of Pennsylvania
|
Superior Court of Pennsylvania
|
4,988,211 |
Vacated and Remanded Holeman
|
opinion_xml_harvard
| 4 |
2021-09-25 22:09:33.654408+00
|
020lead
|
t
|
f
| 5,166,981 |
Holeman
| null |
U
|
f
|
Published
| 0 |
Mahmoud v. Capitol Park Tower, LLC
|
Mahmoud
|
Mahmoud v. Capitol Park Tower, LLC
| null | null | null | null | null | null | null | null | null | 60,483,432 |
16-CV-381
| 0 |
dc
|
S
|
t
|
District of Columbia Court of Appeals
|
District of Columbia Court of Appeals
|
6,652,137 |
Nob val, J. A reversal of the judgment is asked on account of certain rulings of the court below during the progress of the trial, alleged errors in the instructions, and that the evidence is insufficient to support the verdict. All of these matters, to be available here, must have been raised by the motion for a new trial. (Miller v. Antelope County, 35 Neb. 237; Viergutz v. Aultman, 46 Neb. 141; Dillon v. State, 39 Neb. 92; Losure v. Miller, 45 Neb, 465; Barr v. *472City of Omaha, 42 Neb. 341; Barton v. McKay, 36 Neb. 632.) Tbe transcript contains a paper designated as a “motion for a new trial,” but tbe same is not authenticated by tbe clerk of tbe district court, whose certificate is as follows: “I, M. S. Campbell, clerk of tbe district court within and for Otoe county, hereby certify tbe foregoing to be a true transcript of the record in tbe within entitled cause; petition, amended petition, stipulation, answer, amended reply, instructions asked by plaintiff, refused, instructions asked by tbe defendant, refused, instructions of tbe court, journal entries, and bond, as the same appear on file and of record in my office. “Witness my band and tbe seal of said court this thirty-first day of May, eighteen hundred and ninety-five. “M. S. Campbell, Cleric. “By Minnie G-ilman, Deputy” This is a proper authentication merely of the matters specifically enumerated in the certificate, of which the motion for a new trial is not one. The authentication would have been complete and sufficient had it ended with the language, “hereby certify the foregoing to be a true transcript of the record in the within entitled cause.” But what follows these words limits the force and effect of the certificate to the particular matters therein designated. The motion for a new trial, therefore, cannot be considered. (Romberg v. Fokken, 47 Neb. 198, and cases there cited.) The judgment is AFFIRMED.
|
opinion_xml_harvard
| 323 |
2022-07-20 20:55:11.67599+00
|
020lead
|
t
|
f
| 6,769,311 |
Val
| null |
U
|
f
|
Published
| 0 |
Hake v. Woolner
|
Hake
|
James A. Hake v. Samuel Woolner
|
<p>Ebbob from the district court of Otoe county. Tried below before Chapman, J.</p>
| null | null |
<p>1. Beview: Motion fob New Tbtal. Billings of tie court below during the trial, instructions given and refused, and the sufficiency of the evidence to sustain the verdict, to be available in this court, must have been raised by the motion for a new trial.</p> <p>2. Transcript for Beview: AUTHENTICATION, A paper included in the transcript purporting to be a motion for a new trial will be disregarded, unless authenticated by the certificate of the clerk of the district court.</p>
| null | null | null |
Affirmed.
