Courts t&wkey;29(i — Federal Courts — Jurisdiction—Suit by Government Contractor.
That a domestic corporation was operating its sawmill, in the execution of a contract with the government to manufacture and sell to the government its full output of battleship decking, and had pledged to the government the entire use of its sawmill tor the manufacture thereof, did not give a federal District Court jurisdiction of a suit to restrain defendants from intimidating and running off the corporation’s laborers, under the statute giving the District Court jurisdiction of suits by the United States, or by any officer thereof, authorized by law to sue, as the suit was not brought by the United States, or by its officers or agents, but by an independent contractor, and moreover the statute does not give jurisdiction of suits by agents of the United States.,
[Ed. Note. — For other cases, see Courts, Cent. Dig. § 838.]
","id":8819087,"judges":"Jack","opinions":[{"author_str":"Jack","ocr":true,"opinion_id":8803679,"opinion_text":"\nJACK, District Judge\n(after stating the facts as above). The District Courts of the United States have jurisdiction in “all suits of a civil nature, at common law or in equity, brought by the United States, *994or by any officer thereof authorized by law to sue * * * ” (Judicial Code [Act March 3, 1911, c. 231] § 24, 36 Stat. 1091 [Comp. St. 1916, § 991]); but no jurisdiction is conferred on the federal courts in suits by an “agent” of the United States. This suit is brought neither by the United States, nor by an officer thereof, and this court is therefore without' j urisdiction.\nCounsel cites the case of Western Union Tel. Co. v. City Council of Charleston et al. (C. C.) 56 Fed. 419, in which an injunction was sought against the defendant, enjoining it from enforcing a license tax of $500 per annum. Motion was made to dismiss the bill for want of jurisdic7 tion, the amount of the license being less than $2,000 (the then minimum jurisdictional amount), to which- motion plaintiff replied that by reason of its having accepted the provisions of the act of Congress of July 24, 1866 (14 Stat. 221, c. 230 [Comp. St. 1916, §§ 10072-10077]), putting its lines at th,e service of the Unjted States for postal, military, and other purposes, and giving precedence to its messages over all other business, at rates to be fixed by the Postmaster General, it thereby became an agent of the United States, and, as such entitled to come into United States courts, without regard to the amount involved, in all matters affecting its existence as such agent.\nThe court sustained the jurisdiction on this ground, but further held that jurisdiction might be maintained on other grounds; that the value of the amount in controversy was not merely the amount of the annual license, but the value to the company of the injunction, which was of much more value than the sum immediately demanded, the right to conduct its business being involved and the value of its franchise threatened. The court clearly had jurisdiction on this latter ground, but I think the cases cited by the court do not sustain- its jurisdiction on the ground of plaintiff’s being a federal agency.\nIn Yardley v. Dickson (C. C.) 47 Fed. 835, the first case cited, the plaintiff was receiver of a national bank and was held to be an “officer of the United States”; and in the other case, United States v. Shaw (C. C.) 39 Fed. 435, 3 L. R. A. 232, the government itself was plaintiff, suing on a postmaster’s bond.\nIn the case at bar the plaintiff does not claim to be an officer of the United States (it could not, being a corporation), but it js contended that it is an agent of the government. I think it is not an agent, but an independent contractor, which has engaged to sell its output to the government.\nThis court is without jurisdiction. The restraining orders heretofore issued are recalled,- and plaintiff’s bill dismissed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"pickering-land-timber-co-v-wisby","summary":"In Equity. Suit by Pickering' Land & Timber Company against William Wisby, Sr., and others for an injunction. On question of jurisdiction. Plaintiff, alleging that defendants had conspired together to intimidate and run off the negro labor employed at its sawmill, filed petition praying for writs of injunction. The plaintiff is a Louisiana corporation, and this court is claimed to have jurisdiction solely on the ground that it was operating its plant in the execution of a contract with the United States government to manufacture and sell to it its full output of battleship decking, and that it pledged to the government the entire use of its sawmill for the manufacture of such lumber and lumber products as might be needed in the prosecution of the war with Germany, that it is therefore operating its mill as an agent of the United States, and that the threatened acts of the defendants, if not enjoined, will prevent its manufacturing and delivering to the United States the lumber thus contracted for."} {"attorneys":"James W. & Edward C. Craig, W. H. Clinton and S. I. Headley, for appellant., F. T. O’Hair, F. W. Dundas and H. S. Tanner, for appellees.","case_name":"Huston v. City Gas & Electric Co.","case_name_full":"Abraham B. Huston v. City Gas & Electric Company","case_name_short":"Huston","citation_count":0,"citations":["158 Ill. App. 307"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1910-10-18","date_filed_is_approximate":false,"disposition":"Reversed and remanded.","headnotes":"1. Corporations—powers of public service. A public service company in the conduct of its business is empowered to make such reasonable rules and regulations as are required by good practice and as are consistent with the practical operation of its plant and to require compliance therewith by those dealing with it.
2. Corporations'—construction of franchise ordinance. An ordinance granting a- franchise or conferring privileges upon a public service corporation is to be given a reasonable nad practical construction.
3. Corporations—powers of public service, supplying heat. A corporation engaged in the business of supplying heat to buildings and apartments of various kinds has the right in connection with the proper and practical conduct of its business temporarily to disconnect its heating system from buildings or apartments to which it has been supplying heat.
","id":8825454,"judges":"Baume","opinions":[{"author_str":"Baume","ocr":true,"opinion_id":8810242,"opinion_text":" Mr. Justice Baume delivered the opinion of the court. The complainants, Abraham B. Huston and thirty-six other residents of the city of Paris, filed their bill in equity in the Circuit Court of Edgar county against the defendant, City Gas and Electric Company, alleging that said defendant was engaged in the business of furnishing gas, electric light and hot water for the heating of dwellings, offices, storerooms and buildings in said city of Paris, which hot water was conveyed by pipes leading from the plant of said defendant through and under the streets and alleys in said city to the buildings and apartments to be heated; that each of the complainants installed in their respective buildings and apartments a sufficient number of feet of radiation with the necessary and sufficient pipes connected therewith to properly and comfortably heat said buildings and apartments when connected with the pipes and mains of the defendant; that on etc., and more than five years prior thereto, the complainants and each of them by and with the consent of the defendant and in pursuance of contracts in that behalf connected their said radiators and pipes with the mains and pipes of the defendant for the purpose aforesaid and that the defendant had by means thereof during the period from October 1 to May 1 of each year furnished and provided the complainants with sufficient heat to properly and comfortably and satisfactorily heat their respective buildings and apartments; that on June 23, 1904, the city council of the city of Paris duly enacted an ordinance fixing the maximum charge to consumers for hot water heating at 17 cents per square foot per year, which amount the complainants and each of them had fully paid to the defendant. The bill further alleges on information and belief that the defendant threatens and intends, and will begin on October 1, 1909, to disconnect the pipes and radiators in complainants’ buildings and apartments so that hot water will not be conveyed thereto unless the complainants and each of them enter into a contract in writing with the defendant whereby they would be bound to install in their said buildings and apartments a large amount of additional radiation, or pay to the defendant for .such additional radiation at the rate of 17 cents per square foot per year whether such radiation was installed or not; that if the complainants are deprived of heat as threatened by the defendant it will materially depreciate the market and rental value of their buildings and apartments and will endanger the lives and health and comfort of the complainants and their families and cause great pecuniary loss to those of the complainants who are engaged in business and to those of said complainants who have rented their buildings and apartments to others for hire; that the defendant had already attempted to disconnect from its heating system the residence of the complainant, A. B. Huston, and would have so disconnected the same if it had not been prevented by the police officers of said city of Paris. The bill prays that the defendant may be restrained from disconnecting its pipes used in conveying hot water into the pipes and radiators of the complainants and from doing anything to said pipes that will prevent the hot water being so conveyed or from in any manner interfering with the pipes and radiators of the complainants. A demurrer to said bill was overruled by the court and upon its motion the defendant was given leave to answer. After answer filed the defendant moved the court to dissolve the temporary injunction theretofore issued, which motion was denied, and the complainants having filed their general replication to the answer of the defendant, the cause was heard by the court on oral and documentary evidence and a decree entered in accordance with the prayer of the bill. The evidence in the record discloses substantially the following state of facts: The corporate organization of the defendant was effected in July, 1904, and it thereafter succeeded to the business which had theretofore been conducted in the city of Paris by the Paris Gas, Light & Coke Co. and the receivers of said company and the purchasers of the property and franchises of said company at a receiver’s sale. By an ordinance of the city of Paris passed June 23, 1904, the predecessors of the defendant were authorized and empowered to lay and maintain pipes in and across the streets, alleys and public grounds of said city for the purpose of carrying hot water for heating and domestic purposes to any building public or private, and to use and maintain the pipes theretofore laid for said purpose by the Paris Gas, Light & Coke Company upon the conditions among others that they, their successors or assigns, should furnish good service and that the maximum charge to consumers for hot water heating should not exceed 20 cents per square foot per year for less than 250 square feet of radiation, and 17 cents per square foot per year for more than 250 square feet of radiation. In almost every instance here involved the several hot water heating plants were installed during the operation of the system by the predecessors of the defendant and continued to be operated by the defendant presumably upon the terms and conditions which prevailed when the said plants were first installed. During the years •1908 and 1909 the defendant caused a complete survey of its hot water heating system and of the buildings and apartments connected therewith to be made by one Willliam Schott, an expert heating engineer, and predicated upon such surveys the defendant notified some of the complainants of the amount of square feet of radiation then installed in their buildings and apartments and the amount of square feet of radiation required to be installed therein by good practice, the amount of square feet of radiation then installed except in one instance being less than the amount required by good practice; and further notified said complainants that during the coming season it would furnish them, heat for a sum stated, being at the rate of 17 cents per square foot per year for the amount of square feet of radiation required by good practice, and guaranteed a normal temperature of from 68° to 74° provided said complainants would install the additional amount of square feet of radiation required by good practice and bring their piping system up to defendant’s specifications, and that in the event that said complainants did not care to go to the necessary expense of installing such additional radiation the defendant would furnish its regular service for the sum stated without any guarantee as to uniform temperature. There is evidence tending to show that the court was warranted in finding that the defendant threatened to disconnect the buildings and apartments of some of the complainants from its system of hot water heating unless said complainants would accede to the terms of the notice above mentioned, and that in September, 1909, the defendant excavated in front of the premises owned by the heirs at law of one Joshua Davis, for the purpose of disconnecting the heating plant in the dwelling house on said premises from its system. Abraham B. Huston and B. L. Scott, two of the complainants in the bill, are entire strangers to the controversy, being neither owners nor tenants of the premises involved, and there is no evidence in the record tending to show that H. H. Howell, F. Fern Howell, H. S. Merkle, Samuel Sholem, O. S. Jones, B. F. Cameron, I. Q. Huston, J. C. Bisser, W. T. Blackburn, W. H. Hoff, E. O. Laughlin, B. K. Shelledy, Gfeorge V. Dole and B. S. Lloyd named as complainants in the bill have any interest whatever in the controversy or will be in any manner aggrieved by the alleged threatened conduct of the defendant. The decree, therefore, in so far as it awards any relief by injunction to said parties is wholly unwarranted. While the bill alleges that the complainants installed in their respective buildings and apartments a sufficient number of feet of radiation with the necessary and sufficient pipes connected therewith to properly and comfortably heat their said buildings and apartments when connected with the pipes of the defendant, there is not a scintilla of evidence tending to show the terms of the contracts, if any exist, between the complainants and the defendant, relative to the heating of said buildings and apartments. It does not necessarily follow from the mere allegations of the bill together with the proof offered on behalf of some of the complainants that their buildings and apartments were comfortably heated, that the defendant had contracted with said complainants to so heat their buildings and apartments. The defendant offered to show by expert heating engineers that in estimating the amount of radiation required to properly heat a room it was necessary,to consider the wall construction, whether of wood, brick or stone; the number and size of the windows; whether the room was on the north or south side of the house; whether the house was exposed or protected; the length of the pipe from the main plant to the place where the connection is made for the room or house in question; the ventilation of the room or house; that beyond the necessary amount of hot water conveyed to a radiator any excess does not provide additional heat bnt is wasted and deprives other patrons, who are located at a greater distance from the main plant, of hot water and pressure to which they are properly entitled for the purpose of heating their buildings and apartments; and that the radiators and pipes of several of the complainants were connected with the main pipe of the defendant by pipes having a greater diameter than was necessary to convey to the buildings and apartments of said complainants the quantity of hot water required by good practice to be conveyed to the radiators therein, thereby occasioning great loss to the defendant and substantially impairing its ability to properly heat the buildings and apartments of its other patrons. While the proof so offered by the defendant was incompetent to be considered in justification of the conduct of the defendant in requiring some of the complainants to increase the amount of square feet of radiation in their buildings and apartments and upon their failure so to do to charge said complainants the maximum price fixed by the ordinance of 17 cents per square foot per year for such additional radiation required, or as justifying the defendant in permanently disconnecting the buildings and apartments of said complainants from its heating system, it was competent to be considered by the court in determining whether or not the defendant might with propriety and in accordance with, good practice in that respect temporarily disconnect said buildings and apartments from its heating system for the purpose of substituting other connections between said buildings and apartments and its system of heating so as to make such connections conform to its reasonable requirements. By the terms of the decree the defendant is restrained from disconnecting its heating system from the buildings and apartments of said complainants even temporarily for any purpose whatever. The ordinance under which the defendant is operating its system of heating must be given a reasonable and practical construction. While the defendant may not charge more than 17 cents per square foot per year for radiation in excess of 250 square feet there is nothing in the ordinance which requires it to heat a given surface through less radiation than good practice requires, nor to convey to such radiation a greater amount of hot water than is required by good practice or is consistent with the practical operation' of its plant. The defendant although a public service corporation is entitled in the conduct of its business to make such reasonable rules and regulations as are required by good practice and as are consistent with the practical operation of its plant, and to require compliance therewith by those dealing with it. The decree of the circuit court is reversed and the cause remanded for further proceedings not inconsistent with the views here expressed. Reversed and remanded. ","per_curiam":false,"type":"020lead"}],"other_dates":"Heard in this court at the May term, 1910.","precedential_status":"Published","slug":"huston-v-city-gas-electric-co","summary":"Bill in equity. Appeal from the Circuit Court of Edgar county; the Hon. W. B. Schomteld, Judge, presiding."} {"attorneys":"G. M. Lambertson, for plaintiffs in error., J. W. Deweese (F. M. Hall, on the brief), for defendant in error.","case_name":"Olds Wagon Works v. Benedict","case_name_full":"OLDS WAGON WORKS v. BENEDICT","case_name_short":"Benedict","citation_count":0,"citations":["67 F. 1"],"court_full_name":"Court of Appeals for the Eighth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Eighth Circuit","court_type":"F","date_filed":"1895-03-11","date_filed_is_approximate":false,"headnotes":"1. Rewovat, of Causes— Right of Intekvmxku to Remove.
An intervener who introduces himself into a pending action in a state court, solely to assist in its defense and to protect himself against a. lia* bility for indemnifying the original defendant, can confer no jurisdiction on the federal court chat the original defendant could not confer.
8. Same.
One ,T., a citizen of Nebraska, executed a bond to one D., also a citizen of Nebraska, to pay him tile damages he might sustain by reason of the attachment of his property in a suit brought against 1). by the O. Co., an Indiana corporation. The attachment having been dissolved, D. sued J. on the bond in a court of the state of Nebraska. The O. Co. tiled an intervening petition, asking to be made a party, on the ground that it was primarily liable for the damage by the attachment. This petition having been granted, the O. Co. applied for the removal of the cause to the federal court, on the ground of local prejudice, and it was accordingly removed to that court, where a judgment was afterwards rendered for the plaintiff. Held, that the cause was improperly removed, since the obligee in the bond was entitled to pursue his remedy in the state courts, and the O. Co., intervening voluntarily, came into the state court subject to the disabilities of the defendant.
2. Prims w Courts — .jukis»iot;o>í-—Stitul ytion.
Two other bonds were afterwards given to I)., upon appeals taken in the same case, in one of which the O. Co. was principal and four citizens of Nebraska were sureties, and in the other the O. Co. was principal and three other citizens of Nebraska wore sureties. Actions on both bonds were afterwards brought by D., and the action on the first bond was removed by the O. Co. to the federal court, on the ground of local prejudice, but no motion was made to remove the second action. While the actions on the attachment bond and the two appeal bonds were pending, the parties stipulated that they should be consolidated and tried as one action, in the federal' court, whore judgments were afterwards entered for the plaintiff in the first and third actions. Held, that the federal court was without jurisdiction to render any judgment in the action on the second appeal bond, in which no motion to remove had been made, the stipulation of the parties being incapable of conferring such jurisdiction.
","id":8866753,"judges":"Sanborn","opinions":[{"author_str":"Sanborn","ocr":true,"opinion_id":8852351,"opinion_text":"\nSANBORN, Circuit Judge.\nThe plaintiffs in error,bring this writ to reverse a judgment against them in the circuit court, which was the result of a trial to a jury as one, of three actions which had been consolidated by a stipulation of the parties before the trial. At the outset they challenge the jurisdiction of the circuit court to try either of these actions or to render the judgment of which they complain. The actions arose and proceeded as follows: On November 5, 1887, the plaintiff in error J. C. Benedict, a citizen of the state of Nebraska, executed a bond to the defendant in error, D. M. Benedict, who was also a citizen of the state of Nebraska, conditioned to pay him the damages, not exceeding $2,800, which he might sustain by reason of the attachment of his property in an action brought against him on that day in the district court of Hitchcock county, Neb., by the Olds Wagon Works, a corporation of the state of Indiana. On March 7, 1892, D. M. Benedict brought an action upon this bond in the district court of Hitchcock county against the obligor, J. O. Benedict. On April 11, 1892, J. O. Benedict filed his answer, and the Olds Wagon Works filed an intervening petition to the effect that it was primarily liable for all damages that resulted from the attachment, and asked to be made a party defendant in that action. On June 2, 1892, this petition was granted, and the wagon works was made a party defendant. On October 13, 1892, the wagon works filed a petition and affidavit for the removal of this action to the circuit court on the ground of prejudice and local influence, and the court made an order of removal. On November 22, 1892, D. M. Benedict, the plaintiff in that action, moved to remand it to the district court of Hitchcock county. On December 21, 1887, the district court of Hitchcock county dissolved the attachment. Thereupon the Olds Wagon Works sued out of the supreme court of the state of Nebraska a writ of error, and on January 17, 1888, the Olds Wagon Works, J. M. Burks, Frank P. Lawrence, O. W. Mosher, and A. T. King executed a bond to the defendant in error, D. M. Benedict, conditioned to pay all damages, not exceeding $28,000, which he might sustain by the prosecution of said writ of error in the event that the said attachment should be finally discharged by the supreme court. On the hearing in the supreme court the order dissolving the at*3tacliment was not sustained, and the attachment proceedings were remanded to the district court for further proceedings. 41 N. W. 254, 43 N. W. 108. On March 7, 1892, D. M. Benedict brought an aciion upon the bond last mentioned against the obligors named therein. On April 11, 1892, A. T. King filed his answer to the petition in that case, but none of the other defendants answered. All the defendants in that suit except the Olds Wagon Works were citizens of the state of Nebraska. On April 29,1892, the Olds Wagon Works filed a petition and affidavit for the removal of lids action to the circuit court on the ground of prejudice and local influence, and that court granted an order of removal. On May 10,1892, D. M. Benedict, the plaintiff in that action, made a motion to remand the same to the state court, and on December 3, 1892, that motion was denied. On October 21, 1889, the district court of Hitchcock county again dissolved the attachment, and the Olds Wagon Works sued out another writ of error from the supreme court of Nebraska to the district court, and the wagon works, E. T. Huff, Prank P. Lawrence, and O. T. Boggs made a bond to the defendant in error, D. M. Benedict, dated December 7, 1889, conditioned to pay all damages, not exceeding $10,000, sustained by him in consequence of the prosecution of such writ of error, in the event that the order of attachment should be finally discharged by the supreme court as unlawfully obtained. D. M. Benedict brought an action in the district court of Hitchcock county on this bond against the obligors in it above named. All these obligors except the wagon works were citizens of the state of Nebraska. No application to remove or order for the removal of this action to the circuit court was ever made.\nOn January 15, 1893, all the parties to these three actions stipulated that they should be consolidated into one action and tried as such in the circuit court for the district of Nebraska. Thereupon D. M. Benedict filed an amended petition in that court, in which he set forth the three bonds on which the three actions above mentioned were founded, alleged a breach of the conditions of each of them, and demanded judgment for $10,000. All the obligors in the various bonds joined in a single answer. On these pleadings the case was tried to a jury, which found a verdict for $2,800 against J. C. Benedict, the obligor in the first bond, in favor of the obligors in the second bond, and against the Olds Wagon Works, E. T. Huff, Prank P. Lawrence, and C. T. Boggs, the obligors in the third bond, for §7,271.14. On a motion for a new trial the court required the defendant in error to. remit a portion of this verdict, and rendered judgment against the obligors in the third bond for §6,127, and against the obligor in the first bond for $2,800.\nOne result of these proceedings is that a controversy over a bond between two citizens of the same state has been tried and determined-in a federal court on the suggestion of a corporation of another state, that was not a party to the obligation nor a necessary party to the action, that it was primarily liable for the damages the obligor had agreed to pay, and that there was prejudice and local influence against it in the county where the obligee had elected *4to sue the obligor on his bond. Another result is that a controversy over a bond between the obligee therein, a citizen of Nebraska, on one side, and the joint obligors therein, a citizen of Indiana and four citizens of Nebraska, on the other side, has, by agreement of the parties, been tried and adjudicated by a federal court when there was no ground for the exercise of its jurisdiction stated or alleged by any party in any part of the record.\nTo state these facts is to dispose of this case. Take the first action upon the attachment bond. The Code of Civil Procedure of the state of Nebraska required, as a condition precedent to the issue of the order of attachment, that a resident of that state, who was worth double the sum to be secured, should execute an undertaking to the defendant in error here, to pay him all damages which he might sustain from the attachment if the order was wrongfully obtained. Consol. St. Neb. 1891, §§ 4710, 5365. Pursuant to these provisions of this Code, J. C. Benedict alone made the bond. When there was a breach of the condition, the defendant in error sued him on this bond in the state court. Both the parties to this action were citizens of Nebraska, and there was no ground on which the federal court could acquire jurisdiction of it. It was not-material that the Olds Wagon Works was primarily liable for the same damages secured by the bond, nor that it had indemnified the obligor against loss. The defendant in error was not bound to pursue the wagon works, and was not suing it. The statute gave him the security of the bond of the citizen of his state, and the law gave him the right to enforce that security in the courts of that state. He proceeded to do so. If the wagon works saw fit to intervene to defend this obligor upon the bond and to protect itself, it came into the state court, where it asked to intervene, in the right of, and subject to the disabilities of, the defendant. It had no greater right to remove the action to the federal court than had the obligor in the bond it had provided for the defendant in error, and that was no right whatever.\nAn intervener who introduces himself into a pending action in a state court solely to assist in its defense, and to protect himself against a liability for indemnifying the original defendant, can confer no jurisdiction on the federal court that the original defendant could not confer. Burnham v. Bank, 3 C. C. A. 486, 489, 53 Fed. 163, 10 U. S. App. 485, and cases cited; Railway Co. v. Twitchell, 8 C. C. A 237, 59 Fed. 729, 730; Railway Co. v. Shirley, 111 U. S. 358, 4 Sup. Ct. 472; Cable v. Ellis, 110 U. S. 389, 396, 4 Sup. Ct. 85; Hedge Co. v. Fuller, 122 U. S. 535, 7 Sup. Ct. 1265.\nTake the third cause of action upon which the judgment for $6,127 was rendered below. On January 15, 1893, an action was pending in the district court of Hitchcock county, Neb., upon this cause of action, in which the plaintiff, the obligee in the bond, was a citizen of the state of Nebraska, and four of the five defendants, who were joint obligors on this bond, were citizens of the same state. That action is still pending in the state court of Nebraska. It could not be removed on the ground that there was a controversy wholly between citizens of different states, because there was but *5one indivisible controversy between the plaintiff and defendants in xbat case, and four of the defendants were citizens of the same state with the plaintiff. Blake v. McKim, 103 U. S. 336; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726; Bellaire v. Railroad Co., 146 U. S. 117, 13 Sup. Ct. 16; Wilson v. Oswego Tp., 151 U. S. 56, 14 Sup. Ct. 259; Merchants’ Cotton Press & Storage Co. v. Insurance Co. of North America, 151 U. S. 368, 14 Sup. Ct. 367.\nIt is said that this action might: have been removed to the federal court by the Olds Wagon Works, a citizen of the state oí Indiana, on the ground of prejudice and local influence. That may or may not be true. If it is true, such removal could have been effected only by spreading upon the record proof of such prejudice and local influence satisfactory to the circuit court as required by the act of congress. 25 Stat. p. 433, c. 866, § 2; Supp. Rev. St. p. 612; P. Schwenk & Co. v. Strang, 8 C. C. A. 92, 59 Fed. 209. Nothing of this character was done. No attempt was made to spread upon the record any showing of prejudice or local influence in this case. The stipulation of June 2, 1898, that this action should be consolidated and tried with others in the federal court, recited no ground for its removal, and neither stipulated nor admitted the existence of the facts essential to give that court jurisdiction. \"An action pending in a state court cannot he removed to the circuit court, by a written stipulation, where there is nothing in the latter or in the record to show that, by reason of the subject-matter, or the character of the parties, the latter court can take cognizance of it.” Bank v. Calhoun, 102 U. S. 256. The stipulation was therefore! entirely futile. It took nothing from the state court and conferred nothing upon the federal court. The courts of the United States are courts of limited jurisdiction. Their jurisdiction depends upon the existence of certain essential facts, such as a controversy between citizens of different states in which the matter in dispute exceeds §2,000, or an action arising under the constitution of the United States, or an action between citizens of the same state claiming lands under grants of different states. In order to give one of these courts jurisdiction, the essential facts must not only exist, but they must affirmatively appear upon the record of the case. In every case in which they do not appear, it is the duty of the trial court and of the appellate courts to see that the action is dismissed or remanded to the proper state court as soon as this condition of the record is called to their attention. No consent, agreement, or estoppel can confer jurisdiction upon a federal court to hear or determine any case in which the essential jurisdictional facts do not appear from the record. These rules are fundamental. They are settled by repeated adjudications of the supreme court, and they are fatal to the judgment in this case. Railway Co. v. Swan, 111 U. S. 379, 382, 4 Sup. Ct. 510; Hancock v. Holbrook, 112 U. S. 229, 232, 5 Sup. Ct. 115; Carnegie, Phipps & Co. v. Hulbert, 3 C. C. A. 391, 53 Fed. 10, 10 U. S. App. 454.\nThe jurisdiction of the court below was invoked by the plaintiff in error the Olds Wagon Works, and for that reason the defendant in error is entitled to recover his costs in this court and in *6the court below. The judgment below must be reversed, with costs against the plaintiffs in error for want of jurisdiction in the circuit court, and the case must be remanded to the circuit court, with directions to that court to remand the action upon the attachment bond to the state court, and to enter a judgment against the plaintiffs in error for the costs in the circuit court; and it is so ordered.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"olds-wagon-works-v-benedict","summary":"In Error to the Circuit Court of the United States for the District of Nebraska. These were three actions by D. M. Benedict against J. C. Benedict, the Olds Wagon Works, E. T. Huff, C. T. Boggs, Frank P. Lawrence, J. M. Burks, C. W. Mosher, and A. T. King, on three bonds executed, respectively, by the defendants or some of them, which actions were consolidated by stipulation and heard as one. The plaintiff recovered judgment on two of the bonds in the circuit court. • Defendants bring error. \"J"} {"attorneys":"Peter Pursley, San Francisco, Cal., for plaintiffs-appellants., Matthew Boyle, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellees.","case_name":"Jackson v. Hayakawa","case_name_full":"Charles JACKSON, and Lonnie Daniels, Anthony Greene and Jean Simmons v. Samuel I. HAYAKAWA, former Acting President and former President of San Francisco State College","case_name_short":"Hayakawa","citation_count":0,"citations":["682 F.2d 1344"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","date_filed":"1982-08-03","date_filed_is_approximate":false,"id":8925852,"judges":"Goodwin","opinions":[{"author_str":"Goodwin","ocr":true,"opinion_id":8915451,"opinion_text":"\nGOODWIN, Circuit Judge.\nPlaintiffs appeal a judgment dismissing their civil rights action against individual past and present members of the Board of Trustees of San Francisco State College (now called the California State University at San Francisco).\nThe issues are: (1) whether this court’s decision in Jackson v. Hayakawa, 605 F.2d 1121 (9th Cir. 1979), cert. denied 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980), prevents the district court from dismissing this action; (2) whether defective service of process was fatal to the claims against certain defendants; and (3) the extent to which defendants San Francisco State College, the Board of Trustees, and trustees in their official capacity are protected from liability by the Eleventh Amendment.\nThe original complaint was filed in 1972, and the action has not yet come to trial. Four amended complaints have been filed. This is the second appeal to this court.\nThe facts underlying this litigation are presented in Jackson v. Hayakawa, 605 F.2d at 1123-24. In 1968, the Black Students’ Union initiated a student-faculty strike. On January 23, 1969, a rally was held on campus in defiance of a ban announced by the then President of San Francisco State College, S. I. Hayakawa. The police arrested four hundred persons.\nA number of actions were filed seeking damages for the arrests and subsequent disciplinary proceedings. In Wong v. Hayakawa, 464 F.2d 1282 (9th Cir. 1972), cert. denied, 409 U.S. 1130, 93 S.Ct. 938, 35 L.Ed.2d 263 (1973), the court found generally that the disciplinary procedures did not violate due process. Due process was violated where decisions to discipline were based entirely on “a police report that did not show any evidence of misconduct on the part of the plaintiffs.” Jackson v. Hayakawa, 605 F.2d at 1124.\nPlaintiffs first filed a class action on March 21, 1972. The third amended complaint filed in 1975 contained five claims: (1) unlawful discriminatory funding of black organizations at the college; (2) unlawful arrests; (3) unlawful blacklisting; (4) unlawful disciplinary proceedings, and (5) unlawful interference in student elections.\nIn 1977, the district court granted summary judgment for defendants on all five claims. On appeal this court affirmed the summary judgment on the claims for unlawful arrests, unlawful blacklisting, and discriminatory funding. In Jackson v. Hayakawa, 605 F.2d at 1129, we reversed the summary judgment on the claim based upon unlawful disciplinary proceedings. We held that plaintiffs could rely on the limited due process holding of Wong v. Hayakawa, 605 F.2d at 1129. (The claim of unlawful interference in student elections was abandoned on appeal.)\nOn remand, the district court again dismissed the action on the remaining claim. The district court relied upon Eleventh Amendment immunity, defective service of process against certain defendants in their individual capacities, expiration of the statute of limitations against certain defendants, and failure to state a claim either under 42 U.S.C. § 1981 or 42 U.S.C. § 1985. Plaintiffs appeal this judgment.\nA. Res Judicata\nPlaintiffs claim that the district court failed to apply this court’s decision in Jackson v. Hayakawa, 605 F.2d 1121, when the court dismissed this action a second time. In Jackson this court did not address the issue of Eleventh Amendment immunity or defective service of process because these points had not been raised in defendants’ earlier motion for summary judgment.\nIf a claim remains against any defendant, then plaintiffs can rely on the limited due process holding of Wong v. Hayakawa. *1347The discussion of “good faith immunity” in Jackson v. Hayakawa, 605 F.2d at 1129, n.11, does not indicate that this court resolved the Eleventh Amendment immunity issue raised here. Plaintiffs confuse Eleventh Amendment immunity with “good faith” governmental immunity accorded certain defendants in § 1983 actions.\nB. Defective Service of Process\nDefendants moved to dismiss S. I. Haya-kawa, Ronald Reagan, Glenn Dumke, Frank Dollard and Edward Duerr on grounds that plaintiffs did not properly serve them as individuals under Fed.R.Civ.P. 4, or that if they were served, service was in their official capacities only. The district court dismissed Ronald Reagan and Glenn Dumke both in their individual and official capacities. The district court also found that Hayakawa, Dollard and Duerr were before the court only in their official capacities. The Board of Trustees as an entity was also subject to the jurisdiction of the court.\nDefendants must be served in accordance with Rule 4(d) of the Federal Rules of Civil Procedure1, or there is no personal jurisdiction. Beecher v. Wallace, 381 F.2d 372 (9th Cir. 1967). Rule 4(a) provides that defendants must be personally served or served in compliance with alternatives listed in 4(d)(6) or 4(d)(7). Neither actual notice, Martin v. N. Y. State Dept. of Mental Hygiene, 588 F.2d 371, 373 (2nd Cir. 1978), nor simply naming the person in the caption of the complaint, Gozda-novic v. Civil Serv. Com’n for City of Pittsburgh, PA, 361 F.Supp. 504, 507 (W.D.Pa. 1973), will subject defendants to personal jurisdiction if service was not made in substantial compliance with Rule 4. Serving an entity such as the Board of Trustees or the college will not automatically confer personal jurisdiction over individual defendants in any capacity.\nDefendants can waive the defect of lack of personal jurisdiction by appearing generally without first challenging the defect in a preliminary motion, Hays v. United Fireworks Mfg. Co., 420 F.2d 836, 844 (9th Cir. 1969), or in a responsive pleading, Sellers v. McCrane, 55 F.R.D. 466 (E.D.Pa. 1972). Jurisdiction attaches if a defendant makes a voluntary general appearance, as by filing an answer through an attorney, Amen v. Dearborn, 532 F.2d 554, 558, n.7 (6th Cir. 1976); Martin v. N. Y. State Dept. of Mental Hygiene, 588 F.2d at 373.\nPlaintiffs claim jurisdiction over defendants Hayakawa, Dumke, Reagan, Duerr and Dollard, and the trustees both in their individual and official capacities because these defendants were either properly served or, if not properly served, they waived any defect in service or personal jurisdiction by appearing generally and by • not raising these defenses in earlier proceedings.\n1. S. I. Hayakawa\nThe district court found that Hayakawa was before the court only in his official *1348capacity. The district court found that he was never served in his individual capacity and did not waive the lack of personal service in his individual capacity. There are three related questions here: (a) was service of process defective; (b) was he served in his official capacity or both his official and individual capacity; and (c) did he waive service of process in his individual capacity?\n(а) Hayakawa was served on March 27, 1972. The district court said that even though this service was defective, Hayaka-wa waived the defect by failing to raise it before the filing of a responsive pleading. In fact, as plaintiffs indicate, service of process may not have been defective. Rule 4(d)(7) allows service in accordance with the law of the state in which the district court is located. Cal.Code Civ.P. § 415.202 permits personal service by serving a person apparently in charge of a defendant’s office during usual office hours. Someone in charge of Hayakawa’s office apparently was served.\nThe district court found that Hayakawa did not waive his defense to personal jurisdiction in his individual capacity. It is not clear from the multiple complaints in this case when, if ever, Hayakawa or others were sued in their individual capacities. The original complaint, the first amended complaint and the second amended complaint appear to sue the defendants only in their official capacities.\nThe third amended complaint and the fourth amended complaint state in their captions that individual defendants were sued in both their official and personal capacities. These papers, however, were filed long after service had been made. New service would be necessary in order to satisfy the due process requirement of notice if there was to be a change in the status of defendants. See Harkless v. Sweeny Ind. Sch. Disk of Sweeny, Tex., 554 F.2d 1353, 1360 (5th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 507, 54 L.Ed.2d 452 (1977).\nThe strictures of the Eleventh Amendment make it important that the court determine whether individual defendants are being sued in their individual or official capacities or both. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), permits certain kinds of actions against state officials in their individual capacities while recognizing that the Constitution prohibits actions against the state as such. This fiction is necessary to enforce federal constitutional law. Great Western United Corp. v. Kidwell, 577 F.2d 1256, 1265 (5th Cir. 1978). L. Tribe, American Constitutional Law 146 (1978).\nHayakawa did not appear in person in any proceeding and did not authorize a personal lawyer to represent him in his individual capacity. In response to the fourth amended complaint the attorney general filed a special appearance challenging as defective the service of process against Hayakawa and asserting the lack of personal jurisdiction over him in his individual capacity. Assuming that the attorney general could file this motion after the fourth amended complaint, then the attorney general could have filed this same motion against the third amended complaint in 1977. Instead, however, the attorney general filed a motion for summary judgment against the third amended complaint. This motion constituted a general appearance. It did not, however confer personal jurisdiction over Hayakawa. The caption of the third amended complaint was not sufficient to confer jurisdiction over Hayakawa in his individual capacity because it was never served on him and he had no notice that his perceived role was being changed. 5 *1349Wright & Miller, Federal Practice and Procedure, § 1391 at p. 853-854 (the waiver doctrine is not applicable if the complaint does not give a defendant sufficient notice of the type of claim brought against him). Plaintiffs have jurisdiction over Hayakawa only in his official capacity.\n2. Frank Dollard and Edward Duerr\nFrank Dollard was executive vice president and Edward Duerr was coordinator of San Francisco State College. The district court found that Dollard and Duerr had waived defective service, but were before the court only in their official capacities. Unlike Hayakawa, Dollard and Duerr were never personally served. Plaintiffs served the Board of Trustees by serving the appropriate officer. Dollard and Duerr were then trustees. The attorney general brought them in, as trustees, by filing an appearance. The district court correctly refused to allow appellants to amend their complaint to include Dollard and Duerr in their individual capacities because the statute of limitations had run.3 There was no error in limiting the action against Dollard and Duerr to their official capacity as trustees.\n3. Ronald Reagan\nThe district court dismissed Ronald Reagan as a defendant because plaintiffs had been granted leave to amend in July 1972 but did not rename him as a defendant until 1980. The district court had earlier dismissed Reagan as a defendant because plaintiffs had alleged against him no personal involvement in the alleged misconduct. Because Reagan was not named until eight years after this dismissal and was not again served4 during this period, the district court’s dismissal is affirmed. Plaintiffs argue that Reagan was, as governor, an ex-officio member of the Board of Trustees at the time this action was filed. As indicated earlier, each trustee must be individually served to subject him or her to the jurisdiction of the court. Unlike Dollard or Duerr, Reagan was not mentioned in any of the amended complaints until the fourth amended complaint in 1980. He was not before the court in his official or his individual capacity.\n4. Glenn Dumke\nThe district court dismissed Glenn Dumke, the former Chancellor of the California State Colleges and member of the Board of Trustees, as a defendant in both his individual and official capacities because he was not named in the complaint until the fourth amended complaint in 1980. (He was never served.) The statute of limitations had run and it was too late to serve Dumke. For reasons similar to those given for dismissing Reagan as a defendant, the district court’s dismissal of Dumke as a defendant is affirmed.\nC. Eleventh Amendment\nThe district court found that California State University, San Francisco (formerly San Francisco State) was an arm of the state and therefore not a person subject to suit under 42 U.S.C. § 1983. Under the Eleventh Amendment, states are immune from private damage actions in federal court. The district court also found that college officials and trustees in their official capacities are not subject to liability under 42 U.S.C. § 1983. Because the court earlier found that the state defendants were before the court only in their official capacities, plaintiffs’ claim under § 1983 had to be dismissed.\nThe first question under the Eleventh Amendment is whether San Francisco State College was an arm of the state. This court *1350has used a number of factors to determine whether a governmental entity is an arm of the state. The most “crucial question . . . is whether the named defendant has such independent status that a judgment against the defendant would not impact the state treasury.” Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir. 1981), citing, Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974). Accord: Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir. 1981). Other factors include:\n. . . “performance by the entity of an essential government function, ability to sue or be sued, power to take property in its own name or in the name of the State, and corporate status of the entity.” Hutchison v. Lake Oswego School District No. 7, 519 F.2d 961, 966 (9th Cir. 1975), vacated on other grounds, 429 U.S. 1033, 97 S.Ct. 725, 90 L.Ed.2d 744 (1977).\nTo determine these factors, the court will look at the way state law treats the governmental entity. Rutledge v. Arizona Board of Regents, 660 F.2d at 1349. The district court was correct in characterizing the California State College and the university system of which California State University at San Francisco is a part as dependent instrumentalities of the state. Although this court has not ruled upon the Eleventh Amendment status of the California State College and university system, the University of California and the Board of Regents are considered to be instrumentalities of the state for purposes of the Eleventh Amendment. Hamilton v. Regents, 293 U.S. 245, 257, 55 S.Ct. 197, 201, 79 L.Ed. 343 (1934); Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969) (the University and the Board of Regents are not “persons” within the meaning of 42 U.S.C. § 1983); In re Holoholo, 512 F.Supp. 889, 895 (D.Haw.1981); Vaughn v. Regents of University of California, 504 F.Supp. 1349, 1351-54 (E.D.Cal.1981).\nAs California cases indicate, California State Colleges and Universities have even less autonomy than the University of California. Slivkoff v. Cal. State University and Colleges, 69 Cal.App.3d 394, 400, 137 Cal.Rptr. 920, 924 (2d Dist. 1977):\n“Unlike the University of California, the California State University and Colleges are subject to full legislative control. . . No such autonomy is accorded by the Constitution to the State University and Colleges. They have only such autonomy as the Legislature has seen fit to bestow.”\nSimilarly in Poschman v. Dumke, 31 Cal. App.3d 932, 942, 107 Cal.Rptr. 596, 603 (1st Dist. 1973):\n“The public schools of this state are a matter of statewide rather than local or municipal concern. (Town of Atherton v. Superior Court (1958) 159 Cal.App.2d 417, 421, 324 P.2d 328.) The Trustees of California State Colleges are a state agency created by the Legislature and its actions are subject to and must comply with the State Administrative Procedure Act (Gov. Code, §§ 11370-11440; cf. 10 Ops.Cal. Atty.Gen. 243, 246, holding State Board of Education [the then governing body of state colleges] subject to the Administrative Procedures Act).”\nThe law governing actions against state officials is more complex. The district court treated this case solely as an action for damages. The court correctly noted that Eleventh Amendment immunity extends to actions against state officers sued in their official capacities because such actions are, in essence, actions against the governmental entity of which the officer is an agent. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n.55, 98 S.Ct. 2018, 2035, n.55, 56 L.Ed.2d 611 (1978); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).\nIt has been clear since Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that the Eleventh Amendment does not bar actions against state officers in their official capacities if the plaintiffs seek only a declaratory judgment or injunctive relief. Spicer v. Hilton, 618 F.2d 232, 236 (3rd Cir. 1980). See also Great Western United Corp. v. Kidwell, 577 F.2d at 1265. In Spicer v. Hilton, 618 F.2d at 236 the court stated:\n*1351“Suits for injunctive relief stand on an entirely different footing. In an unbroken line of authority extending back over 70 years, prospective equitable relief has been issued where state officials were the nominal defendants although in fact the states were the real parties in interest. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); accord, Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Vecchione v. Wohlgemuth, 558 F.2d 150, 156 (3d Cir.), cert. denied, Beal v. Vecchione, 434 U.S. 943, 98 S.Ct. 439, 54 L.Ed.2d 304 (1977) (‘We recognize that for eleventh amendment purposes the Ex parte Young type suit is a legal fiction, and that as a practical matter the ... injunction [does] bind the Commonwealth.’); Rochester v. White, 503 F.2d 263 (3d Cir. 1974); Savage v. Pennsylvania, 475 F.Supp. 524 (E.D.Pa.1979).”\nEdelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974), simply clarified the distinction between prospective and retroactive monetary relief. In Hutto v. Finney, 437 U.S. 678, 690, 98 S.Ct. 2565, 2573, 57 L.Ed.2d 522 (1978), the Supreme Court stated:\n“In the landmark decision in Ex parte Young, 209 U.S. 123 [28 S.Ct. 441, 52 L.Ed. 714,] the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. And in Edelman v. Jordan, 415 U.S. 651 [94 S.Ct. 1347, 39 L.Ed.2d 662], when the Court held that the Amendment grants the States an immunity from retroactive monetary relief, it reaffirmed the principle that state officers are not immune from prospective injunctive relief. Aware that the difference between retroactive and prospective relief ‘will not in many instances be that between day and night,’ id., at 667 [94 S.Ct. at 1357], the Court emphasized in Edelman that the distinction did not immunize the States from their obligation to obey costly federal-court orders. The cost of compliance is ‘ancillary’ to the prospective order enforcing federal law. Id., at 668 [94 S.Ct. at 1358]. The line between retroactive and prospective relief cannot be so rigid that it defeats the effective enforcement of prospective relief.”\nAccord: Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 39 L.Ed.2d 358 (1979).\nPlaintiffs prayed for injunctive and declaratory relief. Accordingly, the district court erred in dismissing defendants Hayakawa, Dollard and Duerr in their official capacity.5 They, or their successors in office, may still be subject to a claim under § 1983 for injunctive relief.\nCONCLUSION\nHayakawa, Dollard and Duerr should not have been dismissed as defendants in their official capacities. The Eleventh Amendment does not bar actions for injunctive or declaratory relief against state officials sued under 42 U.S.C. § 1983. The judgment of dismissal is reversed as to defendants Hayakawa, Dollard and Duerr in their official capacities and affirmed as to defendants Reagan, Dumke, the Board of Trustees, and San Francisco State College. On remand, the district court will permit substitution of the official parties as may be necessary, and will apply the principle of res judicata as stated in Jackson v. Hayaka-wa, 605 F.2d 1121 (9th Cir. 1979), on the issues of injunctive and declaratory relief. Any attorney fees should be limited by the value of the relief actually granted, if any.6\nVacated and remanded.\n\n. Fed.R.Civ.P. 4(d) provides in pertinent part:\n(d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:\n(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.\n(6) Upon a state or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.\n(7) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law <?f the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.\n\n\n. Cal.Code Civ.P. § 415.20(a) provides in pertinent part:\n“(a) In lieu of personal delivery of a copy of the summons and of the complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and of the complaint during usual office hours in his office with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left.”\n\n\n. Under 42 U.S.C. § 1983, state statutes of limitation apply. Chung v. Pomona Valley Community Hospital, 667 F.2d 788, 791 (9th Cir. 1982). In California, the applicable statute of limitations is Cal.Code Civ.Proc. § 338(1) which provides a three-year limitation period. Briley v. State of Cal., 564 F.2d 849, 854 (9th Cir. 1977). Plaintiffs cannot amend the complaint and serve Dollard and Duerr in their individual capacities because the three-year period has passed.\n\n\n. Reagan was served prior to the dismissal in 1972.\n\n\n. Plaintiffs argue that respondents waived any immunity under the Eleventh Amendment by failing to raise this defense earlier. The Eleventh Amendment defense is a jurisdictional bar and the court may bring it up on its own motion. Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974).\n\n\n. Most of the attorney time spent on this case so far has been unnecessary or counterproductive.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued and Submitted April 16, 1982.","precedential_status":"Published","slug":"jackson-v-hayakawa"} {"case_name":"Sayers v. Florida","case_name_full":"Sayers v. Florida","case_name_short":"Sayers","citation_count":0,"citations":["456 U.S. 981"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1982-05-17","date_filed_is_approximate":false,"id":9039035,"opinions":[{"ocr":true,"opinion_id":9032366,"opinion_text":"\nDist. Ct. App. Fla., 1st Dist. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"sayers-v-florida"} {"case_name":"Davidson v. Bendixen","case_name_full":"Davidson v. Bendixen","case_name_short":"Davidson","citation_count":0,"citations":["499 U.S. 909"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1991-03-04","date_filed_is_approximate":false,"id":9106524,"opinions":[{"ocr":true,"opinion_id":9100934,"opinion_text":"\nC. A. 2d Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"davidson-v-bendixen"} {"case_name":"249-251 Brighton Beach Ave., LLC v. 249 Brighton Corp.","citation_count":0,"citations":["2023 NY Slip Op 03321"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2023-06-21","date_filed_is_approximate":false,"id":9408417,"opinions":[{"download_url":"http://www.courts.state.ny.us/reporter/3dseries/2023/2023_03321.htm","ocr":false,"opinion_id":9403893,"opinion_text":"\n\n249-251 Brighton Beach Ave., LLC v 249 Brighton Corp. (2023 NY Slip Op 03321)\n\n\n\n\n\n249-251 Brighton Beach Ave., LLC v 249 Brighton Corp.\n\n\n2023 NY Slip Op 03321\n\n\nDecided on June 21, 2023\n\n\nAppellate Division, Second Department\n\n\n\nPublished by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.\n\n\nThis opinion is uncorrected and subject to revision before publication in the Official Reports.\n\n\n\nDecided on June 21, 2023\nSUPREME COURT OF THE STATE OF NEW YORK\nAppellate Division, Second Judicial Department\n\nANGELA G. IANNACCI, J.P.\nROBERT J. MILLER\nDEBORAH A. DOWLING\nHELEN VOUTSINAS, JJ.\n\n\n2020-02077\n (Index No. 516627/16)\n\n[*1]249-251 Brighton Beach Ave., LLC, appellant,\nv249 Brighton Corp., et al., respondents, et al., defendant.\n\n\nMelvin B. Berfond, New York, NY (Michael F. Konopka of counsel), for appellant.\nThomas Torto, New York, NY, for respondents.\n\n\n\nDECISION & ORDER\nIn an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated January 2, 2020. The order, insofar as appealed from, granted the motion of the defendants 249 Brighton Corp., Bobby Rakhman, as administrator of the estate of Mara Rakhman, also known as Mark Rakhman, Fira Roytkov, and Bianca Vinokurov, as administrator of the estate of Sofia Vinokurov, for summary judgment dismissing the complaint and to cancel the notice of pendency filed by the plaintiff.\nORDERED that the order is affirmed insofar as appealed from, with costs.\nThree siblings, Fira Roytkov, Mark Rakhman, and Sofia Vinokurov (hereinafter collectively the siblings), owned 100% of the stock in 249 Brighton Corp. (hereinafter 249 Brighton). 249 Brighton owned five properties in the Brighton Beach neighborhood of Brooklyn (hereinafter the properties). On August 14, 2012, the plaintiff agreed to purchase all of the siblings' shares of stock in 249 Brighton by way of a stock purchase agreement (hereinafter the SPA). Among other terms, the parties agreed that they would finalize the purchase and sale of the stock at a closing to be held on September 17, 2012, or any later date agreed upon by the parties. The SPA permitted the plaintiff and the siblings, as a collective, to terminate their rights and obligations thereunder by notice given prior to or at the closing, inter alia, based upon a material breach by the other party. The parties thereafter agreed to adjourn the September 17, 2012 closing date.\nOn July 11, 2013, the parties executed an amendment to the SPA (hereinafter the amendment). At that time, there were multiple tax liens on the properties. In the amendment, the parties agreed that the siblings were \"responsible for the payment of,\" among other things, real estate taxes that had accrued on the properties prior to August 1, 2012, whereas the plaintiff was responsible for real estate taxes that accrued on and after that date. The plaintiff was also required to enter into an installment agreement with the New York City Department of Finance (hereinafter the DOF) relating to the tax arrears on the properties and to produce that agreement at the closing, which was to be held on October 15, 2013. However, once again, the closing did not proceed as scheduled, and the parties agreed to adjourn the closing without a new date.\nBy letter dated December 4, 2014 (hereinafter the December 2014 letter), the siblings and 249 Brighton notified the plaintiff that the plaintiff was purportedly in default of its obligations under the SPA for multiple reasons, including its failure to pay real estate taxes as required by the amendment. Thereafter, by letter dated August 1, 2016 (hereinafter the termination letter), the siblings notified the plaintiff that they were terminating the SPA \"effective immediately\" based on the plaintiff's alleged failure to cure the various defaults set forth in the December 2014 letter. In the termination letter, the siblings and 249 Brighton noted that one of the properties was scheduled to be sold at a tax lien foreclosure auction. 249 Brighton subsequently paid the tax lien on that property to avoid the foreclosure sale. On September 21, 2016, 249 Brighton entered into a contract with Brighton Plaza, LLC (hereinafter Brighton Plaza), for the sale of the properties.\nOn that same date, the plaintiff commenced this action against the siblings and 249 Brighton, asserting five causes of action: three to recover damages for breach of contract, one for specific performance of the contract, and one to impose a constructive trust. At the time it commenced the action, the plaintiff also filed a notice of pendency against the properties. The siblings and 249 Brighton thereafter interposed an answer. Rakhman and Vinokurov died during the pendency of the action, and the administrators of their estates were substituted as defendants in this action (hereinafter collectively with Roytkov and 249 Brighton, the moving defendants). Brighton Plaza intervened in the action and interposed an answer. In March 2018, during the pendency of this action, two of the properties were sold to nonparties at tax lien foreclosure auctions.\nThe moving defendants moved for summary judgment dismissing the complaint and to cancel the notice of pendency. The plaintiff opposed the motion. By order dated January 2, 2020, the Supreme Court, among other things, granted the moving defendants' motion. The plaintiff appeals.\n\"A court should interpret a contract . . . in accordance with its plain and ordinary meaning, and should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the[ir] expressions . . . so that their reasonable expectations will be realized\" (Kirk v Kirk, 207 AD3d 708, 711 [citation and internal quotation marks omitted]). \"The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent and the best evidence of what parties to a written agreement intend is what they say in their writing\" (Orlando v County of Putnam, 208 AD3d 503, 504 [internal quotation marks omitted]). Thus, \"a written agreement that is complete, clear[,] and unambiguous on its face must be enforced according to the plain meaning of its terms\" (25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co., 194 AD3d 668, 670 [internal quotation marks omitted]). \"The threshold question of whether a contract is unambiguous, and the subsequent construction and interpretation of an unambiguous contract, are issues of law within the province of the court\" (Klein v Signature Bank, Inc., 204 AD3d 892, 895 [internal quotation marks omitted]).\nHere, the moving defendants established, prima facie, that the siblings properly terminated the SPA based on the plaintiff's default thereunder, and the plaintiff failed to raise a triable issue of fact in opposition. The Supreme Court therefore correctly granted those branches of the moving defendants' motion which were for summary judgment dismissing the breach of contract and specific performance causes of action, since those causes of action were based on the SPA. The amendment to the SPA clearly and unambiguously required the plaintiff, among other things, to pay all real estate taxes that accrued on the properties on and after August 1, 2012. By definition, this included all new real estate taxes that accrued on the properties after the date the amendment was executed. Contrary to the plaintiff's contention, the language in the amendment relating to the installment agreement pertained only to real estate taxes in arrears at the time the amendment was executed, not real estate taxes that accrued thereafter, and therefore, that language did not permit the plaintiff to delay paying those real estate taxes. In any event, a fair and reasonable interpretation of the SPA, read as a whole, the purpose of which involved the indirect sale of the properties (see Friends of Wickers Cr. Archeological Site, Inc. v Landing on the Water at Dobbs Ferry Homeowners Assn., Inc., 198 AD3d 728, 729), required timely payment of post-amendment real estate taxes and resolution of tax arrears, whether by an installment agreement with the DOF or otherwise, since unpaid real estate taxes may result in tax liens and foreclosure proceedings (see e.g. NYCTL 1998-2 [*2]Trust v McGill, 138 AD3d 1077, 1077-1078). Since it was undisputed that the plaintiff failed to pay any real estate taxes, the siblings were within their rights to enforce the plaintiff's default and to terminate the SPA. Moreover, the plaintiff's attempt to interpret its tax obligations under the SPA based on statements allegedly made by Rakhman and Vinokurov to the plaintiff's principal violated the parol evidence rule (see 25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co., 194 AD3d at 670). The plaintiff's contention regarding waiver is improperly raised for the first time on appeal (see Batales v Friedman, 144 AD3d 849, 851).\nThe Supreme Court also properly granted that branch of the moving defendants' motion which was for summary judgment dismissing the cause of action seeking to impose a constructive trust to prevent the moving defendants from selling the properties to Brighton Plaza or any other party, based on the moving defendants' alleged breach of the SPA, and to hold the properties in trust for the plaintiff's benefit. Since the court correctly determined that the siblings were within their rights in terminating the SPA, the plaintiff's theory of liability for the constructive trust cause of action is without merit, regardless of whether a constructive trust may have otherwise been appropriate under the circumstances (see Edwards v Walsh, 169 AD3d 865, 868; Quadrozzi v Estate of Quadrozzi, 99 AD3d 688, 691). In any event, the plaintiff failed to demonstrate the existence of a confidential or fiduciary relationship between the parties (see Olden Group, LLC v 2890 Review Equity, LLC, 209 AD3d 748, 752).\nUpon granting that branch of the moving defendants' motion which was for summary judgment dismissing the complaint, the Supreme Court properly granted that branch of their motion which was to cancel the notice of pendency (see Bierman v Limoncelli, 109 AD3d 858, 859).\nIANNACCI, J.P., MILLER, DOWLING and VOUTSINAS, JJ., concur.\nENTER:\nMaria T. Fasulo\nClerk of the Court\n\n\n\n\n\n\n\n\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"249-251-brighton-beach-ave-llc-v-249-brighton-corp"} {"attorneys":"Mitchell J. Brunfelt, Colosimo, Patchin, Kearny & Brunfelt, Ltd., Virginia, MN, for appellant., John Harper III and Benjamin J. Court, Krass Monroe, P.A., Bloomington, MN, for respondents.","case_name":"Bahr v. Boise Cascade Corp.","case_name_full":"LeRoy BAHR, Appellant, v. BOISE CASCADE CORPORATION A/K/A Boise Paper Cascade Corporation, Et Al., Respondents","case_name_short":"Bahr","citation_count":32,"citations":["766 N.W.2d 910"],"court_full_name":"Supreme Court of Minnesota","court_jurisdiction":"Minnesota, MN","court_short_name":"Supreme Court of Minnesota","court_type":"S","date_filed":"2009-06-25","date_filed_is_approximate":false,"headmatter":"\n Justice COATS does not participate.\n
\n\n Harold H. Greene, District Judge, concurred specially and filed opinion.\n
\n MacKinnon, Senior Circuit Judge, dissented in part and concurred in remand and filed opinion.\n
\n Before GINSBURG, Circuit Judge, MACKINNON, Senior Circuit Judge, and HAROLD H. GREENE,\n \n *\n \n United States District Judge for the District of Columbia.\n
\n Sitting by designation pursuant to 28 U.S.C. § 292(a).\n
\nTrial — waiver of disqualification of juror by failure to challenge.
Both at common law and under the Code of Civil Procedure an objection to the qualification of a juror is available only upon a challenge even though the disqualification is not known to the party at the time of trial. This rule applies in criminal as well as civil cases,
Hence, a new trial in a criminal case'will not be granted upon the ground that one oí the jurors was over seventy years of age if no objection to his qualification was made.
","id":5375711,"judges":"Sewell","opinions":[{"author_str":"Sewell","ocr":true,"opinion_id":5211407,"opinion_text":"\nSewell, J.:\nThe defendant was convicted of the crime of robbery in the first degree. One of the ¡jurors who served-on the trial was over the age of seventy years. .\nIt appeared by affidavits that neither the defendant nor his counsel knew the juror was disqualified at the time of the trial.' Ho challenge or other objection to his qualification was made. The question presented is whether the acceptance of the juror by the defendant was a waiver of the objection to his qualification.\n. It was early settled that a failure to object to the -qualifications . of a juror was a waiver of all objections, although the disqualification was not known to the defeated party at -the time of the trial. (Eggleston v. Smiley, 17 Johns. 133 ; Hayes v. Thompson, 15 Abb. Pr. [N. S.] 220; Seacord v. Burling, 1 How. Pr. 175 ; Bennett v. Matthews, 40 id. 428; Stedman v. Batchelor, 49 Hun, 390; Dayharsh v. Enos, 5 N. Y. 531.) The following cases sustain the claim that this rule has been generally observed in criminal cases: People v. Jewett (6 Wend. 389); People v. Rathbun (21 id. 542); People v. Mack (35 App. Div. 114); Stephens v. People (19 N. Y. 549); Pierson v. People (79 id. 424). In People v. Mack, Mr. Justice Merwin said : “ In many criminal cases it has been held to be immaterial whether or not the defendant, in cases not capital, knew before the verdict the disqualification of the juror, as long as he had an opportunity to challenge and question the juror as to his qualifications, but neglected to do so,” and cited State v. Vogel (22 Wis. 471); King v. Sutton (8 B. & C. 417); State v. Quarrel (2 Bay [S. C.] 150); Williams v. State (37 Miss. 407). But aside from these *595considerations the law was settled by an amendment to section 1180, of the Code of Civil Procedure (Laws of 1877, chap. 416).* The section as amended provides that, “An objection to the qualifications of a juror is available only upon a challenge,” and this provision is made to “ apply equally to a criminal and a civil action or special proceeding, and to a court of criminal and a court of civil jurisdiction” by subdivision 7 of section. 3347 of the Code of Civil Procedure. It follows that the order of the County Court should be affirmed.\nA.11 concurred.\nOrder of the County Court affirmed.\n\n See also Laws of 1901, chap. 243.— [Rep.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-thayer","summary":"Appeal by the defendant, Alfred Thayer, from an order of the County Court of Chemung county, entered in the office of the clerk of said county on the 3d day of September, 1908, denying the defendant’s motion for a new trial."} {"attorneys":"William P. Smith III, General Counsel State Bar, Kellyn O. McGee, Assistant General Counsel State Bar, for State Bar of Georgia.","case_name":"In re Perry","case_name_full":"IN THE MATTER OF DIANE LINDSEY PERRY","case_name_short":"In re Perry","citation_count":0,"citations":["277 Ga. 31","585 S.E.2d 877"],"court_full_name":"Supreme Court of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Supreme Court of Georgia","court_type":"S","date_filed":"2003-09-08","date_filed_is_approximate":false,"id":5748252,"opinions":[{"ocr":true,"opinion_id":5600335,"opinion_text":"\nPer curiam.\nThis disciplinary matter is before the Court on the Report and Recommendation of the Review Panel of the State Disciplinary Board. On September 14, 1998, this Court suspended Perry indefinitely pursuant to her petition for voluntary discipline brought under Bar Rule 4-104 (mental incapacity and substance abuse). See In the Matter of Perry, 269 Ga. 757 (507 SE2d 437) (1998) (imposing significant conditions for Perry’s readmission to the practice of law). Claiming that she had satisfied all the conditions imposed for her readmission, Perry properly petitioned the Review Panel which unanimously agreed and recommended that Perry be readmitted to the practice of law. As the State Bar of Georgia has asserted no objection to Perry’s request, this Court accepts Perry’s request for readmission and hereby orders that Perry’s suspension be lifted and that her ability to practice law be restored as of the date of this order.\n\nPetition for reinstatement accepted.\n\n\nAll the Justices concur.\n\n*32Decided September 8, 2003.\nWilliam P. Smith III, General Counsel State Bar, Kellyn O. McGee, Assistant General Counsel State Bar, for State Bar of Georgia.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-perry"} {"case_name":"State v. $18,000","case_name_short":"$18,000","citation_count":0,"citations":["311 Neb. 621"],"court_full_name":"Nebraska Supreme Court","court_jurisdiction":"Nebraska, NE","court_short_name":"Nebraska Supreme Court","court_type":"S","date_filed":"2022-05-20","date_filed_is_approximate":false,"id":6476993,"opinions":[{"download_url":"https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00008605PUB","ocr":false,"opinion_id":6349104,"opinion_text":"Nebraska Supreme Court Online Library\nwww.nebraska.gov/apps-courts-epub/\n06/13/2022 01:06 AM CDT\n\n\n\n\n - 621 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n STATE v. $18,000\n Cite as 311 Neb. 621\n\n\n\n\n State of Nebraska, appellee, v. Eighteen Thousand\n Dollars in U. S. Currency ($18,000.00),\n appellee, and Christopher Bouldin,\n Interested Party, appellant.\n ___ N.W.2d ___\n\n Filed May 20, 2022. No. S-21-660.\n\n 1. Statutes: Appeal and Error. Statutory interpretation presents a question\n of law that an appellate court resolves independently of the trial court.\n 2. Appeal and Error. An argument that does little more than to restate an\n assignment of error does not support the assignment, and an appellate\n court will not address it.\n\n Appeal from the District Court for Seward County: James C.\n Stecker, Judge. Affirmed.\n Bradley A. Sipp for appellant.\n Lory A. Pasold, Seward Chief Deputy County Attorney, for\n appellee State of Nebraska.\n Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,\n Papik, and Freudenberg, JJ.\n Papik, J.\n A law enforcement officer seized $18,000 in cash from\n Christopher Bouldin during a traffic stop. Following a trial in\n subsequent forfeiture proceedings, the district court found that\n the State had shown by clear and convincing evidence that the\n cash was used or intended to be used to facilitate a violation\n of the Uniform Controlled Substances Act and ordered the\n\f - 622 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n STATE v. $18,000\n Cite as 311 Neb. 621\n\ncash forfeited to the State. Bouldin now appeals and asserts\nthat the district court applied an incorrect standard of proof\nand that there was insufficient evidence to order the forfeiture.\nWe affirm.\n BACKGROUND\n This case began when the State filed a petition pursuant\nto Neb. Rev. Stat. § 28-431 (Reissue 2016), alleging that on\nor about August 1, 2020, an officer with the Seward County\nSheriff’s Department seized $18,000 from Bouldin. According\nto the petition, the cash was used or intended to be used to\nfacilitate a violation of the Uniform Controlled Substances Act\nand asked the district court to order that it be forfeited to the\nState. Shortly thereafter, Bouldin entered his appearance and\nfiled an answer in which he asserted that the cash should be\nreturned to him.\n The matter was set for trial, but Bouldin did not appear.\nThe only witness to testify was the officer who seized the cash\nfrom Bouldin. The officer testified that on the day at issue, he\nwas operating a marked patrol car on Interstate 80 in Seward\nCounty, Nebraska. There, he initiated a traffic stop and, later,\na search of a vehicle driven by Bouldin. The officer found and\nseized $18,000 in cash.\n The officer testified to various pieces of information that he\nobtained during the stop that led him to believe that Bouldin\nintended to purchase a large amount of marijuana with the\nseized money. Among other things, the officer testified that\nBouldin told the officer he was traveling from his home in\nVirginia to Colorado; that a certified drug dog positively\nindicated the presence of illegal narcotics in the vehicle;\nthat Bouldin’s phone had pictures of marijuana taken in both\nVirginia and Colorado; that a Colorado area code phone\nnumber had sent text messages to Bouldin’s phone contain-\ning photographs and video of what the officer identified as\nmarijuana and “THC wax”; that Bouldin had sent text mes-\nsages to the same number requesting “8 widow” and “8 goat”;\n\f - 623 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n STATE v. $18,000\n Cite as 311 Neb. 621\n\nand that in the officer’s opinion, the person using the other\nphone number was offering to sell marijuana and “THC wax,”\nand that Bouldin was agreeing to make a purchase. The State\nalso introduced evidence that Bouldin had previously been\nconvicted in Utah of attempted possession of a controlled sub-\nstance with intent to distribute.\n After the trial, the district court entered an order in which it\nstated that it had found by clear and convincing evidence that\nthe seized cash was used or intended to be used to facilitate a\nviolation of the Uniform Controlled Substances Act. The dis-\ntrict court ordered the cash forfeited to the State and entered an\norder of distribution.\n Bouldin filed a timely appeal.\n ASSIGNMENTS OF ERROR\n On appeal, Bouldin assigns that the district court erred\nby (1) applying a clear and convincing evidence standard of\nproof and (2) finding that there was sufficient evidence to\norder forfeiture.\n STANDARD OF REVIEW\n [1] Statutory interpretation presents a question of law that\nan appellate court resolves independently of the trial court. See\nState v. Riessland, 310 Neb. 262, 965 N.W.2d 13 (2021).\n ANALYSIS\nStandard of Proof.\n Bouldin claims that the district court erred by applying a\nclear and convincing evidence standard of proof in consider-\ning whether the money was used or intended to be used to\ncommit a violation of the Uniform Controlled Substances\nAct. He submits that the correct standard is beyond a reason-\nable doubt.\n The parties agree that this case is governed by § 28-431.\nThat statute sets forth how such cases are to proceed if, as here,\na party files a claim to property that the State has sought to\nforfeit. It provides in relevant part:\n\f - 624 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n STATE v. $18,000\n Cite as 311 Neb. 621\n\n If the claimant proves by a preponderance of the evidence\n that he or she (a) has not used or intended to use the\n property to facilitate an offense in violation of the act,\n (b) has an interest in such property as owner or lienor or\n otherwise, acquired by him or her in good faith, and (c)\n at no time had any actual knowledge that such property\n was being or would be used in, or to facilitate, the viola-\n tion of the act, the court shall order that such property . . .\n be returned to the claimant. If there are no claims, if all\n claims are denied, or if the value of the property exceeds\n all claims granted and it is shown by clear and convinc-\n ing evidence that such property was used in violation of\n the act, the court shall order disposition of such property\n at such time as the property is no longer required as evi-\n dence in any criminal proceeding.\n§ 28-431(6).\n Bouldin makes no argument he carried the burden of proof\nthat the foregoing language places on the claimant. His argu-\nment is instead focused on the burden of proof the statute\nplaces on the State.\n Bouldin’s argument relies on prior cases governed by\n§ 28-431 in which we observed that the State was subject\nto a beyond a reasonable doubt standard. See, e.g., State v.\nFranco, 257 Neb. 15, 594 N.W.2d 633 (1999); State v. 1987\nJeep Wagoneer, 241 Neb. 397, 488 N.W.2d 546 (1992). At the\ntime of those cases, however, § 28-431(4) expressly provided\nthat in order for property to be forfeited, the State was required\nto prove beyond a reasonable doubt that property was used\nin violation of the Uniform Controlled Substances Act. See\n§ 28-431(4) (Reissue 2008). In 2016, the Legislature amended\nthe statute to remove the “beyond a reasonable doubt” lan-\nguage and to replace it with “clear and convincing evidence.”\nSee 2016 Neb. Laws, L.B. 1106, § 6. Because the district court\napplied the standard of proof required by the governing statute\nand Bouldin makes no claim that the statute is unconstitutional,\nwe find no error on the part of the district court.\n\f - 625 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n STATE v. $18,000\n Cite as 311 Neb. 621\n\n We acknowledge that in State v. Franco, supra, one of\nthe cases upon which Bouldin relies, we held that forfeiture\nactions pursuant to § 28-431 are criminal proceedings. Because\nthis case does not require us to determine whether forfeiture\nproceedings under the statute remain criminal in nature after\nthe 2016 amendments to § 28-431, we leave that question for\nanother day.\n\nSufficiency of Evidence.\n Bouldin’s second assignment of error is that there was insuf-\nficient evidence for the district court to find that the $18,000\nwas subject to forfeiture. Bouldin’s brief, however, provides\nnext to nothing in the way of argument in support of this asser-\ntion. He states only that the district court “did not find that\nthe evidence in the case at hand met the [beyond a reasonable\ndoubt standard], very possibly because it simply did not.” Brief\nfor appellant at 9.\n [2] As we have previously emphasized, an appellant is\nrequired to identify in his or her brief the factual and legal\nbases that support the assignments of error. See Marcuzzo v.\nBank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015). It is\na fundamental rule of appellate practice that an alleged error\nmust be both specifically assigned and specifically argued in\nthe brief of the party asserting the error. See State v. Filholm,\n287 Neb. 763, 848 N.W.2d 571 (2014). The failure to comply\nwith this rule comes with consequences. An argument that does\nlittle more than to restate an assignment of error does not sup-\nport the assignment, and an appellate court will not address\nit. Id.\n We find that Bouldin has failed to provide an adequate\nargument in support of his second assignment of error. The\ntotality of his argument is an assertion that the evidence was\ninsufficient under a beyond a reasonable doubt standard.\nAs we have already explained, Bouldin has not shown that\nthe State was required to meet a beyond a reasonable doubt\nstandard. More importantly, Bouldin has not provided any\n\f - 626 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n STATE v. $18,000\n Cite as 311 Neb. 621\n\ndiscussion of why the evidence was insufficient under any\nstandard of proof. Because Bouldin failed to provide a spe-\ncific argument in support of his second assignment of error,\nwe will not address it. See Filholm, supra.\n\n CONCLUSION\n Because we find no error on the part of the district court,\nwe affirm.\n Affirmed.\n\f","page_count":6,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"state-v-18000"} {"attorneys":"*135Valerie A. Randall, Esq., Rioux, Donahue, Chmelecki & Peltier LLC, Portland, for appellant father, Janet T. Mills, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen, Office of the Attorney General, Augusta, for appellee Department of Health and Human Services","case_name":"In re Stephen E.","case_name_full":"IN RE CHILD OF STEPHEN E.","citation_count":0,"citations":["186 A.3d 134"],"court_full_name":"Supreme Judicial Court of Maine","court_jurisdiction":"Maine, ME","court_short_name":"Supreme Judicial Court of Maine","court_type":"S","date_filed":"2018-05-22","date_filed_is_approximate":false,"id":6484866,"opinions":[{"author_str":"Per Curiam","ocr":true,"opinion_id":6357035,"opinion_text":"\nPER CURIAM\n[¶ 1] Stephen E. appeals from a judgment of the District Court (Waterville, Mathews, J. ) terminating his parental rights to his child pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(iv) (2017).1 He raises directly on appeal a claim of ineffective assistance of counsel at the hearing on the petition to terminate his parental rights.2 The father does not challenge the merits of the court's judgment terminating his parental rights. Because the father failed to present a prima facie case of ineffective assistance of counsel and the record evidence supports the court's findings and discretionary determinations, we affirm the judgment.\nI. CASE HISTORY\n[¶ 2] In July 2016, the mother of the child relocated from New York to Maine, bringing the child with her.3 After being notified by New York child protective authorities of an open case in New York and after another child in the mother's home made a plea for help, the Maine Department of Health and Human Services began an investigation. On August 5, 2016, the Department and law enforcement officials *136placed the child in a six-hour hold, see 15 M.R.S. § 3501(1)-(2) (2017), due to safety concerns for the child and the mother's unwillingness to cooperate. The Department then initiated this child protection proceeding. See 22 M.R.S. § 4032 (2017). The court (Dow, J. ) entered a preliminary protection order, placing the child in Department custody. See 22 M.R.S. §§ 4034, 4036 (2017).\n[¶ 3] On August 22, 2016, a summary preliminary hearing was held. The court (E. Walker, J. ) determined that the father, who did not appear but was represented by counsel, had not been provided with sufficient notice. The father did participate telephonically in a case management conference held that same day. See M.R. Civ. P. 43(a).\n[¶ 4] The court (Mathews, J. ) held a contested jeopardy hearing in December 2016 at which the father participated telephonically. By order dated January 19, 2017, the court found jeopardy to the child based on the following facts:\nThis family came to the Department's attention when the State of New York notified the Maine Department of Health and Human Services ... of an open case it had with [the mother]. [The mother] had left New York with [her children] to reside in Maine. [The mother] left New York, in large part to escape from [the father] who had subjected her to domestic violence for several years....\n....\n[The father] has subjected [the mother] to physical and emotional abuse. The Court finds [the mother's] testimony on the domestic violence very credible. The physical abuse included scratching, biting, cutting, kicking and punching [the mother]. In 2013, [the mother] was hospitalized with four broken ribs, a fat lip and two black eyes from a beating administered by [the father]. In late July 2016 [the father] broke into [the mother's] residence and sexually assaulted her. During this event, both of [the mother's children] were sleeping in her bed. In the middle of the assault [the child] awoke and asked his father ... why he was hurting his mother. Shortly after this event [the mother] fled New York to Maine with the assistance of a police officer and a domestic violence agency.\n....\n[The father] denies that he abused [the mother] despite overwhelming evidence to the contrary. The Court does not find him believable. In his estimation, the only reason [the mother] was able to keep [the children] from going into state custody in New York was because he lived with them. Irrespective of this position, [the father] voluntarily left the home in March 2016. He abandoned [the child] in circumstances he felt were unsafe because he \"knew DHHS would catch up with [the mother].\" [The father] takes no responsibility for the abuse he perpetrated, the trauma he inflicted on his child and his abdication of his parental role. The Court finds that [the father] has subjected [the child] to treatment heinous and abhorrent to society as contemplated by 22 M.R.S. § 4002(1-B)(A)(1) and has abandoned [the child] as contemplated by 22 M.R.S. § 4002 (1-A)(F).\n[¶ 5] Based on its finding of two aggravating factors-that the father had abandoned the child and that the father had subjected the child to treatment heinous and abhorrent to society-the court relieved the Department of its obligation to pursue reunification efforts with the father. See 22 M.R.S. §§ 4002(1-A)(F), (1-B)(A)(1), 4041(2)(A-2)(1) (2017).\n*137[¶ 6] The Department filed a petition to terminate the father's parental rights on July 24, 2017. The father was served the petition in hand, in New York, on July 31.\n[¶ 7] On September 1, 2017, the court (E. Walker, J. ) held a case management conference at which the father did not appear. The father's counsel notified the court that his contact with the father had been \"minimal at best,\" that the father had not given him any direction other than a general request to contest the petition, and that the father had not responded to counsel's email sent almost a month earlier regarding the case management conference. Counsel notified the court that he was considering filing a motion to withdraw. Six days later, counsel filed a motion to withdraw, which was granted by the court (Mathews, J. ) on September 14.4 The court's order provided that the father could apply for the assignment of new counsel.\n[¶ 8] On November 8, 2017-one week prior to the hearing on the petition to terminate parental rights-the father filed a letter, which included several attachments, expressing his dissatisfaction with the Department and his former counsel and defending against some of the allegations made against him. In the letter, the father did not include an application for reappointment of counsel, move for a continuance, request that he be permitted to participate telephonically in the forthcoming termination hearing, or make any other arrangements related to the termination hearing.\n[¶ 9] On November 15, 2017, the court held a one-day evidentiary hearing on the Department's petition to terminate the father's parental rights. Because the father failed to appear after having been given proper notice of the termination hearing, the hearing was held in his absence. That same day, the court entered a judgment terminating the father's parental rights. The court based its unfitness and best interest determination on the following findings:\n[The father] last had contact with [the child] on 1/5/17 through a phone conversation facilitated by the [Department]. [The father] has not attended court in person.... He has not appeared in any capacity since the jeopardy hearing .... He has not [had] contact with the Department since 1/9/2017, when he had a phone call [with] the Department and his focus was on [the mother's] ex-boyfriend.\n....\n[The father] has taken no steps to alleviate jeopardy issues identified in the jeopardy order dated 12/21/16.\n....\nThe child is in need of protection and permanency. Since the parents have failed to make meaningful progress towards *138reunification in a time reasonably calculated to meet the child's needs and have abandoned the child, the Court finds that evidence supports a finding that termination of parental rights is in [the child's] best interest. The child has resided in a therapeutic foster care home since February 14, 2017. The child has made wonderful gains adjusting to school and the home since the initial placement. He shares a significant bond with his foster care mom, who spends substantial one on one time with the child and works in his school. The child has also formed bonds with the other child in the home and the foster care father. The child needs a permanency plan which is achievable in a time reasonably calculated to meet his needs. The permanency plan is Adoption ....\n[¶ 10] Based on these findings, the court found, by clear and convincing evidence, that the father (1) has abandoned the child, (2) is unwilling or unable to protect the child from jeopardy and that these circumstances are unlikely to change within a time reasonably calculated to meet his needs, (3) is unwilling or unable to take responsibility for the child within a time reasonably calculated to meet the child's needs, and (4) has failed to make a good faith effort to rehabilitate and reunify with the child.5 See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(iv). The court also found that termination of the father's parental rights is in the best interest of the child. See 22 M.R.S. § 4055(1)(B)(2)(a). The father filed a timely notice of appeal. See 22 M.R.S. § 4006 (2017) ; M.R. App. P. 2A(a), (b)(1), 2B(c)(1).\nII. LEGAL ANALYSIS\n[¶ 11] In his appeal, the father asserts a claim that his counsel's withdrawal two months before the termination hearing amounts to ineffective assistance of counsel because the father was left without representation at the termination hearing and no case was presented on his behalf.6\n[¶ 12] There are two ways in which a parent can raise a claim of ineffective representation in a termination case. In re Tyrel L. , 2017 ME 212, ¶ 7, 172 A.3d 916 ; In re M.P. , 2015 ME 138, ¶ 27, 126 A.3d 718. \"First, if there are no new facts that the parent seeks to offer in support of the claim, the parent may make an ineffectiveness claim in a direct appeal from a termination order.\" In re Aliyah M. , 2016 ME 106, ¶ 6, 144 A.3d 50. \"Second, if the basis for the parent's ineffectiveness challenge is not clear from the existing record and would require a court to consider extrinsic evidence, the parent must promptly move for relief from a judgment terminating his or her parental rights pursuant to M.R. Civ. P. 60(b)(6).\" Id. Regardless of how the parent presents the claim, the parent \"must execute and file an affidavit stating, with specificity, the basis for the claim.\" Id. ¶ 7. Here, the father asserts his claim by taking a direct appeal.\n[¶ 13] On a direct appeal, \"we will review the existing record to determine *139whether the evidence in that record creates a prima facie showing of ineffectiveness.\" Id. ¶ 12. The father bears the burden to demonstrate that \"(1) counsel's performance was deficient, i.e., that there has been serious incompetency, inefficiency, or inattention of counsel amounting to performance ... below what might be expected from an ordinary fallible attorney, and (2) the parent was prejudiced by the attorney's deficient performance in that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\" In re M.P. , 2015 ME 138, ¶ 27, 126 A.3d 718 (citations omitted). The father's contention is deficient in several respects.\n[¶ 14] First, the father asserts that it was improper for counsel to withdraw from his representation by citing numerous rules of professional conduct. To the extent that the father challenges the trial court's original grant of the motion to withdraw and removal of counsel, his argument is not properly presented, and, in any event, is not persuasive. See 22 M.R.S. §§ 4005(2), 4006 (2017) ; In re Ryan G. , 2017 ME 214, ¶ 1 n.1, 173 A.3d 142 ; In re L.R. , 2014 ME 95, ¶ 9, 97 A.3d 602 (\" Section 4006 unequivocally provides that in child-protective cases orders other than termination orders, jeopardy orders, or orders authorizing medical treatment 'are not appealable.' \").\n[¶ 15] Second, the father has not demonstrated that counsel's performance at the termination hearing was deficient where counsel had withdrawn months earlier with leave of the court. Indeed, the father's brief asserts that \"[i]t is impossible to know what would have occurred, had trial counsel not withdrawn from representation.\" A prerequisite to establishing that counsel's performance was \"below what might be expected from an ordinary fallible attorney\" is that counsel was a participant in the proceeding.\n[¶ 16] To the extent that the father argues that counsel's act of withdrawing from the representation of a client who had abandoned communication and contact with counsel well in advance of trial constitutes a deficient performance, his argument, without more, is not persuasive. Cf. In re Frederick P. , 2001 ME 138, ¶¶ 9-11, 779 A.2d 957 ; State v. McLaughlin , 567 A.2d 82, 83 (Me. 1989). But cf. In re Ryan G. , 2017 ME 214, ¶ 1 n.1, 173 A.3d 142 (cautioning against the removal of counsel from a parent involved in a child protection proceeding).\n[¶ 17] Third, the father claims that he was prejudiced by counsel's withdrawal because-without counsel-he was deprived of the opportunity to testify on his own behalf, present witnesses, and cross-examine the Department's witnesses.7 Contrary to the father's contention, the father could have participated in the termination hearing without the aid of counsel. Cf. In re T.B. , 2013 ME 49, ¶ 15, 65 A.3d 1282. The father had previously participated telephonically in a case management conference and at the jeopardy hearing, and therefore was aware that he could remotely take part in the termination proceeding.\n[¶ 18] Furthermore, counsel withdrew from the case two months before the termination hearing, leaving the father adequate *140time to apply for replacement counsel who could have presented a defense on his behalf. The father never requested substitute counsel, however, despite the court's invitation to do so. Cf. id. ¶¶ 18-19. The result of the termination hearing not being to his liking, the father claims on appeal that he was aggrieved by his counsel's withdrawal-yet he failed to maintain contact with counsel, failed to cooperate with counsel, failed to request substitute counsel, failed to request a continuance, failed to respond to court notices, failed to appear in any capacity after the jeopardy hearing, and does not challenge the merits of the court's judgment terminating his parental rights. The father's claim of ineffective assistance is not persuasive when, like the reunification process, he was a nonparticipant in the judicial process.\n[¶ 19] Because the father, although notified of the termination hearing, failed to appear at the hearing and failed to seek any relief from the court in his November 8 letter or at any other time after counsel withdrew, the father has not demonstrated prejudice that \"so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\" See In re M.P. , 2015 ME 138, ¶ 27, 126 A.3d 718 (citation omitted).\nThe entry is:\nJudgment affirmed.\n\nThe District Court (Waterville, Mathews, J. ) also entered a judgment terminating the mother's parental rights. The mother does not appeal from that judgment.\n\n\nThe father also makes an ineffective-assistance-of-counsel claim in his direct appeal of the jeopardy order, alleging that his attorney failed to challenge the court's jurisdiction, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 19-A M.R.S. §§ 1731 -1783 (2017). We need not reach the father's argument because, even assuming that the claim is cognizable on appeal, the father has failed to make a prima facie showing of ineffectiveness. See In re Corey T. , 2018 ME 20, ¶ 4 n.3, 178 A.3d 1238 ; see also In re Evelyn A. , 2017 ME 182, ¶ 19, 169 A.3d 914. Title 22 M.R.S. § 4031(3) (2017) expressly states that the provisions of the UCCJEA \"do not apply to child protection proceedings.\"\n\n\nThe Department of Health and Human Services also initiated a child protection proceeding involving another child of the mother, who has a different father and whom the mother also brought to Maine. In re Emma B. , 2017 ME 187, ¶ 5 & n.2, 169 A.3d 945.\n\n\nIn this case, counsel's motion to withdraw was based on the client's failure to adequately maintain contact with counsel to the extent that representation had become \"unreasonably difficult.\" In child protective cases, where fundamental rights similar to the liberty interests in criminal cases are at stake, an order granting withdrawal should be conditioned on new counsel appearing or the party expressly waiving the right to counsel. See M.R.U. Crim. P. 44B (\"A court order relieving counsel does not become effective until either new counsel is appointed or has entered an appearance, or the court determines that the defendant has expressly waived the right to counsel, impliedly waived that right by conduct, or forfeited that right.\"). Immediate withdrawal of counsel could be ordered when actions by a party cause counsel safety or integrity concerns, see State v. Nisbet , 2016 ME 36, ¶¶ 12, 18, 27-39, 134 A.3d 840, or counsel's continued representation will cause counsel to be in violation of the Maine Rules of Professional Conduct, see id. ¶ 42, 134 A.3d 840 ; M.R. Prof. Conduct 1.16(a)(1) & cmts. (2)-(3).\n\n\nAlthough the court found that the father has taken no steps to address issues in the reunification plan, the record demonstrates that reunification was ordered only as to the mother and that the court relieved the Department of its obligation to pursue reunification efforts with the father after finding two aggravating factors at the jeopardy hearing. In all other respects, the court's factual findings are fully supported by competent evidence in the record.\n\n\nThe father filed with his notice of appeal a signed and sworn affidavit stating with specificity the basis for his claim. See In re M.P. , 2015 ME 138, ¶ 21, 126 A.3d 718 ; see also In re Aliyah M. , 2016 ME 106, ¶¶ 7, 10, 144 A.3d 50.\n\n\nIn his reply brief, the father appears to reframe his argument, asserting that he was denied the right to counsel and therefore was deprived of due process. The father's argument is deemed waived. See Lincoln v. Burbank , 2016 ME 138, ¶ 41, 147 A.3d 1165 (\"An issue raised for the first time in a reply brief may be viewed as not preserved for appeal.\"). In any event, we are not persuaded by his argument and do not address it further.\n\n","per_curiam":true,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-stephen-e"} {"attorneys":"Remington & Johnson, for the complainants., T. Hood, for the defendant.","case_name":"Cooper v. Tappan","case_name_full":"COOPER and STAINES v. EDWARD A. TAPPAN","case_name_short":"Cooper","citation_count":0,"citations":["4 Wis. 362"],"court_full_name":"Wisconsin Supreme Court","court_jurisdiction":"Wisconsin, WI","court_short_name":"Wisconsin Supreme Court","court_type":"S","date_filed":"1856-06-15","date_filed_is_approximate":true,"headnotes":"Am order dissolving or continuing an injunction is a proper subject of appeal.
Whether the defendant appeals from an order denying his motion to dissolve an injunction granted in vacation, or from an order of the court continuing an injunction so granted, the relief to which he may be entitled is the same.
Section 99 of chapter 84 of Revised Statutes construed.
Upon application for an injunction to stay proceedings at law in personal actions after judgment, the complainant is required, either to deposit a sum of money equal to the amount of such judgment and costs, and in addition a bond in sufficient sum conditioned for the payment of all such damages and costs as may be awarded, -or to execute, in lieu of the deposit of money, a bond in sufficient sum conditioned to pay the amount of the judgment, &c., and another bond conditioned to pay the damages and costs which may be awarded.
A written contract cannot he varied or explained by any parol agreements or understandings, at the time of making the same, and this rule applies as well in equity as at law.
Under the provisions of chapter 112 of the Sess. Laws of 1851, the complainant in a bill for relief against an usurious contract, cannot be required to deposit, or tender, or in his bill offer to pay the principal sum, or any part thereof, as a condition for granting relief.