| null | 63,750,517 |
No. 8163
| 0 |
neb
|
S
|
t
|
Nebraska Supreme Court
|
Nebraska Supreme Court
|
9,035,739 |
OPINION MILLER, United States Magistrate Judge. On January 27,1993, a complaint was filed by the United States against cocoa beans stored at Lambert’s Point Docks in Norfolk, Virginia. The next day the United States Marshals arrested the cocoa beans and served the warrant of arrest upon Lambert’s Point Docks, Incorporated. It is undisputed that Lambert’s Point Docks, Incorporated has acted as a third-party custodian of the cocoa beans warehoused at its facility since the Marshals seized the beans on January 28, 1993. On April 6,1993, an Initial Pretrial Conference was held in this ease. At that time the trial date was set for October 25, 1993. The cocoa beans remain in the custody of Lambert’s Point Docks, Incorporated. On May 4, 1993, Lambert’s Point Docks, Incorporated filed a Motion for Leave to Fumigate the Cocoa Beans Warehoused at Lambert’s Point Docks. This motion was served on all other parties to the proceedings. No claimant objected to the fumigation. On May 17, 1993, the United States filed a Memorandum of Law in Opposition to Claimant’s Motion for Leave to Fumigate the Seized Articles. Lambert’s Point Docks filed a reply brief on May 18, 1993. On May 21, 1993, the Court heard argument on the Motion for Leave to Fumigate the Seized Articles. On May 24,1993, the Court entered an order granting the motion to fumigate the arrested cocoa beans. The Court advised the parties that an opinion setting forth its reasons for the fumigation would follow. *121Lambert’s Point Docks, Incorporated advised the Court that Spring in Norfolk has brought forth more than blossoms on the dogwood trees. The warm weather has brought forth an abundance of insects and additional rodents to the cocoa beans. The United States does not dispute this assertion. The dispute over the beans boils down to a question of jurisdiction. Without pointing to any specific authority, Lambert’s Point Docks suggests that the Court has jurisdiction to permit the warehouser of seized food articles to fumigate the food articles in order to preserve the beans. The United States, with a similar dearth of cited authority, asserts that the Court has no jurisdiction to permit the fumigation of the cocoa beans to eradicate the insects and rodents. The briefs of the parties in this ease establish that the Court cannot permit the reconditioning of the cocoa beans until the beans have been condemned. See 21 U.S.C. § 334(b)(1) and In re United States, 140 F.2d 19, 20 (5th Cir.1943); United States v. Alcon Laboratories, 636 F.2d 876, 883-84 (1st Cir.), cert. denied, 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed.2d 388 (1981); United States v. 76,552 Pounds of Frog Legs, 423 F.Supp. 329 (S.D.Tex.1976). The claimant, Lambert’s Point Docks, suggests that Frog Legs provides authority which permits the Court to allow fumigation in order to prevent the wastage of food products. The Court agrees with the parties that it has no jurisdiction to order reconditioning of the cocoa beans prior to the condemnation of the beans. The Court further agrees with all parties that the mere fumigation of the insects and rodents would not raise these beans up from their alleged insanitary condition to an edible food product without further reconditioning. Stating the obvious does not resolve this case. As the Court suggested at oral argument, authority exists under the Supplemental Rules for Certain Admiralty and Maritime Claims to give directions to the person having the warrant of seizure to preserve the property. The Court cited Rule E(4)(d), which states: Directions With Respect to Property in Custody. The marshal or other person or organization having the warrant may at any time apply to the court for directions with respect to property that has been attached or arrested, and shall give notice of such application to any or all of the parties as the court may direct. Both the attorney for the plaintiff and the attorney for the claimant, Lambert’s Point Docks, suggested that the Court had no authority under the Supplemental Rules for Certain Admiralty and Maritime Claims to give directions concerning this res. Counsel for claimants, Atlantic Cocoa Company, Car-gill, Incorporated’ and Lonray Cocoa, Inc., suggested to the Court that the Admiralty Rules did apply to the care, custody and control of the beans until the time of the condemnation and that the Court did have jurisdiction. The Court concludes that Rule E(4)(d) of the Supplemental Rules of Admiralty provides the authority to order fumigation of the cocoa beans. Title 21, United States Code Section 334(b) states: The article, equipment, or other thing proceeded against shall be liable to seizure by process pursuant to the libel, and the procedure in,; eases under this section shall conform, as nearly as may be, to the procedure in admiralty; ... Rule