","id":6716572,"judges":"Whitoh","opinions":[{"author_str":"Whitoh","ocr":true,"opinion_id":6597336,"opinion_text":"\n\nBy the Court,\n\nWhitoh, C. J.\nIt is not, perhaps, entirely clear, whether the appeal in this case is from the order made by the court below overruling the motion to dissolve the injunction, or from the order continuing it in force. It is contended on the part of the appellees that it is from the latter, and that no ap-jjfeal will be entertained, by this court, from such an order.\nThe reason given to show that an appeal will not lie from an order of this description, is, that when, as in this case, an injunction is allowed in vacation, ex parte, it expires by force of Eule 60, of the Circuit Court Eules in Equity, at the close of the next succeeding term of the court, unless it is continued in force by order of the court, and that as the motion which was made to dissolve the injunction was denied, and the order denying the motion was not appealed from, the order continuing the injunction was an order of course, and not the proper subject of an appeal.\nIt is argued that if the order denying the motion to dissolve the injunction was correct, the order to continue it should not' have been refused by the court; and that the order to continue must be correct, while the order denying the motion to dissolve is in full force. Hence it is contended by the appellees, that the appellant has mistaken his remedy by appealing from the wrong order, or rather has lost his right to appeal, by neglecting to appeal from the order denying his motion to dissolve the injunction.\nWe do not think that this is a correct view of the. matter. *364An injunction which ought to be dissolved, certainly ought not to be continued in force by order of the court; and we do not see but such an order can be appealed from, as well as any other interlocutory order. Nor do we see but that the appellant can obtain the same measure of relief by an appeal from such an order, as from one which denied his motion to dissolve the injunction. For, if the order continuing the injunction in .force should be reversed, the injunction would cease to have any effect by force of rule No. 50 of the Circuit Court, above alluded to.\nWe therefore think that the questions presented to this court are the same, whether we regard this as an appeal from one or the other of the orders in question ; and the view which we have taken of the matter renders it unnecessary to decide which one is really the subject of this appeal.\nWe are therefore brought to a consideration of the bill of complaint and the answer.\nThe bill alleges that the complainants purchased of the defendant, on the 10th day of January, 1855, a quantity of goods; for which they agreed to pay him the sum of $2,000, in two years from the date of the purchase; that the complainants executed a note to the defendant for the said sum of $2,000, and in order to make the defendant more secure, in case the complainants should become embarrassed-, or be in failing circumstances before the expiration of the said two years, the complainants made the note payable one day after date, and executed a warrant of attorney for confessing judgment upon said note after it should become due; that it was expressly agreed by the complainants and defendant at the time the note and warrant of attorney were executed, that the said, defendant should not cause 'a judgment to be entered “ until after the expiration of the said two years, unless as aforesaidthat for the payment of interest npon said note, during the said two years, over and above the interest which appeared to be due upon the face of the note, the complainants made to- the defendants, four other notes bearing date on the said 10th day of January, 1855, each for the sum of $250, payable, one in six months, one in twelve months, one in eighteen months, and one in two years; that the defendant, in violation.of his agreement above set forth, caused a judgment by *365confession to be entered up in the Dane Circuit Court upon said note on the 26th day of March, 1855, for the sum -of $2,027.22 besides the costs; that the complainants had been doing a profitable business since the date pi said note first mentioned, and have not at any time been embarrassed with debts or otherwise, and have not been in failing circumstances.\nThe bill charges that the note upon which the judgment was obtained, is usurious and void, for the reason that there was agreed to be reserved and taken, a greater sum than twelve per cent, per annum, for the use and forbearance of the sum of money mentioned in said note, which greater sum was so agreed and reserved to be taken by the making of the said other notes and delivering the same by said complainants to the defendant. The bill prays for an injunction to restrain the defendant from proceeding further upon the judgment, and that the same may be declared null and void.\nThe answer denies that the complainants purchased goods of the defendant, for which they agreed to pay $2,000 in two years, but alleges that the defendant and Staines, one of the complainants, had been engaged in the mercantile business as partners, under the name and style of Edward A. Tappan & Co., and that it was agreed between- them that the business of the firm should be closed, and that the property and effects of the firm should be converted into money, and applied in payment of the debts; that on the 10th day of January, 1855, the partnership of Edward A. Tappan & Co. was dissolved, and .that of Staines & Cooper was formed; that at that time it was agreed by Staines and the defendant, that the latter should take all the property of the former firm, and apply it in the payment of the debts — which arrangement was well understood by Cooper; that it was then believed by all the parties that the property of the firm could be converted into money in time to pay the debts, and that, after paying the debts, there would remain the sum of $2,000, which would be due to the defendant as his portion of the property ; that it was agreed by all the parties that the defendant should leave with the new firm $2,000, of the assets of the firm of Edward A. Tappan & Co., which were to remain with the complainants upon the condition that if the defendant should require the said sum'of $2,000, or any. part thereof, for the pur*366pose of paying the debts of the former firm, it should beimme-diately collected by him to be so applied; and upon the further condition that if the complainants should mismanage their business, or should become embarrassed with debts, or if the defendant should be apprehensive that there was danger of losing the said sum of $2,000, that then-the complainants should return said sum 5 that the defendant did leave with the complainants the sum of $2,000 in the property of the former firm, for which the complainants gave their note to the defendant on the 10th of January, 1855, payable one day after date, and also executed a warrant of attorney, whereby they intended fully to authorise the defendant to enter judgment on the note after the same should become due, if, in the judgment of the defendant, from any of the causes stated, it should be necessary or proper for him to enter the judgment; that immediately after the 10th day of January, 1855, the defendant set himself to work to collect from debts due the former firm, as well as from other means, an amount sufficient to pay the debts, with the view of applying all the money so collected to the payment of said debts, and prosecutéd his efforts till he became satisfied that said firm had not property that could be made available, sufficient to pay the debts; that since the dissolution of the partnership, the creditors of the firm have been demanding immediate payment of debts by said firm, and the defendant has been greatly harassed by their repeated importunities for payment; that it is true that the defendant has caused a judgment to be entered as charged in the bill, but that before the judgment was entered, he notified the complainant Staines that it would be necessary to withdraw the amount left in the hands of Staines & Cooper, in order to meet the demands of the creditors of the firm of Edward A. Tappan & Co., but that the complainants made no effort to pay the note and relieve the defendant from his embarrassments; that the defendant has no knowledge of the pecuniary condition of the complainants, but states upon information and belief; that they are largely in debt and embarrassed, and have extended their business greatly beyond the limits which ordinary prudence would, dictate, since the making of the note, and have also permitted their notes to be dishonored and protested, and are in failing circumstances; that it is not true as alleged in the bill, that at the time of the *367making of the note for $2,000,' it was agreed that in consideration that the defendant would not cause a judgment to be entered on said note until after the expiration of two years, and for the payment of interest on said note, during said two years, over and above the interest which should appear to be due on the face of the note, the complainants made to the defendant four other notes, each for the sum of $250, payable in six, twelve, eighteen and twenty-four months ; but that as a further understanding in reference to said $2,000, it was agreed by and between the complainants and the defendant, that in case tbe defendant could let the said $2,000 remain with the complainants, as he had hoped he could do, that for the time it should so remain, the defendant was to be a partner of the said complainants, in which event, they, the said complainants, computed that portion of the net profits arising from the said business, and coming to the defendant, at $250 for each and every six months such partnership should continue between the complainants and the defendant, and arranged the notes-as to time and amount, and tendered the same to the defendant, who received them with the express understanding that in case the defendant could let the said $2,000 remain with the complainants, he was to be a partner, but that if he did .not, and could not let the said $2,000 remain with the complainants, the said four notes should be canceled and returned to the complainants without payment, or other consideration from the complainants; that the defendant now has, and'has always kept said notes, and has been ready and willing to return them to the complainants on request, and now brings them into court to be canceled and returned to the complainants, or destroyed, as the court may direct; that the defendant does not now, nor ever has claimed any right to, or property in them, although he received them in good faith, not as interest, or in consideration of forbearance to sue the complainants, or otherwise, as stated in said bill, but as profits on his supposed investment of capital as partner, as before stated; that the defendant therefore denies that he contracted, or intended to contract, for any usurious interest, and expressly states, that he has received no such interest, or any interest whatever, on said two thousand dollars; that when the judgment was rendered against the complainants, *368the interest on said note was computed at seven per cent, per annum after the note, by its terms, became due.\nThe appellant contends that the injunction was not properly allowed in the first instance, and of course ought to have been dissolved.\nThe first reason given to show that the injunction was improperly allowed, is, that no deposit of money was required of the complainants, as provided by the statute. Rev. Sis. ch. 84, §§ 97, 99, 104, 105. The substance of the provisions contained in these sections of the Revised Statutes, is such as to require, in all cases where an injunction is granted to stay proceedings at law after judgment in personal actions, a deposit of the sum for which the judgment was rendered, and the execution of a bond to the plaintiff in such sum as the officer allowing the injunction shall direct, conditioned for the payment of such damages and'costs as may be awarded at the final hearing of the cause, or, a bond in lieu of the deposit, in addition to the one last above mentioned ; or a bond conditioned for the payment of the judgment, and also for the payment of the damages and costs, in which case the bond is to be executed by at least two sureties. The provisions contained in the sections of the Revised Statutes above referred to, do not, perhaps, in all respects harmonize; but the conclusion at which we have arrived, in the construction which we have given to them, seems on the whole to be better calculated to carry out the intentions of the legislature, than any other which can be put upon them.\nThe order for the preliminary injunction' was made on condition that the complainants should first execute a bond to the defendant in the sum of $2,100, conditioned to pay the judgment which was enjoined, and also a bond in the sum of $500, conditioned to pay the damages as provided in section 99 of the Revised Statutes, above referred to.\nWe think that the order was correct so far as it related to the security to be given in order to obtain the injunction; we are therefore brought to the consideration of another objection made by the appellant, and that is, that one of the bonds which was in fact given, did not conform to the order of the judge. The deviation consists in omitting from the bond any penalty, while *369the order of the judge directs that the bond shall be given in the sum of $500.\nWe think that we are relieved from the necessity of deciding what the effect of the omission would be, by the fact that a new bond, which conforms to the order made by the judge, was after-wards filed in the case.\nThis brings us to the consideration of the main objections made by the appellants to the order of the court below, which are, 1st: that the bill discloses no equity, and 2d, that if we should be of opinion that upon the case made by the bill, the complainants are entitled to relief, the answer fully denies the material allegations oí the bill. .\nWe do not think that either of the positions taken by the appellant can be sustained. The bill sets up a parol agreement made by the complainants and the defendant,.by which the note which was given by the former to the latter should not be the subject of legal proceedings to enforce its collection for two years, unless the complainants became embarrassed, and were in failing circumstances, while the note by its terms was payable in one day after date; in other words, the bill sets up a parol agreement, made at the time when the note was signed, which materially varies its import and changes its character. To 'this part of the bill the objection of the appellant is well .taken. The principle that a party to a written contract, cannot vary or control it by a parol agreement, madé before the written contract was entered into, or simultaneously with it, is too well settled to require the citation of any authorities to support it. But the bill clearly alleges that when the note was signed, an usurious contract was made by which the defendant reserved a. greater rate of interest upon the note, than the maximum allowed by the statute \\Sess. -L. 1851, chap. L72); and that this was done by the making of the' other notes described in the bill. The statute above cited makes contracts of this nature void, and provides that no court of equity shall “ require or compel the payment or deposit of the principal sum or any part thereof, as a condition of granting relief to the borrower, in any case of usurious loan forbidden by this act.”\nBefore the enactment of this statute, according to the settled practice of courts of equity, no relief would be granted to a *370party complainant, except upon the equitable terms or condition that he would pay to the .defendant the sum which was equitably due, although the statute provided that all bonds, notes or other contracts or securities wherein or whereby a greater rate of interest was reserved or taken than the statute allowed, should be void, and although the bill of complaint alleged that the contract against which relief was prayed, was of that character. Tupper vs. Powell, 1 Johns. Ch. Rep. 439; Fanning vs. Dunham, 5 id. 122. But we think that this subject is within the control of the legislature, and that, since the passage of the act above referred to, courts of equity in this state, are compelled to grant relief against such contracts in the manner which the statute prescribes. Livingston vs. Harris et al., 3 Paige, 528. We do not, therefore, see how a bill which sets up such a contract, and prays for relief against it, can be defective for want of equity, although it does not contain an offer to pay the sum equitably due. We must therefore hold that the first objection taken by' the appellant to the bill, cannot be sustained ; nor do we think that the answer of the defendant so fully denies the allegation of usury contained in the bill as to warrant the dissolution of the injunction.\nUpon 'this part of the case we cannot express our opinion fully without, perhaps, prejudicing the rights of the parties in the subsequent prosecution or defence of the suit. We, therefore, will only say, that the allegation of usury contained in the bill, is not so fully and satisfactorily denied, and with such circumstances of credibility, as to justify the dissolution of the injunction. 1 Bland R. 194; 2 Johns. Ch. R. 202 ; 3 Sumner R. 70.\nAs the statutes of the state oi New York are similar to ours, we were referred, at the argument, to the case of Livingston vs. Harris et al. (3 Paige, 528), to show that the injunction in this case was improperly allowed, for the reason that the bill does not waive the penalty which the statute imposes in cases of this nature. In the case above referred to, the bill stated that an action at law had been brought' by the defendant (Harris) against the complainant and the other defendant on a joint and several note, which the complainant had signed as surety, and which he had subsequently discovered was given to secure a usurious loan. The bill prayed for a discovery; that the note might be delivered *371tip to be canceled; and for an inj unction to stay the proceedings ■at law.\nThe court held, that inasmuch as the bill did not contain an offer to pay the sum which was equitably due, but insisted upon the penalty which the statute imposed, the complainant was not entitled to any discovery from the defendant. It was held, that to compel the defendant to discover as to the usury, would be to compel him to answer as to matters which might subject him to a forfeiture, and that it would be inconsistent with the spirit of the constitution to compel a party to be a witness against himself in such a case. It was also held, that the complainant was not entitled to relief, because he “ had a perfect defence at law, if he could establish the fact of usury without a discovery from the defendant.” The injunction was therefore dissolved.\nThe difference between this case' and the one before us is very apparent. Here a judgment has been recovered, and the only adequate relief to be obtained is by application to a court of equity.\nThe bill must, therefore, be sustained, as a bill for relief, even admitting that the complainants were not entitled to the discovery which they sought, if it sets up facts which warrant the interference of a court of equity, and upon this subject we have already expressed our opinion. The defendant could not, perhaps, have been compelled to answer that part of the bill which sought a discovery of the alleged usury, but if the usury can be established by other legal testimony, we do not see why the ■complainants are not entitled to the relief prayed for in the bill.\nThe order of the Circuit Court must, therefore, be affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cooper-v-tappan","summary":"APPEAL m EQUITY FROM DANE CIRCUIT COURT. The complainants filed their bill in the Circuit Court of Dane county, the object and prayer of which were to restrain the defendant from the collection of a judgment at law, recovered against them by the defendant for some $2,100. On application to the judge of the circuit in March, 1855, in vacation, a temporary injunction was allowed, and the defendant was ordered to show cause at the next regular term of the circuit, why “ a general injunction should not issue in said cause, as prayed for in said bill.” The temporary injunction was allowed, upon the complainants filing a bond in the sum of $2,100, conditioned to pay the amount of the judgment sought to be restrained ; and also another bond in the sum of $500, conditioned to pay the damages, &c., as provided by section 99 of chapter 84 of the Revised Statutes. On the 3d day of May following, daring the April term, Tap-pan, the defendant, filed his answer, and a motion for the dissolution of the injunction, for the several reasons therein mentioned. After the hearing of this motion, the court denied the same, and ordered that the injunction be continued until further order. The defendant appealed. The material allegations of the bill and answer are stated in the opinion of the court."} {"attorneys":"Messrs. tito/ces §• Irvine and Perrin Cothran, for appellants., Messrs. W. 0. Bradley and W. 3. Parker, contra.","case_name":"Ware v. Henderson","case_name_full":"WARE v. HENDERSON","case_name_short":"Ware","citation_count":0,"citations":["25 S.C. 385"],"court_full_name":"Supreme Court of South Carolina","court_jurisdiction":"South Carolina, SC","court_short_name":"Supreme Court of South Carolina","court_type":"S","date_filed":"1886-10-22","date_filed_is_approximate":false,"headnotes":"1. A question of jurisdiction may be first raised in this court, and is not ■waived by a failure to make the objection in the court below.
2. The Court of Common Pleas of Abbeville had no jurisdiction to ren-dev judgment against an administrator (resident in Greenville) of an intestate (also resident in Greenville) for an account of his administration of an estate of which he had been appointed receiver in Ab-beville, where the estate was located.
3. Cause remanded, with leave to apply for a change of venue.
","id":6791684,"judges":"Abbeville, Moiver, Pressley","opinions":[{"author_str":"Moiver","ocr":true,"opinion_id":6676138,"opinion_text":"\nThe opinion of the court was delivered by\nMr. Justice MoIver.\nThis action was commenced on August 24, 1883, in the County of Abbeville, against the defendant as administratrix, with the will annexed, of E. S. Irvine, deceased, and as his legatee and devisee, for an account of the estate of the plaintiffs which was in the hands of the said E. S. Irvine as receiver, in which judgment is demanded against the defendant, as well as such administratrix, as legatee and devisee, on account of assets descended, for any balance that may be found due upon such accounting. The said E. S. Irvine, though appointed receiver in the County of Abbeville, where the estate placed in his charge was located, and where he made his returns as receiver, was a resident of Greenville County, and so continued up to the time of his death, and all his real estate is located in the last *386mentioned county. The defendant was, at the time of the commencement of this action, and is yet, a resident of the County of Greenville, where she qualified as administratrix, made her returns as such and received her final discharge, upon her ex parte, application for that purpose, though she undertook to make a final return and settlement of the accounts of her testator as receiver before the judge of probate for Abbeville County.\nThe case was heard by Judge Pressley while holding the Court of Common Pleas for Abbeville County, who rendered a judgment in favor of the plaintiffs, from which the defendant appeals upon several grounds affecting the merits, and also upon the ground that the court in Abbeville had no jurisdiction of the case against the defendant, who is a resident of the County of Green-ville. This question of jurisdiction does not seem to have been raised in the Circuit Court, and therefore the Circuit Judge made no ruling upon it. But, as has been frequently held, a question of jurisdiction may, for the first time, be raised in this court, and therefore we must first determine that question before we can look into the merits; for if it shall be determined that the court which undertook to render judgment in this case had no jurisdiction of it, then the so-called judgment is a mere nullity, and there would be no necessity or propriety for us to inquire into the reasons upon which it was based.\nThe question is, could the court in Abbeville take jurisdiction of this case against the defendant, who is a resident of Green-ville, unless the place of trial had been changed to the County of Abbeville by an order of the court under section 147, of which there is no pretence in this case ? The code, after providing that certain specified actions, of which this is not one, must be tried in certain places, proceeds, in section 146, as follows: “In all other cases the action shall be tried in the county in which the defendant resides at the time of the commencement of the action; * * * subject, however, to the power of the court to change the place of trial in the cases as hereinafter provided.” It will be observed that the language used in these sections of the code in regard to che place of trial is of an imperative character — -“must be tried” in sections 144 and 145, and “shall be tried” in section 146 — and we do not see by what authority a court can dis*387regard such an imperative mandate from the law-making power. This language clearly implies that a case cannot be tried elsewhere than in the place appointed for the purpose, unless the place of trial be changed under section 147 of the code; and therefore if tried in the wrong county, the trial and the judgment entered therein are nullities for want of jurisdiction.\nThis has been distinctly held in one case (Trapier v. Waldo, 16 S. C., 276 1) and very plainly intimated in another (Steele v. Exum, 22 S. C., 276), where the exact point did not arise. For in Trafier v. Waldo, while the court held that the court in Charleston had acquired jurisdiction over the persons of those who had been made parties to a case for the foreclosure of a mortgage of real estate lying in Georgetown County, prior to the repeal of the first paragraph of section 149 of the old Code, yet, as to parties who were brought in by amendment, subsequent to' such repeal, it could not take jurisdiction and the judgment as to them was therefore void. {Note. — In examining this case it will be necessary to bear in mind that the sections of the code are not now numbered as they were when the opinion in Trapier v. Waldo was filed.) So in the case of Steele v. Hxum, supra, the Chief Justice uses this language: “It may be true, no doubt it is, that so far as the trial of the cause upon its merits is concerned, that court had no jurisdiction, as under the code, supra, the defendants residing in other counties, the trial could not be had in Williamsburg; but did it not nevertheless have jurisdiction as to changing the place of trial?\" and the case goes on to decide the only question then before the court, to wit: that the court did have jurisdiction of the motion to change the place of trial, and again uses this language: “But it is only because the court cannot have such complete jurisdiction that the power in question has been conferred.” This language plainly and necessarily recognizes the idea that, while a court sitting for a county in which an action is improperly brought, may take jurisdiction of a motion to change the place of trial, yet it has not such com-píete jurisdiction of the case as would' enable it to proceed with' the trial of the cause on the merits. See also Tate & Thompson v. Blakely, 3 Hill, 298.\n*388The cases of Lebeschultz v. Magrath (9 S. C., 276), and Parker v. Grimes (Ibid., 284), arose prior to the amendment of section 149 of the old Code, and therefore do not now apply. For that section as originally adopted, and as it read at the time those cases were decided, contained an express provision that if the action was not commenced in the proper county, the case might nevertheless be there tried, unless the defendant took the proper steps to have the place of trial changed; and hence while that was the law no jurisdictional question could arise, because jurisdiction to try the case in the wrong county was expressly conferred by the statute, unless the defendant saw fit to use the means provided for changing the place of trial to the proper county. But when that portion of section 149, containing this provision was repealed, as it has been by the act of 1879 (17 £tat., 14), the power to try a case in the wrong county has been taken away, and therefore it must be tried in the proper county, and the court of another county cannot take jurisdiction of it.\nRespondents contend that this objection came too late, and that defendant, by submitting to the trial in Abbeville County without objection, has waived her right to have the place of trial changed. But if, as we have seen, the objection is jurisdictional, then such an objection never comes too late, and it is well settled that consent cannot give jurisdiction. Gallman v. Gallman, 5 Strob., 207. Under the code as it originally read, a defendant could waive this objection, because the statute then provided: “If the county designated for that purpose in the complaint be not the proper county, the action may notwithstanding be tried therein, unless the defendant, before the time for answering expires, demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court as is provided in this section.” Hence if the defendant failed to take the proper steps, at the proper time,' to have the place of trial changed, he waived the right to do so, and the statute expressly provided that the trial might be had in the wrong county.\nBut since the language just quoted has been stricken out of section 149 by the amendment of 1879, above referred to, and that section, now numbered 147, contains no such provision, *389there is no authority for trying a case elsewhere than in the proper county, unless the place of trial is changed by the court under section 147, and no requirement that the defendant shall demand a change of the place of trial, failing in which will warrant a trial to be had in the wrong county. Nothing now remains but the imperative mandate that the action “shall be tried” in the county designated by the statute as the proper county for that purpose. The cases of Green v. Bookhart (19 S. C., 466), and Union Bank v. Northrop (Ibid., 473). are cases in reference to proceedings supplementary to an execution, in which it was held that mere irregularities will not affect the validity of such proceedings, and therefore do not apply here.\nWe think it clear, therefore, that the Court of Common Pleas for Abbeville County had no jurisdiction of this case, in which the only defendant is and was at the commencement of the action a resident of the County of Greenville; and that upon this ground alone, without reference to the merits, which it would be premature to consider now, the judgment appealed from must be set aside.\nThe judgment of this court is, that the judgment appealed from be set aside, solely on the ground of want of jurisdiction in the court which rendered it, without prejudice as to the merits, and that the case be remanded to the Court of Common Pleas for Abbeville County, so that the parties may, if they so desire, take the proper orders to change the place of trial.\n","per_curiam":false,"type":"020lead"}],"other_dates":"April, 1885.","precedential_status":"Published","slug":"ware-v-henderson","summary":"The opinion sufficiently states the case."} {"attorneys":"John F. Holcomb, Butler County Prosecuting Attorney, Daniel G. Eichel, First Assistant Prosecuting Attorney, and John M. Holcomb, Assistant Prosecuting Attorney, for appellee., \nRichard E. Saylor, pro se.\n","case_name":"State v. Saylor","case_name_full":"The State of Ohio v. Saylor","case_name_short":"Saylor","citation_count":0,"citations":["85 Ohio St. 3d 1205"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"1999-03-31","date_filed_is_approximate":false,"id":6885990,"judges":"Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney","opinions":[{"ocr":true,"opinion_id":6779466,"opinion_text":"\nThe cause is dismissed, sua sponte, as having been improvidently allowed in case No. 98-2066.\nThe certification of conflict is dismissed, sua sponte, as having been improvidently certified in case No. 98-2067.\nMoyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.\nLundberg Stratton, J., dissents.\n","per_curiam":false,"type":"020lead"},{"author_str":"Stratton","ocr":true,"opinion_id":6779467,"opinion_text":"\nLundberg Stratton, J.,\ndissenting. I would accept this case and require that the matter be briefed and set for oral argument.\n","per_curiam":false,"type":"040dissent"}],"other_dates":"Submitted March 10, 1999","precedential_status":"Published","slug":"state-v-saylor"} {"attorneys":"Mr. F. W. S. Brawley, for appellants;, Mr. J. C. Scovel, for appellee.","case_name":"Davison v. Hill","case_name_full":"E. L. Davison v. Thomas A. Hill","case_name_short":"Davison","citation_count":0,"citations":["1 Ill. App. 70"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1877-10-15","date_filed_is_approximate":true,"headnotes":"1. Parties—Misjoinder—When not to be pleaded.—To recover in actions ex contractu, a cause of action must be established against all the defendants, or there can be no recovery against any. A plea verified by affidavit under the 36th section of the Practice Act, denying joint liability, is unnecessary where it affirmatively appears from the plaintiff’s testimony that parties are made defendants against whom no cause of action is made out.
2. Contract—Rescission—Recovery op money paid.—Where it appears that the vendor, under a contract to sefl real estate, is not in default, the vendee cannot rescind the contract of purchase, and recover back the money paid thereon, unless he first place himself in a position to demand of the vendor a compliance with the terms of the contract on his part, and the vendor refuses.
","id":7081285,"judges":"Murphy","opinions":[{"author_str":"Murphy","ocr":true,"opinion_id":6986536,"opinion_text":" Murphy, J. This is an action of assumpsit upon the common counts, brought by the purchaser of real estate, to recover back money which he had paid the vendor, and the case was this: On the 29th day of March, 1873, the following agreement, in writing, was made and entered into between E. L. Davison, by Kerr, Welch & Davison, his agents, and Thomas A. Hill, appellee: “ Memorandum of an agreement entered into this day, between E. L. Davison, of Washington county, Kentucky, and Thomas A. Hill, of the city of Chicago, Illinois, is as follows: Said Davison hereby agrees to sell and convey, by deed of general warranty, the northwest quarter of section twenty (20), in township thirty-eight (38), north of range thirteen (13), east of third (3d) p. m., in Ooolc county, Illinois, for the sum of thirty-two thousand dollars (§32,000), to be paid as follows: Five hundred dollars in hand to bind this contract; seven thousand five hundred dollars twenty days from this date; to assume an incumbrance now on said premises of fifteen thousand dollars, evidenced by trust deeds or mortgages; two thousand dollars October 1st, 1873, with ten per cent, interest, and the balance in one, two and three years from this date, with eight per cent, interest, payable annually. Said Davison agrees to furnish abstract for examination, and if it shows a satisfactory title to said Hill, then he, the said Hill, hereby agrees to pay the above-mentioned sum of money, seven thousand five hundred dollars, and execute his notes and trust deeds for the deferred payments; but if the title should not prove good, then the five hundred dollars now paid shall be' returned to said Hill; but if said title proves good, then said Hill shall forfeit said five hundred dollars, as damages, unless he carries out the provisions of this contract. It is further agreed, that if said Hill should elect to take the following terms instead of the foregoing, he shall have the privilege so to do: to pay nine thousand five hundred dollars in twenty days, as same as before stated, and give his notes and trust deeds, payable in sixteen, twenty-four and thirty-six months from this date. It is further agreed, that the abstract shall be brought down to date; also, that part of the abstract that is placed with the loan of eight thousand dollars ($8,000), shall be returned to Fourth National Bank after the examination, but the continuance from August 6th, 1872, to date, shall be given to said Hill. In witness whereof, the parties hereunto set their hands and seals, this 29th day of March, 1873. o E. L. Davison, [seal.] By Kerr, Davison & Welch, Agents, [seal.] Tiios. A. Hill, [seal.] ” To recover back the $500.00 mentioned in the foregoing agreement, as having been paid to “ bind the contract,” was the object of this suit in the court below, upon the claim or assumption of the appellee, that he had rescinded said contract, as under the circumstances of the case he lawfully might do. In that court the parties W'aived a jury, and the cause was, tried by the court, which resulted in a judgment in favor of the appellee for $500.00, to reverse which this appeal is prosecuted. The first and second assignment of errors present substantially the same questions that, under the evidence submitted at the trial, the judgment should have been for the appellants. Under the view taken of the case by the court, the consideration of the 3d and 4th assignment of errors will be unnecessary. In support of these alleged errors, it is insisted by the appellants that there is a misjoinder of parties defendants, which is fatal to the action. By the contract put in evidence by the appellee, it will be seen that it purports in express terms to be a contract between E. L. Davison of the one part, and Thomas A. Hill of the other, Davison’s name being signed thereto “ by Kerr, Davison & Welch, his agents ”; and still we find these agents made defendants to the suit along with E. L. Davison, and upon the written contract thus executed, as the only evidence in the record of any contract between the parties, judgment is rendered against them in the court below. This, we think, was error. It is an elementary principle of procedure that the proofs and allegations must always'agree, and that to recover in actions ex contractu, a cause of action must be established against all the defendants or there can be no recovery against any. This is a doctrine taught by all the text writers who treat of the subject, and seems to be followed by all the adjudicated cases to which we have been referred: Wells v. Reynolds, 3 Scammon, 191; Griffith v. Furry, 30 Ill. 251; McLean v. Griswold, 22 Ill. 219. The latest case in our own court seems to he the case of Goit v. Joyce, 61 Ill. 489, all holding that to recover against any one of the defendants, a cause of action must he averred and proved against all of them. B.ut it is claimed by the appellee, that by section 36 of the Practice Act of our statute, in force July 1st, 1872, the rule of the common law in this regard has been changed, and that unless in actions • against two or more defendants, they tile a plea, verified hv affidavit, denying the joint liability, judgment must go against all, if any, notwithstanding the plaintiff’s own evidence discloses the fact, in the first instance, that certain of the defendants are not liable at all. We think the statute sufficiently radical in its innovations upon well established principles, without according to it so broad a scope as that; and are of opinion that where it appears, as in this case from the plaintiff’s testimony, that parties are made defendants against whom it affirmatively appears that there is no cause of action made out, then no such plea is necessary from the defendants to enable them to avail themselves of the misjoinder at the trial, and that in such casé the statute has no application. The remaining quéstion is whether appellant was so in default as to authorize the appellee to rescind the contract and recover hack the money paid thereon. We think not. From the facts as shown by this record, it will he observed that there is no time expressly fixed by the contract within which Davison was to convey the land; but twenty days being fixed for the payment of $7,500 on the purchase price by Hill, at which time he was to assume certain encumbrances then on the property, to the amount of $15,000, and secure the balance of the price on the premises by mortgage, we infer that the intention of the parties was that the conveyance should be then made, if the title was found good. From the evidence, it .appears that on the nineteenth or twentieth day from the date of the contract, the appellee handed L. A. Davison, the agent of E. L. Davison, the opinion of his (Hill’s) attorneys, noting that the title of E. L. Davison to the land was good, subject to certain encumbrances, to wit: the-release of two mortgages, defective, as they claimed, two trust deeds, both of which, by the terms of the contract, Hill was to assume and pay, and that, if living, Mrs. Jared Arnold might have right of dower. The agent, L. A. Davison, testified that at that time he had in his possession releases of the mortgages, perfectly executed. He also testifies that he showed them to Hill, and' asked him (Hill) to whom he would have the deed made; that Hill replied to him that he did not want the land at all. Aj>pellee did not make the point of objection that Mrs. Arnold might have dower in the property; if he had, appellant might have promptly removed the objection, to his (Hill’s) entire satisfaction: Bostwick v. Williams, 36 Ill. 65; but, on the contrary, informed the agent of the ajtpellant, E. L. Davison, “ that he did not want the land at all,” and tendered a quitclaim deed, re-conveying to E. L. Davison any rights he might have acquired under the contract. We think, to rescind the contract, he should, at least, have been able and willing to pay the $7,500, and offered in good faith to do so, and demanded from Davison a deed of the premises, which, if he had then declined to give, he (Hill) might have rescinded the contract; but as it was, we think he was not in condition to enable him to do so, and as a consequence, could have no recovery of the money paid. The learned judge who presided at the trial below, took a different view, and held the contract rescinded, which we think was error. For these reasons the judgment of the court below is reversed, and cause remanded. Judgment reversed. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"davison-v-hill","summary":"Appeal from the Circuit Court of Cook county; the Hou. W. K. McAllister, Judge, presiding."} {"attorneys":"Ben J. Gibson, Attorney General, B. J. Powers, Assistant Attorney General; and Arthur Lund, County Attorney, for appellant., G. Allbee and Loche & Lampman, for appellee.","case_name":"Whitmer v. Hoyt","case_name_full":"In re Estate of William H. Kite. A. R. Whitmer, Administrator v. E. H. Hoyt, Treasurer of State","case_name_short":"Whitmer","citation_count":0,"citations":["194 Iowa 129"],"court_full_name":"Supreme Court of Iowa","court_jurisdiction":"Iowa, IA","court_short_name":"Supreme Court of Iowa","court_type":"S","date_filed":"1922-04-08","date_filed_is_approximate":false,"id":7208200,"judges":"Artiiur, Bváns, Faville, Stevens","opinions":[{"author_str":"Faville","ocr":true,"opinion_id":7119869,"opinion_text":"\nFaville, J.\nThe facts of the case are submitted on a stipulation and the pleadings, from which it appears that one William H. Kite was a resident of Cedar County. He was about twenty-five years of age, and had never been married. He resided with his widowed mother, and was joint owner with her of certain real estate in said county. On the 20th day of February, 1902, he left his home and went to Cedar Rapids, Iowa, on a business trip, with the declared purpose of returning to his home the next day. He disappeared at said time, and no friend or relative has heard anything from him or his whereabouts since said date, as far as is known. Thereafter, the mother of the said absentee married one Weaver, and removed to Primghar, O’Brien County, where she subsequently died, on or about August 12, 1918, leaving surviving her, as her sole heirs at law, three daughters, who are sisters of the said absentee, and three granddaughters, who are nieces of the said absentee.\nOn or about the 28th day of July, 1919, one of the said collateral heirs filed an application in the district court of Cedar County, Iowa, for the appointment of an administrator of the estate of the said absentee. Due notice was given, as provided by statute, and on October 7, 1919, an order was entered appointing one Whitmer as administrator of the estate of the said absentee, and said administrator qualified as provided by law, and filed his report. Thereafter, the said administrator filed in said proceedings a petition for an order declaring' that the estate of the said absentee was not subject to a collateral inheri*131tance tax. To this application the treasurer of state filed an answer, claiming that the said estate was subject to a collateral inheritance tax, upon the foregoing state of facts. No claim was made in said answer that said Kite was in fact dead, and it was sought to hold his estate liable for the collateral inheritance tax solely upon the ground that he was an absentee. Upon hearing, the court entered an order denying the claim of the state, and adjudging that the property of the said absentee was not subject to a collateral inheritance tax.\nI. The question for our determination upon this record is whether or not the estate of one adjudged to be an absentee, under the provisions of the statutes of this state, is. subject to a collateral inheritance tax.\nThe provisions of the statutes in respect to the estates of absentees are found in Sections 3307, 3307-a, and 3307-b of the 1913 Supplement to the Code. Said sections are as follows:\n“Section 3307. When a resident of this state owning property therein, or any person who may have been a resident of this state, has acquired or may hereafter acquire property or property rights within the state, absents himself from his usual place of residence and conceals his whereabouts from his family without known cause for a period of seven years or any such person who has gone to parts unknown for a period of ten years, a petition may be filed in the district court of any county where such property or a part thereof is situated, setting forth such facts, by any person entitled to administer upon such absentee’s estate if he was known to be dead, and setting forth the names of the persons who would be the legal heirs of the absentee if he were dead, so far as known, and praying for the issuance of letters of administration upon such estate; thereupon, said court shall prescribe a notice addressed to such absentee and heirs named, and order the same to be published in a newspaper published in said county to be designated by the court, once each week for eight consecutive weeks, and which shall be served personally upon all the heirs residing within the state in the manner, and for the -length of time as is required for the service of original notices, proof of the publication and service of which in manner and for the time ordered shall, at the expiration of said period be filed with said petition, and thereupon if such *132absentee fails to appear, tbe court shall hear the proof presented, and if satisfied of the truth of the facts set forth in the petition concerning the absentee, shall order letters of administration upon the estate of such absentee to issue as though he were known to be dead. The court shall also hear proof and determine who the legal heirs of such absentee are and their respective interests in such estate.”\n1 ‘ Section 3307-a. The person to whom the administration is granted shall proceed to administer and dispose of the estate in the same manner that administrators are required to dispose of and administer the estates of decedents. In addition thereto, such administrator may, under the orders of the court, sell and dispose of all real estate and other property owned by such absentee, and after the payment of legal costs, expenses and claims, make distribution of the proceeds thereof to the persons entitled thereto. The provisions of law regarding application, notice and manner of sale of real estate for the payment of debts by administrators shall be followed so far as applicable.”\n“Section 3307-b. Administration upon the estate of an absentee shall forever bar his or her right of homestead and statutory distributive share or interest in and to any real estate owned or held by the spouse of such absentee, or in which said spouse may have a legal or equitable interest, and a conveyance thereof by such spouse after one year from and after such administration has been granted, shall be free and clear of any claim or right of homestead or statutory distributive share on the part of such absentee.”\nThe collateral inheritance tax statute, Section 1481-a of the said 1913 Supplement to the Code, provides in part as follows:\n“The estates of all deceased persons, whether they be inhabitants of this state or not, and whether such estate consists of real, personal or mixed property, tangible or intangible, and any interest in, or income from any such estate or property, Avhich property is, at the death of the decedent owner, within this state or is subject to, or thereafter, for the purpose of distribution, is brought within this state and becomes subject to the jurisdiction of the courts of this state, or the property of any decedent, domiciled within this state at the time of the death of such decedent, even though the property of such decedent so *133domiciled was situated outside of the state, * * * The tax aforesaid shall be for the use of the state, shall accrue at the death of the decedent owner, and shall be paid to the treasurer of state wilhi.n eighteen months thereafter, except when otherwise provided in this act, and shall be and remain a legal charge against and a lien upon such estate, and any and all of the property thereof from the death of the decedent owner until paid.”\nThe statute providing for the granting of administration upon the estate of an absentee is a special statute, limited and confined to the specific purposes therein set forth. It is evident that the legislative purpose was to provide a method 'by which property of those who had disappeared and had not been heard from for a period of seven years without known cause, or who had gone to parts unknown for a period of ten years, might be disposed of.\nSection 3307-a provides that, upon the granting of an administration on the estate of such absentee, it shall be administered and disposed of in the same manner that administrators are required to dispose of and administer the estates of decedents. It is apparent that this proceeding can be resorted to where the requisite facts exist in regard to the disappearance of the absentee, whether he in fact be dead or alive. In New York L. Ins. Co. v. Chittenden, 134 Iowa 613, we said:\n‘ ‘ But, in the exercise of its jurisdiction over property within the state, it may be provided by the legislature that, after the absence of the owner unheard of for a specified period, such property may be administered upon in the same form of pro? eeeding as is provided for administration upon the property of a person deceased, and such administration will be valid as against the absentee and all persons interested, although he is in fact not dead. Cunnius v. Reading School District, 198 U. S. 458 (25 Sup. Ct. 721, 49 L. Ed. 1125).”\nIn said case we also said:\n“It seems to be conclusively settled by adjudications that a- probate court acquires no jurisdiction by proceeding to administer on the estate of a person on the ground that he is dead, if in fact he is alive, and such proceedings are entirely invalid, and any judgments or orders made in pursuance thereof, and any action taken thereunder, are absolutely void as against the *134person who is erroneously adjudged to be dead. Without citing the many authorities supporting this proposition, it is sufficient to say that any such proceeding, if sustained, would result in depriving the person erroneously adjudged to be dead of his property without due process of law. Scott v. McNeal, 154 U. S. 34 (14 Sup. Ct. 1108, 38 L. Ed. 896).”\nIt is to be noticed that the appointment of the administrator of the estate of an absentee is an altogether different proceeding from the appointment of an administrator of the estate of a decedent. In the instant case, the applica- ,. , „ ,, . , , „ , tion was not tor the appointment of a general administrator of the estate of William H. Kite as a decedent, but was brought squarely under the statute for the appointment of an administrator of the property of the said William H. Kite as an absentee. The distinction between the two methods of procedure is pointed out and recognized by us in In re Estate of Barrett, 167 Iowa 218. In the instant case, there was no claim whatever that the said William H. Kite was dead, but the necessary facts respecting his disappearance were alleged, and administration sought because thereof. The order of the court appointing the administrator recited, among other things, a finding that “said Wm. H. Kite died prior to March 20, 1909but the order clearly shows that it was made pursuant to the application, and was predicated wholly upon the fact of the disappearance of the said William H. Kite.\nIn Haddock v. Meagher, 180 Iowa 264, the order of appointment of an administrator of the estate of an absentee recited that the said absentee died on a certain date. We said:\n“But the proceeding was ex parte, and whether William was dead was not in issue; and, therefore, neither the issue as to whether he was dead nor when he died was involved in the appointment of the administrator.”\nSo, in the instant case, the recital in the order of the court that the “absentee died prior to March 20, 1909,” is not an adjudication of the fact of death, and does not make the estate of the said William IT. Kite “the estate of a decedent;” nor is it an adjudication that the said William H. Kite was “at said time deceased.” It is no more than an adjudication of the *135facts of tlie absence of the said William H. Kite under the conditions recognized by the statute as sufficient to justify the appointment of the administrator of his estate as an absentee.\nReferring now to the question of the liability of said estate of such absentee for the collateral inheritance tax, we find that, as has been repeatedly announced by this court and other courts generally, said tax is a tax upon the succession. The question is as to what estates are subject to such tax. Turning to the statute, we have no difficulty in reaching a conclusion. By its very terms it is provided that the estates subject to the payment of a collateral inheritance tax are “the estates of all deceased persons.” No provision whatever is made in the statute in respect to making any estates subject to such collateral inheritance tax except the estates of “deceased persons.” The statute in question refers to the property subject to the tax “at the death of the decedent.” It is referred to as “the property of any decedent.” Time and again, throughout the statute, similar references are made, but always to a “decedent.”\nNo provision whatever is made in the statute for a collateral inheritance tax upon any property except the property of a “decedent.” If the legislature had intended to impose such a tax upon the estate of an “absentee,” it would have been necessary to so provide by express terms. Our Constitution, Article 7, Section 7, provides:\n“Every law which imposes, continues, or revives a tax, shall distinctly state the tax, and the object to which it is to be ap-lied; and it shall not be sufficient to refer to any other law to fix such tax or object.”\nUnder this constitutional provision, a tax is not to be implied against a class of property or a class of persons not within the provisions of the statute imposing the tax. The legislature, in enacting the collateral inheritance tax, provided that it shall be a tax upon the succession to the estates of deceased persons. It is not made a tax upon any other estates, and we cannot extend it to include tlie estates of absentees, when the legislature has not seen fit to extend it to include such estates. The words “deceased person” and “decedent” have a well known and established meaning, and mean “one who is dead.” Webster’s *136Dictionary; Century Dictionary. An absentee may be defined, generally, as one who is absent from his usual place of residence or domicile. 1 Corpus Juris 346, Section 1.\nAbsentees are “those of whom little or nothing may be known. They may be dead.”- Tell v. Senac, 122 La. 1040 (48 So. 448).\nIt is argued that the state officials and various district courts have construed the collateral inheritance tax statutes as applying to estates of absentees, as well as to estates of decedents, and that this has resulted in a “practical construction” of the statute which we should adopt. Something more than a rule of practice or a question of procedure is involved, however, here. It is a question of whether or not a liability is created by the statute which otherwise would not exist. We are not disposed to extend the doctrine of “practical construction” to create a liability in the instant case where none exists by virtue of the statute.- The extension of the statute to embrace the estates .of absentees is a matter for the consideration of the legislature, but not for indulgence in what is sometimes .called “judicial legislation. ’ ’\nSince we hold, as we do, that the collateral inheritance tax statute has no application to the estates of those who are claimed to be only absentees, it is immaterial whether the property of the absentee in the instant case would be held to have passed to his mother or to his collateral heirs. In either event, it was not subject to the collateral inheritance tax.\nIt follows that the judgment of the district court in holding that the said property was not subject to- the said collateral inheritance tax was correct, and it is, therefore, — Affirmed.\nSteveNS, C. J., BváNS and ARtiiur, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"other_dates":"REHEARING DENIED SEPTEMBER 23, 1922.","precedential_status":"Published","slug":"whitmer-v-hoyt"} {"attorneys":"Walker A. Hendrix, of Anderson, Byrd & Richeson, of Ottawa, for appellant., Craig S. Powell, of McQueary & Powell, of Osawatomie, for appellees.","case_name":"Medlin v. Mainline U.S.A., Inc.","case_name_full":"Walter J. Medlin and Ruth M. Medlin v. Mainline U.S.A., Inc.","case_name_short":"Medlin","citation_count":0,"citations":["8 Kan. App. 2d 35","648 P.2d 279"],"court_full_name":"Court of Appeals of Kansas","court_jurisdiction":"Kansas, KS","court_short_name":"Court of Appeals of Kansas","court_type":"SA","date_filed":"1982-07-29","date_filed_is_approximate":false,"id":7211937,"judges":"Abbott, Spencer, Swinehart","opinions":[{"author_str":"Abbott","ocr":true,"opinion_id":7123739,"opinion_text":"\nAbbott, J.:\nThis was an action by plaintiffs, Walter J. and Ruth M. Medlin, to quiet title to eighty acres of land on which the defendant, Mainline U.S.A., Inc., claimed to hold a valid oil and gas lease. Judgment was rendered quieting plaintiffs’ title and Mainline U.S.A. appeals.\nMainline contends (1) that the trial court had no jurisdiction because the plaintiffs did not make written demand of the defendant to release the lease of record pursuant to K.S.A. 55-206; and, (2) that the issue before the trial court was whether defendant had complied with the commencement clause of the lease and the trial court, in deciding that issue, used for its definition of “found in paying quantities” the one that applies to the habendum clause, which Mainline contends is different in meaning when applied to the commencement clause.\nPlaintiffs entered into two separate oil and gas leases on August 13, 1979, for a term of one year, and as long thereafter as oil or gas, or either of them, is produced from the land by the lessee. The two leases were subsequently assigned to Mainline, which drilled one well on August 1, 1980. A second well was drilled on the property on August 4,1980. Both wells were shallow (446 and 403 feet). It was intended that the second well be drilled on the *36second lease, but it was drilled by mistake on the lease in question. Mainline makes no claim the second lease remains in being, and it was not included in plaintiffs’ quiet title action.\nPrior to August 13,1980, both wells were cased through the pay zone and cemented in the hole. A core sample was taken and submitted to a laboratory for analysis. Unless extended by the commencement clause, the lease expired on August 13,1980. The commencement clause provides:\n“If the lessee shall commence to drill a well within the term of this lease or any extension thereof, the lessee shall have the right to drill such well to completion with reasonable diligence and dispatch, and if oil or gas, or either of them, be found in paying quantities, this lease shall continue and be in force with like effect as if such well had been completed within the term of years herein first mentioned.”\nOn August 19, 1980, both wells were logged and perforated. The final report containing the analysis of the core sample was received by the defendant on October 17, 1980. It contained information on the porosity and permeability of the oil reservoir on the premises and indicated that the wells were capable of economic production. The trial court found that a preliminary report could have been obtained in three days.\nPlaintiffs filed an affidavit of nonproduction in the office of' the Register of Deeds of Miami County, Kansas, on January 7, 1981. Mainline received a copy at its Canadian headquarters on February 12, 1981. On February 17, 1981, Mainline caused the two wells to be “fractured” (evidence was introduced that fracturing had been scheduled for February 10, 1981, but postponed because of snow). At that time, plaintiffs apparently blocked access to the land and commenced this quiet title action on February 18, 1981.\nThe trial court heard evidence and found that under normal conditions a well can be placed into production within forty-five days after it has been drilled; that the wells drilled by defendant cannot produce oil and gas until lead lines are run to the well, pump jacks installed, electricity made available, lines buried and a tank battery installed; and that all of the work could be done in one week, barring inclement weather.\nAlthough requested by Mainline to find that it was acting with “reasonable diligence and dispatch in this case,” the trial court found that “the activities of the defendant were not sufficient to prevent the automatic cancellation of the lease.”\n*37We first consider defendant’s claim that the trial court was without jurisdiction because plaintiffs did not make demand at least twenty days before bringing their action that the lease be released of record pursuant to K.S.A. 55-206. We agree with plaintiffs that the procedure pursuant to K.S.A. 55-201 et seq. is permissive. A landowner seeking to quiet title may commence an action against a lessee claiming a valid oil, gas or other mineral lease without making demand, pursuant to K.S.A. 55-206, if the landowner does not seek damages or attorney fees as authorized by K.S.A. 55-201 et seq.\nIn Kahm v. Arkansas River Gas Co., 122 Kan. 786, 253 Pac. 563 (1927), plaintiffs commenced an action to cancel an oil and gas lease and quiet title, but did not seek damages or attorney fees. The Supreme Court affirmed the trial court, which had decreed that the lease be canceled and the landowner’s title quieted. The Supreme Court said:\n“Another [of defendant’s] objection[s] to the judgment is that plaintiffs failed to give notice to defendant of their intention to institute this action. The objection is not good; it was not pleaded; and plaintiffs’ claim for damages under the statute which requires the giving of such notice (R.S. 55-202, 55-206) was withdrawn. Notice was not a prerequisite to the commencement of this action. (Elliott v. Oil Co., [106 Kan. 248], Syl. ¶¶ 1, 2.)” 122 Kan. at 792.\nSee also Mollohan v. Patton, 110 Kan. 663, 202 Pac. 616 (1921), and Elliott v. Oil Co., 106 Kan. 248, 187 Pac. 692 (1920).\nWe deem Nelson v. Hedges, 5 Kan. App. 2d 547, 619 P.2d 1174, rev. denied 229 Kan. 670 (1980) to be not in conflict with our decision in this case. The issue before this court in Nelson was whether plaintiffs were entitled to statutory damages and attorney fees. The defendants conceded the lease in issue was void ab initio and the lease was canceled. We find nothing in the language of Nelson that would make the demand provisions of K.S.A. 55-201 through 55-206 a prerequisite to commencing a quiet title action. We deem the demand provisions of K.S.A. 55-206 to be a prerequisite to a quiet title action only when damages or attorney fees are requested.\nMainline next argues that it commenced the well within the primary term and the well was completed thereafter with reasonable diligence and dispatch; that rather than applying the phrase “found in paying quantities” in the context of the drilling clause, the trial court applied it in the context of the habendum clause which requires actual production. The trial court found that the *38well was capable of economic production. There is ample evidence in the record to support that finding, and neither party contends otherwise. The trial court relied on Tate v. Staholind Oil & Gas Co., 172 Kan. 351, 240 P.2d 465 (1952). In Tate, landowners sought to quiet their title to land on which the defendant claimed to hold a valid oil and gas lease. That oil and gas lease had commencement and habendum clauses identical to those in the lease before us. The Supreme Court in considering the clauses said:\n“Obviously if on completion of drilling operations oil or gas is found in paying quantities the lessee, under this clause, is not expressly required to produce or market the oil or gas immediately. And, of course, that might be wholly impossible. He would, however, be required to do so within a reasonable time. ” 172 Kan. at 355-56 (emphasis supplied).\nAs we view the trial judge’s findings of fact and conclusions of law, he found that Mainline did not produce oil or gas within a reasonable time. We deem it unnecessary to determine at what stage a well is completed within the meaning of the drilling clause, because a lease expires in any event if oil or gas is not actually produced with reasonable diligence and dispatch. The trial court found that all of the work necessary to place the well in production could have been done in a week’s time, and Main-’ line’s failure to put the well in production was inexcusable.\nAs stressed in Tate, what constitutes production and marketing within a reasonable time must be left to the factfinder in each case. Substantial competent evidence exists to support the trial court’s findings, and we are bound by those just as we are bound by the Supreme Court decisions that set out law applicable to the facts before us.\nAffirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"medlin-v-mainline-usa-inc"} {"attorneys":"Joseph Letscher, pro se, N.Y., NY, for Appellant., David J. Kennedy, Ass’t U.S. Att’y, SDNY, N.Y., NY, for Appellee.","case_name":"Letscher v. United States","case_name_full":"Joseph LETSCHER v. United States","case_name_short":"Letscher","citation_count":0,"citations":["28 F. App'x 110"],"court_full_name":"Court of Appeals for the Second Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Second Circuit","court_type":"F","date_filed":"2002-03-04","date_filed_is_approximate":false,"id":7214356,"opinions":[{"ocr":true,"opinion_id":7126287,"opinion_text":"\n\nSUMMARY ORDER\n\nThis cause came on to be heard on the record from the United States District Court for the Southern District of New York, and was submitted by plaintiff pro se and by counsel for defendant.\nON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed substantially for the reasons stated in Judge Buchwald’s Opinion and Order dated September 9, 2000.\nWe have considered all of plaintiffs contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"letscher-v-united-states"} {"attorneys":"Morphy & Freeman, Steven K. Faulkner, Jr., New Orleans, for plaintiffs-appellants., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, R. Henry Sarpy, Jr., New Orleans, for defendants-appellees.","case_name":"Emmco Insurance Co. v. Durio","case_name_full":"EMMCO INSURANCE COMPANY and Austin P. Simpson v. Ronald DURIO, personally and as father administrator of the estate of his minor daughter, Suzanne M. Durio and Travelers Insurance Company","case_name_short":"Durio","citation_count":0,"citations":["242 So. 2d 99"],"court_full_name":"Louisiana Court of Appeal","court_jurisdiction":"Louisiana, LA","court_short_name":"Louisiana Court of Appeal","court_type":"SA","date_filed":"1970-12-07","date_filed_is_approximate":false,"id":7516874,"judges":"Lesueur, Regan, Sueur, Taylor","opinions":[{"author_str":"Lesueur","ocr":true,"opinion_id":7440658,"opinion_text":"\nLeSUEUR, Judge.\nRowley Boulevard and Livingston Avenue, both two-lane streets, meet at a right angle intersection in St. Bernard Parish. Rowley is the favored street and the right-of-way is protected by stop signs facing Livingston Avenue.\nAustin Simpson was driving south on Rowley, the favored street, on December 28, 1968 at about 10:35 a. m. He was admittedly speeding.\nSuzanne Durio, a minor, was, at that time, driving west on Livingston and approaching the intersection. According to her statement, which was admitted into evidence by stipulation, she stopped for the stop sign and, unable to see around parked cars, pulled forward and stopped again.\nShe did not see the Simpson vehicle. Rather, she entered into the intersection and was commencing a left turn when she struck the left rear (not, as she stated, the left front) of Mr. Simpson’s car.\nSimpson and his subrogated insurer, Emmco, filed suit for property damage to the vehicle. The trial court dismissed the action and the plaintiffs have appealed.\nThe trial court did not file reasons for judgment. Inasmuch as the facts are clear, however, it seems evident that the judgment is predicated upon the conclusions of law applicable to those facts.\nAt the outset, we are convinced of Miss Durio’s negligence. She was acting in obedience to a stop sign and attempting a left hand turn. On either count, the law required that she affirmatively see that the intersection was clear before proceeding. Otillio v. Dolese, La.App., 236 So.2d 646 (4th Cir. 1970); Warrington v. Employers Group Insurance Companies, La.App., 207 So.2d 207 (4th Cir. 1968), and Liverpool & London & Globe Insurance Co. v. Taylor, La.App., 193 So.2d 840 (4th Cir. 1966).\nThe fact that she saw nothing prior to impact is, in our view, not determinative, for, like any motorist, she must abide by the standard of what she should have seen. In this connection, we recognize merit in the defendants’ argument that she was entitled to presume that vehicles beyond her range of vision were traveling at a lawful rate of speed. At the same time, we find it unreasonable to apply that rule where, as here, the favored vehicle entirely crossed the front of her car without being seen prior to impact.\nThe crux of the matter lies, therefore, in determining whether or not Simpson’s negligence per se in speeding was a legal proximate cause of the collision. Simpson admitted to perhaps 35 miles per hour in a 20-mile per hour zone. Miss Durio estimated his speed as at least 35 miles per hour.\nOur reading of the record is that, assuming he was moving at about that rate of speed, Miss Durio could and should have seen him, that he was entitled to assume that she would, and that the sole cause of the accident was her negligence. Amer*101ican Road Insurance Company v. Irby, La.App., 203 So.2d 427 (2nd Cir. 1967).\nIn brief, the defendants argue that the fact that Simpson traveled some 70 yards (210 feet) after impact suggests that he was moving at a far greater rate of speed. The evidence, however, is clear that he did not apply his brakes and, in view of that, it is impossible to draw speed conclusions from the distance traversed.\nDamages were stipulated at $100.00 for Mr. Simpson and $1,062.50 for Emmco Insurance Company.\nFor the foregoing reasons, the judgment appealed is reversed and judgment is hereby rendered in favor of plaintiff, Austin P. Simpson, in the amount of $100.00, plus interest, and in favor of plaintiff, Emmco Insurance Company, in the amount of $1,-062.50, plus interest, and against defendants, Ronald Durio, personally and as father administrator of the estate of his minor daughter, Suzanne M. Durio, and Travelers Insurance Company. Costs in both courts are to be borne by defendants-appellees.\nReversed and rendered.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"emmco-insurance-co-v-durio"} {"case_name":"In re Basf Corp. Chemical Division","case_name_full":"In the Matter of BASF CORPORATION CHEMICAL DIVISION","citation_count":0,"citations":["539 So. 2d 624"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1989-01-20","date_filed_is_approximate":false,"id":7639830,"opinions":[{"ocr":true,"opinion_id":7572553,"opinion_text":"\nIn re BASF Corporation Chem. Div.;— Plaintiff(s); applying for writ of certiorari and/or review, supervisory and/or remedial; to the Court of Appeal, First Circuit, No. CA87 0625; Department of Environmental Quality.\nPrior report: La.App., 538 So.2d 635.\nWrit denied, reserving to relator the right to renew his complaint in this Court should he apply here after an unfavorable result in the case, now pending after a rehearing grant in the Court of Appeal.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-basf-corp-chemical-division"} {"case_name":"State ex rel. Alford v. Clerk of Court, Criminal District Court, Parish of Orleans","case_name_full":"STATE ex rel. Charles ALFORD v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS","citation_count":0,"citations":["589 So. 2d 493"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1991-11-15","date_filed_is_approximate":false,"id":7662135,"opinions":[{"ocr":true,"opinion_id":7596296,"opinion_text":"\nIn re Alford, Charles; — Plaintiff(s); applying for supervisory and/or remedial writs, writ of mandamus; Parish of Orleans, Criminal District Court, Div. “A”, Nos. 314-824, 315-096; Criminal District Court, Div. “J”, No. 342-993.\nDenied. Moot. The Fourth Circuit Court of Appeal denied relator’s petition on September 10, 1991.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-ex-rel-alford-v-clerk-of-court-criminal-district-court-parish-of"} {"attorneys":"Darryl J. Tschirn, Metairie, for Cornelius and Bernice Buller., Richard B. Cappel, Lake Charles, for Dr. Wm. G. Akins, Jr.","case_name":"Buller v. Akins","case_name_full":"Cornelius and Bernice BULLER, and v. Dr. Wm. G. AKINS, Jr., and","case_name_short":"Buller","citation_count":0,"citations":["631 So. 2d 118"],"court_full_name":"Louisiana Court of Appeal","court_jurisdiction":"Louisiana, LA","court_short_name":"Louisiana Court of Appeal","court_type":"SA","date_filed":"1994-02-02","date_filed_is_approximate":false,"id":7741204,"judges":"Cooks, Domengeaux, Laborde","opinions":[{"author_str":"Laborde","ocr":true,"opinion_id":7677584,"opinion_text":"\nLABORDE, Judge.\nThe judgment of the trial court is affirmed at appellants’ cost. See Hillman v. Akins, 614 So.2d 234 (La.App. 3 Cir.), writ granted, 618 So.2d 396 (La.1993), affirmed, 631 So.2d 1 (La.1994).\nAFFIRMED.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"buller-v-akins"} {"attorneys":"Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, CMef, Appellate Department, and Thomas R. Lewis, Assistant Prosecuting Attorney, for the people., Carl Ziemba, for defendant on appeal.","case_name":"People v. Walton","case_name_full":"PEOPLE v. WALTON","case_name_short":"Walton","citation_count":0,"citations":["28 Mich. App. 608"],"court_full_name":"Michigan Court of Appeals","court_jurisdiction":"Michigan, MI","court_short_name":"Michigan Court of Appeals","court_type":"SA","date_filed":"1970-12-08","date_filed_is_approximate":false,"id":8002977,"judges":"Burns, Fitzgerald, Holbrook","opinions":[{"ocr":true,"opinion_id":7957112,"opinion_text":"\nPer Curiam.\nThe people move to affirm (GCR 1963, 817.5 [3]) defendant’s conviction, on plea of guilty, of larceny from a person, contrary to MCLA § 750.357 (Stat Ann 1954 Rev §28.589).\nOn appeal, defendant, a 20-year-old first offender at the time of this conviction, contends that the 7-1/2 to 10 year sentence imposed by the court violates the indeterminate sentence law, MCLA § 769.8 (Stat Ann 1954 Rev § 28.1080).\nThis Court will not review a sentence which is within the maximum provided by statute, except in a clear case where the court has failed to exercise sound judicial discretion in setting a minimum sentence. People v. Lessard (1970), 22 Mich App 342. We find no abuse of discretion in this case. Certainly the sentence in this case, unlike the sentence in Lessard, permits the parole board to exercise its statutory discretion.\nMotion to affirm is granted.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-walton"} {"attorneys":"Thomas Joseph Hogan, Jr., Hogan & Hogan, Hammond, LA, George Febiger Riess, George F. Riess & Associates, New Orleans, LA, for Plaintiff-Appellant., Bradley Charles Myers, John F. Jakuback, Jason Randall Cashio, Julie Parelman Silbert, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, Baton Rouge, LA, for Defendants-Appellees.","case_name":"Wilson v. Ponchatoula City","case_name_full":"Christopher WILSON, Individually, and in his capacity as representative of a class of persons illegally convicted in the Mayor's Court of Pontchatoula, Louisiana v. PONCHATOULA CITY, LOUISIANA Julian Dufreche, Individually and in his official capacity as Mayor of Ponchatouola, Louisiana C.W. Kinchen Wayne F. Foster Margaret G. Hawkins Elouise Conley-Dotey Gary T. Stanga, Individually and in their capacity as members of the City Council of the City of Ponchatoula Patrick Dunn, Individually and in his capacity as Judge of the Mayor's Court of the City of Ponchatoula Sue Davis, Individually and in her capacity as Clerk of the Mayor's Court of the City of Ponchatoula Tim Gideon, Individually and in his capacity as the Chief of Police of the City of Ponchatoula Jeffrey Miller, Individually and in his capacity as a Police Officer of the City of Ponchatoula Thomas B. Waterman, Individually and in his capacity as City Attorney of the City of Ponchatoula","case_name_short":"Wilson","citation_count":0,"citations":["164 F. App'x 530"],"court_full_name":"Court of Appeals for the Fifth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Fifth Circuit","court_type":"F","date_filed":"2006-02-13","date_filed_is_approximate":false,"id":8470497,"judges":"Garza, Jolly, Prado","opinions":[{"ocr":true,"opinion_id":8442384,"opinion_text":"\nPER CURIAM: *\nAFFIRMED. See 5TH CIR. R. 47.6.\n\n 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.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"wilson-v-ponchatoula-city"} {"attorneys":"For petitioner: Edward B. MacMahon, Esquire (argued); Major Marion E. Winter, JAGC, Captain William J. Kilgallin, JAGC, Thomas M. Buchanan, Esquire (on brief)., For respondents: Captain Denise K. Vowell, JAGC (argued); Colonel Norman G. Cooper, JAGC, Lieutenant Colonel Gary F. Roberson, JAGC, Captain Mark E. Frye, JAGC (on brief).","case_name":"Longhofer v. Hilbert","case_name_full":"Colonel James E. LONGHOFER, 562-48-9968, United States Army v. Major General Donald C. HILBERT, Convening Authority, U.S. Army, and the United States of America","case_name_short":"Longhofer","citation_count":0,"citations":["23 M.J. 755"],"court_full_name":"U.S. Army Court of Military Review","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Army Court of Military Review","court_type":"FS","date_filed":"1986-11-25","date_filed_is_approximate":false,"id":8666120,"judges":"Carmichael, Military, Richardson, Williams","opinions":[{"author_str":"Per Curiam","ocr":true,"opinion_id":8647354,"opinion_text":"\n*756OPINION OF THE COURT AND ACTION ON PETITION FOR EXTRAORDINARY RELIEF\nPER CURIAM:\nPetitioner was convicted by a general court-martial composed of officer members of disobeying an order, dereliction of duty, and conduct unbecoming an officer. He was sentenced to confinement for two years, forfeiture of $1,000.00 pay per month for two years, and to be reprimanded. He requests extraordinary review of the convening authority’s decision not to grant his request for deferment of his sentence to confinement pending appeal of his conviction.\nTwo days after petitioner’s conviction, the convening authority deferred service of the confinement: first, until 27 April 1986 and, then, until a later date to be determined by when he took action on petitioner’s case. On 23 September 1986, the new convening authority1 approved and ordered executed only so much of the sentence as provided for confinement for two years and forfeiture of $1,000.00 pay per month for two years, but suspended execution for six months, with provision for automatic remission, that part of the sentence in excess of confinement for one year and forfeiture of $1,000.00 pay per month for twelve months. The convening authority’s action stated that deferment was “rescinded” but did not include the bases for denial of petitioner’s request for further deferment. Furthermore, the reasons for denial were not set forth elsewhere in the trial record.2\nOn 25 September 1986, petitioner filed with this court a petition for extraordinary relief and, in the alternative, for a writ of habeas corpus.3 Because that petition was not accompanied by a supporting brief, we ordered petitioner to comply with Rule 20 of our Rules of Practice and Procedure and suggested petitioner address three issues. Proper pleadings subsequently having been filed, we then ordered the government, as respondent, to show cause why relief should not be granted. The government responded, and both parties have moved for admission of various appellate exhibits which will be discussed infra.\nI. Propriety of Extraordinary Relief\na. In Aid of Jurisdiction\nOur power to issue writs devolves from the All Writs Act, 28 U.S.C. § 1651. Dettinger v. United States, 7 M.J. 216, 219 (C.M.A.1979); McDaniel v. Stewart, 7 M.J. 929 (A.C.M.R.1979). That statute provides courts may issue all writs “necessary or appropriate in aid of their respective jurisdictions.” 28 U.S.C. § 1651. Because we must review this case on its merits, see Uniform Code of Military Justice [hereinafter cited as UCMJ] art. 66(b)(1), 10 U.S.C. § 866(b)(1), this extraordinary writ is in aid of our jurisdiction. Cf. La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) (because Court of Appeals could at some stage review, it had power to issue mandamus).\nIn this regard, however, respondents argue that because we will review this case in the normal course of appeal, we should not exercise our extraordinary review powers. While our extraordinary review powers are not without limitations, it is clear that if the normal process of appeal is inadequate, issuance of a writ may be both necessary and appropriate. See Pearson v. Cox, 10 M.J. 317, 319 (C.M.A.1981); Corley v. Thurman, 3 M.J. 192, 193 (C.M.A.1977) *757(Perry, J., dissenting); Moore’s Federal Practice 11110.26 at 285 (2d ed. 1985). Further, if the opportunity to resolve recurrent issues that have been thoroughly briefed and argued has arisen, then exercise of extraordinary writ jurisdiction is appropriate. Shepardson v. Roberts, 14 M.J. 354, 357 (C.M.A.1983).\nThere is additional rationale why extraordinary relief jurisdiction could be exercised in this case. The crux of this rationale focuses on Article 57, UCMJ, 10 U.S.C. § 857, the statute on which the right to deferment is based.\nb. No Other Means of Timely Relief\nArticle 57(d), UCMJ, provides that a convening authority may defer service of a sentence to confinement. The purpose of this provision is to provide a procedure similar to release on bail pending appeal in civilian courts. Senate Rep. No. 1601, 90th Cong., 2nd Sess. 3 (1968), U.S.Code Cong. & Admin.News 1968, p. 4501, reprinted in Index and Legislative History: Uniform Code of Military Justice 1968 at 39 [hereinafter cited as Index\"].\nCongress’ concern was that, by the time a case reached the Court of Military Appeals and, assuming the existence of plain error, was reversed by that court, an appellant would have served most, if not all, of his sentence to confinement. Index at 49. Having already served confinement, an appellant would be without meaningful relief, a result clearly not intended by Congress. If the relief being sought is not available with reasonable promptness and certainty through the normal machinery of the military judicial process — that is, direct appeal — then extraordinary measures are necessary. See Parisi v. Davidson, 405 U.S. 34, 41-42, 92 S.Ct. 815, 819-20, 31 L.Ed.2d 17 (1972). Otherwise, when an accused is convicted by court-martial and sentenced to limited confinement, a convening authority could summarily and arbitrarily deny an application for deferment knowing that the confinement will have been served by the time his action is reviewed on direct appeal. As Chief Justice Marshall stated, “for if the means be not in existence, the privilege itself would be lost____” Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 2 L.Ed. 554 (1807). Here, if our extraordinary powers under supervisory mandamus are not exerted, the rationale for deferment, as reflected by congressional concerns, will be defeated.\nII. Extraordinary Review of Deferment Decisions\nHaving established our power to act in this case, we must decide whether we shall exercise that power. Article 57(d), UCMJ, states the decision to defer rests within the “sole” discretion of the convening authority. This standard, which at first glance seems plenary, was addressed by the Court of Military Appeals in United States v. Brownd, 6 M.J. 338 (C.M.A.1979). In that case, the convening authority denied Brownd’s request for deferment of confinement pending appeal. Although Brownd had set out reasons why deferment should be granted, the convening authority summarily denied the request without stating reasons why deferment was not in the best interests of the armed force concerned. Id. at 339. The court held the phrase “sole discretion” did not mean a convening authority’s deferment decision was absolute and unreviewable. Id. Instead, the court interpreted the provision to permit review of the convening authority’s action to determine if that action constituted an abuse of discretion. Id. Because the convening authority had set out no reasons for his decision, abuse of discretion was found. Id. at 340. The court then found the request should have been granted.4 Id. The court later affirmed its analysis that a deferment decision is subject to review for abuse of discretion. Pearson v. Cox, 10 M.J. 317 (C.M.A.1981). Notably, in Pearson the court cited *758Brownd for the proposition that an abuse of discretion occurs when a discretionary decision is “suffused with legal error.” Pearson, 10 M.J. at 319.\nIt also should be noted the M.C.M., 1984, provides guidance as to the deferment issue. Particularly, R.C.M. 1101(c)(3) states the deferment decision may be reviewed under an abuse of discretion standard. The Drafter’s Analysis to the rule indicates the review process is based on Brownd. M.C.M., 1984, Analysis of Rule for Courts-Martial 1101, App. 21, A21-69 [hereinafter cited as Analysis]. Although the rule does not expressly require the convening authority to specify his reasons for denying deferment, the Brownd court’s concerns are still present. Moreover, the Analysis states, in part, that “[b]ecause the decision to deny a request for deferment is subject to judicial review, the basis for denial should be included in the record” (emphasis added). Analysis at A21-69.5 If rationale is not set out, particularly in the face of specific requests by an accused, a reviewing court cannot know whether discretion was abused. Subsequent review, therefore, would be rendered meaningless.\nThe respondents assert that, because of recent legislation, the Brownd decision commands little precedential value. Respondents argue the extensive revisions of Articles 60 and 71, UCMJ, 10 U.S.C. §§ 860, 871, contained in the Military Justice Act of 1983, evidence congressional intent to strengthen the convening authority’s command prerogative. With regard to those particular articles of the UCMJ, we agree with respondents’ reading of the Act’s legislative history. Further, we agree the convening authority plays a critical role in the administration of military justice — an importance military appellate courts have long recognized and upheld. See United States v. Kugima, 36 C.M.R. 339, 341 (C.M.A.1966); United States v. Nix, 36 C.M.R. 76, 78-79 (C.M.A.1965). Respondents assert, by analogy, that Congress, through its expressed intent as to other articles of the code, likewise intended to make plenary the discretion described in Article 57, UCMJ.\nIn their argument, however, respondents have disregarded an important principle of statutory construction. When Congress makes a comprehensive reexamination of a statutory scheme which has been interpreted by the courts, and takes no action as to that interpretation, such inaction is itself evidence that Congress affirmatively intended to preserve the court’s interpretation. Cf. Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 381-82, 102 S.Ct. 1825, 1840-41, 72 L.Ed.2d 182 (1982) (although not present in statute, an implied cause of action created by the courts and not addressed in comprehensive reexamination of the statute evidenced that Congress intended to preserve the remedy). Here, the 1983 Act had no effect on Article 57(d), UCMJ. It neither changed the standard nor disavowed Brownd.\nMoreover, when those agencies charged with implementing a statute construe a statute a particular way, such construction is entitled deference. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Here, the President, by operation of Article 36, UCMJ, 10 U.S.C. § 836, is charged with implementing the requirements of Article 57, UCMJ. Because R.C.M. 1101(c)(3) and the Analysis thereto indicate deferment discretion is subject to review, Analysis at A21-69, the decision of the implementing agency, in this instance the Chief Executive 6, buttresses the position we now take. To disregard Brownd and the MCM, 1984, as respondents suggest, would be to disregard Congress, the President, and our higher court. This we shall not do.\nIII. Appellate Exhibits\nAt this juncture, we should note the respondents have filed with this court an affidavit of the convening authority which states his reasons for denying deferment. *759This affidavit was not executed contemporaneously with his action but was executed on 14 October 1986, approximately nineteen days after the date petitioner filed this petition.\nRecently, this court has expressed its intention to curtail sharply appellate litigation through the use of affidavits. See United States v. Williams, 22 M.J. 584 (A.C.M.R.1986). This practice slows the review process and permits post hoc rationalization to occur when reason or rationale should have accompanied the decision in question at the time that decision was made. The Court of Military Appeals in United States v. Hurd, 7 M.J. 18 (C.M.A. 1979), addressed this very concern. There, the convening authority who acted to vacate a suspension of Hurd’s punitive discharge failed to document his reasons and the evidence relied upon for his action. Id. at 19. On appeal, the government sought to cure that error by filing with the court an affidavit from the convening authority which set forth the rationale and bases for his action. In response, the court stated: “[W]e decline to entertain such post facto documents purporting to explain what ought to have been explained at the time of the action____” Hurd, 7 M.J. at 19 (footnote omitted) (emphasis in original). That response is, based on the requirements of Brownd, equally applicable here.7,8 But cf. McKinney v. Pauly, 9 M.J. 581, 583 (A.F.C.M.R.1980).\nIV. Deferment Analysis\nWe find, therefore, the convening authority abused his discretion. Thus, we, as did the Court of Military Appeals in Brownd, must independently review the facts of this case and determine whether deferment is appropriate.\nThe M.C.M., 1984, sets out factors which may be considered in determining whether deferment is appropriate. R.C.M. 1101(c)(3). Analysis of those factors here convinces us petitioner’s confinement should be deferred. Petitioner has had a long career distinguished by assignment to important positions of leadership and command. He has been decorated numerous times for bravery in combat. At trial, very favorable evidence9 was introduced concerning petitioner’s service to the Army— evidence which no doubt persuaded the members not to adjudge a dismissal. This fact, that petitioner will eventually return to duty, weighs heavily in favor of deferment The likelihood that petitioner would jeopardize his substantial accrued retirement benefits by violating deferment seems nonexistent. Further, for many of these same reasons, it is our opinion that petitioner does not present a flight risk. The fact that petitioner’s sentence to confinement was deferred for many months without incident following his conviction, together with his seemingly stable family situation, also strongly support the propriety of continued deferment of confinement pending appeal.\nRespondents argue, though, that because petitioner was convicted of conduct unbecoming an officer by impeding an investigation of Lieutenant Colonel (LTC) Duncan, there is a possibility petitioner will attempt to contact LTC Duncan.10 We note, however, petitioner was not charged with obstructing justice. See M.C.M., 1984, Part IV, para. 96. Further, had petitioner been interested in contacting LTC Duncan, there was ample opportunity for him to do so in the months following his conviction while he was out of confinement. Respondents have made no allegation of such attempted wrongdoing.\n*760In the final balancing, we believe factors favoring deferment outweigh those favoring immediate confinement. We make this decision after careful consideration of congressional concerns and in light of the particular facts of this case. We stress that each deferment request must be considered with regard to the relevant facts of the case. Generalizations must be avoided.\nV. Conclusion\nIn summary, we believe the convening authority abused his discretion not only in failing to specify timely why confinement was not deferred, but, more importantly, in failing to grant petitioner’s request for deferment pending appeal. See Brownd, 6 M.J. at 340. Our own determination that deferment is proper under the specific facts of this case is made with particular attention having been given the legislative history of Article 57(d), UCMJ, and the standards specified by the President in implementing Congress’ concerns. In finding that deferment of confinement pending appeal is proper here, we are confident that congressional concerns have been satisfied and that the interests of justice have been served.\nAccordingly, the petition for extraordinary relief is granted. The record of trial will be returned to The Judge Advocate General for return to the convening authority who exercises general court-martial jurisdiction over the command to which petitioner is now assigned. That convening authority is ordered to defer petitioner’s service of his sentence to confinement pending completion of the appellate process.11\n\n. The original convening authority had been succeeded in command.\n\n\n. We recognize, of course, that a convening authority in his initial action is not required to state the basis for his denial of a deferment request. However, contemporaneous with his denial, the convening authority is required to state his reasons in writing and provide a copy to the accused. See Manual for Courts-Martial, United States, 1984 [hereinafter cited as M.C.M., 1984], Rule for Courts-Martial [hereinafter cited as R.C.M.] 1101(c)(3); Beck v. Kuyk, 9 M.J. 714, 716 (A.F.C.M.R.1980). Both the request and the convening authority’s action on the request must be attached to the record of trial. R.C.M. 1103(b)(3)(D). But cf. R.C.M. 1101(c)(7) pertaining to rescission of deferment.\n\n\n. A motion for expedited review was filed at the same time.\n\n\n. Because all confinement had been served, however, the issue of deferment was moot. The fact that the issue was mooted bolsters our position that, if left for ordinary review, a remedy will rarely be available. It was this very concern which led Congress to express the need for enactment of Article 57, UCMJ. Index at 49.\n\n\n. See n. 2, supra.\n\n\n. Under the provisions of Article 36, UCMJ, the President may be likened to an implementing agency.\n\n\n. However, even if we considered the convening authority’s reasons as set forth in his post facto affidavit, our analysis of R.C.M. 1101 and the facts of this case convince us deferment is still proper.\n\n\n. After oral argument, petitioner also filed statements allegedly made by a government representative to civilian defense counsel. We apply the same standard of admissibility to those documents and refuse to admit them.\n\n\n. The government presented no evidence in aggravation.\n\n\n. LTC Duncan recently was tried, convicted, and sentenced by court-martial. His adjudged sentence included confinement for ten years.\n\n\n. It is this convening authority who currently . has deferment authority over petitioner as defined in R.C.M. 1101. Moreover, in the future, should the general court-martial convening authority qf a command to which petitioner is assigned decide to rescind this deferment, he is not precluded from doing so because of this court’s exercise of jurisdiction over petitioner’s extraordinary writ request; Any rescission action, should one become necessary, remains governed by R.C.M. 1101(c)(7).\n\n","per_curiam":true,"type":"020lead"}],"precedential_status":"Published","slug":"longhofer-v-hilbert"} {"attorneys":"Brown, Ely & Richards, for libelant., M. C. Krause, for Milwaukee Tug Fine., Clifton Williams, for City of Milwaukee.","case_name":"The Starke","case_name_full":"THE STARKE","case_name_short":"The Starke","citation_count":0,"citations":["182 F. 498"],"court_full_name":"District Court, E.D. Wisconsin","court_jurisdiction":"Wisconsin, WI","court_short_name":"E.D. Wisconsin","court_type":"FD","date_filed":"1910-10-17","date_filed_is_approximate":false,"disposition":"On settlement of final decree.","headnotes":"1. Admiealtt (§ 122*) — Costs—Discretion of Court.
In admiralty, as in- equity, the prevailing party is generally entitled to costs; but they do not necessarily follow the,decree, and áre always, in the exercise of a sound discretion, to be allowed, withheld, or divided according to the equities of the case.
[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 797-827; Dec. Dig. '§ 122.*]
2. Admiralty- (§ 122*) — Costs—Decree Against Party Brought in..
The owner of a..vessel, injured while passing through a drawbridge by striking the masonry, brought suit therefor against the towing tug. The claimant of the tug brought in the city which maintained the bridge, under the fifty-ninth admiralty rule, and it was held solely in fault and liable for the injury. Held, that the claimant of the tug was entitled to recover its. costs from libelant, which was responsible for their being incurred. '.
[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 797-827; Dec. Dig. § 122.*] - ■ -
","id":8792697,"judges":"Quarees","opinions":[{"author_str":"Quarees","ocr":true,"opinion_id":8776698,"opinion_text":"\nQUAREES, District Judge.\nThe question now raised involves the form of final decree. To fully comprehend this question it is necessary to keep in mind the several stages of this litigation. The Kensing-ton Steamship Company libeled the tugs Starke and Welcome, and joined the owners as parties (to be hereafter designated as the “Tug Company”), alleging that the Tug Company was guilty of negligence in towing the steamship Kensington down the Milwaukee river through the draw of what is known as “State Street Bridge”; that by reason of the negligence. of the Tug Company the steamship was impelled with great force against the masonry on the east side of the draw, which loosened the plate and otherwise injured the steamship. The Tug Company answered the libel, denying all negligence, setting up affirmatively that the tugs were properly equipped and manned, and that every precaution was taken to;,avoid 'collision, setting out fully the manner in which the tow was?) conducted through such draw. Thereupon the Tug Company, by its'janswer and petition, set up that the city of Milwaukee was guilty of negligence in leaving a projection in the wall of the east approach, which was concealed! under the water and unknown to the Tug Company, with which said steamship collided as she was being carefully towed through said draw.\nThe city of Milwaukee was thus brought in under the fifty-ninth rule in admiralty, and made answer on the merits to the original libel and to the petition, deriving all negligence in the premises. Thereupon the case was brought on for final hearing. The court decided that the city-of Milwaukee, having sole control of the bridge in question, was guilty of negligence in allowing a projection to remain in the masonry of the draw of said bridge which was dangerous to vessels passing and repassing through- said draw, and that the presence of such obstruction, concealed beneath the water, was the sole cause of the accident. The court held that a decree -should be prepared awarding to the libelant, and against the city of Milwaukee, the full amount of damages which it had sustained by its proofs.\nThe question remaining unsettled, and now raised, is: What disposition should be made by the decree to reimburse the Tug Company for its costs and disbursements. It is the contention of the Tug Company that, as it was found guilty of no fault, it is entitled to its costs, either against the city of Milwaukee, the sole wrongdoer, or against the libelant. The contention of the libelant is that all costs should be taxed against the wrongdoer, and that there is no authority in such case for a recovery of costs against the successful libelant.\nThis appears to be a new question, for counsel are unable to cite any case exactly in point. It must be borne in mind that a court of admiralty follows the' maxims of equity, frequently disregarding mere *500matters of form when necessary to do justice in k particular case. In the case of The Maurice (Eh C.) 130 Fed. 634, the. court say:\n“The general rule is that the costs follow the decree, but circumstances of equity, or hardship, or oppression, or of negligence, induced the court to depart from that rule in a great variety of cases. Where a libel is filed, and the respondent is compelled to defend, he is entitled to avail himself of every defense the law allows him, and whatever costs may be incurred in his attempt to exonerate himself from damage, when he is successful, and the circumstances of the case show that he is entirely faultless, are chargeable to the party putting him to that expense; and it seems to the court entirely legitimate to include all costs, whether it be for the purpose of establishing his own faultlessness, or in showing that a third party, brought in under rule 59, was to blame for the damage to the libelant.”\nIt seems to be settled that if the libelant had failed to establish its contention, and the proofs had exculpated the city of Milwaukee from blame, the costs of the city of Milwaukee would not have been taxable against libelant, but against the Tug Company which was instrumental in bringing the city into the litigation under the provisions of the fifty-ninth rule. In The Chas. Tiberghien (D. C.) 148 Fed. 1016, the court says:\n“The question is whether an unsuccessful libelant should be responsible for the costs incidental to the bringing in of a third party by the claimant of the vessel. The practice has uniformly béen in this district to hold a party who brings in a third one liable for theiíatter’s costs, where there is a dismissal of the petition. This is based in sound reasoning, inasmuch as the third party is brought in by and for the protection of the party invoking the remedy under or by analogy to rule 59.” '\nThe principle seems to be that in such a case the costs will be taxed against the party who renders it necessary that such costs andi expenses should be incurred. This seems to be an equitable principle.Applying it to the instant case, the libelant was solely responsible for the costs and expenses incurred by the Tug Company. It brought such company into litigation, and failed to maintain its contention against it. Why should it not reimburse the innocent party, whom it has brought in and compelled to incur these costs and expenses ? Certainly the city of Milwaukee had no responsibility in the premises as between it and the Tug Company. The costs and expenses of the Tug Company were largely incurred before the city of Milwaukee was brought into the case, and there would! seem to be no equitable ground upon which these costs should be taxed against the city of Milwaukee.\nThere is another equitable feature, which must not be lost sight of. The libelant, haying failed to establish its contention against the Tug Company, would have gone out of court with empty hands and liable for a full bill of costs in favor of the Tug Company, had not the Tug Company caused! the city of Milwaukee to be brought in by its petition under the fifty-ninth rule. The Tug Company was thus instrumental in rendering, the libelant’s recovery possible. It seems, therefore, only fair that the libelant should be held responsible for the costs and expenses of the Tug Company. .\nIn admiralty, as in equity, the prevailing party is generally entitled to costs; ■ but they do not necessarily follow the dlecree, and are always in the exercise, of a sound discretion, to. be .allowed, withheld, *501or divided, according to the equities of the case. The E. A. Shores, Jr. (D,. C.) 79 Fed. 987. In Benedict’s Admiralty (4th Ed.) § 488, we find this doctrine:\n“Costs are always in the discretion of the court, and while, in most cases, the award of costs follows the decree, this is only because the court, in its discretion, allows it to be so. The court has entire power to decree for a party to the full amount claimed, and yet award costs against him, or to divide the costs, or to refuse costs altogether. Circumstances of equity or iniquity, of hardship or of negligence, induce the court in many cases to do* part from the rule that costs follow the decree. The disposition of the costs of the suit is often used by the court as a means of amercing either of the parties for misconduct, or for inducing unreasonable and unnecessary litigation. Such matters vary with the varying circumstances and equities of particular suits, and numberless instances can be found in the Reports.”\nUnder the peculiar circumstances of this case, I believe that a wise exercise of the discretion vested in the court requires that a clause be inserted in the decree providing that the Tug Company tax its costs against the libelant, including a proctor’s fee of $20. The libelant is entitled to recover against the city of Milwaukee a full bill of costs, including a proctor’s fee.\nA decree may be framed in accordance with this opinion.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"the-starke","summary":"In Admiralty. Suit by the Kensington Steamship Company against the tugs Starke and.Welcome, Sophie Meyer and others, owners; the City of Milwaukee being impleaded."} {"attorneys":"William H. Foulk and Herbert L. Cobin, both of Wilmington, Del., for plaintiff., James R. Morford and Thomas Cooch (of Marvel & Morford), both of Wilmington, Del., for defendant.","case_name":"Rosenberg v. Equitable Trust Co.","case_name_full":"ROSENBERG v. EQUITABLE TRUST CO.","case_name_short":"Rosenberg","citation_count":0,"citations":["68 F. Supp. 991"],"court_full_name":"District Court, D. Delaware","court_jurisdiction":"Delaware, DE","court_short_name":"D. Delaware","court_type":"FD","date_filed":"1946-12-05","date_filed_is_approximate":false,"id":8908560,"judges":"Leahy","opinions":[{"author_str":"Leahy","ocr":true,"opinion_id":8896075,"opinion_text":"\nLEAHY, District Judge.\nDespite the factual debris and the elaborate arguments of counsel on contract law,1 the issues are simple. What was in-*994tended to be the exchange for Mrs. Bradford’s promise to leave her nephew $20,000 ? There are three possibilities. First, the parties may have intended that she receive nothing for her promise, or, in other words, that she intended a gift to Rogers. Second, che exchange for her promise may have been an interest in “Dunleith” which Rogers would have at the time of his death, however remote or small. Third, that the parties treated the acts of each as analogous to a quitclaim situation and Mrs. Bradford got the exchange intended. I think it so clear that Mrs. Bradford did not intend to make a gift that no further consideration will be given to that point; and, as I am unable to accept the second premise, I am deciding the case on the third one.\n In the quitclaim situation the consideration for the quitclaim is that the purchaser will get whatever interest, however .dubious, the transferor had or might acquire. This may be nothing or something. The grantee receives exactly what is bargained for and he is not to be heard whether he received either no consideration or inadequate consideration.2 Rogers’ promise as found in the May 25, 1930 agreement was a promise to leave, in effect, a quitclaim deed to any interest he might have in Dunleith at the time of his death. In a legal sense, it is the same as if on May 25, 1930 he had given a formal quitclaim deed to be effective on the date of his death. The consideration in exchange for Mrs. Bradford’s promise was the chance Rogers might have obtained an interest in Dunleith at the time of his death. The last paragraph of the May 25, 1930 agreement discloses clearly that the parties were aware Rogers had already given a life interest in his share to Mrs. Bradford and the remainder in fee to Annie Rogers duPont. From this it is obvious Mrs. Bradford knew at the time of the execution of the agreement that Rogers had no further interest in Dunleith. It is just as clear from the agreement that the parties did not contemplate that Rogers was to acquire any specific interest from any particular source. From all the circumstances, it is quite apparent that Mrs. Bradford wished to be secure in the knowledge that if Rogers did die holding any interest in Dunleith it would pass, under his will, to her or her estate. From an examination of the facts, there was the possibility that prior to May 4, 1931, when Shapdale, Inc., was formed, Rogers might have acquired some interest from George Zinn, Jr., Flora Zinn, William duPont, Jr., or Marian Somerville; among these were blood relatives from whom he might have received an interest, either by way of an inter vivos gift or testamentary disposition. On May 4, 1931, Flora Zinn transferred her interest to Shapdale, Inc., and after that all legal interests were held by Equitable Trust Company and Delaware Trust Company, as trustees, and Shapdale, Inc. There was a possibility always that Rogers might have acquired some interest from the latter two companies up until February 6, 1934, when Mrs. Bradford acquired an option covering those interests. Concededly, the chance' for Rogers to make acquisition of a part of the estate — it was merely a chance — was very slight; but, it appears to me that Mrs. Bradford wished to bargain for any interest which Rogers might acquire, even if it be based upon chance and resulted in no interest. Nothing was acquired by Rogers at the time of his death; yet, she can not be heard to complain as this is precisely the analogue which we have drawn to the quitclaim situation above.\nThe agreement which the evidence shows the parties made is a very unusual one because Mrs. Bradford, in exchange for her promise, was taking a chance on a chance— that not only, would Rogers acquire an interest in Dunleith prior to his death, but also that he would not convey away such an interest prior to his death.\nThe issue here is whether Mrs. Bradford was bargaining for a chance to acquire some interest or whether she was bargaining for some definite interest in Dunleith however substantial or small. It is a familiar rule of construction that where a contract is ambiguous, that construction *995given to it by the acts and conduct of the parties3 with knowledge of its terms, before any controversy has arisen as to its meaning, is entitled to great weight. A practical construction placed by the parties upon the instrument is the best evidence of their intention. Radio Corporation of America v. Philadelphia Storage Battery, 23 Del.Ch. 289, 6 A.2d 329, 340. The conduct of Mrs. Bradford subsequent to May 25, 1930, indicates that by the time of her death she wished to have complete control over Dunleith. The option which she obtained on February 6, 1934, put her in a position to have complete title in herself. Tn spite of this, she continued to treat the May 25, 1930 agreement as a live obligation to pay to Rogers the amount promised. One scene communicates much. On June 3, 1940, this agreement was assigned to the St. Georges Trust Company, as security for a loan made to Rogers. From the evidence before me, Mrs. Bradford helped to pay off the loan to the extent of $1500 and took an assignment of the agreement from the Trust Company to herself as her security for the debt then due her from Rogers by means of her discharging his obligation to the bank. Moreover, on November 2, 1940, she entered into the supplemental agreement with Rogers, ratifying and confirming the May 25, 1930 agreement; and a few days later, while in Philadelphia, she certified under oath .that she had not made any other agreements with respect to the disposition of her property by will, other than that of May 25, 1930. Certainly these acts on the part of Mrs. Bradford, knowingly performed, which made it possible to induce others to rely upon her obligations as found in the May 25, 1930 agreement, have major significance. I do not advert to ' these special circumstances as constituting an estoppel against Mrs. Bradford or against her estate from denying the validity of the agreement. The reference has been made simply to support the construction that Mrs. Bradford, at all times, regarded the transaction with her nephew as in the nature of a quitclaim deed. Since in 1940 Mrs. Bradford had sole control over the legal interests in Dunleith, her behavior pattern reflects the original intention of bargaining for Rogers’ chance of acquiring any interest in Dunleith.\nDefendant’s argument, i. e., assuming arguendo that the May 25, 1930 agreement was valid, the promise of Mrs. Bradford could not survive Rogers’ death, is without merit. The agreement specifically provides that the “bequest shall be binding should either or both die without a will”; certainly this shows that the agreement was to be operative even after the death of either or both parties.\nJudgment should be for plaintiff.\n\n Federal courts have jurisdiction to establish a claim against a decedent’s estate-; but such a court cannot seize property which is in the possession of an executor appointed by a state court or impress a lien on such property or interfere with the administration of such an estate. One asserting a claim against a decedent’s estate may resort to a federal court for a judgment which simply ad*994judicates the validity and amount of the claim. For federal jurisdiction in probate matters, see heavily documented note in 158 A.L.R. pp. 9-76.\n\n\n Williston, on Contracts (Rev.Ed.) § 115, n. 8 for cases.\n\n\n See Attorney General v. Drummond, 1 Drury & Warren 353, 368, where Lord Chancellor Sugden said: “Tell me what you have done under such a deed, and I will tell you what that deed means.”\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"rosenberg-v-equitable-trust-co"} {"case_name":"Williams v. Neil","case_name_full":"Williams v. Neil, Warden","case_name_short":"Neil","citation_count":0,"citations":["400 U.S. 1011"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1971-01-18","date_filed_is_approximate":false,"id":8981965,"opinions":[{"ocr":true,"opinion_id":8973844,"opinion_text":"\nC. A. 6th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"williams-v-neil"} {"case_name":"City of Milwaukee v. Yeutter","case_name_full":"City of Milwaukee v. Yeutter, Secretary of Agriculture","case_name_short":"Yeutter","citation_count":0,"citations":["493 U.S. 976"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1989-11-27","date_filed_is_approximate":false,"id":9092789,"opinions":[{"ocr":true,"opinion_id":9086989,"opinion_text":"\nC. A. 7th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"city-of-milwaukee-v-yeutter"} {"case_name":"Doncses v. United States","case_name_full":"Doncses v. United States","case_name_short":"Doncses","citation_count":0,"citations":["536 U.S. 963"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2002-06-28","date_filed_is_approximate":false,"id":9206291,"opinions":[{"ocr":true,"opinion_id":9201078,"opinion_text":"\nC. A. 11th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"doncses-v-united-states"} {"case_name":"Akuma v. Cedar Hill Independent School District","case_name_full":"Akuma v. Cedar Hill Independent School District","case_name_short":"Akuma","citation_count":0,"citations":["565 U.S. 1208"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2012-02-21","date_filed_is_approximate":false,"id":9246069,"opinions":[{"ocr":true,"opinion_id":9240884,"opinion_text":"\nCt. App. Cal., 3d App. Dist. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"akuma-v-cedar-hill-independent-school-district"} {"case_name":"Chimney v. United States","case_name_full":"Chimney v. United States","case_name_short":"Chimney","citation_count":0,"citations":["546 U.S. 917"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2005-10-03","date_filed_is_approximate":false,"id":9254322,"opinions":[{"ocr":true,"opinion_id":9249138,"opinion_text":"\nC. A. 5th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"chimney-v-united-states"} {"case_name":"Reed v. Mosley","case_name_full":"Reed v. Mosley","case_name_short":"Reed","citation_count":0,"citations":["528 U.S. 1088"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2000-01-10","date_filed_is_approximate":false,"id":9264036,"opinions":[{"ocr":true,"opinion_id":9258860,"opinion_text":"\nC. A. 5th Cir. Certio-rari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"reed-v-mosley"} {"case_name":"MATTER OF GOGLAS v. New York City Hous. Auth.","citation_count":0,"citations":["11 N.Y.2d 680"],"court_full_name":"New York Court of Appeals","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Appeals","court_type":"S","date_filed":"1962-01-25","date_filed_is_approximate":false,"id":2590913,"opinions":[{"ocr":false,"opinion_id":2590913,"opinion_text":"\n11 N.Y.2d 680 (1962)\nIn the Matter of Raymond Goglas, as Guardian ad Litem of Raymond Goglas, Jr., an Infant, Appellant,\nv.\nNew York City Housing Authority, Respondent.\nCourt of Appeals of the State of New York.\nArgued January 10, 1962.\nDecided January 25, 1962.\nBenjamin Weinberger and Marcus Schoenfeld for appellant.\nJohn Nielsen and Francis P. Cunnion for respondent.\nConcur: Chief Judge DESMOND and Judges DYE, FULD, FROESSEL, VAN VOORHIS, BURKE and FOSTER.\nOrder affirmed, without costs; no opinion.\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"matter-of-goglas-v-new-york-city-hous-auth"} {"attorneys":"Robert B. Burns, Jr., Wilson, Grosenheider & Burns, Austin, Tex., for Topeka Santa Fe Ry. Atchison, Kansas City Southern Ry. Co., Louisiana and Arkansas Ry. Co., and Missouri Pacific Ry. Co., plaintiffs., Frank W. Calhoun, Lidell, Sapp & Zivley, Houston, Tex., for Burlington Northern R. Co. plaintiff., Michael E. Roper, MKT R. Co., Legal Dept., Dallas, Tex., for Missouri-Kansas-Texas R. Co. plaintiff., Hugh L. McCulley, Houston, Tex., for Southern Pacific Transp., St. Louis-Southwestern Ry. Co., plaintiffs., Douglas B. Fraser, Energy Div./Transp., Austin, Tex., for Clark Jobe, James E. Nu-gent, R.R. Comm, of Texas and Mack Wallace, defendants.","case_name":"Missouri Pacific Railroad v. Railroad Commission of Texas","case_name_full":"MISSOURI PACIFIC RAILROAD COMPANY, Southern Pacific Transportation Company, the Atchison, Topeka and Santa Fe Railway Company, Burlington Northern Railroad Company, Missouri-Kansas-Texas Railroad Company, St. Louis-Southwestern Railway Company, Kansas City Southern Railway Company and Louisiana and Arkansas Railway Company v. RAILROAD COMMISSION OF TEXAS and Its Members, Hon. James E. Nugent, Hon. MacK Wallace and Hon. Clark Jobe","citation_count":8,"citations":["671 F. Supp. 466"],"court_full_name":"District Court, W.D. Texas","court_jurisdiction":"Texas, TX","court_short_name":"W.D. Texas","court_type":"FD","date_filed":"1987-06-17","date_filed_is_approximate":false,"headmatter":"Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.
","attorneys":"Barton D. Moorstein (Blank & Moorstein, L.L.P., on brief), Rockville, for Appellant., Kelly S. Jennings (Susan C. Benner of Seyfarth Shaw, on brief), Washington, DC, for Appellees.","case_name":"Cheek v. United Healthcare of the Mid-Atlantic, Inc.","case_name_full":"Ronnie E. CHEEK v. UNITED HEALTHCARE OF the MID-ATLANTIC, INC.","case_name_short":"Cheek","citation_count":42,"citations":["835 A.2d 656","378 Md. 139"],"court_full_name":"Court of Appeals of Maryland","court_jurisdiction":"Maryland, MD","court_short_name":"Court of Appeals of Maryland","court_type":"S","date_filed":"2003-11-13","date_filed_is_approximate":false,"headmatter":"\n Sept. Term, 2002.\n
\n Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.\n
","id":2341830,"judges":"Battaglia, Harrell","opinions":[{"author_str":"Battaglia","ocr":false,"opinion_id":9756367,"opinion_text":"\nBATTAGLIA, Judge.\nThe issue in this case is whether a valid and enforceable arbitration agreement exists between an employer and an *141employee when the employer has reserved the right to, within its sole discretion, alter, amend, modify, or revoke the arbitration agreement at any time and without notice, even though it has not exercised that option in the present case.\nAppellant, Ronnie E. Cheek, filed suit in the Circuit Court for Baltimore City for breach of contract and related causes of action after his employer, appellee United Healthcare of the Mid-Atlantic, Inc.,1 terminated his employment. United responded with a motion to compel arbitration, which the Circuit Court granted. Cheek appealed, and we granted certiorari prior to any proceedings in the Court of Special Appeals. For the reasons discussed herein, we conclude that the arbitration agreement between Cheek and United is unenforceable for lack of consideration because United’s promise to arbitrate is illusory and because United’s employment of Cheek cannot serve as consideration for the arbitration agreement. Consequently, we shall reverse the order of the Circuit Court compelling arbitration and remand this case for further proceedings.\nI. BACKGROUND\nOn November 17, 2000, United orally offered Cheek a position of employment as a senior sales executive, which was confirmed in writing the same day. The two-page letter set forth various conditions of United’s offer of employment, including that Cheek accept United’s “Employment Arbitration Policy.” Specifically, the letter stated that enclosed with it were “summaries of the United Group Internal Dispute and Employment Arbitration Policy which are conditions of your employment.”2\n*142In a November 28, 2000, letter to United, Cheek wrote that he was “delighted to accept United Healthcare’s generous offer” and that “[a]ll of the terms in your employment letter are amenable to me.” He also indicated that he had submitted his resignation that morning to his current employer, Blue Cross/Blue Shield of the District of Columbia.\nOn January 2, 2001, during Cheek’s first day of employment with United, he received a copy of United’s Employee Handbook, which contained summaries of United’s Internal Dispute Resolution Policy and Employment Arbitration Policy (hereinafter, “Arbitration Policy” or “Policy”).3 The summary of the Arbitration Policy described the scope of the Policy, the rules applicable in arbitration, how an employee initiates arbitration, and the types of relief available in arbitration. Specifically, the summary of the Policy stated that United “believes that the resolution of disagreements” between employees and United “are best accomplished by an internal dispute review (IDR) and, where that fails, by arbitration based on the rules of the American Arbitration Association.” Accordingly, United declared in the summary of the Policy that arbitration “is the final, exclusive and required forum for the resolution of all employment related disputes which are based on a legal claim” and that “any party to [such a dispute] may initiate the arbitration process.” Particularly relevant to the disposition of this appeal, the summary of the Arbitration Policy also provided:\nUnited Healthcare reserves the right to alter, amend, modify, or revoke the Policy at its sole and absolute discretion at *143any time with or without notice. The senior executive of Human Resources has the sole authority to alter, amend, modify, or revoke the Policy.\nOn January 2, 2001, Cheek signed an “Acknowledgment Form for the Code of Conduct and Employment Handbook.” In that Form, Cheek acknowledged that he had “specifically received and reviewed,” among other things, an “Internal Dispute Resolution/Employment Arbitration Policy.” The Form that Cheek signed also stated:\nI understand that UnitedHealth Group Employment Arbitration Policy is a binding contract between UnitedHealth Group and me to resolve all employment-related disputes which are based on a legal claim through final and binding arbitration. I agree to submit all employment-related disputes based on legal elaim[sic] to arbitration under United-Health Group’s policy.\nWithin seven months, on July 27, 2001, United informed Cheek that United was eliminating his position as of August 10, 2001, when, in fact, his employment was terminated. In response, on December 31, 2001, Cheek filed a four-count complaint against United in the Circuit Court for Baltimore City. In the complaint, Cheek sought damages for breach of contract, negligent misrepresentation, and violations of Maryland Code, § 3-501 et. seq. of the Labor and Employment Article.4 Cheek also claimed under the doctrine of promissory estoppel that United should have been precluded from denying the existence of a valid employment agreement.\nOn February 6, 2002, United filed a “Motion to Dismiss and/or Compel Arbitration and Stay Lawsuit” with the Circuit Court. On May 15, 2002, after hearing from the parties, the Circuit Court entered an order dismissing Cheek’s complaint and ordering him to submit his claims to arbitration. Thereafter, Cheek noted an appeal to the Court of Special Appeals. We issued a writ of certiorari, Cheek v. United Healthcare, *144374 Md. 81, 821 A.2d 369 (2003), prior to any proceedings in the Court of Special Appeals.\nCheek presents the following questions for review, which we have restructured:\n(I) Whether the arbitration agreement between Cheek and United is “unenforceable and void as against public policy” because:\n(A) The rules of the arbitration can be altered, revised, or amended at the sole discretion of United;\n(B) The arbitration agreement does not allow the arbitrator to conclude that an employee is anything other than an “employee at will;”\n(C) The arbitration agreement was “foisted” on Cheek after an employment contract was formed.\n(II) Whether United’s “sole and absolute discretion” to “alter, amend, modify, or revoke” its arbitration agreement with Cheek at any time renders its promise to arbitrate illusory and the arbitration agreement, therefore, unenforceable.\nFor the reasons discussed herein, we conclude that the arbitration agreement in the present case is unenforceable for lack of consideration because United’s promise to arbitrate is illusory and United’s employment of Cheek did not act as consideration for the arbitration agreement. Consequently, we need not address Cheek’s remaining questions.\nII. DISCUSSION\nCheek contends that the Circuit Court erred in compelling arbitration and advances several arguments in support of that contention. Cheek claims that the Arbitration Policy “lacks mutuality” and is also “void as against public policy” because it states that United has “the right to alter, amend, modify, or revoke the Policy at its sole and absolute discretion at any time with or without notice.” Additionally, Cheek argues that the Arbitration Policy “lacks consideration.” In support of that claim, Cheek asserts that he agreed to the Arbitration *145Policy after he had already entered into a binding oral contract of employment with United. Consequently, Cheek asserts that he “received nothing that he had not already [received].” Cheek further claims that the Arbitration Policy is one of “adhesion” and that he was acting under “duress” when he signed it because he was in an inferior bargaining position, because the arbitration agreement precludes an arbitrator from finding anything other than at-will employment, and because the agreement was offered to him on a “take it or leave it” basis after he had already given up his position at Blue Cross/Blue Shield of the District of Columbia. Finally, Cheek contends that the Arbitration Policy is unenforceable because United’s promise to arbitrate is “illusory.” In support of that contention, Cheek relies on Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir.2000), in which the United States Court of Appeals for the Sixth Circuit held, according to Cheek, that a “substantially similar arbitration scheme was [illusory and therefore] unenforceable.”\nUnited, on the other hand, contends that it and Cheek “entered into a valid and enforceable arbitration agreement.” Contrary to Cheek’s assertion, United claims that the Arbitration Policy is supported by “mutuality of obligation” because United “promised to provide Cheek employment for, inter alia, Cheek’s promise to abide by the terms of the [arbitration agreement],” and because it promised to submit to arbitration “all employment related disputes which are based on a legal claim.” That United reserved the right to modify the Arbitration Policy, it asserts, “is of no consequence to the issue of mutuality.” United also claims that the Arbitration Policy was supported by “adequate consideration.” In support of that claim, United rejects Cheek’s assertion that the Arbitration Policy was entered into after his employment commenced, and further argues that the “mutual promise to arbitrate” and United’s “continued employment” of Cheek each served as adequate consideration to support the Arbitration Policy. Additionally, United argues that the Arbitration Policy is not a contract of adhesion because it is a “simple” four-page document, because there is no evidence of any “great disparity in *146bargaining power between the parties,” and because the Arbitration Policy does not preclude an arbitrator from finding an employment contract. Finally, United asserts that a promise is not illusory “simply because it permits one party to unilaterally modify [an] agreement without notice,” and that its right to modify the Arbitration Policy, therefore, does not “destroy [its] promise to arbitrate Cheek’s dispute.”\nWe have described arbitration as “the process whereby parties voluntarily agree to substitute a private tribunal for the public tribunal otherwise available to them.” Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 103, 468 A.2d 91, 95 (1983); see also Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 448, 450 A.2d 1304, 1306 (1982). The Maryland Uniform Arbitration Act (hereinafter, “Arbitration Act”), found in Maryland Code, §§ 3-201 through 3-234 of the Courts and Judicial Proceedings Article (1974, 2002 Repl. Vol.), “expresses the legislative policy favoring enforcement of agreements to arbitrate.” Allstate Ins. Co. v. Stinebaugh, 374 Md. 631, 641, 824 A.2d 87, 93(203). See also Holmes v. Coverall North America, Inc., 336 Md. 534, 546, 649 A.2d 365, 371 (1994) (observing that the Arbitration Act embodies “the legislative intent to favor arbitration”); Crown Oil & Wax Co. of Delaware, Inc. v. Glen Constr. Co. of Virginia, Inc., 320 Md. 546, 558, 578 A.2d 1184, 1189 (1990)(“Maryland courts have consistently stated that the [Arbitration Act] embodies a legislative policy favoring the enforcement of executory agreements to arbitrate.”); Gold Coast Mall, Inc., 298 Md. at 103, 468 A.2d at 95; Charles J. Frank, Inc., 294 Md. at 448, 450 A.2d at 1306.\nSection 3-206(a) of the Arbitration Act provides that:\nA written agreement to submit any existing controversy to arbitration or a provision in a 'written contract to submit to arbitration any controversy arising between the parties in the future is valid and enforceable, and is irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract.\n*147Section 3-207 allows parties to petition a court to compel arbitration and states:\n(a) Refusal to arbitrate. — If a party to an arbitration agreement described in § 3-202 refuses to arbitrate, the other party may file a petition with a court to order arbitration.\n(b) Denial of existence of arbitration agreement. — If the opposing party denies existence of an arbitration agreement, the court shall proceed expeditiously to determine if the agreement exists.\n(c) Determination by court. — If the court determines that the agreement exists, it shall order arbitration. Otherwise it shall deny the petition.\nThe determination of whether there is an agreement to arbitrate, of course, depends on contract principles since arbitration is a matter of contract. As such, “a party cannot be required to submit any dispute to arbitration that it has not agreed to submit.” Curtis G. Testerman Co. v. Buck, 340 Md. 569, 579, 667 A.2d 649, 654 (1995)(recognizing that “[arbitration is ‘consensual; a creature of contract’ ” and that “ ‘[i]n the absence of an express arbitration agreement, no party may be compelled to submit to arbitration in contravention of its right to legal process’ ”) (quoting Thomas J. Stipanowich, Arbitration and the Multiparty Dispute: The Search for Workable Solutions, 72 Iowa L.Rev. 473, 476 (1987) (citations omitted)). See also Messersmith, Inc. v. Barclay Townhouse Associates, 313 Md. 652, 658, 547 A.2d 1048, 1051 (1988)(recognizing that “ ‘a valid arbitration agreement must exist for arbitration to be binding’ ”) (quoting Arrow Overall Supply Co. v. Peloquin Enterprises, 414 Mich. 95, 97, 323 N.W.2d 1, 2 (1982)).\nTo be binding and enforceable, contracts ordinarily require consideration. Harford County v. Town of Bel Air, 348 Md. 363, 381-82, 704 A.2d 421, 430 (1998)(citing Beall v. Beall, 291 Md. 224, 229, 434 A.2d 1015, 1018 (1981)); Broaddus v. First Nat. Bank, 161 Md. 116, 121, 155 A. 309, 311 (1931). See also Chernick v. Chernick, 327 Md. 470, 479, 610 A.2d 770, 774 (1992)(binding contracts “must be supported by consideration”); Peer v. First Federal Savings and Loan *148Assoc. of Cumberland, 273 Md. 610, 614, 331 A.2d 299, 301 (1975)(a binding contract “must be supported by sufficient consideration”). In Maryland, consideration may be established by showing “ ‘a benefit to the promisor or a detriment to the promisee.’ ” Harford County, 348 Md. at 382, 704 A.2d at 430 (quoting Vogelhut v. Kandel, 308 Md. 183, 191, 517 A.2d 1092, 1096 (1986)). In particular, we have recognized that the “[fjorebearance to exercise a right or pursue a claim,” can “constitute[ ] sufficient consideration to support .[an] ... agreement.” Chernick, 327 Md. at 480, 610 A.2d at 774 (citing Erie Ins. Exch. v. Calvert Fire Ins., 253 Md. 385, 389, 252 A.2d 840, 842 (1969)); Beall, 291 Md. at 230, 434 A.2d at 1019 (“forbearance to exercise a legal right is sufficient consideration to support a promise.”).\nA promise becomes consideration for another promise only when it constitutes a binding obligation. Without a binding obligation, sufficient consideration does not exist to support a legally enforceable agreement. See Tyler v. Capitol Indemnity Ins. Co., 206 Md. 129, 134, 110 A.2d 528, 530 (1955)(recognizing that “ ‘If [an] option goes so far as to render illusory the promise of the party given the option, there is indeed no sufficient consideration, and therefore no contract ____’ ”)(quoting 1 Williston on Contracts, Sec. 141 (Rev. Ed.)). See also Restatement of Contracts 2d § 77 cmt. a (1981)(“Where the apparent assurance of performance is illusory, it is not consideration for a return promise.”); 2 Arthur L. Corbin, Corbin on Contracts § 5.28 (2003)(explain-ing that “an illusory promise is neither enforceable against the one making it, nor is it operative as a consideration for a return promise,” and that “if there is no other consideration for a return promise, the result is that no contract is created.”).\nAn “illusory promise” appears to be a promise, but it does not actually bind or obligate the promisor to anything. An illusory promise is composed of “words in a promissory form that promise nothing.” Corbin on Contracts § 5.28 (2003). “They do not purport to put any limitation on the freedom of *149the alleged promisor. If A makes an illusory promise, A’s words leave A’s future action subject to A’s own future whim, just as it would have been had A said nothing at all.” Id. Similarly, the Restatement of Contracts explains that “[wjords of promise which by their terms make performance entirely optional with the ‘promisor’ whatever may happen, or whatever course of conduct in other respects he may pursue, do not constitute a promise.” Restatement of Contracts 2d § 2 cmt. e. Likewise, “the promise is too indefinite for legal enforcement is the promise where the promisor retains an unlimited right to decide later the nature or extent of his performance. The unlimited choice in effect destroys the promise and makes it merely illusory.” 1 Samuel Williston, Contracts, § 4:24 (4th Ed. 1990).\nUnited initiated the arbitration with Cheek; it has not revoked nor in any way altered the Arbitration Policy with Cheek at any time. Nonetheless, the fact that “United HealthCare reserves the right to alter, amend, modify, or revoke the [Arbitration] Policy at its sole and absolute discretion at any time with or without notice” creates no real promise, and therefore, insufficient consideration to support an enforceable agreement to arbitrate. Indeed, the plain and unambiguous language of the clause appears to allow United to revoke the Employment Arbitration Policy even after arbitration is invoked, and even after a decision is rendered, because United can “revoke” the Policy “at any time.”5 Thus, we conclude that United’s “promise” to arbitrate employment disputes is entirely illusory, and therefore, no real promise at all.\n*150In so concluding, we align ourselves with courts from other jurisdictions that have found similar language to be illusory. In Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir.2000), the United States Court of Appeals for the Sixth Circuit was’ called upon to interpret an arbitration agreement between the appellants and a third-party arbitration service provider, Employment Dispute Services, Inc. (hereinafter, “EDSI”), which the appellants were required to enter into in order to be considered for employment by Ryan’s Family Steak Houses. Id. at 309. In the agreement, EDSI agreed to provide a forum for arbitration, but reserved the right to alter the applicable rules and procedures of arbitration without any notification to or consent from the appellants. Id. at 310.\nThe Sixth Circuit concluded that the agreement was unenforceable because there was no “mutuality of obligation” and therefore, no consideration. Id. at 316. In so concluding, the Court reasoned that EDSI’s promise to provide an arbitration forum was “illusory” because EDSI had “reserved the right to alter the applicable rules and procedures without any obligation to notify, much less receive consent from” the appellants. Id. at 315-16. The Court explained that “an illusory promise arises when a promisor retains the right to decide whether or not to perform the promised act” and that “[a] promise is also illusory when its indefinite nature defies legal enforcement.” Id. at 315. See also Penn v. Ryan’s Family Steak Houses, Inc., 269 F.3d 753, 759, 761 (7th Cir.2001) (construing a similar agreement where EDSI had sole, unilateral right to amend arbitration rules; holding that EDSI’s promise was illusory, and that the arbitration agreement, therefore, was unenforceable).\nSimilarly, in the case before us, United has the right to “alter, amend, modify, or revoke the [Employment Arbitration] Policy at its sole and absolute discretion at any time with or without notice” and without consent. United, however, claims that Floss is distinguishable because the Employee Arbitration Policy at issue in the present case, unlike the agreement in Floss, does not allow United to modify the rules *151of arbitration, which are based on those of the American Arbitration Association. Additionally, United highlights criticism of the Floss decision incorporated in Corbin on Contracts:\nIf EDSI modified the rules and procedures of its arbitral tribunals in such a way that the resulting rules and procedures continued to resemble something we might recognize as ‘arbitration,’ then EDSI’s modification fell within the promise to arbitrate, and EDSI would still be doing what it promised ... it would do: arbitrate their disputes with Ryan’s.\nCorbin on Contracts § 5.28 (2003 Supp). Even Corbin on Contracts, however, recognizes that “[t]here might be disputes at the margins,” in which a finding of an illusory promise would be appropriate. Id. Certainly, the ability to completely revoke an arbitration policy unilaterally, at any time, even after invocation and decision, and without notice to or consent from the employee, is at that margin.\nThe United States Court of Appeals for the Tenth Circuit also has found language similar to the language at hand to be illusory. In Dumais v. American Golf Corp., 299 F.3d 1216 (2002), Dumais, the employee, signed a “New Co-Worker Authorization & Acknowledgment Form” that bound her to the provisions of American Golf Corporation’s employee handbook, which included an arbitration provision. Id. at 1217. A provision of the handbook stated that American Golf “reserves the right to at any time change, delete, modify, or add to any of the provisions contained in this handbook at its sole discretion” with the exception of the arbitration provision. Id. Another provision stated that American Golf had the right to amend, supplement, or revise everything in the handbook, and this provision did not exclude the arbitration provision. Id.\nThe Tenth Circuit affirmed the judgment of the Federal District Court for the District of New Mexico denying American Golfs motion to compel arbitration. Id. at 1220. The Court reasoned that the conflicting sections of the employee handbook created an ambiguity that should be construed *152against American Golf. Id. at 1219. Accordingly, the Court found that American Golf had the ability to “change, delete, modify, or add” to the arbitration provision at any time, which rendered “the alleged agreement between American Golf and [Dumais] to arbitrate their employment disputes illusory.” Id. at 1220. See also Phox, 230 F.Supp.2d at 1282 (holding employer’s promise to arbitrate “illusory” because employer reserved “the right to modify or cancel the provisions” of an employee handbook, including an arbitration clause, “at its sole discretion”); Gourley v. Yellow Transportation, LLC, 178 F.Supp.2d 1196, 1202 (D.Colo.2001)(determining that an arbitration agreement between employer and employees was “illusory” because employer withheld “the power • to interpret, modify, rescind, or supplement its terms unilaterally”).\nUnited, however, claims that there is another source of consideration to support the Arbitration Policy. According to United, its “employment or continued employment of Cheek constituted sufficient consideration for the agreement to arbitrate.” United asserts that, by providing Cheek with a job, it has given sufficient consideration for Cheek’s promise to arbitrate employment disputes, so that United’s promise is not illusory. To agree with United would place this Court in the untenable position of having to go beyond the confines of the arbitration agreement itself and into an analysis of the validity of the larger contract, an inquiry which we cannot make. Moreover, we always would have to find that consideration exists to support an arbitration agreement in situations in which performance of the contract has occurred. We explain.\nMaryland’s Arbitration Act “expresses the legislative policy favoring enforcement of agreements to arbitrate.” Allstate Ins. Co., 374 Md. at 641, 824 A.2d at 93. The Arbitration Act expresses this policy by “strictly confining] the function of the court in suits to compel arbitration to the resolution of a single issue-is there an agreement to arbitrate the subject matter of a particular dispute.” Gold Coast Mall, 298 Md. at 103-04, 468 A.2d at 95; Holmes, 336 Md. at 546, 649 A.2d at 371 (1994) (“The narrow scope of the court’s involvement [in a *153petition to compel, or stay, arbitration] follows from our recognition of the legislative intent to favor arbitration.”); Crown Oil & Wax Co., 320 Md. at 557-58, 578 A.2d at 1189 (stating that a court is prohibited under Section 3-210 of the Arbitration Act from inquiring into the merits of a claim).\nIn order to observe this mandate, we have followed the lead of the Supreme Court in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), by considering an arbitration clause of a larger contract to be severable therefrom. In Holmes, we were called upon to determine “whether allegations of fraudulent inducement and violations of the Franchise Act in a franchise agreement containing a broad arbitration clause are sufficient to permit the franchisee to avoid arbitration of a dispute.” Holmes, 336 Md. at 541, 649 A.2d at 368. We recognized that the Supreme Court in Prima Paint, supra, in considering the same issue, reviewed the policies of the Federal Arbitration Act favoring the enforcement of arbitration agreements, and determined that “where a party opposed a motion for arbitration based on allegations that there was fraud in the inducement of the entire contract, the issue is one for an arbitrator, not a court.” Id. at 541-42, 649 A.2d at 368. The “reasoning behind Prima Paint,” we noted, “is that the arbitration clause is a severable part of the contract.” Id. at 543, 649 A.2d at 369. We then recognized that Maryland’s Arbitration Act is the “State analogue” to the Federal Arbitration Act, because both embody a policy of enforcing valid arbitration agreements. Id. at 541, 649 A.2d at 368. Reviewing additional federal and state case law, we observed that mutual promises to arbitrate act as “an independently enforceable contract.” Id. at 544, 649 A.2d at 370. In an enforceable arbitration agreement, we explained, each party has promised to arbitrate disputes arising from an underlying contract, and “each promise provides consideration for the other.” Id. Thus, in a motion to compel arbitration, a court must determine whether “there is a mutual exchange of promises to arbitrate,” and “[o]nce a court determines that the making of the agreement to arbitrate is not in dispute, its inquiry ceases, as the *154agreement to arbitrate has been established as a valid and enforceable contract.” Id. at 544, 649 A.2d at 370.\nUnited, however, invites us to disregard the narrow scope of our role by looking beyond the Arbitration Policy and into the underlying employment agreement to determine whether consideration exists to support an agreement to arbitrate. To accept United’s assertion that its employment or continued employment of Cheek constituted consideration for the Arbitration Policy would require that we inquire into, and at least make an implicit determination about, the nature of the underlying employment agreement. Indeed, the merits of the underlying controversy in the present case call into question the type of employment relationship that existed between United and Cheek. In his complaint to the Circuit Court, Cheek claimed, among other things, damages for breach of contract, alleging that United “materially breached its contractual obligation to [Cheek] by failing to pay [Cheek] his base pay, incentive compensation, and other benefits.” The November 17, 2000 letter memorializing United’s offer of employment to Cheek, however, states that “you [Cheek] retain the right to terminate your employment with [United], at any time and for any reason, as does [United].” Similarly, the employee handbook states in part that its provisions, except for the Arbitration Policy, “do not establish a contract or any particular terms or conditions of employment between [Cheek] and [United]. None of the policies constitute or are intended to constitute a promise of employment.” Given the language of the letter and the handbook, and the relief sought in the complaint, it is apparent that the parties disagree about whether the employment relationship between Cheek and United was “at will,” in which case employment “may be legally terminated at the pleasure of either party at any time,” or whether it imposed contractual employment obligations upon United. Therefore, were we to entertain United’s assertion regarding Cheek’s employment as consideration, we would be straying into the prohibited morass of the merits of the claims.\n*155United, nonetheless, urges us to find employment as consideration, as the Court of Special Appeals did in Simko, Inc. v. Graymar Co., 55 Md.App. 561, 464 A.2d 1104 (1983). Simko, however, is inapposite. In that case, the Court of Special Appeals concluded that continued employment of an at-will employee for a substantial period beyond the threat of discharge was sufficient consideration to support a post-employment covenant not to compete. Id. at 567, 464 A.2d at 1107-08. The present case involves an arbitration agreement, not a covenant not to compete. As previously discussed, in determining whether an arbitration agreement contained within a larger agreement is enforceable, courts are limited to determining only one thing: whether a valid arbitration agreement exists.\nIn concluding that United’s employment or continued employment of Cheek does not act as consideration in return for Cheek’s promise to arbitrate, we join at least two other state courts. In The Money Place, LLC. v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002), the Supreme Court of Arkansas determined that an arbitration provision in The Money Place’s Deferred Presentment Agreement was invalid. Id. at 715. The plaintiffs in The Money Place filed a class-action suit against that business, “alleging usury in its payday-loan/deferred-check presentment business.” Id. In determining that the arbitration agreement was invalid, the Arkansas Supreme Court rejected The Money Place’s claim that if the entire Deferred Presentment Agreement was supported by sufficient consideration, then the arbitration clause also was enforceable based upon the same consideration. Id. at 717. “To analyze the contract as The Money Place” suggested, the Court stated, would require it “to go to the merits of the underlying case,” for if fees collected by The Money Place in its payday-loan/deferred-check presentment business were, “in reality, interest, and are usurious, then the contract [would have lacked] consideration.” Id. The Court then stated that it was “following] the lead of the United States Supreme Court” in declining to address whether there was consideration for the *156contract as a whole and in “limit[ing][its] inquiry into whether the arbitration provision of the contract ... is valid.” Id.\nIn Stevens/Leinweber/Sullens, Inc. v. Holm Development and Management, Inc., 165 Ariz. 25, 795 P.2d 1308 (Ct.App.1990), the Court of Appeals of Arizona concluded that Holm, the owner of a construction project, could not “ ‘borrow1 consideration from the principal contract to support an arbitration provision.” Id. at 1313. An addendum to the construction contract granted Holm “the absolute option of selecting either arbitration or litigation as the means of dispute resolution” and also gave Holm “the right to reconsider its choice of dispute resolution ‘at any time, prior to a final judgment in the ongoing proceeding.’ ” Id. In concluding that the arbitration provisions were void for lack of consideration, Arizona’s intermediate appellate court reasoned that it could not look to consideration in the underlying contract because the arbitration provisions constituted a separable and independent agreement.\nAs support for its conclusion that the arbitration provisions were separable from the construction contract, the Arizona Court looked to two provisions of Arizona’s arbitration act, which are similar to the Maryland Act, and the United States Supreme Court’s decision in Prima Paint, supra, upon which we relied in Holmes, supra. Section 12-1502 of the Arizona Revised Statute, according to the Court, “restricts judicial review to a determination of whether a valid arbitration provision exists.” Id. at 1311. That Section states:\nOn application of a party showing [a valid agreement to arbitrate] and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party. Otherwise, the application shall be denied.\nSection 12-1501, the Court stated, “sets forth the grounds upon which the validity of an arbitration provision may be challenged.” Id. That Statute provides:\n*157A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Emphasis omitted).\nThese two statutory provisions, when “[r]ead in conjunction,” the Arizona Court declared, “embody the concept of separability endorsed by the United States Supreme Court in” Prima Paint, supra. Id. at 1312. Finally, the Court rejected Holm’s contention that the arbitration provision should be considered separate from the underlying contract only when necessary to preserve an agreement to arbitrate, reasoning that nothing in the language of A.R.S. Section 12-1501 warranted such a result, and that the doctrine of separability was in fact “inherent in the language” of that Statute. Id.\nWe disagree with cases from other jurisdictions that determine that consideration for an underlying contract also can serve as consideration for an arbitration agreement within the contract, even when the arbitration agreement is drafted so that one party is absolutely bound to arbitrate all disputes, but the other party has the sole discretion to amend, modify, or completely revoking the arbitration agreement at any time and for any reason. Indeed, the cases of Kelly v. UHC Mgmt. Co., Inc., 967 F.Supp. 1240 (N.D.Ala.1997), decided by the United States District Court for the Northern District of Alabama, Southern Division, and McNaughton v. United Healthcare Servs., Inc., 728 So.2d 592 (Ala.1998), from the Supreme Court of Alabama, both involved the same disclaimer language of United’s Arbitration Policy at issue in this case, namely, that United “reserves the right to alter, amend, modify, or revoke this policy at its sole and absolute discretion at any time with or without notice.”\nThe Federal District Court held that United’s ability “to alter, amend, modify, or revoke [the Arbitration Policy] at its sole and absolute discretion at any time with or without notice,” did not render the Policy unenforceable for lack of consideration. Kelly, 967 F.Supp. at 1258. According to the *158District Court, the plaintiffs in the case provided consideration by “their promise to arbitrate employment disputes,” and United “gave consideration in continuing to employ the plaintiffs in exchange for their signing the arbitration agreements.” Id. at 1260.\nThe Supreme Court of Alabama, in a five-to-four decision, relied in part on the Federal District Court’s decision, in concluding that United’s Arbitration Policy was a binding agreement. McNaughton, 728 So.2d at 595-96. The Court rejected McNaughton’s contention that the arbitration agreement was unenforceable for lack of mutuality of obligation, as well as his argument that the language of the Arbitration Policy rendered it “void under the doctrine of unconscionability/mutuality of remedy.” Id. at 596. The Alabama Court also concluded that “under clear Alabama contract law, United’s providing at-will employment of McNaughton constituted sufficient consideration in exchange for McNaughton’s agreement to arbitrate her employment disputes under United’s arbitration policy.” Id. at 595.6\n*159Other cases, as well, have concluded that consideration from an underlying contract, or continued employment, can support an arbitration clause and render it enforceable. See e.g. Blair v. Scott Specialty Gases, 283 F.3d 595, 604 n. 3 (3rd Cir.2002) (noting in dicta that continued employment may serve as consideration for an agreement to arbitrate); Barker v. Golf U.S.A., Inc., 154 F.3d 788, 792 (8th Cir.1998) (concluding that under Oklahoma law, “mutuality of obligation is not required for arbitration clauses so long as the contract as a whole is supported by consideration”); Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 453 (2nd Cir.1995) (stating that Connecticut courts would conclude that when an arbitration agreement is integrated into a larger contract, consideration for the contract as a whole would cover the arbitration clause as well); Wilson Electrical Contractors, Inc. v. Minnotte Contracting Corp., 878 F.2d 167, 169 (6th Cir.1989) (finding that arbitration clause within larger contract did not require consideration independent from consideration of larger contract; also stating that Prima Paint, supra, “does not require separate consideration for an arbitration provision contained within a valid contract.”); Avid Engineering, Inc. v. Orlando Marketplace Ltd., 809 So.2d 1, 4 (Fla.Dist.Ct.App.2001) (“Because there was sufficient consideration to support the entire contract, the arbitration provision was not void for lack of mutuality of obligation.”); Sablosky v. Edward S. Gordon Co., 73 N.Y.2d 133, 538 N.Y.S.2d 513, 535 N.E.2d 643, 646 (1989) (“If there is consideration for the entire agreement that is sufficient; the consideration supports the arbitration option, as it does every other obligation in the agreement.”).\nWe disagree with these cases. As previously discussed, under Maryland law, the role of the courts in a motion to compel or stay arbitration is strictly circumscribed; we may only consider whether an agreement to arbitrate the dispute at hand exists; we must not stray into the merits of any *160underlying disagreements. To do so could eclipse the role of the arbitrator, should a valid agreement exist, and therefore run afoul of strong Federal and Maryland policies favoring arbitration as a viable method of dispute resolution. We believe that the cases referred to above pay short shrift to this principle. Even if we could touch upon the underlying merits in a motion to compel or stay arbitration, however, we would decline to do so.\nIf we were to conclude that consideration from the underlying agreement was sufficient to support the arbitration agreement, we would be precluded from ever finding an arbitration agreement invalid for lack of consideration when performance of a contract has already occurred, no matter how illusory the arbitration agreement was.\nFinally, we find that the Supreme Court’s decision in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), is distinguishable from the present case. In that case, Randolph financed the purchase of a mobile home through Green Tree Financial Corporation. Id. at 82, 121 S.Ct. at 517, 148 L.Ed.2d at 378. She signed a Manufactured Home Retail Installment Contract and Security Agreement that contained a provision providing that all disputes arising from the contract would be resolved in binding arbitration. Id. at 83, 121 S.Ct. at 518, 148 L.Ed.2d at 378. Randolph later sued Green Tree in the United States District Court for the District of Alabama, alleging that they violated the Truth in Lending Act and the Equal Credit Opportunity Act. Id. Green Tree responded with a motion to compel arbitration, which the District Court granted. Id.\nBefore the Supreme Court, Randolph contended that the arbitration clause contained within the Manufactured Home Retail Installment Contract and Security Agreement was unenforceable. Id. at 84, 121 S.Ct. at 518, 148 L.Ed.2d at 379. In support of that contention, she claimed that because the clause was silent as to who would pay for arbitration costs, there was a possibility that she would be responsible for the costs, which, if prohibitively expensive, would effectively pre-*161elude her from pursuing her statutory claims. Id. at 89, 121 S.Ct. at 521, 148 L.Ed.2d at 382. The Supreme Court rejected Randolph’s contention because it was too “speculative.” Id. at 91, 121 S.Ct. at 521-22, 148 L.Ed.2d at 383-84. The record, the Court noted, did “not show that Randolph will bear such costs if she goes to arbitration.” Id. at 90, 121 S.Ct. at 522, 148 L.Ed.2d. at 383.\nThe Arbitration Policy in the present case, unlike the agreement in Green Tree Financial, is not “silent” as to who is bound to arbitrate; it clearly and specifically gives United the sole discretion to modify, alter, amend, or revoke arbitration for any reason, at any time, but Cheek is bound to arbitrate “all employment-related disputes.” No “speculation” as to the legal consequences of this Policy is necessary. Cheek is bound to arbitrate any disputes arising from the employment relationship, while United can revoke the policy at any time, for any reason, without notice or consent. Consequently, whether United chooses to exercise the option to revoke the policy or not begs the question, because it had not bound itself to a course of action.\nWe have concluded that the arbitration agreement in the present case is unenforceable for lack of consideration. This is so because United’s promise to arbitrate was illusory, and because United’s employment of Cheek cannot serve as consideration for the arbitration agreement. Accordingly, we need not, and do not, express any opinion as to Cheek’s remaining claims.\n\nJUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENTS.\n\n\n. According to appellees, on March 6, 2000, United merged into Uni-tedHealth Group, Inc. Cheek named both companies as defendants in the present case, and we shall refer to them collectively as “United.’'\n\n\n. Cheek claims that “[n]o detail of the arbitration policy” was included with United's November 17 letter. The trial court made no finding on this point.\n\n\n. The summary of the Arbitration Policy \"provides general information regarding the Arbitration Policy,” and states that “[i]n the event of a conflict between [the] Summary and the Policy, the terms of the Policy shall govern in all cases.” A copy of the full Arbitration Policy has not been provided in the record extract or in the record. Neither of the parties to this appeal, however, has alleged that any relevant conflicts exist between the summary and the full Arbitration Policy. We also note that in an \"Acknowledgement Form for the Code of Conduct and Employment Handbook,” signed by Cheek, he represented that at the time he \"received the Handbook” he had \"specifically received and reviewed the policies referenced below ... Internal Dispute Resolution/Employment Arbitration Policy.\"\n\n\n. Maryland Code, § 3-501 et seq. of the Labor and Employment Article (1991, 1999 Repl. Vol.).\n\n\n. At argument, counsel for United stated that United would not revoke the Arbitration Policy in the present case. That oral representation is not sufficient to alter the terms of Arbitration Policy which was presented to Cheek. See Phox v. Atriums Management Co., Inc., 230 F.Supp.2d 1279, 1283 (D.Kan.2002)(rejecting defendant’s claim that because it did not exercise its right to cancel arbitration agreement, its promise to arbitrate constituted consideration; explaining that \"Defendant’s after-the-fact decision not to exercise [its right to unilaterally cancel the arbitration agreement] does not alter the illusory nature of its original promise to arbitrate”).\n\n\n. We find persuasive the dissenting opinion in McNaughton, of Justice J. Cook. Justice Cook explained that an at-will employment contract existed separately from the Employment Arbitration Policy. Id. at 604. The Justice also explained that the at-will contract was unilateral in nature, because the promise to pay is accepted by the act of performing work, but that an arbitration agreement is a bilateral and executory contract, where the parties bargain for mutual promises, not performance. Id. (citing Wagner v. City of Globe, 150 Ariz. 82, 85, 722 P.2d 250, 253 (1986) (\"Employment contracts, particularly those which would be considered at-will, are the best and most typical examples of unilateral contracts.”)). Thus, she determined that there existed two separate agreements, each of which was of a different class; the at-will employment contract as unilateral, and the arbitration agreement as bilateral. The consideration for the unilateral at-will employment contract (the promise to pay), Justice Cook opined, could not serve as the consideration for the separate bilateral agreement to arbitrate, because the parties to such a bilateral agreement bargained for mutual promises to forgo their rights to go to court and resolve disputes in arbitration. She also criticized the majority’s determination that because continued at-will employment is sufficient consideration for a non-competition agreement between an employer and an employee, it could likewise act as consideration for an arbitration agreement. According to Justice Cook, the majority's analogy was flawed because a non-competition agreement is a type of unilateral contract, but an arbitration agreement *159is bilateral. Id. at 605. Thus, she concluded that United Healthcare Services’s promise to arbitrate was illusoiy, and that the arbitration agreement was unenforceable. Id. at 605.\n\n","per_curiam":false,"type":"020lead"},{"author_str":"Harrell","ocr":false,"opinion_id":9756368,"opinion_text":"\nHARRELL, Judge,\ndissenting.\nI respectfully dissent. I do so because, in my view, the arbitration agreement between Appellant, Ronnie E. Cheek (“Cheek”), and Appellee, United Health Care of the Mid-*162Atlantic, Inc., (“United”), was supported by consideration. Even assuming, arguendo, that the arbitration agreement was not supported by consideration independent from that of the employment contract of which it was a part, the consideration supporting the employment contract supported the arbitration agreement as well. Reasonably construed, the parties’ mutual obligations with regard to arbitration were not illusory. Therefore, I would affirm the Circuit Court for Baltimore City’s judgment compelling arbitration of the employment dispute between the parties.\nI.\n“The interpretation of a written contract is ordinarily a question of law for the court and, therefore, is subject to de novo review by an appellate court.” DIRECTV v. Mattingly, 376 Md. 302, 312, 829 A.2d 626, 632 (2003). “Maryland follows the law of objective contract interpretation.” Sy-Lene of Washington, Inc. v. Starwood Urban Retail II, LLC, 376 Md. 157, 166, 829 A.2d 540, 546 (2003). “Under the objective test of contract interpretation, ‘the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract.’ ” Id. (quoting Long v. State, 371 Md. 72, 84, 807 A.2d 1, 8 (2002)) (quoting, in turn, Slice v. Carozza Prop., Inc., 215 Md. 357, 368, 137 A.2d 687, 693 (1958)). “A contract’s unambiguous language will not give way to what the parties thought the contract meant or intended it to mean at the time of execution; rather, ‘if a written contract is susceptible of a clear, unambiguous and definite understanding ... its construction is for the court to determine.’” Sy-Lene, 376 Md. at 167, 829 A.2d at 546 (citing Langston v. Langston, 366 Md. 490, 507, 784 A.2d 1086, 1095 (2001)). “When the clear language of a contract is unambiguous, the court will give effect to its plain, ordinary, and usual meaning, taking into account the context in which it is used.” Langston, 366 Md. at 506, 784 A.2d at 1095. “A contract is ambiguous if it is subject to more than one interpretation when read by a reasonably prudent person.” Id. “If the *163contract is ambiguous, the court must consider any extrinsic evidence which sheds light on the intentions of the parties at the time of the execution of the contract.” Sy-Lene, 376 Md. at 167-68, 829 A.2d at 547 (quoting County Commissioners v. St. Charles, 366 Md. 426, 445, 784 A.2d 545, 556 (2001)) (quoting, in turn, Heat & Power v. Air Products, 320 Md. 584, 596-97, 578 A.2d 1202, 1208 (1990)).\nThe 17 November 2000 letter from United to Cheek framed an offer of employment. That offer included conditions, such as the requirement that Cheek agree to be bound by United’s “Employment Arbitration Policy”. On 28 November 2000, Cheek authored an acceptance letter to United informing it that he was “delighted to accept United Healthcare’s generous offer” and that “[a]ll of the terms of your employment letter are amenable to me.” (Maj. op. at 142). The mutual obligations of the agreement to arbitrate and the consideration for the contract of employment render the agreement to arbitrate enforceable in the present case.\nCheek’s unsworn and unsubstantiated assertion that he did not receive, until after commencing employment with United, the summary of United’s Arbitration Policy referred to as an attachment in the 17 November 2000 offer letter, is unconvincing. His attorney’s artfully framed statement, made in passing in the Response and Opposition to United’s motion in the Circuit Court, that “no detail” of the policy was provided, is also unavailing. (Maj. op. at 141, n. 2). United’s human resources representative (and the author of United’s 17 November offer letter to Cheek), in an affidavit in support of United’s motion to compel arbitration filed in the Circuit Court, appended a “true and correct copy of the offer letter that was provided to Mr. Cheek” and stated further that United’s company policy was also to distribute a summary of the arbitration policy upon commencement of employment. Cheek conceded that he received a copy of the four-page summary of United’s Arbitration Policy at the commencement of his employment. (Maj. op. at 143).\n*164Even were one to assume Cheek did not receive a summary of United’s Arbitration Policy with the 17 November offer letter, his unqualified acceptance of the offer, including the arbitration condition, was not obtained by duress, Cheek’s suggestion to the contrary notwithstanding. This Court has held that the “test [for] duress is essentially composed of two elements: ‘(1) a wrongful act or threat by the opposite party to the transaction ..., and (2) a state of mind in which the complaining party was overwhelmed by fear and precluded from using free will or judgment.’ ” Food Fair Stores, Inc. v. Joy, 283 Md. 205, 217, 389 A.2d 874, 881 (1978) (quoting Plechner v. Widener College, Inc., 418 F.Supp. 1282, 1294 (E.D.Pa.1976)). See also Central Bank v. Copeland, 18 Md. 305 (1862). If one hopes to benefit from the law of duress, then that person cannot place himself or herself into the situation which is the impetus for the deprivation of that person’s free will. “The mere stress of business does not constitute duress when the person against whom it is asserted is not responsible for the circumstances.” Shillman v. Hob-stetter, 249 Md. 678, 693, 241 A.2d 570, 578 (1968).\nCheek implies that he was forced into employment with United, and thus bound by its “undetailed” arbitration policy, because he involuntarily was placed in a position where he had no alternative but to accept the terms of the contract after resigning from a position with his former employer. On the contrary, Cheek freely and voluntarily placed himself into a position whereby he had no other immediate employment opportunities, except with United. Cheek submitted his resignation to his former employer before he notified United of his acceptance of its employment offer. United is “not responsible for the circumstances” surrounding Cheek’s decision to resign from his former employer before accepting United’s offer and without apprising himself of any material information now claimed to be lacking or missing in United’s offer. If Cheek did not have sufficient information regarding the announced condition of arbitration in the employment offered by United, he should not have resigned from his former employment and accepted United’s offer before making further inqui*165ry. The terms of employment with United did not change between the offer date and Cheek’s acceptance. Because United did not commit any wrongful act to coerce Cheek’s unconditional acceptance of its employment offer as presented, Cheek’s decision to resign “prematurely” from his former employer should have no bearing on the outcome of this case. Shillman, 249 Md. at 693, 241 A.2d at 578.\nII.\nThis Court dealt with the severability of an arbitration agreement from the contract of which it is a part in Holmes v. Coverall North America, Inc., 336 Md. 534, 649 A.2d 365 (1994). The Holmes Court adopted the view “that an arbitration clause is a severable contract which is enforceable independently from the contract as a whole.” Id. at 545, 649 A.2d at 370. The Court went on to state “that the mutual promises to arbitrate constitute a separate agreement contained in the contract.” Id. at 547, 649 A.2d at 371. See also Allstate v. Stinebaugh, 374 Md. 631, 644, 824 A.2d 87, 95 (2003).\nThe U.S. Court of Appeals for the Fourth Circuit held to the same effect in Johnson v. Circuit City Stores, Inc., 148 F.3d 373 (4th Cir.1998). That case involved an arbitration agreement that applied to all job applicants at a retail store in Maryland. The Fourth Circuit concluded that the parties’ mutual agreement to arbitrate constituted sufficient independent consideration to support the agreement to arbitrate, standing on its own. In so doing, the Johnson court cited to O’Neil v. Hilton Head Hosp., 115 F.3d 272 (4th Cir.1997), for the proposition that “an arbitration agreement was supported by adequate consideration where both parties agreed to be bound by the arbitration process.” Johnson, 148 F.3d at 378. O’Neil, interpreting South Carolina law, involved the resort to arbitration in an employee discharge suit. The O’Neil court stated:\nO’Neil first argues the contract to arbitrate was not supported by adequate consideration because the agreement *166was not binding on the hospital. O’Neil’s argument fails because its premise is mistaken.\nHere the agreement to be bound by arbitration was a mutual one. The contract to arbitrate was proffered by the employer. Such a proffer clearly implies that both the employer and the employee would be bound by the arbitration process. If an employer asks an employee to submit to binding arbitration, it cannot then turn around and slip out of the arbitration process itself.\nO’Neil, 115 F.3d at 274. The O’Neil court reiterated that “a mutual promise- to arbitrate constitutes sufficient consideration for this arbitration agreement.” O’Neil, 115 F.3d at 275 (citing Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 468 S.E.2d 292, 300 (1996)).\nIII.\nAlthough it has been held that arbitration agreements may stand apart from the contracts of which they may be a part, if supported by independent consideration, they nonetheless also may be supported by the consideration that supports the contract as a whole. “Whether a number of promises constitute one contract (and are non-separable) or more than one is to be determined by inquiring “whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever, if any promise or set of promises were struck out.’ ” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 424, 87 S.Ct. 1801, 1816, 18 L.Ed.2d 1270 (1967) (quoting U.S. v. Bethlehem Steel Corp., 315 U.S. 289, 298, 62 S.Ct. 581, 587, 86 L.Ed. 855 (1942)). “Contracts ordinarily require consideration to be enforceable.” Harford County v. Town of Bel Air, 348 Md. 363, 382, 704 A.2d 421, 430 (1998). “A benefit to the promisor or a detriment to the promisee is sufficient valuable consideration to support a contract.” Vogelhut v. Kandel, 308 Md. 183, 191, 517 A.2d 1092 (1986) (quoting Shimp v. Shimp, 287 Md. 372, 385, 412 A.2d 1228, 1234 (1980)). See also Prince George’s County v. Brown, 348 Md. 708, 715, 705 A.2d 1158, 1161 (1998). “The Courts of Law, in the absence of fraud, will not inquire into *167the adequacy of the value extracted for the promise so long as it has some value.” Blumenthal v. Heron, 261 Md. 234, 242, 274 A.2d 636, 640 (1971).\nIn the present case, there is no indication that either Cheek or United intended severability of the arbitration agreement from the employment contract as a whole. The parties do not dispute that the employment contract as a whole is valid, enforceable, and supported by consideration.1,2 As such, the arbitration provision within the contract is supported by the consideration for the contract and is enforceable.\nThe majority opinion in the present case commendably devotes attention to a review of cases from those of our sister jurisdictions that have addressed the consideration issue. See Maj. op. at 155-61. It then, however, places Maryland in the company of the decidedly minority view (“we join at least two other state courts” See Maj. op. at 155) that consideration from the overarching contract should not be looked to as consideration to support an arbitration agreement within the contract. The justification for this position, in the minds of the majority, is that to do so would require the court to *168address the sufficiency of the consideration of the entire contract, a question, if raised, normally reserved for the arbiter. Maj. op. at 161. I fail to see this as a real problem. Courts are not required to inquire into the adequacy of consideration where there is at least some indicia of its presence. See Blumenthal, 261 Md. at 242, 274 A.2d at 640. Further, the majority of our sister jurisdictions have decided that consideration from the overall contract may be used to support an arbitration clause, recognizing that doing so will result in sending more cases to the arbiter.\nI disagree further with the majority’s rejection of the persuasive authority from the majority of courts that have addressed this issue. Maj. op. at 158-61. In Avid Engineering v. Orlando Marketplace, Ltd., 809 So.2d 1 (Fla.App.2002), the written contract in question was “to provide engineering services for an expansion of retail space.” The court there held that “because there was sufficient consideration to support the entire contract, the [embedded] arbitration provision was not void for lack of mutuality of obligation.” Avid, 809 So.2d at 4. The Court of Appeals of New York also has held that “if there is consideration for the entire agreement that is sufficient; the consideration supports the arbitration option, as it does every other obligation in the agreement.” Sablosky v. Gordon Co., Inc., 73 N.Y.2d 133, 538 N.Y.S.2d 513, 516, 535 N.E.2d 643, 646 (1989) (involving the arbitration of commissions claimed to be due to real estate salespeople).\nFederal courts, usually in the context of analyzing state laws, have analyzed and decided the issue in much the same way. The Third Circuit recently dealt with the issue of consideration for an arbitration agreement embedded in a contract in the case of Blair v. Scott Specialty Gases, 283 F.3d 595 (2002). In Blair, an employee brought a sexual harassment suit against her former employer. The court, ordering arbitration pursuant to a provision in the employment agreement, stated that “when both parties have agreed to be bound by arbitration, adequate consideration exists and the arbitration agreement should be enforced.” Blair, 283 F.3d at 603. The Blair court went on to state that “a contract need not *169have mutuality of obligation as long as the contract is supported by consideration.” Blair, 283 F.3d at 604 (referencing “decisions that have found that continued employment may serve as consideration”, such as Hightower v. GMRI, Inc., 272 F.3d 239, 243 (4th Cir.2001); Venuto v. Ins. Co. of N. Am., No. 98-96, 1998 WL 414723, at *5, 1998 U.S. Dist. Lexis 11050, at *14-*15 (E.D.Pa. July 22, 1998) (holding that an at-will employee’s continued employment provides adequate consideration for an arbitration provision)). In the context of an alleged breach of an employment contract, the Sixth Circuit found that “Prima Paint [supra] does not require separate consideration for an arbitration provision contained within a valid contract.” Wilson Electrical Contractors, Inc. v. Min-notte Contracting Corp., 878 F.2d 167, 169 (6th Cir.1989). In a case in which a franchisee sued the franchisor for fraud, the Eighth Circuit, interpreting Oklahoma law, stated that it believed that “mutuality of obligation is not required for arbitration clauses so long as the contract as a whole is supported by consideration.” Barker v. Golf U.S.A., 154 F.3d 788, 792 (8th Cir.1998). The Barker court relied on the Restatement (Second) of Contracts § 79 (1979), for the proposition that “if the requirement of consideration is met, there is no additional requirement of ... ‘mutuality of obligation’.” (Internal citation omitted in original.) Id. The Second Circuit addressed the issue of consideration for an overall contract “pouring over” to an arbitration clause in Doctor’s Associates v. Distajo, 66 F.3d 438 (2d Cir.1995). In that case, the court, citing Sablosky, supra, stated that “the Connecticut courts would conclude that ‘where the agreement to arbitrate is integrated into a larger unitary contract, the consideration for the contract as a whole covers the arbitration clause as well’.” Distajo, 66 F.3d at 453. The Distajo court observed that “most courts facing this issue have arrived at the same conclusion [that the consideration supporting the overall contract can also support an arbitration provision, standing alone].” Distajo, 66 F.3d at 452 (citing to Wilson, supra; Becker Autoradio U.S.A. v. Becker Autoradiowerk GmbH, 585 F.2d 39, 47 (3rd Cir.1978); W.L. Jorden & Co. v. Blythe *170Indus., 702 F.Supp. 282, 284 (N.D.Ga.1988); Willis Flooring, Inc. v. Howard S. Lease Constr. Co. & Assocs., 656 P.2d 1184, 1185 (Alaska 1983); LaBonte Precision, Inc. v. LPI Indus. Corp., 507 So.2d 1202, 1203 (Fla.Dist.Ct.App.1987); Kalman Floor Co. v. Jos. L. Muscarelle, Inc., 196 N.J.Super. 16, 481 A.2d 553 (1984), aff'd for reasons stated below, 98 N.J. 266, 486 A.2d 334 (1985)).\nTwo cases particularly representing the national majority view, to which the majority opinion here devotes substantial attention in an effort to explain them away (Maj. op. at 158-61), are, in many ways, the most apposite to the present case. Both cases involve the Appellee here, United, or a related entity, as a party and interpret and apply its apparently uniform arbitration policy. More specifically, both cases involve the clause within United’s arbitration policy whereby it “reserves the right to alter, amend, modify, or revoke the Policy at its sole and absolute discretion with or without notice.” See Maj. op. at 142-43.\nKelly v. UHC Management Company, Inc., 967 F.Supp. 1240 (N.D.Ala.1997), involved an employment discrimination claim for which United sought implementation of its then-new arbitration policy. After reviewing the same contract language as is at issue in the present case, the Kelly court stated that the only showing necessary for enforcement is that the arbitration “agreements are supported by consideration, not ‘mutuality of obligation’.” Kelly, 967 F.Supp. at 1260. In McNaughton v. United Healthcare Services, 728 So.2d 592 (Ala.1998), an employee sued United for fraud and intentional interference with business relations relating to an interdepartmental transfer. United sought arbitration. The McNaughton court, applying Alabama law, stated that “United’s providing at-will employment to [appellant] constituted sufficient consideration in exchange for [appellant’s] agreement to arbitrate [his] employment disputes under United’s arbitration policy.” McNaughton, 728 So.2d at 595. The court reiterated that it had “consistently held that an employer’s providing continued at-will employment is sufficient consideration to *171make an employee’s promise to his employer binding.” 728 So.2d at 596.\nThe reasoning of the majority in the present case notwithstanding, I am persuaded that Maryland would be better advised to follow the national majority view permitting consideration for the contract to suffice as consideration for the embedded arbitration agreement.\nIY.\nA.\nWe generally should strive, whenever possible, to find arbitration agreements between private parties enforceable.3 “The courts \"will prefer a construction which will make the contract effective rather than one which will make it illusory or unenforceable.” Kelley Constr. Co. v. Washington Suburban Sanitary Comm’n, 247 Md. 241, 247, 230 A.2d 672, 676 (1967). United’s Arbitration Policy, as explicated in the four page summary given Cheek, contains a provision under which the employer has “the right to alter, amend, modify, or revoke the Policy at its sole and absolute discretion at any time with or without notice.” (Maj. op. at 142-43). This Court repeatedly has held generally that the reservation of the power to alter, amend, or terminate an agreement does not invalidate the agreement. “The conclusion should be drawn that an *172unlimited option to cancel does not invalidate a contract where it can be shown that it does not wholly defeat consideration.” Stamatiades v. Merit Music Service, 210 Md. 597, 613, 124 A.2d 829, 837 (1956), citing Tyler v. Capitol Indemnity Ins. Co., 206 Md. 129, 110 A.2d 528, 529 (1955). “It is only where the option reserved to the promisor is unlimited that his promise becomes illusory and incapable of forming part of a legal obligation.” Id. at 614, 124 A.2d at 838. See Yarnick v. King, 259 Md. 241, 249, 269 A.2d 607, 611 (1970) (stating that “a power to terminate in case performance is not satisfactory may be expressly reserved without invalidating the contract”); Prince George’s County v. Brown, 348 Md. 708, 715, 705 A.2d 1158, 1161 (1998) (stating that “a conditional promise may be consideration, and when a man acts in consideration of a conditional promise, if he gets the promise he gets all that he is entitled to by his act, and if, as events turn out, the condition is not satisfied, and the promise calls for no performance, there is no failure of consideration.”).\nUnited’s reserved power to alter or terminate the arbitration agreement, however, was not without limit. That power should be read reasonably as exercisable only with regard to subsequent arbitrable conduct or acts, but not as to those acts which occurred prior to any asserted alteration or termination. Thus read, the Arbitration Policy was not illusory as United was bound to the original provisions of the arbitration agreement for all arbitrable incidents occurring prior to any purported change or revocation it might make with regard to the Policy.\nB.\nThe majority here focuses on an asserted lack of mutuality of obligation as a means to declare illusory United’s promise to arbitrate. Such focus is short-sighted. We addressed the general problems associated with illusory contracts, versus those with a failure of consideration, in Acme Markets, Inc. v. Dawson Enters., Inc., 253 Md. 76, 251 A.2d 839 (1969). In Acme, we stated that “when a contract is entered into, a power of termination may be expressly reserved to either *173party or to both of them.” Acme, 253 Md. at 86, 251 A.2d at 845. We went on to state that “the reservation of such a power to terminate does not invalidate the contract or render the consideration for a promise insufficient, so long as the party reserving the power to terminate is irrevocably bound for any appreciable period of time or has materially changed any of his legal relations or otherwise rendered some performance capable of operating as a consideration.” Id. at 87, 251 A.2d at 846 (quoting 6 A. Corbin, Contracts § 1266 (1962)). We continued that “a contract is not made invalid for lack of mutuality by the fact that one of the parties and not the other is given the option of terminating the contract on some condition.” Id. (quoting 1A A. Corbin, Contracts § 265 (1963)). “Although an option to terminate may be unilateral and appear to lack mutuality, it has been held that if the provisions are quite clear as to one party’s option a court cannot be expected to relieve the other party of the consequences thereof because the bargain as to him was improvident, rash, foolish or oppressive”. Id. at 88-89, 251 A.2d at 847. When melded with the objective theory of contract interpretation, the result is identical to that discussed by this Court over fifty years ago, “where the right to terminate a contract is reserved in the instrument itself, in the absence of fraud, undue influence, or mistake, such reservation is valid and will be enforced, if not contrary to equity and good conscience.” Id. at 88, 251 A.2d at 847 (quoting Kahn v. Janowski, 191 Md. 279, 285-86, 60 A.2d 519, 521 (1948)).\nAs noted earlier, the arbitration agreement between United and Cheek is not illusory because the terms of the agreement, as construed here, may not be revoked or modified by United as to a particular arbitrable dispute after it has arisen. Stated otherwise, United is bound to the terms of the arbitration agreement as it exists at the time an arbitrable incident arises. It could not revoke or change the terms regarding prior acts triggering the then-prevailing arbitration provisions because “no party has a right to rescind or modify a contract merely because he finds, in the light of changed conditions, that he has made a bad deal.” Harford County, 348 Md. at 384, 704 *174A.2d at 431. I note, however, that there is not the slightest hint in this record that United proposed any such change in, or revocation of, the Arbitration Policy incorporated in its contract with Cheek.\ny.\nUnited gave Cheek an opportunity to review and/or inform himself about the Arbitration Policy before he accepted the employment offer. Cheek freely entered into the employment contract without further inquiry into any “details” of that Policy. Cheek agreed to the arbitration agreement almost seven months before the subject arbitrable dispute arose. During that time, United made no attempt to alter, amend, modify, or revoke its Arbitration Policy. United was as bound to the Arbitration Agreement as was Cheek for the dispute giving rise to the present litigation. As such, United’s promise was not illusory, and there was neither lack or failure of consideration or lack of mutuality of obligation. The contract contained a valid arbitration agreement, which was supported by consideration. As a result, it is my view that the parties, as ordered by the Circuit Court, should submit this dispute to arbitration.\n\n. No reasonable argument could be mounted on these facts of a failure of consideration in the employment contract. United promised to pay Cheek an initial annualized base salary of $75,000, an initial annual minimum sales incentive totaling $90,000, and a sign-on bonus of $25,000, together with other benefits and “perks”. In his acceptance of the offer, Cheek described it as \"generous” and its terms “amenable” to him. Thus, the majority opinion’s concern that a court would have to evaluate the sufficiency of consideration for the overall contract, in resolving the issue of enforcement of the arbitration agreement, is not a factor in this case. See Maj. op. at 153-54.\n\n\n. As a supplemental note, Cheek, as he sought to do here, should not be permitted to both sue for enforcement of the employment contract as a whole, while concurrently trying to enjoin enforcement of the arbitration clause contained therein. \"No party suing on a contract should be able to enforce certain contract provisions while simultaneously attempting to avoid the terms of an arbitration provision contained therein.” U.S. v. Bankers Ins. Co., 245 F.3d 315, 323 (4th Cir., 2001) (citing to Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 418 (4th Cir., 2000), holding that it would “both disregard equity and contravene [the FAA]” to allow a plaintiff \"to claim the benefit of the contract and simultaneously avoid its burdens.”)\n\n\n. Section 3-206(a) of the Courts and Judicial Proceedings Article of the Maryland Code (2002 Repl. Vol., 2003 Supp.), dealing with the validity of arbitration agreements, states that written arbitration agreements are \"valid and enforceable, and [are] irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract.” Md.Code Ann., Cts. & Jud. Proc. § 3-206(a) (2002). Section 3-206(b), however, provides that § 3-206(a) “does not apply to an arbitration agreement between employers and employees ... unless it is expressly provided in the agreement that this subtitle shall apply.” In Wilson v. McGrow, Pridgeon & Co., 298 Md. 66, 467 A.2d 1025 (1983), we stated that \"the reference in § 3-206(b) to 'employers and employees’ should be read as not including the arbitration agreement between employer and a single employee” and that the Court’s \"reading necessarily excludes from § 3-206(b) an agreement between an employer and a single employee to arbitrate future disputes.” Wilson, 298 Md. at 78, 467 A.2d at 1031.\n\n","per_curiam":false,"type":"040dissent"},{"ocr":false,"opinion_id":2341830,"opinion_text":"\n835 A.2d 656 (2003)\n378 Md. 139\nRonnie E. CHEEK\nv.\nUNITED HEALTHCARE OF the MID-ATLANTIC, INC.\nNo. 141, Sept. Term, 2002.\nCourt of Appeals of Maryland.\nNovember 13, 2003.\n*657 Barton D. Moorstein (Blank & Moorstein, L.L.P., on brief), Rockville, for Appellant.\nKelly S. Jennings (Susan C. Benner of Seyfarth Shaw, on brief), Washington, DC, for Appellees.\nArgued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.\nBATTAGLIA, Judge.\nThe issue in this case is whether a valid and enforceable arbitration agreement exists between an employer and an employee when the employer has reserved the right to, within its sole discretion, alter, amend, modify, or revoke the arbitration agreement at any time and without notice, even though it has not exercised that option in the present case.\nAppellant, Ronnie E. Cheek, filed suit in the Circuit Court for Baltimore City for breach of contract and related causes of action after his employer, appellee United Healthcare of the Mid-Atlantic, Inc.,[1] terminated his employment. United responded with a motion to compel arbitration, which the Circuit Court granted. Cheek appealed, and we granted certiorari prior to any proceedings in the Court of Special Appeals. For the reasons discussed herein, we conclude that the arbitration agreement between Cheek and United is unenforceable for lack of consideration because United's promise to arbitrate is illusory and because United's employment of Cheek cannot serve as consideration for the arbitration agreement. Consequently, we shall reverse the order of the Circuit Court compelling arbitration and remand this case for further proceedings.\nI. BACKGROUND\nOn November 17, 2000, United orally offered Cheek a position of employment as a senior sales executive, which was confirmed in writing the same day. The two-page letter set forth various conditions of United's offer of employment, including that Cheek accept United's \"Employment Arbitration Policy.\" Specifically, the letter stated that enclosed with it were \"summaries of the United Group Internal Dispute and Employment Arbitration Policy which *658 are conditions of your employment.\"[2]\nIn a November 28, 2000, letter to United, Cheek wrote that he was \"delighted to accept United Healthcare's generous offer\" and that \"[a]ll of the terms in your employment letter are amenable to me.\" He also indicated that he had submitted his resignation that morning to his current employer, Blue Cross/Blue Shield of the District of Columbia.\nOn January 2, 2001, during Cheek's first day of employment with United, he received a copy of United's Employee Handbook, which contained summaries of United's Internal Dispute Resolution Policy and Employment Arbitration Policy (hereinafter, \"Arbitration Policy\" or \"Policy\").[3] The summary of the Arbitration Policy described the scope of the Policy, the rules applicable in arbitration, how an employee initiates arbitration, and the types of relief available in arbitration. Specifically, the summary of the Policy stated that United \"believes that the resolution of disagreements\" between employees and United \"are best accomplished by an internal dispute review (IDR) and, where that fails, by arbitration based on the rules of the American Arbitration Association.\" Accordingly, United declared in the summary of the Policy that arbitration \"is the final, exclusive and required forum for the resolution of all employment related disputes which are based on a legal claim\" and that \"any party to [such a dispute] may initiate the arbitration process.\" Particularly relevant to the disposition of this appeal, the summary of the Arbitration Policy also provided:\nUnited HealthCare reserves the right to alter, amend, modify, or revoke the Policy at its sole and absolute discretion at any time with or without notice. The senior executive of Human Resources has the sole authority to alter, amend, modify, or revoke the Policy.\nOn January 2, 2001, Cheek signed an \"Acknowledgment Form for the Code of Conduct and Employment Handbook.\" In that Form, Cheek acknowledged that he had \"specifically received and reviewed,\" among other things, an \"Internal Dispute Resolution/Employment Arbitration Policy.\" The Form that Cheek signed also stated:\nI understand that UnitedHealth Group Employment Arbitration Policy is a binding contract between UnitedHealth Group and me to resolve all employment-related disputes which are based on a legal claim through final and binding arbitration. I agree to submit all employment-related disputes based on legal claim[sic] to arbitration under UnitedHealth Group's policy.\nWithin seven months, on July 27, 2001, United informed Cheek that United was eliminating his position as of August 10, 2001, when, in fact, his employment was terminated. In response, on December 31, *659 2001, Cheek filed a four-count complaint against United in the Circuit Court for Baltimore City. In the complaint, Cheek sought damages for breach of contract, negligent misrepresentation, and violations of Maryland Code, § 3-501 et. seq. of the Labor and Employment Article.[4] Cheek also claimed under the doctrine of promissory estoppel that United should have been precluded from denying the existence of a valid employment agreement.\nOn February 6, 2002, United filed a \"Motion to Dismiss and/or Compel Arbitration and Stay Lawsuit\" with the Circuit Court. On May 15, 2002, after hearing from the parties, the Circuit Court entered an order dismissing Cheek's complaint and ordering him to submit his claims to arbitration. Thereafter, Cheek noted an appeal to the Court of Special Appeals. We issued a writ of certiorari, Cheek v. United Healthcare, 374 Md. 81, 821 A.2d 369 (2003), prior to any proceedings in the Court of Special Appeals.\nCheek presents the following questions for review, which we have restructured:\n(I) Whether the arbitration agreement between Cheek and United is \"unenforceable and void as against public policy\" because:\n(A) The rules of the arbitration can be altered, revised, or amended at the sole discretion of United;\n(B) The arbitration agreement does not allow the arbitrator to conclude that an employee is anything other than an \"employee at will;\"\n(C) The arbitration agreement was \"foisted\" on Cheek after an employment contract was formed.\n(II) Whether United's \"sole and absolute discretion\" to \"alter, amend, modify, or revoke\" its arbitration agreement with Cheek at any time renders its promise to arbitrate illusory and the arbitration agreement, therefore, unenforceable.\nFor the reasons discussed herein, we conclude that the arbitration agreement in the present case is unenforceable for lack of consideration because United's promise to arbitrate is illusory and United's employment of Cheek did not act as consideration for the arbitration agreement. Consequently, we need not address Cheek's remaining questions.\nII. DISCUSSION\nCheek contends that the Circuit Court erred in compelling arbitration and advances several arguments in support of that contention. Cheek claims that the Arbitration Policy \"lacks mutuality\" and is also \"void as against public policy\" because it states that United has \"the right to alter, amend, modify, or revoke the Policy at its sole and absolute discretion at any time with or without notice.\" Additionally, Cheek argues that the Arbitration Policy \"lacks consideration.\" In support of that claim, Cheek asserts that he agreed to the Arbitration Policy after he had already entered into a binding oral contract of employment with United. Consequently, Cheek asserts that he \"received nothing that he had not already [received].\" Cheek further claims that the Arbitration Policy is one of \"adhesion\" and that he was acting under \"duress\" when he signed it because he was in an inferior bargaining position, because the arbitration agreement precludes an arbitrator from finding anything other than at-will employment, *660 and because the agreement was offered to him on a \"take it or leave it\" basis after he had already given up his position at Blue Cross/Blue Shield of the District of Columbia. Finally, Cheek contends that the Arbitration Policy is unenforceable because United's promise to arbitrate is \"illusory.\" In support of that contention, Cheek relies on Floss v. Ryan's Family Steak Houses, Inc., 211 F.3d 306 (6th Cir.2000), in which the United States Court of Appeals for the Sixth Circuit held, according to Cheek, that a \"substantially similar arbitration scheme was [illusory and therefore] unenforceable.\"\nUnited, on the other hand, contends that it and Cheek \"entered into a valid and enforceable arbitration agreement.\" Contrary to Cheek's assertion, United claims that the Arbitration Policy is supported by \"mutuality of obligation\" because United \"promised to provide Cheek employment for, inter alia, Cheek's promise to abide by the terms of the [arbitration agreement],\" and because it promised to submit to arbitration \"all employment related disputes which are based on a legal claim.\" That United reserved the right to modify the Arbitration Policy, it asserts, \"is of no consequence to the issue of mutuality.\" United also claims that the Arbitration Policy was supported by \"adequate consideration.\" In support of that claim, United rejects Cheek's assertion that the Arbitration Policy was entered into after his employment commenced, and further argues that the \"mutual promise to arbitrate\" and United's \"continued employment\" of Cheek each served as adequate consideration to support the Arbitration Policy. Additionally, United argues that the Arbitration Policy is not a contract of adhesion because it is a \"simple\" four-page document, because there is no evidence of any \"great disparity in bargaining power between the parties,\" and because the Arbitration Policy does not preclude an arbitrator from finding an employment contract. Finally, United asserts that a promise is not illusory \"simply because it permits one party to unilaterally modify [an] agreement without notice,\" and that its right to modify the Arbitration Policy, therefore, does not \"destroy [its] promise to arbitrate Cheek's dispute.\"\nWe have described arbitration as \"the process whereby parties voluntarily agree to substitute a private tribunal for the public tribunal otherwise available to them.\" Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 103, 468 A.2d 91, 95 (1983); see also Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 448, 450 A.2d 1304, 1306 (1982). The Maryland Uniform Arbitration Act (hereinafter, \"Arbitration Act\"), found in Maryland Code, §§ 3-201 through 3-234 of the Courts and Judicial Proceedings Article (1974, 2002 Repl. Vol.), \"expresses the legislative policy favoring enforcement of agreements to arbitrate.\" Allstate Ins. Co. v. Stinebaugh, 374 Md. 631, 641, 824 A.2d 87, 93(203). See also Holmes v. Coverall North America, Inc., 336 Md. 534, 546, 649 A.2d 365, 371 (1994) (observing that the Arbitration Act embodies \"the legislative intent to favor arbitration\"); Crown Oil & Wax Co. of Delaware, Inc. v. Glen Constr. Co. of Virginia, Inc., 320 Md. 546, 558, 578 A.2d 1184, 1189 (1990)(\"Maryland courts have consistently stated that the [Arbitration Act] embodies a legislative policy favoring the enforcement of executory agreements to arbitrate.\"); Gold Coast Mall, Inc., 298 Md. at 103, 468 A.2d at 95; Charles J. Frank, Inc., 294 Md. at 448, 450 A.2d at 1306.\nSection 3-206(a) of the Arbitration Act provides that:\nA written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit *661 to arbitration any controversy arising between the parties in the future is valid and enforceable, and is irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract.\nSection 3-207 allows parties to petition a court to compel arbitration and states:\n(a) Refusal to arbitrate.If a party to an arbitration agreement described in § 3-202 refuses to arbitrate, the other party may file a petition with a court to order arbitration.\n(b) Denial of existence of arbitration agreement.If the opposing party denies existence of an arbitration agreement, the court shall proceed expeditiously to determine if the agreement exists.\n(c) Determination by court.If the court determines that the agreement exists, it shall order arbitration. Otherwise it shall deny the petition.\nThe determination of whether there is an agreement to arbitrate, of course, depends on contract principles since arbitration is a matter of contract. As such, \"a party cannot be required to submit any dispute to arbitration that it has not agreed to submit.\" Curtis G. Testerman Co. v. Buck, 340 Md. 569, 579, 667 A.2d 649, 654 (1995)(recognizing that \"[a]rbitration is `consensual; a creature of contract' \" and that \"`[i]n the absence of an express arbitration agreement, no party may be compelled to submit to arbitration in contravention of its right to legal process' \") (quoting Thomas J. Stipanowich, Arbitration and the Multiparty Dispute: The Search for Workable Solutions, 72 Iowa L.Rev. 473, 476 (1987) (citations omitted)). See also Messersmith, Inc. v. Barclay Townhouse Associates, 313 Md. 652, 658, 547 A.2d 1048, 1051 (1988)(recognizing that \"`a valid arbitration agreement must exist for arbitration to be binding'\") (quoting Arrow Overall Supply Co. v. Peloquin Enterprises, 414 Mich. 95, 97, 323 N.W.2d 1, 2 (1982)).\nTo be binding and enforceable, contracts ordinarily require consideration. Harford County v. Town of Bel Air, 348 Md. 363, 381-82, 704 A.2d 421, 430 (1998)(citing Beall v. Beall, 291 Md. 224, 229, 434 A.2d 1015, 1018 (1981)); Broaddus v. First Nat. Bank, 161 Md. 116, 121, 155 A. 309, 311 (1931). See also Chernick v. Chernick, 327 Md. 470, 479, 610 A.2d 770, 774 (1992)(binding contracts \"must be supported by consideration\"); Peer v. First Federal Savings and Loan Assoc. of Cumberland, 273 Md. 610, 614, 331 A.2d 299, 301 (1975)(a binding contract \"must be supported by sufficient consideration\"). In Maryland, consideration may be established by showing \"`a benefit to the promisor or a detriment to the promisee.'\" Harford County, 348 Md. at 382, 704 A.2d at 430 (quoting Vogelhut v. Kandel, 308 Md. 183, 191, 517 A.2d 1092, 1096 (1986)). In particular, we have recognized that the \"[f]orebearance to exercise a right or pursue a claim,\" can \"constitute[ ] sufficient consideration to support [an] ... agreement.\" Chernick, 327 Md. at 480, 610 A.2d at 774 (citing Erie Ins. Exch. v. Calvert Fire Ins., 253 Md. 385, 389, 252 A.2d 840, 842 (1969)); Beall, 291 Md. at 230, 434 A.2d at 1019 (\"forbearance to exercise a legal right is sufficient consideration to support a promise.\").\nA promise becomes consideration for another promise only when it constitutes a binding obligation. Without a binding obligation, sufficient consideration does not exist to support a legally enforceable agreement. See Tyler v. Capitol Indemnity Ins. Co., 206 Md. 129, 134, 110 A.2d 528, 530 (1955)(recognizing that \"`If [an] option goes so far as to render illusory the promise of the party given the option, there is indeed no sufficient consideration, *662 and therefore no contract ....'\")(quoting 1 Williston on Contracts, Sec. 141 (Rev. Ed.)). See also Restatement of Contracts 2d § 77 cmt. a (1981)(\"Where the apparent assurance of performance is illusory, it is not consideration for a return promise.\"); 2 Arthur L. Corbin, Corbin on Contracts § 5.28 (2003)(explaining that \"an illusory promise is neither enforceable against the one making it, nor is it operative as a consideration for a return promise,\" and that \"if there is no other consideration for a return promise, the result is that no contract is created.\").\nAn \"illusory promise\" appears to be a promise, but it does not actually bind or obligate the promisor to anything. An illusory promise is composed of \"words in a promissory form that promise nothing.\" Corbin on Contracts § 5.28 (2003). \"They do not purport to put any limitation on the freedom of the alleged promisor. If A makes an illusory promise, A's words leave A's future action subject to A's own future whim, just as it would have been had A said nothing at all.\" Id. Similarly, the Restatement of Contracts explains that \"[w]ords of promise which by their terms make performance entirely optional with the `promisor' whatever may happen, or whatever course of conduct in other respects he may pursue, do not constitute a promise.\" Restatement of Contracts 2d § 2 cmt. e. Likewise, \"the promise is too indefinite for legal enforcement is the promise where the promisor retains an unlimited right to decide later the nature or extent of his performance. The unlimited choice in effect destroys the promise and makes it merely illusory.\" 1 Samuel Williston, Contracts, § 4:24 (4th Ed. 1990).\nUnited initiated the arbitration with Cheek; it has not revoked nor in any way altered the Arbitration Policy with Cheek at any time. Nonetheless, the fact that \"United HealthCare reserves the right to alter, amend, modify, or revoke the [Arbitration] Policy at its sole and absolute discretion at any time with or without notice\" creates no real promise, and therefore, insufficient consideration to support an enforceable agreement to arbitrate. Indeed, the plain and unambiguous language of the clause appears to allow United to revoke the Employment Arbitration Policy even after arbitration is invoked, and even after a decision is rendered, because United can \"revoke\" the Policy \"at any time.\"[5] Thus, we conclude that United's \"promise\" to arbitrate employment disputes is entirely illusory, and therefore, no real promise at all.\nIn so concluding, we align ourselves with courts from other jurisdictions that have found similar language to be illusory. In Floss v. Ryan's Family Steak Houses, Inc., 211 F.3d 306 (6th Cir.2000), the United States Court of Appeals for the Sixth Circuit was called upon to interpret an arbitration agreement between the appellants and a third-party arbitration service provider, Employment Dispute Services, Inc. (hereinafter, \"EDSI\"), which the appellants were required to enter into in order to be considered for employment by Ryan's Family Steak Houses. Id. at 309. In the agreement, EDSI agreed to provide a forum for arbitration, but reserved the *663 right to alter the applicable rules and procedures of arbitration without any notification to or consent from the appellants. Id. at 310.\nThe Sixth Circuit concluded that the agreement was unenforceable because there was no \"mutuality of obligation\" and therefore, no consideration. Id. at 316. In so concluding, the Court reasoned that EDSI's promise to provide an arbitration forum was \"illusory\" because EDSI had \"reserved the right to alter the applicable rules and procedures without any obligation to notify, much less receive consent from\" the appellants. Id. at 315-16. The Court explained that \"an illusory promise arises when a promisor retains the right to decide whether or not to perform the promised act\" and that \"[a] promise is also illusory when its indefinite nature defies legal enforcement.\" Id. at 315. See also Penn v. Ryan's Family Steak Houses, Inc., 269 F.3d 753, 759, 761 (7th Cir.2001) (construing a similar agreement where EDSI had sole, unilateral right to amend arbitration rules; holding that EDSI's promise was illusory, and that the arbitration agreement, therefore, was unenforceable).\nSimilarly, in the case before us, United has the right to \"alter, amend, modify, or revoke the [Employment Arbitration] Policy at its sole and absolute discretion at any time with or without notice\" and without consent. United, however, claims that Floss is distinguishable because the Employee Arbitration Policy at issue in the present case, unlike the agreement in Floss, does not allow United to modify the rules of arbitration, which are based on those of the American Arbitration Association. Additionally, United highlights criticism of the Floss decision incorporated in Corbin on Contracts:\nIf EDSI modified the rules and procedures of its arbitral tribunals in such a way that the resulting rules and procedures continued to resemble something we might recognize as `arbitration,' then EDSI's modification fell within the promise to arbitrate, and EDSI would still be doing what it promised ... it would do: arbitrate their disputes with Ryan's.\nCorbin on Contracts § 5.28 (2003 Supp). Even Corbin on Contracts, however, recognizes that \"[t]here might be disputes at the margins,\" in which a finding of an illusory promise would be appropriate. Id. Certainly, the ability to completely revoke an arbitration policy unilaterally, at any time, even after invocation and decision, and without notice to or consent from the employee, is at that margin.\nThe United States Court of Appeals for the Tenth Circuit also has found language similar to the language at hand to be illusory. In Dumais v. American Golf Corp., 299 F.3d 1216 (2002), Dumais, the employee, signed a \"New Co-Worker Authorization & Acknowledgment Form\" that bound her to the provisions of American Golf Corporation's employee handbook, which included an arbitration provision. Id. at 1217. A provision of the handbook stated that American Golf \"reserves the right to at any time change, delete, modify, or add to any of the provisions contained in this handbook at its sole discretion\" with the exception of the arbitration provision. Id. Another provision stated that American Golf had the right to amend, supplement, or revise everything in the handbook, and this provision did not exclude the arbitration provision. Id.\nThe Tenth Circuit affirmed the judgment of the Federal District Court for the District of New Mexico denying American Golf's motion to compel arbitration. Id. at 1220. The Court reasoned that the conflicting sections of the employee handbook created an ambiguity that should be construed *664 against American Golf. Id. at 1219. Accordingly, the Court found that American Golf had the ability to \"change, delete, modify, or add\" to the arbitration provision at any time, which rendered \"the alleged agreement between American Golf and [Dumais] to arbitrate their employment disputes illusory.\" Id. at 1220. See also Phox, 230 F.Supp.2d at 1282 (holding employer's promise to arbitrate \"illusory\" because employer reserved \"the right to modify or cancel the provisions\" of an employee handbook, including an arbitration clause, \"at its sole discretion\"); Gourley v. Yellow Transportation, LLC, 178 F.Supp.2d 1196, 1202 (D.Colo.2001)(determining that an arbitration agreement between employer and employees was \"illusory\" because employer withheld \"the power to interpret, modify, rescind, or supplement its terms unilaterally\").\nUnited, however, claims that there is another source of consideration to support the Arbitration Policy. According to United, its \"employment or continued employment of Cheek constituted sufficient consideration for the agreement to arbitrate.\" United asserts that, by providing Cheek with a job, it has given sufficient consideration for Cheek's promise to arbitrate employment disputes, so that United's promise is not illusory. To agree with United would place this Court in the untenable position of having to go beyond the confines of the arbitration agreement itself and into an analysis of the validity of the larger contract, an inquiry which we cannot make. Moreover, we always would have to find that consideration exists to support an arbitration agreement in situations in which performance of the contract has occurred. We explain.\nMaryland's Arbitration Act \"expresses the legislative policy favoring enforcement of agreements to arbitrate.\" Allstate Ins. Co., 374 Md. at 641, 824 A.2d at 93. The Arbitration Act expresses this policy by \"strictly confin[ing] the function of the court in suits to compel arbitration to the resolution of a single issue-is there an agreement to arbitrate the subject matter of a particular dispute.\" Gold Coast Mall, 298 Md. at 103-04, 468 A.2d at 95; Holmes, 336 Md. at 546, 649 A.2d at 371 (1994) (\"The narrow scope of the court's involvement [in a petition to compel, or stay, arbitration] follows from our recognition of the legislative intent to favor arbitration.\"); Crown Oil & Wax Co., 320 Md. at 557-58, 578 A.2d at 1189 (stating that a court is prohibited under Section 3-210 of the Arbitration Act from inquiring into the merits of a claim).\nIn order to observe this mandate, we have followed the lead of the Supreme Court in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), by considering an arbitration clause of a larger contract to be severable therefrom. In Holmes, we were called upon to determine \"whether allegations of fraudulent inducement and violations of the Franchise Act in a franchise agreement containing a broad arbitration clause are sufficient to permit the franchisee to avoid arbitration of a dispute.\" Holmes, 336 Md. at 541, 649 A.2d at 368. We recognized that the Supreme Court in Prima Paint, supra, in considering the same issue, reviewed the policies of the Federal Arbitration Act favoring the enforcement of arbitration agreements, and determined that \"where a party opposed a motion for arbitration based on allegations that there was fraud in the inducement of the entire contract, the issue is one for an arbitrator, not a court.\" Id. at 541-42, 649 A.2d at 368. The \"reasoning behind Prima Paint,\" we noted, \"is that the arbitration clause is a severable part of the contract.\" Id. at 543, 649 A.2d at 369. We then recognized that *665 Maryland's Arbitration Act is the \"State analogue\" to the Federal Arbitration Act, because both embody a policy of enforcing valid arbitration agreements. Id. at 541, 649 A.2d at 368. Reviewing additional federal and state case law, we observed that mutual promises to arbitrate act as \"an independently enforceable contract.\" Id. at 544, 649 A.2d at 370. In an enforceable arbitration agreement, we explained, each party has promised to arbitrate disputes arising from an underlying contract, and \"each promise provides consideration for the other.\" Id. Thus, in a motion to compel arbitration, a court must determine whether \"there is a mutual exchange of promises to arbitrate,\" and \"[o]nce a court determines that the making of the agreement to arbitrate is not in dispute, its inquiry ceases, as the agreement to arbitrate has been established as a valid and enforceable contract.\" Id. at 544, 649 A.2d at 370.\nUnited, however, invites us to disregard the narrow scope of our role by looking beyond the Arbitration Policy and into the underlying employment agreement to determine whether consideration exists to support an agreement to arbitrate. To accept United's assertion that its employment or continued employment of Cheek constituted consideration for the Arbitration Policy would require that we inquire into, and at least make an implicit determination about, the nature of the underlying employment agreement. Indeed, the merits of the underlying controversy in the present case call into question the type of employment relationship that existed between United and Cheek. In his complaint to the Circuit Court, Cheek claimed, among other things, damages for breach of contract, alleging that United \"materially breached its contractual obligation to [Cheek] by failing to pay [Cheek] his base pay, incentive compensation, and other benefits.\" The November 17, 2000 letter memorializing United's offer of employment to Cheek, however, states that \"you [Cheek] retain the right to terminate your employment with [United], at any time and for any reason, as does [United].\" Similarly, the employee handbook states in part that its provisions, except for the Arbitration Policy, \"do not establish a contract or any particular terms or conditions of employment between [Cheek] and [United]. None of the policies constitute or are intended to constitute a promise of employment.\" Given the language of the letter and the handbook, and the relief sought in the complaint, it is apparent that the parties disagree about whether the employment relationship between Cheek and United was \"at will,\" in which case employment \"may be legally terminated at the pleasure of either party at any time,\" or whether it imposed contractual employment obligations upon United. Therefore, were we to entertain United's assertion regarding Cheek's employment as consideration, we would be straying into the prohibited morass of the merits of the claims.\nUnited, nonetheless, urges us to find employment as consideration, as the Court of Special Appeals did in Simko, Inc. v. Graymar Co., 55 Md.App. 561, 464 A.2d 1104 (1983). Simko, however, is inapposite. In that case, the Court of Special Appeals concluded that continued employment of an at-will employee for a substantial period beyond the threat of discharge was sufficient consideration to support a post-employment covenant not to compete. Id. at 567, 464 A.2d at 1107-08. The present case involves an arbitration agreement, not a covenant not to compete. As previously discussed, in determining whether an arbitration agreement contained within a larger agreement is enforceable, courts are limited to determining only one thing:\n*666 whether a valid arbitration agreement exists.\nIn concluding that United's employment or continued employment of Cheek does not act as consideration in return for Cheek's promise to arbitrate, we join at least two other state courts. In The Money Place, LLC. v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002), the Supreme Court of Arkansas determined that an arbitration provision in The Money Place's Deferred Presentment Agreement was invalid. Id. at 715. The plaintiffs in The Money Place filed a class-action suit against that business, \"alleging usury in its payday-loan/deferred-check presentment business.\" Id. In determining that the arbitration agreement was invalid, the Arkansas Supreme Court rejected The Money Place's claim that if the entire Deferred Presentment Agreement was supported by sufficient consideration, then the arbitration clause also was enforceable based upon the same consideration. Id. at 717. \"To analyze the contract as The Money Place\" suggested, the Court stated, would require it \"to go to the merits of the underlying case,\" for if fees collected by The Money Place in its payday-loan/deferred-check presentment business were, \"in reality, interest, and are usurious, then the contract [would have lacked] consideration.\" Id. The Court then stated that it was \"follow[ing] the lead of the United States Supreme Court\" in declining to address whether there was consideration for the contract as a whole and in \"limit[ing][its] inquiry into whether the arbitration provision of the contract... is valid.\" Id.\nIn Stevens/Leinweber/Sullens, Inc. v. Holm Development and Management, Inc., 165 Ariz. 25, 795 P.2d 1308 (Ct.App. 1990), the Court of Appeals of Arizona concluded that Holm, the owner of a construction project, could not \"`borrow' consideration from the principal contract to support an arbitration provision.\" Id. at 1313. An addendum to the construction contract granted Holm \"the absolute option of selecting either arbitration or litigation as the means of dispute resolution\" and also gave Holm \"the right to reconsider its choice of dispute resolution `at any time, prior to a final judgment in the ongoing proceeding.'\" Id. In concluding that the arbitration provisions were void for lack of consideration, Arizona's intermediate appellate court reasoned that it could not look to consideration in the underlying contract because the arbitration provisions constituted a separable and independent agreement.\nAs support for its conclusion that the arbitration provisions were separable from the construction contract, the Arizona Court looked to two provisions of Arizona's arbitration act, which are similar to the Maryland Act, and the United States Supreme Court's decision in Prima Paint, supra, upon which we relied in Holmes, supra. Section 12-1502 of the Arizona Revised Statute, according to the Court, \"restricts judicial review to a determination of whether a valid arbitration provision exists.\" Id. at 1311. That Section states:\nOn application of a party showing [a valid agreement to arbitrate] and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party. Otherwise, the application shall be denied.\nSection 12-1501, the Court stated, \"sets forth the grounds upon which the validity of an arbitration provision may be challenged.\" Id. That Statute provides:\n\n*667 A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Emphasis omitted).\nThese two statutory provisions, when \"[r]ead in conjunction,\" the Arizona Court declared, \"embody the concept of separability endorsed by the United States Supreme Court in\" Prima Paint, supra. Id. at 1312. Finally, the Court rejected Holm's contention that the arbitration provision should be considered separate from the underlying contract only when necessary to preserve an agreement to arbitrate, reasoning that nothing in the language of A.R.S. Section 12-1501 warranted such a result, and that the doctrine of separability was in fact \"inherent in the language\" of that Statute. Id.