A of the Supplemental Rules for Certain Admiralty and Maritime Claims states: These Supplemental Rules apply to the procedure in admiralty and maritime claims within the meaning of Rule 9(h) with respect to the following remedies: (1) Maritime attachment and garnishment; (2) Actions in rem; (3) Possessory, petitory, and partition actions; (4) Actions for exoneration from or limitation of liability. These rules also apply to the procedure in statutory condemnation proceedings analogous to maritime actions in rem, whether within the admiralty and maritime jurisdiction or not. Except as otherwise provided, references in these Supplemental *122Rules to actions in rem include such analogous statutory condemnation proceedings. The general Rules of Civil Procedure for the United States District Courts are also applicable to the foregoing proceedings except to the extent that they are inconsistent with these Supplemental Rules. These bags of beans have been seized. The warrant has been served on Lambert’s Point Docks. Lambert’s Point Docks is in possession of the warrant and by its Motion for Leave to Fumigate the Seized Articles is in essence applying to the Court for directions with respect to the property that has been arrested. The action by Lambert’s Point Docks is in full compliance with the Admiralty Rules. Counsel for the plaintiff and for Lambert’s Point Docks suggested that the Rules of Civil Procedure for United States District Courts are applicable to this case after the seizure and that the Supplemental Rules for Certain Admiralty and Maritime Claims do not apply. They, however, point to no authority for this proposition. The plaintiff suggests that the Court has no authority to deal with beans that it has ordered seized and arrested but has not yet condemned. The claimant, Lambert’s Point Docks, suggests that the Court has some general power to prevent wastage of food as its authority to order the fumigation of the beans. Neither is correct. The Supplemental Admiralty Rules clearly give this Court authority to provide directions to the organization in control of the cocoa beans during the pendency of this law suit. The Court notes that neither counsel nor the Court have discovered a case on point. The Court suspects that there is no definitive law on this issue because it is unlikely that the absurd position of the United States has been asserted seriously in a previous case. It seems irrational for a plaintiff to watch the destruction of property when fumigation conducted at the expense and effort of another party would preserve the res. The objection of the United States can be only explained as a club to pressure Lambert’s Point Docks, Incorporated, into a condemnation settlement agreement. While the tactic is understandable, the result is not acceptable. Lambert’s Point Docks, Incorporated has a right to pursue its defense in this case and a right to rely on the Court to protect the cocoa beans during the pendency of the condemnation proceedings. Therefore, the Court GRANTS LEAVE to Lambert’s Point Docks, Incorporated to apply fumigation gas to the beans in order to exterminate the insects and rodents. The Clerk shall mail a copy of this Opinion to all counsel of record.
|
opinion_xml_harvard
| 1,311 |
2022-11-27 16:07:07.501723+00
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020lead
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t
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| 9,042,392 |
Miller
| null |
U
|
f
|
Published
| 0 |
United States v. 155/137 Pound Burlap Bags
| null |
United States v. 155/137 POUND BURLAP BAGS, etc.
| null | null | null | null | null | null | null | null | null | 66,308,619 |
Action No. 2:93CV63
| 0 |
vaed
|
FD
|
t
|
E.D. Virginia
|
District Court, E.D. Virginia
|
577,210 |
956 F.2d 65 UNITED STATES of America, Plaintiff-Appellee, v. Robert Gary CRAIGO, Defendant-Appellant. No. 90-5351. United States Court of Appeals, Fourth Circuit. Argued March 8, 1991. Decided Feb. 3, 1992. George Howard Lancaster, Jr., Asst. Federal Public Defender, Charleston, W.Va., argued, for defendant-appellant. Sanford Benjamin Bryant, Office of the U.S. Atty., Huntington, W.Va., argued (Michael W. Carey, U.S. Atty., John P. Rowley, III, Asst. U.S. Atty., on brief), for plaintiff-appellee. Before WIDENER and SPROUSE, Circuit Judges, and WARD, Senior District Judge for the Middle District of North Carolina, sitting by designation. OPINION WIDENER, Circuit Judge: 1 Appellant Robert Gary Craigo was indicted on December 5, 1989 for possessing a firearm after being previously convicted of a felony in violation of 18 U.S.C. § 922 (g)(1). On March 7, 1990, after a one day trial, a jury convicted him. The presentence report calculated the base offense level at 9 with a criminal history category of V. The United States objected, arguing that the base offense level should be increased due to Craigo's attempt to obstruct justice by committing perjury at trial. The United States also objected to the criminal history category because they felt that it failed to adequately measure Craigo's past criminal conduct. 