\nWe disagree with cases from other jurisdictions that determine that consideration for an underlying contract also can serve as consideration for an arbitration agreement within the contract, even when the arbitration agreement is drafted so that one party is absolutely bound to arbitrate all disputes, but the other party has the sole discretion to amend, modify, or completely revoking the arbitration agreement at any time and for any reason. Indeed, the cases of Kelly v. UHC Mgmt. Co., Inc., 967 F.Supp. 1240 (N.D.Ala.1997), decided by the United States District Court for the Northern District of Alabama, Southern Division, and McNaughton v. United Healthcare Servs., Inc., 728 So.2d 592 (Ala. 1998), from the Supreme Court of Alabama, both involved the same disclaimer language of United's Arbitration Policy at issue in this case, namely, that United \"reserves the right to alter, amend, modify, or revoke this policy at its sole and absolute discretion at any time with or without notice.\"\nThe Federal District Court held that United's ability \"to alter, amend, modify, or revoke [the Arbitration Policy] at its sole and absolute discretion at any time with or without notice,\" did not render the Policy unenforceable for lack of consideration. Kelly, 967 F.Supp. at 1258. According to the District Court, the plaintiffs in the case provided consideration by \"their promise to arbitrate employment disputes,\" and United \"gave consideration in continuing to employ the plaintiffs in exchange for their signing the arbitration agreements.\" Id. at 1260.\nThe Supreme Court of Alabama, in a five-to-four decision, relied in part on the Federal District Court's decision, in concluding that United's Arbitration Policy was a binding agreement. McNaughton, 728 So.2d at 595-96. The Court rejected McNaughton's contention that the arbitration agreement was unenforceable for lack of mutuality of obligation, as well as his argument that the language of the Arbitration Policy rendered it \"void under the doctrine of unconscionability/mutuality of remedy.\" Id. at 596. The Alabama Court also concluded that \"under clear Alabama contract law, United's providing at-will employment of McNaughton constituted sufficient consideration in exchange for McNaughton's agreement to arbitrate her employment disputes under United's arbitration policy.\" Id. at 595.[6]\n*668 Other cases, as well, have concluded that consideration from an underlying contract, or continued employment, can support an arbitration clause and render it enforceable. See e.g. Blair v. Scott Specialty Gases, 283 F.3d 595, 604 n. 3 (3rd Cir.2002) (noting in dicta that continued employment may serve as consideration for an agreement to arbitrate); Barker v. Golf U.S.A., Inc., 154 F.3d 788, 792 (8th Cir.1998) (concluding that under Oklahoma law, \"mutuality of obligation is not required for arbitration clauses so long as the contract as a whole is supported by consideration\"); Doctor's Assocs., Inc. v. Distajo, 66 F.3d 438, 453 (2nd Cir.1995) (stating that Connecticut courts would conclude that when an arbitration agreement is integrated into a larger contract, consideration for the contract as a whole would cover the arbitration clause as well); Wilson Electrical Contractors, Inc. v. Minnotte Contracting Corp., 878 F.2d 167, 169 (6th Cir.1989) (finding that arbitration clause within larger contract did not require consideration independent from consideration of larger contract; also stating that Prima Paint, supra, \"does not require separate consideration for an arbitration provision contained within a valid contract.\"); Avid Engineering, Inc. v. Orlando Marketplace Ltd., 809 So.2d 1, 4 (Fla.Dist.Ct.App.2001) (\"Because there was sufficient consideration to support the entire contract, the arbitration provision was not void for lack of mutuality of obligation.\"); Sablosky v. Edward S. Gordon Co., 73 N.Y.2d 133, 538 N.Y.S.2d 513, 535 N.E.2d 643, 646 (1989) (\"If there is consideration for the entire agreement that is sufficient; the consideration supports the arbitration option, as it does every other obligation in the agreement.\").\nWe disagree with these cases. As previously discussed, under Maryland law, the role of the courts in a motion to compel or stay arbitration is strictly circumscribed; we may only consider whether an agreement to arbitrate the dispute at hand exists; we must not stray into the merits of any underlying disagreements. To do so could eclipse the role of the arbitrator, should a valid agreement exist, and therefore run afoul of strong Federal and Maryland policies favoring arbitration as a viable method of dispute resolution. We believe that the cases referred to above pay short shrift to this principle. Even if we could touch upon the underlying merits in a motion to compel or stay arbitration, however, we would decline to do so.\n*669 If we were to conclude that consideration from the underlying agreement was sufficient to support the arbitration agreement, we would be precluded from ever finding an arbitration agreement invalid for lack of consideration when performance of a contract has already occurred, no matter how illusory the arbitration agreement was.\nFinally, we find that the Supreme Court's decision in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), is distinguishable from the present case. In that case, Randolph financed the purchase of a mobile home through Green Tree Financial Corporation. Id. at 82, 121 S.Ct. at 517, 148 L.Ed.2d at 378. She signed a Manufactured Home Retail Installment Contract and Security Agreement that contained a provision providing that all disputes arising from the contract would be resolved in binding arbitration. Id. at 83, 121 S.Ct. at 518, 148 L.Ed.2d at 378. Randolph later sued Green Tree in the United States District Court for the District of Alabama, alleging that they violated the Truth in Lending Act and the Equal Credit Opportunity Act. Id. Green Tree responded with a motion to compel arbitration, which the District Court granted. Id.\nBefore the Supreme Court, Randolph contended that the arbitration clause contained within the Manufactured Home Retail Installment Contract and Security Agreement was unenforceable. Id. at 84, 121 S.Ct. at 518, 148 L.Ed.2d at 379. In support of that contention, she claimed that because the clause was silent as to who would pay for arbitration costs, there was a possibility that she would be responsible for the costs, which, if prohibitively expensive, would effectively preclude her from pursuing her statutory claims. Id. at 89, 121 S.Ct. at 521, 148 L.Ed.2d at 382. The Supreme Court rejected Randolph's contention because it was too \"speculative.\" Id. at 91, 121 S.Ct. at 521-22, 148 L.Ed.2d at 383-84. The record, the Court noted, did \"not show that Randolph will bear such costs if she goes to arbitration.\" Id. at 90, 121 S.Ct. at 522, 148 L.Ed.2d. at 383.\nThe Arbitration Policy in the present case, unlike the agreement in Green Tree Financial, is not \"silent\" as to who is bound to arbitrate; it clearly and specifically gives United the sole discretion to modify, alter, amend, or revoke arbitration for any reason, at any time, but Cheek is bound to arbitrate \"all employment-related disputes.\" No \"speculation\" as to the legal consequences of this Policy is necessary. Cheek is bound to arbitrate any disputes arising from the employment relationship, while United can revoke the policy at any time, for any reason, without notice or consent. Consequently, whether United chooses to exercise the option to revoke the policy or not begs the question, because it had not bound itself to a course of action.\nWe have concluded that the arbitration agreement in the present case is unenforceable for lack of consideration. This is so because United's promise to arbitrate was illusory, and because United's employment of Cheek cannot serve as consideration for the arbitration agreement. Accordingly, we need not, and do not, express any opinion as to Cheek's remaining claims.\nJUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENTS.\nHARRELL, Judge, dissenting.\nI respectfully dissent. I do so because, in my view, the arbitration agreement between *670 Appellant, Ronnie E. Cheek (\"Cheek\"), and Appellee, United Health Care of the Mid-Atlantic, Inc., (\"United\"), was supported by consideration. Even assuming, arguendo, that the arbitration agreement was not supported by consideration independent from that of the employment contract of which it was a part, the consideration supporting the employment contract supported the arbitration agreement as well. Reasonably construed, the parties' mutual obligations with regard to arbitration were not illusory. Therefore, I would affirm the Circuit Court for Baltimore City's judgment compelling arbitration of the employment dispute between the parties.\n\nI.\n\"The interpretation of a written contract is ordinarily a question of law for the court and, therefore, is subject to de novo review by an appellate court.\" DIRECTV v. Mattingly, 376 Md. 302, 312, 829 A.2d 626, 632 (2003). \"Maryland follows the law of objective contract interpretation.\" Sy-Lene of Washington, Inc. v. Starwood Urban Retail II, LLC, 376 Md. 157, 166, 829 A.2d 540, 546 (2003). \"Under the objective test of contract interpretation, `the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract.'\" Id. (quoting Long v. State, 371 Md. 72, 84, 807 A.2d 1, 8 (2002)) (quoting, in turn, Slice v. Carozza Prop., Inc., 215 Md. 357, 368, 137 A.2d 687, 693 (1958)). \"A contract's unambiguous language will not give way to what the parties thought the contract meant or intended it to mean at the time of execution; rather, `if a written contract is susceptible of a clear, unambiguous and definite understanding ... its construction is for the court to determine.'\" Sy-Lene, 376 Md. at 167, 829 A.2d at 546 (citing Langston v. Langston, 366 Md. 490, 507, 784 A.2d 1086, 1095 (2001)). \"When the clear language of a contract is unambiguous, the court will give effect to its plain, ordinary, and usual meaning, taking into account the context in which it is used.\" Langston, 366 Md. at 506, 784 A.2d at 1095. \"A contract is ambiguous if it is subject to more than one interpretation when read by a reasonably prudent person.\" Id. \"If the contract is ambiguous, the court must consider any extrinsic evidence which sheds light on the intentions of the parties at the time of the execution of the contract.\" Sy-Lene, 376 Md. at 167-68, 829 A.2d at 547 (quoting County Commissioners v. St. Charles, 366 Md. 426, 445, 784 A.2d 545, 556 (2001)) (quoting, in turn, Heat & Power v. Air Products, 320 Md. 584, 596-97, 578 A.2d 1202, 1208 (1990)).\nThe 17 November 2000 letter from United to Cheek framed an offer of employment. That offer included conditions, such as the requirement that Cheek agree to be bound by United's \"Employment Arbitration Policy\". On 28 November 2000, Cheek authored an acceptance letter to United informing it that he was \"delighted to accept United Healthcare's generous offer\" and that \"[a]ll of the terms of your employment letter are amenable to me.\" (Maj. op. at 658). The mutual obligations of the agreement to arbitrate and the consideration for the contract of employment render the agreement to arbitrate enforceable in the present case.\nCheek's unsworn and unsubstantiated assertion that he did not receive, until after commencing employment with United, the summary of United's Arbitration Policy referred to as an attachment in the 17 November 2000 offer letter, is unconvincing. His attorney's artfully framed statement, made in passing in the Response and Opposition to United's motion *671 in the Circuit Court, that \"no detail\" of the policy was provided, is also unavailing. (Maj. op. at 658, n. 2). United's human resources representative (and the author of United's 17 November offer letter to Cheek), in an affidavit in support of United's motion to compel arbitration filed in the Circuit Court, appended a \"true and correct copy of the offer letter that was provided to Mr. Cheek\" and stated further that United's company policy was also to distribute a summary of the arbitration policy upon commencement of employment. Cheek conceded that he received a copy of the four-page summary of United's Arbitration Policy at the commencement of his employment. (Maj. op. at 658).\nEven were one to assume Cheek did not receive a summary of United's Arbitration Policy with the 17 November offer letter, his unqualified acceptance of the offer, including the arbitration condition, was not obtained by duress, Cheek's suggestion to the contrary notwithstanding. This Court has held that the \"test [for] duress is essentially composed of two elements: `(1) a wrongful act or threat by the opposite party to the transaction ..., and (2) a state of mind in which the complaining party was overwhelmed by fear and precluded from using free will or judgment.'\" Food Fair Stores, Inc. v. Joy, 283 Md. 205, 217, 389 A.2d 874, 881 (1978) (quoting Plechner v. Widener College, Inc., 418 F.Supp. 1282, 1294 (E.D.Pa.1976)). See also Central Bank v. Copeland, 18 Md. 305 (1862). If one hopes to benefit from the law of duress, then that person cannot place himself or herself into the situation which is the impetus for the deprivation of that person's free will. \"The mere stress of business does not constitute duress when the person against whom it is asserted is not responsible for the circumstances.\" Shillman v. Hobstetter, 249 Md. 678, 693, 241 A.2d 570, 578 (1968).\nCheek implies that he was forced into employment with United, and thus bound by its \"undetailed\" arbitration policy, because he involuntarily was placed in a position where he had no alternative but to accept the terms of the contract after resigning from a position with his former employer. On the contrary, Cheek freely and voluntarily placed himself into a position whereby he had no other immediate employment opportunities, except with United. Cheek submitted his resignation to his former employer before he notified United of his acceptance of its employment offer. United is \"not responsible for the circumstances\" surrounding Cheek's decision to resign from his former employer before accepting United's offer and without apprising himself of any material information now claimed to be lacking or missing in United's offer. If Cheek did not have sufficient information regarding the announced condition of arbitration in the employment offered by United, he should not have resigned from his former employment and accepted United's offer before making further inquiry. The terms of employment with United did not change between the offer date and Cheek's acceptance. Because United did not commit any wrongful act to coerce Cheek's unconditional acceptance of its employment offer as presented, Cheek's decision to resign \"prematurely\" from his former employer should have no bearing on the outcome of this case. Shillman, 249 Md. at 693, 241 A.2d at 578.\n\nII.\nThis Court dealt with the severability of an arbitration agreement from the contract of which it is a part in Holmes v. Coverall North America, Inc., 336 Md. 534, 649 A.2d 365 (1994). The Holmes Court adopted the view \"that an arbitration clause is a severable contract which is *672 enforceable independently from the contract as a whole.\" Id. at 545, 649 A.2d at 370. The Court went on to state \"that the mutual promises to arbitrate constitute a separate agreement contained in the contract.\" Id. at 547, 649 A.2d at 371. See also Allstate v. Stinebaugh, 374 Md. 631, 644, 824 A.2d 87, 95 (2003).\nThe U.S. Court of Appeals for the Fourth Circuit held to the same effect in Johnson v. Circuit City Stores, Inc., 148 F.3d 373 (4th Cir.1998). That case involved an arbitration agreement that applied to all job applicants at a retail store in Maryland. The Fourth Circuit concluded that the parties' mutual agreement to arbitrate constituted sufficient independent consideration to support the agreement to arbitrate, standing on its own. In so doing, the Johnson court cited to O'Neil v. Hilton Head Hosp., 115 F.3d 272 (4th Cir.1997), for the proposition that \"an arbitration agreement was supported by adequate consideration where both parties agreed to be bound by the arbitration process.\" Johnson, 148 F.3d at 378. O'Neil, interpreting South Carolina law, involved the resort to arbitration in an employee discharge suit. The O'Neil court stated:\nO'Neil first argues the contract to arbitrate was not supported by adequate consideration because the agreement was not binding on the hospital. O'Neil's argument fails because its premise is mistaken.\nHere the agreement to be bound by arbitration was a mutual one. The contract to arbitrate was proffered by the employer. Such a proffer clearly implies that both the employer and the employee would be bound by the arbitration process. If an employer asks an employee to submit to binding arbitration, it cannot then turn around and slip out of the arbitration process itself. O'Neil, 115 F.3d at 274. The O'Neil court reiterated that \"a mutual promise to arbitrate constitutes sufficient consideration for this arbitration agreement.\" O'Neil, 115 F.3d at 275 (citing Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 468 S.E.2d 292, 300 (1996)).\n\nIII.\nAlthough it has been held that arbitration agreements may stand apart from the contracts of which they may be a part, if supported by independent consideration, they nonetheless also may be supported by the consideration that supports the contract as a whole. \"Whether a number of promises constitute one contract (and are non-separable) or more than one is to be determined by inquiring `whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever, if any promise or set of promises were struck out.'\" Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 424, 87 S.Ct. 1801, 1816, 18 L.Ed.2d 1270 (1967) (quoting U.S. v. Bethlehem Steel Corp., 315 U.S. 289, 298, 62 S.Ct. 581, 587, 86 L.Ed. 855 (1942)). \"Contracts ordinarily require consideration to be enforceable.\" Harford County v. Town of Bel Air, 348 Md. 363, 382, 704 A.2d 421, 430 (1998). \"A benefit to the promisor or a detriment to the promisee is sufficient valuable consideration to support a contract.\" Vogelhut v. Kandel, 308 Md. 183, 191, 517 A.2d 1092 (1986) (quoting Shimp v. Shimp, 287 Md. 372, 385, 412 A.2d 1228, 1234 (1980)). See also Prince George's County v. Brown, 348 Md. 708, 715, 705 A.2d 1158, 1161 (1998). \"The Courts of Law, in the absence of fraud, will not inquire into the adequacy of the value extracted for the promise so long as it has some value.\" Blumenthal v. Heron, 261 Md. 234, 242, 274 A.2d 636, 640 (1971).\nIn the present case, there is no indication that either Cheek or United intended *673 severability of the arbitration agreement from the employment contract as a whole. The parties do not dispute that the employment contract as a whole is valid, enforceable, and supported by consideration.[1],[2] As such, the arbitration provision within the contract is supported by the consideration for the contract and is enforceable.\nThe majority opinion in the present case commendably devotes attention to a review of cases from those of our sister jurisdictions that have addressed the consideration issue. See Maj. op. at 666-69. It then, however, places Maryland in the company of the decidedly minority view (\"we join at least two other state courts\" See Maj. op. at 666) that consideration from the overarching contract should not be looked to as consideration to support an arbitration agreement within the contract. The justification for this position, in the minds of the majority, is that to do so would require the court to address the sufficiency of the consideration of the entire contract, a question, if raised, normally reserved for the arbiter. Maj. op. at 669. I fail to see this as a real problem. Courts are not required to inquire into the adequacy of consideration where there is at least some indicia of its presence. See Blumenthal, 261 Md. at 242, 274 A.2d at 640. Further, the majority of our sister jurisdictions have decided that consideration from the overall contract may be used to support an arbitration clause, recognizing that doing so will result in sending more cases to the arbiter.\nI disagree further with the majority's rejection of the persuasive authority from the majority of courts that have addressed this issue. Maj. op. at 667-69. In Avid Engineering v. Orlando Marketplace, Ltd., 809 So.2d 1 (Fla.App.2002), the written contract in question was \"to provide engineering services for an expansion of retail space.\" The court there held that \"because there was sufficient consideration to support the entire contract, the [embedded] arbitration provision was not void for lack of mutuality of obligation.\" Avid, 809 So.2d at 4. The Court of Appeals of New York also has held that \"if there is consideration for the entire agreement that is sufficient; the consideration supports the arbitration option, as it does every other obligation in the agreement.\" Sablosky v. Gordon Co., Inc., 73 N.Y.2d 133, 538 N.Y.S.2d 513, 516, 535 N.E.2d 643, 646 (1989) (involving the arbitration of commissions claimed to be due to real estate salespeople).\n*674 Federal courts, usually in the context of analyzing state laws, have analyzed and decided the issue in much the same way. The Third Circuit recently dealt with the issue of consideration for an arbitration agreement embedded in a contract in the case of Blair v. Scott Specialty Gases, 283 F.3d 595 (2002). In Blair, an employee brought a sexual harassment suit against her former employer. The court, ordering arbitration pursuant to a provision in the employment agreement, stated that \"when both parties have agreed to be bound by arbitration, adequate consideration exists and the arbitration agreement should be enforced.\" Blair, 283 F.3d at 603. The Blair court went on to state that \"a contract need not have mutuality of obligation as long as the contract is supported by consideration.\" Blair, 283 F.3d at 604 (referencing \"decisions that have found that continued employment may serve as consideration\", such as Hightower v. GMRI, Inc., 272 F.3d 239, 243 (4th Cir. 2001); Venuto v. Ins. Co. of N. Am., No. 98-96, 1998 WL 414723, at *5, 1998 U.S. Dist. Lexis 11050, at *14-*15 (E.D.Pa. July 22, 1998) (holding that an at-will employee's continued employment provides adequate consideration for an arbitration provision)). In the context of an alleged breach of an employment contract, the Sixth Circuit found that \"Prima Paint [supra] does not require separate consideration for an arbitration provision contained within a valid contract.\" Wilson Electrical Contractors, Inc. v. Minnotte Contracting Corp., 878 F.2d 167, 169 (6th Cir.1989). In a case in which a franchisee sued the franchisor for fraud, the Eighth Circuit, interpreting Oklahoma law, stated that it believed that \"mutuality of obligation is not required for arbitration clauses so long as the contract as a whole is supported by consideration.\" Barker v. Golf U.S.A., 154 F.3d 788, 792 (8th Cir.1998). The Barker court relied on the Restatement (Second) of Contracts § 79 (1979), for the proposition that \"if the requirement of consideration is met, there is no additional requirement of ... `mutuality of obligation'.\" (Internal citation omitted in original.) Id. The Second Circuit addressed the issue of consideration for an overall contract \"pouring over\" to an arbitration clause in Doctor's Associates v. Distajo, 66 F.3d 438 (2d Cir.1995). In that case, the court, citing Sablosky, supra, stated that \"the Connecticut courts would conclude that `where the agreement to arbitrate is integrated into a larger unitary contract, the consideration for the contract as a whole covers the arbitration clause as well'.\" Distajo, 66 F.3d at 453. The Distajo court observed that \"most courts facing this issue have arrived at the same conclusion [that the consideration supporting the overall contract can also support an arbitration provision, standing alone].\" Distajo, 66 F.3d at 452 (citing to Wilson, supra; Becker Autoradio U.S.A. v. Becker Autoradiowerk GmbH, 585 F.2d 39, 47 (3rd Cir.1978); W.L. Jorden & Co. v. Blythe Indus., 702 F.Supp. 282, 284 (N.D.Ga. 1988); Willis Flooring, Inc. v. Howard S. Lease Constr. Co. & Assocs., 656 P.2d 1184, 1185 (Alaska 1983); LaBonte Precision, Inc. v. LPI Indus. Corp., 507 So.2d 1202, 1203 (Fla.Dist.Ct.App.1987); Kalman Floor Co. v. Jos. L. Muscarelle, Inc., 196 N.J.Super. 16, 481 A.2d 553 (1984), aff'd for reasons stated below, 98 N.J. 266, 486 A.2d 334 (1985)).\nTwo cases particularly representing the national majority view, to which the majority opinion here devotes substantial attention in an effort to explain them away (Maj. op. at 667-69), are, in many ways, the most apposite to the present case. Both cases involve the Appellee here, United, or a related entity, as a party and interpret and apply its apparently uniform arbitration policy. More specifically, both *675 cases involve the clause within United's arbitration policy whereby it \"reserves the right to alter, amend, modify, or revoke the Policy at its sole and absolute discretion with or without notice.\" See Maj. op. at 658.\nKelly v. UHC Management Company, Inc., 967 F.Supp. 1240 (N.D.Ala.1997), involved an employment discrimination claim for which United sought implementation of its then-new arbitration policy. After reviewing the same contract language as is at issue in the present case, the Kelly court stated that the only showing necessary for enforcement is that the arbitration \"agreements are supported by consideration, not `mutuality of obligation'.\" Kelly, 967 F.Supp. at 1260. In McNaughton v. United Healthcare Services, 728 So.2d 592 (Ala.1998), an employee sued United for fraud and intentional interference with business relations relating to an interdepartmental transfer. United sought arbitration. The McNaughton court, applying Alabama law, stated that \"United's providing at-will employment to [appellant] constituted sufficient consideration in exchange for [appellant's] agreement to arbitrate [his] employment disputes under United's arbitration policy.\" McNaughton, 728 So.2d at 595. The court reiterated that it had \"consistently held that an employer's providing continued at-will employment is sufficient consideration to make an employee's promise to his employer binding.\" 728 So.2d at 596.\nThe reasoning of the majority in the present case notwithstanding, I am persuaded that Maryland would be better advised to follow the national majority view permitting consideration for the contract to suffice as consideration for the embedded arbitration agreement.\n\nIV.\n\nA.\nWe generally should strive, whenever possible, to find arbitration agreements between private parties enforceable.[3] \"The courts will prefer a construction which will make the contract effective rather than one which will make it illusory or unenforceable.\" Kelley Constr. Co. v. Washington Suburban Sanitary Comm'n, 247 Md. 241, 247, 230 A.2d 672, 676 (1967). United's Arbitration Policy, as explicated in the four page summary given Cheek, contains a provision under which the employer has \"the right to alter, amend, modify, or revoke the Policy at its sole and absolute discretion at any time with or without notice.\" (Maj. op. at 658). This Court repeatedly has held generally that the reservation of the power to alter, amend, or terminate an agreement does not invalidate the agreement. \"The conclusion should be drawn that an unlimited option to cancel does not invalidate a contract where it can be shown that it does not wholly defeat consideration.\" Stamatiades v. Merit Music Service, 210 Md. *676 597, 613, 124 A.2d 829, 837 (1956), citing Tyler v. Capitol Indemnity Ins. Co., 206 Md. 129, 110 A.2d 528, 529 (1955). \"It is only where the option reserved to the promisor is unlimited that his promise becomes illusory and incapable of forming part of a legal obligation.\" Id. at 614, 124 A.2d at 838. See Yarnick v. King, 259 Md. 241, 249, 269 A.2d 607, 611 (1970) (stating that \"a power to terminate in case performance is not satisfactory may be expressly reserved without invalidating the contract\"); Prince George's County v. Brown, 348 Md. 708, 715, 705 A.2d 1158, 1161 (1998) (stating that \"a conditional promise may be consideration, and when a man acts in consideration of a conditional promise, if he gets the promise he gets all that he is entitled to by his act, and if, as events turn out, the condition is not satisfied, and the promise calls for no performance, there is no failure of consideration.\").\nUnited's reserved power to alter or terminate the arbitration agreement, however, was not without limit. That power should be read reasonably as exercisable only with regard to subsequent arbitrable conduct or acts, but not as to those acts which occurred prior to any asserted alteration or termination. Thus read, the Arbitration Policy was not illusory as United was bound to the original provisions of the arbitration agreement for all arbitrable incidents occurring prior to any purported change or revocation it might make with regard to the Policy.\n\nB.\nThe majority here focuses on an asserted lack of mutuality of obligation as a means to declare illusory United's promise to arbitrate. Such focus is short-sighted. We addressed the general problems associated with illusory contracts, versus those with a failure of consideration, in Acme Markets, Inc. v. Dawson Enters., Inc., 253 Md. 76, 251 A.2d 839 (1969). In Acme, we stated that \"when a contract is entered into, a power of termination may be expressly reserved to either party or to both of them.\" Acme, 253 Md. at 86, 251 A.2d at 845. We went on to state that \"the reservation of such a power to terminate does not invalidate the contract or render the consideration for a promise insufficient, so long as the party reserving the power to terminate is irrevocably bound for any appreciable period of time or has materially changed any of his legal relations or otherwise rendered some performance capable of operating as a consideration.\" Id. at 87, 251 A.2d at 846 (quoting 6 A. Corbin, Contracts § 1266 (1962)). We continued that \"a contract is not made invalid for lack of mutuality by the fact that one of the parties and not the other is given the option of terminating the contract on some condition.\" Id. (quoting 1A A. Corbin, Contracts § 265 (1963)). \"Although an option to terminate may be unilateral and appear to lack mutuality, it has been held that if the provisions are quite clear as to one party's option a court cannot be expected to relieve the other party of the consequences thereof because the bargain as to him was improvident, rash, foolish or oppressive\". Id. at 88-89, 251 A.2d at 847. When melded with the objective theory of contract interpretation, the result is identical to that discussed by this Court over fifty years ago, \"where the right to terminate a contract is reserved in the instrument itself, in the absence of fraud, undue influence, or mistake, such reservation is valid and will be enforced, if not contrary to equity and good conscience.\" Id. at 88, 251 A.2d at 847 (quoting Kahn v. Janowski, 191 Md. 279, 285-86, 60 A.2d 519, 521 (1948)).\nAs noted earlier, the arbitration agreement between United and Cheek is not illusory because the terms of the agreement, *677 as construed here, may not be revoked or modified by United as to a particular arbitrable dispute after it has arisen. Stated otherwise, United is bound to the terms of the arbitration agreement as it exists at the time an arbitrable incident arises. It could not revoke or change the terms regarding prior acts triggering the then-prevailing arbitration provisions because \"no party has a right to rescind or modify a contract merely because he finds, in the light of changed conditions, that he has made a bad deal.\" Harford County, 348 Md. at 384, 704 A.2d at 431. I note, however, that there is not the slightest hint in this record that United proposed any such change in, or revocation of, the Arbitration Policy incorporated in its contract with Cheek.\n\nV.\nUnited gave Cheek an opportunity to review and/or inform himself about the Arbitration Policy before he accepted the employment offer. Cheek freely entered into the employment contract without further inquiry into any \"details\" of that Policy. Cheek agreed to the arbitration agreement almost seven months before the subject arbitrable dispute arose. During that time, United made no attempt to alter, amend, modify, or revoke its Arbitration Policy. United was as bound to the Arbitration Agreement as was Cheek for the dispute giving rise to the present litigation. As such, United's promise was not illusory, and there was neither lack or failure of consideration or lack of mutuality of obligation. The contract contained a valid arbitration agreement, which was supported by consideration. As a result, it is my view that the parties, as ordered by the Circuit Court, should submit this dispute to arbitration.\nNOTES\n[1] According to appellees, on March 6, 2000, United merged into UnitedHealth Group, Inc. Cheek named both companies as defendants in the present case, and we shall refer to them collectively as \"United.\"\n[2] Cheek claims that \"[n]o detail of the arbitration policy\" was included with United's November 17 letter. The trial court made no finding on this point.\n[3] The summary of the Arbitration Policy \"provides general information regarding the Arbitration Policy,\" and states that \"[i]n the event of a conflict between [the] Summary and the Policy, the terms of the Policy shall govern in all cases.\" A copy of the full Arbitration Policy has not been provided in the record extract or in the record. Neither of the parties to this appeal, however, has alleged that any relevant conflicts exist between the summary and the full Arbitration Policy. We also note that in an \"Acknowledgement Form for the Code of Conduct and Employment Handbook,\" signed by Cheek, he represented that at the time he \"received the Handbook\" he had \"specifically received and reviewed the policies referenced below ... Internal Dispute Resolution/Employment Arbitration Policy.\"\n[4] Maryland Code, § 3-501 et seq. of the Labor and Employment Article (1991, 1999 Repl. Vol.).\n[5] At argument, counsel for United stated that United would not revoke the Arbitration Policy in the present case. That oral representation is not sufficient to alter the terms of Arbitration Policy which was presented to Cheek. See Phox v. Atriums Management Co., Inc., 230 F.Supp.2d 1279, 1283 (D.Kan.2002)(rejecting defendant's claim that because it did not exercise its right to cancel arbitration agreement, its promise to arbitrate constituted consideration; explaining that \"Defendant's after-the-fact decision not to exercise [its right to unilaterally cancel the arbitration agreement] does not alter the illusory nature of its original promise to arbitrate\").\n[6] We find persuasive the dissenting opinion in McNaughton, of Justice J. Cook. Justice Cook explained that an at-will employment contract existed separately from the Employment Arbitration Policy. Id. at 604. The Justice also explained that the at-will contract was unilateral in nature, because the promise to pay is accepted by the act of performing work, but that an arbitration agreement is a bilateral and executory contract, where the parties bargain for mutual promises, not performance. Id. (citing Wagner v. City of Globe, 150 Ariz. 82, 85, 722 P.2d 250, 253 (1986) (\"Employment contracts, particularly those which would be considered at-will, are the best and most typical examples of unilateral contracts.\")). Thus, she determined that there existed two separate agreements, each of which was of a different class; the at-will employment contract as unilateral, and the arbitration agreement as bilateral. The consideration for the unilateral at-will employment contract (the promise to pay), Justice Cook opined, could not serve as the consideration for the separate bilateral agreement to arbitrate, because the parties to such a bilateral agreement bargained for mutual promises to forgo their rights to go to court and resolve disputes in arbitration. She also criticized the majority's determination that because continued at-will employment is sufficient consideration for a non-competition agreement between an employer and an employee, it could likewise act as consideration for an arbitration agreement. According to Justice Cook, the majority's analogy was flawed because a non-competition agreement is a type of unilateral contract, but an arbitration agreement is bilateral. Id. at 605. Thus, she concluded that United Healthcare Services's promise to arbitrate was illusory, and that the arbitration agreement was unenforceable. Id. at 605.\n[1] No reasonable argument could be mounted on these facts of a failure of consideration in the employment contract. United promised to pay Cheek an initial annualized base salary of $75,000, an initial annual minimum sales incentive totaling $90,000, and a sign-on bonus of $25,000, together with other benefits and \"perks\". In his acceptance of the offer, Cheek described it as \"generous\" and its terms \"amenable\" to him. Thus, the majority opinion's concern that a court would have to evaluate the sufficiency of consideration for the overall contract, in resolving the issue of enforcement of the arbitration agreement, is not a factor in this case. See Maj. op. at 664-64.\n[2] As a supplemental note, Cheek, as he sought to do here, should not be permitted to both sue for enforcement of the employment contract as a whole, while concurrently trying to enjoin enforcement of the arbitration clause contained therein. \"No party suing on a contract should be able to enforce certain contract provisions while simultaneously attempting to avoid the terms of an arbitration provision contained therein.\" U.S. v. Bankers Ins. Co., 245 F.3d 315, 323 (4th Cir., 2001) (citing to Int'l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 418 (4th Cir., 2000), holding that it would \"both disregard equity and contravene [the FAA]\" to allow a plaintiff \"to claim the benefit of the contract and simultaneously avoid its burdens.\")\n[3] Section 3-206(a) of the Courts and Judicial Proceedings Article of the Maryland Code (2002 Repl. Vol., 2003 Supp.), dealing with the validity of arbitration agreements, states that written arbitration agreements are \"valid and enforceable, and [are] irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract.\" Md.Code Ann., Cts. & Jud. Proc. § 3-206(a) (2002). Section 3-206(b), however, provides that § 3-206(a) \"does not apply to an arbitration agreement between employers and employees ... unless it is expressly provided in the agreement that this subtitle shall apply.\" In Wilson v. McGrow, Pridgeon & Co., 298 Md. 66, 467 A.2d 1025 (1983), we stated that \"the reference in § 3-206(b) to `employers and employees' should be read as not including the arbitration agreement between employer and a single employee\" and that the Court's \"reading necessarily excludes from § 3-206(b) an agreement between an employer and a single employee to arbitrate future disputes.\" Wilson, 298 Md. at 78, 467 A.2d at 1031.\n\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"cheek-v-united-healthcare-of-the-mid-atlantic-inc"} {"attorneys":"James W. Jeans, Hullverson, Richardson, Hullverson & Jeans, St. Louis, for plaintiff-appellant Michael Kickham., William H. Tombrink, Strubinger, Tudor, Tombrink & Wion, St. Louis, for defendant-respondent Kenneth Carter., Heneghan, Roberts & Cole and George E. Heneghan, St. Louis, for defendant-respondent Royal Papers, Inc., Hocker, Goodwin & MacGreevy, John M. Goodwin, St. Louis, for defendant-appellant, Royal Crown Bottling Corp. of St. Louis.","case_name":"Kickham v. Carter","case_name_full":"Michael D. KICKHAM, Plaintiff-Appellant, v. Kenneth CARTER, Defendant-Respondent, Royal Papers, Inc., a Corporation, Defendant-Respondent, Royal Crown Bottling Corporation of St. Louis, a Corporation, Defendant-Appellant","case_name_short":"Kickham","citation_count":41,"citations":["314 S.W.2d 902"],"court_full_name":"Supreme Court of Missouri","court_jurisdiction":"Missouri, MO","court_short_name":"Supreme Court of Missouri","court_type":"S","date_filed":"1958-07-14","date_filed_is_approximate":false,"headmatter":"1. Where a verdict is clearly against evidence, or clearly in disregard of preponderating evidence, it -will be set aside and a new trial granted.
2. Where upon a sale of property, a note being given for the price, and a bill of sale given in terms conveying the present title to the property, yet if there be a subsequent independent agreement to deliver the property sold at a future time, and the seller refuses or fails to deliver the property! the defendant niay avail himself of these circumstances to defeat a recovery, upon suit brought by the payee upon the note.
","id":5095762,"judges":"Being, Hart, Members, Randall","opinions":[{"author_str":"Randall","ocr":true,"opinion_id":4913188,"opinion_text":"\nRANDALL, C. J.,\ndelivered the opinion of the court:\nWilliam P. Wilson, plaintiff in the court below, brought an action of assumpsit against the appellants in 1866, upon a promissory note, of which the following is a copy:\n“ One day after date we, or either of us, promise to pay William P. Wilson, or bearer, the sum of five thousand dollars for his negro woman Anna, and her four children, this 12th day of September, 1863. F. Branch,\nE. A. Clark.\nThe declaration contains three counts: 1. Upon the note. 2. For price and value of the negro woman and her four children. 3. Upon account stated.\nThe defendant pleaded: 1. General issue. 2. Want of consideration; alleging that the negroes mentioned were never delivered. 3. That the currency contemplated in payment of the contract was Confederate bonds. 4. The defendant after-wards filed an additional plea, alleging that the delivery of the woman and children was a condition precedent to the plaintiff’s right of recovery, and it was not complete until such delivery; that defendant demanded delivery at the time and place appointed for delivery, but that plaintiff failed to deliver, &c.\nThe plaintiff joined issue upon the pleas. A verdict was given in favor of the plaintiff, and his damages assessed at $2823.07, and the defendants moved for a new trial, which was refused, and the defendants appealed.\n*545The plaintiff introduces in evidence the note above mentioned, and also a bill of sale of the negroes, whereby the plaintiff “granted, bargained, sold and confirmed” to the defendant, Branch, the said negro woman and her children, and agreed to warrant and defend said negroes to the defendant against himself and all other persons; which was signed and sealed by plaintiff, September 12, 1863.\nThe plaintiff having rested his case, the defendants introduced as a witness C. R. Mobley; who testified that the note and bill of sale were given in his presence, and he witnessed the latter. Branch and Wilson were at witness’s store at the time. Branch asked for paper to draw a bill of sale, and was furnished a form-book. He wrote from the form-book'until he came to the word “ delivered,” then turned to Wilson and said: “ If the negroes are to be delivered, and I am to take immediate possession now, I will put in the word ‘ delivered;’ if I cannot get possession now, I will not put it in.” Wilson became excited and said: “ I cannot deliver them now ” — was moving his effects, and the woman was not well. Branch said he was afraid to leave them there, as they might run away to the Yankees. Wilson said he would risk all that; that there was not a particle of danger of that; he would have them there by Monday evening, to be delivered on Tuesday morning, at the house where Mobley was then living. Branch wanted to take home a little girl for a nurse. Wilson said he would not part them, but would deliver them as a whole in Tampa, at Mobley’s drug store. Mobley testifies he was at home on Monday and Tuesday following. Branch came on Tuesday. The negroes were not delivered. Heard Branch say to Wilson on Tuesday that he came to demand the negroes. Wilson replied: “ It’s of no use to demand the negroes, he knew they were gone away — they were gone to the Yankees, and Branch could not got what he did not have.” The note was given on the Saturday previous, and is pretty sure it was near six o’clock when the contract was made. Branch handed the note to Wilson and said he would send *546for the Confederate bonds as soon as possible and pay the note.\nWilliam T. Haskins, for defendant, testified: Dr. Branch and I were walking down the street and met Wilson. Dr. Branch remarked, he “ would like to get those negroes this morning.’ Wilson replied: “They are gone.” Dr. Branch said: “But you know that you were to deliver them this morning.” Wilson said: “ I can’t help it — they are gone.”\nJ. S. Ilaygood, for defendant, testified: Knows the negroesmentioned in the note. Met Wilson on Monday morning. He said his negroes had gone to the Yankees. Heard Wilson say he was to deliver them on Tuesday.\nJohn T. Givens, for defendant, testified that he heard Wilson say substantially the same thing as to his negroes having all gone.\nHenry Ferris, for defendant, testified that he was present on Monday morning at a conversation between Dr. Branch and Wilson. Wilson said: “All my negroes are gone; they went last night.” “Dr. Branch didn’t seem excited at all.”\nWm. P. Wilson, plaintiff, testified that he sold Dr. Branch the negroes on the 8th September, 1868, for $5000. Money was not paid. Dr. Branch wanted me to keep them for him ten days; liked them and would take them, but might not get the bonds from Tallahassee in ten days. On Saturday, September 12, was at Mobley’s store. The doctor said he was ready to settle for the negroes. I said, “VeryAvell, you had better draw up a bill of sale.” Mobley handed Dr. B. a form-book and paper, and he wrote the bill of sale. I signed it, and Branch gave the note. As I was going out he said: “Mr. Wilson, I have changed my mind; instead of your keeping them ten days, I will send my wagon on Tuesday morning, next, so I may bring their bedding and clothing and all of them.” 'Said he came to town for the express purpose of taking Rachel home with him in the buggy, but on reflection thought he had better take them all together. I remarked, It was better not to separate them. All this occurred before three o’clock. After the trade I used *547the same care with them as when they were mine. Went to town on Monday morning. After the trade and taking the note I never considered the negroes mine. Had several good offers for them, but would not sell. Went to Mr. Mobley’s store and saw Dr. Branch. He took up a paper, and turning it around said: “You had better take this paper, it is no use to me.” I said: “No, I prefer keeping your note.” Ho told me he did not intend paying one cent of it.\nWm. B. Henderson and John T. Lesley, for plaintiff, testified as to the value of the negroes in September, 1863.\nJohn Darling, for plaintiff, testified that Dr. Branch came into his store on one Saturday, and said he had jrarchased the negroes, and couldn’t take them out because he didn’t have his wagon there; was not going to take them till Tuesday.\nFranklin Branch, defendant, testified: Went to Mr. Wilson’s, examined the negroes; told him I thought they would suit my wife — would see her, and if she was satisfied with my representation of them I would be back on Saturday and take them at his price. He said Dr. McMickan thought the woman could not be safely moved for eight or ten days. I replied, if I purchased I should be my own judge as to the time of removing them. He said there were several persons wanting them. I requested him to keep them till Saturday, that I might have the refusal of them if they should suit my wife, to which he said he would let no one have them till Saturday. On Saturday mot Mr. Wilson at Mobley’s store, and told him I had come to buy the negroes. Handed him the note to see if it was satisfactory. He said I had better write a bill of sale. Wrote one from the form-book. Coming to the word “ delivered ” in the form-book, I said to Wilson: I cannot introduce the word “ delivered,” for the negroes are not yet delivered. Mr. Wilson signed the bill of sale, and I stepped to the desk to fold it; ho picked up the-note and was putting it in his pocket. I said to him: “As you have my note, I now demand the delivery of the negroes.” He became agitated, and said: “No, no, Dr. Branch, I cannot deliver-*548them now, my property would he all exposed,”- &c., and he would have to move first; that on Monday evening he would bring them over to my place occupied by Mr. Mobley, and deliver them to me on Tuesday morning. I replied, “I am not willing to do it — you live so near the line the Yankees may come up and carry them off, or they may run away.” lío replied, That will he my risk, for I will deliver them to you on Tuesday morning; ” would not deliver me the girl until he delivered all.\nThe above is tire substance of the testimony. The appellant’s counsel assign errors as follows:\nThe court below erred in overruling the motion for a new trial, because:\n1. The verdict of the jury was against the instructions of the court.\n2. It was contrary to the evidence.\n8. It was not warranted by the evidence.\n4. It was contrary to the principles of law applicable to the case.\n5. It was against the weight of evidence.\nIt is contended on the part of the appellee, that all the terms of the sale were complied with on the part of the aj>pellee; that the giving of the note for the price, and the execution and delivery of the hill of sale conveying his right and interest in the property and warranting the title, was a completion of the sale of the property so as to vest the title and immediate right of possession in the purchaser, and that the seller’s actual possession thereafter was that of a bailee of the purchaser, and that the jury having passed upon all the facts, the verdict should not be disturbed.\nOn the other hand the appellant contends that the point of delivery was a vital point in the case, and that the jury must have disregarded the whole of the oral testimony of the defendant’s witnesses; that the matter of the delivery was the subject of arrangement entirely distinct from the note and the hill of sale, was purposely left out of that part of the contract, and *549was the subject of entirely separate negotiation between the parties; that the plaintiff agreed to deliver the negroes at a future day, expressly taking the risk of loss until a delivery at a future day; that he failed to deliver on the day appointed, and that the purchaser had no right or power to take actual possession, and could not maintain an action for such possession until the time agreed upon for delivery by virtue of the bill of sale and agreement, and that such failure to deliver was a failure of the consideration of said note; or that the consideration expressed in said note not having been delivered by the plaintiff, in pursuance of the bargain and sale, there was in fact no consideration for the note.\nThe testimony of Mobley and Branch shows that that part of the contract relating to the time of delivery was purposely omitted from the bill of sale, and afterwards made the subject of a separate arrangement after the execution of the note and bill of sale, the plaintiff expressly refusing to deliver at the time, but agreeing to deliver at a given subsequent time and place. Mr. Wilson does not expressly contradict their testimony, but gives a narration of what occurred somewhat inconsistent with theirs in some respects; and on the following Monday and Tuesday, after the plaintiff alleged that the negroes had gone beyond his reach, the plaintiff not only did not claim that the property had passed by the sale, but spoke of his negroes having gone. The testimony of Mobley, Haskins, Haygood, Givens, Ferris, and Branch all goes to show that the plaintiff regarded the negroes as his own at the time of their loss. Mobley, Haygood, Haskins, and Branch prove very conclusively that the plaintiff had agreed to deliver on Tuesday, and Mobley and Branch say that he expressly refused to deliver the negroes after the writings were exchanged, and said that he could not deliver them, then, and they would remain where they were at his (plaintiff’s) risk until the time of delivery fixed upon by him.\nThe time for the performance of the condition of a sealed as well as a simple contract, may be enlarged by parol. 1 Esp. N. *550P., 35; Dearborn vs. Cross, 7 Cowen, 48; Fleming vs. Gilbert, 3 Johns., 528.\nAn independent substantive agreement connected with the subject matter of the contract, may be proved by parol. Cobb vs. O’Neal, 2 Sneed, 442; Leinan vs. Smart, 11 Humph., 308; 2 Stark. Ev., 551-5.\nThe consideration of the note in suit Avas the sale and delivery of the property. The note Avas delivered, and the property Avas to bo delivered at a subsequent time, by the terms of the arrangement. The delay in the fact of delivery Avas, according to the positive testimony, not expressly contradicted, a delay sought and insisted upon by the plaintiff, and for his express benefit and convenience. Indeed he absolutely refused to make delivery at the time, and at the time appointed made excuses for non-delivery, and Avholly failed to do so.\nIn Massachusetts it has lately been held (97 Mass., 166) that in an action on a note by the payee against the maker, the defendant may recoup damages caused by the plaintiff’s depriving him of part of the consideration of the note. Parsons on Contracts, 246, says: “ Recoupment we consider to belong rather to cases Avhere the same contract lays mutual duties and obligations on the tAvo parties, and one seeking remedy for a breach of duty by the second, the second meets the demand by a claim for a breach of duty against the first.”\nIf the plaintiff sue on one part of a contract consisting of mutual stipulations made at the same time, and relating to the same subject matter, the defendant may recoup* damages arising from the breach of another part; and this whether the different parts are contained in one instrument or in several, and whether one part is in writing and the other by parol. Batterman vs. Pierce, 3 Hill, 171; Ives vs. Van Epps, 22 Wend., 155.\nThere is a natural equity, especially as to claims arising out of the same transaction, that one claim should compensate the other. This principle is uoav almost universally adopted in the common laAV courts, instead of compelling the defendant to *551resort to liis cross action for any damages lie may sustain by the act or omission of the other party with reference to the subject matter of the contract.\nIt seems to me that the jury in this case must have entirely disregarded the testimony, or clearly to have decided against the strong preponderance of testimony, in regard to the agreement concerning the delivery of the negroes; and to have decided it solely with regard to the supposed legal effect of the bill of sale', keeping out of view the fact which appears to be shown, that the plaintiff refused to make a present delivery (after the signing and delivery of the note and bill of sale) of the negroes for which the note was given, and' expressly assumed the risk of the loss which subsequently occurred. If this be true, the plaintiff is seeking to compel the defendant to pay him for property sold, which he at the time refused to deliver, and was afterwards unable to deliver for causes beyond the control of the defendant. In this aspect of the case we are-disposed to direct that the facts be again submitted to a jury.\nWhere there is conflicting testimony, and the verdict seems • to have been given against evidence or in clear disregard of strong preponderating evidence, it will be set aside; and in Sanderson vs. Hagan, 7 Fla., 318, the court say it is its imperative duty to set it asidp and grant a new trial.\nThe judgment is reversed and a new trial awarded.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"branch-v-wilson","summary":"Appeal from the Circuit Court for Hillsborough county. The case is fully stated in the opinion of the court."} {"attorneys":"Christopher Steven Lucas, for Guardians M.I.H. & V.B.H., Randall Luke Wenger, Camp Hill, H. Aden Steven, Matthew S. Bowman, for Amicus Curiae Pa. Family Institute., Robert B. Hoffman, Eckert Seamans Cherlin & Mellott, LLC, Harrisburg, David Edwin Loder, Lisa Whitcomb Clark, Duane Morris, L.L.P., Philadelphia, for Amicus Curiae PA Medical Society & The Hospital and Healthsystem Assoc, of PA., Howard C. Ulan, Harrisburg, for Ebens-burg Center., Jane Adams, Jane Adams Attorney at Law, Carlisle, for D.L.H., James Clark Munro, Spence, Custer, Saylor, Wolfe & Rose, Johnstown, for Memorial Hospital., Mark J. Murphy, Pittsburgh, Robin Resnick, Shari Ann Mamas, Disability Rights Network of PA, for Appellee Ami-cus Curiae Disability Rights Network of PA.","case_name":"In re D.L.H.","case_name_full":"In re D.L.H., an Incapacitated Person. Appeal of M.I.H. and V.B.H., (Guardians)","case_name_short":"In re D.L.H.","citation_count":2,"citations":["2 A.3d 505","606 Pa. 550"],"court_full_name":"Supreme Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Supreme Court of Pennsylvania","court_type":"S","date_filed":"2010-08-17","date_filed_is_approximate":true,"id":5144241,"judges":"Baer, Castille, Eakin, McCaffery, Melvin, Saylor, Todd","opinions":[{"author_str":"Saylor","ocr":true,"opinion_id":4964530,"opinion_text":"\n\nOPINION\n\nJustice SAYLOR.\nIn this appeal, we consider whether plenary guardians can refuse life-preserving medical treatment on behalf of a person who lacks — and has always lacked — the capacity to make personal healthcare decisions, where the person is neither suffering from an end-stage medical condition nor permanently unconscious.\nD.L.H. (“David”), age 53, has suffered from profound mental retardation since birth and has resided at the Ebensburg Center, a Department of Public Welfare (“DPW’) facility, for nearly his entire life. He is an incapacitated person under the guardianship provisions of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§ 5501-5555. See id. § 5501 (delineating the meaning of “incapacitated person”). In 2002, Appellants, David’s parents, were duly appointed his plenary guardians under such authority. See id. § 5512.1(c).\nIn 2007, David became ill with aspiration pneumonia and was transferred from the Ebensburg Center to a local hospital. There, treating physicians determined that his condition required that he be placed on a mechanical ventilator. Appellants attempted to decline that treatment on his behalf, asserting that mechanical ventilation was not in his best interest. See generally id. § 5521(a) (“It shall be the duty of the guardian of the person to assert the rights and best interests of the incapacitated person”). The hospital denied that request, however, and David remained on a ventilator for several weeks. Subsequently, his condition improved to the point where he no longer required this treatment.\nIn light of the dispute over David’s medical care, Appellants petitioned the orphans’ court to be appointed his “health care agents” for purposes of the Health Care Agents and Representatives Act.1 The Act is part of a larger statutory scheme recognizing a qualified right of individuals to make decisions related to their own health care, see id. § 5423(c)(1), and establishing a framework for substitute health care decision-making for persons who are “incompetent” to do so.2 The mechanics include the use of “advance health care directives,” such as “health *508care powers of attorney,” as well the potential involvement of “health care representatives,” where no previous agency relationship has been established. Id. §§ 5422, 5456, 5461.\nA “health care agent,” designated by an advance health care directive, normally has the same authority as a competent principal to make health care decisions concerning the principal’s care with no requirement of court approval. See id. § 5456(a), 5454(e).3 Additionally, and of central relevance to the present appeal, Section 5462(c)(1) of the Act imposes an affirmative duty of care on attending physicians and health care providers, as follows:\nHealth care necessary to preserve life shall be provided to an individual who has neither an end-stage medical condition nor is permanently unconscious, except if the individual is competent and objects to such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will.\n20 Pa.C.S. § 5462(c)(1).\nIn their petition seeking the status of health care agents, Appellants took the position that the Act “does nothing more than codify the Supreme Court’s rule [derived from In re Fiori, 543 Pa. 592, 673 A.2d 905 (1996) ] that parents may exercise exactly the kind of judgment that [Appellants] seek to exercise here.” Petition at 3 ¶ 14. See generally 20 Pa.C.S. § 5423(a) (“Nothing in this chapter is intended to ... affect or supersede the holdings of In re Fiori [.]”). Furthermore, they relied on their broad powers as plenary guardians for David.\nDPW opposed the petition, and the orphans’ court appointed counsel for David. Despite the technical mootness of the issues raised in Appellants’ petition, the court decided to resolve the matter, evidently reasoning that the case fell within an exception to the mootness doctrine. A hearing was scheduled; however, the facts as related above were agreed, and the parties merely advanced their legal positions.\nAppellants maintained the position that, although David had been incapacitated since birth, he retained the inherent right to make medical decisions under Fiori— including the right to refuse life-preserving treatment — and such right extended to them as his plenary guardians. In response, David’s counsel expressed concern that a guardian’s decision-making should be consistent with the medical recommendations where the life of the incapacitated person is at stake.\nDPW offered a more concrete legal position, namely, that Section 5462(c)(1) of the Act requires caregivers to take medical measures necessary to preserve life on behalf of an incompetent person, where such a person does not suffer from an end-stage condition or permanent unconsciousness. According to DPW, Section 5462(c)(1) allows for a single exception, entailing displacement of the caregivers’ obligation to provide treatment by the decision of a health care agent, ie., “[a]n individual designated by a principal in an advance health care directive.” 20 Pa.C.S. § 5422; see also id. § 5452 (governing the *509execution of health care powers of attorney). Since David was never competent to so provide, this procedure was unavailable on the governing terms of the statute. DPW acknowledged that this Court’s Fiori decision, as invoked by Appellants, does in fact vindicate the right of incompetent persons — in some situations — to make medical decisions via a surrogate. However, DPW highlighted that the decision was closely and carefully limited by the Court to circumstances in which the incompetent person is in a permanent vegetative state. See Fiori, 543 Pa. at 608, 673 A.2d at 913 (“[W]e stress that the matter sub judice addresses only a very narrow issue.... ”).\nUpon its review, the orphans’ court denied Appellants’ petition, essentially adopting DPWs position that In re D.L.H., No. 21-02-293, slip op. at 3, 6 (C.P.Cumberland, Jan. 24, 2008) (per Hon. Edgar B. Bayley) (quoting DPW’s brief) (emphasis in original and footnote omitted). The court also credited DPW’s position that the authority provided a close family member in Fiori is limited to a situation in which the incompetent person is permanently unconscious. See id. at 5.\nFor the medical circumstances present here, the General Assembly adopted, in [the Act], a per se rule, 20 Pa.C.S. § 5462(c)(1), that simply removes the life or death decision from guardians, relatives, or health care representatives (who are not — unlike health care agents — chosen by the principal). According to the General Assembly, in these particular medical circumstances, life is to be chosen over death.\n* * *\nThe relief the guardians specifically seek — to transform guardianship into health care agen[ey] — imputes to this Court a power the legislature has withheld from it, i.e., the power to create health care agency (see “health care agent,” 20 Pa.C.S. § 5422) when none has previously existed. Under [the Act], guardians can “revoke or amend” an existing health care agency if the principal becomes incompetent, 20 Pa.C.S. § 5460(a), but they cannot create one where none ever existed, which is the case here.\nAppellants appealed to the Superior Court, which affirmed in a published opinion, albeit on different grounds. See In re D.L.H., 967 A.2d 971 (Pa.Super.2009). Initially, as to the mootness doctrine, the court invoked the great-public-importance and capable-of-repetition-yet-evading-review exceptions. See Fiori, 543 Pa. at 600 n. 4, 673 A.2d at 909 n. 4.\nOn the merits, the intermediate court indicated that the Act was inapplicable to David, since, on account of his lifelong incapacity, he could not comply with its terms for refusing life-preserving treatment or appointing a healthcare agent. See D.L.H., 967 A.2d at 981 n. 4 (quoting 20 Pa.C.S. § 5423(a) (evincing the legislative intent that “[t]his chapter provides a statutory means for competent adults to control their health care through instructions written in advance or by health care agents or health care representatives and requested orders.”)). Moreover, the court agreed with DPW that Fiori was inapplicable, given that David’s life-threatening medical condition was temporary. See id. at 986-87.\nIn spite of these conclusions, the Superi- or Court did not accept DPW’s core position that the Act’s Section 5462(c)(1) imposes a per se requirement on health care providers to provide treatment in the absence of an end-stage condition, permanent unconsciousness, or a decision by a health care agent relieving providers of their obligation. Rather, the court envisioned a residual power in plenary guardians to su-\n*510persede that duty, subject to court approval. See id. at 981 n. 4 (explaining that the Act and the authority of a health care agent “informs our understanding of the extent to which a guardian possesses ‘plenary’ power.”); see also id. at 982-87. In terms of the role of the orphans’ court, the intermediate appellate court also expressed a concern that abuses could occur on implementation of a more liberal approach to the role of a plenary guardian in the administration of life-preserving care. See id. at 981-82 (“Such a statutory construction would lead to an unreasonable outcome in that a guardian, under the guise of claiming the incompetent’s best interest, could terminate the life of the incompetent whenever he/she deems fit and without first seeking judicial approval.”).4 The Superior Court also invoked the concept of parens patriae to justify court involvement and drew support from In re Terwilliger, 304 Pa.Super. 558, 560, 450 A.2d 1376, 1380 (1982) (“[Pjrior judicial approval is required before a guardian may consent to administering or withholding of proposed extraordinary medical treatment.”) (quoting In re Moe, 385 Mass. 555, 432 N.E.2d 712, 716 (1982)). Additionally, the court expressed a concern with protecting the ethical integrity of the medical community. See D.L.H., 967 A.2d at 986.\nThe Superior Court concluded that, before an orphans’ court could empower a guardian to decline life-preserving treatment for an incapacitated person, the guardian would first have to petition the court for the right to do so, and then prove — by clear and convincing evidence— that death is in the incompetent’s best interest. See id. at 983. When applying this standard to the present case, the court concluded that the evidence was inadequate to establish, clearly and convincingly, that refusing mechanical ventilation was in David’s best interest, particularly since Appellants offered no medical proof that his aspiration pneumonia was a severe, permanent medical condition. See id. at 984-85.\nWe accepted discretionary review on Appellant’s petition, framing the question presented as follows:\nWhether plenary guardians have the authority to decline potentially life-sustaining treatment for a lifelong incapacitated person who is not suffering from an end-stage medical illness or is in a permanent vegetative state.\nIn re D.L.H., 603 Pa. 431, 984 A.2d 935 (2009) (per curiam). The parties have pointed out that there is some imprecision in this framing of the issue, given that the Act contains a particular definition for “life-sustaining treatment,” centered on end-stage and permanent unconsciousness scenarios. See 20 Pa.C.S. § 5422. Thus, we take this opportunity to conform the question presented to our statement above (“[W]e consider whether plenary guardians can refuse life-preserving medical treatment on behalf of a person who lacks — and has always lacked — the capacity to make personal healthcare decisions, where the person is neither suffering from an end-stage medical condition nor permanently unconscious.”).\nPresently, Appellants open their argument with a strong focus on the guardianship provisions of the Probate, Estates and Fiduciaries Code, emphasizing that they are invested with the duty to assert David’s rights and best interests. See id. § 5521(a). Further, they observe that the guardianship statute contains a specific list *511of excluded medical decisions, which does not include mechanical ventilation. In this regard, Appellants refer to certain powers and duties reserved expressly for the orphans’ court, see id. § 5521(d), and other specific limitations on a guardian’s powers, as follows:\n(f) Powers and duties not granted to guardian. — The court may not grant to a guardian powers controlled by other statute, including, but not limited to, the power:\n(1) To admit the incapacitated person to an inpatient psychiatric facility or State center for the mentally retarded.\n(2) To consent, on behalf of the incapacitated person, to the relinquishment of the person’s parental rights.\n20 Pa.C.S. § 5521(f). Thus, Appellants argue that, as David’s plenary guardians, they are the appropriate legal surrogates empowered to vindicate his right to decline medical intervention, even where such treatment would be necessary to preserve David’s life. See Brief for Appellants at 9 (“[A]ll other powers not reserved for the Orphans Court under sections 5521(d) and (f) should be presumed to be granted under section 5521(a).”).\nAppellants further contend that the Superior Court erred in adopting Terwilli-ger’s “extraordinary medical treatment” standard, as it was derived from dicta, and, in any event, was superseded by the noted provisions of the guardianship statute.5 Appellants apparently maintain that, to the extent that the Terwilliger standard remains extant, this Court should reject it, as it is unworkable.6\nAppellants finally maintain that, when reading the guardianship statute in pari materia with the Act, it is apparent that the Legislature intended for the power of a guardian to be superior to that of a health care agent. In this regard, Appellants rely on a provision of the Act providing for the accountability of a health care agent to a guardian, and empowering guardians to amend or revoke the agency. See 20 Pa.C.S. § 5460(a). Therefore, Appellants assert that Section 5462(c)(1) must be read to mandate “life [preserving] treatments in cases where an appropriate surrogate has not been designated in accordance with the terms of [the Act] or other law,” such as the guardianship statute. Brief for Appellants at 12 (emphasis removed). Appellants argue that a contrary interpretation would thwart that provision’s purpose, which is to permit surrogate decision-making when an individual lacks capacity. According to Appellants,\nBy reading section 5462(c)(1) without considering other provisions of the law, such as sections 5460, 5511 and 5521 of the guardianship statute, DPW successfully urged the Orphans Court to apply section 5462(c)(1) in a way that causes David to forfeit any right to ever control when, where, how and how many times he is forced to submit to a wide range of *512medical treatments, because of his lifelong lack of capacity. This erroneous construction raises profound questions regarding the right of incapacitated individuals to exercise the same right to decline medical procedures that is enjoyed by other citizens.\nId. at 13 (citing Fiori, 543 Pa. at 601, 673 A.2d at 910).\nDavid and DPW, acting through the Ebensburg Center, (collectively, “Appel-lees”) filed a joint brief relying on DPW’s core position as developed above. They seek affirmance of the Superior Court’s order, but preferably under the protective, per se rule of Section 5462(c)(1) as interpreted in the orphans’ court’s decision. Specifically, Appellees maintain that, where an incompetent person who has no health care agent suffers from a life-threatening but treatable medical condition, life-preserving medical care must be provided. It is Appellees’ position that, under Section 5462(c)(1), no consent from any third party is required, and no objection by a guardian or health care representative can be honored. See, e.g., Brief for Appellees at 10 (“By identifying only competent patients or health care agents as empowered to object to life-preserving treatment in the specified circumstances, § 5462(c)(l)’s exclusion of guardians cannot be doubted.”). Appellees also draw support from related provisions of Chapter 54. See, e.g., 20 Pa.C.S. § 5423(a)(3) (“Nothing in this chapter is intended to ... permit any ... omission to end life other than as defined in this chapter.”), (c)(1) (couching the right of individuals to make decisions relating to their own health care as a “qualified” one).\nAppellees challenge Appellants’ contention that the guardianship statute provides authority, in and of itself, for plenary guardians to decline life-preserving treatment on behalf of an incompetent. Appel-lees explain that the powers withheld from a guardian are not limited to those specifically enumerated in Sections 5521(d) and (f), as Appellants assert. Rather, Section 5521(f) expressly provides that “[t]he court may not grant to a guardian powers controlled by other statute, including, but not limited to,” those specifically identified in the statute and portrayed by Appellants as the exclusive restrictions. Id. § 5521(f) (emphasis added). Appellees also observe that, because the Act was implemented fourteen years after the guardianship statute, the latter obviously could not have accounted for the former. Therefore, Ap-pellees maintain, a court cannot convert a guardian into a health care agent. Moreover, Appellees refute any contention that the Legislature overlooked guardianship interests in drafting Section 5462(c)(1), in view of the Act’s multiple references to guardians and explicit delineation of the relationship between health care agents and guardians, see id. § 5460(a) (providing for the accountability of a health care agent to a guardian).\nAs concerns the Superior Court’s decision, Appellees specifically take issue with its holding that the Act simply does not apply to persons who have always lacked competence. In this regard, Appellees argue that the Superior Court incorrectly treated a stated purpose of Chapter 54— to provide a means for competent adults to control their health care through advance health care directives or health care representatives, see id. § 5423(a) — as the chapter’s only aim. Appellees explain that the Act also explicitly provides for default surrogates not chosen by the principal, namely, health care representatives, without differentiating between persons who have always lacked competence and those who have lost their previous capacity to make medical decisions. See id. § 5461; supra note 3. Moreover, Appellees highlight *513that no explanation has been offered “why the General Assembly would value the life of a once-competent person over that of a never-competent person.” Brief for Ap-pellees at 6 n.4.\nAppellees posit that, in light of the plain language of Section 5462(c)(1), it is unnecessary to speculate as to the General Assembly’s underlying intent. Nevertheless, they offer that the Legislature may have been focused on the specific involvement of the principal in creating and shaping the relationship in the agency situation, as contrasted with a guardianship scenario, in which the principal has no such opportunity. Additionally, Appellees believe, as do a number of their amici, that the statute reflects the concern that guardians do not always act in the best interest of incapacitated persons, despite their charge to do so. See, e.g., Clark v. Cohen, 613 F.Supp. 684, 699 (E.D.Pa.1985), aff'd, 794 F.2d 79 (3d Cir.1986). See generally Brief for Appellees at 16 (“[T]he legislature concluded that case-by-case determinations based on ‘quality of life’ considerations — whether made by guardians or by courts of common pleas — would too often be wrongly decided, decided against life.”). According to Appellees, any doubt as to whether a major goal of Section 5462(c)(1) was to protect disabled persons from such discrimination is eliminated by Section 5462(c)(2), which references the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. See 20 Pa.C.S. § 5462(c)(2).7 Finally, citing Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), Appellees develop that a state may properly assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual. See id. at 282, 110 S.Ct. at 2853. Although Appellees highlight that no constitutional issues have been raised here, they believe that aspects of the Cruzan decision are illuminating.8\nThe issue before us is one of statutory interpretation; it is therefore a question of law subject to plenary review by this Court to be conducted de novo. As neither party challenges the Superior Court’s determination that the appeal falls within exceptions to the mootness doctrine, we decline to exercise our discretion to review that finding and proceed on that premise. Cf. Rendell v. Pa. State Ethics Comm’n, 603 Pa. 292, 309, 983 A.2d 708, 718 (2009).\nIn statutory interpretation, our task is to discern the intent of the Legislature, and the foremost indication of legislative intent is the plain language of the statute. See 1 Pa.C.S. § 1921(a) — (b); see, e.g., In re Erie Golf Course, — Pa.-, -, 992 A.2d 75, 85 (2010). Here, as Appellees amply develop, and as the orphans’ court determined, Section 5462(c)(1) explicitly limits the category of persons empowered to refuse life-preserving medical treatment on behalf of an incompetent person who is not faced with an end-stage *514condition or permanent unconsciousness to health care agents. See 20 Pa.C.S. § 5462(c)(1). Although the Act provides certain powers to guardians and health care representatives, see, e.g., id. §§ 5460(b), 5461(c), it does not explicitly authorize either surrogate to object to life-preserving care under Section 5462(c)(1) in the noted circumstances. Cf. 1 Pa.C.S. § 1924 (“Exceptions expressed in a statute shall be construed to exclude all others.”).\nChapter 54 reflects a careful legislative effort to balance various rights and interests in the sensitive arena of personal medical care provided to one who is not competent to assert his or her own rights. On the one hand, the statute manifests respect for advance health care directives, as well as the decisions of close relatives and friends, where the incompetent person suffers from an end-stage condition or permanent unconsciousness, and enables health care providers to comply with such decisions. See, e.g., 20 Pa.C.S. §§ 5423(a)(1), 5423(c)(4), 5426, 5431, 5456, 5462(c). The enactment, on the other hand, more sharply regulates the situation in which the incompetent person suffers from a life-threatening but treatable condition, obviously reflecting the Legislature’s assertion of a policy position of greater state involvement to preserve life in such circumstances. As Appellees develop, Section 5462(c)(1) does allow for life-preserving medical treatment to be refused in such instances, but only by a health care agent (or the principal should he or she regain the capacity to make health care decisions). Moreover, since a health care agent can only be designated by a competent principal, see id. § 5452(a) (“An individual of sound mind may make a health care power of attorney ... ”), we also agree with Appellees and the orphans’ court that such refusal is unavailable in the case of one who has never been competent to delegate the act of personal medical decision-making in the first instance.\nAlso in line with Appellees’ arguments and the orphans’ court’s decision, and for the reasons they have advanced, we agree that the guardianship statute does not alter this regime. Section 5521(d) and (f) of the Probate, Estates and Fiduciaries Code, by their own terms, do not provide the exclusive list of unauthorized acts for guardians. Rather, the proscription expressly subsumes acts forbidden of guardians under other statutes, such as Section 5462(c)(1). See id. § 5521(f).\nWe also agree that the Superior Court adopted too limited a perspective concerning the Act’s scope. While the Act clearly reflects the express policy of empowering competent adults to effectuate advance health care directives, the provision for health care representation even in the absence of such directives, see id. § 5461, clearly conveys that the statute advances other purposes as well. Accordingly, we are unable to disregard the limitations inherent in Section 5462(c)(l)’s clearly-worded exception to the general requirement for treatment for life-threatening but curable medical conditions.9\n*515With regard to Appellants’ argument that the accountability provision of the Act demonstrates a legislative intent to afford guardians powers at least coextensive with the health care agent, since that section subordinates a health care agent’s decision-making authority to that of a guardian, see id. § 5460(a), we disagree. Section 5460(a) can readily be construed as providing an additional layer of protection to incompetent persons, as a health care agent may be deprived of the power to make life-ending decisions by a guardian. Moreover, although the statute expressly affords a guardian the ability to “revoke” or “amend” the appointment of a health care agent, see id., it does not confer the power to appoint such an agent in the first instance. This dovetails with the plain-meaning interpretation of the overall enactment reflected in Appellees’ arguments and the orphans’ court’s decision — the Act simply does not allow for the refusal of life-preserving care to one who has never had the ability to appoint a health care agent and does not suffer from an end-stage condition or permanent unconsciousness.\nWe recognize Appellants’ concern with the possibility that David may face additional medical interventions which they may quite reasonably regard as painful and intrusive. Further, we make no policy-oriented criticism of the position Appellants have taken, which we have no doubt reflects deeply held beliefs arising out of their personal experience with David’s profound disability and ongoing medical needs. We find only that the salient policy decision has been made by the Legislature, in Section 5462(c)(1) of the Act, as is its prerogative as the policy-setting branch. See Program Admin. Servs., Inc. v. Dauphin County Gen. Auth., 593 Pa. 184, 192, 928 A.2d 1018, 1017-18 (2007). In the absence of meritorious arguments grounded in the Constitution, the courts are bound to enforce the statutory qualifications on David’s right to control his treatment as exercised by his guardians.\nWe hold that where, as here, life-preserving treatment is at issue for an incompetent person who is not suffering from an end-stage condition or permanent unconsciousness, and that person has no health care agent, the Act mandates that the care must be provided.10\nThe order of the Superior Court is affirmed, albeit we have disapproved a portion of its reasoning. Jurisdiction is relinquished.\nChief Justice CASTILLE, Justices EAKIN, BAER, TODD, McCAFFERY and ORIE MELVIN join the opinion.\n\n. Act of Nov. 29, 2006, P.L. 1484, No. 169 § 4 (as amended 20 Pa.C.S. §§ 5451-5471) (\"the Act\"). The Act is reposed in a subchapter of Chapter 54 of the Probate, Estates and Fiduciaries Code, entitled \"Health Care,” and the Chapter 54 definitions, see id. § 5422, and legislative findings and intent, see id. § 5423, pertain.\n\n\n. The Chapter 54 definition of \"incompetent,” see 20 Pa.C.S. § 5422, overlaps substantially with the guardianship scheme’s definition of \"incapacitated,” see id. § 5501. If there is a difference, it is not material to the resolution of this appeal, and it is undisputed that David is both an incompetent and incapacitated person for purposes of the respective enactments.\n\n\n. According to an amicus, \"health care representatives,” who may be family members or other individuals who know the incompetent person, see 20 Pa.C.S. § 5461(d), act as surrogate decision-makers of last resort. In any event, the concept is not directly relevant here, since a \"health care representative,” as understood through the Act, may make a health care decision only where a guardian with the general power to make such decisions has not been appointed. See id. § 5461(a)(3).\n\n\n. The Superior Court also determined that this interpretation was consistent with the common law distinction between an agent and a guardian, and that its conclusion was compelled by practical considerations. See D.L.H., 967 A.2d at 981-82.\n\n\n. See Brief for Appellants at 9 (\"[T]he Legislature, in essence, specifically and expressly defined 'extraordinary medical treatments’ in sections 5521(d) and (f). Because the Legislature did not include the discretion to control ... mechanical ventilation in the list of excluded duties of guardians, [Appellants] were within their authority to exercise this control on David's behalf.”).\n\n\n. See, e.g., Brief for Appellants at 8 (\"Without a clear definition of [the] phrase [\"extraordinary medical treatment”,] the health care system will establish a ‘safety zone’ that will contribute to the erosion of the rights of incapacitated persons who will now be forced to submit to a range of procedures that, even arguably, might be ‘extraordinary.’ \"); id. at 10 (“[T]he Superior Court's parents [sic] patri-ae analysis goes against the modern trend and is a step backward because that procedure precludes the kind of on-the-spot decision making that cases like this call for.”).\n\n\n. Appellees also argue that, even assuming the Act is inapplicable to those who have never been competent to make personal medical decisions, the same result is reached under the common law rule. See In re Estate of Dorone, 517 Pa. 3, 9, 534 A.2d 452, 455 (1987).\n\n\n. Also aiding our review, amicus briefs have been submitted by: Disability Rights Network of Pennsylvania, the ARC of Pennsylvania, Achieva, Vision for Equality, Liberty Resources, Inc., Pennsylvania Developmental Disabilities Council, and Not Dead Yet; the Pennsylvania Medical Society and the Hospital and Healthsystem Association of Pennsylvania; and Dr. George Isajiw, Dr. John A. Flamini, Dr. John M. Travaline, Dr. Karl Ben-zio, and the Pennsylvania Family Institute.\n\n\n. To the extent that Appellants argue that applying Section 5462(c)(1) to a lifelong incompetent implicates that person's common law right to refuse medical care, this Court has held that, \"[w]here the Legislature expressly provides a comprehensive legislative scheme, these provisions supersede the prior common law principles.” Stemlicht v. Stemlicht. 583 Pa. 149, 163. 876 A.2d 904, 912 (2005). Thus, by virtue of that provision, which requires that life-preserving treatment must be provided to an incompetent who is not suffering from end-stage medical condition or permanent unconsciousness and has not appointed a health care agent, the Legislature has supplanted the common law right to refuse medical treatment in these instances.\n\n\n. The Pennsylvania Medical Society and the Hospital and Healthcare Association of Pennsylvania, as amici, have submitted a brief centrally focused on their concern that the Superior Court's holding, broadly read, might unduly impinge on statutorily authorized surrogate decision-making in the end-of-life and permanent-unconsciousness scenarios. Nothing in this matter should be so read, as Appellants obviously favor broad decision-making powers on behalf of surrogates; Appellees have consistently expressly distinguished the \"life-sustaining treatment” scenario as being \"radically different” from that involving a life-threatening but curable condition; and thus, a \"life-sustaining treatment” situation has never been before the courts in this case. See generally Commonwealth v. McCann, 503 Pa. 190, 195, 469 A.2d 126, 128 (1983) (reflecting the axiom that the holding of an opinion is to be read against the facts that are before the court).\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued May 11, 2010.","precedential_status":"Published","slug":"in-re-dlh"} {"case_name":"Com. v. Donton","case_name_full":"COM. v. DONTON, S.","case_name_short":"Com.","citation_count":0,"citations":["174 A.3d 85"],"court_full_name":"Superior Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Superior Court of Pennsylvania","court_type":"SA","date_filed":"2017-06-20","date_filed_is_approximate":true,"id":5169073,"opinions":[{"ocr":true,"opinion_id":4990327,"opinion_text":"\nCP-46-CR-0012644-2002\n(Montgomery)\nAffirmed\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"com-v-donton"} {"attorneys":"George H. Mitchell, for the plaintiff., John C. Prizer, for the defendant.","case_name":"H. W. Butterworth & Sons Co. v. B. F. Sturtevant Co.","case_name_full":"H. W. Butterworth & Sons Company v. The B. F. Sturtevant Company","citation_count":0,"citations":["176 A.D. 528"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1917-02-09","date_filed_is_approximate":false,"headnotes":"Sale — agreement of manufacturer of defective machine to bear expense of remedying defect — failure of vendor of defective machine to make repairs promptly — when manufacturer not liable for damages caused by vendor’s delay — judgment roll in prior action — evidence.
The plaintiff sold to the Price Company heating machines manufactured by the defendant and guaranteed by it to evaporate a certain quantity of water from a “tenter frame” of certain dimensions which latter machine was manufactured by the plaintiff and sold to the Price Company at the same time. As the defendant’s heating machine did not develop the efficiency guaranteed, the present plaintiff notified the defendant of the refusal of the Price Company to pay for the machinery and the defendant directed the plaintiff to make alterations in the “ tenter frame ” machine so as to afford the defendant’s heater more opportunity for evaporation, the defendant offering to pay the expense of the alterations. Although the plaintiff’s contract with the Price Company had a time limit set for performance, the alterations were not completed by the plaintiff until some time thereafter, and when the plaintiff sued the Price Company for the value of the machines the latter counterclaimed for damages caused by the delay and the- present plaintiff notified the defendant of said counterclaim and that it would hold the defendant to reimburse it for any damages caused by the defect in the defendant’s heater. The defendant did not join in the defense of the former action and in the present action, brought on the defendant’s guaranty, the judgment roll in the former action was introduced over the objection of the defendant, the court holding that it was binding upon the defendant and refusing to allow any evidence against the same.
Held, that the judgment in the former action was competent only to prove that the defendant’s heater did not meet its guaranteed capacity, thereby necessitating some delay, and that as this fact was admitted by the defendant the introduction of the judgment roll was unnecessary.
Held further, that the defendant’s offer to prove that the delay which caused damage to the Price Company was due partly to the fault of the plaintiff in failing to proceed with reasonable dispatch to make the repairs for which the defendant had offered to pay was improperly rejected, and that it was error for the court to dismiss the complaint.
","id":5407346,"judges":"Smith","opinions":[{"author_str":"Smith","ocr":true,"opinion_id":5244645,"opinion_text":"\nSmith, J.:\nThis plaintiff in 1912 sold to the Price Fireproofing Company of Poughkeepsie certain machinery for a plant at Poughkeepsie, N. Y. Among the machines which the plaintiff sold to the Price Company was a tentering machine manufactured by it and a heater manufactured by the B. F. Sturtevant Company, this defendant. A tentering machine is a machine for the stretching of fabrics. The heating machine furnished by the defendant was guaranteed by the defendant to evaporate from *530eighteen to twenty pounds of water per minute from a ninety-foot tenter frame. After the installation of this machinery for the Price Company this plaintiff demanded payment therefor, which was refused. Thereupon the plaintiff sued the Price Fire & Water Proofing Company, the successor of the Price Company, for its claim, which was admitted to. amount to $5,356.60. The defendant therein, however, counterclaimed in that action, claiming that the machinery was in part defective, to which repairs were necessarily made by the Price Company, and also damages for delay in putting the machinery in satisfactory condition to do the work for which it was guaranteed. » That action was tried before the court without a jury. It was proven that the heater which was guaranteed by this defendant was not adequate to evaporate the amount of water guaranteed upon the passing of the fabric over the ninety-foot tenter frames. This Sturtevant heater was furnished in August, 1912. Complaint was made of its insufficiency to the plaintiff on January 20, 1913. On January twenty-first the plaintiff made complaint to the Sturtevant Company, which immediately directed the plaintiff to make alterations in its tenter frames so that the fabric would pass over a longer space, which would furnish more opportunity for evaporation, and the defendant offered to pay the expenses of such alterations, which plaintiff undertook to make. These improvements were made by putting in some rollers and passing the fabric back and forth until, instead of of its passing over ninety feet of the tenter frame it passed over a much larger space, and upon the completion of the alterations the Sturtevant heater was found to be sufficient to adequately dry the fabric for the Price Company. These alterations were not completed until May 13, 1913, and in the counterclaim in the plaintiff's action against the Price Company plaintiff was charged with the sum of $3,760 for the delay between January twentieth and May thirteenth, the time within which these alterations were being made. Upon the assertion of the counterclaim in the Price action this defendant was given notice thereof, with full notice that the plaintiff would claim reimbursement from the defendant for any damage for which it was charged by reason of the defect in the defendant’s heater. The defendant, however, did not join in the defense.\n*531This action is brought by the plaintiff upon the defendant’s guaranty, claimed here to be an indemnity, to recover the amount charged the plaintiff upon the counterclaim of the Price Company in the former suit. The judgment roll in that former action was introduced in evidence against the objection of the defendant, and the trial court held that it was binding upon the defendant by reason of the fact that the defendant had notice and an opportunity to defend that action, and refused to allow the defendant to offer any evidence as against the same. Holding that that judgment record was binding against the defendant, the trial court ruled that the defendant was liable to repay to the plaintiff the sum of $3,760, with interest, which in the former action was found to be the damages caused by the delay from January 20, 1913, to May 13, 1913, during the time the repairs were being made to the tenter frames, made necessary by the insufficient heater. These damages were a part only of the damages allowed to the Price Company, upon'its counterclaim. Before the judgment was directed the defendant offered to prove, among other things, that “ the delay was due exclusively to the fault of the plaintiff, who did not notify the defendant until January 21, 1913, that the drying apparatus was operating unsatisfactorily, although defendant’s apparatus had been delivered on August 30,1912, and although the defendant (sic) well knew long before January 21,1913, that the drying apparatus was not operating in accordance with its guarantee to the Price Company, and although the delay in making final and complete tests was expressly due to the necessity of remedying admitted defects in the construction of plaintiff’s tenter frame. Further, that defendant (sic) delayed unreasonably in altering the drying apparatus so as to comply with the guarantee, even after being authorized so to do by defendant at defendant's expense, and after consenting so to do.\" The jury was directed to find a verdict for the plaintiff for the sum of $4,095, which was made up of the sum of $3,760 with which the plaintiff was charged by reason of the delay in its suit against the Price Company, and interest.\nIt is unnecessary to determine in this action how far a third party may be bound by a judgment in an action of which he is *532notified but has had no opportunity to come in and assume the defense of the action. It seems clear that this judgment if competent at all was competent simply to proye that the defendant’s heater was inadequate to its guaranteed capacity, thereby necessitating some of the delay. But it is admitted by the defendant that the heater was inadequate to take from the fabric that was passed over the tenter frames the amount of water guaranteed, and, therefore, the introduction of the judgment was unnecessary for the purpose of establishing that fact. One of the findings of the court in the action against the Price Company was that of $5,212.42, the damages allowed upon the defendant’s counterclaim, the sum of $5,056.71 represented the amount of the damages suffered by the defendant in that action as the result of the failure of the Sturtevant blower and heater and its equipment manufactured by the B. F. Sturtevant Company to accomplish the evaporation guaranteed therefor in the written guaranty signed by the Sturtevant Company and dated July 1, 1912. In other findings it appears, however, that part of this $5,212.42 allowed upon the counterclaim in the Price action was suffered by the necessity of plaintiff’s making repairs to machines with which the defendant was not in any way connected, amounting to between $400 and $500. It is also found that certain goods had to be retreated by reason of defects in the machinery and equipment, at a cost to the Price Company of $975.22, which was included in the ultimate damage allowed. It is clear that this defendant had not indemnified the plaintiff for any repairs necessarily made to machines with which the defendant was in no way connected, and it is not found that the goods which were in fact retreated were necessarily retreated by reason of defects in the defendant’s heater. The plaintiff in its contract with the Price Company had a time limit set for the performance of its contract. It was charged with this $3,760 for the delay between January 20 and May 13, 1913. It was not an issue in that case, however, as to whether all of that delay was necessarily caused by the failure of the defendant’s heater to accomplish the results guaranteed, and if this defendant had appeared in that action and had sought to raise that issue with this plaintiff, the court would not have permit*533ted the Price action to be incumbered with that extraneous issue between the plaintiff and a third party from whom indemnity was claimed and in which the Price Company had no interest whatever. Whether the defect in the defendant’s heater, therefore, was the cause of the four months’ delay with which the plaintiff has been charged in the Price action has not been determined by any court competent to determine the same, and was, therefore, an open question in this action. The defendant’s offer of proof that part of that delay was caused by the default of the plaintiff itself in failing to proceed with reasonable dispatch to make the repairs for which the defendant had offered to pay and which the plaintiff had undertaken was, therefore, improperly rejected. If it be assumed that .the defendant was responsible for delays reasonably and necessarily caused by the defect in its heater, it cannot be charged with a four months’ delay if the repairs could have been made in one month by the plaintiff who had undertaken to make those repairs at the defendant’s expense. It is apparent, therefore, that the finding that of the damages allowed upon the counterclaim in the Price action some $5,000 was due to the failure ■of the defendant’s heater to perform the guaranteed work, was inconsistent with other findings made, and was upon an issue which was not presented in that action and could not have been tried therein if presented.\nThese considerations require a reversal of the judgment upon the defendant’s appeal, and also constitute a full answer to the plaintiff’s complaint upon its appeal that the judgment should be enlarged.\nThe judgment should, therefore, be reversed and a new trial granted, with costs to the defendant, appellant, to abide the event.\nClarke, P. J., Laughlin, Dowling and Page, JJ., concurred.\nJudgment reversed and new trial ordered, costs to defendant, appellant, to abide event.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"h-w-butterworth-sons-co-v-b-f-sturtevant-co","summary":"Cross-appeals by the plaintiff, H. W. Butterworth & Sons Company, and by the \"defendant, The B. F. Sturtevant Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of February, 1916, upon the verdict of a jury rendered by direction of the court, and also an appeal by the defendant from an order entered-in said clerk’s office on the 18th day of February, 1916, denying its motion for a new trial made upon the minutes. The plaintiff appeals from said judgment solely on the ground that the amount thereof is not so large as it should have been."} {"case_name":"Crandall v. New York Central Railroad","case_name_full":"James Crandall and Another, as Administrators, etc., of Jennie Crandall v. The New York Central Railroad Company, Respondent Wesley W. Sutliff, as Administrator, etc., of Adella Sutliff v. The New York Central Railroad Company","case_name_short":"Crandall","citation_count":0,"citations":["241 A.D. 902"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1934-05-15","date_filed_is_approximate":true,"id":5495683,"opinions":[{"ocr":true,"opinion_id":5335307,"opinion_text":"\nMotion for leave to appeal to the Court of Appeals denied, with ten dollars costs. Present — Hill, P. J., Rhodes, McNamee, Bliss and Heffernan, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"crandall-v-new-york-central-railroad"} {"attorneys":"Samuel Firestone, for the appellant., Arthur Rosenzweig, for the respondent.","case_name":"Equity Service Corp. v. Agull","case_name_full":"Equity Service Corporation v. Milton Agull","case_name_short":"Agull","citation_count":0,"citations":["158 Misc. 780"],"court_full_name":"Appellate Terms of the Supreme Court of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Terms of the Supreme Court of New York","court_type":"SA","date_filed":"1936-03-06","date_filed_is_approximate":false,"id":5581726,"opinions":[{"ocr":true,"opinion_id":5423843,"opinion_text":"\nPer Curiam.\nThe transaction was not one of insurance. We also find that it was not tainted with usury. The motion to dismiss upon the ground of a binding provision to arbitrate was not renewed and must be regarded as waived.\nJudgment reversed, with thirty dollars costs, and judgment directed for plaintiff for the relief demanded in the complaint.\nAll concur. Present — Lydon, Hammer and Frankenthaler, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"equity-service-corp-v-agull"} {"attorneys":"John L. Cadwalader, for the relators., Justice Lane, the respondent in person,, \nJohn M. Scribner, Jr.,\n","case_name":"People ex rel. Metropolitan Board of Health v. Lane","case_name_full":"THE PEOPLE, ex rel. METROPOLITAN BOARD OF HEALTH, against LANE","case_name_short":"Lane","citation_count":0,"citations":["6 Abb. Pr. 105","55 Barb. 168"],"court_full_name":"New York Supreme Court","court_jurisdiction":"New York, NY","court_short_name":"New York Supreme Court","court_type":"ST","date_filed":"1869-05-15","date_filed_is_approximate":true,"headnotes":"Justices’ Courts.—Trial by Jury.
A justice holding a district court ill the city of New York has no power to impannel a jury of more than six.
The provision of the constitution securing the trial by jury “ in all cases in which it has heretofore been used,” does not prevent the legislature from authorizing trials to be had otherwise than by a common law jury of twelve, in civil courts of local jurisdiction, in the case of actions in which the amount claimed does not exceed the limit of such jurisdiction, as it was established before the constitution took effect.