2 On May 21, 1990, Craigo was sentenced. The court found that Craigo committed perjury at trial and increased his offense level to 11. The court further agreed with the government and raised Craigo's criminal history category to VI. Craigo was then sentenced in the middle of the guideline range to 30 months. We affirm the conviction, but vacate the sentence and remand for reconsideration in the light of United States v. Dunnigan, 944 F.2d 178 (4th Cir.1991). 3 * Craigo was arrested on February 18, 1989 when two Charleston West Virginia police officers discovered Craigo and his cousin, Dane Powell, in a parked car with cocaine and drug paraphernalia. After being placed under arrest, Craigo volunteered to the officers that "he had a gun in the glove compartment" of the car. The officers searched the glove compartment and located a Smith & Wesson .44 Magnum revolver fully loaded with hollow points. Craigo was advised of his Miranda rights at the scene and again at the police station. He then gave a written statement where he admitted that the gun was his, that he had possessed it a couple of weeks and that he had bought it on Summers Street for $50.00. After completing his statement, Craigo additionally informed the officers that he was an escapee from the West Virginia State Corrections Work Release Center. When asked, Craigo agreed that this made him a convicted felon. When next asked if he still wanted to admit ownership of the gun, Craigo replied that he did. 4 Six months later, in August, two ATF agents interviewed Craigo in jail. They advised him that they were there to investigate his possession of a firearm. Craigo signed a waiver of rights and gave the agents a statement denying ownership of the gun and claiming that it actually belonged to his cousin Dane Powell. He admitted that he possessed the gun on occasions in January and February other than on the night of his arrest, and stated that he and Powell had gone to Virginia to purchase ammunition for it. 5 The agents then interviewed Powell, who gave a written statement claiming that Craigo owned the gun and had bought it on Summers Street in January or February of that year, exactly as Craigo had first told the arresting officers. 6 In late February, 1990, approximately one week before Craigo's trial, representatives of the government met with Powell to discuss his testimony. Powell told them that his August statement was wrong and that he, not Craigo, owned the gun. 7 At trial, Powell testified that he owned the gun. He denied that he was only claiming to be the owner of the gun because it would not be illegal for him to possess the gun. He testified that he lied to the ATF agents in August because Craigo had told him to say that the gun was Craigo's on the night of the arrest and because he was then angry with Craigo since the arrest jeopardized his own position as administrator of his parents' estate. 8 Craigo took the stand in his own defense. He admitted to telling the arresting officers that he owned the gun, but claimed he invented the story to protect his cousin Powell from being arrested for possession of a gun he had reason to believe was stolen. He further stated that he knew that a charge of that sort could adversely affect Powell's position as administrator of his parents' estate. He stated that he felt free to tell the ATF agents the truth in August because by then he had found out that the gun was not stolen. He denied that he told the agents that he had possessed the gun on occasions in January and February other than on the night of his arrest. II 9 Craigo raises two issues on appeal. First, whether the court properly charged the jury regarding witness credibility and impeachment by prior inconsistent statements; and, second, whether it was clearly erroneous that the court found Craigo to have obstructed justice by committing perjury at trial, and if so, whether that finding could constitute obstruction of justice so as to result in an increase in his base offense level. 10 * Craigo argues that the district court erroneously instructed the jurors that they could only give "limited" credibility to the testimony of a witness whom they found had been impeached. The Court instructed: 11 Now, the testimony of a witness may be discredited or impeached by showing that he previously made statements which are inconsistent with his statements here in court. The earlier contradictory statements are admissible only to impeach the credibility of the witness and they are not offered to establish the truth of those earlier statements. It is your province to determine the credibility, if any, to be given to the testimony of a witness whom you find to have been impeached. And if a witness has been shown to you to have testified falsely concerning any material or important matter in this case, then you obviously have a right to distrust such witness' testimony in all other particulars and you may reject all the testimony of that witness or you may give it just such limited credibility as you think it should deserve. (Emphasis added). 