The statute authorizing a trial by a jury of six in a justice's court, although the amount exceeds that limit, is not unconstitutional, if it also allows the defendant the right to remove the cause to a Court of record, where he eould have a trial by a jury of twelve.
","id":5611211,"judges":"Sutherland","opinions":[{"author_str":"Sutherland","ocr":true,"opinion_id":5455805,"opinion_text":"\nSutherland, J.\nThere are two actions brought by the relators pending in the district court of the sixth judicial district of this city, of which Thaddeus H. Lane is the justice.\nOne of the actions is against James W. Ranney, physician, to recover a penalty of $250, or several penalties in the aggregate amounting to $250, for alleged violations of certain provisions of the act constituting the Board of Health, in relation to returns of deaths, &c.\nThe other action is against Thomas P. Kerr, to recover a penalty of $100, or several penalties in the aggregate amounting to $100, for alleged violations of a certain order or ordinance of the Board of Health relating to tenement houses.\nIn the action against Ranney he appeared on the return day named in the summons, and putting in an answer to the complaint which joined an issue of fact, demanded, in the usual form, a trial by jury, and paid the fees therefor. The trial was thereupon adjourned, and was from time to time thereafter adjourned until December 4, 1868, on which day the action was called for trial *119before the said justice, the parties appearing by counsel; and the justice thereupon proceeding to impannel a jury of six men, the defendant by his counsel demanded a jury of twelve men, and insisted that he could not be compelled to go to trial with a jury of six men. The relators by their counsel agreed and were willing to proceed to trial either with a jury of six or twelve, but the justice, holding that the defendant was entitled to a common law jury of twelve, and that he, the said justice, had no power to impannel other than a jury of six, refused to proceed further with the action, and the same remains pending before the justice, undisposed of.\nIn the action against Kerr, the defendant, at the time of joining issue, insisted that he was entitled to a common law jury of twelve, and the justice then decided that he was entitled to a jury of twelve. The trial was then • adjourned from time to time until February 9, 1869, when the defendant appeared and declared his readiness to proceed with the trial, but the justice held that a common law jury of twelve having been demanded, he had no power to proceed with the trial, and the action remains pending before the justice, undisposed of.\nThe relators move for two several writs of mandamus, one commanding the justice to try and dispose of the action against Ranney with six jurors, and the other commanding the justice to try and dispose of the action against Kerr with six jurors.\nBy subdivision 2 of section 3 of the act of April 13, 1857,—relating to the district courts in this city (as amended, Laws of 1858, 569),—these courts have jurisdiction “ in an action upon the charter, ordinance or bylaws of the corporation of the city of New York, or -a statute of this State, where the penalty shall not exceed two hundred and fifty dollars.”\nBy section 34 of the act of 1857, a trial by jury must be demanded at the time of joining an issue of fact, but when demanded the case may be adjourned until a time fixed for the return of the jury, and this section expressly provides that the issue of fact shall be tried by a jury of *120six persons to be drawn ont of a list or panel of twelve to be summoned.\nIt is very clear that the justice was right in holding that he had no power to impannel a jury of twelve to try the actions. These district courts are statutory courts, having all their powers and jurisdiction conferred upon them, and regulated and limited by statutes. The act of 1857 provides for trials, in certain cases, by a jury of six. It makes no provision for a trial in any case or under any circumstances, by a jury of twelve, or of any number other than six.\nThe constitution of 1846 (the present State constitution) has this provision : “ The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever, but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.”\nHo question is made here, and no question appears to have been made before the justice, that the causes of action, and the amounts claimed in the actions against Ranney and Kerr severally, were not within the jurisdiction conferred on the district court by section 3 of the act of the act of 1857, as amended in 1858 ; but as section 34 of the act of 1857 applies to all cases in which an issue of fact is joined, and a trial by jury claimed, the justice, in holding'that the defendants Ranney and Kerr were severally entitled to a common law jury of twelve, which he had no power to impannel or use in 1ns court, substantially held said section 34 to be unconstitutional and void as to the actions against Ranney and Kerr, and as to the defendants in said actions.\nHo doubt a common law jury consisted of twelve men.\nIt has been substantially said in several cases in the court of appeals and the supreme court, that the purpose of the constitutional provision which has been quoted, was to secure the continuance of the right of trial by a common law jury of twelve men in cases where or in which a trial by a jury of twelve was used when the constitution was adopted (Cruger v. Hudson River R. R. Co., 12 N. Y. [2 Kern.], 190, 198 ; Wynehamer v. Peo*121ple, 13 Id. [3 Kern.], 427, 458 ; (Reason v. Keteltas, 17 Id., 498; People v. Kennedy, 2 Park. Cr., 317, 321; People v. Carroll, 3 Id., 22 ; Warren v. People, Id., 544 ; Duffy v. People, 6 Hill, 77, 78, &c.; People v. Goravin, 5 Wend., 253 ; Murphy v. People, 2 Cow., 815).\nIt was not the purpose of the constitutional provision to enlarge the practice or use of trials by a jury of twelve men (Cases before cited, and Lee v. Tillotson, 24 Wend., 337; Rathbun v. Rathbun, 3 How. Pr., 139 ; Sands v. Kimbark, 27 N. Y., 147; Matter of Empire City Bank, 18 N. Y., 199).\nBut what has been said, if conceded, does not relieve the decision of the constitutional questions presented by the action and decision of the justice in the actions against Ranney and Kerr from difficulties.\nTo go no farther back, the act of April 5,1813, gave justices of the peace cognizance of certain actions in which the debt, damages, amount, or penalty demanded did not exceed $25, and provided for the trial of issues, at the option of either of the parties by a jury of six, to be drawn from a panel of twelve (1 Rev. Laws of 1813, 387, 391, §§ 1, 9).\nThe act of April 13, 1824, extended the jurisdiction of justices of the peace, so as to give them jurisdiction, when the balance due, or the damages or thing demanded did not exceed $50, and this act also provided for the trial of issues by a jury of six to be drawn from a panel of twelve (Laws of 1824, 279, 283).\nBy the Revised Statutes, justices’ courts had jurisdiction in certain specified actions, where the debt or balance due, or damages claimed did not exceed $50 ; and in actions for a penalty not exceeding $50, given by any statute of this State ; and contained substantially the provisions of the acts of 1813 and 1824, as to trials of issues by a jury of six.\nBy the act of May 14, 1840 (Laws of 1810, 265, &c.), amending the Revised Statutes, the jurisdiction of justices of the peace, in the actions named in the Revised Statutes, was extended so as to give them jurisdiction of such ac*122tions, when the debt or balance due or the damages claimed did not exceed $100, and of all actions for a penalty not exceeding $100 given by any statute.\nThe jurisdiction and proceedings of courts of justices of the peace, as prescribed by the Revised Statutes as amended by the act of 1840, continued in force, so far as I am informed, until the Code of 1848.\nNeither the provisions of the Revised Statutes nor either of the acts which have been referred to, applied to the city and county of New York, or to the courts of inferior civil jurisdiction in that city and county ; but from them it must be presumed, that when the constitution of 1846 was being framed, and when it was adopted, trials by a jury of six, or otherwise than a common law jury of twelve, were in use in justices’ courts other than in the city and county of New York, as undertaken to be authorized by the legislation referred to, and ha l been in use in such courts since 1813 ; and, since 1840, had been in use in such courts in actions for a penalty not exceeding $100, given by any statute, and in certain other actions, when the debt or balance due, or the damages claimed, did not exceed $100.\nI think the reported cases which have been referred to, show that an insertion in the constitution of 1846, of the provision which has been quoted, and its adoption, should be viewed as recognizing and sanctioning this usage, and as affirming the constitutionality under the constitution of 1822 (which contained a provision in the same words as the one quoted from the constitution of 1846) of the provisions of the Revised Statutes, and acts referred to, which undertook to authorize the usage.\nWhat had been the legislation, and what must be presumed to have been the usage as to trials by a jury of six, or otherwise than by a common law jury of twelve, in the inferior courts of the city of New York, of civil jurisdiction, prior to the constitution of 1846, and what must be presumed to have been such usage in such courts when the constitution was being framed, and when it was adopted %\n*123To go no farther back, the act of April 19, 1813 (2 Rev. Laws of 1813, 370, § 85), provided for the appointment of one assistant justice for ea,ch of the wards of the city, except the ninth, and for two assistant justices for the ninth, and gave such assistant justices power to hold courts for the trial of certain specified actions, when the sum or balance due, or damages or thing demanded, did not exceed $25, and for all sums Of money not exceeding $25 recoverable by suit in any court of record by any statute of this State, and generally for the trial of all such actions as were triable before justices of the peace in the respective counties of the State. Section 95 of the act (page 374) provided for the trial of issues in such courts, at the option of either of the parties, by a jury of six to be drawn from a panel of twelve.\nBy the act of January 4, 1820, the act of 1813 was amended, so that the assistant justices courts, of the city of Héw York, in all actions of which they had jurisdiction by the act of 1813, had jurisdiction to the amount of $50, and under. This act left the provisions in the act of 1813 as to the trial of issues, in force.\nThe assistant justices’ courts of the city of Hew York were recognized and continued with their powers and jurisdictions by the Revised Statutes (2 Rev. Stat., 224), and so far as I am informed, existed with such powers and jurisdictions when the constitution of 1846 took effect.\nFrom the legislation relating to these assistant justices’ courts, which has been referred to, it is to be presumed that when the constitution of 1846 was being framed, and when it was adopted, trials by a jury of six, or otherwise than by a jury of twelve, had been used in them since 1813, and that since 1820 such trials had been used in them, in actions for penalties, and other actions of which they had jurisdiction, when the penalty or debt or damages claimed did not exceed $50 ; but it must be conceded that, prior to'the constitution of 1846, the legislature had not undertaken to give these courts jurisdiction in the actions of which they had jurisdiction, to an *124amount beyond $50 ; and it is to be presumed that trials by a jury of six, or otherwise than by a jury of twelve, prior to the constitution of 1846, had not been used in such courts in actions for the recovery of a penalty, debt, or damages exceeding $50, for it is to be presumed that such actions had not been brought in such courts.\nBy the act of March 30, 1848, the city of New York was divided into six judicial districts, and a court established in each district, to be called the “justices’ courts of the city of New York.” The act provided for the election of justices for such courts, and gave to the justices to be elected all the powers and jurisdiction of the assistant justices, and abolished the assistant justices’ courts.\nBy the act of April 12, 1848, the name or designation of “justices’ courts of the city of New York,” was changed back to that of “ assistant justices’ courts of the city of New York.”\nThe Code of 1848 (which took effect July 1, 1848), recognized and continued substantially the jurisdiction of these courts by the name of “assistant justices’ courts.”\nBy the Code, as amended in 1849, the style of these courts was again changed to “justices’ courts of the city of New York,” and their jurisdiction as to the sum or amount recoverable extended, as I understand it, to $100.\nBy the act of April 16, 1852, the style of these courts was changed to that of “district courts in the city of New York.”\nThe act of April 15, 1857, which has been referred to, which extended (as amended in 1858) the jurisdiction of these “ district courts,” as to the penalty, sum or amount recoverable in them to $250, may be regarded as re-organizing these “district courts,” and as thus amended, in deciding these motions, may be regarded as prescribing their powers, jurisdiction and proceedings, when the actions against Ranney and Kerr were brought.\nNow as to the question of constitutional right raised by the proceedings in the action against Kerr, which ac*125tion is for a penalty of $100, or several penalties in the aggregate amounting to $100, and in which Kerr claimed he had a right to a common law jury of twelve, at the time issue was joined, in view of all that has been said, and of the cases and legislation which have been referred to, I think the modifying words, “in all cases in which it has been heretofore used,” in the provision which has been quoted from the constitution of 1846, should be regarded as recognizing and sanctioning, not merely the usage as to trials otherwise than by a jury of twelve as it then existed, and had been authorized by legislation in courts of justices of the peace, the assistant justices’ courts, and other inferior courts of local jurisdiction, but should be regarded as also recognizing the general principle that the legislature might provide for the trial of actions otherwise than by a common law jury of twelve-in inferior courts of local civil jurisdiction, in which the penalty, debt, damages, balance due or amount claimed did not exceed $100, the amount to which courts of justices of the peace had jurisdiction by the Revised Statutes, as amended by the act of May 14, 1840, before referred to.\nThe constitutional provision should be viewed as recognizing and protecting the right to a trial by a common law jury of twelve in cases in courts of record, in which it had been theretofore used, but the qualifying words which have been quoted imply that there were and had been trials otherwise than by a common law jury, and the framers of the constitution must be presumed to have had knowledge of previous legislation and usage as to trials otherwise than by a jury of twelve in inferior courts of local jurisdiction, and must be presumed to have recognized and adopted the principle which had dictated the legislature, and which originated and undertook to authorize the usage.\nI think the legislature could, without violence to the constitutional provision, give courts of justices of the peace jurisdiction of actions in which the amount claimed did not exceed $100, other than such as these courts had *126jurisdiction of when the constitution of 1846 was being framed, or when it was adopted, and provide for a compulsory trial at the option of either party by a jury of six, of such additional actions committed to the jurisdiction of courts of justices of the peace ; and I think the legislature could extend the jurisdiction of the assistant justices’ courts in the city of Hew York, by the name of justices’ courts in the city of Hew York, as it seems it did in 1849, by amending the Code so as to give such courts jurisdiction of actions similar to those of which courts of justices of the peace had jurisdiction, when the amount claimed did not exceed $100, and provide for a compulsory trial by a jury of six at the option of either party ; and I think the legislature could and did, constitutionally, in the act of 1857, relating to the district courts of this city, provide for compulsory trials by a jury of six, at the option of either party, as to actions within the jurisdiction of such courts, in which penalty or penalties, debt, damages or amount claimed, did not exceed $100; and irrespective of the question whether these district courts should be regarded as new inferior courts of local civil jurisdiction established under the constitution of 1846, or as substantially the same courts as the former assistant justices’ courts.\nThe constitution of 1822 contained, in immediate connection with the provision as to trials by jury, this provision: “And no new court shall be instituted but such as shall proceed according to the course of the common law, except such courts of equity,” &c. This provision was left out of the constitution of 1846, but it contains the'following provision: “Inferior local courts of civil and criminal jurisdiction may be established by the legislature in cities, and such courts, except for the cities of Hew York and Buffalo, shall have an uniform organization and juristiction in such cities.”\nThese views, if correct, are decisive of the case of Kerr ; as it follows from them that Justice Laxe, under the act of 1857, had and has power to impannel a jury of six to try the issues in the action against Kerr, and to try *127the issues with such jury, and that Kerr could not rightfully claim the protection of the constitutional provision as to trials hy jury.\nAs to the constitutional question raised hy the proceedings in the action against Ranney for a penalty of $250, or several penalties, in the aggregate amounting to $250 ; I do not think it can he said that the act of 1857 violates his constitutional right to a trial of the issues hy a common law jury of twelve men, for hy subdivision 3 of section 3 of the act he had and has the right at any time after issue joined, and before the trial, to remove the action to the court of common pleas, where he can have a trial hy a jury of twelve men, upon executing an undertaking to the plaintiff with one or more sureties to he approved hy the justice, to pay any judgment which may he recovered against him in the court of common pleas.\nI do not think that these terms, upon which he can have a jury of twelve, should he regarded as such a clog upon his constitutional right to a trial hy a jury of twelve as to he a violation of it.\nMoreover, Ranney did not claim a right to a jury of twelve at the time issue was joined, nor until after several adjournments, hut at the time issue was joined, he did demand a trial hy jury, which meant such a jury trial as he could have in that court. Now I am not sure that it cannot he said that Ranney waived any right to a jury of twelve, otherwise than hy complying with the terms mentioned in section 3 of the act of 1857.\nUpon the whole, I think both motions should he granted without costs ; hut the mandamus in the case of Ranney must be, that Justice Latte try and dispose of the action with a jury of six, unless Ranney removes the action to the court of common pleas under section 3 of the act of 1857 before the commencement of the trial in the district court.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-ex-rel-metropolitan-board-of-health-v-lane","summary":"Mandamus. These proceedings were taken in the name of the People on the relation of the Metropolitan Board of Health against Thaddeus H. Lane, justice of the district court of the sixth judicial district of the city of New York. The relators commenced two actions in the sixth district court, of which the respondent is the justice; one against James W. Ranney, to recover a penalty of $250 for different violations of the provisions of the statute in relation to returns of \"births and deaths, and the other against John B. Kerr for a penalty of $100 for the noncompliance with an order of the relators in relation to tenement houses. The defendants in such suits demanded a jury trial, and insisted that they could not \"be compelled to go to trial with any jury \"but a jury of twelve men, and the justice decided that they were entitled to a jury of twelve, but that, as the statute gave him no power to summon such jury, that he could not proceed in any way. The relators applied to the supreme court for a mandamus requiring the justice to proceed and try the actions."} {"attorneys":"Ilo Orleans for appellants., Harold M. Weinberg for respondent.","case_name":"In re the Construction of the Will of Bluestein","case_name_full":"In the Matter of the Construction of the Will of Samuel Bluestein, Murray Goodman, as Executors of Samuel Bluestein, Appellants Rose Bluestein","citation_count":0,"citations":["302 N.Y. 760"],"court_full_name":"New York Court of Appeals","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Appeals","court_type":"S","date_filed":"1951-04-12","date_filed_is_approximate":false,"id":5636213,"opinions":[{"ocr":true,"opinion_id":5481661,"opinion_text":"\nOrder affirmed, with costs to each party appearing separately and filing separate briefs payable out of the estate. No opinion.\nConcur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, and Froessel, JJ. Fuld, J., dissents upon the ground that; in making a gift to his business associate of “ any and all interest ” in his accounting practice, the testator intended an absolute and unconditional bequest.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued February 26, 1951;","precedential_status":"Published","slug":"in-re-the-construction-of-the-will-of-bluestein"} {"attorneys":"APPEARANCES OF COUNSEL, Steinberg & Cavaliere, LLP, White Plains (Ronald W. Weiner of counsel), for appellant., Sivin & Miller, L.L.P., New York City (Edward Sivin of counsel), for respondent.","case_name":"Kaur v. American Transit Insurance","case_name_full":"Sarbjeet Kaur, as Receiver of Gladys Towncars, Inc. and Another v. American Transit Insurance Company, and Baker, McEvoy, Morrissey & Moskovits, P.C.","case_name_short":"Kaur","citation_count":0,"citations":["19 N.Y.3d 827","968 N.E.2d 994"],"court_full_name":"New York Court of Appeals","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Appeals","court_type":"S","date_filed":"2012-05-01","date_filed_is_approximate":false,"id":5641543,"opinions":[{"ocr":true,"opinion_id":5487354,"opinion_text":"\nOPINION OF THE COURT\nOn review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, order of Supreme Court, New York County, reinstated and certified question answered in the negative. Triable issues of fact exist concerning defendant-appellant’s successor liability (see Schumacher v Richards Shear Co., 59 NY2d 239, 245 [1983]).\nConcur: Chief Judge Lippman and Judges Cipakick, Graffeo, Read, Smith, Pigott and Jones.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"kaur-v-american-transit-insurance"} {"attorneys":"Fred T. Cadmus, 3rd, for plaintiffs., Theodore O. Rogers, County Solicitor, for defendants.","case_name":"Detterline v. Rubino","case_name_full":"Detterline v. Rubino","case_name_short":"Detterline","citation_count":0,"citations":["48 Pa. D. & C.2d 725"],"court_full_name":"Pennsylvania Court of Common Pleas, Chester County","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Chester County Court of Common Pleas","court_type":"ST","date_filed":"1969-10-17","date_filed_is_approximate":false,"id":6520003,"judges":"Gawthrop","opinions":[{"author_str":"Gawthrop","ocr":true,"opinion_id":6393651,"opinion_text":"\nGAWTHROP, P. J.,\nPlaintiffs seek to enjoin defendants from carrying out the terms of a contract between the County of Chester, acting through a majority of its Board of County Commissioners, and Cole-Layer-Trumble Company, Inc., for reevaluation of all lands in the county for tax assessment purposes, to enjoin the county controller from paying out any moneys pursuant to said contract, to restrain the chief assessor and the Board of Assessment and Revision of Taxes of the county from taking any action pursuant to the contract, and for a determination that the contract is illegal, null and void. The *726case was tried on complaint and answer which, with the evidence presented, raised two issues: (1) that the county was without legal authority to enter into the contract under the provisions of The Fourth to Eighth Class County Assessment Law of May 21, 1943, P. L. 571, as amended, 72 PS §5453.306, and (2) that defendant county commissioners by entering into the contract were guilty of capricious conduct or abuse of power in failing to investigate other superior methods of handling assessments, particularly in failing to make adequate investigation of the proposal of General Electric Company (GE) and in making no investigation of the method of Howze and Associates, Inc.\nFACTS\nFrom the evidence adduced the facts are as follows:\nTheodore S. A. Rubino, J. Carl Empie and Louis F. Waldmann entered upon their duties as Commissioners of Chester County on the first Monday of January 1968. Shortly thereafter, they agreed unanimously and still agree that a reevaluation of real estate for tax purposes is necessary. They further unanimously agreed and still agree that if such reevaluation cannot be done by the staff of the chief assessor of the county it should be done by a professional appraisal firm.\nMessrs. Rubino and Empie asked both Christian Shank, the Chairman of the Board of Assessment and Revision of Taxes and Walter S. Pierce, chief assessor of the county for some five years before April 1, 1969, to determine whether the county staff could make the reevaluation. Mr. Shank expressed the opinion that they could not. Mr. Pierce advised them that all but six of the employes on his staff are clerical workers, and that those six persons, his field men who value all new construction, subdivisions and ad*727ditions to buildings, could not do more than they are already doing. Particularly, they could not reevaluate between 74,000 and 87,000 parcels of land in the county.\nMr. Empie was informed by a Commissioner of Lancaster County that Lancaster had tried unsuccessfully to reevaluate its real estate through the use of its own assessor’s staff and that the program had become “so fouled up that they had to call in Cole-Layer and Trumble to straighten them out.” Based on Messrs. Shank and Pierce’s opinions, on the magnitude of the work involved, and the report of Lancaster County’s experience; Messrs. Rubino and Empie were satisfied that the county assessor’s staff could not and should not attempt to reevaluate all the properties in the county. Mr. Waldmann concurred in this view.\nThe previous reevaluation of real estate in this county in accordance with the requirements of the Fourth to Eighth Class County Assessment Act, was made by Cole-Layer-Trumble Company, Inc. (Cole) prior to 1960. That company has done such work for more than 30 counties in Pennsylvania, has a good reputation as an appraisal firm as is conceded by its competitor, James A. Howze, and is made up of persons of integrity and ability, as is acknowledged by Commissioner Waldmann.\nMr. Empie discussed with at least one commissioner of Bucks, Montgomery and Lancaster Counties Cole’s charges and the degree of satisfaction with its work. C. Gilbert Hazlett, former Commissioner of Chester County for whom plaintiffs’ counsel expressed high regard, recommended Cole to Mr. Empie, as did also members of the Pennsylvania Economy League and both the Chairman of the Board of Commissioners and the Chief Assessor of Montgomery County. The director of research of the National As*728sociation of Counties, in a letter to Commissioner Waldmann dated August 14, 1968, which was shown to Mr. Empie, referred to Cole as doing “a good job,” stated that its charges of about $300,000 for the previous reevaluation were “a real bargain,” and that presently the cost would be considerably more. That letter suggested as possible appraisers four other companies, two of which are in Pennsylvania and the other two, including Howze and Associates, Inc., are in Florida.\nGE submitted a proposal of its computerized appraisal system and explained it in detail to the chief assessor and the Chairman of the Board of Assessment and Revision of Taxes, and later Dr. Kozik, who developed the system, went over it in detail with Messrs. Rubino and Empie. In addition GE’s marketing representative went over the system in detail with Mr. Rubino. Mr. Waldman did not attend or participate in the discussions held with GE’s representatives because he was unavailable and could not be reached to be in attendance.\nGE’s system had never yet been installed anywhere. It proposed establishment of a kind of “teamwork” operation which would use all existing data in the chief assessor’s office and the services of the local municipalities and the county’s assessors who would do the field work, coupled with GE’s computer technology operating out of its home office, for establishment of “homogeneous” land or property values throughout the county in order to “determine a sample house which would become the home for the homogeneous value area.” All “exceptional cases” would be flagged by the computer and “(i)f the exception was severe enough (GE) would have to do an eyeball inspection of that property.” In many instances, it would be impossible to establish a model property, but in any event, GE would expect and ac*729cept a margin of error in the result of from three to five percent of the parcels appraised. In cases of appeals from assessments, GE would provide expert witnesses only as to the operation of the system. It would not provide expert real estate appraisers as witnesses in support of the appraisals.\nGE’s estimate of cost of installing its system was $500,000, and the estimated cost of maintaining the system for the first year was $80,000 to $160,000 and $80,000 yearly thereafter.\nThe county’s data processing manager, Mr. Johnson, who was asked to analyze and make a recommendation concerning GE’s proposal, calculated GE’s annual charge for producing lists for tax duplicates and tax bills from its computer at $112,000. Based on his study of GE’s proposal, a conference with Dr. Johnson of GE, the possibility that the system of using sample properties might be held inadequate on assessment appeals, the fact that the system had not yet been installed anywhere, a study comparing on the one hand the annual cost of maintaining the GE system, its use in preparation of tax duplicates and tax bills, the cost of computer rental and of hiring programmers and punch card operators with the cost of the present system on the other, Mr. Johnson recommended orally to Mr. Rubino in the summer of 1968, and by letter on November 20, 1968 to the board of commissioners, the county controller, solicitor and engineer, that GE’s system not be installed. Both Mr. Johnson and the Board of Assessment and Revision were of the opinion that GE’s system could not do the work satisfactorily and at the same time was more expensive than the work of Cole.\nAt the 1968 State Convention of County Commissioners held in Pittsburgh, Mr. Empie discussed reevaluation costs with all appraisal firms which had representatives present, and obtained and studied a *730report of the League of Women Voters of Butler County which had made a survey of assessment costs and methods. He also considered all of the firms suggested in the August 13, 1968, letter from National Association of Counties to Mr. Waldmann and made telephone inquiries concerning them.\nAt a commissioners’ meeting on July 11, 1968, a motion was adopted to bring in Cole to go over the matter of reassessment and to proceed with reassessment of the county as soon as Cole could be brought in to discuss the matter, and further that the board be authorized to employ an outside firm to reassess the county. The intent of that motion was only to confer and discuss the matter and not to employ Cole at that time, as is confirmed by a motion adopted at a commissioners’ meeting held July 18, 1968, referring to the action taken on July 11th as exploratory only, and determining to investigate further the computer method of reevaluation. At the July 18th meeting Mr. Rubino stated that “the Board intends to investigate all firms qualified to do this reassessment and then select the one that will be the most inexpensive and the best qualified.”\nAbout September 1, 1968, Mr. Waldmann talked by telephone with James A. Howze, of Howze and Associates, Inc., Tampa, Fla., an appraisal firm using computer processes and one of the firms mentioned in the National Association’s letter of August 13, 1968, shown to Mr. Empie. However, although shortly after September 1st he received correspondence and literature from Howze, Mr. Waldmann did not ask a Howze representative to come to West Chester until December 12, 1968, after the award of the contract to Cole on November 21,1968.\nDuring the week before November 21, 1968, Mr. Waldmann was present at a meeting of the commissioners with representatives of Cole and made no ob*731jection to employing Cole. He was also present on November 20, 1968, when Mr. Johnson reported to the commissioners in writing his recommendation against hiring GE and in favor of Cole. Messrs. Rubino and Empie had informed Mr. Waldmann of Cole’s offer to make the reassessment for about $550,000 and the agenda for the commissioners’ meeting of November 21, 1968, on which the matter of reevaluation was listed was prepared and available by noon on November 20th.\nAt some unspecified time before November 21, 1968, Mr. Waldmann had mentioned the Howze firm to Mr. Empie, but he does not recall whether he then had any detailed information about that firm. He did not press the matter further with either of his fellow commissioners and no representative of Howze communicated with either of them. Neither did he make further inquiries about or investigation of that firm or its appraisal system until after the board had awarded the contract to Cole. Not more than two weeks before November 21, 1968, Messrs. Rubino and Empie had reached the informal decision that Cole should be employed to make the reassessment. Mr. Waldmann first suggested to the board at the meeting held November 21, 1968, that the Howze firm be considered. Mr. Howze, representing his company, did not come to West Chester on Mr. Waldmann’s invitation until January 1969 when he met privately with Mr. Waldmann “to talk to him generally.” He did not meet or communicate with the other commissioners.\nThe Howze system is in operation in certain counties in Florida and Tennessee and is being installed in one county in North Carolina but nowhere north of those States. Its approach is to add replacement cost of buildings, less depreciation, to market value of land and to undertake to keep valuations current by use of a computer. Mr. Howze had not made and *732could not give an estimate or opinion of the cost of installing his system in this county on the basis of the county’s renting its own computer, nor of the annual cost of operating the Howze system on that basis. However, he estimated the cost of operating the Howze system on the basis of Howze itself handling all computer work and the county collecting and supplying all information to Howze to be fed into its computer, at from $1 to $2 per parcel of land, or as much as $148,000 per year on a basis of 74,000 parcels to be reassessed. According to Mr. Johnson’s estimate, if Chester County were to maintain the Howze system, it would require renting a computer for about $8,000 per month, and a key punch machine at $70 per month. In addition, it would be necessary to employ two programmers with specialized training at about $15,000 per year each, as well as about 20 additional key punch operators. The rental cost to the county for maintaining its own computer and key punch machines, and the cost of necessary additional programmers and key punch operators would be substantially the same or more under the Howze system than for operation of the GE system.\nBased on the investigation and study they had made, at a commissioners’ meeting held November 21, 1968, Messrs. Rubino and Empie, over the opposition of Mr. Waldmann, adopted a motion to award to Cole a contract to reassess all real estate in the county. Mr. Rubino stated at that time the intention and purpose of maintaining in the chief assessor’s office sufficient qualified personnel to keep current annually thereafter the assessments to be made by Cole.\nAt a commissioners’ meeting held December 19, 1968, Mr. Waldmann reported that by letter of December 12, 1968, he had invited a representative of Howze and Associates to come to West Chester, ob*733tain the information necessary, make a study of the reassessment program and thereafter present Howze’s reassessment proposal. Mr. Rubino pointed out the action of the board on November 21, 1968, awarding the contract to Cole and a motion to authorize execution of the contract with Cole, in the form presented at that meeting was adopted, Messrs. Rubino and Empie voting in favor of the motion and Mr. Waldmann opposed.\nDISCUSSION\nThe County Code of August 9, 1955, P. L. 323, sec. 202(4), 16 PS §202(4), expressly empowers counties to “(m)ake contracts for carrying into execution the laws relating to counties and for all lawful purposes,” and section 203 of the code, 16 PS §203, provides that “(t)he corporate power of each county shall be vested in a board of county commissioners.”\nThe Fourth to Eighth Class County Assessment Law of May 21, 1943, P. L. 571, art. VI, sec. 602, as amended, 72 PS §5453.602, requires the chief assessor of a county to “assess, rate and value all subjects and objects of local taxation . . . according to the actual value thereof.” The duty thus imposed upon the chief assessor may be carried out by a contract entered into by the commissioners who, long before the Act of 1943, supra, have been authorized by law to do so: Pardee v. Schuylkill County, 276 Pa. 246. And valuations so arrived at may properly be adopted by the chief assessor and the Board of Assessment and Revision as their own. Cf. Hammermill Paper Company v. Erie, 372 Pa. 85, 95-96. But plaintiffs contend that, having once entered into a contract under sec. 306(b) of the Act of 1943, supra (72 PS §5453.306(b) ) for establishment of a permanent records system of assessments and having established that system, the county has exhausted its power to contract for reevaluation *734or reassessment of lands in the county by an independent assessment firm.\nIn support of that position, they rely on a dictum from Ingham v. Dodds, 30 D. & C. 2d 310. Not only are the facts of that case clearly distinguishable, but the quotation relied on by these plaintiffs is neither decisional in that case nor necessary to a determination of the question there involved. Furthermore, the provisions of sec. 306(a) of the Act of 1943, 72 PS §5453.306(a), make it the duty of the Board of Assessment and Revision, inter alia, not only to establish a permanent records system but “to keep it current.” Clearly, the subject matter of the contract here in question is not the establishment for a second time of a permanent records system but only a reevaluation of lands for the purpose of keeping current the valuations of the properties already a part of the permanent system, with necessary additions to or adjustments in regard to them. We are satisfied, in view of the complexities involved in evaluating lands in a rapidly developing area such as Chester County, that it was never the intention of the legislature to proscribe the necessary updating of land valuations by entering into contracts with professional appraisers to make reevaluations merely because a permanent records system had already been established, and we find no merit in plaintiffs’ first contention.\nTo prevail on their second ground of attack, plaintiffs have a heavy burden to establish fraud, bad faith, capricious conduct or abuse of power on the part of defendant commissioners. In such cases, . . we start with the well-settled proposition that in the absence of bad faith, fraud, capricious conduct or abuse of power, courts will not interfere with the acts of governmental or administrative bodies involving the exercise of discretion. [Citations omitted.] The wisdom of such action or the details of the manner *735adopted to carry them into effect are matters into which courts will not inquire”: Eways v. Board of Road Supervisors, 422 Pa. 169, 171.\n“The presumption is that the acts of executive officers are done for public good. When their actions are challenged, the burden of showing to the contrary rests on those asserting it, and it is a heavy burden; courts can and will interfere only when it is made apparent that discretion has been abused”: Barnes and Armbruster v. Scranton Poor District, 105 Pa. Superior Ct. 149, 151-52, reaffirmed in Mayer Brothers Construction Company v. Erie Parking Authority, 189 Pa. Superior Ct. 1, 6.\nUnder the facts, all three commissioners have always agreed that inequities in the present assessments require a reevaluation. Defendant commissioners and the board of assessment and revision, aided by the chief assessor and controller, faithfully investigated the available methods of reevaluation and the firms available to perform the work. There is no evidence whatever of fraud or bad faith in the awarding or execution of the contract with Cole, nor is there any evidence of capricious conduct or abuse of power in so doing. That Cole has a reputation for doing competent work wherever employed is clear and is acknowledged by Mr. Howze, its competitor, and Mr. Waldmann concedes that its personnel are persons of ability and integrity. Not only was Cole highly recommended by Mr. Hazlett, a predecessor commissioner, but by the Pennsylvania Economy League and a commissioner and the chief assessor of Montgomery County, as well as by its performance in some 30 other counties in Pennsylvania and its prior performance in Chester County. The cost of its services were both fair and reasonable and also favorable when compared with GE’s proposal, and when compared later with those of Howze and Asso*736ciates, Inc., whose system would be at least as expensive, if not more so, than Cole’s. Defendant commissioners also made inquiries concerning other appraisal firms brought to their attention, but plaintiffs’ attack here is almost entirely directed at the determination not to employ GE and a failure to investigate further the Howze system.\nIt early became obvious that the reevaluation could not be made by the county’s existing staff in the chief assessor’s office, although the need for reevaluation was evident. Legal authority for employing professional appraisers for the purpose existed which Commissioner Waldmann by his conduct both acknowledged and sought to exercise. The sole area of disagreement among the commissioners involved the identity of the firm and the nature of the system to be employed in order to establish values which could be kept current annually, either by the chief assessor’s staff alone or by use of some computerized system, with or without the aid of that staff. Careful analysis made of GE’s proposal demonstrated: (1) that it would involve great expense of installation and heavy annual expense of operation and maintenance; (2) that it was based upon the legally doubtful principle of establishing model homes and areas; (3) that it conceded a margin of error up to five percent of the properties evaluated; (4) that on assessment appeals GE would not provide appraisers who would support the valuations established, and (5) that it had never yet been installed anywhere so that the county would be a “guinea pig” for its initial tryout.\nThe Howze system, when first brought to defendant commissioners’ attention in early September 1968, was in use only in a few localities in the southern United States, had undergone several revisions since it was initially installed without computers in 1962, *737and since then has involved computerized methods as did GE’s proposed system. Neither Mr. Waldmann nor anyone else prior to the award of the contract to Cole on November 21, 1968, or its execution in December 1968, apprised defendant commissioners of the details of the Howze system or the expense of installing or maintaining it. However, they had already investigated fully GE’s proposal of a computerized system and found it unacceptable as well as unreasonably expensive. By reason of their general investigation and particularly their study and analysis of GE’s computerized system, they were not guilty of capricious conduct or abuse of power and, clearly, were free from fraud and bad faith in not investigating further the Howze system. But had they had before them before November 21, 1968, the evidence as to the Howze system which was developed at trial, the correctness of their action in awarding the contract to Cole would have been the more apparent because: (1) at trial, Mr. Howze was unable to estimate the cost of installation of his system in this county, (2) his estimate of cost of operation of his system if Howze used its own computer was as much as $2 per parcel of land, or $148,000 annually, for the minimum of 74,000 parcels, (3) he could not estimate the cost of operation of his system if the county rented its own computer but Mr. Johnson’s estimate thereof was at least equivalent to or more than that for GE’s system, and (4) in final analysis, the Howze system’s approach of adding reproduction cost of buildings, less depreciation, to market value of land is fatally defective as a matter of law and unacceptable because it would not support the valuations so made. In United States Steel Corporation v. Board of Assessment and Revision of Taxes, 422 Pa. 463, at 467 it was said: “We have held that, within the meaning of statutes of this nature, the term ‘actual value’ refers to market value *738[Citations omitted] . . . Accordingly, the attempt on the part of Steel to apply depreciated reproduction cost as the value-fixing standard must fail. As we indicated in both Baldwin Lima and Buhl Foundation, supra, and on numerous other occasions, reproduction cost has no probative value for any purpose in fixing the fair market value of improved real estate for tax purposes.” (Italics supplied.)\nIt is, therefore, clear to us, and we hold, that defendant commissioners were authorized by law to enter into the contract with Cole, that the contract is legally valid, and that plaintiffs, having failed to carry their burden of proving bad faith, fraud, capricious conduct or abuse of power by defendant commissioners, are not entitled to the relief they seek.\nCONCLUSIONS OF LAW\n1. The contract entered into between the County of Chester, acting through Commissioners Rubino and Empie, with Cole-Layer-Trumble Company, Inc., is legally valid.\n2. Commissioners Rubino and Empie were not guilty of bad faith, fraud, capricious conduct or abuse of power in entering into and executing said contract on behalf of the county.\n3. The relief prayed for should be denied and the complaint should be dismissed.\nThe following upon praecipe will be entered as a final decree unless exceptions are filed within 20 days after notice of filing this adjudication.\nDECREE NISI\nAnd now, October 17, 1969, this matter having been heard and considered, it is ordered, adjudged and decreed that\n1. The relief prayed for is denied and the complaint is dismissed.\n2. Plaintiffs will pay the costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"detterline-v-rubino"} {"attorneys":"Donald J. Fleming for the plaintiff., Ferdinand B. Sowa for the defendant.","case_name":"Richard v. Planning Board","case_name_full":"Conrad P. Richard v. Planning Board of Acushnet","case_name_short":"Richard","citation_count":0,"citations":["10 Mass. App. Ct. 216"],"court_full_name":"Massachusetts Appeals Court","court_jurisdiction":"Massachusetts, MA","court_short_name":"Massachusetts Appeals Court","court_type":"SA","date_filed":"1980-07-07","date_filed_is_approximate":false,"id":6582485,"judges":"Kass","opinions":[{"author_str":"Kass","ocr":true,"opinion_id":6456694,"opinion_text":"\nKass, J.\nFollowing refusal by the planning board of Acushnet (board) on May 16,1978, to endorse the plan filed by the plaintiff “approval under the subdivision control law not required” pursuant to G. L. c. 41, § 81P, he appealed from the board’s action to the Superior Court under G. L. c. 41, § 81BB. The plaintiff (Richard) claimed entitlement to a § 8 IP endorsement on the ground that he was merely altering the boundaries of lots on an existing approved subdivision plan so as to create larger lots than those originally shown. This he had to do in order to comply with changes in the minimum lot area requirements of the Acushnet zon*217ing by-law made since the approval of the original plan.1 Richard took the position that his new plan did not disclose a subdivision because the lots drawn all had the requisite frontage on “a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law.” G. L. c. 41, § 81L, definition of the word “Subdivision”, exception (b). The judge determined that the board acted within its authority in refusing a § 8 IP endorsement. We affirm.\nWe summarize the facts found by the judge, by which we are bound unless they are clearly erroneous, Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), and which in this case are amply supported by the record. Acushnet first voted to establish a planning board at a town meeting held March 9, 1957, and provided that its selectmen were authorized to act as a planning board until members of the newly constituted planning board were elected. No election took place until March, 1959, and the first documented sign of life of the new planning board did not appear until March 23, 1960, when it made the first written record of its proceedings in the form of minutes of an organizational meeting.\nPrior to that organizational meeting, on February 29, 1960, the selectmen of Acushnet, apparently purporting to act as the planning board, endorsed approval of a plan entitled “Crandon Acres” showing a subdivision of twenty-six lots and a layout of streets called Crandon Drive, Berry Place and Vine Court. Those streets have not been built to date, nor have houses been built upon any of the lots, except in a location not material to this action. Crandon Drive, Berry Place and Vine Court on the new plan are to this day no more than paper streets.\nRichard applied for his “subdivision approval not required” endorsement on May 4, 1978, i.e. eighteen years *218after the approval of the original plan. His new plan was a redivision of lots 7 through 10 and 12 through 20 shown on the 1960 plan. The locus of the new 1978 plan has in the intervening time been the site of gravel excavation and it is now located twenty-five feet below the grade of the surrounding land.\nAs stated by the parties, the fundamental question is whether a plan showing lots of sufficient frontage and area to comply with then applicable zoning requirements, fronting on ways shown on a plan previously approved and endorsed in accordance with the Subdivision Control Law, is exempt from further subdivision control (because by definition the plan does not disclose a “subdivision” as that word is defined in § 81L), even though those ways have never been built and exist on paper only. Put in that fashion, the question is not susceptible to an answer of uniform application because it fails to take into account significant factual variables.\nFor example, if the new plan showed lots of lawful dimensions abutting ways on an earlier approved plan, but the earlier approved plan contained conditions which had not been met, then the new plan would not be exempt from subdivision control and would not be entitled to an “approval not required” endorsement under § 81P. Costanza & Bertolino, Inc. v. Planning Bd. of No. Reading, 360 Mass. 677, 678-681 (1971). In that case, a covenant entered into by the developer pursuant to G. L. c. 41, § 81U, required him to complete the construction of ways and installation of the municipal services within two years from the date of the execution of the convenant. The developer had not done so and the court held that the planning board had properly declined to make a § 81P endorsement.\nIt follows that in a case where the landowner has filed a bond, or deposited money or negotiable securities, or entered into a covenant to secure the construction of ways and installation of municipal services, and a new plan is presented which merely alters the number, shape and size of the lots, such a plan is entitled to endorsement under § 81P, *219“provided every lot so changed still has frontage on a public way ... of at least such distance, if any, as is then required by . . . by-law . . .” G. L. c. 41, § 810; and provided, of course, that conditions for execution of the plan have not already been violated, as was the case in Costanza & Bertolino.\nIndeed, the provisions of the fifth paragraph of § 81U concerning securing of completion of the ways and municipal services of a subdivision plan are mandatory. For all that appears, the Acushnet selectmen, acting as the interim planning board, did not articulate the manner in which the ways were to be constructed, what municipal services were to be furnished or the standards to which that work was to be done. Reference to the regulations of the planning board is of no help because those were not adopted until some three years after the endorsement of the original plan. We are of the opinion that exception (b) of the definition of “Subdivision” in § 81L requires either that the approved ways have been built, or that there exists the assurance required by § 81U that they will be built. Otherwise, the essential design of the Subdivision Control Law — that ways and municipal services shall be installed in accordance with specific municipal standards — may be circumvented. Rettig v. Planning Bd. of Rowley, 332 Mass. 476, 480 (1955). Costanza & Bertolino, Inc. v. Planning Bd. of No. Reading, 360 Mass. at 679-680. Access which is safe and convenient and adequate provisions for water, sewerage, drainage, and underground utility services are among the stated legislative purposes. G. L. c. 41, § 81M. See Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149, 152-156 (1959); Dolan v. Board of Appeals of Chatham, 359 Mass. 699, 701 (1971). We are to interpret the subdivision control statutes so as to further that goal. Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807 (1978). In the instant case, where the locus is twenty-five feet below the surrounding land, the municipal concern about the safety of the grades of the roads giving access to the lots and about adequate drainage facilities is particularly compelling. Compare *220Green v. Board of Appeal of Norwood, 358 Mass. 253, 262-263 (1970), which deals with an unrecorded agreement unrelated to statutory requirements or regulations of the planning board.\nOn the view we take of the case, it is not necessary to decide the other issues raised by the plaintiff.\n\nJudgment affirmed.\n\n\nThe grace periods under G. L. c. 40A, § 6, inserted by St. 1975, c. 808, § 3, had long since expired. See § 7A of The “old” Zoning Enabling Act as appearing in G. L. c. 40A prior to its comprehensive amendment by St. 1975, c. 808, § 3.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"April 11, 1980.","precedential_status":"Published","slug":"richard-v-planning-board"} {"attorneys":"Henry C. Conrad and Daniel 0. Hastings for plaintiff., Anthony Higgins for defendant.","case_name":"Taylor v. Plunkett","case_name_full":"William Taylor v. Philip Plunkett and John F. McLaughlin, Constable","case_name_short":"Taylor","citation_count":0,"citations":["20 Del. 467"],"court_full_name":"Superior Court of Delaware","court_jurisdiction":"Delaware, DE","court_short_name":"Superior Court of Delaware","court_type":"SA","date_filed":"1903-12-11","date_filed_is_approximate":false,"headnotes":"\nReplevin—Execution—Personal Property—Real Estate; Convey-\n
\nance of; Carries Fxtures, but not Personal Property,\n
unless Named—Delivery of Personal Property—
Subsequent Possession— When liable
\nto Execution.\n
1. A conveyance of real estate carries with it to the grantee the ownership of such articles as were then actually fixed or fastened to the freehold, as for example, bakers’ tables, trays, etc., fastened to the building by nails; and such articles so affixed to the freehold were a part thereof, and could not, after such conveyance, be seized under execution, as personal property of the grantor.
2. A conveyance of real estate does not carry with it to the grantee the owner, ship of personal property, which may be on the premises, unless such personal property is named or referred to in such conveyance.
3. If personal property be sold by A to B, it will continue liable to be taken in execution as the property of A, unless it was actually delivered into the possession of B as soon as it could conveniently be done after the making of such sale. And if sold and delivered to B, yet if it afterwards comes into and continues in the possession of A, it will be liable to be taken under an execution against him.
","id":6676540,"judges":"Spruance","opinions":[{"author_str":"Spruance","ocr":true,"opinion_id":6555589,"opinion_text":"\nSpruance, J.,\ncharging the jury:\nGentlemen of the jury :—This is an action of replevin by *468William Taylor against Philip Plunkett and John F. McLaughlin, constable.\nIt is admitted that all of the goods in question were taken by McLaughlin as constable, under an execution in his hands in favor of Philip Plunkett, against John B. Taylor, and that afterwards under a suit of replevin in favor of the plaintiff, William Taylor, against the defendants Plunkett and McLaughlin, all of the said goods were taken out of the hands of McLaughlin and delivered to the said William Taylor.\nThe plaintiff, William Taylor, claims that all of the goods levied on were his property, except a few household articles which belonged to his two sisters, a lot of empty Sour barrels, the owner of which is unknown, and one wagon which belonged to John B. Taylor, and that all the articles levied on were in his, the plaintiff’s, lawful possession at the time of said levy.\nThe question for your determination is what, if any, of said goods were lawfully levied upon by McLaughlin under said execution.\nIt is admitted that prior to said levy, the house and premises in and on which all of the goods were found at the time of the levy, had been sold and conveyed by the said John B. Taylor to the plaintiff, William Taylor.\nWhile the deed conveying said premises made no mention or reference to any personal property, the plaintiff claims that under said sale and conveyance, he became the owner of such fixtures and personal property as were then in or on the part of said premises used and occupied as a bakery.\nA conveyance of real estate carries with it to the grantee the ownership of such articles as were then actually fixed or fastened to the freehold—as for example, bakers’ tables, trays, etc., fastened to the building by nails—and such articles so affixed to the freehold were a part thereof, and could not after such conveyance be seized under execution, as personal property of the grantor.\nA conveyance of real estate does not carry with it to the *469grantee the ownership of personal property, which may be on the premises, unless such personal property is named or referred to in such conveyance.\nBut even if the personal property in the bakery had been sold by John B. Taylor to William Taylor, it would continue liable to be taken in execution as the property of John B. Taylor unless it was actually delivered into the possession of William Taylor, as soon as it could conveniently be done after the making of such sale > and if such personal property had been so sold and delivered to the said William Taylor, yet if it afterwards came into and continued in the possession of the said John B. Taylor, it would be liable to be taken under an execution against him.\nRev Code p. 526, See. 4, Ch. 68.\nIf any part of the property levied on belonged neither to William Taylvr nor John B. Taylor, but to some third person or persons, known or unknown, and was, at the time of the levy, in the lawful possession of William Taylor, the levy upon it was unlawful.\nAs all of the property levied on has been delivered to William Taylor, under the replevin, if you find that all or any part of it was not liable to be levied on under said execution against John B. Taylor, your verdict should be for the plaintiff for nominal damages only and his costs.\nIf you find that any part of such property was liable to be levied on under said execution against John B. Taylor, your verdict should be for the defendants for the return of the same, or the value thereof, as appears by the evidence, and his costs.\nYou may, therefore, if the evidence so warrants, find a verdict for the plaintiff or defendants, or you may find a verdict in favor of the plaintiff and a verdict in favor of the defendants as we have already stated.\nVerdict for plaintiff for six cents.\nVerdict for defendant for $37.00.\n","per_curiam":false,"type":"020lead"}],"other_dates":"November Term, 1903., May Term, 1903).","precedential_status":"Published","slug":"taylor-v-plunkett","summary":"Action of Replevin"} {"attorneys":"Falda, Aaher, Greene, & Kelso, for appellant., Scott Bex, for respondent.","case_name":"Smith v. Hoff","case_name_full":"JAMES L. SMITH v. JOHN C. HOFF","case_name_short":"Hoff","citation_count":0,"citations":["20 N.D. 419","127 N.W. 1047"],"court_full_name":"North Dakota Supreme Court","court_jurisdiction":"North Dakota, ND","court_short_name":"North Dakota Supreme Court","court_type":"S","date_filed":"1910-09-21","date_filed_is_approximate":false,"disposition":"Writ granted and after review the district court is directed to reverse its order made on the first application.","headnotes":"Statement of Case — Time for Settlement — Extensions — Statutory Construction.
1. Section 7068, Rev. Codes 1905, providing that upon good cause shown and in furtherance of justice, a district court may extend the time within which any of the acts mentioned in §§ 7058 and 7065 may be done either before or after the time limited therefor has expired, is a remedial statute, and must be liberally construed in favor of the purposes obviously intended to be served by its enactment.
Appeal and Error — Statement of Case — Time for Settlement — Purpose of Limiting Time.
2. The purpose of providing a limited time for proposing and settling, a statement of the ease to be used on appeal is, under present conditions, fully served if these steps are taken at such time and in such manner as not to interfere with the prompt and orderly disposition, of the case upon, appeal.
Appeal and Error — Statement of Case — Extension of Time for Settlement — Discretion.
3. If from the showing of an applicant for an extension of time for the purpose of settling a statement of the case to be used on appeal, it appears that the appellant is prosecuting the appeal in good faith upon meritorious grounds, and that there is reasonable excuse for his failure to take the preliminary steps within the time limited by law, it is an abuse of discretion to deny him a reasonable extension of time for these purposes.
","id":6848910,"judges":"Con, Cur, Ellsworth","opinions":[{"author_str":"Ellsworth","ocr":true,"opinion_id":6736418,"opinion_text":"\nEllsworth, J.\nThe plaintiff and appellant in the above-entitled action applied to and' obtained from this court a writ of certiorari for the purpose of reviewing ah order of the' district court of the eighth judicial district, denying plaintiff’s application for a stay of proceed*420ings in the action, and an extension of time within which to prepare and settle a statement of the case to be used upon appeal. The full record acted upon by the' district court has been certified and transmitted to this court, and, on the hearing ordered by this court, no suggestion has been made that the practice pursued by appellant is not the proper means of obtaining a review of .an order of the district court from which there is no appeal, and no plain, speedy, and adequate remedy provided by law for any detriment or prejudice to a party arising therefrom. We will therefore review the facts out of which the proceeding in the district court arose, and the action of the court thereon, for the purpose of determining whether or not the authority of said court in the matter has been regularly pursued.\nPlaintiff’s action is, in substance, one to determine adverse claims to real property. He alleges that he is the owner in fee of certain lands situated in Ward county, and of certain lots in the city of Minót, and that while such' owner he entered into a contract with the defendant for the sale to him of the same; that defendant failed to pay the purchase price agreed upon in said contract and to comply with its terms in other important particulars; and that plaintiff has thereupon exercised his right under the terms of said contract, to cancel and declare the same forfeited and void. The relief prayed for is that the title of plaintiff may be quieted against any claims of defendant arising out of said contract. The defendant answered, denying plaintiff’s title to all of the real property in controversy, and alleged in substance that he, the defendant, was the owner in fee of the property, and that any conveyance of title made to plaintiff was held by him solely as security for the repayment of .a certain loan or advance of money made by plaintiff to defendant, and prayed that the amount of indebtedness of defendant to plaintiff for which the title of said property was held as security be determined, and that, upon payment of the same, the title of defendant be quieted as against any claim of plaintiff. The action was tried to the district court without a jury on April If, 19-09. The district court found the facts to be substantially as alleged by defendant, and ordered the entry of a decree adjudging defendant to be the owner in fee simple of the premises involved in the action, subject, however, to a claim of plaintiff as security for an indebtedness of $3,26f.60, with interest until paid at the rate of 12 *421per cent per annum. The conveyance of title held by plaintiff to the premises was declared to be, in law, a mortgage which might thereafter be foreclosed as such in case payment of the amount of the indebtedness specified was not made; and it was decreed that, upon satisfaction of plaintiff’s indebtedness, his action should be dismissed and title to the real property in controversy quieted in defendant. A formal decree in accordance with the mandate of this order was entered in the district court on May 15, 1909.\nAfter the order for judgment was made, but prior to the entry of the decree, on April 30, 1909, plaintiff made application to the district court for a stay of proceedings for a period of ninety days for the purpose of preparing a statement of the case to be used upon appeal from the decree. This application was summarily denied. Meantime, between the order for judgment and the entry of the decree by the trial court, the defendant, Hoff, conveyed his entire interest in the lots in the city of Minot to one Robinson. At about the same time and without knowledge of this conveyance, the Minneapolis, St. Paul, & Sault Sainte Marie Railway Company commenced a proceeding against Hoff for the purpose of condemning the said lots in the city of Minot to its use as station grounds. When the attorney for the railway company became advised of the fact that the title to the lots was no longer in Hoff, who was sole defendant in the condemnation proceedings, -it dismissed the action, and on or about May 22, 1909, commenced another, in which plaintiff and Robinson, defendant’s grantee, were named as defendants. Both defendants answered in the condemnation proceeding, ¿nd, before a trial of the same could be reached in regular course, the judge of the district court left the state for his summer vacation and was absent for a period of sixty days, returning to Minot and his district about September 1, 1909. During the month of August, 1909, Mr. L. W. Gammons, the sole attorney for the railway company in the condemnation proceedings, was taken ill, and from that time until his death, on December 11, 1909, was totally incapacitated for the performance of any service with reference to the trial of said condemnation proceeding. It was, however, regularly noticed for trial and placed on the trial calendar of the October, 1909, term of the district court and of a special term held in January, 1910. On January 4, 1910, plaintiff’s attorneys were appointed attorneys for the railway *422company as successors of Mr. Gammons, and at once proceeded to bring the condemnation proceeding to trial. It then transpired that certain jurisdictional facts necessary to tbe maintenance of such proceeding were known only to Mr. Gammons; and the railway company, being unable without his testimony to make proof of these facts or to secure an admission of the truth of the same from the attorneys for Mr. Eobinson, found it was necessary to again dismiss the condemnation proceeding. It was dismissed accordingly on February 17, 1910, and immediately thereafter, on the same day, another proceeding was commenced, which was brought to trial with promptness and despatch on March 16, 1910. A jury then made its award of damages for the taking of the lots in Minot in the sum of $5,500, which sum was entered in a final order of condemnation of said premises on March 25, 1910.\nIt appears from the showing made by plaintiff that intending to appeal from the judgment entered, upon the order of the district court made on April 15, 1909, for the purpose of preparing a statement of the case, he ordered from the official reporter of said district a transcript of all proceedings' had upon the trial of said proceeding, and that such transcript was delivered to him on or about May 17, 1909. As explanation of and justification for his subsequent delay in completing and procuring the settlement of such statement, he avers that at this time it became apparent that the lots in the city of Minot which represented almost the entire value of the real property in controversy would be condemned to the uses of the railway company. Such being the case, their entire value necessarily depended upon the assessment of damage made by the jury called to try the condemnation proceeding. Plaintiff shows that he made considerable effort to secure estimates that would enable him to forecast with some probability the award of the jury, and had reason to believe that it would not exceed the sum of $3,500. In case such estimate reasonably approximated the finding of the jury in the condemnation proceeding, the result of an appeal of this action, though wholly favorable to plaintiff, would be in no way to his pecuniary advantage, as the sum, with interest added, of the indebtedness for which the title to the property was subject as security to his claim, as declared by the decree of the district court, would equal, if not exceed, any value that could then possibly be realised *423from the property. He decided, therefore, to expedite as far as possible the determination of the condemnation suit, and to await its ■ontcome before proceeding further upon his appeal. Immediately upon the award of the jury in the condemnation suit, the trial of which plaintiff claims, so far as he was concerned, was, under the condition, forwarded with diligence and despatch, in a sum largely exceeding the value of his claim on the property as declared by the district court, he •decided to proceed with an appeal of this action; and, in order that he might properly prepare and present the same upon a showing of fact substantially as hereinbefore narrated, he applied to the judge of the ■district court for an order extending the time within which to propose .and settle a statement of the case. This application was made on May 7, 1910. A hearing on notice was ordered immediately, and had on May 13, 1910, when the district court, after considering the showing made by plaintiff and an adverse showing presented by defendant, entered its order denying the application. The reason assigned by the district court for its action was that no good reason existed for an extension of time to prepare and settle a statement of the case in the action, and that, should the time be extended upon “the application made nearly a year after the entry of judgment herein, it would in fact permit plaintiff to reap the results of speculation as to the outcome of a suit other than this entitled action;” and that plaintiff had been guilty of laches in the prosecution of any contemplated appeal.\nPlaintiff perfected his appeal to this court by service of a notice and undertaking on appeal and the filing of the same with the clerk •of the district court on May 11, 1910. As hereinbefore noted, pursuant to this appeal, the full record of the action had been transmitted to this court. If an extension of time is granted that will permit plaintiff to properly propose and settle a statement of the case, he declares his willingness to prepare his appeal and have it in readiness for submission at the next succeeding term of this court, which, in view of the time the appeal was perfected, is the earliest at which it would have been presented in any case.\nThe single point presented for our consideration is, therefore, whether or not the district court regularly pursued its authority and exercised a sound judicial discretion in making its order denying plaintiff’s application for an extension of time for the purpose of settling *424a statement of the case to be used upon this appeal. It may be assumed from the effort made by plaintiff to prepare his appeal upon a settled statement of the case, that the errors relied upon by him for a judgment other than that decreed by the district court do not appear upon the judgment roll proper, and can be brought to our attention only by means of a properly certified statement of the case. The-district courts of this state are given full authority “upon good cause-shown, and in furtherance of justice,” to extend the time within which a statement of the case may be prepared and settled, either before or after the expiration of the time limited for that purpose. Section 7068,. Bev. Codes 1905. This statute seems to contemplate broader powers and wider discretion than that conferred on trial courts by the laws of almost any other state. The character of the ‘power granted and the fact that the statute so conferring it is obviously remedial presupposes liberality in its exercise. Its exercise is not an absolute, nonreviewable authority, but a judicial discretion into the soundness of which this court may inquire whenever properly called to its attention.. Unless there is grave question, however, whether the discretion of the district court has been soundly exercised, it will not be disturbed. Johnson v. Northern P. R. Co. 1 N. D. 354, 48 N. W. 227; Moe v. Northern P. R. Co. 2 N. D. 282, 50 N. W. 715; McDonald v. Beatty, 9 N. D. 293, 83 N. W. 224. The statutes of our state have at all times, since statehood provided that, in order to procure the settlement of a statement of the case, it must be prepared and “proposed” within a. limited period after notice of entry of judgment. The courts have-invariably held that, in cases where these steps were not timely, they would refuse to settle the statement for the sole reason that it was proposed or presented out of time. The original purpose of such a statute was undoubtedly to require that oral testimony and verbal orders of the-court made during the course of a trial should be brought permanently upon its records promptly at a time when these proceedings were still fresh in the minds of the court and the attorneys. At the present time with the general employment of stenographers to commit to writing; the testimony given and the proceedings had at the time of their occurrence, the same reason does not exist for prompt action in the-preparation of such statement. The purpose of the statute, therefore,, requiring that the statement be proposed and settled within a limited *425time is fully served when these steps are taken with such despatch as will preclude interference with the prompt and orderly disposition of the case upon appeal. If preliminary matters have not been followed up with sufficient diligence to have the appeal in readiness for hear-* ing within the time contemplated by law, or the respondent has suffered prejudice or detriment by inattention to and inexcusable delay in the performance of necessary preparatory steps by the appellant, these facts of themselves operate conclusively to prevent the settlement of a statement of the case when it is attempted after the time limited by law; and, whatever the inducing cause for a failure to take these steps within the time limited by law, an application for an extension must be judicially determined by the trial court in a manner that subserves the interests of justice.\nUnder conditions as they now exist, some of the tests that we deem may be of value in determining whether or not the party applying after the expiration of the statutory time is entitled to an extension of time for settlement of a statement of the case are the following: (1) Do the facts shown by appellant as cause for an extension indicate that he is prosecuting the appeal in good faith upon meritorious grounds, without intent to delay its' orderly and timely despatch? (2) If the extension applied for is granted, will it operate to delay the hearing of the appeal beyond the period required in the ordinary course; and, if so, is this delay satisfactorily accounted for by appellant? (3) Is the respondent prejudiced, or will he to any degree whatever be placed at a disadvantage upon appeal by excusable delay of appellant in the performance of - the preliminary steps ? Applying these principles to the determination of the case at bar, we note, first, that there is no reason to believe that the appeal is not being prosecuted in good faith. The plaintiff makes an affidavit of merits and alleges numerous errors of the trial court. It is quite apparent that plaintiff, confronted with the situation that the only property of value involved in his appeal would be condemned to the use of the railway company, and necessarily in doubt as to the amount of the award that would then represent its value, might reasonably hesitate to incur the expense of appeal until such time as he knew the award would be greater than the sum which he would, in any event, receive out of the property. He seems to have been reasonably diligent so far as in him lay in bringing the *426condemnation proceeding to trial. When the award was made, he decided promptly to proceed with the appeal. At that time the status of -the property was unchanged, and the trial of the appeal would not be delayed beyond the time that it would have taken had plaintiff chosen to wait almost to the end of the year allowed for appeal before perfecting his appeal. Plaintiff was undoubtedly within his rights in waiting, if he saw fit, until the time for appeal had almost expired. Had he settled the statement of the case within the thirty days allowed for that purpose, and still delayed his appeal-until the time at which it was taken, the time of hearing would not be in any manner •expedited. In the meantime the relation of respondent and his grantee to the property has not in any manner changed, and an extension of time for the purpose of preparing a statement of the case will not in any manner operate to the prejudice of either.\nIn our view of the conditions, the district court placed upon the •statute permitting an extension of time a construction too strict and -technical. The right of appeal may be asserted on the last day of the period limited for its exercise, as meritoriously as on the first. Plaintiff was not therefore speculating upon his rights by delaying his appeal until the end of the year in which he was authorized to take it. The settlement of a statement of the case was an essential incident ■of this appeal, and the right to have it settled by the district court was as important and valuable to him as the right of appeal. A delay in its exercise that did not interfere with the right of appeal or the ■despatch of the hearing on appeal was therefore not an unwarranted ■.speculation upon the outcome of another suit, or an attempt to reap benefits therefrom to which he was not entitled. To deny appellant ■the means of properly presenting his appeal is in effect to defeat his right of appeal, and a construction so drastic as to produce such result is usually applied only in cases where the appellant is acting in bad faith or is guilty of gross laches. It does not appear that appellant in this case can be reasonably charged with either.\nThe order of the District Court denying the application of plaintiff for an extension of time for the purpose of settling a statement of the •case to be used upon appeal is therefore reversed, and that court is directed to enter an order granting a reasonable time after the transmission of this record to the District Court for that purpose.\nAll con•cur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"smith-v-hoff","summary":"Certiorari by James L. Smith, to review the action of the judge of the eighth judicial district in denying an application to extend the time for the purpose of settling a statement of the case to be used oh appeal."} {"case_name":"Ward v. Summa Health Sys.","case_name_full":"Ward v. Summa Health Sys.","case_name_short":"Ward","citation_count":0,"citations":["125 Ohio St. 3d 1504"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"2010-07-13","date_filed_is_approximate":false,"id":6900304,"opinions":[{"ocr":true,"opinion_id":6795203,"opinion_text":"\nSummit App. No. 24567, 184 Ohio App.3d 254, 2009-Ohio-4859. This cause is pending before the court as an appeal from the Court of Appeals for Summit County. Upon consideration of appellees’ motion to supplement the record,\nIt is ordered by the court that the motion is granted.\nIt is further ordered that the clerk of courts for Summit County shall supplement the record with the deposition of Virginia Abell, R.N., within 20 days of the date of this entry.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"ward-v-summa-health-sys"} {"attorneys":"J. B. Young, for appellant., Blalce <& Mormel, for appellee.","case_name":"Milburn v. Milburn","case_name_full":"Milburn v. Milburn","case_name_short":"Milburn","citation_count":0,"citations":["60 Iowa 411"],"court_full_name":"Supreme Court of Iowa","court_jurisdiction":"Iowa, IA","court_short_name":"Supreme Court of Iowa","court_type":"S","date_filed":"1882-12-08","date_filed_is_approximate":false,"headnotes":"1. Will: REVOCATION BY BIRTH OF ILLEGITIMATE CHILD. Under the statutes of this State, an illegitimate child, which has been notoriously recognized by its father, inherits from the father share and share alike with his legitimate children; and the birth and recognition of an illegitimate child, after the execution of a will by the father, has the effect to revoke the will, the same as the birth of a legitimate child.
","id":7189472,"judges":"Seeveks","opinions":[{"author_str":"Seeveks","ocr":true,"opinion_id":7100370,"opinion_text":"\nSeeveks, Oh. <1.\n— The plaintiff pleaded the will should not be admitted to probate because: “Since the making of said pretended last will and testament, to-wit, on or about the— day of September, A. D. 1874, at the residence of the said Hosea Mil-burn, in said county of Linn, this contestant was born; that she is the daughter of the said Hosea Milburn by Mary E. Baird (now Mary E. Brown), and was recognized by the said Hosea Milburn as his child, and such recognition was general and notorious.”\nThis defense was overruled, and the only question to be determined is whether the court erred in so doing.\nIt must be regarded as the settled rule in this State that the birth of a legitimate child to the testator, subsequent to the making of a will and before the testator’s death, will alone operate as an implied revocation of the will. McCullom v. McKenzie, 26 Iowa, 510; Negus v. Negus, 46 Id., 487; Fallon v. Chidester, Id., 588.\nIt is provided by statute: “Illegitimate children inherit from their mother, and the mother from the children. They shall inherit from thei'r father, whenever the paternity is proved during the life of the father, or they have been recognized by him as his children, but such recognition must have been general and notorious, or else in writing.” If the recognition is mutual, a father may inherit from his illegitimate child. Code, §§ 2465, 2466, 2467.\nCounsel agree that at common law an illegitimate child could not inherit from either parent. This being so, it is evident that the common law rule has been radically changed by statute; for, under the statute such a child may inherit from *413its mother as if it was legitimate. If there are both legitimate and illegitimate children, they inherit from their mother share and share alike, and if an illegitimate child has been recognized by Its father, it will inherit from him share and share alike with the legitimate children. For the purpose of inheritance, an illegitimate child, when recognized by its father, stands on precisely the same footing as if it were legitimate. If the father dies intestate, both inherit, and such right can only be cut off by a will of the father which is equally effectual as to both classes of children. The birth of a legitimate child entitles it to inherit, but this is not so as to an illegitimate child. For mere birth does not entitle the latter to inherit, but the notorious recognition does. Such recognition legitimatizes the child. In the case at bar the testator, after making the will, recognized the plaintiff as his child. This being so, the statute provides that the right to inherit shall from that time exist. It follows that the plaintiff could only be deprived of such right in the same manner as a legitimate child, and that is by a will executed subsequently to the birth of the child. The statute does not provide that the birth of a child subsequently to the execution of a will has the effect to revoke it. In this respect the statxxte makes no difference between different classes of children.\nIn Kent v. Barker, 2 Gray, 535, the question was whether the term “ children ” in a statute of Massachusetts included illegitimate children, and it was held it did not. This case has but little if any bearing on the question before us. Beside this, we have construed the word children as used in section 2437 of the Revision (Code, Sec. 2454), so as to include an illegitimate child. McGuire v. Brown, 41 Iowa, 650. It seems to xxs the statute xxnder consideration leaves no room for construction, and as the rule is that the birth of a legitimate child, after the execution of a will by its father, has the effect to revoke a will, that, under the statute, the same result must follow the birth and recognition of an illegitimate child.\nReversed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"milburn-v-milburn","summary":"\nAppeal from, Lvrm Gvreuit Gov/rt.\n The defendant and proponent filed in the probate court a paper purporting to be the will of her deceased husband, Iiosea Milburn, and asked that the same might be admitted to probate. The plaintiff and contestant filed and pleaded certain matters which she claimed amounted to a revocation of the will, and objected to its probate. To the matter pleaded by the plaintiff, the defendant demurred, and the demurrer was sustained. The plaintiff appeals."} {"attorneys":"Irion & Overton, for plaintiff and appellee. Waddill & Barbin, for defendant and appellant.","case_name":"Drogre v. Moreau","case_name_full":"Bernard Drogre v. Charles Moreau and Wife","case_name_short":"Drogre","citation_count":0,"citations":["21 La. Ann. 639"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1869-09-15","date_filed_is_approximate":true,"headnotes":"In a suit to revive a judgment, it is incumbent on the party claiming to be owner, to establish the existence of the judgment and his ownership thereof. A copy certified irom the mortgage office, without showing the loss of the original, is not sufficient to establish the existence of the original judgment.
","id":7272629,"judges":"Wyly","opinions":[{"author_str":"Wyly","ocr":true,"opinion_id":7188009,"opinion_text":"\nWyly, J.\nThe defendant, Clarice Goudeau, wife of Charles Moreau, has appealed from a judgment entered by default and made final against her husband and herself, reviving the judgment which they had confessed in June, 1858, in favor of Isaac Levy & Co.\nIt appears that plaintiff instituted within proper time the necessary proceedings to revive said judgment according to the provisions of the act of the thirtieth April, 1853, alleging that since the rendition of said judgment the said Isaac Levy & Co. transferred the same to Bellocq, Noblom & Co., who, in turn, transferred it to him, and that lie is the owner thereof, and it has not been paid.\nCopies of the petition for revival and of the citation were served on both the defendants according to law, and in due time the cause was *640put at issue by default, which was afterwards made final, reviving the .-judgment, tlie defendants having failed to make appearance.\nThe appellant urges that the petition for revival of the judgment is insufficient, .because it does not mention the place of her domicile; it does not allege that the judgment sought to be revived or the indebtness upon which it was based inured to her benefit, and because it does not contain a prayer asking that she be authorized to stand in judgment.\nThese objections, if of any weight, should have been urged before the joinder of issue. Wo do not think, however, that averments of that kind are essential in a simple application to revive a judgment. The law simply provides the mode to interrupt the prescription of judgment. It does not require the same allegations and the production of the same evidence upon which the judgment was originally obtained.\nThe objection, however, that the default was aiade final without sufficient evidence of the existence of tho judgment, and of the owner the;eof, claimed by the plaintiff, is made with more effect.\nWe find in tho record that the existence of the judgment was not established by a certified copy of the original, made by the clerk, but by a copy of the judgment as copied into the records of the mortgage office, that it is simply the copy of a copy certified by the recorder.\nIt should not have been received by tho judge without the absence of tho best evidence being properly accounted for.\nWe do not find in the record evidence proving that jliintiff is the transferee or owner of the judgment as alleged by him, but we cannot say he failed to prove his ownership to the satisfaction of the judge, who states that he did; besides, it appears from the note of evidence that some proof of the transfers was offered, as we there find the following entry : “ certified copies of transfers of judgment to be furnished.”\nThe authorities in 20 A. 281, and 19 A. 146, relied on by the appellant to maintain her position that a'judgment rendered against a married woman, without her being authorized to appear in court, is a nullity, do not apply to this ease.\nIn those cases there was no default, a tacit joinder of issue by both the husband and the wife, but simply the unauthorized appearance and answer of the wife.\nThe court there very properly held that the unauthorized answer of the wife did not make a legal joinder of issue upon which a judgment may be based.\nIn this case there was no answer by either the husband or the wife, although both were legally cited.\nThere was a default entered, which by fiction of law was the appearan’ce and joinder oí issue by both the husband and the wife, *641the tacit appearance of both implying the authority of the former to tho latter. 9 A. 197.\nFrom the hice of the record, however, wo are not satisfied that the existence of the judgment sought to be revived, and plaintiff’s ownership thereof were properly established. We think justice requires that this case should be remanded.\nIt is therefore ordered and adjudged that the judgment appealed from be avoided and annulled, and it is now ordered that this cause be remanded to the court a qua, to be proceeded in according to law.\nIt is further ordered that plaintiff pay costs of the appeal.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"drogre-v-moreau","summary":"from the Seventh District Court, parish of Avoyelles. Lewis, J."} {"attorneys":"Mr. James 0. Clark, for complainant., Mr. J. W. Taylor, for defendant.","case_name":"Miller v. Harrison","case_name_full":"William C. Miller v. Ira M. Harrison, administrator &c.","case_name_short":"Harrison","citation_count":0,"citations":["34 N.J. Eq. 374"],"court_full_name":"New York Court of Chancery","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Chancery","court_type":"S","date_filed":"1881-10-15","date_filed_is_approximate":true,"headnotes":"On November 22d, 1875, an administrator gave the usual notice to bar creditors in nine months, but the order thereon was not taken until May 29th, 1877. The complainant and two other creditors exhibited their claims within the nine months specified, and all the other creditors, except two, before the order was taken. The estate proving insolvent, the administrator, under the advice of the surrogate and also of his counsel, proceeded, with a view to saving trouble and expense, to settle the estate as if it were solvent, that is, by paying to each creditor his pro rata share of the assets, and settled the-estate accordingly. The complainant, on receiving his dividend, gave the defendant a receipt in full for his claim against the estate. Both the administrator and the complainant were, at that time, ignorant that the latter had, by presenting his claim within the nine months, obtained a preference as' to payment over some of the other creditors.—Held, that complainant, who did not assert the priority of his claim, allowed the administrator to pay all the creditors without a protest, and accepted his own dividend, and voluntarily gave the administrator a receipt in full for his claim against the estate, was not, under the circumstances, entitled to relief in equity.
","id":7369947,"opinions":[{"ocr":true,"opinion_id":7288765,"opinion_text":"\nThe Chancellor.\nThe bill is filed by a creditor of the estate of John C. Johnson, late of Newark, deceased, against the administrator, to bring into this court, from the Essex orphans court, where they are pending, the accounts of the latter for settlement here, to the end that the complainant may be relieved from the effect of a receipt given by him to the defendant. That instrument, though purporting to be in full of his claim against the estate, was given on the receipt of only part of the amount due on the claim. The ground of relief is that the complainant accepted the dividend in ignorance, through concealment thereof from him by the defendant of his rights, which he insists entitled him to payment in full; and he claims that the defendant is therefore answerable to him for the balance of his debt. The claim, as proved June 19th, 1876, was $10,000. It was subsequently reduced by a payment of $3,300 which the complainant obtained from the estate out of the assets of the intestate’s firm in New York. The amount of the dividend paid was on the whole claim, as proved, and was $4,094.40. The complainant complains that the defendant concealed from him the fact that the complainant was (as he claims to have been) entitled, with two other creditors, to preference over the rest of the creditors because they three alone had exhibited their claims, under oath, within the time designated in the order for limiting creditors, which the defendant had taken and published; and that the defendant, ignoring and keeping silence as to the advantage which the complainant had thus obtained, distributed the estate, which was sufficient to pay7 the three (but not all the creditors) in full, among all the creditors, and thus gave to those who had not come in within the limited period participation in the assets to which they were not by law entitled; and, on the other hand, paid to the complainant only part, instead of the whole of his claim, thus depriving him of the preference which he insists he had gained by his diligence. The intestate died on November 17th, 1875. Administration was granted to the defendant on the 22d of that month, and an order limiting creditors to nine months was taken on that day. The inventory was filed on August 5th, 1876. The *376limited period expired on August 22d, 1876. A rule to show cause why the decedent’s land should not be sold to pay debts was taken January 2d, 1877, and an order to sell was made in March following. The land was sold and the sale was confirmed on May 29th, 1877. On that day the administrator made a representation that the estate was insolvent, and a decree barring the creditors who had not come in within the nine months was made on the same day. Erom that time until the filing of the administrator’s final account, no proceedings were taken in the orphans court, but the defendant distributed the estate among all the creditors, paying them a dividend of forty and ninety-hundredths per cent, of their claims. He afterwards filed his final account on December 30th, 1878. The complainant, who had received the dividend and given the defendant a receipt in full for his claim against the estate, filed exceptions, which were referred to a master in chancery on April 2d, 1879, and testimony was taken thereon, but further proceedings in the orphans court were stayed by the injunction of this court, issued on the filing of the bill. It appears that in the outset, and for perhaps the first six months of his administration, the defendant supposed that the estate would prove sufficient to pay all the creditors in full, but he soon afterwards found that it was not only insolvent, but would need care and management to make it pay any considerable dividend. The order to limit was applied for and taken on the suggestion of the surrogate that it was a proper and customary proceeding, and not in view of supposed insolvency. It was obtained on the same day on which the letters of administration were granted. No order barring creditors, however, was taken until May 29th, 1877, when the representation of insolvency was made. That order, then, was not taken until more than nine months after the expiration of the time limited for bringing in claims. The complainant and two other creditors exhibited their claims, under oath, within the time designated in the order limiting creditors. Afterwards, and before the order barring creditors was made, other creditors exhibited their claims, under oath, to the amount of about $25,000. The claims exhibited within the period designated in the order limiting *377creditors, amounted to about $33,500, but they were subsequently reduced to about $23,000. The amount realized from ‘the personal and real estate appears to have been about $37,400. In addition to the debts which were proved, there were others to a very large anlount, believed to be genuine and correct, which the administrator therefore allowed. The undertaker’s bill was among these. The estate was only sufficient to pay a dividend of forty and ninety-hundredths per cent, upon all the debts. After the representation of insolvency had been made, the surrogate suggested to the administrator, with a view to saving trouble and expense, the propriety of settling the estate in the same manner in which he would if it were solvent; that is, by agreeing with the creditors as to the amount of their dividend, and paying it without proceedings in court to establish it. The administrator, approving of the suggestion, and being advised by his counsel that it was safe to do so, acted upon it. After-wards, and in the summer of 1878, an impediment having been thrown in the way of the settlement of the estate by an attachment or injunction, by which the payment to the defendant of a large amount of money coming to the estate out of the decedent’s business partnership in the city of Hew York, was stopped, the complainant called a meeting of the creditors at the Pacific Bank in that city, and some of the creditors met there accordingly. The result of the meeting was an endeavor to get rid of the obstruction before mentioned, which was successful. The defendant and complainant were both present at the meeting. The former stated there that he could not tell definitely what the estate would pay, but that he thought it would pay from forty to fifty per cent. Ho question was asked of him, nor was anything said, so far as appears, as to the time when the claims were presented, and the defendant made no representation or statement on the subject. Indeed, there is no room to doubt that he supposed that all the bona fide creditors were entitled to participate ratably in the distribution of the assets, without reference to the time or manner of exhibiting their claims, and whether they exhibited them or not, so long as their claims were known to the administrator. After the restraint by legal proceedings in Hew *378York, before mentioned, had been removed, he proceeded to the distribution of the assets among all the creditors, and paid the complainant his ratable proportion (and more than that, in view' of what he had received in New York) on such division, part of it, $2,500, before, and the residue at the time of signing the receipt. The receipt, with the check for the residue of the dividend, was left for convenience, by the defendant, with Mr. Farrington, the decedent’s late partner, at the office of the firm, in New York, where the complainant lived; the check to be delivered on the signing of the receipt. The complainant at first refused to accept the check and sign the receipt, on the ground that he thought that the estate should have proved sufficient to pay the debts in full, and he suspected that there had been mismanagement of the assets. Mr. Farrington urged him (not, however, by any means at the instance of the defendant in any way) to accept the check and sign the receipt, suggesting to him that if it should prove that there had been any fraud, or the estate ought to have paid more, he could obtain relief, notwithstanding the instrument acknowledged the receipt of the money “ in full for his claim against the estate.” The complainant then took the check and signed and delivered the receipt. He states the transaction as follows:\n“ Mr. Farrington represented to me that that was my dividend out of the estate ; that that was what it could pay ; I at first refused to sign the receipt, because it was a receipt in full, and I thought the estate could pay more; Mr. Farrington said if I could prove that the estate could pay more, I would not lose my standing in court—it would not debar me from coming into court; he said that the receipt in full was not binding upon me if the estate could pay more, or there was fraud; when I signed the receipt, I did not know that I had obtained a preference above the other creditors of the estate, as I have since been advised by my counsel [that I had.] ”\nThe defendant neither saw nor communicated personally with the complainant, after he left the check and receipt with Mr. Farrington, until after the latter was signed, and in nowise urged or induced him to sign it. Indeed, it appears that he sought at one time to withdraw the check, because he was dissatisfied with the action of the complainant in obtaining satis*379faction of $3,300 of his claim, as before mentioned, out of the assets of the estate in New York, and it was merely by persuasion of Farrington, who was anxious to have the matter settled, that he was induced to leave it. Though Farrington urged the complainant, as before stated, to accept the check and sign the receipt, it was not by procurement of the defendant, nor as his agent, nor in his interest. Farrington gives the reason himself. He says that he did it in the interest of peace,, and to end the matter.\nThe complainant seeks to set aside the receipt, to the end that, being relieved from it, he may compel 'the defendant to pay him the balance of his debt. He does nót deny that he accepted the dividend and signed the receipt voluntarily, but bases his claim to relief on the ground that the defendant, as administrator, was his trustee, and was therefore in equity bound to-acquaint him with the fact that he had obtained the preference which he now claims. Not only did the 'complainant voluntarily sign the receipt, but there is no charge of intentional fraud or concealment. Neither of thg parties was aware that the complainant could claim such preference. The defendant appears to have managed the estate to the best advantage, having even advanced large amounts of his own funds, and incurred large personal liabilities, in his efforts to realize as much as possible for the creditors. He claims, and it seems justly, that his prudent and skillful management gained for the estate over $30,000. The distribution which he made was an equitable one. He paid to each of the bona fide creditors his just proportion of the assets, except that the complainant received more than his share. One of the creditors whose claim was not put in within the time fixed in the order to limit, was the estate of Benjamin B. Ludlam, deceased. It had a claim of over $23,000. Mr. Ludlam died in France, leaving two wills, but had no representative under either of them to exhibit the claim within the period fixed in the order. Another of the claims was the undertaker’s bill of $459.50, which was not proved at all, but as to which, it should be added, the complainant waives all objection. If the complainant indeed had obtained the advantage which he *380■claims, it was a merely legal one, an advantage which he, of course, might have waived, and from enforcing which he might have been estopped in equity. If he had that advantage, the presumption that he knew it is quite as strong as the presumption that the defendant knew it; and if he consented that the defendant should distribute the estate by an equitable division among all the bona fide creditors, thus admitting others whose claims, apart from the legal advantage which he asserts, were as much entitled to payment as his, to a just participation in the distribution, he would, of course, in equity, be estopped from setting up his' legal claim after the administrator had paid out all the estate' in such distribution. He never made even an intimation that he had a preference until after the distribution had been made. He had abundant opportunity to assert his claim, and there was a good reason why he should have done so. At the meeting at the Pacific Bank there were present the representative of that bank, which subsequently received a dividend of $1,510.63 ; the president and cashier of the Newark Bank, which afterwards.received a dividend of $3,039.76, and the representative of the Ludlam estate, to which was paid a dividend of $9,438.20, and none of those claims were exhibited within the time designated in the order to limit creditors. He must have seen that it was proposed to make-distribution to them, but he made no objection, and permitted the defendant to pay to them, out of the assets, nearly $14,000, as their share of them, without any objection whatever. The complainant testifies that he did not know he had the advantage which he claims until afterwards, and after the distribution had been made, and not then until his counsel informed him of the fact. His hesitation in signing the receipt was not on account of his supposition or suspicion that he had a preference, but because he thought the estate ought to pay a larger dividend to all the creditors. His action in signing the receipt was purely voluntary. He relied on no assurance, representation or statement of the defendant in ■doing so. The defendant held out no inducement whatever to him to do it. In the absence of fraud, and even of knowledge, ■on the part of the defendant, the complainant is not, under the *381-circumstances, entitled to relief against the receipt. Fair dealing between him and the defendant and the other creditors over whom he claims preference, required him to assert or give notice of his claim when he saw that the defendant, in ignorance of it,, proposed to pay a dividend to those other creditors. His excuse for not doing so is that he did not know that he was entitled to it. Neither did the defendant. While an administrator would not, in the absence of conduct amounting to equitable estoppel,, be protected in ignoring the rights of a creditor who has obtained a preference, he is, nevertheless, in the absence of fraud, not bound to communicate to such creditor the fact that he has obtained it. The administrator is generally, indeed, presumed to know and bound to regard the fact of the preference, and ignorance alone will not excuse him for disregarding it. He will not, as before stated, be protected in disregarding it, though ignorant of it, in fact, unless the circumstances are such that equity should aid and protect him. On the other hand, the creditor is bound to know for himself the existence of his right to preference, and if he fails to assert it, to the prejudice of the administrator, under circumstances which would amount to equitable estoppel, equity will not aid him against the administrator. Where, as in this case, both parties were ignorant of the existence of the right and acted accordingly, and it would be inequitable to accord to the creditor relief against the administrator, it will, of course, be denied.\nBut, further, it does not appear that the complainant had, in fact, obtained the advantage which he claims. The order to limit creditors was-taken on November 22d, 1875. The nine months therein designated as the time within which claims were to. be brought in, expired on August 22d, 1876. But no order barring creditors was made until the representation of insolvency was made, which was not till May 29th, 1877. All the claims which were put in under oath, were so exhibited in the year 1876, before the order barring creditors was made, except that of the estate of Benjamin B. Ludlam, deceased, which was not put in under oath until 1878. I regard it as the law that, since the revision of the orphans court act (March 27th, 1874), notwithstanding *382the making and publishing of an order to limit creditors and the. expiration of the limited period, it is not too late to put in a claim, provided the order barring creditors has not been made. Ryder v. Wilson’s Exr., 12 Vr. 9; Terhune v. White, 7 Stew. Eq. 48. Before the revision, the law provided that the creditor failing to exhibit his claim within the time designated by the rule to limit, should, after due notice of the rule had been given, be barred, except as to estate not inventoried or accounted for. Nix. Dig. 653. Proof of the rule and notice, and failure to exhibit, constituted a bar. Ryan v. Flanagan, 9 Vr. 161. It also provided that the orphans court might, on proof that notice had been duly given, make a final decree barring such creditors as had not exhibited their claims within the limited time, and that such decree should be conclusive as a bar. Nix. Dig. 308. But by the revision it is provided (Rev. 764) that after the expiration of the time limited in the order, the orphans court, upon proof that the notice has been duly published, may, by final decree, order that all creditors who have not brought in their claims within the time fixed in the order, shall be barred from any action therefor against the executor or administrator; and it is also provided that any creditor who shall have neglected so to bring in his debt, demand or claim within the time so limited, shall, by such decree, be barred of his action therefor against the ■executor or administrator, except as to property he may find which is not accounted for. The act does not provide, as it did before revision, that the mere failure of the creditor to put in his claim shall bar him, but that the decree shall constitute the bar. The effect is practically to extend the time for exhibiting claims until the decree shall be taken. The complainant had not, in fact, any advantage over those creditors who put in their claims prior to the making of the order barring creditors. And though that order, by its terms, barred all who did not exhibit their claims within the nine months, if the law is as above stated, it was erroneous, and should, by its terms, have barred none except such as had not put in their claims before it was made.\nThe bill will be dismissed, with costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"miller-v-harrison","summary":"Bill for relief. On final hearing on pleadings and proofs.."} {"attorneys":"Almet F. Jenks, for appellants., Jesse W. Johnson, for respondent.","case_name":"Medical Soc. of Kings County v. Neff","case_name_full":"MEDICAL SOC. OF KINGS COUNTY v. NEFF","case_name_short":"Neff","citation_count":0,"citations":["53 N.Y.S. 1077"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1898-11-01","date_filed_is_approximate":false,"disposition":"Reversed.","headnotes":"1. Taxation—Exemption—Burden of Proof.
The burden of establishing a right to exemption from taxation is on the party claiming it.
2. Same—Medical Societies.
A medical society organized for “mental improvement” is not within Laws 1893, e. 498, § 1, exempting from taxation the property of associations organized “for the moral and mental improvement of men and women.”
8. Same.
A medical society organized under “An act to incorporate medical societies for the purpose of regulating the practice of physic” (2 Rev. St. [7th Ed.] tit. 7, § 1, p. 1092), which maintains an organization “for certain educational and charitable purposes,” and maintains a medical library open to the public, and furnishes rooms for the meeting of medical or charitable societies, but which is not compelled to do so by the statute-under which it was organized, is not within Laws 1893, c. 498, § 1, exempting from taxation the property of associations “organized exclusively for the moral and mental improvement of men and women or for religions, charitable, missionary, hospital, educational, patriotic, historical or cemetery purposes, * * and used exclusively for carrying out thereupon one or more of such purposes.”
","id":7415083,"judges":"Woodward","opinions":[{"author_str":"Woodward","ocr":true,"opinion_id":7334512,"opinion_text":"\nWOODWARD, J.\nThe relator, the Medical Society of the County of Kings, seeks to be relieved of the duty of paying taxes upon certain property situated at 356 Bridge street, borough of Brooklyn, under •the provisions of chapter 498 of the Laws of 1893. For this purpose it petitioned the supreme court in this department, praying for a peremptory writ of mandamus to the assessors of the city of Brooklyn, directing them to cancel the taxes levied against the relator in the years 1893, 1894, 1895, 1896, and-1897. This writ was granted, and, from the order granting the same, appeal comes to this court.\nSection 1 of chapter 498 of the Laws of 1893 provides that:\n“The real property of a corporation or association organized exclusively for the moral and mental improvement of men and women or for religious, charitable, missionary, hospital, educational, patriotic, historical or cemetery purposes, or for two or more of such purposes, and used exclusively for carrying out thereupon one or more of such purposes shall be exempt from taxation.”\nI shall assume, for the purposes of this discussion, that the assessors have the power to cancel the taxes levied, and that mandamus was the proper remedy to invoke, and will simply inquire whether the facts set forth in the petition of the relator are sufficient to bring it' within the provisions of this statute. The petition recites that the petitioner is duly organized under the provisions of chapter 94 of the Laws of 1813, entitled “An act to incorporate medical societies for-the purpose of regulating the practice of physic and surgery in this state” (2 Rev. Laws 1813, p. 219); that it has “established in the city of Brooklyn an organization for mental improvement, and for certain educational and charitable purposes”; that “such society maintains á, public medical library, and a free public medical reading room, both) open to the public every day in the year, Sundays and holidays ex4. cepted; maintains an auditorium in which are regularly held medical meetings, where papers of interest to the medical fraternity in geni eral, and which are prepared for the purpose of furthering the science’1 of medicine, are presented and discussed. The society offers its rooms to, and seven separate and distinct medical societies regularly meet in and use, such rooms, for all of which no money is asked or paid. The staff association of the Kings County Medical Hospital, a charitable organization, regularly meets there. The Alumni Association of St. *1079Mary’s Hospital meets there. No member of this society receives any salary or compensation whatever.” The petition further recites that the president of the society acts in an advisory character to the mayor and commissioners of health in case of epidemic, and that its committee on hygiene makes suggestions, and that it affords a place for the meeting of the National, Medical, and Public Health Societies, and that it has no source of income except such as is derived from the annual dues of the members. It is further alleged that the society “maintains a directory for nurses, and makes no charge therefor, excepting such charge as is sufficient to cover the expenses of maintaining the same”; and that “this society also maintains a medical journal, the organ of the society, from which no income is derived.” The remaining allegations relate to the location of the property, etc., and have no bearing upon the question involved in the present proceeding.\nI am unable to see how the relator comes within the provisions of the statute. Exemptions from taxation are not favored. The theory of the law is that all property shall pay its just portion of the public burdens, and it is only in those cases where the property is put to some use calculated to minimize the expenses of government that public policy justifies an exemption. There are no presumptions in favor of an exemption of property of any kind, and the burden of establishing the right is upon the person claiming such exemption. Chapter 498 of the Laws of 1893, under which the relator claims an exemption, so far as requisite, has been already set out. The petitioner avers that it “was duly organized,” and that it “has established in the city of Brooklyn an organization for mental improvement, and for certain educational and charitable purposes.” This is most commendable in the gentlemen making up the Medical Society of the County of Kings, but it does not entitle them to exemption from taxation under the laws of this state. There is no allegation that the society is organized for the exclusive purpose of carrying out any of these objects, and, if there was, it would still fall short of the requirements. The statute demands that the association shall be organized, not only for mental, but for moral, improvement; and it requires, moreover, that it shall be for the “moral and mental improvement of men and women.” - This is not alleged. There is no claim that the purpose of this society is to improve the morals of either men or women, or that it is for religious, missionary, hospital, patriotic, historical, or cemetery purposes. The general law, as amended in 1883, exempts “every building erected for the use of a college, incorporated academy or other seminary of learning, and in actual use for either of such purposes, every building for public worship,” etc. The consolidation act (section 827) makes these provisions inapplicable to any such building for public worship, and any such schoolhouse or other seminary of learning in the city of New York, “unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society.” The Young Men’s Christian Association of New York sought to have its property on the Bowery, known as the “Bowery Institute,” exempted from taxation under this act, and the court held that, while it might not be impossible to characterize the association as a religious society, it was not entitled to exemption, because it did not appear that the build*1080ing was “exclusively used for purposes of public worship, or exclusively used for those of a seminary of learning.” Commenting upon this case (Young Men’s Christian Ass’n v. Mayor, etc., of Yew York, 113 N. Y. 187, 21 N. E. 80), the court say:\n“Unless, therefore, it can be truthfully and correctly said that its building is exclusively used for purposes of public worship, it can have no exemption from taxation upon its Bowery Institute. There is no ambiguity in the phrase ‘public worship.’ It refers to the usual church services upon the Sabbath, open freely to the public, and in which any one may join. Association for Colored Orphans v. Mayor, etc., of New York, 104 N. Y. 681, 12 N. E. 279. There are such services held in the building of the association, but, in comparison with the other uses to which that building is put, they are the least of all, not, perhaps, in their importance, but in the time which they occupy, and the proportion of the building which they require. At all events, it cannot be properly said, upon the facts disclosed, that the building is used exclusively for purposes of public worship. Associations of this character are so useful and so deserving of encouragement and support that a different result would please us better, but we are unable to reach it under the law as it stands.”\nThis opinion of the court was rendered in 1889, and in 1893 we find the statute broadened in its scope to exempt corporations and associations “organized exclusively for the moral and mental improvement of men and women,” which is the work undertaken by the Young Men’s Christian Association. Clearly, then, the allegation of the society that it has an organization for “mental improvement” does not bring it within the contemplation of the statute.\nBut the society is likewise maintaining an organization “for certain educational and charitable purposes.” Under this head we are told that it maintains an auditorium, etc., but it nowhere appears either that these are educational or charitable, within the meaning of the statute, or that the society is organized exclusively for the purpose of carrying out one or more of these objects. As was said in Coe v. Washington Mills, 149 Mass. 543, 21 N. E. 966:\n“It was a voluntary association for the mutual benefit of its members, and cannot be held to be a public charitable institution. To constitute a public charity, there must be an absolute gift to a charitable use for the benefit of the public.”\nYo such condition prevails in the relator society. It was organized under the provisions of a law which distinctly declares the object for which it was created. It was “An act to incorporate medical societies, for the purpose of regulating the practice of physic.” That was the object for which it was created, and under the provisions of the act these medical societies were authorized to accumulate medical libraries, and to become auxiliaries to the Medical Society of the State of Yew York, which organization, in common with the county branches, has established rules and regulations, many of them being enacted into the statute law of the state, for the practice of physic and surgery. These rules and regulations, and laws which have been enacted upon the suggestion of the Medical Society of the State of Yew York, have had for their object, at least incidentally, the welfare of the membership of these societies and their individual members as practicing physicians. Por many years, and until comparatively recent times, membership in these county societies was made compulsory, the license of the individ*1081ual to practice Ms profession depending upon such membersMp. 2 Rev. St. (7th Ed.) tit. 7, § 1, p. 1092. The fact that the medical library of the relator may be open to the public, or that it may furnish rooms for the meeting of medical or charitable societies, has no possible bearing upon the case. “Assuming, for the sake of argument,” say the court in the case of Donnelly v. Association, 146 Mass. 163, 15 N. E. 505, “that it would have no right to declare dividends to its members in case of realizing profits, there is notMng in the charter which compels the application of any part of its funds to charitable uses.\nThe fact that the funds received were actually applied to a considerable extent in charity is no more material than evidence of a similar application of a part of his income by a private citizen would be in a suit against Mm.” This was an action for damages against a cemetery association, in which the defendant sought to be exempted from damages on the ground that it was a charitable organization. The court made the test, not whether the funds were actually used for charitable purposes, but whether the charter of the defendant compelled it to make such use of its funds; and this is clearly the rule which should be applied to the application of the relator for exemption from taxation on the ground either of charity or education. There is nothing in the statute under which the relator is organized which compels it to keep its medical library or its reading room open to the public. In fact, it may be fairly questioned whether the public, outside of the comparatively small number of physicians and surgeons, with their students, have any interest in such a library or reading room; while the fact that these rooms are open to the meetings of other medical societies, made up, for the most part, no doubt, of the members of the relator, serves no purpose of society in general which entitles it to immunity from taxation. In other words, the Medical Society of the County of Kings is performing no service of a character calculated to relieve the burdens of government more than a thousand other mutual associations or corporations, designed for the promotion of the individual development of its members. It is, therefore, entitled to none of the exemptions which are extended to corporations or associations which are devoted exclusively to the “moral and mental improvement of men and women,” or to “religious, charitable, missionary, hospital, educational, patriotic, historical, or cemetery purposes.” • It is, in effect, a medical clubhouse, where the members of a single profession meet for “mental improvement” and such incidental benefits as flow from association and co-operation of effort. One of the results of these medical societies has been to establish a practically uniform rate of charges, or at least to establish a minimum rate, and to afford a degree of protection to individual practitioners which would be practically impossible without an organization empowered to enforce obedience to by-laws and respect for professional ethics. It is not necessary to ascribe selfish motives, and it is undoubtedly true that the relator is performing many charitable and commendable acts, in common with mankind, in every walk of life; but this is net, of itself, a justification for the state to relieve it of the burdens which are common to good citizenship generally, and, accepting the relator’s own statement of the case, there are no facts to bring it within the provisions of the *1082law. The relator was not organized “exclusively” for the purpose of carrying out any of the lines of work enumerated in the statute, or any two or more of such objects. It makes no such claim in its moving papers, and it was error, therefore, for the court to grant the order appealed from.\nThe.order should be reversed, with costs.\nOrder reversed, with $10 costs and disbursements, and application denied, with $10 costs. All concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"medical-soc-of-kings-county-v-neff","summary":"Appeal from special term. Kings county. Petition by the Medical Society of the County of Kings for a writ of mandamus against Barzillai G. Neff and others. From an order granting the writ, the defendants appeal."} {"attorneys":"Julius Offenbach, for appellant., John F. Clarke, for respondents.","case_name":"County Treasurer v. Clarke","case_name_full":"In re HUBER'S ESTATE. COUNTY TREASURER OF KINGS COUNTY v. CLARKE","case_name_short":"Clarke","citation_count":0,"citations":["83 N.Y.S. 769","86 A.D. 458"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1903-07-24","date_filed_is_approximate":false,"disposition":"Reversed.","headnotes":"1. Transfer Tax — Property Subject — Annuity to Executor.
Where a testator directed that his executor and trustee should he paid an annual sum, together with the commissions allowed by law, as long as he should act as executor and trustee, in full compensation for his services, and the executor and trustee accepted it, the annual sum was subject to the transfer tax imposed by Laws 1806, p. 872, c. 908, § 227, imposing the tax on the excess in value of the property bequeathed,to an executor above the amount of commissions prescribed by law.
3. Same — When Payable — Estate in Trust.
A testator gave his remaining property, after certain bequests, to his executors in trust to pay the income to his widow during her widowhood, and on her death to a daughter during her life, and directed that on her death the corpus should be divided equally among her issue, and that if she died without issue the corpus should be divided among his next of kin and heirs. Held, that the transfer tax on the corpus was payable forthwith out of the property transferred.
8, Same — Estate Derived from Testator’s Father.
A testator declared that it was his intention to dispose of all the property which he had or might acquire, and more particularly all his right, title, and interest in and to all property which he might have or acquire in the estate of his deceased father. The testator’s father gave by will all his property to his wife for life, and on her death to his children equally. The father was survived by his wife and several children, including the testator. Held, that the transfer tax on the property acquired from the testator’s father was payable forthwith out of property transferred, though the property acquired from the father was subject to a life estate, and in the hands of executors or trustees charged with the duty of carrying out the trust created by the father’s will, there being an abundance of other property in the hands of the executor of the testator from which to pay the tax.
","id":7423582,"judges":"Woodward","opinions":[{"author_str":"Woodward","ocr":true,"opinion_id":7343289,"opinion_text":"\nWOODWARD, J.\nThis is a transfer tax proceeding, the county treasurer of Kings county appealing from an order of the Surrogate’s Court modifying, and, as modified, affirming, the ex parte order of the surrogate entered upon the report of an appraiser. The decedent, a resident of Brooklyn,. died March 22, 1900, leaving a last will and testament, which was duly admitted to probate on the gth day of April, 1900. The executors and the treasurer of Kings county both appealed from the formal order entered upon the report of the appraiser. The appeal of the executors was sustained, and that of the *770county treasurer overruled. From the order entered the county treasurer appeals to this court, urging four propositions.\nBy the terms of the will of Otto Huber, the decedent, who died in Brooklyn on the 22d day of March, 1900, it was provided:\n“I further direct that my executor and trustee John F. Clarke be paid from my estate the sum of fifteen hundred dollars annually together with the commissions allowed by law, as long as he shall act as such executor and trustee, the same to be received by him ' in full compensation for any and all services, legal or otherwise, which he shall render my estate.”\nThe learned surrogate has held that this annuity of $1,500 per year was not subject to the transfer tax, and the county treasurer urges upon this appeal that, under the provisions of section 227, c. 908, p. 872 of the Laws of 1896, the learned court has fallen into error, and that Mr. Clarke’s annuity is subject to the tax fixed b) the appraiser at $979.80. In this contention we are persuaded that the appellant is right. Indeed, it is difficult to read the language of the section and arrive at any other conclusion, and the fact that the annuity may be presumed to have been given in payment for services to be rendered does not change the law upon this question. The tax is laid “upon the transfer of any property, real or personal, * * * when the transfer is by will,” etc. (section 220, c. 908, p. 868, Laws 1896), and there can be no doubt that this annuity, whatever its purpose, was transferred by the will of Otto Huber, and accepted by Mr. Clarke. This question, it appears to us, was fully disposed of by the Court of Appeals in Matter of Gould’s Estate, 156 N. Y. 423, 51 N. E. 287, and the order of the Surrogate’s Court in this respect should be reversed, and the tax assessed originally should be imposed.\nThe decedent, after making the above provision for his executor and trustee, and bequeathing to his widow a cash legacy of $25,000, and releasing debts due from relatives, gave his remaining property to his executors in trust to invest the same, collect the rents, income, and profits, and pay them to his widow “as long as she shall live and remain my widow.” Upon the death of his widow the decedent provided that the trustee pay the income to his daughter, Helen, during her life. If the daughter predeceased the widow, then the capital was to be divided at the wife’s death equally among the issue of the daughter her surviving. If, on the other hand, the daughter survived the widow, and was under 21 years of age when the widow* died, the income was to be accumulated during the daughter’s minority, and on her death the capital was to be divided in the same way as though she had predeceased her mother, that is, among her lawful issue. If the widow remarried, the trust as to her was to cease, and the rents, income, and profits, over and above the sum of $5,000 (to be paid to the wife during her life), was to be accumulated during the minority of the daughter, and on her death the corpus was to be divided, as before, among the lawful issue of said daughter. If the daughter died without lawful issue, then upon the death or remarriage of the wife the corpus was to be divided among the next of kin and heirs at law of the testator according to the statutes applicable to estates of intestates. It is apparent from the scheme of *771this will that the remaindermen entitled to the corpus of the estate after the death of the life tenants, the widow and the daughter, must be either the issue of the daughter or the next of kin and heirs at law of the testator, and the learned surrogate has held that these interests, not to be ascertainable, are not presently taxable. In this we are clearly of opinion that the court is in error. The court had this question under consideration in Matter of Vanderbilt’s Estate, 172 N. Y. 69, 64 N. E. 782, and Matter of Brez’s Estate, 172 N. Y. 609, 64 N. E. 958, and it was held in the former case (page 72, 172 N. Y., page 783, 64 N. E., that it was clear that “the Legislature by this amendment (chapter 76, p. 100, Laws 1899) intended to change the law upon the subject, -and to make the transfer tax upon property transferred in trust payable forthwith. The tax is not required to be paid by the conditional transferee, for, by the provisions of the statute, it is to be paid ‘out of the property transferred.’ So that whoever may ultimately take the property takes that which remains after the payment of the tax. This amendment makes provision for property transferred in trust. It therefore contemplates defeasible transfers as well as absolute transfers.” It follows, therefore, that the order in this respect should be reversed.\nA more difficult question is presented in respect to the transfer of the testator’s interest in the estate of his father, Otto Huber, Sr. The latter died on the 31st day of August, 1889, leaving a last will and testament under date of July 15, 1887, which was duly admitted to probate in 1889. By the fourth paragraph of this will the testator gave to his wife, Emilie, “all the use, profits, rents, revenue and income of all my real and personal estate for and during her natural life”; and by the fifth paragraph, upon the decease of his said wife, he gave “all the rest, residue and remainder of my estate to my children in equal shares.” He was survived by his wife and seven children, so that it is evident that Otto Huber, Jr., the decedent in the present proceeding, was, at the time of his death, vested with an indefeasible remainder in fee in the one-seventh part of his father’s estate, expectant upon the life estate of his mother, Emilie Huber. By the eleventh paragraph of the will of Otto Huber, Jr., he declares :\n“It is my intention by this my last will and testament to dispose of all the property which I may now possess or may hereafter acquire and more particularly all my right, title and interest in and to all property, both real and personal which I may have or hereafter acquire in the estate of my deceased father, Otto Huber, which interest is now subject to the life estate of my mother.”\nThere can be no doubt, therefore, that Otto Huber, Jr., transferred by will the portion of the property of his deceased father which belonged to him, subject only to the life estate of his mother, and the question presented upon this appeal is whether this transfer is presently taxable. The testator transfers by his will all of his property. The property which he received from his father, subject to the life estate of his mother, was not separate and distinct from the property which he owned in his own right, and a careful scrutiny of the wills of Otto Huber, Sr., and Otto Huber, Jr., will show that the purpose *772of both testators was to keep all of the property in the control of the immediate family, and that it would be very difficult to separate the property of Otto Huber, Jr., from that which he received from his father. The greater portion of the father’s estate appears to have consisted of a brewery property. In his will he provides for the creation of a corporation to which the property is to be transferred, and the stock is to be held by his immediate family, who are his executors, and it is shown that the decedent, Otto Huber, Jr., was the president of this corporation for some years, and up to the time of his death. Otto Huber, Jr., was therefore in fact possessed of the property, the absolute ownership of which was vested in himself, subject only to the payment of the income to his mother during her life, and by his will he transferred this property, in connection with his other property, to his executors and trustees within this state. The tax is to be paid, not by the transferee, but out of the property transferred, the ultimate owners to take only that which remains after the payment of the tax (Matter of Vanderbilt’s Estate, supra), and, there being no separate property pointed out as having come from the father’s estate, we are unable to see any excuse for deferring the payment of the transfer tax out of the property transferred. The decedent simply transferred all of his property (and he had a property right in the estate of his father) by his will, and the statute provides that the tax shall be paid out of the property transferred. The mere fact that some of this property may be subject to a life estate, and that it may be in the hands of the trustees or executors charged with the duty of carrying out the trust, does not rob it of the character of property, or prevent its transfer by will, and, it not being distinguished from the other property conveyed by the will to his executors, it is no part of the duty of the courts to divide up the property transferred, and to deprive the state of its present revenues upon a portion of the property thus transferred. It is not necessary now to decide what would be the status of the appellant if the decedent had left no other property than that of his father, which has not been reduced to possession, but the court, in Matter of Zefita, Countess de Rohan-Chabot’s Estate, 167 N. Y. 280, 284, 60 N. E. 598, very clearly intimates that in such a situation it would be the duty of the executors of the father’s estate to see to it that the tax was paid before it was transferred to the representatives of the father’s beneficiary. But here no such question is involved. The decedent has transferred all of his property to his executors and trustees, and there is an abundance of property in their hands to pay the tax out of the property so transferred, and .it is the duty of those charged with the administration of the law to appraise the property thus transferred and to collect the tax fixed by law upon such transfer, leaving the beneficiaries under the decedent’s will to take the property thus transferred, less the amount of the tax.\nIn Matter of Phipps, 77 Hun, 325, 28 N. Y. Supp. 330, relied upon by the respondents, the facts are not analogous to those here involved. Elizabeth Fogg, a resident of the state of New York, made a will in which she gave and devised her residuary estate, some of which was real estate — but where located did not appear — to Hiram Fogg, *773of Bangor, Me., and John A. Phipps, of Boston, Mass. Phipps died at his home, in Boston, before the estate of Elizabeth Fogg had been administered, leaving by his will his interest in the estate to his wife. The question presented was whether the interest transferred by Phipps to his wife in the state of Massachusetts was taxable in the state of New York under the provisions of chapter 483, p. 820, of the Laws of 1885, as amended by chapter 713, p. 921, of the Laws of 1887, as amended by chapter 215, p. 409, of the Laws of 1891, and the court held that it was not, the decision going upon the principle that the mere chose in action transferred in another state, although relating to property which was within this state, because it had not been determined and transferred under the original will, was not property transferred by 'will within the meaning of the statute. The same principle was involved in Matter of Chabot’s Estate, 44 App. Div. 340, 344, 60 N. Y. Supp. 927, and the conclusions reached were subsequently affirmed by the Court of Appeals in Matter of Zefita, Countess de Rohan-ChaboPs Estate, supra.\nWhile it might be doubtful about the importance of determining the exact value of a single share of stock in the brewery property, if no other matters were involved, we are of opinion that it was proper to permit a cross-examination to determine the value of this stock, and this should be taken into consideration in determining the value of the property transferred.\nThe order appealed from should be reversed in respect to the points considered, and should be remitted to the surrogate for a new appraisal of the estate in accord with the foregoing opinion, with costs of this appeal. All concur\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"county-treasurer-v-clarke","summary":"Appeal from Surrogate’s Court, Kings County. In the matter of the transfer tax upon the estate of Otto Huber, deceased. From an order of the Surrogate’s Court modifying an ex parte order of the surrogate entered on the report of the appraisers on the appeal of the executor of the deceased and the treasurer of Kings county, the latter appeals."} {"case_name":"Yellow Pine Co. v. Kelly","case_name_full":"YELLOW PINE CO. v. KELLY","case_name_short":"Kelly","citation_count":0,"citations":["152 N.Y.S. 1151"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1915-04-01","date_filed_is_approximate":false,"id":7438663,"opinions":[{"ocr":true,"opinion_id":7358684,"opinion_text":"\nAction by the Yellow Pine Company against John A. Kelly and another. No opinion. Judgment and order unanimously affirmed, with costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"yellow-pine-co-v-kelly"} {"attorneys":"Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Harvey L. Strayhan, New Orleans, for plaintiff-appellant., A. Miles Pratt, III, New Orleans, for defendants-appellees.","case_name":"Jackson v. Davidson","case_name_full":"Frank M. JACKSON v. George William DAVIDSON and Liberty Mutual Insurance Company","case_name_short":"Davidson","citation_count":0,"citations":["313 So. 2d 312"],"court_full_name":"Louisiana Court of Appeal","court_jurisdiction":"Louisiana, LA","court_short_name":"Louisiana Court of Appeal","court_type":"SA","date_filed":"1975-05-15","date_filed_is_approximate":false,"id":7545693,"judges":"Bout, Gulotta, Lemmon","opinions":[{"author_str":"Gulotta","ocr":true,"opinion_id":7471024,"opinion_text":"\nGULOTTA, Judge.\nThis is a suit for personal injuries arising out of an automobile accident occurring on March 31, 1972, in the City of New Orleans.\nPrior to the filing of the suit, defendant, Liberty Mutual Insurance Company, “advanced” to plaintiff the sum of $2,579.36. In addition, they reimbursed plaintiff for the cost of property damage sustained by plaintiff’s vehicle.\nPlaintiff claims that as a result of the accident he suffered contusions of the upper abdomen, contusions of the right lower chest, a bruised liver, contusion and strain of the left knee and of the left shoulder, and a torn cartilage of the right knee. According to plaintiff, he is entitled to an award of $30,000.00 including the cartilage injury of the right knee. The trial judge dismissed plaintiff’s suit. Plaintiff appeals.\nNo dispute exists on the liability question. We are confronted only with the question of quantum. In this connection, no dispute exists as to the injuries of the abdomen, shoulder, chest and left knee. Counsel for plaintiff stipulated that $2,579.36 was adequate compensation to plaintiff for these injuries.\nThe dispute surrounds whether or not cartilage or ligament damage to the right knee was caused by the accident on March 31, 1972, or by a subsequent motorcycle accident which occurred on July 4, 1972. No reasons were assigned for a dismissal of plaintiff’s suit by the trial judge. Apparently the court concluded plaintiff failed to carry his burden of showing that the damaged right knee resulted from the March 31st accident. We affirm.\nIn this respect plaintiff’s main problem is that his testimony, which is supported by the testimony of his mother, is not supported by any medical evidence. Plaintiff testified that since the March 31, 1972 accident, his knee will lock in place and give out. He also testified that if he kneels for more than five minutes, his knee will commence to swell shortly thereafter. Mrs. Jackson, plaintiff’s mother, testified that after the first accident plaintiff’s right knee was swollen; that he had to walk with crutches; and, that he had to keep his knee propped up on a stool. None of the doctors who testified at trial, however, indicated that these complaints were made at a point in time subsequent to. the March 31st accident and prior to the July 4, 1972 motorcycle accident in which plaintiff was injured.\nDr. Paul Naccari, plaintiff’s treating physician after the first accident, testified that on plaintiff’s initial visit he had no complaints of pain referable to the right knee, and that not until a week later, did plaintiff complain of some minor pain in his right knee. Some attempt was made by plaintiff to show that Dr. Naccari’s records which indicated the left knee was injured were incorrect, and that the x-rays were incorrectly labeled as those of the left knee. Dr. Naccari stated, however, that he was reasonably sure that the x-rays on April 7, 1972, were of the left knee and not of the right knee.\nAccording to Dr. Naccari, after the initial visit on April 1, 1972, Jackson returned on April 7 and April 10, for heat treatments. He returned to Dr. Naccari’s office again on June 20, 1972, at which time Jackson complained of a respiratory infection. Dr. Naccari indicated that between April 10 and June 20, according to his knowledge, plaintiff did not receive any *314treatment for problems with his knees. Dr. Naccari did not see plaintiff thereafter until July 5, 1972, after the motorcycle accident, at which time plaintiff specifically complained of an injury to the right knee. Dr. Naccari found that plaintiff had swelling over the area of the right knee cap with an accumulation of fluid and some tenderness laterally and medially around the joint. When plaintiff’s knee did not improve, Dr. Naccari referred him to Dr. Veca, an orthopedic surgeon.\nAt the conclusion of his testimony, completely unsolicited by either counsel, Dr. Naccari testified:\n“If I may make a statement, it may help or it may confuse the situation, but it’s my opinion that the patient is honest from what I’ve known of him and that he did indeed have an accident March 31 for which I saw him in July. I do believe that his knee injury was to his left and that he did complain of some complaints referable to his right knee, but that subsequently, that at no time, did he have any real fantastic findings referable to that right knee, but that on the second accident which was a motorcycle accident he did indeed have evidence of severe trauma to the point that I can see from visit to visit to visit he did indeed deteriorate to the point that it did require the care of an orthopedic surgeon and I immediately recognized that it was out of my field, and whatever injury there is, that second accident certainly, in my opinion, had to have a great deal to do with what happened or what may be wrong with the knee at this time, although he did indeed have some earlier injury and maybe this aggravated it. * * * ft\nDr. Kenneth Veca testified that he saw plaintiff for the first time approximately two weeks after the July 4th accident at which time plaintiff had swelling in the knee. He stated that at that time he did not feel a ligament injury had occurred but that the possibility of a torn cartilage did exist. More importantly, however, Dr. Veca stated that plaintiff’s injury to the right knee was recent because of the fluid which was exuded from the joint when it was aspirated, indicating that it is more probable than not that origin of the serious right knee injury was related to the July 4th motorcycle accident and not to the earlier March 31st accident. On cross-examination, Dr. Veca testified that he had no knowledge that plaintiff had problems with his right knee prior to the motorcycle accident because in the history he took from plaintiff, he did not state that he had had a previous right knee injury.\nDr. Stuart Phillips, another orthopedic surgeon, saw plaintiff for a back injury after his third accident of August 7, 1973. At that time Dr. Phillips noticed that plaintiff had had an injury to the right knee. The most significant part of Dr. Phillips’ testimony is that plaintiff related to him at that time that the right knee injury was sustained in a motorcycle accident.\nConsidering the testimony of Drs. Nac-cari, Phillips and Veca, we conclude that plaintiff failed to establish by a preponderance of the evidence that the serious right knee injury (possible torn cartilage) resulted from the accident which occurred on March 31st involving defendant and which constitutes the basis of plaintiff’s claim. Accordingly, the judgment dismissing plaintiff’s suit is affirmed.\nAffirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"jackson-v-davidson"} {"case_name":"State v. Murray","case_name_full":"STATE of Louisiana v. Jimmy D. MURRAY","case_name_short":"Murray","citation_count":0,"citations":["355 So. 2d 546"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1978-02-27","date_filed_is_approximate":false,"id":7562011,"opinions":[{"ocr":true,"opinion_id":7488998,"opinion_text":"\nIn re: Jimmy D. Murray applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans.\nWrit denied. There is no merit in the application.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-murray"} {"attorneys":"Turnage & Massey, for the plaintiff., Vance & Anderson, and Sullivan, for the defendant.","case_name":"Park v. Cheek","case_name_full":"William Park v. George W. Cheek","case_name_short":"Park","citation_count":0,"citations":["39 Tenn. 451"],"court_full_name":"Tennessee Supreme Court","court_jurisdiction":"Tennessee, TN","court_short_name":"Tennessee Supreme Court","court_type":"S","date_filed":"1859-04-15","date_filed_is_approximate":true,"headnotes":"1. Deed. Consideration. Covenant of seizin. The defendant executed a deed to the plaintiff in 1851, for a lot of ground in the city of Memphis, for the consideration of four thousand dollars. The deed contained, simply, a covenant of general warranty in the usual form. About eighteen months after the execution of said deed, the defendant executed to the plaintiff another deed for the same lot, without any new consideration. This deed was made to hear the same date and ti> recite the same consideration of the first deed, and .in no respect differed from it, except that it con:¡úned a covenan' of seizin, and that the iot was free from all incumbrances. Held, that, if in the absence , of fraud the defendant voluntarily and understandingly executed the second deed with the intent and for the purpose of carrying out thb original agreement between the parties at the time of making the contract, and to supply the omission in the first deed : or, if the origina^, contract were silent as to the covenants incorporated in the seconá deed, and the vendor, at the instance of the vendee, and with knowledge that the first deed was defective, in respect to the proper and' necessary covenants — fairly and voluntarily executed the latter conveyance as a farther and better assurance of title to the purchaser, intending that the former deed should be abandoned and the latter substituted in its stead, the second deed would be valid and binding with- ‘ out any new or additional consideration.
2. Same. 'Same. Estoppel. In such a ease the vendee would be estopped to question his liability on the covenants of the second deed, on. the score of want of consideration.
","id":7717842,"judges":"McKinney","opinions":[{"author_str":"McKinney","ocr":true,"opinion_id":7653432,"opinion_text":"\nMcKinney, J.,\ndelivered the opinion of the Court.\nThis action was brought for an alleged breach of a covenant of seizin.\nIn December, 1851, the defendant, Cheek, conveyed to the plaintiff a lot of ground in the city of Memphis. The deed purports that the consideration of four thousand dollars was paid for said lot by the plaintiff to the defendant. This deed contains simply a covenant of general, warranty in the usual form. The plaintiff was let into possession of the lot — on which a mill had been erected — and still remains in the undisturbed possession of the same.\nAbout eighteen months after the execution of the before mentioned deed, the defendant executed to plaintiff another deed for the same lot, upon the representation of plaintiff, as is stated in the proof, that the first deed was “formally defective.” The last deed was made *453'upon no new consideration. It was made to bear the same date, and to recite the same consideration, of the first deed; and in no respect differed from it, except that it contained' a covenant of seizin, and that the dot was free from all incumbrances, and that' Oheek had a lawful right to sell and convey the same.\nUpon this latter deed the present action is based. The breaches assigned, negative the several covenants 'above mentioned, especially the covenant -of seizin. :\nThe proof shows that Cheek derived title to the lot by conveyance from one Varnum Ozment, bearing date the 5th day of November, 1849. And it is further '•shown, that prior to the time of said conveyance, namfe-iy, on the 11th of May, 1847, Ozment had divested •himself of the legal title to said lot, by an ante-nuptial marriage settlement, under which the title was vested in •one James A. Banks, in whom it still remains.\nIt is proved that the consideration of the conveyance from Oheek to Park, was not four thousand dollars in money, as the deed imports; but that the true ■consideration was a steamboat, called the “ St. Cloud,” given in even exchange by the latter to the former for said lot.\nThe jury were instructed by the Court that the latter deed, containing new and additional covenants, if made without any new consideration to support it, would, for that reason, be inoperative and void.\nIn this instruction, it' is said, there is error.\nIn the proof as set forth in the bill of exceptions, there is nó intimation of fraud in the procurement of the second deed. It is. not made to appear whether the additional covenants in the latter deed were incorporated *454therein in fulfillment of the original agreement, and to- . supply an unintentional omission in the first deed; or twhether they were inserted upon some new agreement between the parties, subsequent to the execution of the first deed; or whether, without any new contract, the-execution of the second deed was an act merely voluntary and superrogatory on the part of Cheek.\nIf, in the absence of fraud, Cheek, voluntarily and! understandingly, executed the second deed, with the intent, and for the purpose, of carrying out the original agreement between the parties at the time of making the contract, and to supply the omission in the first deed; or, if the original contract were s-ilent as to the covenants incorporated in the second deed, and the vendor, at the instance of the vendee, and with knowledge that the first deed was defective, in respect to the proper and necessary covenants, fairly and voluntarily executed the latter conveyance, as a farther and better assurance of title to the purchaser, intending that the fprmer deed should be abandoned, and the latter substituted in its stead; then, upon either hypothesis, it seems to us, the second deed would be valid and binding on Cheek. As regards the consideration, the latter conveyance would, in either view, be referred to the original consideration of the contract, and be sufficiently supported by it. No new or additional consideration would be requisite to give effect to the deed. The vendor, we think, would be estopped to question his liability on the covenants of the deed, on the score of want of consideration.\nHow it would be, if it were shown that \"the execution of the second deed was superinduced, by fraud, or *455artifice, on the part of the vendee, or in other supposable aspects of the case, we need not now inquire, as no such questions arise upon this record.\nThe question, as to the proper measure of damages in the present case, cannot be regarded as properly before us. Upon that subject, we refer to Kincaid v. Brittain, 5 Sneed, 119, 123; Sedgwick on Damages, 176, et. seq.\nThe judgment must be. reversed for error in the instruction given to the jury. The case will be remanded for a new trial.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"park-v-cheek","summary":"PROM MEMPHIS. There were verdict and judgmeiit for the defendant;, at the November Term, 1858, Caruthers, J., presiding. The plaintiff appealed."} {"attorneys":"Alfred Lucking, for appellant., Sullivan & Mason (Elliott G. Stevenson, of counsel), for appellees.","case_name":"Chabert v. Russell","case_name_full":"CHABERT v. RUSSELL","case_name_short":"Chabert","citation_count":0,"citations":["109 Mich. 571"],"court_full_name":"Michigan Supreme Court","court_jurisdiction":"Michigan, MI","court_short_name":"Michigan Supreme Court","court_type":"S","date_filed":"1896-06-30","date_filed_is_approximate":false,"disposition":"Reversed*","headnotes":"1. Adverse Possession—Question for Jury.
Where, in an action to x'ecover marsh land to which defendants claimed title by adverse possession, it appeared that defendants and their predecessors claimed to be the owners, and exercised acts of ownership by driving stakes to mark boundaries, by fishing, hunting, and trapping, by leasing to others, by erecting signs to warn off trespassers, and by building a dike around the land, a request to direct a verdict for plaintiff was properly refused.
2. Same—Evidenoe.
A tax deed which is insufficient in itself to pass title, and assessment x’olls showing the assessment of the property in the name of the grantee, and proceedings of the probate court showing that the land was treated as a part of the estate of such grantee upon his decease, are admissible, upon an issue of advex’se possession, to characterize the acts of possession, on the part of such grantee and his successors, shown by the evidence.
3. Same—Hostile Acts.
Acts of possession, in order to constitute adverse possession, must be such as, if seen by the party whose claim is sought to be divested, would clearly apprise him that the party doing the acts claimed the ownership of the property.
4. Trial—Requests to Charge—Modification by Court.
Where a request to charge bearing upon an important feature of the case at issue correctly states the law, it is ex-ror for the court, in instructing the jury, to add to the statement submitted words which render it of doubtful meaning.
5. Same—Instructions to Jury.
Where the issue is a close one from a legal standpoint, the instructions to the jury should state the law applicable to the case clearly and without ambiguity.
","id":7985309,"judges":"Grant, Hooker, Montgomery, Moore, Xjong","opinions":[{"author_str":"Moore","ocr":true,"opinion_id":7938358,"opinion_text":"\nMoore, J.\nThis is an action of ejectment for an undivided 1-28 of about 34 acres of land in Ecorse township, Wayne county. The plaintiff was the owner of the land, unless the ownership was cut off by adverse possession. He claims title as the grandson of Francis Chabert, who got title from the United States government in 1821. This land was part of a tract of about 237 acres called “Private Claim No. 42.” It was marsh land, and part of a large marsh, of several hundred acres in extent, which fronted on Detroit river, and was covered with water most of the time until some dredging was done in 1891. The heirs of Chabert settled in different parts of the country between 1830 and 1840. Joseph Lor anger obtained a two-ninths interest, and about 1850 built a fishing shanty on the front of claim No. 42. In February, 1854, Loranger deeded his two-ninths interest to Simon B. Rousson, who also bought another one-ninth interest the same year from Margaret Chabert. The fishing shanty was moved to Ecorse village about- 1856 or 1857. A little later, Rousson rented the fishing privilege to some Canadians, who built a shanty and fished for a short time, when the shanty was torn down. In 1868, Rousson obtained a tax deed from the State for the taxes of 1865, in which the land was described as the middle part of claim No. 45, which deed was recorded April 2, 1868. It was claimed this referred to the same land, and proof was offered to that effect. Upon the death of Simon B. Rousson, which occurred in 1875, this land was inventoried as part of his estate, and *573■upon the petition of his eight -children claim No. 42 was surveyed and divided into eight lots, numbered from 1 to 8. One lot was assigned to each child; Sarah Senecal, a married daughter, obtaining lot 1, which is the land in controversy in this suit. In 1883, she deeded to Franklin, who, in 1885, deeded, to Goodrich, who deeded to the defendants in 1889. In 1886, Nathan Judson obtained title from some of the Chabert heirs, which, in 1889, by quitclaim deed, he conveyed to Goodrich, so that, at the time this suit was begun, the defendants were the owners of about -three-fifths, of the original title. In 1891, the defendants dredged a canal and made a dike around the land. This case was commenced in 1892. The claim of the defendants is that, after Simon B. Rousson got title, he and his successors in title exercised such acts of ownership and possession as to constitute adverse possession within the meaning of the law. A large number of witnesses were sworn. The jury returned a verdict for the defendants. The plaintiff brings the case here upon nearly 100 assignments of error, which will not be taken up separately, but will be grouped.\nThe first group alleges it as error that the court refused to direct a verdict in favor of the plaintiff.- We think these assignments are not well taken, as there were questions that were proper to be submitted to the jury. Ewing v. Burnet, 11 Pet. 50.\nIt is claimed it was error to admit the tax deed of 1868, the assessment rolls, and the proceedings of the probate court in evidence. It is the contention of the defendants that, from the time Simon B. Rousson got title, he and his heirs claimed to be the owners of all the premises, and that he and they exercised all such acts of ownership by driving stakes to mark boundaries, by fishing, hunting, and trapping, by leasing to others, and by the erection of signs warning off trespassers, and by doing all such acts as the owner of the land would be expected to do, considering its character and the uses to which it could be put. We do not think any of this testimony was incom*574petent. Some of it may not have been very valuable, but it was proper to advise the court and jury of all the acts of the grantors of the defendants, in order to characterize such possession as they did exercise over the premises in controversy. Oglesby v. Hollister, 76 Cal. 136.\nThe other group of errors to be considered relates to the charge of the court, to which counsel for plaintiff objects —First, because it is argumentative; second, because it does not properly state the law of ouster; third, because it does not correctly state the law of adverse possession. The portions of the charge that are objectionable, so far as necessary to quote here, may be stated as follows: The learned- judge was asked to charge the jury as follows:\n“26. In order to constitute adverse possession, the acts of possession on the land claimed to constitute the adverse possession must be such as, if seen by the plaintiff, would clearly apprise him that the party doing the acts claimed the ownership of the property.”\nThis he did, and very properly, as we think, for we believe it to be good law. He then spoiled the effect of it by adding the following words, which we do not think were good law:\n“ That is the case, gentlemen. By seeking the record, by titles, leasing, deriving a profit, driving any one off,—these acts must be such that, if Mr. Chabert was there in the vicinity, and knew about it, that that would be notice to him. That is correct.”\nThe addition of these words made the request to charge, that was direct, pointed, and clear, ambiguous and of doubtful meaning. We have repeatedly held that the trial judge is not bound to charge the jury in the language used by counsel in his requests to charge, if he gives it in substance, so far as it is applicable to the facts in the case. In this case, the request to charge bore upon one of the most important features of the case from the *575standpoint of the plaintiff, and the plaintiff was entitled to have the jury properly instructed upon that point.\nAfter disposing of the requests of counsel, the trial judge added, upon his own motion, the following:\n“Now, gentlemen, I have but a few words more to say. Having stated to you already what adverse possession is, and what the rights of the parties are, it depends upon the things named,—what constitutes possession, and what constitutes adverse possession. One may occupy land by his tenant,—by himself, or by his tenant. But, in occupying it, it must be something. He must do something, and must intend to do something, and it must be a different occupancy'from casually passing over it by a stranger; and you have heard the testimony in this case, and you will be able to determine whether this was a different style of occupation from that of the casual hunters who passed over it. You have seen these different witnesses brought here from the community where this property is located. You have been able to weigh their knowledge and measure their ability to know what is the real condition of the property,—what has been the condition of the property. It is for that purpose that you are here. You will be able to know whether there were taxes paid, maps made, stakes driven, shanties built, people driven off, leases made, any profits derived; whether it was continuous, or whether it was casual. You are to take the case, gentlemen, with your candor and your best sense. You are to consider it in all its bearings. You are to consider each side of this case as presented,—which side is most likely to be right; which are best informed; which, of all these persons who have come before you, convince you in your hearts that they are right. You are not likely to make a mistake about it. The doors have not been closed, and the main witnesses shut out. They have been opened, and you have seen. It is to you, I think, capable of a very reasonable conclusion. It is not mysterious. You will not be confused about it when you go out, any more than you would be in an assault and battery case,—any more than you would be in any case where you have seen the eyewitnesses. Now, this is not a case that you can split up and divide. It is not a case where, in dollars and cents, you may give one a portion, and .divide it by twelve. It is a case for the plaintiff or the defendants. You are to say, gentle*576men, has the plaintiff made out a case ? If so, ‘ We find for the plaintiff.’ If the defendants have made out their case,—if they have maintained possession, control, ownership, leased, and shot game on this property, as contended. by them,—if so, ‘We find for the defendants.’ Follow an officer.”\nIt is urged that this was argumentative and misleading, and, taken in connection with the rest of the charge, indicated to the jury that the trial judge thought the case should be decided for the defendants. We are inclined to-think it open to at least one of these criticisms. The case at iss ue is a close case from a legal standpoint. We have already indicated that we thought it such a case as, from the proofs, made it necessary to submit the questions involved to the jury. From the nature and-character of the proofs, it was important that the trial judge should clearly and without ambiguity instruct the jury as to the law applicable to the case. This, we think, was not done.\nThe judgment is reversed, and a new trial ordered.\nGrant, Montgomery, and Hooker, JJ., concurred. XjOng, O. J., did not sit.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted April 22, 1896.","precedential_status":"Published","slug":"chabert-v-russell","summary":"Error to Wayne; Donovan, J. Ejectment by Richard Chabert against John A. Russell and another. From a judgment for defendants, plaintiff brings error."} {"attorneys":"Mr. C. R. Grant; Mr. W. B. Neff; Mr. F. R. Marvin and Mr. W. D. McTighe, for plaintiffs in error.","case_name":"Brickman v. Shale","case_name_full":"Brickman v. Shale","case_name_short":"Brickman","citation_count":0,"citations":["82 Ohio St. (N.S.) 425"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"1910-05-03","date_filed_is_approximate":false,"id":8380003,"judges":"Crew, Shauck, Spear","opinions":[{"ocr":true,"opinion_id":8349275,"opinion_text":"\nJudgment affirmed.\nCrew, Spear and Shauck, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"brickman-v-shale","summary":"Error to Circuit Court of Cuyahoga county. Mr. M. P. Mooney and Messrs. Meyer & Mooney, for defendants in error."} {"attorneys":"Abogado del apelado :-Sr. José Tous Soto. Abogados de la apelante: Sres. Hartsell & Rodrigues Serra.","case_name":"Cruz v. New York & Porto Rico Steamship Co","case_name_full":"Cruz, Demandante y Apelado v. New York and Porto Rico Steamship Company, Demandada y Apelante","case_name_short":"Cruz","citation_count":0,"citations":["20 P.R. Dec. 608"],"court_full_name":"Supreme Court of Puerto Rico","court_jurisdiction":"Puerto Rico, PR","court_short_name":"Supreme Court of Puerto Rico","court_type":"TS","date_filed":"1914-06-09","date_filed_is_approximate":false,"id":8569255,"opinions":[{"ocr":true,"opinion_id":8543080,"opinion_text":"\nApelación procedente de la Corte de Distrito de Ponce en nn caso sobre indemnización de daños y perjuicios. Moción de la apelante desistiendo de la apelación con el consentimiento del apelado.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cruz-v-new-york-porto-rico-steamship-co","summary":"Se tiene por desistida a la apelante."} {"attorneys":"Harold A. Fein, for appellant; Leo L. Stone, of counsel. Harry E. Kopald,' for appellee; Harry E. Kopald and Joseph Rosenbaum\", of counsel.","case_name":"Burge Ice Machine Co. v. Deligiannis Bros.","case_name_full":"Burge Ice Machine Company v. Deligiannis Brothers, Inc.","citation_count":0,"citations":["267 Ill. App. 608"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1932-06-28","date_filed_is_approximate":false,"id":8870252,"judges":"Kerner","opinions":[{"author_str":"Kerner","ocr":true,"opinion_id":8855914,"opinion_text":" Mr. Presiding Justice Kerner delivered the opinion of the' court. ","per_curiam":false,"type":"020lead"}],"other_dates":"Rehearing denied July 11, 1932.","precedential_status":"Published","slug":"burge-ice-machine-co-v-deligiannis-bros"} {"case_name":"Chromalloy American Corp. v. Marshall","case_name_full":"Chromalloy American Corp., Federal Malleable Division v. Marshall, Secretary of Labor","case_name_short":"Marshall","citation_count":0,"citations":["444 U.S. 884"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1979-10-01","date_filed_is_approximate":false,"id":9023799,"judges":"Certiorari, White","opinions":[{"ocr":true,"opinion_id":9017041,"opinion_text":"\nC. A. 7th Cir. Certiorari denied.\nMr. Justice White and Mr. Justice PoWell would grant certiorari.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"chromalloy-american-corp-v-marshall"} {"case_name":"Walker v. Barry","case_name_full":"Walker v. Barry, Mayor of District of Columbia","case_name_short":"Walker","citation_count":0,"citations":["449 U.S. 994"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1980-11-17","date_filed_is_approximate":false,"id":9029719,"opinions":[{"ocr":true,"opinion_id":9022996,"opinion_text":"\nC. A. D. C. Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"walker-v-barry"} {"case_name":"James Yates v. State","citation_count":0,"court_full_name":"Court of Criminal Appeals of Tennessee","court_jurisdiction":"Tennessee, TN","court_short_name":"Court of Criminal Appeals of Tennessee","court_type":"SA","date_filed":"2010-12-01","date_filed_is_approximate":false,"id":1084737,"opinions":[{"download_url":"http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/982/yatesj.pdf","ocr":false,"opinion_id":1084737,"opinion_text":" IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT NASHVILLE\n MAY SESSION, 1998 FILED\n June 9, 1998\nJAMES YATES, )\n ) No. 01C01-9707-CC-00299\n Cecil W. Crowson\n Appellant )\n Appellate Court Clerk\n ) HICKMAN COUNTY\nvs. )\n ) Hon. DONAL P. HARRIS, Judge\nDON SUNDQUIST, Governor of, )\nthe State of Tennessee, ) (Writ of Habeas Corpus)\nDONAL CAMPBELL, )\nCommissioner of the )\nTennessee Department of )\nCorrection, DAVID MILLS, )\nWarden of the Tennessee )\nState Prison for Men, )\nCHARLES TRAUGHBER, )\nChairman of the Tennessee )\nBoard of Paroles, THE )\nTENNESSEE SENTENCING )\nCOMMISSION, in their )\nindividual and official )\ncapacities, )\n\n Appellees\n\n\nFor the Appellant: For the Appellees:\n\nTrippe Steven Fried John Knox Walkup\nKing, Turnbow & Brisby Attorney General and Reporter\n203 Third Avenue South\nFranklin, TN 37064 Daryl J. Brand\n Assistant Attorney General\n Criminal Justice Division\n 450 James Robertson Parkway\n Nashville, TN 37243-0493\n\n Joseph D. Baugh\n District Attorney General\n P. O. Box 937\n Franklin, TN 37065-0937\n\n\n\n\nOPINION FILED:\n\nAFFIRMED\n\nDavid G. Hayes\n\nJudge\n\f OPINION\n\n\n The appellant, James Yates, appeals the summary dismissal of his pro se\n\napplication for writ of habeas corpus. The appellant is currently incarcerated in the\n\nTurney Center correctional facility in Hickman County, where he is serving concurrent\n\nsentences of life imprisonment and nine years for his convictions for open rebellion with\n\nthe intent to kill and aggravated assault upon a corrections officer. These convictions\n\noccurred in July, 1985, while the appellant was confined as an inmate in the Ft. Pillow\n\ncorrectional facility in Lauderdale County. 1\n\n\n\n The appellant’s petition for writ of habeas corpus challenges both his conviction\n\nand resulting sentence for the crime of open rebellion based upon the following\n\ngrounds: (1) his confinement constitutes ex post facto punishment; (2) his sentence is\n\nviolative of equal protection; (3) incarceration has denied him due process of law; and\n\n(4) his sentence constitutes cruel and unusual punishment. On June 23, 1997, the trial\n\ncourt, without conducting a hearing, entered a “Memorandum” and Order dismissing\n\nthe appellant’s petition. The appellant appeals this ruling.\n\n\n\n BACKGROUND\n\n\n\n On July 11, 1985, a state of open rebellion, instigated by the appellant and two\n\nother inmates, existed at the Ft. Pillow State Prison in Lauderdale County. During the\n\nconfrontation and melee between inmates and correctional officers, three officers were\n\nseverely injured. The disturbance was eventually quashed by the prison’s TACT team.\n\nIt was later determined that the appellant was a leader in the prison riot and participated\n\nin the assaults. The appellant was subsequently convicted by a jury of open rebellion,\n\naggravated assault, and simple assault. These convictions and sentences were\n\naffirmed by this court on direct appeal. See State v. Willis, C.C.A. No. 3, (Tenn. Crim.\n\n\n 1\n The a ppellant’s inc arcera tion in Laud erdale C ounty stem med from Shelby C ounty\nconvictions.\n\n 2\n\fApp., at Jackson, Jan. 21, 1987), perm. to appeal denied, (Tenn., 1987).\n\n\n\n\n ANALYSIS\n\n\n\n The appellant argues that, under the current criminal code, which became\n\neffective in 1989, “the term of the sentence applied to Open Rebellion [in 1985] was\n\nsignificantly reduced from life imprisonment to an 8 to 30 year period of incarceration.”\n\nThus, he contends that the disparate punishment in the two criminal codes violates his\n\nright of equal protection, imposes cruel and inhuman punishment, violates due process\n\nand constitutes ex post facto punishment.\n\n\n\n The appellant asserts that the trial court’s memorandum order addressed only\n\nthe issue of “equal protection.” Therefore, he contends that, because the court failed\n\nto address the issues of ex post facto punishment, violation of due process and cruel\n\nand unusual punishment, the case must be remanded for a determination of these\n\nissues.2 For the following reasons, we disagree.\n\n\n\n First, a state writ of habeas corpus will issue only in the case of a void judgment\n\nor to free a prisoner held in custody after his term of imprisonment has expired. Tenn.\n\nConst. Art. 1, §15; Tenn. Code Ann. § 29-21-101 et. seq. (1990). A petitioner cannot\n\ncollaterally attack a facially valid conviction in a habeas corpus proceeding. Potts v.\n\nState, 833 S.W.2d 60, 62 (Tenn. 1992). Unless it appears on the face of the judgment\n\nor the record of the proceedings that the convicting court lacked jurisdiction or that the\n\ndefendant’s sentence has expired, a habeas corpus proceeding cannot be maintained.\n\n\n 2\n In rejecting the appellant’s equal protection argument that he should have the benefit of\nthe redu ced pe nalties of the current law , the trial court p roperly foun d that “the 1 989 Ac t by its\nexpress language did ‘not affect rights and duties that matured, penalties that were incurred, or\nproceedings that were begu n before its effective date.’” See 1989 T enn. Pu b. Acts, C h.591, § 1 15.\nSee also State ex re l Crum v. Mc W herte r, et al, No. 02C01-9108-CC-00181 (Tenn. Crim. App. at\nJackson, May 13, 1992) (rejecting virtually the identical argument presented in this case and\nholdin g tha t “soc iety ha s a st rong intere st in p rese rving the fin ality of c rim inal litiga tion re sultin g in\na conviction and sentence which w ere valid at the time of their imposition”).\n\n 3\n\fSee Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). Because the Circuit Court\n\nof Lauderdale County had jurisdiction to try and decide the case and the record reflects\n\nthat the sentence imposed has not expired, habeas corpus relief is not available.\n\nMoreover, if from the face of the petition, the reviewing courts finds nothing to indicate\n\nthat the appellant’s challenged convictions might be void, the court shall dismiss the\n\npetition and refuse the issuance of the writ. See Tenn. Code Ann. §§ 29-21-101; - 109.\n\n\n\n Again, the appellant argues “that when the Tennessee Sentencing Reform Act\n\nof 1989 was incorporated into law, the term of the sentence applied to Open Rebellion\n\nwas significantly reduced from life imprisonment to an 8 to 30 year period of\n\nincarceration consistent with its classification as a Class B felony.” This argument is\n\nmisplaced. The crime of Open Rebellion as codified at Tenn. Code Ann. § 39-5-712\n\n(1982) was repealed upon enactment of the 1989 Criminal Code. There is no\n\nequivalent or corresponding crime found in our current criminal code for the repealed\n\noffense of open rebellion. An indictment charging the conduct previously proscribed\n\nfor the crime of open rebellion would require the charging of multiple offenses under our\n\ncurrent criminal code.3 The statutory provision referred to by the appellant simply\n\nprovides that, “for . . . sentencing purposes after November 1, 1989,” in determining\n\nthe classification of a felony committed prior to November 1, 1989, i.e., “[r]ebellion by\n\na convict with the intent to kill or escape shall be classified as a class B felony in\n\nestablishing the appropriate sentence range.” Tenn. Code Ann. § 40-35-118 (1990).\n\n\n\n Finally, the appellant attempts to utilize habeas procedures as a vehicle for direct\n\nappeal. Indeed, in the appellant’s direct appeal to this court, he presented the same\n\nissue as in the instant petition, i.e., “[w]hether the imposition of a life sentence,\n\n\n 3\n Open rebellion as codified a t 39-5-71 2, was d efined as follows:\n\n Rebellion with intent to kill or escape. - If any convict confined in the penitentiary\n for a term less than life, openly rebel with intent to kill the warden or any other\n officer thereof, or with intent, by open violence to escape, he shall, on conviction\n thereof, be imprisoned in the penitentiary for life.\n\n\n\n\n 4\n\fpursuant to Tenn. Code Ann. § 39-5-712, is violative of the appellant’s Eighth\n\nAmendment right to be free from cruel and unusual punishment.” Willis, C.C.A. No. 3.\n\nNot only is this issue inappropriate for consideration, it is res judicata. Similarly\n\npresented are the issues of due process and ex post facto punishment. A petition for\n\nhabeas corpus relief is an inappropriate procedure in which to review potential errors\n\nof a trial court. Richmond v. Barksdale, 688 S.W.2d 86, 88 (Tenn.Ct.App. 1984)\n\n(quoting State ex rel. Anglin v. Mitchell, 575 S.W.2d 284 (Tenn. 1979)). Moreover, we\n\nnote that the factual allegations of this case do not permit invocation of an ex post facto\n\nchallenge.\n\n\n\n For these reasons, we find summary dismissal of the appellant’s writ for habeas\n\ncorpus proper. The judgment of the trial court is affirmed.\n\n\n\n\n ____________________________________\n DAVID G. HAYES, Judge\n\n\n\nCONCUR:\n\n\n\n________________________________\nGARY R. WADE, Presiding Judge\n\n\n\n________________________________\nJERRY L. SMITH, Judge\n\n\n\n\n 5\n\f","page_count":5,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"james-yates-v-state"} {"case_name":"Mathis v. Frison","case_name_short":"Mathis","citation_count":0,"citations":["938 A.2d 825","402 Md. 623"],"court_full_name":"Court of Appeals of Maryland","court_jurisdiction":"Maryland, MD","court_short_name":"Court of Appeals of Maryland","court_type":"S","date_filed":"2008-01-07","date_filed_is_approximate":false,"id":1440892,"opinions":[{"ocr":false,"opinion_id":1440892,"opinion_text":"\n938 A.2d 825 (2008)\n402 Md. 623\nMathis\nv.\nFrison.\nPet. Docket No. 509.\nCourt of Appeals of Maryland.\nJanuary 7, 2008.\nPetition for writ of Certiorari denied.\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"mathis-v-frison"} {"attorneys":"Douglas R. Mullkoff, by appointment of the Court, 488 U. S. 953, argued the cause for petitioner. With him on the briefs were Paul D. Reingold, and Robert F. Gillett., Louis J. Caruso, Solicitor General of Michigan, argued the cause for respondent. With him on the brief were Frank J. Kelley, Attorney General, and James L. Stropkai, Assistant Attorney General.","case_name":"Hardin v. Straub","case_name_full":"Hardin v. Straub","case_name_short":"Hardin","citation_count":258,"citations":["104 L. Ed. 2d 582","109 S. Ct. 1998","490 U.S. 536","1989 U.S. LEXIS 2522"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1989-05-22","date_filed_is_approximate":false,"headmatter":"\n Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.\n
","id":1485494,"judges":"Manton, L. Hand, and Augustus N. Hand, Circuit Judges","opinions":[{"author_id":2033,"author_str":"Manton","ocr":false,"opinion_id":1485494,"opinion_text":"\n100 F.2d 355 (1938)\nCLOISTER PRINTING CORPORATION\nv.\nUNITED STATES.\nNo. 49.\nCircuit Court of Appeals, Second Circuit.\nDecember 5, 1938.\nFriedman & Friedman, of New York City (Hyman R. Friedman, of New York City, of counsel), for appellant.\nLamar Hardy, U. S. Atty., of New York City (David McKibbin, 3rd, Asst. U. S. Atty., of New York City, of counsel), for the United States.\nBefore MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.\nMANTON, Circuit Judge.\nAppellant sues to recover moneys paid for taxes in compromise of an assessment made against it under § 609 of the Revenue Act of 1932, 47 Stat. 264, ch. 209, 26 U.S.C.A. following § 1481. The Revenue Act imposes a tax on articles sold by a manufacturer, producer or importer of games or parts of games or articles commonly or commercially known as sporting goods. Appellant is said to be a manufacturer *356 of jig saw picture puzzles, which it sold in 1933. Appellant claims that the R. M. Sales Corporation and not it was the manufacturer and that therefore it was not liable for such tax. The Collector denied that the sales corporation was the manufacturer. A compromise was reached whereby $1,000 was paid and accepted, in settlement of an assessment of $3,360. This was paid by an assignee of the appellant to whom appellant had made an assignment of its assets for the benefit of creditors. After the assignee wound up his duties and rendered his account, he was judicially discharged.\nPrior to the compromise, the United States District Court of Massachusetts held that jig saw puzzles were games or parts of games and therefore taxable. Aronson v. White, D. C., 13 F. Supp. 913. This decision was reversed eight months after this compromise was concluded by the Circuit Court of Appeals of the First Circuit (87 F.2d 272) which result was later affirmed by the Supreme Court (302 U.S. 16, 58 S. Ct. 95, 82 L. Ed. 20). Whereupon appellant demanded a repayment of the $1,000 it had paid and after refusal this suit was brought.\nThe refunding statute (26 U.S.C.A. §§ 1672-1673, 43 Stat. 343) provides that \" * * * a * * * suit or proceeding * * * for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected * * * may be maintained, whether or not such tax, penalty, or sum had been paid under protest or duress.\" By amendment of the revenue act in 1924 (ch. 234, 43 Stat. 253, 343, § 1014, amending Rev.Stat. § 3226, all payments under the revenue act are regarded as involuntary. Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S. Ct. 620, 77 L. Ed. 1265.\nThe controversy here is centered in the question of whether the compromise made is final or whether it may be disregarded because of the mistaken assumption of both the collector and the assignee that the puzzles were subject to a tax payable by some one. The court below held that this mistaken assumption was a mistake of law only, and that therefore the money paid under compromise was not recoverable.\nThe refunding statute above makes no distinction between mistakes of fact or law and none should be read into it. The appellant's argument made against the tax before payment was as to whether it could be taxed as a manufacturer. The compromise was made on that basis. But appellee argues that the refunding statute has no application because the moneys sought to be recovered were paid under a compromise agreement and that the statute applies only to recovery of money paid in satisfaction of the full amount of the tax liability. Therefore, it argues recovery must be allowed only in accordance with the \"general rules of law with reference to compromise agreements\", and that under \"general rules of law\" the respondent, having paid under a mistake of law, cannot now invalidate the compromise agreement. We think the refunding statute is applicable and that compromise agreements come within it. The statute provides that a suit may be maintained \"for the recovery of any internal-revenue tax * * * or of any sum * * * in any manner wrongfully collected * * * whether or not such tax, penalty, or sum has been paid under protest or duress.\" The statute appears to cover all payments which should not have been made. The distinction between a voluntary and involuntary payment, which existed under the revenue acts prior to 1924 and which denied recovery of voluntary payments, was changed by Congress. Rev.Act of 1924, ch. 234, § 1014, 43 Stat. 343.\nRelying upon Morgan v. United States, Ct.Cl., 8 F. Supp. 746, and Clift & Goodrich v. United States, 2 Cir., 56 F.2d 751, appellee argues that where a voluntary payment is coupled with full knowledge of all the facts, recovery must be denied. The Morgan Case allowed a recovery for overpaid income taxes and held that a compromise of part of the amount assessed did not bar recovery of the overpayment. Appellee insists that the Court of Claims in that case held the refunding statute inapplicable and allowed recovery on the principles of law governing compromise agreements. The court simply stated that, viewing the compromise in the light of the law governing compromise agreements, a refund was not barred by a compromise based upon \"an assumed liability that does not in fact or in law exist\" [page 751]. The result in the Morgan Case supports *357 a reversal here. In the Clift Case, we pointed out that there can be no refund where the payment was \"made with full knowledge of the facts\" [page 753] and the tax was \"actually due\". Full knowledge of the facts negatives mistake. But the appellant here did not have full knowledge of the facts. He compromised on the theory that he might be a manufacturer and as such must pay the taxes. The Supreme Court held in the White Case, however, that a manufacturer of these puzzles did not owe the tax.\nAfter the 1924 amendment, refunds are allowed of a voluntary payment made under a mistake. Obviously the doctrine of mistake could apply only to voluntary payments. Since the 1924 amendment, recovery under the statute is not predicated upon its superficially voluntary or involuntary character. Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S. Ct. 620, 77 L. Ed. 1265. By an elimination of the difference between types of payment, voluntary or involuntary, the difference between types of mistakes, subdivisions of a kind of voluntary payment, should also be eliminated and recovery allowed after a voluntary payment. Moore Ice Cream Co. v. Rose, supra; Schneider v. Duffy, D.C., 43 F.2d 642, 644; Beatty v. Heiner, D.C., 10 F.2d 390, 392.\nConcededly, if no compromise were involved, questionable and tenuous distinctions between mistakes of law and of fact would not be involved. The presence of a compromise should not alter the operation of the salutary purpose of the refunding statute. To hold otherwise, that is, that the statute applies only where a full payment has been made, would do violence to the letter and spirit of the act, more so at least than to disregard the fact of compromise. A taxpayer should not be penalized because he saw fit, under a mutual mistake that the subject matter of the assessment was itself properly taxable, to compromise and avoid litigation. Appellant does not argue that if the dispute giving rise to a compromise were a dispute as to whether the puzzles were taxable at all, then a compromise of that dispute would not bar the present action. The compromise here was not the taxability of the product, but was the taxability of the producer. Who was the producer was disputed in the compromise, not what was produced.\nIt is unnecessary to determine what type of mistake comes within the statute. We look to the subject of the compromise as a determining factor. Suits for refund of taxes wrongfully assessed or collected are equitable in nature and function. Stone v. White, 301 U.S. 532, 534, 57 S. Ct. 851, 81 L. Ed. 1265. We see no distinction between moneys paid after a suit to recover has been started, when thereafter a compromise agreement has been reached, and moneys paid without suit under a compromise agreement. If the sole fact of compromise is no bar in the one instance, it is not in the other. This is particularly true where to do so would be to construe the tax statute unfavorably to the taxpayer, a result which should be avoided in cases of reasonable doubt. White v. Aronson, supra.\nIn Staten Island Hygeia Ice & Cold Storage Co. v. United States, 2 Cir., 85 F.2d 68, and Hord v. United States, Ct.Cl., 59 F.2d 125, there was no question as to the original taxability of the subject matter of the assessment, but only as to whether or not a compromise entered in a mistaken belief that the statute of limitations did not bar the collection of the tax, could be ignored.\nThe statute authorizing tax refunds and suits for their recovery are based upon the same equitable principles that underlie an action in assumpsit for money had and received. Stone v. White, 301 U.S. 532, 57 S. Ct. 851, 81 L. Ed. 1265; Moore Ice Cream Co. v. Rose, 289 U.S. 373, 376, 53 S. Ct. 620, 77 L. Ed. 1265. The appellant should have had judgment below.\nJudgment reversed.\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"cloister-printing-corporation-v-united-states"} {"case_name":"Alexander v. State","case_name_short":"Alexander","citation_count":0,"citations":["14 So. 3d 196"],"court_full_name":"Court of Criminal Appeals of Alabama","court_jurisdiction":"Alabama, AL","court_short_name":"Court of Criminal Appeals of Alabama","court_type":"SA","date_filed":"2007-08-24","date_filed_is_approximate":false,"id":1589291,"opinions":[{"ocr":false,"opinion_id":1589291,"opinion_text":"\n14 So.3d 196 (2007)\nDAVID NOEL ALEXANDER\nv.\nSTATE.\nNo. CR-05-1974.\nCourt of Criminal Appeals of Alabama.\nAugust 24, 2007.\nDecision of the Alabama Court of Criminal Appeals without opinion Affirmed.\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"alexander-v-state"} {"attorneys":"Gary C. Leedes, Esq. Richter, Syken, Ross, Binder & O’Neill, Philadelphia, Pa., for plaintiff., Edwin E. Naythons, Philadelphia, Pa., for defendant.","case_name":"Toppi v. United States","case_name_full":"Robert J. TOPPI v. UNITED STATES of America","case_name_short":"Toppi","citation_count":6,"citations":["332 F. Supp. 513"],"court_full_name":"District Court, E.D. Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"E.D. Pennsylvania","court_type":"FD","date_filed":"1971-10-05","date_filed_is_approximate":false,"headmatter":"\n The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App.P. 34(a) and Ninth Circuit Rule 3(a).\n
\n\n \n *70\n \n L. HAND, Circuit Judge, dissenting.\n
\n Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.\n
","id":1547312,"judges":"L. Hand, Swan, and Augustus N. Hand, Circuit Judges","opinions":[{"author_id":3146,"ocr":false,"opinion_id":1547312,"opinion_text":"\n73 F.2d 69 (1934)\nINTERNATIONAL SILVER CO.\nv.\nONEIDA COMMUNITY, Limited.\nNo. 330.\nCircuit Court of Appeals, Second Circuit.\nAugust 17, 1934.\nRehearing Denied October 31, 1934.\n*70 Bartlett, Eyre, Scott & Keel, of New York City (John P. Bartlett, Richard Eyre, Edward S. Rogers, and Ralph L. Scott, all of New York City, of counsel), for complainant-appellant.\nNims & Verdi, of New York City (Harry D. Nims, James J. Kennedy, Wallace H. Martin, M. L. Severn, and S. L. Whitman, all of New York City, of counsel), for defendant-appellant.\nBefore L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.\nAUGUSTUS N. HAND, Circuit Judge.\nThis suit is to enjoin the use of the name \"Rogers\" on silver-plated flatware and other tableware, as well as to enjoin the use of various trade-marks and to restrain unfair competition.\nComplainant claims to be the successor of the original Rogers firm that began business in 1847 and attained a high reputation in the manufacture of silver plate. We think this position cannot be sustained so far as it seeks exclusive rights derived from the three brothers, William, Simeon S., and Asa H. Rogers, who began business together in Connecticut in 1847 and established a high reputation as faithful craftsmen in making table silverware by an electroplating process. The three Rogers stayed together until 1856, when William left the corporation which the brothers had formed, known as Rogers Bros. Manufacturing Company. He then joined others in a corporation known as Rogers Smith & Co., which manufactured silver-plated ware under the mark \"Rogers Smith & Co. A 1.\" In 1862, Rogers Smith & Co. merged with the Rogers Bros. Manufacturing Company and under the marks \"(Star) Rogers Bros. A 1,\" \"Rogers Brothers,\" \"Rogers Bros.,\" and \"Rogers Smith & Company\" continued the business until the concern became insolvent in 1862 and the assets, other than the good will and trade-marks, were distributed by the Connecticut probate court. Shortly after the failure, a new corporation called Rogers Smith & Co. was organized (in which no one named Rogers was interested), which was sold out to Meriden Brittania Company in 1863. About November, 1862, the original three Rogers brothers entered the employ of the Meriden Company without, however, obtaining any proprietary interest in that corporation. It was agreed that the company should not sell goods stamped with the name \"Rogers\" unless they bore the name or trade-marks of \"Rogers Brothers.\" The goods were marketed by the company under the name \"1847 Rogers Bros. A 1.\"\nAsa H. and Simeon S. Rogers had left Rogers Bros. Manufacturing Company in 1858 and, before going into the employ of the Meriden Company, had established a business of their own at Waterbury, Conn., under the name of Rogers & Bro., using the trade-marks \"Rogers & Brother A 1,\" \"(Star) Rogers & Brother A 1,\" \"(Star) Rogers & Bro. A 1,\" \"(Star) R. & B.\"\nIn 1864, William Rogers left the employ of the Meriden Company and went into that *71 of William Rogers Manufacturing Company in Hartford, a partnership in which neither he nor any one named Rogers ever owned an interest. His son William Rogers, Jr., also associated himself with the concern. The trade-marks used by it were \"(Anchor) William Rogers & Son AA,\" \"William Rogers & Son,\" \"1865 William Rogers Mfg. Co. AA,\" \"William Rogers Mfg. Co.,\" \"Rogers Nickel Silver,\" \"(Anchor) Rogers (Anchor).\"\nIn 1868, William Rogers again entered the employ of the Meriden Company and his son went with him.\nIn 1871, Asa Rogers and one Watrous organized Rogers Cutlery Company.\nIn 1878, Simpson, Hall, Miller & Co. was formed at Wallingford and employed William Rogers, Jr. It used the mark \"(Eagle) Wm. Rogers (Star).\"\nIn 1868, Cephas, Gilbert, and Wilbur F. Rogers, all being unconnected with the old Rogers family, founded a firm at Meriden under the name of C. Rogers & Bros. They used the trade-marks \"C. Rogers & Bros.\" and \"C. Rogers & Bros. A 1.\" It did not begin to manufacture silver plate until 1883.\nIn 1886, the Rogers & Hamilton Company was formed in Waterbury, with which none of the Rogers brothers was connected. It did not manufacture silver plate, but only hollow ware. Indeed, the original Rogers had all died; William Rogers in 1873, Simeon in 1874, and Asa in 1876.\nIt will be seen that prior to 1894, when William A. Rogers, who is defendant's predecessor, began business, the following concerns were in the business of manufacturing silver plate: Rogers & Bro., deriving title from Asa and Simeon Rogers in 1858; Meriden Brittania Company, deriving title from all three of the original brothers in 1862; William Rogers Manufacturing Company deriving title from William Rogers in 1865; Rogers Cutlery Company deriving title from Asa Rogers.\nIn addition to the foregoing, the following concerns: C. Rogers & Bros. (1868), Simpson, Hall, Miller & Co. (1878), and the Rogers & Hamilton Company (1886) were in competition with the complainant's predecessors in 1894 when William A. Rogers, defendant's predecessor, entered the field.\nIn 1899, the complainant was organized and has purchased the business of the foregoing concerns. It seems plain that at that time the name \"Rogers\" did not designate any particular source of manufacture. The first four concerns could trace back to the three brothers and possibly this was true of Simpson, Hall, Miller & Co. also, because of the connection with it of William Rogers, Jr., who had worked closely with his father in the William Rogers Manufacturing Company. But in Wm. Rogers Mfg. Co. v. Simpson, Hall, Miller & Co., 54 Conn. 527, 9 A. 395, 401, it was held that the William Rogers Manufacturing Company could not prevent Simpson, Hall, Miller & Co. from using the word \"Rogers.\" The court said in that decision that: \"The plaintiff has no greater right to prevent the misleading of consumers in the matter of calling the goods of both `Rogers goods,' than it has to prevent the same result in the matter of using identical names accompanied by differing symbols as stamps.\" It was also held in a suit by Rogers & Brother v. C. Rogers et al., 53 Conn. 121, 1 A. 807, 5 A. 675, 55 Am. Rep. 78, that the former could not enjoin C. Rogers & Bros. from using the \"name of `Rogers' merely, upon their goods.\" As regards Rogers & Hamilton Company, another interloper, there is no proof that any attempt was made to stop its sales of \"Rogers\" goods, or that any of the original Rogers concerns objected to its use of the name. Thus, when the complainant came into the field, there were at least two, and probably three, concerns which had been using the name for years, with no proof that their workmanship was equivalent to the high order of plate that had made the silver of William, Simeon S., and Asa H. Rogers famous, or that they claimed to derive their title from the original brothers.\nIn 1894, William A. Rogers, defendant's predecessor, began selling silverware in New York. He started a fourth \"Rogers\" business in electroplated ware in competition with the companies deriving a commercial heirship from the three brothers and was followed in 1900 by a concern known as Simeon L. & George H. Rogers Company, organized under the laws of Maine, by two sons of Simeon S. Rogers, with a factory at Hartford, Conn.\nIn 1901, William A. Rogers incorporated his business and was engaged in substantial competition with the complainant in silver plate until the business was sold out to the defendant in 1929. It used the name \"Rogers\" as well as various special trademarks. In 1918, it had acquired the business of Simeon L. & George H. Rogers Company.\nThe complainant bought out all of the concerns that were competing with it when *72 it started business, namely, Rogers & Bro., Meriden Brittania Company, Wm. Rogers Manufacturing Company, Rogers Cutlery Company, Rogers Smith & Co., Simpson, Hall, Miller & Co., and the Rogers & Hamilton Company, but before the defendant entered the field by the acquisition of Wm. A. Rogers, Limited, there were outstanding the business of Wm. A. Rogers, and for twenty years afterwards that of Simeon L. & George H. Rogers Company. This makes it clear that the name \"Rogers\" simpliciter never meant solely the complainant's goods.\nIt is argued that complainant established by litigation that the name \"Rogers\" did mean its goods, but this is not so. This is first sought to be shown by the suits brought by Wm. Rogers Manufacturing Company, one of its predecessors. In Rogers v. Wm. Rogers Mfg. Co. (C. C. A.) 70 F. 1019, a preliminary injunction in its favor was reversed by this court, and the suit was later dismissed for lack of prosecution. In Wm. Rogers Mfg. Co. v. Wm. A. Rogers (C. C.) 84 F. 639, affirmed (C. C. A.) 95 F. 1007, Judge Lacombe denied a motion for a preliminary injunction, though William A. Rogers was advertising his goods as \"Rogers goods\" and the \"genuine Rogers goods.\" In 1917, the suit was dismissed for lack of prosecution. In International Silver Co. v. Simeon L. & George H. Rogers (C. C.) 110 F. 955, Judge Shipman, in 1901, granted a preliminary injunction to the complainant restraining the defendant in that suit from using such terms as \"the only Rogers Bros.,\" as well as \"Rogers\" and \"Rogers Bros.,\" with or without a preceding or succeeding name or symbol, but did not enjoin the use of the corporate name. He found that the defendant had selected the name \"Rogers\" unnecessarily for purposes of unfair competition, and it is to be remembered that the defendant there had only just begun business in 1901 and had really built up no equity in its favor. The suit never came to final hearing, and in 1913 was dismissed for lack of prosecution. Under all the circumstances, the decision has no important bearing on the present controversy. Likewise in International Silver Co. v. Rodgers Bros. Cutlery Co. (C. C.) 136 F. 1019, a mere interloper had selected the name \"Rodgers\" to take away the complainant's trade. There an injunction was granted, but merely on the ground of fraud, and not because the name \"Rogers\" had acquired a secondary meaning. The scholarly opinion of Justice Swayze in the New Jersey Court of Errors and Appeals in International Silver Co. v. W. H. Roger's Corp., 67 N. J. Eq. 646, 60 A. 187, 189, 110 Am. St. Rep. 506, 3 Ann. Cas. 804 is to the same effect. There a mere interloper having no standing as a silversmith sought to capture complainant's trade. The court held that the fact that William A. Rogers, defendant's predecessor, \"seems to have established the right to use the name,\" did not \"enlarge\" the rights of the interloper. See, also, International Silver Co. v. Rogers, 72 N. J. Eq. 933, 67 A. 105, 129 Am. St. Rep. 722.\nThat International Silver Company had no exclusive right to the word \"Rogers\" simpliciter was held in Wm. A. Rogers v. International Silver Co., 34 App. D. C. 410, and by Judge Manton in the District Court in Wm. A. Rogers, Ltd., v. Rogers Silverware Redemption Bureau, 247 F. 178.\nIt is argued that the complainant abandoned any right it may have had to use the name \"Rogers\" simpliciter, and that between 1900 and 1929 it advertised urging the public to disregard that word in buying Rogers' silverware and seek more specific marks. Among the phrases used for this purpose were:\n\"Don't say Rogers, say Wm. Rogers & Son.\"\n\"Not `Rogers' only but `1847.'\"\n\"There are other Rogers, remember `1847.'\"\n\"Remember the number `1847' as well as the `Rogers Bros.'\"\n\"There are other Rogers. Remember `1847.'\"\n\"Remember the `1847,' as there are other `Rogers.'\"\n\"1847 was made part of the trademark to identify the genuine.\"\n\"There are many brands of `Rogers' but there is only one `1847.'\"\n\"1847 has been the mark that has distinguished the original brand of silver plated flatware.\"\n\"Although there are several makes of Rogers goods there is but one brand of 1847 Rogers Bros.\"\n\"There are other makes of `Rogers' but only one `1847' Rogers Bros.\"\nThis, we think, does not show an abandonment of the right to use the name \"Rogers\" so far as that right existed, but only an insistence upon special distinguishing marks.\nBetween the date when complainant started and defendant's acquisition of the *73 property of William A. Rogers, the business of the latter grew to a very substantial volume, and it sold goods under brands which included the word \"Rogers\" to the amount of several million dollars. While it may not be possible to approximate accurately the amount of flat silverware which it sold that was advertised as Rogers' goods, or bore trade-marks with the name \"Rogers\" thereon, it is certain that business of that kind was substantial. Complainant allowed all this to go on, but was on friendly relations with William A. Rogers, Limited, and at times purchased goods from the latter. The suits which it had brought against William A. Rogers in 1895 and 1898 in order to stop the use of its name did not succeed and were discontinued in 1917. In view of complainant's disregard of the name \"Rogers\" simpliciter and its failure to make any steady attempt to prevent its use by others, we must hold that it had no exclusive right to the use of that name.\nBut it may be argued that, even if the defendant has the right to use the name \"Rogers\" simpliciter, it has traded so unfairly that it should be denied that use and confined to its specific marks. One misrepresentation it has made is in its guaranty by Simeon L. & George H. Rogers Company, Inc. The old Simeon Company, the business of which defendant purchased, was dissolved, and the guaranty was by a company with only nominal assets, and defendant's name does not appear on it. On the face of each guaranty is a picture of the original Simeon Rogers and his sons George and Simeon. This was a direct attempt to trade on the reputation and skill of one of the original brothers from whom complainant's, and not defendant's, good will may be regarded as in part derived.\nThe green advertising pamphlet of defendant (Exhibit 47) which its salesmen passed on to dealers was also intentionally misleading. It dealt with silver sold under the mark \"1881 (R) Rogers (R).\" It says that \"its name has been universally accepted for half a century as representing unusual value in silverware in a vast moderate priced market,\" and adds that these advertisements \"are new links in a great chain of advertising continuing thru generations * * * creating a great name in silverware.\" As a matter of fact, the mark \"(R) Rogers (R) 1881\" was not used before 1901, and \"1881 (R) Rogers (R)\" until 1910. Neither had in any sense been used \"thru generations.\" The circular was obviously intended to represent that the reputation of defendant's Rogers plate was derived from the original brothers and that its excellence in silver plating came from the teachings in faithful workmanship of those men and the concerns with which they were associated. Nothing could be better calculated to misrepresent the truth. As a matter of fact, 1881 was a date having no significance except that of an unfounded antiquity. The mark was a deceptive imitation with the misleading variant \"1881\" of \"(Anchor) Rogers (Anchor).\" Indeed, \"(R) Rogers (R) 1881\" was held a deceptive imitation of the latter mark in Wm. A. Rogers, Limited, v. International Silver Co., 34 App. D. C. 413, and the only basis for tolerating a mark in which 1881 was placed at the beginning, rather than the end, is laches or estoppel. But there can be no justification for allowing it to be used unqualified after defendant began to represent that it was derived from the original Rogers. The intention to trade on complainant's name is further shown by the words printed in large letters at the top of the second page of the pamphlet (Exhibit 47): \"National Advertising and Dealer Aids.\" The complainant has advertised its goods on a large scale, and the defendant practically not at all. Advertisements in the Saturday Evening Post of \"Wm. A. Rogers Heirloom\" and of \"1881 (R) Rogers (R)\" (each inserted in a single issue) were sent to dealers with frames for exhibition in stores. Later other printed advertisements of the same size, described by the defendant as \"Saturday Evening Post size advertising\" or \"reprints\" were distributed to the dealers for insertion in these frames. These later advertisements were not published anywhere. This seems to have been a deliberate attempt to trade on complainant's advertising and to lead the public to suppose that the silver advertised in the frames was that of the old Rogers brands that were then being nationally advertised. The use of the terms \"Genuine Rogers,\" \"Famous Rogers,\" and \"Celebrated Rogers\" under the foregoing conditions shows, we think, both a purpose and a tendency to lead the public to believe that the defendant's goods are associated with those of the original Rogers or their successors who made Rogers plate famous.\nSuch acts on defendant's part, accompanied by instructions to its salesmen to \"stuff your ears with cotton and say Rogers\" inevitably led to all kinds of misleading representations by its enthusiastic dealers. For example, \"a genuine Wm. Rogers Silver Tea-spoon,\" \"We feature the nationally Rodgers Bros. lines in both Community *74 and Tudor,\" a \"Wm. Rogers\" set, were misleading descriptions by defendant's dealers who did not distinguish between the original William Rogers and his successors and William A. Rogers and his company that defendant has acquired.\nThe so-called initial line \"R. S. Mfg. Co.\" was made of the cheapest plated ware and sold under conditions in which the public might well believe it was complainant's product. From the sort of competition that defendant conducted or promoted there arose a deception and confusion due to its deliberate acts. There is no such corporation as \"R. S. Mfg. Co.,\" though the boxes in which silverware thus marked is sold carry the name \"R. S. Mfg. Co.\" as the maker and guarantor. One Abelson was sued by International Silver Company for advertising a \"R. S. Mfg. Co.\" set of table silver as \"Rogers World Famous Silver Plate.\" The set was worth only about $7, and sold for $19.95. Thus he put on the market not only an inferior article, but one sold at a price indicating good plate under a name which, because of defendant's method of merchandising, was likely to lead the public to suppose it was manufactured by complainant. Defendant appears to have taken no affirmative steps to stop this, but, on the contrary, paid the expenses of Abelson's defense in the suit brought by the complainant against him. This sort of deliberate misuse of the name \"Rogers\" is bound to injure complainant's trade and is palpably unfair.\nMisrepresentation and confusion by defendant's customers for which we believe it is to a substantial extent responsible are bound to injure complainant's reputation and business. Thus we find in Howard's advertisement of \"R. S. Mfg. Co.\" plate that \"Wm. Rogers\" is represented to be the maker and guarantor. Still another advertisement reads that the ware on sale is \"made and guaranteed by Wm. Rogers.\" Such advertising confuses the cheap ware of William A. Rogers with the ware of William Rogers, one of the original brothers. Four dealers were discovered who had put defendant's plate in complainant's containers. The newspaper advertisement of another dealer specified ware of defendant as \"1847 Rogers Bros. Silverware Half Price,\" though the ware was unplated nickel silver. These illustrations might be multiplied ad infinitum. They are not, in our opinion, due merely to the vagueness of the meaning of the word \"Rogers\" open to use by either party, but are also due, at least in part, to the misrepresentation and confusion which the reckless and unfair mode of competition carried on by the defendant has caused.\nIt is to be noted that there was a marked difference between the advertising of the defendant and its predecessors in business, in that the latter used their own names in advertising, such as Simeon L. and George H. Rogers, S. L. & G. H. R. Co. and Wm. A. Rogers, and that about the only marks used that suggested Rogers simpliciter were \"(R) Rogers (R)\" and \"1881 (R) Rogers (R),\" which were deceptive marks for the reasons above stated. The defendant, on the other hand, began a huge deceptive and confusing campaign which, in our opinion, has gone beyond anything its predecessors did both in volume and consistent intent.\nWhile defendant's conduct has not been bad enough to deprive it of the use of the name \"Rogers\" or of the marks \"Wm. A. Rogers Heirloom\" or \"R. S. Mfg. Co.,\" its advertising and propaganda seem to make it necessary to differentiate its goods from complainant's in all advertising matter and containers relating to flatware, whether marked with the initial marks \"(Maltese Cross) W. R. (Keystone),\" \"S. L. & G. H. R. Co.,\" or \"R. S. Mfg. Co.,\" or marked with \"Wm. A. Rogers Heirloom\" in any way, or with \"Wm. A. Rogers\" followed by \"R\" in a horseshoe, or \"1881 (Wreath) Rogers (Wreath),\" or \"(Wreath) Rogers (Wreath)\" with \"1881\" above and \"Quadruple Plate New York City\" below, or marked with \"(Wreath) Rogers (Wreath)\" on cutlery only, or with \"Simeon L. and George H. Rogers Company,\" or other marks having the name \"Rogers.\" While the defendant should be allowed to use any of the foregoing marks as well as the name \"Rogers,\" its own name either as successor of William A. Rogers, Limited, or of Simeon L. & George H. Rogers Company, or as manufacturer should appear in any and all advertising and upon all cartons or containers in which goods bearing these marks or bearing the name \"Rogers\" are supplied, and, if the ware be guaranteed, its name as the successor or manufacturer shall appear upon the guaranty. Moreover, such name shall be as prominent both in size and type as the name of such predecessor or the name \"Rogers,\" and such predecessor's name or the name \"Rogers\" shall be displayed only in conjunction with defendant's name. Likewise, sales to dealers or other parties disposing of such ware shall be accompanied by written notices in unmistakable terms that the ware shall not and cannot legally be sold or represented as Rogers ware except *75 as Rogers ware manufactured by Oneida Community, Limited. In the event the defendant shall adopt new trade-marks bearing the name \"Rogers,\" it shall inscribe upon the plate the name \"Oneida Community\" either as successor or manufacturer. The foregoing provisions are to be a substitute for 6 (a) and (b) of the decree below. Subdivision 6 (c) of the decree should be eliminated and 6 (d) and 6 (e) should stand.\nIn respect to the cross-injunction granted to the defendant, it should stand as in the decree, except that subdivision 7 (a) should read as follows:\n(a) From stating directly or indirectly to the trade or the public, or in any manner advertising or claiming that plaintiff is the sole or only concern whose ware may be advertised or sold as Rogers, or from stating that it is unfair competition to advertise or sell as Rogers defendant's ware marked with any of defendant's marks or with the name \"Rogers,\" provided, however, the cartons or containers bearing the same or the name \"Rogers,\" and the advertisements thereof, are marked with the name of the defendant as successor or manufacturer, and written notices are given to dealers and others, and plate bearing new trademarks with the name \"Rogers\" is inscribed in the way hereinbefore directed; or from stating in advertising, or otherwise in trade, directly or indirectly, that there are or ever were any injunctions or adjudications in force against such advertising or sale by the defendant or its predecessors, or that any one will be in contempt of court for thus advertising or selling defendant's ware.\nThe decree is modified in accordance with this opinion and, as so modified, affirmed without costs to either party.\nL. HAND, Circuit Judge (dissenting).\nI agree that the name \"Rogers,\" simpliciter, cannot be monopolized by this complainant and for the reasons given, but I would go further: The \"W. A. Rogers\" business began in 1894, and it has been continuous ever since. In 1901 it was incorporated, only two years after the complainant gathered in six or seven other \"Rogerses,\" and the same year that it took in \"C. Rogers & Brothers.\" Thereafter the two businesses went along side by side, until this suit was started, and except for the abortive efforts of 1896 and 1898, which were abandoned in 1917, the complainant never uttered a syllable of protest. Indeed although in 1907 it successfully prosecuted an interloper, I can find nothing later which suggested a claim to the name as against any one at all. The business of \"W. A. Rogers\" down to 1929 when the defendant bought it, was not trifling or negligible; it was not a competitor one could ignore with impunity. Between 1921 and 1928 it sold about $1,000,000 a year in what may fairly be regarded as \"Rogers\" brands. The complainant did not object to this and it is entirely clear why it did not object. It had no idea of making \"Rogers\" its mark; it was centering all its emphasis upon other marks, principally \"1847.\" It was only when the defendant, whom it had good reason to fear, entered the field and paid down two million dollars, that it awoke to the dishonest practices of which it had for thirty years been the victim. I must own that such grievances do not impress me; if either party has any ground for complaint, the defendant seems to me to be that one. Wrongs endured with compliance for a generation do not engender my indignation, or move me to intervene. I do not care whether one says that the complainant abandoned the name \"Rogers,\" simpliciter, and its combinations so far as the W. A. Rogers Company copied them, or whether one says that it is estopped; for the purposes of this suit the result is the same. What we are doing is to protect trade names and marks which, as it seems to me, have been forfeited, at least as against this complainant, by every canon of law, justice and morals. I hold no brief for the defendant's own conduct; but I apprehend that in suits like this we do not protect the public, but only redress a private wrong. I can find none that this complainant has suffered.\nAs my views will not prevail I shall not go into the details. There are a few things that I should enjoin the defendant from calling its wares, e. g.: \"Genuine,\" \"Famous,\" \"Celebrated.\" These connote a position in the trade which \"W. A. Rogers\" never held; that is, that the defendant's wares are more genuine, more famous and more celebrated than the complainant's. That is misleading, just as it is misleading for the complainant to say that it is the \"genuine\" Rogers, for there is no genuine \"Rogers,\" though there is an \"original,\" and on the whole the complainant is that \"original.\" As to the \"initial\" marks, though I agree that they might stand without any monopoly of the name \"Rogers,\" and though I might agree that originally the \"W. A. Rogers\" marks were close enough to give ground for complaint, the complainant has lost any right in *76 these as well, quoad this defendant, because of its long acquiescence and the defendant's reliance upon it. But it does not seem worth while to go into the evidence to see which of the supposed infringements are old enough to have secured the immunity of age, toleration and action in reliance upon both.\n","per_curiam":false,"type":"010combined"},{"author_str":"Hand","ocr":false,"opinion_id":9651076,"opinion_text":"\nAUGUSTUS N. HAND, Circuit Judge.\nThis suit is to enjoin the use of the name “Rogers” on silver-plated fatware and other tableware, as well as to enjoin the use of various trade-marks and to restrain unfair competition.\nComplainant claims to be the successor of the original Rogers firm that began business in 1847 and attained a high reputation in the manufacture of silver plate. We think this position cannot be sustained so far as it seeks exclusive rights derived from the three brothers, William, Simeon S., and Asa H. Rogers, who began business together in Connecticut in 1847 and established a high reputation as faithful craftsmen in making table silverware by an electroplating process. The three Rogers stayed together until 1856, when William left the corporation which the brothers had formed, known as Rogers Bros. Manufacturing Company. He then joined others in a corporation known as Rogers Smith & Co., which manufactured silver-plated ware under the mark “Rogers Smith & Co. A 1.” In 1862, Rogers Smith & Co. merged with the Rogers Bros. Manufacturing Company and under the marks “(Star) Rogers Bros. A 1,” “Rogers Brothers,” “Rogers Bros.,” and “Rogers Smith & Company” continued the business until the concern became insolvent in 1862 and the assets, other than the good will and trade-marks, were distributed by the Connecticut probate court. Shortly after the failure, a new corporation called Rogers Smith & Co. was organized (in which no one named Rogers was interested), which was sold out to Meriden Brittania Company in 1863. About November, 1862, the .original three Rogers brothers entered the employ of the Meriden Company without, however, obtaining any proprietary interest in that corporation. It was agreed that the company should not sell goods stamped with the name “Rogers” unless they bore the name or trade-marks of “Rogers Brothers.” The goods were marketed by the company under the name “1847 Rogers Bros. A 1.”\nAsa H. and Simeon S. Rogers had left Rogers Bros. Manufacturing Company in 1858 and, before going into the employ of the Meriden Company, had established a business of their own at Waterbury, Conn., under the name of Rogers & Bro., using the trade-marks “Rogers & Brother A 1,” “(Star) Rogers & Brother A 1,” “(Star-) Rogers & Bro. A 1,” “(Star) R. & B.”\nIn 1864, William Rogers left the employ of the Meriden Company and went into that *71of \"William Rogers Manufacturing Company in Hartford, a partnership in which neither he nor any one named Rogers over owned an interest. His son \"William Rogers, Jr., also associated himself with the concern. The trade-marks used by it were “(Anchor) William Rogers & Son AA,” “William Rogers & Son,” “1865 William Rogers Mfg. Co. AA,” “William Rogers Mfg. Co.,” “Rogers Nickel Silver,” “(Anchor) Rogers (Anchor)\nIn 1868, Yfilliam Rogers again entered the employ of the Meriden Company and his son went with him.\nIn 1871, Asa Rogers and one Watrous organized Rogers Cutlery Company.\nIn 1878, Simpson, Hall, Miller & Co. was formed at Wallingford and employed William Rogers, Jr. It used the mark “(Eagle) Wm. Rogers (Star).”\nIn 1868, Cephas, Gilbert, and Wilbur F. Rogers, all being unconnected with the old Rogers family, founded a, firm at Meriden under the name of C. Rogers & Bros. They used the trade-marks “C. Rogers & Bros.” and “C. Rogers & Bros. A 1.” It did not begin to manufacture silver plate until 1883.\nIn 1886, the Rogers & Hamilton Company was formed in Watorbnry, with which none of the Rogers brothers was connected. It did no-t manufacture silver plate, hut only hollow ware. Indeed, the original Rogers had all died; William Rogers in 1873, Simeon in 1874, and Asa hi 1876.\nIt will be seen that prior to 1394, when William A. Rogers, who is defendant’s predecessor, began business, the following concerns were in the business of manufacturing silver plate: Rogers & Bro., deriving title from Asa and Simeon Rogers in 1858; Meriden Brittania Company, deriving title from all three of the original brothers in 1862; William Rogers Manufacturing Company deriving title from William Rogers in 1865; Rogers Cutlery Company deriving title from Asa Rogers.\nIn addition to the foregoing, the following concerns: C. Rogers & Bros. (1868), Simpson, Hall, Miller & Co. (1878), and the Rogers & Hamilton Company (1886) — were in competition with the complainant’s predecessors in 1894 when William A. Rogers, defendant’s predecessor, entered the field.\nIn 1899, the complainant was organized and has purchased the business of the foregoing concerns. It seems plain that at that time the name “Rogers” did not designate any particular source of manufacture. The first four concerns could trace back to’the three brothers and possibly this was true of Simpson, Hall, Miller & Co. also, because of the connection with it of William Rogers, Jr., who had worked closely with his father in the William Rogers Manufacturing Company. But in Wm. Rogers Mfg. Co. v. Simpson, Hall, Miller & Co., 54 Conn. 527, 9 A. 395, 401, it was held that the William Rogers Manufacturing Company’ could not prevent Simpson, Hall, Miller & Co. from using the word “Rogers.” The court said in that decision that: “The plaintiff has no greater right to prevent the misleading of consumers in the matter of calling the goods of both ‘Rogers goods,’ than it has to prevent the same result in the matter of using identical names accompanied by differing symbols as stamps.” It was also held in a suit by Rogers & Brother v. C. Rogers et al., 53 Conn. 121, 1 A. 807, 5 A. 675, 55 Am. Rep. 78, that the former could not enjoin C. Rogers & Bros, from using the “name of ‘Rogers’ merely, upon their goods.” As regards Rogers & Hamilton Company, another interloper, there is no proof that any attempt was made to stop its sales of “Rogers” goods, or that any of the original Rogers concerns objected to its use of the name. Thus, when the complainant came into the field, there were at least two, and probably three, concerns which had been using the name for years, with no proof that their workmanship was equivalent to the high order of plate that had made the silver of William, Simeon S., and Asa H. Rogers famous, or that they claimed to derive their title from the original brothers.\nIn 1894, William A. Rogers, defendant’s predecessor, began selling silverware in New York. He started a fourth “Rogers” business in electroplated ware in competition with the companies deriving a commercial heirship from the three brothers and was followed in 1900 by a concern known as Simeon L. & George H. Rogers Company, organized under the laws of Maine, by two sons of Simeon S. Rogers, with a factory at Hai-tford, Conn.\nIn 1901, William A. Rogers incorporated his business and was engaged in substantial competition with the complainant in silver plate until the business was sold out to the defendant in 1929. It used the name “Rogers” as well as various special trademarks. In 1918, it had acquired the business of Simoon L. & George II. Rogers Company.\nThe complainant bought out all of the concerns that were competing with it when *72it started! business, namely, Rogers & Bro., Meriden Brittania Company, Wm. Rogers Manufacturing Company, Rogers Cutlery Company, Rogers Smith & Co., Simpson, Hall, Miller & Co., and the Rogers & Hamilton Company, but before the defendant entered the field by the acquisition of Wm. A. Rogers, Limited, there were outstanding the business of Wm. A. Rogers, and for twenty years afterwards that of Simeon L. & George H. Rogers Company. This makes it clear that the name “Rogers” simpliciter never meant solely the complainant’s goods.\nIt is argued that complainant established by litigation that the name “Rogers” did mean its goods, but this is not so. This is first sought to be shown by the suits brought by Wm. Rogers Manufacturing Company, one of.its predecessors. In Rogers v. Wm. Rogers Mfg. Co. (C. C. A.) 70 F. 1019, a preliminary injunction in its favor was reversed by this court, and the suit was later dismissed for lack of prosecution. In Wm. Rogers Mfg. Co. v. Wm. A. Rogers (C. C.) 84 F. 639, affirmed (C. C. A.) 95 F. 1007, Judge Laeombe denied a motion for1 a preliminary injunction, though William A. Rogers was advertising his goods as “Rogers goods” and the “genuine Rogers goods.” In 1917, the suit was dismissed for lack of prosecution. In International Silver Co. v. Simeon L. & George H. Rogers (C. C.) 110 F. 955, Judge Shipman, in 1901, granted a preliminary injunction to the complainant restraining the defendant in that suit from using such terms as “the only Rogers Bros.,” as well as “Rogers” and “Rogers Bros.,” with or without a preceding or succeeding name or symbol, but did not enjoin the use of the corporate name. He found that the defendant had selected the name “Rogers” unnecessarily for purposes of unfair competition, and it is to be remembered that the defendant there had only just begun business in 1901 and had really built up no equity in its favor. The suit never came to final hearing, and in 1913 was dismissed for lack of prosecution. Under all the circumstances, the decision has no important bearing on the present controversy. Likewise in International Silver Co. v. Rodgers Bros. Cutlery Co. (C. C.) 136 F. 1019, a mere interloper had selected the name “Rodgers” to take away the complainant’s trade. There an injunction was granted, but merely on the ground of fraud, and not because the name “Rogers” had acquired a secondary meaning. The scholarly opinion of Justice Swayze in the New Jersey Court of Errors and Appeals in International Silver Co. v. W. H. Roger’s Corp., 67 N. J. Eq. 646, 60 A. 187, 189, 110 Am. St. Rep. 506, 3 Ann. Cas. 804 is to the same effect. There a mere interloper having no standing as a silversmith sought to capture complainant’s trade. The court held that the fact that William A. Rogers, defendant’s predecessor, “seems to have established the right to use the name,” did not “enlarge” the rights of the interloper. See, also, International Silver Co. v. Rogers, 72 N. J. Eq. 933, 67 A. 105, 129 Am. St. Rep. 722.\nThat International Silver Company had no exclusive right to the word “Rogers” simpliciter was held in Wm. A. Rogers v. International Silver Co., 34 App. D. C. 410, and by Judge Mantón in the District Court in Wm. A. Rogers, Ltd., v. Rogers Silverware Redemption Bureau, 247 F. 178.\nIt is argued that the complainant abandoned 'any right it may have had to use the name “Rogers” simpliciter, and that between 1900 and 1929 it advertised urging the public to disregard that word in buying Rogers’ silverware and seek more specific marks. Among the phrases used for this purpose were:\n“Don’t say Rogers, say Wm. Rogers & Son.”\n“Not ‘Rogers’ only but ‘1847.’ ”\n“There are other Rogers, — remember ‘1847.’ ”\n“Remember the number ‘1847’ as well as the ‘Rogers Bros.’ ”\n“There are other Rogers. Remember ‘1847.’ ”\n“Remember the ‘1847,’ as there are other ‘Rogers.’ ”\n“1847 was made part of the trademark to identify the genuine.”\n“There are many brands of ‘Rogers’ but there is only one ‘1847.’ ”\n“1847 has been the mark that has distinguished the original brand of silver plated flatware.”\n“Although there are several makes of Rogers goods there is but one brand of 1847 Rogers Bros.”\n“There are other makes of ‘Rogers’ but only one ‘1847’ Rogers Bros.”\nThis, we think, does not show an abandonment of the right to use the name “Rogers” so far as that right existed, but only an insistence upon special distinguishing marks.\nBetween the date when complainant started and defendant’s acquisition of the *73property of William A. Rogers, tlie business of tlie latter grew to a very substantial volume, and it sold goods under brands which in-eluded the word “Rogers” to the amount of several million dollars. While it may not be possible to approximate accurately the amount of flat silverware which it sold that was advertised as Rogers’ goods, or bore trade-marks with the name “Rogers” thereon, it is certain that business of that kind was substantial. Complainant allowed all this to go on, but was on friendly relations with William A. Rogers, Limited, and at times purchased goods from the latter. The suits which it had brought again 4 William A. Rogers in 3895 and 3898 in order to stop the use of its name did not succeed and were discontinued in 1937. In view of complainant’s disregard of the name “Rogers” simplieiter and its failure to make any steady attempt to prevent its use by others, we must hold that it had no exclusive right to the use of that name.\nBut it may be argued that, even if the defendant has the right to use the name “Rogers” simplieiter, it has traded so unfairly ihat it should be denied ihat use and confined to its specific marks. One misrepresentation it has made is in its guaranty by Simeon L. & George Ii. Rogers Company, Inc. The old Simeon Company, the business of which defendant purchased, was dissolved, and the guaranty was by a company with only nominal assets, and defendant’s name does not appear on it. On the face of each guaranty is a picture of the original Simeon Rogers and his sons George and Simeon. This was a direct attempt to trade on the reputation and skill of one of the original brothers from whom complainant’s, and not defendant’s, good will may be regarded as in part derived.\nThe green advertising pamphlet of defendant (Exhibit 47) which its salesmen passed on to dealers was also intentionally misleading. It dealt with silver sold under the mark “1881 (R) Rogers (R).” It says that “its name has been universally accepted for half a century as representing unusual value in silverware in a vast moderate priced market,” and adds that these advertisements “are new links in a great chain of advertising continuing thru generation» \" * creating a great name in silverware.” As a matter of fact, the mark “(R) Rogers (R) 1881” was not used before 190.1, and “3881 (R) Rogers (R)” until 1910. Neither had in any sense been used “thru generations.” The circular was obviously intended to represent that the reputation, of defendant’s Rogers plate was derived from the original brothers and that its excellence in silver plating came from the teachings in faithful workmanship of those men and the concerns with which they were associated. Nothing could be better calculated to misrepresent the truth. As a matter of fact, 1881 was a date having no significance except that of an unfounded antiquity. The mark was a deceptive imitation with the misleading variant “1881” of “(Anchor) Rogers (Anchor).” Indeed, “(R) Rogers (R) 3881” was held a deceptive imitation of the latter mark in Wm. A. Rogers, Limited, v. International Silver Co., 34 App. D. C. 413, and the only basis for tolerating a mark in which 1881 was placed at the beginning, rather than the end, is laches or estoppel. But there can be no justification for allowing it to be used unqualified after defendant began to represent that it was derived from the original Rog<a*s. The intention to trade on complainant’s name is further shown by the words printed in large letters at the top of the second page of the pamphlet (Exhibit 47): “National Advertising and Dealer Aids.” The complainant has advertised its goods on a large scale, and the defendant practically not at all. Advertisements in the Saturday Evening Post of “Wm. A. Rogers Heirloom” and of “1881 (R) Rogers (B)” (each inserted in a single issue) were sent to dealers with frames for exhibition in stores. Later other printed advertisements of the same size, described by tlie defendant as “Saturday Evening Post size advertising” or “reprints” were distributed to the dealers for insertion in these frames. These later advertisements were not published anywhere. This seems to have been a deliberate attempt to trade on complainant’s advertising and to lead the public to suppose that the silver advertised in the frames was that of the old Rogers brands that were then being nationally advertised. The use of the terms “Genuine Rogers,” “Famous Rogers,” and “Celebrated Rogers” under the foregoing conditions shows, we think, both a purpose and a tendency to lead the public to believe that the defendant’s goods are associated with those of the original Rogers or their successors who made Rogers plate famous.\nSuch acts on defendant’s part, accompanied by instructions to its salesmen to “stuff your ears with cotton and say Rogers” inevitably led to all kinds of misleading representations by its enthusiastic dealers. For example, “a genuine Wm. Rogers Silver Tea-spoon,” “We feature the nationally Rodgers Bros. lines in both Community *74and Tudor,” a “Win. Rogers” set, were misleading descriptions by defendant’s dealers who did not distinguish between the original William Rogers and his successors and William A. Rogers and his company that defendant has acquired.\nThe so-called initial line “R. S. Mfg. Co.” was made of the cheapest plated ware and sold under conditions in which the public might well believe it was complainant’s product. Prom the sort of competition that defendant conducted or promoted there arose a deception and confusion due to its deliberate acts. There is no such corporation as “R. S. Mfg. Co.,” though the boxes in which silverware thus marked is sold carry the name •“R. S. Mfg. Co.” as the maker and guarantor. One Abelson was sued by Intematiqnal Silver Company for advertising a “R. S. Mfg. Co.” set of table silver as “Rogers World Famous Silver Plate.” The set was worth only about $7, and sold for $19.95. Thus he put on the market not only an inferior article, but one sold at a price indicating good plate under a name which, because of defendant’s method of merchandising, was likely to lead the public to suppose it was manufactured by complainant. Defendant appears to have taken no affirmative steps to stop this, but, on the contrary, paid the expenses of Abelson’s defense in the suit brought by the complainant against him. This sort of deliberate misuse of the name “Rogers” is bound to injure complainant’s trade and is palpably unfair.\nMisrepresentation and confusion by defendant’^ customers for which we believe it is to a substantial extent responsible are bound to injure complainant’s reputation and business. Thus we find in Howard’s advertisement of “R. S. Mfg. Co.” plate that “Wm. Rogers’.’ is represented to be the maker and guarantor. Still another advertisement reads that the ware on sale is “made and guaranteed by Wm. Rogers.” Such advertising confuses the cheap ware of William A. Roged with the ware of William Rogers, one of the original brothers. Pour dealers were discovered who had put defendant’s plate in complainant’s containers. The newspaper advertisement of another dealer specified ware of defendant as “1847 Rogers Bros. Silverware Half Price,” though the ware was unplated nickel silver. These illustrations might be multiplied ad infinitum. They are not, in our opinion, due merely to the vagueness of the meaning of the word “Rogers” open to úse by either party, but are also due, at least in part, to the misrepresentation and. confusion 'which the reckless and unfair mode of competition carried on by the defendant has caused.\nIt is to be noted that there was a marked difference between the advertising of the defendant and its predecessors in business, in that the latter used their own names in advertising, such as Simeon L. and George H. Rogers, S. L. & G. H. R. Co. and Wm. A. Rogers, and that about the only marks used that suggested Rogers simpliciter were “(R) Rogers (R)” and “1881 (R) Rogers (R),” which were deceptive marks for the reasons above stated. The defendant, on the other hand, began a huge deceptive and confusing campaign which, in our opinion, has gone beyond anything its predecessors did both in volume and consistent intent.\n While defendant's conduct has not been bad enough to deprive it of the use of the name “Rogers” or of the marks “Wm. A. Rogers Heirloom” or “R. S. Mfg. Co.,” its advertising and propaganda seem to make it necessary to differentiate its goods from complainant’s in all advertising matter and containers relating to flatware, whether marked with the initial marks “(Maltese Cross) W. R. (Keystone),” “S. L. & G. H. R. Co.,” or “R. S. Mfg. Co.,” or marked with “Wm. A. Rogers Heirloom” in any way, or with “Wm. A. Rogers” followed by “R” in a horseshoe, or “1881 (Wreath) Rogers (Wreath),” or “(Wreath) Rogers (Wreath)” with “1881” above and “Quadruple Plate New York City” below, or marked with “(Wreath) Rogers (Wreath)” on cutlery only, or with “Simeon L. and George H. Rogers Company,” or other marks having the name “Rogers.” While the defendant should be allowed to use any of the foregoing marks as well as the name “Rogers,” its own name either as successor of William A. Rogers, limited, or of Simeon L. & George H. Rogers Company, or as manufacturer should appear in any and all advertising and upon all cartons or containers in which goods bearing these marks or bearing the name “Rogers” are supplied, and, if the ware be guaranteed, its name as the successor or manufacturer shall appear upon the guaranty. Moreover, such name shall be as prominent both in size and type as the name of such predecessor or the name “Rogers,” and such predecessor’s name or the name “Rogers” shall be displayed only in conjunction with defendant’s name. Likewise, sales to dealers or other parties disposing of such ware shall be accompanied by written notices in unmistakable terms that the ware shall not and cannot legally be sold or represented as Rogers ware except *75as Rogers ware manufactured by Oneida Community, Limited. In the event the defendant shall adopt .new trade marks bearing the name “Rogers,” it shall inscribe upon the plate the name “Oneida Community” either as successor or manufacturer. The foregoing provisions are to be a substitute for 6 (a) and (b) of the decree below. Subdivision 6 (c) of the decree should he eliminated and 6 (d) and 6 (e) should stand.\nIn respect to the cross-injunction granted to the defendant, it should stand as in the decree, except that subdivision 7 (a) should read as follows:\n(a) From stating directly or indirectly to the trade or the public, or in any manner advertising or claiming that plaintiff is the sole or only concern whose ware; may ho advertised or sold as Rogers, or from staling that it is unfair competition to advertise or sell as Rogers defendant’s ware marked with any of defendant’s marks or with the name “Rogers,” provided, however, the cartons or containers bearing’ the same or the name “Rogers,” and the advertisements thereof, are marked with the name of the defendant as successor or manufacturer, and written notices are given to dealers and others, and plate bearing new trademarks with the name “Rogers” is inscribed in the way hereinbefore directed; or from stating in advertising, or otherwise in trade, directly or indirectly, that there are or ever were any injunctions or adjudications in force against such advertising or sale by the defendant or its predecessors, or that any one will be in contempt of court for thus advertising’ or selling defendant’s ware.\nThe decree is modified in accordance with this opinion and, as so modified, affirmed without costs to either party.\n","per_curiam":false,"type":"020lead"},{"author_str":"Hand","ocr":false,"opinion_id":9651077,"opinion_text":"\nL. HAND, Circuit Judge\n(dissenting).\nI agree that the name “Rogers,” sirnplioffer, cannot he monopolized iiy this complainant and for the reasons given, but I would go further: The “W. A. Rogers” business began in 1894, and it has been continuous over since. In 1001 it was incorporated, only two years after the complainant gathered in six or seven other’ “Rogerses,” and the same year that it took in “C. Rogers & Brothers.” Thereafter the two businesses went along side by side, until this suit was started, and except for the abortive efforts of 1896 and 1898, which were abandoned in 1917, the complainant never uttered a syllable of protest. Indeed although in 1907 it successfully prosecuted an interloper, I can find nothing later which suggested a claim to the name as against any one at all. The business of “W. A. Rogers’? down to 1929 when the defendant bought it, was not trifling or negligible; it was not a competitor one could ignore with impunity. Between 192 L and 3928 it sold about $1,000,000 a year in what may fairly be regarded as “Rogers” brands. The complainant did not object to this and it is entirely clear why it did not object. It had no idea, of making “Rogers” its mark; it was centering all its emphasis upon other marks, principally “1847.” It was only when the defendant, whom it had good reason to fear, entered the field and paid down two million dollars, that it awoke to the dishonest practices of which it had Cor thirty years been the victim. I must own that such grievances do not impress me; if either party has any ground for complaint, the defendant seems to me to be that one. Wrongs endured with complaisance for a generation do not engender my indignation, or move me to intervene. I do not care whether one says that the complainant abandoned the name “Rogers,” simpliciter, and its combinations so far as the W. A. Rogers Company copied them, or whether one says that it is estopped; for the purposes of this suit the result is the same. What we are doing is to protect trade names and marks which, as it seems to mo, have been forfeited, at least as against this complainant, by every canon of law, justice and morals. I hold no. brief for the defendant’s own conduct ; but I apprehend that in suits like this we do not protect the public, but only.redress a private wrong. I ea,n find none that this complainant has suffered.\nAs my views will not prevail ;I shall not go info the del ails. There are a few things that I should enjoin the defendant from calling its wares, e. g.: “Genuine,” “Famous,” “Celebrated.” These connote a position in the trade which “W. A. Rogers” never held; that is, that the defendant’s wares are more genuine, more famous and more celebrated than the complainant’s. That is misleading-, just as it is misleading for the complainant to say that it is the “genuine” Roger’s, for there is no genuino “Rogers,” though there is an “original,” and on the whole the complainant is that “original.’?. As to the “initial” marks, though I agree that they might stand without any monopoly.of the name “Rogers,” and .though 1 might,agree that originally the “W. A. Rogers” marks were close enough to give ground for complaint, the complainant has lost any right in *76these.as well, quoad this defendant, because •of its long acquiescence and the defendant’s reliance upon it. But it does not seem worth while to go into the evidence to see which of the supposed infringements are old enough to have secured the immunity of age, toleration and action in reliance upon both.\n","per_curiam":false,"type":"040dissent"}],"other_dates":"Rehearing Denied Oct. 31, 1934.","precedential_status":"Published","slug":"international-silver-co-v-oneida-community-ltd"} {"attorneys":"Grider Law Firm, P.L.C., by: Murrey L. Grider, for appellant., David J. Throesch, for appellee.","case_name":"Office of Child Support Enforcement v. Eagle","case_name_full":"OFFICE of CHILD SUPPORT ENFORCEMENT v. Sandra L. (Fry) EAGLE","case_name_short":"Eagle","citation_count":6,"citations":["983 S.W.2d 429","336 Ark. 51"],"court_full_name":"Supreme Court of Arkansas","court_jurisdiction":"Arkansas, AR","court_short_name":"Supreme Court of Arkansas","court_type":"S","date_filed":"1999-01-14","date_filed_is_approximate":false,"headmatter":"To avoid the forfeiture of the condition of a bond given by a debtor, in accordance with the provisions of Rev. Stat. c. 148, to obtain a release from arrest on execution, he is bound to comply with one of the alternatives contained in the condition, unless prevented by the obligee, or the law, or the act of God, from so doing.