12 Craigo argues that the instruction made the jurors think that they could only give limited weight to the testimony. Therefore, it did not fairly state the controlling law. 13 This court will not review jury instructions for "technical error." United States v. Cobb, 905 F.2d 784 , 788 (4th Cir.1990). Neither is reversal of a conviction required unless there is a "reasonable likelihood" that the jury misconstrued the instruction. Boyde v. California, 494 U.S. 370 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990). The phrase "limited credibility" was but one part of a lengthy charge given the jury. Although we feel the instruction was clearly error, it must be viewed in the light of the totality of the instructions given. Id.; Cupp v. Naughten, 414 U.S. 141 , 146-47, 94 S.Ct. 396 , 400-01, 38 L.Ed.2d 368 (1973); Briley v. Bass, 750 F.2d 1238 , 1243 (4th Cir.1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1855 , 85 L.Ed.2d 152 (1985). In this regard, it was harmless error. Such a technical error, which did not "prejudice the jury's consideration of the dispositive issue," does not require reversal. See United States v. Davis, 739 F.2d 172 , 175 (4th Cir.1984). Because the court ultimately told the jury it was free to give whatever weight it wanted to the testimony, it fairly stated the controlling law and did not prejudice Craigo. B 14 Craigo next argues that his trial testimony could not constitute obstruction of justice. He concedes that, under United States v. Grayson, 438 U.S. 41 , 98 S.Ct. 2610 , 57 L.Ed.2d 582 (1978), a defendant's perjury in the denial of the charge formerly might have been considered when a court was imposing a sentence. However, Craigo argues that under the Sentencing Guidelines the obstruction of justice charge punishes him for his exercise of his constitutional right to testify in any event, and especially because the evidence doesn't support the obstruction of justice charge. Although Craigo contends that his freely admitted inconsistent statements were the only testimony given other than a general denial of ownership, his convoluted explanation of why he lied in the first place was more than a simple denial of guilt. The district court found that Craigo's reason that he was concerned for Powell's position as administrator of his parents' estate was ludicrous and perjurious. Although we are of opinion that the district court's conclusion that Craigo's testimony was ludicrous and perjurious is supported by the evidence and is not clearly erroneous, United States v. Dunnigan does not permit a district court in sentencing to enhance a guidelines sentence under Guideline § 3C1.1 for lying testimony by a defendant in denial of the charges against him because that guideline is an intolerable burden on the defendant's right to testify. Dunnigan, 944 F.2d at 185. 15 Accordingly, the conviction in this case is affirmed, but Craigo's sentence is vacated and the case is remanded for re-sentencing in the light of Dunnigan and without an enhancement under Sentencing Guideline § 3C1.1 for lying as aforesaid. 16 AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.
|
opinion_html_with_citations
| 1,606 |
2011-08-23 10:15:52+00
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010combined
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| 577,210 |
Middle, Sprouse, Ward, Widener
| null |
RU
|
f
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Published
| 2 |
United States v. Robert Gary Craigo
| null |
UNITED STATES of America, Plaintiff-Appellee, v. Robert Gary CRAIGO, Defendant-Appellant
| null | null |
<parties id="b151-9">
UNITED STATES of America, Plaintiff-Appellee, v. Robert Gary CRAIGO, Defendant-Appellant.
</parties><br><docketnumber id="b151-12">
No. 90-5351.
</docketnumber><br><court id="b151-13">
United States Court of Appeals, Fourth Circuit.
</court><br><otherdate id="b151-14">
Argued March 8, 1991.
</otherdate><decisiondate id="AUH">
Decided Feb. 3, 1992.
</decisiondate><br><attorneys id="b152-6">
<span citation-index="1" class="star-pagination" label="66">
*66
</span>
George Howard Lancaster, Jr., Asst. Federal Public Defender, Charleston, W.Va., argued, for defendant-appellant.
</attorneys><br><attorneys id="b152-7">
Sanford Benjamin Bryant, Office of the U.S. Atty., Huntington, W.Va., argued (Michael W. Carey, U.S. Atty., John P. Row-ley, III, Asst. U.S. Atty., on brief), for plaintiff-appellee.
</attorneys><br><judges id="b152-8">
Before WIDENER and SPROUSE, Circuit Judges, and WARD, Senior District Judge for the Middle District of North Carolina, sitting by designation.
</judges>
| null | null | null | null | null | null | 651,391 |
90-5351
| 0 |
ca4
|
F
|
t
|
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
1,402,188 |
471 P.2d 647 (1970) CENTRAL INVESTMENT CORPORATION OF DENVER, a corporation, Plaintiff in Error, v. CONTAINER ADVERTISING CO., a corporation, George Aubrey and Al J. Hickerson, individuals, Defendants in Error. No. 70-071, (Supreme Court No. 23146.) Colorado Court of Appeals, Div. I. April 28, 1970. Ireland, Stapleton, Pryor & Holmes, Robert C. Hawley, Denver, for plaintiff in error. Rodden, Cooper, Woods & Mitchell, Thomas J. Mitchell, Denver, for defendants in error. Selected for Official Publication. SILVERSTEIN, Chief Judge. This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court. Central Investment Corporation (CIC) brought action against Container Advertising Co. (Container) to recover $150,000 loaned to Container and against Container, and Aubrey and Hickerson, officers of Container, for specific performance of an alleged contract. Container confessed judgment on the claim for money loaned to it and the trial court, at the end of plaintiff's case in a trial without a jury, granted the defendants' motion to dismiss the claim for specific performance. From this order and judgment of dismissal CIC appealed. We affirm the trial court. In 1963 Container entered into a Loan Agreement with CIC pursuant to which it borrowed from CIC the $150,000 evidenced by twenty debenture bonds. As part of the overall agreement the executive vice-president of CIC, Mulvihill, became a member of the board of directors of Container. By July 1, 1965, Container was in default on CIC's loan and Aubrey and Hickerson held numerous discussions with Mulvihill to try to work out ways and means to repay the loan. These culminated in a proposed agreement dated September 17, 1965 and delivered to CIC on September 21, 1965. An exhibit referred to in the proposal was delivered September 27, 1965. The proposal provided for a substantial recapitalization of Container, conversion of the debentures held by CIC and conversion of other long term debts into stock. The entire plan of reorganization was by the terms of the proposal to be completed by November 1, 1965. *648 The portions of the proposal which are relevant to the issues before us on this appeal are as follows: "Will you kindly examine this proposal and let us know your reaction to it at the earliest possible time. We wish to point out that this is not an inflexible proposal, but we also point out that a recapitalization along these lines is imperative. * * * * * * "Messrs. Aubrey and Hickerson guarantee that (i) the Company will carry out the terms of this proposal in the event it is accepted by Central Investment Corporation; (ii) that they will invest $75.000 in the Company on or before November 1, 1965, in accordance with the terms of this agreement and for the purposes mentioned herein; or (iii) they will purchase all of the Debentures owned by Central Investment Corporation for $50,000, payable on or before November 1, 1965." (Emphasis added.) CIC prepared a written acceptance of the offer dated October 8, 1965, but deliberately withheld mailing the letter until October 19 so that it was not received by the offerors until October 21. The evidence established that CIC was well aware of the necessity of the reorganization of Container and of the complexity of the work required in order to complete performance by November 1. The trial court found that the acceptance was not timely made, "that the proposal of September 17, 1965 was not properly or legally consummated", and that there was no enforceable agreement. We may not interfere with that finding if its judgment for the defendant was supported by the evidence. Teodonno v. Bachman, 158 Colo. 1 , 404 P.2d 284 . The test for an offer's duration in the absence of an express or implied limitation is a "reasonable time". Minneapolis & St. Louis R. Co. v. Columbus Rolling Mill Co., 119 U.S. 149 , 7 S. Ct. 168 , 30 L. Ed. 376 . A reasonable time for the acceptance of an offer is that which is reasonable to the offeror rather than to the offeree. As stated in 1 Corbin on Contracts § 36, it "is the time that a reasonable man in the exact position of the offeree would believe to be satisfactory to the offeror. It is not the time that the offeree would like to have, in order to watch the market or adjust his other affairs or to make estimates or calculations, however reasonable it may be for him to desire the necessary time. * * * * * * * * * "The purpose of the offeror, to be attained by the making and performance of the contract, will affect the time allowed for acceptance, if it is or should be known to the offeree. In such case there is no power to accept after it is too late to attain that purpose." The evidence in the present case substantiates the trial court's finding that acceptance of the offer was not made within a reasonable time under the circumstances and that there was, therefore, no binding contract. The judgment of the trial court is affirmed. ENOCH and PIERCE, JJ., concur.
|
opinion_html_with_citations
| 867 |
2013-10-30 05:58:23.430832+00
|
010combined
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f
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| 1,402,188 |
Silverstein
| null |
L
|
f
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Published
| 1 |
Central Invest. Corp. of Denver v. CONTAINER ADV. CO.
| null | null | null | null | null | null | null | null | null | null | null | 951,014 |
70-071, (Supreme Court No. 23146.)