The poor debtor’s oath should be taken before the expiration of the six months next after the giving ot the bond, or it will not furnish a legal de-fence to an action thereon.
When the two justices of the peace and of the quorum are legally authorized to act in taking the examination of a debtor, who has been arrested on an execution and ha3 given a bond under the provisions of Rev. Stat. c. 148, they may adjourn from time to time; but if their adjournments “ exceed three days in the whole, exclusive of the Lord’s day,” their power to act ceases, and any oath administered by them to the debtor, after the expiration of the throe days, is inoperative, and cannot furnish a defence to an action on the bond.
","id":5109555,"judges":"Whitman","opinions":[{"author_str":"Whitman","ocr":true,"opinion_id":4928071,"opinion_text":"\nThe opinion of the Court was drawn up by\nWhitman C. J.\nThis is an action of debt upon a bond, with a condition, that if the defendant, Nathaniel Goodhue, should cite the plaintiffs, &c. or pay the debt, &c. or deliver himself to the keeper of the jail, &c. as prescribed in c. 148 of the Rev. Stat. then, &c. Obligors in such bonds, to avoid the penalty, are bound to comply with one of the alternatives contained in the condition, unless prevented by the obligee, or the law, or the act of God, from so doing. The defence is, that the principal, Nathaniel Goodhue, did cite the creditors and take the oath, as prescribed in said statute, and in the condition of the bond. This is denied by the plaintiffs.\nThe evidence is, that the defendant, Nathaniel Goodhue, did cite the creditors before two justices of the peace and of the quorum, in due season; but that no oath was administered to him till more than a month had elapsed, after the six months prescribed in the statute had expired. By a document furnished, as being the record of the justices, before whom the citation was returned, it appears, that they were duly constituted a tribunal, in accordance with the provisions of the statute, for the purpose of proceeding under the citation, on the 24th of October, 1843 ; and that, after proceeding in the business for some time, they adjourned to the next day ; when, after some *426further proceedings, they adjourned again to the 18th of November following; and, after some further proceedings at that time, they again adjourned to the 29th of that month, when they administered the oath, prescribed in the statute, to said Nathaniel. No reason is assigned in the record for either of the adjournments. If admissible, however, it appears, that parol evidence would show, that the second adjournment took place upon the motion of the counsel for the plaintiffs, the then creditors. But nothing of the kind is pretended in reference to the last adjournment.\nIn Longfellow v. Scammon, 21 Maine R. 108, it was held, that the oath prescribed, in order to a compliance with the statute, should be taken before the close of the six months next after the giving of the bond. In Moore v. Bond, 18 Maine R. 142, however, it was held that, if an adjournment of the justices took place at the request of the creditor till the next day after the six months had expired, it would not be allowable for him to object, that the oath was administered on that day. But though the creditor in this instance, should be precluded from objecting to the proceedings at an adjourned session, procured upon his motion, such could not be the case with regard to the subsequent adjournment, not so obtained or occasioned.\nAgain: the statute (§ 6 and 24) provides, that the justices may adjourn from time to time, but that “ no such adjournment or adjournments shall exceed three days, in the whole, exclusive of the Lord’s day.” If the justices go beyond this limit, thus peremptorily prescribed, their jurisdiction must become annulled. They constitute a tribunal of but a limited jurisdiction. Their powers are specially marked out to them by the law, by which they are conferred; and they should confine themselves to a strict observance of them. It is to be noted, that they may adjourn from time to time, but their adjournments are not to exceed three days in the whole, exclusive of the Lord’s day; not three days at each of several times, exclusive of the Lord’s day. The justices, however, in this case, disregarded the provision, whether it could be taken to be the *427one or the other; and so when the oath was taken it was coram non judice.\n\nJudgment for the plaintiffs.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"fales-v-goodhue","summary":"Debt on a poor debtor’s bond, dated April 25, 1843. The record of the justices shows, that they first met and organized on Oct. 24, 1843 ; and that they “ then adjourned to the 25th day of October, 1843”; that they met on that day, and “ again adjourned to November 18, 1843”; and having met on that day, they “ further adjourned to the 29th day of November, 1843”: and on this latter day they administered the poor debtor’s oath to the debtor. The certificate of the justices is dated November 29, 1843, “ being by sundry adjournments from Oct. 24, 1843, when said examination was commenced.” The parties agreed upon a statement of facts, from which it appeared, that the defendants could prove by parol evidence, and the same was to be considered as proved, if parol evidence for that purpose was admissible, on objection made thereto, that the adjournment from October 25 to November 18, was made at the request of the attorney of the plaintiffs. said that the justices had found the notifications sufficient, and had admitted the debtor to take the oath prescribed by law. Their determination on these points is conclusive; and no evidence, not even their own record, is admissible to invalidate their certificate. This would \"seem too well settled to require authorities for its support. A few will be cited. 3 Fairf. 415; 13 Maine R. 239; 17 Maine R. 411; 18 Maine R. 152; 19 Maine R. Ill and 452; 20 Maine R. 435. The parol evidence, to show that the second adjournment was at the request of the attorney for the plaintiff, was admissible, because it does not contradict any statement in the certificate. 1 Fairf. 334 ; 18 Maine R. 142. The provision of the statute in relation to adjournments is directory merely, and if they adjourned beyond three days, the defendants ought not to suffer from it. To save a forfeiture, the Court should adopt a liberal construction. 18 Maine R. 142; 4 Greenl. 298. If the justices exceeded their authority at the request of the plaintiffs, they are estopped from availing themselves of the objection. 1 Fairf. 334 ; 18 Maine R. 142. insisted that the proceedings before the justices did not operate as a bar to the action, because the oath was not taken until after the expiration of the six months. Rev. Stat. c. 148, § 20; Longfellow v. Scammon, 21 Maine R. 108. The certificate shows on its face, that the examination was commenced on Oct. 24, 1843, and continued until Nov. 29, 1843, and therefore the adjournments exceeded three days, exclusive of Lord’s days. The justices thereby became ousted of their jurisdiction, and the discharge is invalid, c. 148, § 6 and 24. The parol evidence to show that one of the adjournments was with the assent of the plaintiffs’ attorney is inadmissible ; because it is an attempt by parol to control a written certificate ; and because it is a mere narration of what took place before the justices, and the record is higher evidence. But if the parol evidence is admissible, it only goes to the second adjournment, and both difficulties remain untouched. Their jurisdiction was at an end before the oath was administered."} {"case_name":"Cody v. Davis","case_name_full":"Elizabeth L. Cody v. Nellie R. Davis and Others, Individually and as Executrices, etc., of Charles J. Randall","case_name_short":"Cody","citation_count":0,"citations":["178 A.D. 902"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1917-04-15","date_filed_is_approximate":true,"id":5409041,"opinions":[{"ocr":true,"opinion_id":5246413,"opinion_text":"\nJudgment affirmed, without costs. No opinion. Jenks, P. J., Thomas, Stapleton, Rich and Blaekmar, JJ., concurred.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cody-v-davis"} {"case_name":"Johns v. Lamborn","case_name_full":"Robert I. Johns v. Arthur H. Lamborn and Others, Individually and as Copartners, etc.","case_name_short":"Johns","citation_count":0,"citations":["193 A.D. 950"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1920-10-15","date_filed_is_approximate":true,"id":5421472,"opinions":[{"ocr":true,"opinion_id":5259255,"opinion_text":"\nOrder reversed, with. *951ten dollars costs and disbursements, and motion denied, with ten dollars costs, on the ground that the proposed amended complaint does not state facts sufficient to constitute a cause of action by reason of the failure to allege that there were profits in the import and export departments. Present — Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"johns-v-lamborn"} {"case_name":"In re the Guardianship of Ferguson","case_name_full":"In the Matter of the Guardianship of Peggy R. Ferguson, an Infant. Washington Irving Trust Company, Appellant John H. Payne, Sr., as General Guardian","citation_count":0,"citations":["266 A.D. 1016"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1943-11-15","date_filed_is_approximate":false,"id":5536053,"opinions":[{"ocr":true,"opinion_id":5376768,"opinion_text":"\nNo opinion. Present — Carswell, Johnston, Adel, Taylor and Lewis, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-the-guardianship-of-ferguson"} {"attorneys":"Vincent T. Bay, for the plaintiff., Alger A. Williams, for the defendants.","case_name":"Seitz v. Troidl","case_name_full":"Katherine Seitz v. Joseph C. Troidl and Others","case_name_short":"Seitz","citation_count":0,"citations":["171 Misc. 632"],"court_full_name":"New York Supreme Court","court_jurisdiction":"New York, NY","court_short_name":"New York Supreme Court","court_type":"ST","date_filed":"1939-06-28","date_filed_is_approximate":false,"id":5583260,"judges":"Harris","opinions":[{"author_str":"Harris","ocr":true,"opinion_id":5425391,"opinion_text":"\nHarris, J.\nMotion to dismiss the complaint under rule 106 of the Rules of Civil Practice, for the insufficiency of facts as stated in the complaint to constitute a cause of action.\nAfter the usual statements of residence, the allegations of the complaint may be stated as follows: From the year 1935 until September, 1938, the plaintiff was continuously licensed by the State of New York as a real estate salesman and was in the employ.' of a real estate broker in the city of Buffalo. The defendant Troidl was engaged as a contractor in constructing dwellings, the defendant Joseph Wright held title to the dwellings, and the moneys received from the sale of dwellings and contracts made in reference to the same, were held in the name of the defendant Henry Wright. On or about the 1st day of June, 1938, the three named defendants entered into an agreement with the plaintiff, by reason of which agreement the parties thereto covenanted that the plaintiff was to surrender her license as a real estate salesman and was to leave the employ of her broker and to devote herself to showing to prospective customers certain dwellings constructed by and owned by the defendants, and to interest such persons in the purchase of the dwellings and to enter into building contracts for *633the construction of dwellings. The defendants were to pay to the plaintiff the sum of $300 for each such contract. . Pursuant to such contract, and between June 1, 1938, and March 1, 1939, the plaintiff showed such dwellings to prospective purchasers and interested two persons in purchasing houses, these two persons contracting to purchase such houses, and the plaintiff further interested seven persons in contracts with the defendants for the construction of dwellings, and following such activities of the plaintiff such seven persons did contract with the defendants for the construction of dwellings. In her recital of the amount of damages the plaintiff alleges the earning under the above-mentioned contract of the sum of $2,700, and that $600 thereof was paid on account, and she demands judgment for the remaining sum of $2,100.\nThe defendants’ attack on the complaint is based on their contention that the complaint alleges an action for the recovery of compensation for services coming within the application of article 12-A of the Real Property Law of the State of New York, and that as the complaint does not set forth as required by section 442-d of such article that the plaintiff was a duly licensed real estate broker when her cause of action arose she is barred by the provisions of section 442-a from receiving compensation from the defendants on the contract alleged in the complaint. The following sections of such article 12-A of the Real Property Law are applicable to the motion at bar:\n“ § 440. Whenever used in this article 1 real estate broker ’ means any person, firm or corporation, who, for another and for a fee, commission or other valuable consideration, lists for sale, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of an estate or interest in real estate, or collects or offers or attempts to collect rent for the use of real estate, or negotiates, or offers or attempts to negotiate, a loan secured or to be secured by a mortgage or other incumbrance upon or transfer of real estate.\n“ ‘ Real estate salesman ’ means a person employed by a licensed real estate broker to list for sale, sell or offer for sale, to buy or offer to buy or to negotiate the purchase or sale or exchange of real estate, or to negotiate a loan on real estate, or to lease or rent or offer to lease, rent or place for rent any real estate, or collects or offers or attempts to collect rent for the use of real estate for or in behalf of such real estate broker.\n“ § 440-a. No person * * * shall engage in or follow the business or occupation of, or hold himself * * * or act temporarily or otherwise as a real estate broker or real estate salesman in this state without first procuring a license therefor as provided in this article. *634“ § 442-a. No real estate salesman in any place in which this article is applicable shall receive or demand compensation of any kind from any person, other than a duly licensed real estate broker regularly employing the salesman, for any sendee rendered or work done by such salesman in the appraising, buying, selling, exchanging, leasing, renting or negotiating of a loan upon any real estate.\n“ § 442-d. No person, copartnership or corporation shall bring or maintain an action in any court of this state for the recovery of compensation for services rendered, in any place in which this article is applicable, in the buying, selling, exchanging, leasing, renting, or negotiating a loan upon any real estate without alleging and proving that such person was a duly licensed real estate broker or real estate salesman on the date when the alleged cause of action arose.”\nThe plaintiff has argued that the services set forth in the complaint are not the services of a real estate broker or of a real estate salesman and that the contract on which she seeks to recover is not one within the prohibitions of the sections above quoted. Her position on the argument is that she was to show property and to interest the persons in entering into contracts for the construction of buildings and that these are activities outside of those which the Legislature intended to control by the requirement of license.\nI am of the opinion that the plaintiff in her statement of facts has set forth sufficient to warrant going to the jury if she can establish the facts as set forth in the complaint. The employment was not one which included any of the following transactions: “ appraising, buying, selling, exchanging, leasing * * * or negotiating of a loan upon any real estate.” It was the acting as a go-between to procure contracts which are not covered by the activities just above named. (See Seckendorff v. Halsey, Stuart & Co., Inc., 229 App. Div. 318; Stout v. Kennedy, Inc., 218 id. 385; Opinions of the Attorney-General [1930] p. 181.)\nIt may be that on. trial the plaintiff will be unable to prove that the transactions for which she seeks compensation were not without the prohibitions of the statute to which reference is made above, and it may be ón trial at least certain of the parts of the complaint for that reason will be bad in law, but on this motion the court must consider the complaint in its entirety and not dismiss the same unless it is clear that as matter of law no cause of action is alleged. (Bush v. Murray, 209 App. Div. 563; Leary v. City of New York, 240 id. 911; Dyer v. Broadway Central Bank, 252 N. Y. 430.)\nThe motion is denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"seitz-v-troidl"} {"case_name":"People v. Lewis","case_name_full":"The People of the State of New York v. Phillip Lewis","case_name_short":"Lewis","citation_count":0,"citations":["45 A.D.3d 898","844 N.Y.S.2d 474"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2007-11-01","date_filed_is_approximate":false,"id":5880742,"judges":"III","opinions":[{"author_str":"III","ocr":true,"opinion_id":5737337,"opinion_text":"\n*899Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.), rendered June 30, 2003, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree, and (2) by permission, from an order of said court, entered February 3, 2006, which denied defendant’s motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.\nCrew III, J.\nDefendant was indicted and charged with criminal possession of a weapon in the third degree. Pursuant to a plea bargain, defendant pleaded guilty to attempted criminal possession of a weapon in the third degree with the understanding that he would be sentenced, as a persistent violent felony offender, to the minimum available sentence of four years to life. Following entry of the plea, it was discovered that defendant was not a persistent violent felony offender but, rather, a second violent felony offender. Consequently, County Court sentenced defendant to a prison term of four years, the maximum sentence available for a second violent felony offender, together with five years of postrelease supervision. Defendant thereafter moved, pursuant to CPL 440.20, to set aside his sentence. County Court denied that motion without a hearing, and defendant now appeals from the judgment of conviction and the denial of his CPL article 440 motion.\nIt is axiomatic that where, as here, a sentencing court is unable to honor its sentencing commitment, thus depriving the defendant of the benefit of his or her plea bargain, the defendant should be afforded the opportunity to withdraw his or her plea (see e.g. People v Torres, 45 NY2d 751, 753 [1978]; People v Varnum, 291 AD2d 724, 725 [2002]). Accordingly, we reverse the judgment of conviction and remit this matter for that purpose.\nCardona, P.J., Mercure, Carpinello and Kane, JJ., concur. Ordered that the judgment and order are reversed, on the law, and matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court’s decision.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-lewis"} {"case_name":"Yi Min Feng v. Jin Won Oh","case_name_full":"Yi Min Feng v. Jin Won Oh","citation_count":0,"citations":["71 A.D.3d 879","895 N.Y.S.2d 856"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2010-03-16","date_filed_is_approximate":false,"id":5936893,"opinions":[{"ocr":true,"opinion_id":5795210,"opinion_text":"\nIn an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much an order of the Supreme Court, Kings County (Martin, J), dated June 16, 2009, as, upon granting her motion for summary judgment on the issue of liability to the extent of determining that the defendant was negligent as a matter of law, referred the issue of comparative negligence for trial.\nOrdered that on the Court’s own motion, the plaintiffs notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CELR 5701 [c]); and it is further,\nOrdered that the order is affirmed insofar as appealed from, with costs.\nThis action arose from an automobile accident at the intersection of 65th Street and 14th Avenue in Kings County. At the time of the accident, the plaintiff, a pedestrian, was crossing 65th Street, from the southeast corner toward the northeast corner. The plaintiff had a “walk” sign in her favor, was within the crosswalk, and was about one-third of the way across the street when she was struck on her left side by the defendant’s vehicle as it was making a legal left turn onto 65th Street from 14th Avenue. The defendant had a green light in his favor at that time.\nThe evidence submitted by the plaintiff established, as a mat*880ter of law, that the defendant driver violated Vehicle and Traffic Law § 1112 (a). However, the Supreme Court properly concluded that there was a triable issue of fact as to whether the plaintiff was comparatively negligent in light of the evidence that she did not look to her left as' she crossed the street. Thus, under the circumstances of this case, the Supreme Court properly referred the issue of comparative negligence for trial (see Lopez v Garcia, 67 AD3d 558 [2009]; Gideon v Flatlands Beverage Distribs., Inc., 59 AD3d 596 [2009]; Cator v Filipe, 47 AD3d 664 [2008]; Albert v Klein, 15 AD3d 509 [2005]; Thoma v Ronai, 189 AD2d 635 [1993]; affd 82 NY2d 736 [1993]; Schmidt v Flickinger Co., 88 AD2d 1068 [1982]), Fisher, J.P., Santucci, Eng and Chambers, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"yi-min-feng-v-jin-won-oh"} {"case_name":"McClatchie v. City of New York","case_name_full":"Geraldine McClatchie v. City of New York","case_name_short":"McClatchie","citation_count":0,"citations":["105 A.D.3d 467","963 N.Y.S.2d 87"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2013-04-09","date_filed_is_approximate":false,"id":6051498,"judges":"Acosta, Gische, Mazzarelli, Renwick, Richter","opinions":[{"ocr":true,"opinion_id":5914943,"opinion_text":"\nOrder, Supreme Court, New York County (Cynthia S. Kern, J.), entered August 5, 2011, which denied plaintiffs application seeking leave to file a late notice of claim, and order, same court (Arthur Engoron, J.), entered January 9, 2012, which granted defendant’s motion to dismiss the complaint for failure to file a timely notice of claim, unanimously affirmed, without costs.\n*468The court properly exercised its discretion by denying plaintiffs application, given that plaintiff failed to offer a reasonable excuse for the delay, does not contest that the City acquired no knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and failed to demonstrate that the City suffered no substantial prejudice (see General Municipal Law § 50-e [5]; see generally Matter of Strauss v New York City Tr. Auth., 195 AD2d 322, 322 [1st Dept 1993]). Where, as here, there is no reasonable excuse for the delay and the City did not acquire actual knowledge of the essential facts within the 90-day period, or a reasonable time thereafter, “the transitory nature of the defective condition weighs against the granting of an application to file a late notice of claim” (Harris v City of New York, 297 AD2d 473, 474 [1st Dept 2002], lv denied 99 NY2d 503 [2002]). Moreover, plaintiffs 14-month delay in seeking to file a notice of claim deprived the City of a reasonable opportunity to locate witnesses (see Zarrello v City of New York, 61 NY2d 628, 630 [1983]; Ordillas v MTA N.Y. City Tr., 50 AD3d 391, 392 [1st Dept 2008]).\nConcur—Mazzarelli, J.E, Acosta, Renwick, Richter and Gische, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mcclatchie-v-city-of-new-york"} {"case_name":"People v. Lopez","case_name_full":"The People of the State of New York v. Virgillio Lopez","case_name_short":"Lopez","citation_count":0,"citations":["185 A.D.2d 189"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1992-07-16","date_filed_is_approximate":false,"id":6086850,"opinions":[{"ocr":true,"opinion_id":5951174,"opinion_text":"\nJudgment, Supreme Court, New York County (Rose Rubin, J.), rendered November 16, 1988, convicting defendant, after jury trial, of attempted murder in the second degree, two counts of assault in the first degree, and one count of assault in the second degree, and sentencing him to concurrent indeterminate terms of imprisonment of from 5 to 15 years, 4 to 12 years (two terms), and 2 to 6 years, respectively, unanimously affirmed.\nDefendant entered his ex-girlfriend’s apartment in an attempt to convince her not to break off their relationship. When unsuccessful, he drew a knife and began to stab her repeatedly, resulting in serious injury from at least 10 stab *190wounds, including the loss of a kidney. The victim’s mother and father immediately came to her aid and they, too, were assaulted with the knife. Finally, her brother ran to the parents’ aid carrying baseball bats and, by repeatedly striking defendant with the bats, the family was able to put an end to the assault. Defendant raced from the apartment and was arrested shortly thereafter. At trial he claimed that the parents attacked him with the baseball bats after learning that he had sexual relations with their daughter and asserted that he picked up a kitchen knife and used it solely in self-defense. Viewing, as we must, the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620, 621), the forensic evidence clearly demonstrates that the knife wounds inflicted on the victims were not of a defensive nature. The minor inconsistencies in the testimony of the various members of the family are of no moment, and we therefore reject defendant’s contention that the People failed to disprove his justification defense beyond a reasonable doubt.\nDefendant further contends that his mother and sister, who had testified on his behalf, were improperly excluded from the courtroom during summations. The People expressed concern that the comments of counsel on the testimony given by these witnesses and how it compared with the testimony given by other witnesses might influence the testimony defendant’s mother and sister might give should a retrial be required. The court, even after ascertaining that neither spoke English (both testified through an interpreter), nevertheless ordered them excluded.\nWe find the reason for excluding the witnesses less than compelling (People v Jones, 47 NY2d 409, 414-415, cert denied 444 US 946). It is always possible that a matter might require retrial and, were the prosecutor’s reasoning to be adopted, witnesses could invariably be excluded from the courtroom during summations. Moreover, closure does not advance the interest of preventing tailored testimony because a transcript of the proceedings is available. Therefore, we view the decision as improvident \"on a close examination of the competing interests at stake in the specific context of the individual case” (People v Clemons, 78 NY2d 48, 52, citing Globe Newspaper Co. v Superior Ct., 457 US 596, 607-608 [emphasis in original]).\nHowever, we note that defense counsel, while opposing the People’s application for exclusion of the witnesses, never announced his objection to closure. On the contrary, during a discussion of the consequences of a hung jury, he stated, \"In that case we are talking about—I mean its [sic] up to Your *191Honor.” At the close of argument, the court stated to counsel, \"Thank you for cooperating.” Even at this juncture, counsel said nothing to dispel any misapprehension that he consented to be bound by the court’s ruling.\nCounsel’s apparent acquiescence is the very antithesis of a \"protest” sufficient to apprise the court, in a timely fashion, of the claimed error in order to permit it to be remedied (CPL 470.05 [2]; see, People v George, 67 NY2d 817, 819). Counsel framed his arguments in the context of an application to exclude witnesses, a matter within the court’s discretion (People v Felder, 39 AD2d 373, affd 32 NY2d 747, appeal dismissed 414 US 948). Only on appeal does defendant, for the first time, construe the exclusion of the witnesses, members of his family, as an infringement upon his right to a public trial (People v Kin Kan, 78 NY2d 54, rearg denied 78 NY2d 1008).\nAccordingly, Supreme Court was never advised of defendant’s constitutional objection, and the matter is not preserved for appellate review (People v Iannelli, 69 NY2d 684, cert denied 482 US 914). Nor are we inclined to reach it in the interest of justice. Concur—Rosenberger, J. P., Wallach, Kassal and Rubin, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-lopez"} {"case_name":"Barrington v. Dyer","case_name_short":"Barrington","citation_count":0,"court_full_name":"Court of Appeals of North Carolina","court_jurisdiction":"North Carolina, NC","court_short_name":"Court of Appeals of North Carolina","court_type":"SA","date_filed":"2022-04-05","date_filed_is_approximate":false,"id":6460584,"opinions":[{"download_url":"http://appellate.nccourts.org/opinions/?c=2&pdf=40920","ocr":false,"opinion_id":6332695,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"barrington-v-dyer","syllabus":"Will contest Rule 12(b0(6) res judicata gatekeeping order factors attorney's fees factors award of attorney fees on appeal."} {"attorneys":"James F. Warden, Carlsbad, for defendant-appellant., David L. Norvell, Atty. Gen., Dee C. Blythe, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.","case_name":"State v. Manlove","case_name_full":"STATE of New Mexico v. Lonnie K. MANLOVE","case_name_short":"Manlove","citation_count":0,"citations":["85 N.M. 438","512 P.2d 1274"],"court_full_name":"New Mexico Court of Appeals","court_jurisdiction":"New Mexico, NM","court_short_name":"New Mexico Court of Appeals","court_type":"SA","date_filed":"1973-07-18","date_filed_is_approximate":false,"id":6595607,"judges":"Hendley, Hernandez, Sutin","opinions":[{"author_str":"Sutin","ocr":true,"opinion_id":6470511,"opinion_text":" OPINION SUTIN, Judge. This is a Rule 93 [§ 21-1-1(93), N.M. S.A.1953 (Repl. Vol. 4)] case, an appeal from denial of defendant’s motion to vacate a judgment of conviction and sentence set forth in State v. Manlove, 79 N.M. 189, 441 P.2d 229 (Ct.App.1968). Defendant claims (1) there was a merger of offenses and he was improperly punished for three separate offenses; (2) the trial court failed to properly instruct the jury. The matters urged for reversal are ones which have already been decided or should have been submitted to this court on the original appeal. State v. Sedillo, 84 N.M. 293, 502 P.2d 318 (Ct.App.1972). Affirmed. It is so ordered. HENDLEY and HERNANDEZ, JJ., concur. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-manlove"} {"attorneys":"Earl Terman, Scottsdale, for plaintiff-appellee., David A. Groseclose, Cohen, Groseclose & Meissner, Phoenix, for defendant-appellant.","case_name":"Woudenberg Leasing Co. v. Merchants Mutual Bonding Co.","case_name_full":"WOUDENBERG LEASING COMPANY, INC., an Arizona corporation v. MERCHANTS MUTUAL BONDING COMPANY, a corporation","citation_count":0,"citations":["144 Ariz. 417","698 P.2d 212"],"court_full_name":"Court of Appeals of Arizona","court_jurisdiction":"Arizona, AZ","court_short_name":"Court of Appeals of Arizona","court_type":"SA","date_filed":"1984-12-04","date_filed_is_approximate":false,"id":6601966,"judges":"Brooks, Grant, Haire","opinions":[{"author_str":"Brooks","ocr":true,"opinion_id":6477526,"opinion_text":"\nBROOKS, Judge.\nThis appeal is from a summary judgment which the trial court granted in favor of Woudenberg Leasing, Inc. (Woudenberg) and against Merchants Mutual Bonding Company (Merchants). The issue is whether A.R.S. § 28-1305, which is incorporated into an auto dealer’s bond, should be construed to protect a seller-consignor from losses suffered by reason of the wrongful act of the dealer-consignee in converting proceeds of the sale.\nWoudenberg leased a 1975 Bentley to A & G Classic Cars (A & G). Woudenberg authorized A & G to sell the vehicle but Woudenberg was to retain title until it received the proceeds of the sale. A & G had a licensing bond in effect with Merchants in the sum of $25,000 pursuant to A.R.S. § 28-1305. A & G eventually sold the vehicle and received the funds from that sale but never tendered the funds to Woudenberg.\nWoudenberg sued A & G, Richard D. Hovey and Patricia A. Hovey (President and General Manager of A & G) and Merchants seeking to recover damages for conversion. The trial court granted summary judgment in favor of Woudenberg and against Merchants in the sum of $22,-494.75.\nA. R.S. § 28-1305 requires motor vehicle dealers to be bonded. The statute provides, in pertinent part:\nB. The bond inures to the benefit of any person who suffers loss because of:\n2. The dealer’s failure to deliver in conjunction with the sale of a vehicle a valid vehicle title certificate free and clear of any prior owner’s interests and all liens except a lien created by or expressly assumed in writing by the buyer, of the vehicle.\n*418This statute, enacted in 1981, narrowed the scope of the bond coverage from the prior wording of the statute which read:\nThe bond shall inure to the benefit of any person who suffers loss by reason of any unlawful act of the licensee.\nWe agree with the appellant’s argument that the harm protected by the bond arises only by virtue of the dealer’s failure to deliver to a buyer a valid certificate of title. The statute is clear on its face and does not require interpretation. Woudenberg’s injury resulted because A & G failed to remit the proceeds of the sale. The statute does not apply to this situation.,\nWoudenberg argues that the bond inures to the benefit of “any person who suffered a loss ... in conjunction with the sale of a vehicle” wherein the dealer failed to deliver a valid vehicle title certificate. It argues that the statute applies to protect a seller-consignor who incurred a loss because the dealer-consignee converted the proceeds of the sale on consignment. We find that a seller-consignor is not within the class of persons intended to be protected by the bond requirement. See Insurance Company of North America v. General Electric Credit Corporation, 119 Ariz. 97, 579 P.2d 601 (App.1978).\nAutoville, Inc. v. Friedman, 20 Ariz. App. 89, 510 P.2d 400 (1973), also involved conversion of the proceeds of the sale of an automobile. This court found, under the prior statute, that the injured party could collect on the dealer’s license bond up to the amount of the bond. The scope of the statute before us, however, has been narrowed. The dealer’s license bond no longer inures to the benefit of any person injured by reason of “any unlawful act” of the licensee. The statute is clear and does not apply to the loss suffered by Woudenberg.\nFor the foregoing reasons, we reverse and remand the matter for proceedings consistent with this decision.\nHAIRE, P.J., and GRANT, J., concur.\nORDER\nAppellant’s motion for reconsideration was considered by the Court, Judges J. Thomas Brooks, Levi Ray Haire and Sarah D. Grant participating.\nThe court notes that the language of former A.R.S. § 28-1305, upon which appellant relies, was specifically stricken by the legislature when the statute was amended in 1981. Thus, the former statute no longer exists.\nIT IS ORDERED granting the motion for reconsideration insofar as it requests that the memorandum decision of this court be redesignated and issued as a published opinion.\nIT IS FURTHER ORDERED that the motion for reconsideration is otherwise denied.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Order Jan. 31, 1985., Reconsideration Denied Jan. 31, 1985., Review Denied April 9, 1985.","precedential_status":"Published","slug":"woudenberg-leasing-co-v-merchants-mutual-bonding-co"} {"attorneys":"Harrison $■ Crownover, for appellants., Jacoway Jacoway, for appellee.","case_name":"Glass v. Blackwell","case_name_full":"Glass v. Blackwell","case_name_short":"Glass","citation_count":0,"citations":["48 Ark. 50"],"court_full_name":"Supreme Court of Arkansas","court_jurisdiction":"Arkansas, AR","court_short_name":"Supreme Court of Arkansas","court_type":"S","date_filed":"1886-11-15","date_filed_is_approximate":true,"headnotes":"Evidence : Judgment of Justice of Peace of another state conclusive.
A judgment of a justice of the peaee-of another state, who had jurisdiction of the subject matter, and also of the person of the defendant by voluntary appearance or by due service of process upon him, is conclusive as to the merits of the demand on which it is founded, unless it was obtained by fraud.
","id":6664418,"judges":"Cockrill","opinions":[{"author_str":"Cockrill","ocr":true,"opinion_id":6541991,"opinion_text":" Cockrill, C. J. This is a continuation of the case between the same parties reported in 43 Ark., 809. It is an action on a judgment for $258, rendered by a justice of the peace in the state of Tennessee. On the former appeal it was determined that the judgment of a justice of the peace was not within the provision of the act of congress of May 26, 1790, as ' to the methods of authenticating judgments of other states, and the judgment of the circuit court was reversed because no other proof of the authenticity of the judgment sued on, was made. On the second trial the judgment was proved in the manner pointed out in the opinion in f3 Ark., sap. The laws of Tennessee and the testimony of experts were put in evidence, showing that the justice had jurisdiction of the subject matter, and that his judgment was conclusive in Tennessee of the controversy. The court found, also, in effect, that the justice of the peace had jurisdiction of the person of the defendant by personal service of process on him in the county where the judgment was rendered; but having inquired into the merits of the demand upon which the judgment was based, found that the defendant was never indebted to the plaintiff, and gave judgment accordingly. The question now presented is whether the justice’s judgment is conclusive or only prima fade evidence of debt. The appellee contends that as the judgment does not come within the act of congress which prescribes the mode of authentication and the effect of judicial proceedings of the courts of other states, it must be treated as a foreign judgment was at common law; and authorities are cited to show that a foreign judgment is open to an examination of the merits of the demand upon which it is founded. This argument disregards the first section of the fourth article of the constitution of the United States, which provides that- full faith and credit shall be given in each state to the judicial proceedings of every other state; or else treats it as controlled or limited by the subsequent provision of the same clause, which confers upon congress the power to prescribe the manner in which such proceedings shall be proved and the effect thereof. Judge Story’s view of this provision was that the first sentence of the article was self-executing, and rendered the judgments of the sister states conclusive without the aid of legislation. (2 Story on Const., secs. 1302-13.) And some of the state courts have taken this as the better interpretation. Stock-well v. Coleman, 10 Ohio St., 33; Kean v. Rice, 12 S. & R., 203. See Big. Est. (4th Ed.), pp. 310, et seq., 314-15. Justices Wayne and Washington, on the other band, the former in delivering the opinion of the Supreme Court of the United States, and the latter upon the circuit, have expressed a different idea of the effect of the constitutional provision, holding the opinion that it was for congress to declare what effect or degree of force judicial proceedings should have outside of the state in which they were had. (McElmryal v. Cohen, 13 Pet., 693; Green v. Larmiento, 1 Pet., C. C., 74.) And this was Chief Justice Parker’s opinion. Warren v. Flagg, 2 Pick., 448; Malwine v. Blackford, 6 N.H., 567; Taylor v. Barron, 10 Fost., N. H.,78. But in the view we take of the matter it is immaterial whether the effect of the judgment in this case is regulated by the principles of the common law or governed by the constitutional provision. If the latter is self-executing and means that the same faith and credit is due to the judgment here that is accorded it in Tennessee, leaving nothing to be declared upon this score by legislation, as Judge Story thought, the judgment is conclusive except as to jurisdiction or fraud in obtaining it, as we decided in Peel v. January, 35 Ark., 331. If upon the other hand the constitutional provision does not aid the judgment, the principles of the common law as now understood preclude an inquiry into the merits of the demand upon which the judgment is founded. There has been much contrariety of opinion in England and in this country as to what the common law is upon this subject. In England it appears there had never been an authoritative decision of the question either as to a colonial or a foreign judgment until Bank of Australasia v. Nias, 16 Adolphus & Ellis, 717 (where a colonial judgment was involved), decided in 1851, and Scott v. Pilkington, 2 Best & Smith (which was the case of a judgment rendered in New York), determined in 1862. In these cases the rule was adjudged that a plea to the merits in an action upon any valid judgment was bad, and that is now the settled law of that country. 2 Chitty Const., p. 1177, sec. 4; Big. Est., (4th Ed.), pp. 252, et seq., and cases in notes. Earlier dicta are found from the most eminent English jurists, expressing a contrary view, and the earlier American cases and text writers followed them as making the correct enunciation of the common law. But the doctrine thus announced extra-judicially was never received as satisfactory by either Story or Kent. (Story Conflt. Laws, sec. 607; Taylor v. Boyden, 8 Johns., 173.) And when the English courts began to doubt its soundness, the current of American authority began to change, and since the English dicta were repudiated at home, their doctrine has been but little regarded here. ‘ To try over again, as of course,” says Kent, C. J., in Taylor v. Boyden, sup., “every matter of fact which had been duly decided by a competent tribunal, would be disregarding the comity which we justly owe to the courts of other states, and we would be carrying the doctrine of re-examination to an oppressive extent. It would be the same as granting a new trial in every case, and upon every question of fact.” A judgment, whether foreign or domestic, raises a binding obligation to pay the sum awarded by it, and the'presumption as to its conclusiveness should follow the law of the forum in which the proceedings were had. The inconveniences and legal perplexities that would follow a different rule are aptly stated by Judge Story in his work on the conflict of laws, ubi sup. Neither reason nor the weight of authority demand that we should entail them upon our practice. It is not the policy of the law to encourage litigation, and where a court of competent jurisdiction, having the parties legally before it has adjudicated the merits of their case, every reason favors holding them bound by the adjudication wherever the judgment may be called in question, if there has been no fraud practicéd in obtaining it. This is now the accepted rule. Lazier v. Westcott, 26 N. Y., 146; Brinkly vs. Brinkly 50, ib., 184, 202; Harrison v. Lowry, 49 How. Pr., 124; Baker v. Palmer, 83, 111, 569; Beall v. Smith, 14 Texas, 305; N. Y., L. E. & W. R. Co. v. McHenry, 17 Fed. Rep., 414; Big. Est., sup., pp., 255-7; Freeman on Judgments, sec. 577. The circuit court erred in receiving evidence as to the merits of the plaintiffs claim, and the judgment must be reversed and the cause remanded for further proceedings. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"glass-v-blackwell","summary":"APPEAL from Yell Circuit Court. Hon. G. S. Cunningham, Circuit Judge. 1. The justice’s judgment was a valid and legal one under the laws of Tennessee, and is conclusive between the parties, and when properly proved and sued on in this state, it is conclusive as to the merits, and the plea of nil debit was not good. 11 Ark., 157; 12 ib., 756; 13 ib., 185; 22 ib., 387; 85 ib., 331; 11 ib., 75; 13 ib., 231; 18 Wall., 157; 7 Grouch, 631; 13 Peters, 169; 5 Wend,., 118; 7 ib., 185; 9 N. W. Pep., 132; 3 Am. Law Reg., N. S., 501; 1 ib., 8 and 9; 12 ib., 15; 2 Chitty PI. {11 Am. Ed.), 21¡8; Ghitty on Gont. {9 Am. Ed.), 690, and notes; 8 Yerg., 112,186; 2 Head., 571; 1 Hersh., 586; 1 Sea., 567; 7 ib., 321. Judgments of justices’ and courts of record are both within the meaning of the constitution of the United States, and the strictness with which the proceedings of inferior courts are scrutinized applies only to the question , of jurisdiction, and when that is established, the maxim, ‘■'■omnia praesumuntur,” etc., applies. Rest on Eoidence {1 Am Ed.), 636, and notes; 27 Pa. St., 179; 3 Wend., 268; 10 Ohio St., 31; 5 ib., 516; 10 Ark., 598; 13 ib., 33; Freeman on Judg., sec 577. 2. It was incompetent for appellee to show by oral testimony that he was not properly served with process, and this testimony should have been excluded. 1 Ark., 150; 11 ib., 371 ■ ib., 818; 10 ib., 113. In an action on a judgment rendered by a court of record in another state, the defendant, notwithstanding the record shows a return of the sheriff, that he was personally served with process, may show to the contrary, that he was not served, and that the court never acquired jurisdiction of his person. 19 Wall., 58; 18 ib., 157; 1 Greenl. Ev., 13th Ed., sec. 540, note, etc.; 6 Wend., 448 ; 9 Mass., 468; 8 Am. Dec., 36. A judgment even by a court of record against a defendant not served, and who never appeared, is void. 15 Johns., 181; 9 Mass., 168; 80 Am. Dec., 36. In regard to that provision of the constitution, that “full faith,” etc., Mr. Greenleaf says that “judgments of justices of the peace are not within the meaning of the constitution and statutory provisions.” 1 Greenl. Ev., 13th Ed., sec. 505, notes 5 and 6. Courts of justices being left unprovided for by the constitution .or laws of the United States, their judgments stand upon the footing of foreign judgments, being no more than prima facie evidence of debt, and may be defeated by plea of nil debit. 8 Pick., 4.4.8; 43 Ark., 809; 80 Am. Dec., 179; 4 N. H., 450; 6 N. U., 567; 5 Ohio, 545; 1 Greenl. Ev., 13th Ed., sec. 547. Nil debet is a proper plea to an action founded on a judgment recovered before a justice of the peace of another state. 1 Chitty PI. (9 Am. Ed.), *p. 485, and note; 8 Pick., 448; ®3 Wend., 375; 3 J. J. Marsh, 600. Justices’ courts are not courts of record, and their jurisdiction must be affirmatively shown. 83 Wend., 374', 19 Johns., 33."} {"case_name":"Reilly's Wholesale Produce, Inc. v. United States","case_name_full":"REILLY'S WHOLESALE PRODUCE, INC. v. UNITED STATES, and Four Seasons","citation_count":0,"citations":["83 Fed. Cl. 968","275 F. App'x 968"],"court_full_name":"Court of Appeals for the Federal Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Federal Circuit","court_type":"F","date_filed":"2008-04-10","date_filed_is_approximate":false,"id":6775201,"opinions":[{"ocr":true,"opinion_id":6658389,"opinion_text":"\nORDER\nThe appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is\nORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"reillys-wholesale-produce-inc-v-united-states"} {"case_name":"City of Seattle v. Christensen","case_name_full":"The City of Seattle v. Stanley Christensen","case_name_short":"Christensen","citation_count":0,"citations":["33 Wash. App. 1081"],"court_full_name":"Court of Appeals of Washington","court_jurisdiction":"Washington, WA","court_short_name":"Court of Appeals of Washington","court_type":"SA","date_filed":"1983-02-07","date_filed_is_approximate":false,"id":6955976,"opinions":[{"ocr":true,"opinion_id":6853152,"opinion_text":"\nAppeal from a judgment of the Superior Court for King County, No. 81-1-01964-8, Frank J. Eberharter, J., entered August 26, 1981. Affirmed by unpublished opinion per Andersen, C.J., concurred in by Swanson and Corbett, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"city-of-seattle-v-christensen"} {"attorneys":"Brett M. Saunders, Dustin M. Paul, Edward J. Powers, Vandeventer Black LLP, Norfolk, VA, for Plaintiff, CMA CGM S.A., John T. Husk, Jeffrey E. Cox, Law Offices of Seaton & Husk LP, Vienna, VA, Robert G. Rothstein, Franklin & Prokopik PC, Herndon, VA, for Defendants, Deck-well Sky (USA) Inc.","case_name":"CMA CGM S.A. v. Deckwell Sky (USA) Inc.","case_name_full":"CMA CGM S.A. v. DECKWELL SKY (USA) INC., d/b/a Monarch Container Line","citation_count":0,"citations":["91 F. Supp. 3d 841"],"court_full_name":"District Court, E.D. Virginia","court_jurisdiction":"Virginia, VA","court_short_name":"E.D. Virginia","court_type":"FD","date_filed":"2015-03-16","date_filed_is_approximate":false,"id":7312402,"judges":"Morgan","opinions":[{"author_str":"Morgan","ocr":true,"opinion_id":7230306,"opinion_text":"\n\nOPINION & ORDER\n\nHENRY COKE MORGAN, JR., Senior District Judge.\nThis matter is before the Court on Plaintiff CMA CGM S.A.’s (“Plaintiff’) Motion for Summary Judgment, Doc. 19, Defendant Deckwell Sky (USA) Inc.’s (“Defendant”) Motion to Strike and Motion in Limine, Docs. 21, 25, and the subsequent bench trial held before this Court on February 24, 2015. For the reasons explained herein, the Court GRANTED the Motion for Summary Judgment as to liability on all counts, DENIED Defendant’s pretrial Motions, and, having received sufficient evidence at trial, FINDS Defendant LIABLE to Plaintiff in the total amount of $438,910.66.\nI. BACKGROUND\nA. Procedural History\nPlaintiff filed its Complaint against Defendant on April 4, 2014, alleging five counts. Doc. 1. Counts Four and Five were dismissed voluntarily on June 4, 2014. Doc. 12. Count One. alleges Breach of Contract “for all demurrage and storage charges;” Count Two alleges Breach of Contract to recover “freight and associated charges;” and Count Three alleges violation of the “Carriage of Goods by Sea Act.” Doc. 1 at 5-6.\nPlaintiff filed its Motion for Summary Judgment on January 22, 2015. See Doc. 19. On January 30, 2015, Defendant filed its Response. Doc. 23. Plaintiffs Reply was filed on February 5, 2015. Doc. 28. Argument on that Motion was heard at the Final Pretrial Conference on February 10, 2015 and the Court ruled from the bench in Plaintiffs favor as to liability.\nA bench trial for the purpose of determining the appropriate amount of damages took place on February 24, 2015. Doc. 38. Based on the Court’s prior summary judg*844ment ruling, the parties filed a trial stipulation stating Plaintiff “is entitled to de-murrage charges from July to December of 2013.” Doc. 39. The Court heard evidence and argument from both sides but withheld a ruling on the exact amount of damages pending the issuance of this Order. Doc. 38.\nB. Undisputed Facts Established for Summary Judgment1\nPlaintiff is a foreign company operating as a “common carrier providing ocean transportation services for containerized cargo worldwide.” Doc. 20 at 1-2. Defendant, doing business as “Monarch Container Line,” is considered a Non-Vessel Operating Common Carrier (“NVOCC”). Id. at 2.\n. Plaintiff and Defendant entered into a service contract ensuring that Plaintiff would reserve sufficient space for Defendant’s cargo on its vessels in exchange for Defendant’s guarantee to ship at least a certain amount of cargo over the life of the contract. Id. This contract was formed sometime in April 2013. Id.\nIn a related transaction, which took place in May or June 2013, Defendant contracted with Kumquat Tree, Inc. (“Kumquat”), represented by an individual identified as “John Chen,” to ship thirteen containers from Oakland, California to the Port of Tianjin, China. Id. at 3. To effectuate its deal with Kumquat, Defendant booked passage for these thirteen containers under the terms of its contract with Plaintiff in three separate shipments. Id. The documentation provided by Kumquat indicated that the thirteen containers held “auto parts,” and Defendant passed this description along to Plaintiff. Id.\nThe final shipment left Oakland on or about June 28, 2013. Id. at 5. On July 5, 2013, after two of the shipments had arrived safely in China, Defendant notified Plaintiff that it was having difficulty reaching its consignee and that the cargo “may be abandoned.”2 Plaintiff responded on July 9, 2013, informing Defendant that it would be liable for any costs associated with the cargo being abandoned. Id. Defendant responded by requesting a quote for a change of destination. Id. at 5-6. Plaintiff immediately informed Defendant that a change of destination was impossible because the containers had already been discharged from the vessel in China and were “under Customs’ custody.” Id. at 6, Ex. 18.\nUnable to change destinations, Defendant requested that Plaintiff provide a quote for the costs of abandonment or re-exportation. Id. at 6. Plaintiff provided an estimated cost to destroy the cargo, id. at Ex. 21, but Defendant refused to pay this *845amount, id. at Ex. 22. Two weeks passed without Defendant instructing Plaintiff on how to proceed with the cargo. Id. at 7.\nOn July 29, 2013, Defendant informed Plaintiff that it had learned that the cargo may not be “auto parts” but, instead, “used tires.” Id. at 7, Ex. 23. The parties continued to exchange e-mail communication over the next two weeks, and Defendant again requested re-exportation of the containers, which Plaintiff refused pending confirmation of the true contents of the containers. Id. at 8. On August 12, 2013, Defendant confirmed that the containers were loaded with “used tires” and not “auto parts.” Id. at 8, Ex. 29. Importing used tires into China is illegal, a fact known to both parties, and Defendant maintains that it did not know the cargo was misidentified until after arrival in China. Id. at 8. Furthermore, Defendant concedes that Plaintiff had no knowledge of the problem. Id. at 12.\nGiven that the cargo was an illegal import, Plaintiff asked Defendant if it was prepared to proceed with destruction of the cargo. Id. Defendant refused, claiming the costs estimated by Plaintiff were “way too high,” and yet again requested re-exportation. Id. at Ex. 30. Plaintiff denied this request on the grounds that destruction “was the only viable option” and advised Defendant of the costs that would likely be incurred. Id. at 8-9. Defendant responded that same day, August 14, 2013, that it would “try to find shipper[, Kumquat,] and relay the charges.” Id. at 9, Ex. 33.\nOn October 8,' 2013, after nearly two months of silence, Plaintiff sent follow-up notice providing a cost estimate for destruction and alleging Defendant’s liability for those costs if the cargo was to be officially abandoned. Id. at 9, Ex. 34. Defendant responded, again rejecting the cost estimations as unnecessarily high and instead requesting a quote for returning the cargo to the United States. Id. at 9, Ex. 35. Plaintiff denied this request, stating that if Defendant wished to take action aside from destruction, it should do so at its “own costs, risks and responsibilities.” Id. at 9, Ex. 36.\nFinally, in an effort to retain Defendant as a long-term customer, Plaintiff offered to effectuate re-exportation of the cargo on the condition that Defendant paid the costs incurred in storage and customs. Id. at 10. Defendant refused this offer, citing the alleged delay in offering re-exportation on Plaintiffs part as the cause of the majority of the storage costs. Id. at 10, Ex. 38. Negotiations broke down further, and Defendant informed Plaintiff of its intent to file a report with the Federal Maritime Commission if Plaintiff did not agree “to assume reasonable responsibility for its serious mishandling of this shipment.” Id. at 10, Ex. 39.\nThe parties agreed that Plaintiff’s contractual obligations over the cargo terminated upon safely reaching the Port of Tianjin. Id. at 10. Defendant admitted that it is responsible for unpaid “ocean freight and associated charges.” Id. at 11, 14. Although the proper amount remained in dispute, Defendant.also admitted that it is responsible under the parties’ service contract for some amount of demurrage charges.3 Id. at 11.\n*846II. LEGAL STANDARDS\nA. Summary Judgment\nSummary judgment under Federal Rule of Civil Procedure 56 is appropriate only when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Terry’s Floor Fashions v. Burlington Indus., 763 F.2d 604, 610 (4th Cir.1985). Once a party has properly filed evidence supporting the motion for summary judgment, the non-moving party may not rest upon mere allegations in the pleadings, but must instead set forth specific facts illustrating genuine issues for trial. Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548. Such facts must be presented in the form of exhibits and sworn affidavits. Failure to rebut the motion with such evidence will result in summary judgment when appropriate. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548.\nA mere scintilla of evidence is insufficient to withstand a motion for summary judgment. Rather, the evidence must be such that the fact-finder reasonably could find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the court must draw all justifiable inferences in favor of the non-moving party, in order to successfully defeat a motion for summary judgment, a nonmoving party cannot rely on “mere belief or conjecture, or the allegations and denials contained in his pleadings.” Doyle v. Sentry Ins., 877 F.Supp. 1002, 1005 (E.D.Va.1995) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548).\nB. Bench Trial\nAt trial, a plaintiff must prove, by the preponderance of evidence, that it has suffered damages due to the defendant’s breach of contract and violation of maritime law. This burden is to prove “with reasonable certainty the amount of damages and the cause from which they resulted; speculation and conjecture cannot form the basis of the recovery.” Shepherd v. Davis, 265 Va. 108, 574 S.E.2d 514, 524 (2003). Accordingly, a plaintiff must show two elements for each type of damages claimed: (1) “a causal connection between the defendant’s wrongful conduct and the damages asserted;” and (2) “the amount of those damages by using a proper method and factual foundation for calculating damages.” Saks Fifth Avenue, Inc. v. James, Ltd., 272 Va. 177, 630 S.E.2d 304, 311 (2006).\nIII. ANALYSIS\nAs a general proposition, nobody wants to own 325 metric tons of used tires;4 the parties in this case are no exception. Plaintiff does not accuse Defendant of *847knowingly misrepresenting its cargo, and it appears clear to the Court that both parties in this case are the victims of a fraud perpetrated by “John Chen” and Kumquat, the original shipper of the used tires.5 That being said, the Court must still determine, as between the parties now before it, where the legal responsibility should lie for the misrepresentation of the cargo and the significant expenses which followed.\nA. Liability\nDefendant did not dispute any of the asserted facts supporting its general liability pursuant to each of the three Counts of the Complaint: Breach of Contract (Counts 1 & 2) and Violation of the Carriage of Goods by Sea Act (Count 3). Accordingly, there exists no genuine issue of material fact in dispute on the topic of liability. First, Defendant admitted responsibility for misrepresenting the cargo as “auto parts.” (Counts 1 & 3). See Doc. 28 at 2. Second, Defendant admitted responsibility for the “unpaid freight” (Count 2). See id. at 3. Finally, it is clear from the face of the service contract that Defendant is liable for at least some detention, demurrage, and destruction charges based *848upon its admitted abandonment of the cargo (Count 1). The only issue truly debated by the parties on summary judgment was the proper scope of Defendant’s liability and the mitigation of damages.\nAlthough Defendant objected generally to a significant number of Plaintiffs factual allegations, bare objections are not sufficient to create a dispute. A non-moving party must put forth evidence and “do more than simply show that there is some metaphysical doubt as to the’ material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 5.Ct. 1348, 89 L.Ed.2d 538 (1986). Furthermore, the Court did not sustain any of Defendant’s evidentiary objections. Plaintiff clearly established a prima facie case for liability, and Defendant provided no new or distinguishing facts, relying instead solely upon meritless evidentiary objections. Therefore, the Court GRANTED Plaintiffs Motion for Summary Judgment as to liability, Doc. 19, but proceeded to trial for the proper determination of damages.\nB. Damages\nAt trial, Plaintiff sought three specific types of damages. First, Plaintiff sought the freight cost of shipping the cargo, equal to 8,820 United States Dollars (“USD”), an amount Defendant does not contest. Doc. 37 at 2. Second, it sought the daily demurrage costs for depriving Plaintiff of the use of its thirteen containers from July 2013 until April 4, 2014, 2,519,780 Chinese Yuan (“CNY”). Id. Third, Plaintiff sought the actual costs associated with destruction of the cargo once abandoned, 1,513,074 CNY. Id.\n1. Freight Charges\nPlaintiff claims it is owed freight, the contract price for shipment of the cargo, in the amount of 8,820 USD. Id. Plaintiff asserted this claim in its Motion for Summary Judgment, Doc. 20 at ¶ 61, and Defendant did not object or respond to this claim, see Doc. 28 at 3. Defendant also admitted to this charge through deposition, and the evidence presented by both parties at trial clearly supports the accuracy of the amount. See, e.g., Trial Ex. 5 at CMA000106-09. Defense counsel did not contest these damages at trial. See Doc. 33 at 2, 6. Accordingly, the Court FINDS that Plaintiff has proven “with reasonable certainty the amount of damages” relating to the freight charges for shipment of the cargo initially identified as “auto parts” and successfully delivered to the Port of Tianjin. See Shepherd, 574 S.E.2d at 524. Therefore, the Court ORDERS that Defendant is LIABLE for damages relating to freight charges in the amount of 8,820 USD.\n2. Demurrage Charges\nPlaintiff seeks damages relating to demurrage charges from the expiration of the “free time” on each container6 until April 4, 2014, the date Defendant was invoiced to facilitate the filing of this lawsuit. Using that date, Plaintiff claims to be owed damages in the amount of 2,519,780 CNY. Although Plaintiff claimed at trial that demurrage continued to accrue after April 4, 2014, Plaintiff asked the Court to award damages based upon this invoice.\nDefendant disputes Plaintiffs ability to recover “any demurrage” on the basis that Plaintiff failed to properly mitigate damages. Doc. 33 at 6. Defendant asserts that *849because Plaintiff had physical possession of the cargo, it was the only one in the position to mitigate damages. Defendant alleges that Plaintiffs failure to do so should completely undermine its ability to recover demurrage. Id.\n.The Court FINDS, however, that the evidence does not entirely support either party’s position. Defendant’s consignee did not pick up the cargo as anticipated in July 2013, see Trial Ex. 13, thereby continuing to occupy Plaintiffs containers and initiating demurrage charges under the service contract. The parties then engaged in a series of e-mail communications seeking to find a resolution. See Trial Exs. 13, 21-22, 24, 34, 39. Defendant’s argument that Plaintiff delayed too long before destroying the cargo is severely undermined by these e-mails.\nOver the course of their communica-. tions, Plaintiff continually instructed Defendant that the only feasible way to proceed was by destroying the tires. See, e.g., Trial Ex. 22. In response, Defendant repeatedly informed Plaintiff that the quoted pricing for destruction was too high, and requested that Plaintiff not proceed with destruction. As a result, Plaintiff cannot reasonably have been expected to destroy the cargo while it still belonged to Defendant.\nAt trial, Defendant also argued that Plaintiff could have mitigated damages by acting on its right to empty the unclaimed containers for more productive use elsewhere and arranging another means of storage for the cargo. “Mitigation of damages is an affirmative defense and the party that breached the contract bears the burden of proving that failure by a preponderance of the evidence.” Johnson v. Washington, No. 2:07cv204, 2008 WL 850690, at *5 (E.D.Va. Mar. 12, 2008) (citing Fox-Sadler v. Norris Roofing Co., 229 Va. 106, 112, 327 S.E.2d 95 (1985)). Although it does appear Plaintiff had the right to empty the containers, Defendant failed to meet its burden to prove how or if Plaintiffs failure to act on that.right unnecessarily enhanced the overall costs. Accordingly, the Court FINDS that Plaintiff is owed some amount of demurrage charges.\nIn Yang Ming Marine Transp. Corp. v. Okamoto Freighters Ltd., the Ninth Circuit faced a very similar set of facts regarding the issue of demurrage. 259 F.3d 1086, 1088-90 (9th Cir.2001) [hereinafter Yang Ming]. There, the court held that although the plaintiff-carrier was initially entitled to demurrage upon the expiration of “free time,” its ability to recover demur-rage ceased when the cargo was officially abandoned. The court reasoned that post-abandonment, plaintiff-carrier could no longer claim to be retaining the containers as a service to defendant-NVOCC. Id. at 1093. The court did, however, permit the plaintiff-carrier to recover the “actual costs it incurred as a result of [defendant-NVOCC]’s misdescription of the cargo.” Id. at 1094.\nThe Court is persuaded to adopt the reasoning of the Ninth Circuit as to the proper scope of demurrage-related damages. Therefore, Plaintiff may recover damages for all demurrage charges incurred between the expiration of “free time” for each container and the date on which the cargo was officially abandoned by Defendant.\nAs the date of abandonment is necessary for establishing the scope of damages, the Plaintiff bears the burden of proving the actual date. No evidence was offered at trial to establish an exact date; however, the parties agree that Defendant abandoned the cargo in December 2013 or early January 2014. See also Doc. 39 at 1 (trial stipulation stating Plaintiff “is entitled to demurrage charges from July to Decern-*850ber of 2013.”)- Compare Doc. 33 at 3, 6, with Doe. 37 at 4. Since Plaintiff bears the burden of proving damages, it also bears the related risk of nonpersuasion. See Fed.R.Evid. 301. Therefore, as no evidence was offered to establish an exact date of abandonment,7 the Court must select an appropriate date that is least prejudicial to Defendant. Accordingly, the Court FINDS, based upon the evidence now before it, that the cargo was officially abandoned on December 1, 2013, and Plaintiff can only recover the demurrage damages it seeks for charges incurred pri- or to that date.\nThe service contract between the parties incorporated by reference Plaintiffs pub-lically filed Tariff. See Trial Ex. 1 at CMA000114. Accordingly, the demurrage rates maintained in the Tariff are considered to be a part of the contract. See also Louisville & N.R. Co. v. Maxwell, 237 U.S. 94, 98, 35 S.Ct. 494, 59 L.Ed. 853 (1915) (“knowledge of the lawful [tariff] rate is conclusively presumed”).\nFor shipments of forty-foot “HC” containers from the United States to China, the Tariff lists the following schedule for demurrage charges:\n[[Image here]]\nTrial Ex. 60 at CMA000241.\nThe first shipment of cargo arrived on June 23, 2013 with five containers. Trial Ex. 5 at CMA000103-04. This shipment’s seven days of “free time” expired on June 29. The first tier of demurrage charges ran from June 30 until July 7. The second tier ran from July 8 until August 1. The third tier ran from August 2 until November 30. The charge for each period, multiplied over five containers, is displayed in the following table:\n[[Image here]]\nThe second shipment of cargo arrived on June 30, 2013 with seven containers. Id. at CMA000100-02. This shipment’s seven days of “free time” expired on July 6. The first tier of demurrage charges ran from July 7 until July 14. The second tier ran from July 15 until August 8. The third tier ran from August 9 until November 30. The charge for each period, multiplied over seven containers, is displayed in the following table:\n*851[[Image here]]\nThe third shipment of cargo arrived on July 15, 2013 with one container. Id. at CMA000105. This shipment’s seven days of “free time” expired on July 21. The first tier of demurrage charges ran from July 22 until July 29. The second tier ran from July 30 until August 23. The third tier ran from August 24 until November 30. The charge for each period, multiplied by one container, is displayed in the following table:\n[[Image here]]\nAs represented in the preceding tables, the Court FINDS that Plaintiff has proven “with reasonable certainty” that the recoverable demurrage for all thirteen containers from delivery until abandonment is 1,284,780 CNY. See Shepherd, 574 S.E.2d at 524. Ordinarily, however, the Court should “enter judgments in U.S. dollars.” ReliaStar Life Ins. Co. v. IOA Re, Inc., 303 F.3d 874, 882 (8th Cir.2002). Accordingly, the appropriate exchange rate of CNY to USD must be determined.\nThe proper date to select an exchange rate is the date of the breach. Elite Entm’t, Inc. v. Khela Bros. Entm’t, Inc., 396 F.Supp.2d 680, 694 (E.D.Va.2005). Here, the Court FINDS that the date of abandonment, December 1, 2013, is also the date the contract was breached. The Court therefore takes judicial notice that at the close of business on Friday, November 29, 2013, the applicable exchange rate was 0.16416 CNY to 1 USD.8 Applying this rate of exchange to the aforementioned total, the Court hereby ORDERS that Defendant is LIABLE for damages relating to demurrage' charges in the amount of 210,909.48 USD.\n3. Destruction Costs\nDespite being unable to collect de-murrage charges after abandonment, Plaintiff may still recover any actual costs incurred as a result of Defendant’s breach. See Yang Ming, 259 F.3d at 1093. Plaintiff requests these damages in the form of destruction costs, inspection fees, and storage charges. At trial, Plaintiff offered into evidence an e-mail from Plaintiffs employee, Maria Soto, to Defendant’s employee, Eric Ngo, which provided cost estimates for destruction of the cargo. Trial Ex. 39. Uncontroverted witness testimony confirmed that these estimates accurately reflected the actual costs later incurred by Plaintiff. See Trial Test, of Ms. Hawkins.\nThe cost to physically destroy the used tires was quoted to Defendant as “CNY4,000/TON.” Trial Ex. 39. The Bills of Lading confirm that the cargo weighed a total of 325,000 kilograms or 325 metric tons. Trial Ex. 3 at CMA000199, 201, 203. Accordingly, destruction of the *852used tires cost Plaintiff a total of 1,300,000 CNY. Applying the exchange rate previously determined by the Court, this equals 213,408.00 USD.\nThe cost of inspection fees was quoted to Defendant as “CNY2000/CNTR.”9 Trial Ex. 39. The Bills of Lading confirm that the cargo was shipped in a total of thirteen containers. Trial Ex. 3 at CMA000199, 201, 203. Accordingly, the inspection of these thirteen containers cost .Plaintiff a total of 26,000 CNY. Applying the exchange rate previously determined by the Court, this equals 4,268.16 USD.\nThe storage fees quoted to Defendant were “CNY8/[CNTR]/day ... increased to CNY24/[CNTR]/day if idle over [three] months.” Trial Ex. 39. Since Plaintiff is receiving demurrage as compensation for storing the containers until abandonment, damages for storage costs will be calculated from December 1, 2013 until the tires were destroyed. Deposition testimony used at trial indicates that the actual destruction of tires began on December 17, 2014, see Trial Test, of Emma Sun, a period of 382 days after abandonment. As the cargo was idle for well over three months prior to abandonment, the Court will use the 24 CNY per container per day charge, amounting to a total storage cost of 9,168 CNY. Applying the exchange rate previously determined by the Court, this equals 1,505.02 USD.\nBased upon the foregoing evidence, the Court FINDS that Plaintiff' has proven “with reasonable certainty” its actual costs post-abandonment. See Shepherd, 574 S.E.2d at 524. The Court hereby ORDERS that Defendant is LIABLE for damages relating to destruction, inspection, and storage costs in the amount of 219,1.81.18 USD.\nC. Defendant’s Pretrial Motions\nDefendant filed both a Motion to Strike the Declaration of Ms. Hawkins from Plaintiffs Summary Judgment Motion and a Motion in Limine to prevent her from testifying at trial. See Docs. 21, 25. Both motions rest on the same principal argument, namely that Ms. Hawkins’ testimony does not come from her direct or personal knowledge and is, therefore, inadmissible.\nPlaintiff asserted that the motions should be denied because Ms. Hawkins testified as a 30(b)(6) corporate designee. The Federal Rules are clear that such a witness “must testify about information known or reasonably available to the organization.” Fed.R.Civ.P. 30(b)(6). This acts as an exception to the general principle that a witness must have personal knowledge, and the deposition transcript cited by Plaintiff clearly indicated that this was Ms. Hawkins role and that she was aware of that distinction. Doc. 31 at 2. Furthermore, the Court took the matter under advisement after the Final Pretrial Conference, and although Ms. Hawkins did testify at trial, the objection was not renewed.\nThe Motion to Strike is also deficient on procedural grounds. Such a motion is only proper in reference to “material included in a pleading.” Gregory v. Belfor USA Grp., No. 2:12cv11, 2012 WL *8532309054, at *2 (E.D.Va. June 15, 2012). The material that Defendant sought to strike is not attached to a pleading, but to Plaintiffs Motion for Summary Judgment. Accordingly, the Court DENIES Defendant’s Motion to Strike, Doc. 21, and Motion in Limine, Doc. 25, both procedurally and on their merits.\nIV. CONCLUSION\nFor the foregoing reasons,. Court GRANTED the Motion for Summary Judgment, Doc. 19, as to liability but not as to damages, DENIED Defendant’s pretrial Motions, Docs. 21, 25, and FINDS Defendant LIABLE for damages in the total amount of $438,910.66.\nThe Clerk is REQUESTED to send a copy of this Order to all counsel of record.\nIt is so ORDERED.\n\n. The facts laid out in this section are those that were available to the Court, and uncontested by Defendant, when it considered Plaintiffs Motion for Summary Judgment. At that time, the Court FOUND that these facts were sufficient to establish Defendant's liability for all three types of damages discussed below; however, the Court also noted that the evidence was insufficient to determine the proper amount of damages. See infra Part III.A. Further factual findings, based solely on the evidence and testimony offered at trial, are integrated below as necessary to explain the Court’s holding as to damages. See infra Part III.B.1-3.\n\n\n. Although Plaintiff cautiously indicates that Defendant thought abandonment was merely a possibility, the evidence cited appears more certain. The Exhibit in question purports to be an e-mail message informing Plaintiff \"that these shipments have been abandoned by shipper.” Doc. 20 at Ex. 15. Furthermore, Defendant's employee, Eric Ngo, stated that \"[w]e have been trying to contact shipper for past 3 weeks, but they never get back to us.” Id.\n\n\n. \"Detention” is defined by the service contract as “the charge [Defendant] pays for detaining [Plaintiffs] equipment outside the port, terminal or depot, beyond the free time.” Doc. 20 at Ex. 1. \"Demurrage” is similarly defined as “the charge, related to the use of the equipment only, [Defendant] pays for [Plaintiff’s] equipment kept beyond the free time allowed by [Plaintiff] for taking delivery of goods in the port, terminal or depot ... include[in] storage and equipment costs.” “Free time” is \"the period of time *846allowed to the merchant free of charge.” Doc. 20 at Ex. 4.\n\n\n. By 1982, used tires were already recognized as \"a problem that won’t go away.” Stewart Levin, Recycling Used Tires: A Boon or a Balloon, The Christian Science Monitor (Sept. 21, 1982), available at http://www.csmonitor. com/1 982/0921/092139.html. By 1990, the federal courts were already presented with, individuals charged with implementing complex fraudulent schemes to abandon large shipments of used tires in the hands of trucking companies. See, Lisa Ellis, Man Pleads Guilty To 23 Counts In Tire-disposal Scheme, *847Philly.com (Oct. 30, 1990), http://articles. philly.com/1990-10-30/news/25894511_l_ tire-disposal-wire-fraud-western-union. No later than 1997, would-be fraudsters were targeting unsuspecting NVOCCs as a method for relieving themselves of used tires at a fraction of the cost of doing so legally. See Yang Ming Marine Transp. Corp. v. Okamoto Freighters Ltd., 259 F.3d 1086, 1089 (9th Cir.2001) (ten containers shipped to Tokyo, Japan \"held used tires instead of cigars and cigarettes”). The instant case and recent situations like it are living proof that this illegal practice continues to plague companies and nations alike. See, e.g., Joe McDonald, China Recycling Cleanup Jolts Global Industry, Associated Press (Oct. 3, 2013), available at http://news. yahoo.com/chinarecycling-cleanup-jolts-global-industry-062315 875_finance.html (\"Despite a ban on imports of used tires, [Chinese] inspectors intercepted a 115 — ton shipment of them in March [of 2013] ... labeled ‘recycled rubber bands’ ”).\n\n\n. During his seemingly brief negotiations with Defendant to arrange the booking of the fateful shipment, \"John Chen” specifically identified one shipping line that Defendant was not to use, allegedly due to \"very high demurrage and detention.” Trial Ex. 9 at 1. Since \"Mr. Chen” obviously had no intention of paying any such costs, however, inferentially this request must have been based on his knowledge that the carrier he identified would have been more likely to discover the fraud prior to shipment. Presumably this would be accomplished through a corporate policy leading to inspection of the original trucking company’s bill of lading, which when eventually consulted correctly identified the cargo as “used tires.” See Trial Test, of Ms. Yang; Trial Ex. 24. In this case, the burden was on Defendant to check the trucker's bill of lading, but by the time they did so it was too late. Under the terms of the contract, Defendant certified Kumquat's description of the cargo, accordingly, as between Plaintiff, the carrier, and Defendant, a NVOCC, the risk of misidentified cargo falls upon Defendant. However, Plaintiffs rights are no better than a NVOCCs ability to bear the burden of damages caused by a shipper’s fraud. Therefore, whenever possible, both carrier and NVOCC should check the trucker's bill of lading to minimize the risk of such fraud. In Yang Ming Marine Transp. Corp. v. Okamoto Freighters Ltd., 259 F.3d 1086 (9th Cir.2001), a similar improper shipment of used tires resulted in destruction costs of approximately $25,000 for ten containers. Id. at 1089. Here, the destruction costs for thirteen containers of tires were over $200,000. This raises the question of whether the cost of dealing with used tires has multiplied several times over in the last decade and a half or whether the fraudulent scheme has reached across the ocean to artificially inflate the cost of destroying the tires. Based upon the Court's research into similar cases, see supra note 4, and the representations of counsel, it appears the scheme of shipping garbage unbeknownst to either carrier or NVOCC is not a rare occurrence. Therefore, until a profitable method for recycling used tires is developed, it behooves both carriers and NVOCCs to check behind the original shipper’s certification of the cargo.\n\n\n. \"Free time” expired on three different dates due to the fact that the cargo arrived at the Port of Tianjin in three separate shipments. The first shipment arrived on June 23, 2013 with five containers. The second arrived on June 30, 2013 with seven containers. The third arrived on July 15, 2013 with one container. See Trial Ex. 5 at CMA000100-05.\n\n\n. In fact, Plaintiff's counsel specifically avoided any attempt to establish an exact date. See Trial Test, of Ms. Hawkins (\"Q. Now, I understand eventually, based on the prior testimony, that sometime in December 2013 the parties parted ways, they couldn’t come to a resolution/and the cargo was ... up to CMA to deal with it? A. Yes.”).\n\n\n. Data gathered from CHINA RENMINBI-US DOLLAR Exchange Rate, bloomberg business. http://www.bloomberg.com/quote/CNYUSD: CUR/chart (last visited Mar. 6, 2015).\n\n\n. Testimony at trial clouded this issue, as Ms. Hawkins identified a relevant typographical error in Exhibit 2. This Exhibit states that the inspection fees were estimated at \"8,40.00,” but Ms. Hawkins did not clarify if the correct amount was 840 USD or 8,400 USD. She did, however, indicate that the Exhibit’s cost estimates were drawn from the figures contained in Exhibit 39, and that Exhibit 39 accurately reflects the costs incurred. Therefore, the Court relies on Exhibit 39, rather than Exhibit 2, in determining the appropriate amount of damages.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cma-cgm-sa-v-deckwell-sky-usa-inc"} {"attorneys":"Deborah G. Stevenson, special public defender, for the appellant (defendant)., Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).","case_name":"State v. Petitpas","case_name_full":"STATE OF CONNECTICUT v. CHAD PETITPAS","case_name_short":"Petitpas","citation_count":0,"citations":["299 Conn. 99"],"court_full_name":"Supreme Court of Connecticut","court_jurisdiction":"Connecticut, CT","court_short_name":"Supreme Court of Connecticut","court_type":"S","date_filed":"2010-11-23","date_filed_is_approximate":false,"id":7902223,"judges":"Rogers","opinions":[{"author_str":"Rogers","ocr":true,"opinion_id":7850673,"opinion_text":"\n\nOpinion\n\nROGERS, C. J.\nThe defendant, Chad Petitpas, appeals directly1 from the judgments of the trial court, rendered after a jury trial, convicting him of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l),2 two counts of sexual assault in the second degree in violation of General Statutes (Rev. to 2005) § 53a-71 (a) (1), and one count each of sexual assault in the fourth degree in violation of General Stat*101utes § 53a-73a (a) (2), unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a), risk of injury to a child in violation of General Statutes § 53-21 (a) (1), risk of injury to a child in violation of § 53-21 (a) (2), larceny in the third degree in violation of General Statutes (Rev. to 2005) § 53a-124 (a) (1), and mutilation or removal of a vehicle identification, factory or engine number in violation of General Statutes § 14-149 (a). On appeal, the defendant claims that the trial court improperly: (1) granted the state’s motion to amend the substitute information; (2) granted the state’s motion to amend the jury instructions; and (3) denied the defendant’s motion for acquittal based on insufficient evidence of sexual assault in the first degree. The defendant also claims that the prosecutor engaged in impropriety during closing argument, thereby depriving him of a fair trial. We affirm the judgments of the trial court.\nThe record reveals the following relevant facts, which the jury reasonably could have found, and procedural history. In August, 2006, the fifteen year old victim3 lived with her mother, her mother’s boyfriend, her brother and the defendant. One day in October, 2006, after the defendant had moved out of the victim’s residence, he visited the victim at her residence and forced her to engage in oral and vaginal intercourse. Approximately one month later, the victim reported the incident to her school psychologist, which led to a police investigation. During the investigation, the police discovered at the defendant’s residence a stolen motorcycle that had its vehicle identification number removed.\nThe defendant was arrested and charged with ten counts in three separate informations that were later *102consolidated for trial in a single substitute information. A jury trial began on July 9, 2007. The following day, the state rested its case, and the defendant moved for acquittal on the ground that the state had failed to prove the charges beyond a reasonable doubt, which the trial court denied. Although the trial court, in addressing the sexual assault charges during argument on the motion, characterized the evidence of “fear of physical injury”; see General Statutes § 53a-70 (a) (1); as “thin,” the court concluded that there was sufficient evidence on the issue of “compulsion” and “fear” to submit the case to the jury. On July 11, 2007, with the trial court’s permission, the state filed an amended substitute information. At the conclusion of the trial, the jury returned a guilty verdict on all ten counts, and the trial court rendered judgments in accordance with the verdict.4 This direct appeal followed.\nThe defendant first claims that the trial court improperly granted the state’s motion to amend the substitute information. Specifically, the defendant contends that the state failed to show good cause for its amendment of the substitute information, which prejudiced him. We disagree. The record reveals the following additional facts and procedural history. In the original substitute information, counts one and two, which alleged sexual assault in the first degree, each charged that the defendant had compelled “another person, to wit: [the victim] to engage in sexual intercourse ... by the use of force against such other person, or by the threat of the use of force against such other person which reasonably causes such person to fear physical injury to such person.” On July 11, 2007, over the defendant’s objections, the trial court allowed the state to file an amended substitute information that included the same ten counts against the defendant, except that it removed *103from counts one and two the language referring to “the threat or use of force against such other person which reasonably causes such person to fear physical injury to such person.” The effect of this amendment was to limit the state to proving the charges of sexual assault in the first degree by establishing the use of force only.5\nPursuant to Practice Book § 36-18, the state “for good cause shown . . . may . . . amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced.” Section 36-18 “is primarily a notice provision” and “the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense.” State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). “[0]ur review of the trial court’s decision to permit an amendment to the information is one of abuse of discretion.” (Internal quotation marks omitted.) State v. Carbone, 116 Conn. App. 801, 806, 977 A.2d 694, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).\nIn the present case, by amending the information, the state eliminated one possible method by which the jury could have found the defendant guilty of sexual assault in the first degree. Because we are unable to perceive how the defendant could have been prejudiced *104by an amendment that deprived the state of a means of proving the offense, we conclude that the trial court did not abuse its discretion by allowing the state to amend the substitute information.6\nThe defendant next claims that the trial court improperly granted the state’s motion to amend the jury instructions to remove: (1) any reference to the commission of sexual assault by the “threat of use of force”; and (2) the consideration of the reasonableness of a victim’s fear.7 Specifically, the defendant argues that “the reasonableness of a victim’s fear . . . directly was relevant to the key element of force,” and that “the [amended] jury charge . . . was so harmful as to either affect the result of the trial, or to undermine confidence in the fairness of the verdict.” We disagree.\n“Our analysis begins with a well established standard of review. When reviewing the challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will *105not view the instructions as improper.” (Internal quotation marks omitted.) State v. Arroyo, 292 Conn. 558, 566, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010). Because, under the amended substitute information, the state could prove that the defendant had committed sexual assault in the first degree only by establishing the actual use of force, we conclude that the trial court properly granted the state’s motion to amend the jury instructions to remove references to the threat of the use of force and the reasonableness of the victim’s fear, which was relevant only to the issue of threat. The defendant has provided no authority for the proposition that the state must establish that the victim was afraid or that her fear was reasonable in order to prove the actual use of force.\nThe defendant next claims that the trial court improperly denied the defendant’s motion for a judgment of acquittal on the charges of sexual assault in the first degree because the state failed to present sufficient evidence “upon which the jury could reasonably have concluded that the defendant used force to compel [the victim] to submit to sexual intercourse . . . .” We disagree. The following additional facts, which the jury reasonably could have found by crediting the victim’s testimony, are relevant to the resolution of this claim. On the day in question, the defendant entered the fifteen year old victim’s bedroom, where she was on her bed talking on the telephone to her friend. The defendant began rubbing the victim’s leg and, after she ended her telephone call, asked her to engage in sex. The victim declined. The defendant then removed the victim’s pajama pants and said “he wanted to see how [she] felt, and if [she] was good at it.” The victim responded by saying she “didn’t want to do it.” The defendant then spread the victim’s legs apart and engaged in oral sex with her. The victim “tried to close [her] legs,” but the defendant “was just pulling [them] open.” After *106engaging in oral sex, the defendant then lay on top of the victim and engaged in vaginal intercourse with her. After he was done, the defendant told the victim that what had just happened would be their “little secret.”\n“On appeal . . . [w]e ask . . . whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Sargeant, 288 Conn. 673, 679, 954 A.2d 839 (2008). Construing the foregoing facts in the light most favorable to the state, we conclude that the jury “reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt” with respect to the charges of sexual assault in the first degree. (Internal quotation marks omitted.) Id.\nFinally, the defendant claims that the prosecutor engaged in prosecutorial impropriety, depriving him of a fair trial. Specifically, the defendant argues that the “prosecutor improperly misstated facts, introduced facts not in evidence, expressed personal opinion, and bolstered the credibility of a state’s witness during closing argument.” We disagree.\nWe have reviewed all of the challenged statements and, after analyzing whether impropriety “occurred in the first instance,” and whether that impropriety “deprived a defendant of his due process right to a fair trial”; (internal quotation marks omitted) State v. Angel T., 292 Conn. 262, 275, 973 A.2d 1207 (2009); we conclude that the defendant’s claims lack merit, with the exception of the prosecutor’s comment to the jury during closing argument that the victim was “telling [them] the truth.” Although we acknowledge that this comment was improper, we conclude that the impropriety did not violate the defendant’s due process right to a fair trial. See State v. Thompson, 266 Conn. 440, 467-69, 478, 832 A.2d 626 (2003).\nThe judgments are affirmed.\nIn this opinion the other justices concurred.\n\n The defendant appeals directly to this court from the judgments of the trial court pursuant to General Statutes § 51-199 (b) (3).\n\n\n General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”\n\n\n In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.\n\n\n The trial court sentenced the defendant to a total effective sentence of nineteen years imprisonment, followed by twenty years of special parole.\n\n\n To the extent that the defendant claims that his motion for acquittal “alerted the state to a defect in its case,” and that the state, “[b]y amending the information to preclude the defendant’s ability to argue the reasonableness of [the victim’s] fear,” prejudiced the defendant “in that he was precluded from putting on a defense,” we conclude that his argument is without merit. As we discuss later in this opinion, the alleged unreasonableness of the victim’s fear was not a defense to the state’s claim that the defendant had compelled the victim to engage in sexual intercourse by the actual use of physical force, which was the only charge that ultimately was submitted to the jury. Accordingly, the defendant, contrary to his claim, was not “precluded . . . from being able to prove reasonable doubt that the state met its burden of proof as to a key element of the crime . . . .”\n\n\n We decline in this case the state’s invitation to revisit State v. Tanzella, supra, 226 Conn. 614, in which we held that the state “shoulders the burden of establishing that ‘no substantive rights of the defendant would be prejudiced’ ” when it seeks to amend the information after trial has commenced, and must therefore show: “(1) good cause for the amendment; (2) that no additional or different offense is charged; and (3) that no substantive right of the defendant will be prejudiced.”\n\n\n The defendant objected to the state’s motion to amend the jury instructions before and after the instructions were read to the jury, and his claim is therefore preserved for review.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued September 7","precedential_status":"Published","slug":"state-v-petitpas"} {"attorneys":"Chrisman & Thompson, for appellants,, II. Cassidy, Jr., for defendants 'in error.","case_name":"Bowen v. Hoskins","case_name_full":"E. J. Bowen et ux. v. J. A. Hoskins, Admr.","case_name_short":"Bowen","citation_count":0,"citations":["45 Miss. 183"],"court_full_name":"Mississippi Supreme Court","court_jurisdiction":"Mississippi, MS","court_short_name":"Mississippi Supreme Court","court_type":"S","date_filed":"1871-10-15","date_filed_is_approximate":true,"id":8028066,"judges":"Simball","opinions":[{"author_str":"Simball","ocr":true,"opinion_id":7984039,"opinion_text":"\nSimball, J.:\nThis appeal is prosecuted by Bowen et ux., from an order of the chancery court overruling their motion to dissolve an injunction on bill and answer.\nThe abstract question presented is, whether a surety can go into equity before he has paid the debt of his principal, or more than his aliquot portion of it, to restrain a co-surety from disposing of real estate, so as to throw the whole burden of the debt upon the complainant, on the allegation that the principalis insolvent.\nThe facts are, that E. H. Wailes recovered a judgment against E. L. Bowen and E. T. Bowen and Whitworth, the intestate, founded upon the promissory note of the three ; E. L. Bowen being principal and the other two promissors his sureties. This judgment has been duly enrolled, so as to confer a lien on the property of the defendants thereto.\nThe bill alleges that E. T. Bowen bought from Decell a half-interest in certain lands described, and paid the consideration therefor, but, for the purpose of evading the judgment in favor of Wailes, had the conveyance made to his wife; and that he and his wife are attempting to sell the lands, and, if permitted to do so, an innocent purchaser *186would acquire the title, discharged from liability to the judgment. E. L. Bowen, the principal, has not enough property to pay the debt, and thereby its whole burden would fall upon the estate of Whitworth, his intestate.\nThe answer of Bowen and wife admits the purchase and conveyance of the land to the wife, but insists that the transaction was fair and legitimate, the wife furnishing a large part of the consideration, and the husband being largely indebted to her, and took this mode of making some reim bursement.\nThe policy of our law, according with the spirit of equity principles, imposes a primary obligation of paying the debt on the principal. Hence, under the statute, if the sheriff persists in a levy on the property of the surety after notifi cation that the principal has property liable, the surety may, by a proper proceeding, supersede the levy, and displace it altogether. Moss v. Agricultural Bank, 4 Smedes & Marsh. 726.\nThe judgment creditor has a right to satisfaction, as against all the debtors; primarily against the principal if solvent. The creditor can be compelled, by the surety under the statute, to get satisfaction from a solvent principal. If the surety pays the debt, he has in equity a right to be subrogated to all the rights and remedies of the creditor, as against co-sureties, thus, if he pays a judgment, the principal being insolvent, equity would extend to him all the advantages and liens which belonged to the original judgment in favor of the creditor, as against the other sure- . ties. 1 Dess. 409.\nThe doctrine of the court, arising out of moral duty and justice, is that the surety who pays stands precisely in the shoes of the creditor whose debt he has discharged, and to be reimbursed by co-sureties, shall be substituted to all liens, securities and preferences, which the creditor had for his debt, before its discharge. Lidderdale v. Robinson, 2 Brock, 160; 12 Wheat. 594. This right does not arise out of contracts, but takes its root in the principles of *187natural justice. Payment by the surety discharges the debt, and also the securities therefor as to the creditor. But equity will not allow that effect as between the principal debtor and surety. As between them, it is regarded rather as an equitable assignment for the use of the surety, of the original debt, with its incidents and remedies.\nIf the payment be of a bond debt, and that debt have a priority over simple contract debts, as against the estate of a deceased co-surety, preference in marshaling assets will be given over simple contract creditors. Dupuy v. Southgates, 11 Leigh, 97.\nIf the surety in a bond debt to the United States (as an importer’s bond) pays the debt, he is entitled to the same preference over other creditors as the United States had. United States v. Hunter, 5 Mason, 65; 5 Pet. 174.\nThe doctrine declared by Lord Eldon in Copis v. Middleton, 1 T. & R. 229, and by Lord Brougham in Hodgson v. Shaw, 3 Myl. & K. 190, limiting the subrogation to such securities as were not extinguished at law by the payment, has been very generally denied in the American courts, as too narrow and technical. If the surety paid off a judgment, according to this rule, he could claim no preference or advantage, as incident to it, because it was extinguished. The American courts give a wider range to the principle, and work out a more perfect justice, by considering the judgment, as equitably assigned to the surety, and as having all its incidental advantages, for the purposes of contribution, as against the principal debtor and his subsequent lien creditors. Lathrop v. Dale, 1 Barr. 512.\nWhile at law, the surety has no remedy until he has paid the debt, equity, with a view of placing the performance, of the duty where it primarily belongs, will interpose, at the instance of the surety, so soon as the debt becomes due, to compel its payment by the principal. Ranelaugh v. Hays, 1 Vern. 189; Bishop v. Day, 13 Vt. 88; Stump v. Rogers, 1 Ohio, 533. But this interference wdll not be made so as to impair, endanger or delay the creditor.\n*188A court of equity, to prevent a multiplicity of suits, in order to do right and distribute justice, will, in the first instance, impose the discharge of the duty or performance of the obligation upon the party primarily and ultimately bound. Instead, therefore, of requiring the surety to pay, and then re-imbursing him by decree against the principal, it permits the surety at once to resort to the court, to compel the principal to discharge his obligation.\nAlthough the question is new and without precedent in the books, so far as we have been able to see, this equity is quite as strong in favor of a surety (where the principal is insolvent) against his co-surety. It is well supported by authority, and thoroughly approved by the reason, that if the principal has made, or is about to make, secret or fraudulent dispositions of his property, so as to throw the debt upon his surety, the latter may have ample remedy. If the principal is insolvent, and therefore the debt rests as a common and equal burden upon the sureties, do not the same considerations appeal with equal force to the chancellor, that he may see to it, that one of them shall not, by secret or fraudulent contrivances and conveyances of property, fasten the whole of it upon the other? We think that the principle may well have this extended application.\nIt is said that the answer denies the equity of the bill, and therefore the injunction should have been dissolved. The answer of Bowen and wife admits that part of the consideration for the land was paid to Decell by himself, that is, by the satisfaction of the debt to him for medical services.\nThe power to dissolve, as well as to grant injunctions, must rest necessarily in the discretion of the court, and should be exercised so as to prevent injustice. Hilliard on Injunc. 77; Cammack v. Johnson, 1 Green (N. J.), 172. In James v. Scurly, 2 Ired. Eq. 281, it was said, that a motion, resting upon the answer only, before the proofs are in, is addressed very much to the sound discretion of the court. We think that the ends of justice would be better subserved *189by retaining the injunction until the complainant has a fair opportunity to take testimony; be must, however, be indulged in no unnecessary delay. The defendants admit that they are offering the property for sale. If that shall be accomplished the objects of the suit would be defeated. This is a cogent reason why the provisional injunction should be retained until the testimony shall be taken.\n\nDecree affirmed.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"bowen-v-hoskins","summary":"Appeal from tlie chancery court of Lincoln county. Peyton, Chancellor. The opinion of the court clearly shows the facts of this case. Cited Coulson v. Harris, 43 Miss. 728 ; Rev. Code, 1857, p. 362; Story’s Eq. PL, § 28; 11 Yesey, 240; 12 ib. 477 ; 3 Swanst. 472 ; 3 Yesey & Bear. 99; 5 Madd. 442 ; 6 Johns. Ch. 46; Story’s Eq. Pl. 227; Rev. Code, 1857, p. 540, art. 2; and made, in argument, the following points: 1. Complainant has no legal right or demand against plaintiff in error. 2. He has an adequate remedy at law against all possible danger. 3. He is not threatened by the judgment creditors, but on the contrary, they refuse to revive against him. ■ 4. There is nothing in the proof or pleading to show that the estate of Whitworth is solvent, and that complainant can be made to respond. 5. Complainant seeks to subject equitable assets and has no return of execution nulla bona. 6. There is no privity between complainant and Mrs. Bowen. She is not responsible to him, but to the judgment creditor if to any one. 7. Complainant comes into equity with unclean hands ; a delinquent debtor, without excuse for his delinquency, pleading his laches as a ground for the intervention of a court of equity, demanding equity, yet not offering to do equity. 8. Because against the only party (Mrs. Bowen) to be affected by the decree, there is no fraud shown or even charged. 9. Because the prayer is inequitable and unconscientious. 10. Because E. L. Bowen is not shown to be insolvent, nor charged with a refusal, on his part, to pay the debt. 11. Because of the vague and uncertain amount in value of the property sought to be subjected for a vague and uncertain contingency anticipated. 12. Because the amount in controversy, which is an essential jurisdictional fact, no where appears in the bill. 13. The bill is multifarious. Story’s Eq. Plead. 274 and 280. The maxim in regard to co-sureties is ‘£ equality is equity among persons standing in the same situation.” Dening v. Earl of Winchelsea, 1 Lead. Cas. in Equity, 96 ; Sterling v. Forrester, 3 Bligh, 59; Craythorne v. Swinburne, 14 Yesey, 160-165; Meyhew v. Crickett, 2 Swanst. 189-192; McMahon v. Facocett, 2 Band. 514-529 ; Campbell v. Messieux, 4 Johns. Ch. 334. The object of this bill is to prevent such a disposal of real estate as would relieve it from liability and throw the whole burden of the debt on the co-surety, who is complainant. Bev. Code, 1857, p. 534, art. 261; Stevens v. Mangum, 27 Miss. 481; 2 Eden on Injunc. 339 and note ; 6 Madd. 10 ; 1 Story’s Equity Juris. 730 ; 2 ib. 825-827, and 872-841, and 905, 912, 954, 959. A surety, before be has paid any portion of the debt, may go into equity to restrain his principal from disposing of land so as to throw the whole burden of the debt upon him. McConnell v. Scott et al., 15 Ohio, 401. A surety may enforce payment out of the property of his insolvent principal in the hands of third persons before payment of the debt. Stamps v. Kogers, 4 Ohio, 533 ; Green et al. v. Crocket et ah, 2 Dev. & Batt. Eq. 390, 393. A surety can maintain a bill, quia timet, against his principal. Lee et al. v. Griffin et al., 31 Miss. 632. The question in this court is not, is the decree clearly right, but is it manifestly wrong? 2 Story’s Eq. Juris. 959 b ; Fox v. Matthews, 33 Miss. 433 ; Steadman v. Hollinan, ib. 550.","syllabus":"1. CO-SURETIES —INTERPOSITION OF EQUITY IN FAVOR 01 A SURETY AGAINST his oo-surety in oertain cases. —Where one of two sureties has made, or is about to make, secret or fraudulent dispositions of his property, so as to throw the burden of the debt on Ms co-surety, the principal debtor being insolvent, a court of chancery, on the application of the surety thus endangered, will restrain such disposition, or relieve against it if made. The same aid will be afforded to a surety as against his co-surety, which will be granted to a surety against his principal in such case.