| 0 |
coloctapp
|
SA
|
t
|
Colorado Court of Appeals
|
Colorado Court of Appeals
|
680,244 |
37 F.3d 1493 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Albert Wallace GRADES, Plaintiff-Appellant, v. Ron GREGORY, Former Commissioner; Nicholas Hunn, Commissioner; William Duncil, Warden; Roy White, Hospital Administrator; Ernest Hart, M.D., Defendants-Appellees. No. 93-6688. United States Court of Appeals, Fourth Circuit. Submitted: Nov. 18, 1993. Decided: Oct. 21, 1994. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, District Judge. (CA-93-29-E) Albert Wallace Grades, Appellant Pro Se. Rita A. Stuart, WEST VIRGINIA DIVISION OF CORRECTIONS, Charleston, WV; John Everett Busch, Peter Gregory Zurbuch, BUSCH & TALBOTT, Elkins, WV, for Appellees. N.D.W.Va. VACATED AND REMANDED. Before WIDENER, Circuit Judge, and PHILLIPS and SPROUSE, Senior Circuit Judges. OPINION PER CURIAM: 1 Albert Wallace Grades appeals the district court's order denying his motion for voluntary dismissal of his 42 U.S.C. Sec. 1983 (1988) action without prejudice and dismissing his action with prejudice. We find this disposition constituted an abuse of the district court's discretion, and vacate the dismissal and remand for further proceedings. 1 2 After being informed of his right to present pleadings or other materials in opposition to Defendants' dispositive motions, but before the expiration of the time extension in which he was permitted to so respond, Grades moved for the voluntary dismissal of his complaint without prejudice. No ruling was forthcoming. After transfer of the case to another division and trial judge and four months of inactivity in the case, counsel for Defendants Roy White and Ernest Hart wrote the new trial judge, reasserting Defendants' pending motions to dismiss and requesting dismissal of the entire action with prejudice. Without giving Grades notice or an opportunity to respond and without providing a rationale for its ruling, the court dismissed the action with prejudice. 3 A motion for voluntary dismissal under Fed.R.Civ.P. 41(a)(2) 2 "should not be denied absent substantial prejudice to the defendant." Andes v. Versant Corp., 788 F.2d 1033 , 1036 (4th Cir.1986). In this case, Defendants made no allegation and the district court made no finding of substantial prejudice. Standing alone, the court's subsequent justification for its ruling, set forth in its denial of Grades' Rule 59(e) motion as Defendants' active engagement in the case and expenditure of resources in preparing the defense, does not constitute substantial prejudice for purposes of Rule 41(a)(2). Davis v. USX Corp., 819 F.2d 1270 , 1274, 1276 (4th Cir.1987). 4 Moreover, in dismissing Grades' complaint with prejudice, the district court deprived Grades of the minimum requirements of fundamental fairness, including advance notice of its inclination toward such dismissal, the opportunity to respond to defense counsel's request for that result, and the option of allowing his case to proceed to judgment on the merits. Andes, 788 F.2d at 1037. The court's failure to articulate its rationale for the dismissal with prejudice also precludes adequate appellate review of that ruling. Id. 5 We find that the district court abused its discretion in denying Grades' motion to dismiss without prejudice and in dismissing Grades' complaint with prejudice. Accordingly, we grant leave to proceed in forma pauperis, vacate the dismissal of this action, and remand for further proceedings consistent with this opinion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. 1 Grades also appeals the district court's denial of his Fed.R.Civ.P. 59(e) motion for reconsideration. The vacatur herein of the underlying dismissal renders consideration of that denial unnecessary 2 Rule 41(a)(2) is applicable in this case because Grades' motion for voluntary dismissal was filed after Defendants' dispositive motions, see Fed.R.Civ.P. 41(a)(1)(i), and because no stipulation of dismissal by all parties was filed, see Fed.R.Civ.P. 41(a)(1)(ii)
|
opinion_html_with_citations
| 650 |
2012-04-17 01:34:32+00
|
010combined
|
f
|
f
| 680,244 | null | null |
R
|
f
|
Published
| 0 | null | null |
Albert Wallace Grades v. Ron Gregory, Former Commissioner Nicholas Hunn, Commissioner William Duncil, Warden Roy White, Hospital Administrator Ernest Hart, M.D.
| null | null | null | null | null | null | null | null | null | 1,038,487 |
93-6688
| 0 |
ca4
|
F
|
t
|
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
8,840,666 |
Mr. Justice Thomson delivered the opinion of the court.
|
opinion_xml_harvard
| 9 |
2022-11-26 16:40:07.09646+00
|
020lead
|
t
|
f
| 8,855,222 |
Thomson
| null |
U
|
f
|
Published
| 0 |
Mercantile Commercial Bank v. Smith
| null |
Mercantile Commercial Bank v. Edgar C. Smith and Jacob Handelsman
| null | null | null | null | null | null | null | null | null | 66,121,367 |
Gen. No. 28,984
| 0 |
illappct
|
SA
|
t
|
Appellate Court of Illinois
|
Appellate Court of Illinois
|
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