2. Injunction —dissolution on bill and answer not decreed where JUSTICE REQUIRES INJUNCTION SHOULD BE RETAINED FOR THE COMING IN OF evidence. — A motion .to dissolve an injunction, resting on the answer only, before the proofs are in, is addressed very much to the sound discretion of the oourt; and, where the ends of justice will be better subserved by retaining the injunction until complainant has a fair opportunity to take testimony, it may be done, indulging complainant in no unnecessary delay.
"} {"case_name":"Andrews v. FremantleMedia, N.A.","case_name_full":"Jaered N. ANDREWS v. FREMANTLEMEDIA, N.A., Inc.","case_name_short":"Andrews","citation_count":0,"citations":["137 S. Ct. 201","196 L. Ed. 2d 131"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2016-10-03","date_filed_is_approximate":false,"id":8427420,"opinions":[{"ocr":true,"opinion_id":8397776,"opinion_text":"Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit denied.","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"andrews-v-fremantlemedia-na"} {"attorneys":"Darlene P. Lumpkin, Appellant pro se. Edward Joseph McNelis, III, Coreen Antoinette Bromfield, John David McChesney, Rawls & McNelis, PC, Richmond, Virginia, for Appellee.","case_name":"Lumpkin v. Torres","case_name_full":"Darlene P. LUMPKIN v. William TORRES, Doctor, and Miss FRYE, Nurse","case_name_short":"Lumpkin","citation_count":0,"citations":["112 F. App'x 305"],"court_full_name":"Court of Appeals for the Fourth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Fourth Circuit","court_type":"F","date_filed":"2004-11-09","date_filed_is_approximate":false,"id":8457247,"judges":"Duncan, Motz, Wilkinson","opinions":[{"ocr":true,"opinion_id":8428980,"opinion_text":"\nPER CURIAM.\nDarlene P. Lumpkin appeals the district court’s order denying relief on her 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Lumpkin v. Torres, No. CA-02-792-3 (E.D.Va. May 28, 2004). 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.\n\nAFFIRMED.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted Nov. 4, 2004.","precedential_status":"Published","slug":"lumpkin-v-torres"} {"attorneys":"Arthur H. Shay and Courtney Arthur, for appellant; Hollerich & Hurley and H. L. Richolson, for appellee.","case_name":"Swain v. Hoberg","case_name_full":"Elmira Swain v. William Hoberg","case_name_short":"Swain","citation_count":0,"citations":["317 Ill. App. 535"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1943-02-12","date_filed_is_approximate":false,"id":8883793,"judges":"Huffman","opinions":[{"author_str":"Huffman","ocr":true,"opinion_id":8869774,"opinion_text":" Opinion by Presiding Justice Huffman. Not to be published in full. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"swain-v-hoberg"} {"attorneys":"\n\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Grayson G. Kelley and Associate Attorney General E. Burke Haywood, for the State.\n, \nE. X. de Torres for defendant-appellant.\n","case_name":"State v. Grimes","case_name_full":"STATE OF NORTH CAROLINA v. WILLIE JAMES GRIMES","case_name_short":"Grimes","citation_count":0,"citations":["96 N.C. App. 489"],"court_full_name":"Court of Appeals of North Carolina","court_jurisdiction":"North Carolina, NC","court_short_name":"Court of Appeals of North Carolina","court_type":"SA","date_filed":"1989-12-05","date_filed_is_approximate":false,"id":8921000,"judges":"Parker, Phillips, Wells","opinions":[{"author_str":"Wells","ocr":true,"opinion_id":8909738,"opinion_text":"\nWELLS, Judge.\nIn one of his assignments of error, defendant contends that the in-court identification of defendant by Ms. Elliott was so tainted by “the pretrial identification procedure” as to deny defendant due process. “Identification evidence must be suppressed on due process grounds where the facts show that the pretrial identification procedure was so suggestive as to create a very substantial likelihood of irreparable misidentification.” State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985). (Citations omitted.)\nThe factors to be examined to determine the likelihood of irreparable misidentification include: (1) the opportunity of the witness to view the individual at the time of the event; (2) the *492witness’ degree of attention; (3) the accuracy of the witness’ prior description of the individual; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the event and the confrontation. Wilson, 313 N.C. at 529, 330 S.E.2d at 460. (Citations omitted.)\nAt the trial, upon defendant’s objection to allowing Ms. Elliott to testify as to her pretrial identification of defendant’s photograph, the trial court sustained the objection, however, at the State’s request allowed a voir dire examination of Ms. Elliott on the question of identification. This examination extended into the general area of the testimony of Ms. Elliott as to identification of the defendant as her attacker. Following the voir dire examination, the trial court entered extensive findings of fact which invoked and covered all of the factors set out in Wilson, and, after ordering that the photo identification be excluded, found and concluded that Ms. Elliott’s in-court identification of defendant was of independent origin based solely upon her observation of defendant at the time of the crime and was not tainted by any pretrial identification procedure that was so impermissibly suggestive as to lead to a mistaken identification.\nWhere findings of the trial court are supported by substantial competent evidence, they are binding on the appellate court. Wilson, 313 N.C. at 529, 330 S.E.2d at 460. (Citations omitted.)\nDefendant does not argue to us that the trial court’s findings in this case were not supported by substantial competent evidence, but suggests that Ms. Elliott’s identification testimony was contradictory. Such contradictions as may have appeared were properly resolved by the trial court in its findings and conclusions. This assignment is overruled.\nIn another assignment of error, defendant contends that the trial court erred in denying his motion to dismiss the first-degree rape charges. Defendant contends that the State failed to prove that vaginal intercourse had taken place or that defendant had employed or displayed a dangerous or deadly weapon as required by the statute. N.C. Gen. Stat. § 14-27.2 (1986) provides in pertinent part that:\n(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:\n*493(2)With another person by force and against the will of the other person, and:\na. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon.\nUpon defendant’s motion for dismissal, the question for the trial court is whether there is substantial evidence of each element of the offense charged and of the defendant’s being the perpetrator of the offense. If so, the motion is properly denied. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). (Citations omitted.) The evidence is to be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. Id. (Citations omitted.)\nIn this case, the victim testified that defendant had sexual intercourse with her on the couch and later in the bedroom. This testimony was sufficient to allow the jury to draw the reasonable inference that defendant had vaginal intercourse with the victim. The evidence was clear that the intercourse was by force and against the will of the victim. Ms. Elliott’s testimony that defendant threatened her with an open knife which she saw was sufficient to establish that defendant employed or displayed a dangerous or deadly weapon.\nThe trial court properly denied defendant’s motion to dismiss the rape charges. This assignment is overruled.\nIn a related assignment, defendant contends that the trial court erred in refusing to “consolidate” the rape charges. The evidence in this case showed two distinct acts of intercourse, both accomplished by force and over the repeated resistance of the victim. This was sufficient to support separate charges and convictions. See State v. Dudley, 319 N.C. 656, 356 S.E.2d 361 (1987) and State v. Small, 31 N.C. App. 556, 230 S.E.2d 425, cert. denied, 291 N.C. 715, 232 S.E.2d 207 (1977). This assignment is overruled.\nIn another assignment of error, defendant contends that the trial court erred in failing to submit to the jury the lesser included offense of second-degree rape in the rape charges. As we have previously noted, the State’s evidence in this case established all the constituent elements of first-degree rape. Defendant’s contention under this assignment is that there was “substantial doubt” *494that defendant employed or used a dangerous or deadly weapon. Any “doubt” on this issue was for the jury to resolve. There being no evidentiary basis on which to submit second-degree rape charges to the jury, the trial court properly denied defendant’s request. This assignment is overruled.\nDefendant has presented other arguments as to his rape convictions. We have carefully examined these arguments and have found them to be without sufficient merit to warrant discussion.\nDefendant has also assigned error to the trial court’s denial of his motion to dismiss the charge of first-degree kidnapping. He correctly contends that a defendant cannot be convicted of both first-degree rape and first-degree kidnapping when the rape is used to prove an element of the kidnapping charge. See, e.g., State v. Fisher, 321 N.C. 19, 361 S.E.2d 551 (1987). The trial court in this case corrected this error by arresting judgment on the first-degree kidnapping conviction and properly entering judgment and sentencing defendant for second-degree kidnapping. See State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986). This assignment is overruled.\nWe note that there has been included as an appendix to defendant’s brief a pro se brief prepared by defendant. We do not condone such practice in cases where a defendant is represented by counsel who has submitted an appropriate brief. We also note that defendant’s pro se brief does not present any questions or arguments not adequately present in the brief filed by his counsel.\nNo error.\nJudges Phillips and Parker concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-grimes"} {"case_name":"DuPont Glore Forgan, Inc. v. American Telephone & Telegraph Co.","case_name_full":"DuPont Glore Forgan, Inc. v. American Telephone & Telegraph Co.","citation_count":0,"citations":["439 U.S. 970"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1978-11-13","date_filed_is_approximate":false,"id":9020234,"judges":"Consideration, Took","opinions":[{"ocr":true,"opinion_id":9013436,"opinion_text":"\nC. A. 2d Cir. Certiorari denied.\nMr. Justice Powell took no part in the consideration or decision of this petition.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"dupont-glore-forgan-inc-v-american-telephone-telegraph-co"} {"attorneys":"Thomas Clayton Boone, Hays, KS, Gene E. Schroer, Schroer, Rice, P.A., Topeka, KS, for Leroy E. Cressler., Matthew L. Bretz, Gilliland & Hayes, P.A., Hutchinson, KS, for John Rapp Neuen-schwander, M.D., John Rand Neuenschwan-der, M.D.","case_name":"Cressler v. Neuenschwander","case_name_full":"Leroy CRESSLER v. John Rapp NEUENSCHWANDER, M.D., and John Rand Neuenschwander, M.D.","case_name_short":"Cressler","citation_count":0,"citations":["170 F.R.D. 20"],"court_full_name":"District Court, D. Kansas","court_jurisdiction":"Kansas, KS","court_short_name":"D. Kansas","court_type":"FD","date_filed":"1996-12-09","date_filed_is_approximate":false,"id":9049015,"judges":"Saffels","opinions":[{"author_str":"Saffels","ocr":true,"opinion_id":9042449,"opinion_text":"\n\nMEMORANDUM AND ORDER\n\nSAFFELS, Senior District Judge.\nThis is a medical malpractice action in which the plaintiff claims that the defendants were negligent and departed from standard medical care. Now before the court is the plaintiffs Amended Motion for Order to Allow Telephonic Depositions of Dr. Golitz, Dr. Dreiling and Dr. Gonzales (Doc. 109).\nThe plaintiff seeks an order allowing the taking of the depositions of Loren Golitz, M.D., Lyndah Dreiling, M.D., and Rene Gonzales, M.D. by telephonic means in order to reduce costs. Fed.R.Civ.P. 30(b)(7) provides that “[t]he parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone.” The plaintiff also asks the court to order that neither the plaintiffs counsel nor defense counsel be present in person with the witnesses when the depositions are taken. The plaintiff maintains that if either attorney attends the depositions in person, the other attorney will feel obliged to also appear in person.\nThe defendants do not object to the plaintiffs appearing and deposing the witnesses via telephonic means. The defendants ask, however, that they not be precluded from being present in person at the depositions.\nThe party seeking to depose a witness telephonieally must present a legitimate reason for its request. Jahr v. IU Int’l Corp., 109 F.R.D. 429, 431 (M.D.N.C.1986). The burden then shifts to the opponent to show why the deposition should proceed by a more traditional method. Id. at 431. The court must consider whether the use of telephonic means would reasonably ensure accuracy and trustworthiness, and whether the opposing party would be prejudiced. Rehau, Inc. v. Colortech, Inc., 145 F.R.D. 444, 447 (W.D.Mich.1993).\nThe plaintiff submits that Drs. Golitz, Dreiling, and Gonzales are located in Denver, Colorado, and that allowing him to depose the witnesses telephonieally would reduce the costs of taking the depositions. The court finds that the plaintiffs desire to save money constitutes a legitimate reason to conduct the depositions telephonieally. The defendants, however, claim that they would be prejudiced in several ways if precluded from personally attending the evidentiary depositions. The defendants assert that (1) they would be prevented from effectively evaluating the witnesses’ demeanor; (2) it would be difficult for the court reporter to accurately record everything said by the witnesses and attorneys; and (3) the defendants would be unable to examine files maintained by the witnesses.\nA party’s ability to see a key witness and judge his demeanor are important considerations in the decision to permit a telephonic deposition. Anguile v. Gerhart, Civ.A. No. 93-934 (HLS), 1993 WL 414665, at *3 (D.N.J. Oct. 7, 1993) (granting plaintiffs motion for initial telephonic deposition, provided that second deposition would be in person). On the other hand, telephonic depositions inherently lack face-to-face questioning, and to deny a request to conduct a telephonic deposition solely because of the opponent’s inability to observe the witness would be tantamount to repealing Fed. R.Civ.P. 30(b)(7). Jahr, 109 F.R.D. at 432. Similarly, the defendants’ second proffered reason for conducting the depositions in person, i.e., that it would be difficult for the court reporter to accurately record everything that is said, would seem to be no more persuasive in this case than in any other in which telephonic depositions are sought.\nThe defendants’ third reason for being present at the depositions, however, is *22more compelling. The defendants submit that it would be extremely difficult to identify, mark, and utilize the witnesses’ extensive medical records during a telephonic deposition, or to use medical articles and journals to cross-examine the witnesses. The existence of voluminous documents which are central to a case may preclude a telephonic deposition. Fireman’s Fund Ins. Co. v. Zoufaly, No. 93 Civ. 1890 (SWK), 1994 WL 583173, at *1 (S.D.N.Y. Oct. 21, 1994); see also Mercado v. Transoceanic Cable Ship Co., CIV.A. No. 88-5335, 1989 WL 83596 (E.D.Pa. July 25, 1989).\nThe court finds that the best solution in this case is to grant the plaintiffs motion for an order allowing the taking of the depositions of Drs. Golitz, Dreiling, and Gonzales by telephonic means, but to deny the plaintiffs request that the court order that neither plaintiffs counsel nor defense counsel attend the depositions in person. The plaintiff has provided the court with no authority, and the court has located none, which would restrain the defendant from being present during these depositions. See 4A James W. Moore, Moore’s Federal Practice 1130.09[5], at 30-114 n. 20 (2d ed. 1998) (Rule 30(b)(7) does not specify that a party may not be present during a telephonic deposition; so long as the voices of all the participants are transmitted, the deposition may fairly be characterized as taken by telephone under the rule). “[I]f the party seeking the deposition is prepared to conduct its portion without a face-to-face encounter with the witness, there is no reason not to permit it to do so, with any other party free to question the witness in person, thus avoiding any prejudice while reducing expenses.” Fireman’s Fund, 1994 WL 583173, at *1; see also Jahr, 109 F.R.D. at 432 n. 4 (where plaintiff lacked financial resources and defendant was concerned about lack of face-to-face questioning, procedure by which plaintiff took deposition over the telephone and defendant appeared in person “would eliminate all of defendants [sic] concerns and still accommodate plaintiffs desires as well”).\nIT IS THEREFORE BY THE COURT ORDERED that the plaintiffs Amended Motion for Order to Allow Telephonic Depositions of Dr. Golitz, Dr. Dreiling and Dr. Gonzales (Doc. 109) is granted in part and denied in part. The plaintiffs motion for an order allowing telephonic depositions of Drs. Golitz, Dreiling, and Gonzales is granted. The plaintiffs motion for an order that neither party’s counsel be present in person when the depositions are taken is denied.\nIT IS FURTHER ORDERED that the plaintiffs Motion for Order to Alow Telephonic Depositions of Dr. Golitz, Dr. Dreiling and Dr. Gonzales (Doc. 108) is denied as moot.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cressler-v-neuenschwander"} {"attorneys":"John M. Smith, Jr., of Philadelphia, Pa., for plaintiff., James J. Leyden and Bernard G. Segal, for Schnader & Lewis, both of Philadelphia, Pa., for defendant.","case_name":"Clay v. Motor Freight Express, Inc.","case_name_full":"CLAY v. MOTOR FREIGHT EXPRESS, Inc.","case_name_short":"Clay","citation_count":0,"citations":["52 F. Supp. 948"],"court_full_name":"District Court, E.D. Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"E.D. Pennsylvania","court_type":"FD","date_filed":"1943-12-09","date_filed_is_approximate":false,"id":9342596,"judges":"Kalodner","opinions":[{"author_str":"Kalodner","ocr":true,"opinion_id":9337960,"opinion_text":"\nKALODNER, District Judge.\nThis is a suit for overtime compensation brought under the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., as amended, and tried before me without a jury.\nThe defendant, as indicated by its name, was engaged in the transportation business, and the plaintiff was employed by it as a rate clerk.\n*949The defendant admittedly engaged in interstate commerce and the plaintiff’s duties were admittedly such that he was engaged in interstate commerce.\nOnly two factual questions are in dispute. First, the provisions of the contract under which the plaintiff was first employed; and, second, whether or not upon a date during the employment a new contract of employment was entered into upon different terms as to hours and wages.\nThe plaintiff’s employment commenced on February 21, 1941, and ended September 16, 1941.\nThe plaintiff testified that he was originally engaged at a salary of $35 per week for a fifty-hour week, with overtime at the rate of time and a half for any hours worked in excess of 50 hours; and that he entered into this arrangement with Mr. Matthews, the District Manager of the defendant.\nMatthews, however, testified upon this score that there was no agreement for payment for overtime, nor fop a fifty-hour week; but the agreement was that the plaintiff would receive $35 a week no matter how many hours he worked.\nIt developed during the course of the testimony that until a change was made in the employment contract on May 26, 1941, the plaintiff regularly received his pay check in the amount of $35 (less deductions for Social Security Taxes and Philadelphia Income Tax) and never complained about the defendant’s alleged failure to compensate him for overtime beyond fifty hours per week.\nNotwithstanding, the plaintiff testified ■that he had each week turned in a report •of the hours worked to his superior, and that that report showed that he worked -well in excess of fifty hours each week.\nIt seems unlikely to me that the -plaintiff would have remained silent if the ■verbal employment agreement had called for overtime beyond fifty hours per week, .and the defendant (employer), beginning with the very first week, had consistently failed to pay such overtime. On this phase ■ of the case, I credit the defendant’s version of the agreement, and shall find that the employment was at the rate of $35 per week without any agreement for overtime . compensation.\nThe other disputed phase of the case re- ' lates to the alleged new contract of hire of iMay 26, 1941. Matthews testified for the defendant that on May 26, 1941, he had a conversation with the plaintiff in which he advised him that henceforth the basis upon which the plaintiff was to be paid would be as follows: the plaintiff would receive 350 per hour for the first forty hours worked each week; 530 for each hour in excess of forty (i. e. time and a half for overtime), with a guaranteed minimum of $35 per week. Matthews testified that he arrived at these figures by ascertaining that up to that time, the plaintiff had worked about eighty hours per week; whereupon he so sub-divided the eighty hours and the straight pay and overtime pay that the result would be, on the one hand, that the plaintiff would still receive $35 a week, but that the provisions of the Fair Labor Standards Act, with respect to time and a half for all hours in excess of forty hours per week, would be complied with.\nThe plaintiff denied that Mr. Matthews had told him what has just been related', but the plaintiff did admit that he had initialed a letter received by Matthews from his superiors in the defendant company, and shown to him (the plaintiff) by Matthews.\nThe letter reads as follows:\n“Motor Freight Express, Inc.\nInter-Office Correspondence\nOffice York, Penna.\nDate May 23, 1941.\nMr. J. H. Matthews,\nPhiladelphia.\nDear Mr. Matthews:\nIn the future, please show the hours., worked by E. Clay, the rate of pay, and the overtime pay; also the hours for the watchman and any other employee who is not directly connected with the handling of freight, supervision thereof, or chauffeuring. If only the salary is shown, it is taken for granted that is the salary for 40 hours and if the employee so desires, he may claim for time and one-half for all in excess of the 40-hour period. Even though the employee does not wish to make such claim, the Government may make this claim on behalf of the employee. Therefore it is of the utmost importance that your payroll sheet conform to this schedule in every detail. At the present time, I do not know if Mr. Keyser is doing any clerical work or not, but if he is doing any office detail he will also come under the Wage and Hour Law and hours must be shown for the time worked and the rate of *950pay on which he is based. If there is any question whatsoever, please contact me at once as this must be made out properly next week.\nVery truly yours,\ns/ W. C. Keckley\nW. C. Keckley\nWCK/mcw”\n(written in red pencil) Mr. Matthews\nNoted—\nEJC\n5/26/41.\nFrom May 27th on (this is not disputed) the defendant company kept records of the plaintiff’s straight time and overtime hours of work, and to his weekly pay checks were attached vouchers showing the breakdown between straight time and overtime compensation.\nThe fact that the plaintiff initialed the letter of May 23d and that from May 27th on, the vouchers showing the breakdown in hours were attached to the plaintiff’s pay checks, convinces me that there was a change in the employment contract between the parties such as was testified to by Mr. Matthews.\nOmitting from consideration the contention of the defendant that the plaintiff was an executive employee, and therefore exempt from the overtime pay provisions of the Act (the defendant abandoned this position in its brief), it appears evident that the plaintiff was denied overtime pay from February 26, 1941 to May 27, 1941, and is entitled to recover overtime compensation for that period (during which, as the testimony shows, he worked a fluctuating work week) under the standards set down in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682, and Cohn v. Decca Distributing Corp., D.C., 50 F.Supp. 270.\nThere remains for consideration the question whether the plaintiff is entitled to any recovery for the period from May 27, 1941, to September 16, 1941, when the employment ended.\nI conclude that the plaintiff is not entitled to any recovery for this period. The rate of pay per hour was not less than the minimum, nor the straight time hours in excess of the maximum, fixed in the Act.\nDuring this period, the plaintiff received time and a half for overtime beyond forty hours and was paid in accordance with the arrangement testified to by Matthews. I have no doubt that the purpose of the arrangement was to permit the defendant to comply with the minimum wages, maximum hours and overtime compensation provisions of the Act, without increasing plaintiff’s total weekly compensation; “But nothing in the Act bars an employer from contracting with his employees to pay them the same wages that they received previously, so long as the new rate equals or exceeds the minimum required by the Act”. Walling v. A. H. Belo Corp., 316 U.S. 624, 630, 62 S.Ct. 1223, 1226, 86 L.Ed. 1716.\nUpon consideration of the Bill of Complaint as amended and Answer thereto, and after hearing the testimony of the witnesses and arguments of counsel, I make the following findings of fact:\n1. The defendant, Motor Freight Express, Inc., is a common carrier engaged in the transportation of goods in intrastate and interstate commerce by motor truck.\n2. The plaintiff, E. J. Clay, was in the employ of the. defendant at its Philadelphia office and terminal from February 21, 1941, to September 16, 1941, in the capacity of rate clerk.\n3. The plaintiff’s duties were such that he was engaged in interstate commerce.\n4. During the time plaintiff was in the employ of defendant, he worked a varying number of hours each week, ranging from 53% to 78% hours per week.\n5. On February 21, 1941, plaintiff and defendant entered into an oral contract of employment under the provisions of which plaintiff agreed to work for the defendant at a weekly wage of $35 and a fluctuating work week, and this agreement remained in force until May 26, 1941.\n6. During the period from February 22, 1941 to May 27, 1941, the plaintiff received $35 each week and worked overtime without receiving overtime pay therefor.\n7. On May 26, 1941, plaintiff entered with defendant into a new agreement of employment under the provisions of which plaintiff was to receive 35^ per hour for the first forty hours of work, 53f! per hour for each hour over forty, with a guaranteed minimum of $35 per week. This arrangement was adhered to by the parties and the plaintiff received payment on the said basis until the end of his employment on September 16, 1941.\n8. The following schedule shows the amount of hours worked each week by the *951■plaintiff for the period ending May 26, 1941, the fluctuating rate of pay for each week, and the overtime compensation to which the plaintiff is entitled:\nSchedule “A”\nWeek of Rec’d Hours Worked Reg. rate per hour For 40 hrs Over time Total Less Rec’d Balance\n2/26-3/4/41 35.00 H 78% = = .447 17.90 25.65 43.55 35.00 8.55\n3/5 -3/11 35.00 : 73% ‘ .474 18.98 24.03 43.01 35.00 8.01\n3/12-3/18 35.00 ' 76% ‘ .456 18.24 25.14 43.38 35.00 8.38\n3/19-3/25 35.00 : 72% 1 ‘ .484 19.38 23.43 42.81 35.00 7.81\n3/26-4/1 35.00 68% ‘ ‘ .511 20.44 21.84 42.28 35.00 7.28\n■4/2 -4/8 35.00 : 7234 ‘ .481 19.24 23.64 42.88 35.00 7.88\n4/9 -4/15 35.00 : 76% ■ ‘ .457 18.30 25.05 43.35 35.00 8.35\n4/16-4/22 35.00 : 69% 1 ‘ .504 20.15 22.28 42.43 35.00 7.43\n4/23-4/29 35.00 : 71% ' ‘ .488 19.51 23.24 42.75 35.00 7.75\n4/30-5/6 35.00 : 71% 1 ‘ .488 19.51 23.24 42.75 35.00 7.75\n5/7 -5/13 35.00 : 77% ' ‘ .453 18.12 25.32 43.44 35.00 8.44\n5/14-5/20 35.00 : 75 ‘ -46% 18.67 24.50 43.17 35.00 8.17\n5/21-5/27 35.00 1 71 ‘ .493 19.72 22.92 42.64 35.00 7.64\nTotal $103.44\nI state the following conclusions of law:\n1. Plaintiff’s duties were such that he was engaged in interstate commerce within the meaning of that term as used in the Fair Labor Standards Act.\n2. From February 21, 1941, until the week ending May 27, 1941, plaintiff was not paid in accordance with the provisions •of the Fair Labor Standards Act and the appropriate regulations of the Wage and Hour Administrator.\n3. Accordingly, between February 26, 1941 (the date from which plaintiff makes claim) and May 27, 1941, plaintiff should have received each week a sum computed as follows:\nEach week, the fixed weekly wage of $35 should have been divided by the hours worked that week, thus determining the regular hourly rate for that week; the regular hourly rate should then have been paid for the first forty hours and time and a half the regular rate for the hours worked in excess of forty. Thus during the period from February 26, 1941 to May 27, 1941, plaintiff worked an excess of 435 hours for which he was entitled to receive, but did not receive, overtime compensation in the sum of $103.44 as shown by the calculations on the Schedule following the eighth Finding of Fact.\n4. After May 27, 1941, plaintiff was •compensated pursuant to the contract entered into between him and defendant on May 26, 1941, providing that plaintiff should thereafter be paid at the rate of 35ji per hour for the first forty hours of work, 53^ per hour for each hour over forty, with a guaranteed minimum of $35 per week.\n5. This contract of May 26, 1941, between plaintiff and defendant pursuant to which plaintiff was paid at the rate of 35^ per hour for the first forty hours, 53^ per hour for each hour over forty, with a guaranteed minimum of $35 per week after May 27, 1941, complied with the requirement of Section 7(a) of the Fair Labor Standards Act, in that he was paid a straight-time hourly rate for the first forty hours of work, time and one-half that rate for the hours over forty, with a guaranteed minimum of $35 per week.\n6. Plaintiff is not entitled to recovery for the period from May 27, 1941 to September 16, 1941 since he admittedly did not work in excess of eighty hours a week.\n7. In addition, plaintiff is entitled to receive from defendant, and defendant shall pay to plaintiff in accordance with the provisions of Section 16 of the Act, (a) overtime compensation in the sum of $103.-44 as set forth in Conclusion of Law No. 3; (b) an additional equal amount as liquidated damages; and (c) attorneys fees in the sum of $75; a total of $281.88. Defendant shall also pay the cost of the action.\nAn order for judgment may be submitted in accordance with this opinion.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"clay-v-motor-freight-express-inc"} {"case_name":"State v. Nakamura","case_name_short":"Nakamura","citation_count":12,"citations":["581 P.2d 759","59 Haw. 378"],"court_full_name":"Hawaii Supreme Court","court_jurisdiction":"Hawaii, HI","court_short_name":"Hawaii Supreme Court","court_type":"S","date_filed":"1978-07-28","date_filed_is_approximate":false,"id":1289244,"judges":"Richardson, C.J., and Kobayashi, Ogata, Menor and Kidwell","opinions":[{"ocr":false,"opinion_id":1289244,"opinion_text":"\n581 P.2d 759 (1978)\nSTATE of Hawaii, Plaintiff-Appellee,\nv.\nDennis Minoru NAKAMURA, Defendant-Appellant.\nNo. 6258.\nSupreme Court of Hawaii.\nJuly 28, 1978.\n*760 Marie N. Milks, Deputy Public Defender, Honolulu, for defendant-appellant.\nLee Nakamura, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.\nBefore RICHARDSON, C.J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.\n*761 MENOR, Justice.\nThis is an appeal from a revocation of probation. The defendant, after pleading guilty to burglary in the second degree, was placed on probation by the circuit court for a period of five years. A special condition of probation was that he should remain in Habilitat until he was clinically discharged. The defendant was a resident of Habilitat at the time of sentencing; however, seventeen days after he was placed on probation, he left the center without clinical authorization. He explained to his probation officer that his mother was having financial problems and he wanted to get a job to help her. The State thereafter moved for revocation of his probation. The motion was denied, but the circuit court amended the terms of probation by adding the condition that the defendant serve six months in the Halawa Correctional Facility. A further condition was:\nThat upon Defendant's release from the Halawa Correctional Facility, Defendant is to enter and remain in Habilitat until clinically discharged.\nThe defendant served six months at Halawa as directed and was released from custody on March 25, 1976, when his mother and brother came to take him home. Prior to his discharge he had apprised his Halawa counselor and the Habilitat representative, a Mr. Henry Perritt, of his desire to spend up to ten hours with his mother before reporting to Habilitat. The problem was that Habilitat would have none of this. The very same day the defendant was discharged from Halawa, Mr. Perritt wrote to the judge:\nThis letter is in regard to our decision to reject Dennis Nakamura as a resident in the Habilitat Program.\nAt the time of Dennis' impending release from Halawa Correctional Facility he was told that when released he should come directly to the Habilitat Induction Center. Dennis stated that he wished to visit with his mother prior to entering the Habilitat but we explained that if he did so we would not be able to accept him into the program. On a later visit we advised Dennis that we would pick him up from Halawa when he again stated that he wanted to go home first, again we explained our position and told him that he would not be accepted into the program on those terms. Unfortunately Dennis decided that he would rather spend some time with his mother than make a serious effort to change his life. (Emphasis added)\nHabilitat's rejection of the defendant as a resident was based on unreasonable and arbitrary grounds. The short visit the defendant desired with his family was not unreasonable. There was nothing to indicate that either his relationship with his mother or the home environment was such that the visit with her would have been detrimental to his rehabilitation. After being confined for six months, it was only natural that he and his mother would want to spend some time together, however brief that period might be, before he was again compelled to take up residence elsewhere. The bonds of familial love and society are extremely important in promoting development and maturity in an individual. Such relationships are to be encouraged as a meaningful tool in the rehabilitative process. It is incomprehensible to us, therefore, that Habilitat should have taken the rigid stance that it did. There is nothing in the record to show that it could not have accommodated the defendant's wishes without material effect to its program. Conditions imposed by a court upon granting probation must be reasonable. HRS § 706-624. *762 It ought not to be expecting too much of a private agency to be guided by similar considerations, at least where it chooses to participate in court-approved programs.\nHRS § 706-624(4) mandates that the defendant \"be given a written copy of any requirements imposed [as a condition of probation], stated with sufficient specificity to enable him to guide himself accordingly.\" And where the time for performance of a condition of probation is not otherwise expressly specified by order of the court or by statute or rule, such a condition shall be performed within a reasonable time. Cf. State v. Huggett, 55 Haw. 632, 525 P.2d 1119 (1974). The defendant reasonably believed that under the court's decree, he could spend a few hours with his mother before reporting to Habilitat. And while a valid argument could be made that the language of the trial court's special condition required that the defendant proceed immediately and directly to Habilitat upon his discharge from Halawa, such an interpretation is not absolutely compelled. Certainly, it cannot seriously be argued that had Habilitat chosen to accept the defendant for enrollment the day after or several days after his discharge from Halawa, the defendant would nonetheless have been in violation of the terms of his probation. Moreover, there is nothing in the record to show that the court, at the time it imposed its special condition, was even aware of the existence of the so-called Habilitat \"house rule\" which was applied to the defendant.\nThe court may revoke a defendant's probation only where it is satisfied \"that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of [probation].\" HRS § 706-628(1). The defendant's enrollment at Habilitat, following this brief visit, was made impossible by Habilitat's arbitrary rejection. Cf. State v. Moretti, 50 N.J. Super. 223, 141 A.2d 810 (1958). Under these circumstances, there is a serious question as to whether the defendant inexcusably failed to comply with the special condition of probation. At no time did the defendant express any unwillingness to comply with the special condition imposed by the court. There was no wilful and deliberate attempt on his part to circumvent the order of the court.\nMoreover, except for his inability to gain admittance to Habilitat, his conduct after discharge from Halawa was entirely consistent with the rehabilitative objectives of probation. He was discharged from Halawa on March 25, 1976, which was a Thursday. The following day he contacted Drug Addiction Services of Hawaii (D.A.S.H.) to request counseling and urinalysis screens. He also began reporting to his probation officer every Thursday as directed. On April 1, 1976, he began receiving regularly scheduled counseling and treatment at the D.A.S.H. center. Subsequent random urine surveillance tests conducted by D.A.S.H. for possible illicit narcotic use consistently showed negative results. On April 21, 1976, he became regularly employed. The court's own probation officer knew and apparently approved of the defendant's activities. These activities were not \"post-sentencing conduct was wilfully and deliberately subversive of exemplary probationary behavior.\" State v. Huggett, supra at 639.\nRelative to his progress at D.A.S.H., Ms. May Goya, counseling supervisor, wrote to the court that in her professional judgment, the defendant had reevaluated his direction in life and appeared to be in the process of acquiring a new set of values. His counselor at Halawa, Ms. Jan Langtry, recommended that the defendant \"be allowed probation to continue treatment with D.A.S.H., and remain employed within the community.\" And his probation officer, Robert K.Y. Chang, recommended that the special condition of his probation requiring him to participate in the Habilitat program be revoked, because it was believed by the probation department that the defendant could function satisfactorily in the community with outpatient service from Drug Addiction Service of Hawaii and probation supervision. Mr. Chang in his report explained the reasons for his recommendation:\nSince being released from Halawa Correctional Facility on March 25, 1976, the *763 Defendant has been receiving treatment every Thursdays at the Drug Addiction Service of Hawaii (DASH) beginning April 1, 1976, working at Royal Automotive Service Company as a body and fender helper, and reporting for his probation every Thursday.\nInasmuch as he has been following all the instructions from his probation officer of seeking treatment, working, and reporting for his probation, plus the fact that he served six months in jail for leaving Habilitat, a recommendation will be made that the Defendant's probation not be revoked.\nAnd while we assume, as we must, that the trial court had good reason for wanting the defendant to enter and remain in Habilitat until clinically discharged, it was an abuse of discretion for it not to consider reasonable alternative conditions of probation. Such an alternative could have been the program sponsored by the Drug Addiction Services of Hawaii.[1] In this connection, Ms. Goya wrote to the court:\nI feel that he could benefit greatly be (sic) being allowed the opportunity to continue participating in the D.A.S.H. program. Our treatment plan for him is to continue supportive one-to-one counseling, and also participate in group therapy. Mr. Nakamura has been very cooperative and receptive to suggestions regarding treatment. My recommendation is that he be allowed the opportunity to continue treatment at D.A.S.H. We will, of course, continue urine surveillance and cooperate with the probation office.\nWe think that the action of the trial court in revoking probation and requiring the defendant to serve five years at the Hawaii State Prison, simply because he could not be admitted to Habilitat, was unduly harsh under the circumstances. Revocation was grossly disproportionate to the alleged misconduct of the defendant. He had already served six months in Halawa Jail. There were reasonable alternatives to Habilitat available. His overall probationary conduct following his discharge was other than \"wilfully and deliberately subversive of exemplary probationary behavior.\" The thrust of the following statement from State v. Huggett, supra, is particularly appropriate in this case:\n\"Even absent a completely satisfactory showing of justification for the defendant's overall conduct, a term of imprisonment as a special condition of probation, if at all warranted, should be commensurate with the ends of justice sought to be attained, considering the best interests of both the public and the defendant.\" 55 Haw. at 639, 525 P.2d at 1124.\nReversed and remanded for further proceedings consistent herewith. Upon remand the trial court, if it deems it advisable, may consider continued treatment at the Drug Addiction Services of Hawaii as a special condition of probation.\nNOTES\n[1] We also assume that Habilitat was not in receipt of public funds and that it could not have been required by the court to accept the defendant for residency.\n\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"state-v-nakamura"} {"case_name":"Virginia C. Tobin v. Haverford School","citation_count":0,"citations":["118 F.3d 1578"],"court_full_name":"Court of Appeals for the Third Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Third Circuit","court_type":"F","date_filed":"1997-06-24","date_filed_is_approximate":false,"id":743771,"opinions":[{"download_url":"http://bulk.resource.org/courts.gov/c/F3/118/118.F3d.1578.96-1787.html","ocr":false,"opinion_id":743771,"opinion_text":"118 F.3d 1578\n Virginia C. Tobinv.Haverford School\n NO. 96-1787\n United States Court of Appeals,Third Circuit.\n June 24, 1997\n \n Appeal From: E.D.Pa. ,No.94cv00513 ,\n Robreno, J., 936 F.Supp. 284\n \n \n 1\n Affirmed.\n \n ","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"virginia-c-tobin-v-haverford-school"} {"case_name_full":"United States v. Robert Phibbs (92-5509) Victor Rojas (92-5512/92-5523) Diane Whited (92-5521) Robert Dale Murr (92-5522/92-5730) Raymond Huckelby (92-5529)","citation_count":147,"citations":["999 F.2d 1053"],"court_full_name":"Court of Appeals for the Sixth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Sixth Circuit","court_type":"F","date_filed":"1993-10-04","date_filed_is_approximate":false,"id":612140,"opinions":[{"download_url":"http://bulk.resource.org/courts.gov/c/F2/999/999.F2d.1053.92-5529.92-5730.92-5523.92-5521.92-5512.html","ocr":false,"opinion_id":612140,"opinion_text":"999 F.2d 1053\n 38 Fed. R. Evid. Serv. 881\n UNITED STATES of America, Plaintiff-Appellee,v.Robert PHIBBS (92-5509); Victor Rojas (92-5512/92-5523);Diane Whited (92-5521); Robert Dale Murr(92-5522/92-5730); Raymond Huckelby(92-5529), Defendants-Appellants.\n Nos. 92-5509, 92-5512, 92-5521 to 92-5523, 92-5529 and 92-5730.\n United States Court of Appeals,Sixth Circuit.\n Argued June 7, 1993.Decided Aug. 5, 1993.Rehearing and Suggestion for Rehearing En Banc Denied inNos. 92-5522 and 92-5730 Oct. 4, 1993.\n \n James E. Arehart, Asst. U.S. Atty., Karen K. Caldwell, U.S. Atty., Frances E. Catron, Asst. U.S. Atty. (argued and briefed), Office of U.S. Atty., Lexington, KY, Jacquelyn A. Jess, Asst. U.S. Atty., Office of U.S. Atty., Covington, KY, for plaintiff-appellee U.S.\n Andrew M. Stephens (argued and briefed), Lexington, KY, for defendant-appellant Robert William Phibbs.\n Fred E. Peters (argued and briefed), Lexington, KY, for defendant-appellant Victor Manuel Rojas.\n David R. Marshall (argued and briefed), Lexington, KY, for defendant-appellant Diane Whited.\n Ann C. Short (argued), Herbert S. Moncier (briefed), Knoxville, TN, for defendant-appellant Robert Dale Murr.\n Derek G. Gordon (argued and briefed), Anggelis, Philpot, Gordon, & Simpson, Lexington, KY, for defendant-appellant Raymond Eugene Huckelby.\n Before: GUY and SUHRHEINRICH, Circuit Judges, and DOWD, District Judge.*\n RALPH B. GUY, Jr., Circuit Judge.\n \n \n 1\n Defendants, Raymond Huckelby, Diane Whited, Robert Phibbs, Victor Rojas, and Robert Murr appeal their convictions arising from their participation in a cocaine distribution ring operating in Tennessee and Kentucky. In addition, Phibbs and Rojas challenge the appropriateness of their sentences.\n \n \n 2\n Huckelby takes issue with the sufficiency of the evidence supporting his convictions. Along with the other defendants, he also expressly adopts and incorporates by reference all common issues raised by his co-defendants.\n \n \n 3\n Whited raises the following allegations of error: (1) her convictions were not based upon sufficient evidence; (2) the district court should have granted a mistrial as a result of prejudicial statements made by a government witness; (3) the court should have severed a co-defendant who was tried in absentia; (4) the government was improperly permitted to elicit certain evidence that was prejudicial to the defense; (5) two key government witnesses should have been declared incompetent to testify; and (6) the court unduly restricted her ability to cross-examine a government agent.\n \n \n 4\n Phibbs alleges that: (1) the district court's approach to the voir dire of the jury venire was in error; (2) two government agents were improperly allowed to remain in the courtroom throughout the proceedings, despite the fact that they served as witnesses; (3) the evidence underlying his convictions was insufficient; and (4) he should have been afforded a reduction in sentence due to his acceptance of responsibility for his offenses, as well as for his \"minimal\" role in the drug distribution ring.\n \n \n 5\n Rojas argues the following points: (1) the government misused both its grand jury and its administrative subpoena powers; (2) the district court erroneously denied both his motion in limine to suppress evidence of his Colombian origins, as well as his mistrial motion predicated upon prejudicial references to his Colombian ties; (3) he was not provided with a \"photospread\" used by a government witness in her pre-trial identification of him; (4) he was improperly deprived of confidential presentence information; and (5) the district court should have given him a reduction in sentence due to his acceptance of responsibility for his offenses.\n \n \n 6\n Murr contends that: (1) the government breached the terms of a pre-existing plea agreement with him, leading to his prosecution in the instant case; (2) the evidence presented at trial was insufficient to sustain his convictions; (3) the district court erred in denying him a bill of particulars in relation to his continuing criminal enterprise charge, as well as in refusing to give the jury special instructions requested by him; and (4) the government failed to turn over vital Brady and Jencks Act evidence to the defense.\n \n \n 7\n We affirm the convictions and the sentences of all five defendants.\n \n I.\n \n 8\n On February 23, 1990, Jerry Parks was detained by agents of the FBI in Nashville, Tennessee, in connection with an ongoing drug investigation. After discussions with the government, he agreed to cooperate in the probe.\n \n \n 9\n Parks revealed that his friend, Robert Murr, had visited him a number of times during the summer of 1988 when Parks was residing in a federal \"halfway house\" in Bowling Green, Kentucky. On some of those occasions, Murr would deliver cocaine to him to sell. Murr wanted Parks to come to Knoxville, Tennessee, to work for him in his drug distribution venture. He directed Robert Phibbs, who was on the payroll of one of Murr's legitimate businesses, Automotive Enterprises, to write a letter to Parks' federal probation officer requesting that he be allowed to transfer to the Knoxville area. Murr told Phibbs to promise the probation authorities that Parks would be provided with a job at Automotive Enterprises. His efforts were rewarded, and Parks was permitted to move to Knoxville.\n \n \n 10\n Parks' position at Automotive Enterprises was a subterfuge; he actually spent his time helping Murr distribute cocaine. In August of 1988, Murr arranged to sell four kilograms of cocaine to Billie Dye and David Hurt. Parks and Dye gathered approximately $100,000 in cash and, pursuant to Murr's instructions, started out for Lexington, Kentucky, where they were to meet with Murr. The pair had car trouble, however, and arrived in Lexington several hours late. After checking into a hotel, Parks called Murr's ex-wife, Judy, the following morning for guidance as to what to do next. Based on his conversation with her, he and Dye returned to Knoxville, where the transaction was consummated the next day.\n \n \n 11\n Beginning in September of 1988, Parks travelled with Murr and another drug dealer named Tommy McKeehan to the Lexington area every few weeks to obtain multi-kilogram quantities of cocaine. During the first such trip, Parks became acquainted with Murr's drug source, Kenneth Lawson. Whenever Murr needed cocaine, he went with McKeehan to a pay telephone and called Lawson. After a deal had been struck, Murr, Parks, and McKeehan would meet at Judy Murr's residence early in the morning before leaving for Kentucky. Murr and McKeehan would then organize the money to be used in the sale into $1,000 bundles, putting these stacks in brown paper bags.\n \n \n 12\n Aside from taking part in these trips, Parks served as the \"front man\" for the drug distribution ring. Murr introduced Parks to his regular cocaine customers, including Raymond Huckelby and Edward Rogers. At such meetings, Murr would instruct Parks with regard to the amount of cocaine to be supplied, the price of the drug, and how often it was to be furnished. He would then tell Parks and the purchaser to exchange telephone numbers, beeper numbers, and beeper codes in order to stay in contact. For several months, Parks delivered drugs to Murr's customers in this fashion. When Murr was unavailable, Parks would turn over the money he received in return to either Phibbs or to Judy Murr.\n \n \n 13\n In October of 1988, Parks first encountered Victor Rojas while on one of the excursions to Kentucky he made with Murr and McKeehan to buy cocaine. Rojas, who was Lawson's supplier, brought the drugs to the location where the sale would take place. He usually drove a red Jeep, hiding the drugs in the back inside one or more shopping bags, and wrapped in separate kilogram packages. The bags were covered in coffee grounds to mask the odor of the cocaine.\n \n \n 14\n Parks, Murr, and McKeehan would either give their money to Lawson or would leave it in Rojas' vehicle, taking the cocaine for which they had paid. McKeehan would then be given his share. After the drugs were driven back to Knoxville, Parks and Murr stashed them at the house Murr rented for his girlfriend, Diane Whited. She stored the cocaine in the attic in a green duffel bag with a padlock on it. In order for Parks to get the cocaine from Whited's house to distribute, he would have to contact Murr who, in turn, would call Whited to set up a time for the two of them to come over. Parks went to Whited's residence 15 to 20 times in the fall of 1988 to pick up drugs. On at least one occasion, Whited assisted Murr and Parks in breaking down the cocaine into salable quantities.\n \n \n 15\n Keeping the cocaine at Whited's house proved to be unworkable because Parks needed ready access to the stash, and Murr would not let Parks enter the house without him. At the end of November of 1988, Murr told Parks to bury the cocaine in a pipe on the side of a hill behind Automotive Enterprises. The only person besides Parks who knew exactly where the drugs were hidden was Phibbs.\n \n \n 16\n The drug distribution ring was so successful that Murr and Lawson talked about what should be done with the rather substantial profits. Murr recognized that he could \"launder\" some of the funds through his business partner, Ernie Nicely. The companies that he had established with Nicely were not doing well, so Murr began to funnel money to him to keep them afloat. Nicely understood that the bulk of this money was derived from drug sales.\n \n \n 17\n After November of 1988, Murr no longer wanted to accompany Parks and McKeehan to Kentucky to obtain cocaine. Consequently, he sent the two of them alone to complete deals in February, March, April, and May of 1989. Around the time of the May transaction, Rojas began to get nervous about the way in which the meetings were scheduled. He approached McKeehan and gave him a slip of paper with a telephone number on it, imploring him and Parks to contact him directly in the future. When they returned to Knoxville, McKeehan asked Murr whether it would be permissible to bypass Lawson in light of Rojas' overtures. Murr indicated that this was acceptable to him. Approximately 10 days later, Parks and McKeehan set up a transaction with Rojas in the manner he suggested.\n \n \n 18\n Shortly thereafter, on May 22, 1989, the Knoxville police arrested Parks for burglary. He was wounded while in the process of being apprehended. The authorities subsequently seized a set of electronic scales and six address books from him. One of these books contained records of Parks' drug-related activities that month, and included a coded list of some of Murr's customers, as well as a description of the drug ring's cocaine inventory.\n \n \n 19\n Despite Parks' arrest, the drug ring continued to operate. Jim Hurt soon took over some of Parks' functions, delivering cocaine for Murr to Edward Rogers, and possibly others. However, when Rogers complained about the poor quality of the cocaine that Hurt was selling him, Murr began to personally supply Rogers. This continued until August of 1989, when Murr himself was arrested on federal drug charges. Afterwards, Phibbs tried to collect money from Rogers which he claimed Rogers owed Murr for drugs.\n \n \n 20\n On April 11, 1990, Vivian Cummins observed three men sitting inside the Berea, Kentucky, restaurant where she was employed. They had been drinking coffee for over three hours, and were watching cars pass by on the adjacent highway, Interstate 75. They were eventually joined by a fourth man, later identified as Victor Rojas. Not long after Rojas arrived, Cummins saw the group leave the restaurant and gather in the parking lot around two vehicles, one of them a black Mercedes-Benz. When two of the men quickly exchanged packages, she became suspicious and called the local police.\n \n \n 21\n Rojas and Kenneth Lawson, who was another of the individuals Cummins noticed in the restaurant, were riding in a black Mercedes-Benz when it was stopped by two Berea police officers. Rojas told the officers that he was in Kentucky to sell parts for electric signs. Lawson, however, claimed that he did not know Rojas.\n \n \n 22\n The car was ultimately searched by the Kentucky State Police, who uncovered $124,500 in United States currency. The money was wrapped in $1,000 packets with colored rubber bands. The $1,000 bundles were combined into packages of $5,000 in several small brown lunch-type bags, a grocery bag, and a white plastic bag. These bags were then stuffed into a cardboard box which was taped shut. The box was then placed inside a brown shopping bag with handles. In addition to discovering the cash, the state police detected coffee grounds on the pavement beneath the car, on the bumper of the vehicle, and inside the brown shopping bag. A DEA chemist tested the shopping bag for the presence of controlled substances, and determined that it contained traces of cocaine.\n \n \n 23\n Murr had entered into a plea agreement with the government in January of 1990 in the Eastern District of Tennessee. It was not until Parks had been questioned in late February of 1990 that the government became aware of Murr's cocaine venture extending into Kentucky. At that time, Parks had spoken of a individual named \"Tony\" who, with the assistance of Kenneth Lawson, furnished cocaine to Murr's drug distribution ring. After the events of April 11, 1990, Parks realized that \"Tony\" was actually Victor Rojas.\n \n \n 24\n On May 2, 1990, a federal grand jury returned a one-count indictment charging Rojas with possession of cocaine with the intent to distribute the drug, pursuant to 21 U.S.C. § 841(a)(1). Upon motion of the government, the district court ordered the indictment and any subsequent pleadings sealed. In the fall of 1990, the FBI could not determine the whereabouts of Rojas. Consequently, on October 10, 1990, the district court approved the issuance of a bench warrant for his arrest.\n \n \n 25\n On March 13, 1991, a federal grand jury returned a 13-count superseding indictment against Victor Rojas, Robert Murr, Robert Phibbs, Diane Whited, Raymond Huckelby, and eight other defendants, including Billie Dye, David Hurt, Kenneth Lawson, Tommy McKeehan, Mary Lawson, William Baird, Reba England, and Edward Rogers. A trial date was set for September 9, 1991.\n \n \n 26\n The indictment, which was unsealed two weeks later, charged the 13 defendants with conspiring to possess cocaine with the intent to distribute the drug, in violation of 21 U.S.C. § 846. It also charged each of them with 11 counts of cocaine distribution, or aiding and abetting such distribution, in accordance with 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The incidents underlying these counts purportedly took place between August 25, 1988, and April 11, 1990. In addition, Murr was alleged to have operated a continuing criminal enterprise as defined under 21 U.S.C. § 848.\n \n \n 27\n Kenneth Lawson failed to appear for trial in September of 1991, and a bench warrant for his arrest was handed down. McKeehan, Rogers, and David Hurt reached plea agreements with the government and took the stand against their co-defendants. Billie Dye and Reba England also plea bargained. Mary Lawson moved for a judgment of acquittal, which was granted by the district court. On October 9, 1991, the jury found Rojas guilty on all 12 counts against him. Huckelby and Phibbs were both convicted of conspiracy and on nine distribution counts. Whited was convicted of conspiracy and on three distribution counts. Murr was found guilty of conspiracy, managing a continuing criminal enterprise, and on 10 distribution counts. Kenneth Lawson, who was tried in absentia, was convicted of conspiracy and on 10 distribution counts. William Baird, who had been partially successful on a motion for judgment of acquittal, was found not guilty of the remaining charges against him.\n \n II.\n Raymond Huckelby\n Sufficiency of the Evidence\n \n 28\n Huckelby contends that the evidence presented at trial was insufficient to support his conviction for conspiracy to possess cocaine with the intent to distribute the drug (21 U.S.C. § 846); as well as on nine counts of possession of cocaine, or aiding and abetting the possession of cocaine, with the intent to distribute (21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2).\n \n \n 29\n The standard of review for claims of insufficient evidence is \"whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\" United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)) (emphasis in original).\n \n \n 30\n In order to obtain a conviction pursuant to 21 U.S.C. § 846, \"the government must prove the existence of an agreement to violate the drug laws and that each conspirator knew of, intended to join and participated in the conspiracy.\" United States v. Pearce, 912 F.2d 159, 161 (6th Cir.1990) (quoting United States v. Stanley, 765 F.2d 1224, 1237 (5th Cir.1985)). No formal or express agreement is necessary to establish a conspiracy under § 846. United States v. Hughes, 891 F.2d 597, 601 (6th Cir.1989). \"[A] tacit or mutual understanding among the parties\" is enough. Id.\n \n \n 31\n The essential elements of a violation of 21 U.S.C. § 841(a)(1) are \"for any person knowingly or intentionally to ... possess with intent to ... distribute ... a controlled substance.\" See United States v. Pope, 561 F.2d 663, 669 (6th Cir.1977). \"To be found guilty of the crime of aiding and abetting a criminal venture [18 U.S.C. § 2], a defendant must associate himself with the venture in a manner whereby he participates in it as something that he wishes to bring about and seeks by his acts to make succeed.\" United States v. Knox, 839 F.2d 285, 294 (6th Cir.1988).\n \n \n 32\n At trial, Jerry Parks testified that in September of 1988, defendant Robert Murr introduced him to a number of individuals \"for the distribution of cocaine in [Murr's] network.\" The first person that Parks met through Murr was Huckelby. Parks and Murr went to Huckelby's jewelry store in Knoxville, Tennessee, where they were taken into a back room to meet with him. While in the rear of the store, Murr asked Parks whether he and Huckelby would \"ha[ve] any problem dealing with each other.\" Parks replied in the negative. Murr then told Huckelby \"who [Parks] was and how long he'd known [him] and asked if he had any problem dealing with [Parks.]\" Id. Huckelby said that he did not. Afterwards, Huckelby and Parks \"exchanged telephone numbers, beeper numbers and codes.\" Murr informed Parks that he would be delivering ten ounces of cocaine at a time to Huckelby at a price of $1,000 an ounce. Parks testified that, after this initial introduction, he regularly provided ten-ounce quantities of cocaine to Huckelby and received cash in return. The drugs were obtained by Murr and his associates by way of Kentucky, and were transported to co-defendant Diane Whited's residence in Knoxville for storage.\n \n \n 33\n Parks' testimony was corroborated by information contained in one of the books seized from his residence when he was arrested for burglary in May of 1989. Parks confirmed that the book contained records of drug transactions that took place between April 10, 1989 and May 21, 1989. He had kept similar records before that time, but Murr told him to destroy them \"as soon as the drugs were paid for and out of our possession.\" According to Parks, ledger entries indicated that, on May 15, 1989, ten ounces of cocaine were distributed to Huckelby, who was referred to in the book as \"Huck.\"\n \n \n 34\n In addition, an address book taken from Parks' residence listed Huckelby's home, office, and beeper telephone numbers. Parks testified that he did, in fact, contact Huckelby by telephone between August 1988 and May 1989 regarding cocaine purchases. To buttress his testimony, the government introduced telephone records showing that, from August through November of 1988, as well from February through May of 1989, calls were placed on Murr-related telephones to Huckelby's office and beeper numbers. During the same periods, calls were made from Murr-related telephones to several of Huckelby's co-defendants.\n \n \n 35\n Huckelby's conversation in the back of his jewelry store with Parks and Murr gave rise to the inference that he was well aware he was obtaining cocaine as part of a group venture. It demonstrated that he was not simply a street buyer engaging in a discrete transaction, but that he knew he was involved in an ongoing conspiracy of some dimension. That Murr told Parks that Huckelby was part of his drug distribution network, and the fact that Parks delivered significant quantities of cocaine to Huckelby at regular intervals, suggested that Huckelby indeed had such an understanding. See United States v. Baker, 905 F.2d 1100, 1106 (7th Cir.), cert. denied, 498 U.S. 876, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990) (holding that, while mere buyer/seller relationship alone does not support conspiracy conviction, evidence of \"repeat purchases or some other enduring arrangement that implies knowledge of the scope of the conspiracy\" may suffice). His telephone records, as well as Parks' books, provided additional proof that Huckelby was caught up in the affairs of the charged conspiracy.\n \n \n 36\n While some of this evidence was circumstantial in nature, even circumstantial evidence standing alone may sustain a conviction so long as the totality of the evidence was substantial enough to establish guilt beyond a reasonable doubt. See United States v. Green, 548 F.2d 1261, 1266 (6th Cir.1977). We are satisfied that this standard was met and find there was sufficient evidence that Huckelby knew of, intended to join, and participated in the conspiracy.1 He therefore assumed responsibility for every act committed to further its objectives which was reasonably foreseeable. See United States v. Martin, 920 F.2d 345, 348 (6th Cir.1990).\n \n \n 37\n With regard to Huckelby's violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, Parks described how he, Murr, and defendant Tommy McKeehan travelled to Kentucky every few weeks from September 1988 through May 1989 (the time frame of the counts upon which Huckelby was found guilty) to purchase cocaine from defendants Kenneth Lawson and Victor Rojas. Parks told the jury that the drugs sold to Huckelby were procured during these trips. The entries in Parks' books were consistent with his account of Huckelby's culpability, as were Huckelby's telephone records. Accordingly, the government showed that Huckelby, as a marketer of cocaine, \"associate[d] himself\" with the drug distribution ring and \"[sought] by his acts to make it succeed.\" Knox, 839 F.2d at 294.\n \n \n 38\n Huckelby nonetheless calls our attention to Parks' psychiatric history and his role as a government informant, apparently in an attempt to have us reassess his credibility. This we will not do. Credibility determinations are the province of the trier of fact, and are not to be disturbed on appeal when considering the sufficiency of the evidence underlying a defendant's conviction. Parks' alleged deficiencies as a witness were amply explored in the course of cross-examination.\n \n III.\n Diane Whited\n A. Sufficiency of the Evidence\n \n 39\n Whited was convicted of conspiracy to possess cocaine with the intent to distribute the drug (21 U.S.C. § 846), as well as on three counts of possession of cocaine, or aiding and abetting the possession of cocaine, with the intent to distribute (21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2). The latter convictions were the result of conduct which occurred in September, October, and November of 1988. She challenges the sufficiency of the evidence sustaining the guilty verdicts returned against her.\n \n \n 40\n At trial, Jerry Parks testified that defendant Robert Murr rented a house in the Martha Washington Heights subdivision in Knoxville, Tennessee, for Whited, who was his \"girlfriend.\" Murr and Parks would store a large portion of the cocaine they bought in Kentucky there. In September of 1988, they went to the house for such a purpose. According to Parks, he and Murr\n \n \n 41\n went upstairs and took the cocaine into a bedroom, and [Murr] told Diane Whited to go into the other room and to get the stash. She was gone a few minutes. I heard her pull out an exit door in the hallway. She climbed up in the step, secured a green duffle bag, which had a padlock on it, and brought it into the bedroom. Mr. Murr had a key on his key ring. He opened up a lock on the duffle bag and pulled out two PVC pipes. We opened it up and put one of the kilos of cocaine in there. He told Ms. Whited to go into the kitchen or wherever she kept her bags and got baggies and roll of aluminum foil and brought back in the bedroom. Mr. Murr had a pair of scales there, digital scales, and we weighed the cocaine. We put [it] in one ounce bags, put green rubber bands around it, wrapped it up, put tinfoil around that, put it back in PVC pipes, secured the lids on it, put [it] back in the green duffle bag, locked that, put it back in the attic.\n \n \n 42\n Parks recalled that it was Whited who took the cocaine and hid it in the attic.\n \n \n 43\n Parks testified that he and Murr were \"probably over\" at the house with Whited \"15, 20 times\" through the fall of 1988. When questioned in greater detail, he confirmed that in September, October, and November of 1988, they brought cocaine \"to the stash house, Diane Whited's stash house,\" where it was broken down in \"pretty much the same manner\" and later distributed.\n \n \n 44\n In order for Parks to remove cocaine from the house to sell, he would have to call Murr \"and make arrangements to meet him to go out to the house in Martha Washington Heights.... Sometimes Ms. Whited would be at home, sometimes she wouldn't.\" Parks was not allowed to go there by himself. He and Murr \"would drive to the area. [Murr] would use his cellular phone. And if [Whited] was there, she would open the door\"; otherwise, Murr would use his keys to enter the house. This arrangement became unworkable after November of 1988 because Parks needed easier access to the cocaine supply, and it was at this point the drugs were buried in a pipe on property behind Automotive Enterprises.\n \n \n 45\n Gene Doss, a long-time resident of the Martha Washington Heights subdivision, testified that Murr and Whited called themselves \"Don Stallings\" and \"Janet Stallings\" during the time they spent there. Doss described the basement windows of Whited's house as \"covered with some sort of material,\" as were the garage door, the entrance door, and a third door. There were fish-eye peepholes in the windows and the doors. He also remembered seeing a large safe being taken out of the residence.\n \n \n 46\n Viewing the evidence in the light most favorable to the government, a rational jury could have concluded that Whited \"knew of, intended to join and participated in the conspiracy.\" Pearce, 912 F.2d at 161 (quoting United States v. Stanley, 765 F.2d 1224, 1237 (5th Cir.1985)). She consciously handled and concealed the cocaine stored at her residence, exercising dominion and control over the drugs. In fact, she was entrusted with their safekeeping for a number of months. Doss' testimony concerning Whited's alias and her home security measures further indicated that she was not merely associated with members of the drug distribution ring, but played an active role in the enterprise. Similarly, evidence was educed that she possessed at least a kilogram of cocaine on or about the dates set out in the counts upon which she was convicted. The intent to distribute could be inferred from such a large amount of drugs. See, e.g., United States v. Welebir, 498 F.2d 346 (4th Cir.1974).\n \n \n 47\n B. Mistrial Based Upon Jerry Parks' Statements\n \n \n 48\n Whited also argues that the district court should have granted defendants' motion for a mistrial following remarks made by Jerry Parks on cross-examination.\n \n \n 49\n Parks was questioned by Robert Murr's counsel regarding the $35,000 to $40,000 he estimated he was paid by the government to compensate him for his services and his expenses. In explaining what the money was used for, and why he was uncertain whether his estimate was correct, he told the jury that\n \n \n 50\n [a] lot of this money, and I don't know whether it is listed here or not, is for my protection. I have been threatened by these witnesses. I have been threatened by the defendants and their wives. I have been threatened by several people. I actually recorded ... [r]ecorded threats, who has a contract on me. I had to move. I had to get more money from the FBI. I don't know whether this represents all of it or not. I am telling you I spent a lot of their money. This is what they say I spent. I don't know whether this is extra money, whether this represents every single nickel I got from the FBI. I spent a lot of money.\n \n \n 51\n After Parks finished his statement, Murr's counsel did not raise an objection but continued his line of questioning.\n \n \n 52\n At the close of the day's proceedings, defendant Mary Lawson's attorney moved for a mistrial on the basis of Parks' remarks concerning the threats he allegedly received from defendants and their spouses. The other defendants subsequently joined the motion. The district court replied:\n \n \n 53\n Now, in regard to Mr. Parks' response, it was in response to the cross-examination of him being paid all this money. The inference being raised to the jury, well, you know, that's a lot of walking around money, 35, $40,000. That's outrageous. Why would the Government be paying you all kinds of money like that for services and/or expenses? And I allowed him to defend himself. This was in response to cross-examination, direct response as to why it would take 35 or $40,000. And that's what he has to say. That's what he had to say. It may not be true. The jury may not believe it.\n \n \n 54\n But, Mr. Hicks, the books are full of cases where threats have been made, glaring, intimidating looks have been made in order to--and witnesses have been murdered, witnesses have been murdered. And that is--if that happens, it is competent, it is relevant, and the circuits have upheld that kind of testimony for as long as I can remember.\n \n \n 55\n So your motion for mistrial is overruled.\n \n \n 56\n Lawson's counsel went on to express surprise that the district court would allow \"bald assertion[s]\" of threats and intimidation into evidence. The court, however, opined that it \"allowed the testimony to come in for what it's worth.... It goes to the weight of the testimony and not its admissibility.\" When Lawson's counsel persisted in claiming that Parks' statements were unfounded, the court asked: \"You want me to have Mr. Parks go into it again tomorrow morning in more detail to see if there is a factual basis in front of this jury?\" Lawson's counsel answered in the negative; instead, he wanted the jury admonished that Parks' \"bald assertion that these defendants tried to kill him is not to be used as far as Mary Lawson is considered.\" The court refused, and also refused similar requests by the other defendants.\n \n \n 57\n \"A defendant may move for a mistrial where there is a legitimate claim of seriously prejudicial error,\" such that the defendant is unable to obtain a fair trial. United States v. Moore, 917 F.2d 215, 220 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1590, 113 L.Ed.2d 654 (1991). \"The denial of a mistrial is generally within the discretion of the trial court,\" and our review of the court's ruling is confined to whether the trial court abused its discretion. Id.\n \n \n 58\n Here, the government did not elicit the allegedly prejudicial statements and did not repeat them. See, e.g., United States v. Tarantino, 846 F.2d 1384, 1413 (D.C.Cir.1988). Significantly, defendants did not make a contemporaneous objection to the remarks on grounds of prejudice, or on any other grounds. As the district court pointed out, the remarks might not have been prejudicial at all. They were surely not what defendants wanted to hear, but they were offered as a legitimate response to a question concerning substantial payments to Parks by the government. The existence of these payments might well have damaged his credibility, if not justified to the jury's satisfaction. Parks' claim of threats was not wholly implausible on its face; such incidents have been known to occur. Defendants had an opportunity to challenge the veracity of the claim; they deliberately chose not to take up the cudgel. While certain statements are so prejudicial that the defense should not be required to rebut them, and the jury should not be left to weigh their value, we are convinced that the instant case did not involve such a situation.\n \n \n 59\n We also note that, in the case at bar, the remarks at issue \"constitute[d] but a small portion of the total testimony at trial.\" United States v. Bowers, 739 F.2d 1050, 1055 (6th Cir.), cert. denied, 469 U.S. 861, 105 S.Ct. 195, 83 L.Ed.2d 128 (1984). They were made well before the start of the jury's deliberations, deliberations which produced not guilty verdicts on several of the counts charged in the indictment. For all of these reasons, we hold that the district court did not abuse its discretion in denying defendants' mistrial motion.\n \n C. Motion to Sever Defendant Kenneth Lawson\n \n 60\n A motion was made by Robert Murr to sever defendant Kenneth Lawson prior to trial, when it appeared that Lawson would not be present for the proceedings. This motion was denied by the district court, and Whited contends that this was in error.\n \n \n 61\n A district court's denial for severance is reversible only for an abuse of discretion. United States v. Warner, 690 F.2d 545, 552 (6th Cir.1982). \"Once defendants have been properly joined under Federal Rule of Criminal Procedure 8(b), a 'strong showing of prejudice' is required to justify severance.\" United States v. Hessling, 845 F.2d 617, 619 (6th Cir.1988) (quoting United States v. Reed, 647 F.2d 678, 689 (6th Cir.), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981)). The jury must be unable \"to decide fairly and separately the guilt or innocence of each defendant.\" Moore, 917 F.2d at 220.\n \n \n 62\n Whited argues that defendants were harmed because the jury might have inferred that Lawson did not show up for trial because he was guilty, and then concluded that his co-defendants must also be culpable. In addition, Whited asserts that they were prejudiced when the jury was exposed to extensive testimony concerning Lawson's activities, while \"no one was there to challenge this testimony.\"\n \n \n 63\n \"As a general rule, persons jointly indicted should be tried together.\" United States v. Stull, 743 F.2d 439, 446 (6th Cir.1984). This is because there is almost always common evidence against the joined defendants that allows for the economy of a single trial. In the instant case, a large portion of the evidence presented, including that related to Lawson, was applicable to each defendant to show the scope of the charged conspiracy. While Lawson was not there to \"challenge\" his alleged participation at trial, his co-defendants had the opportunity to convince the jury that they were not associated with him. \"Absent a showing of substantial prejudice, spillover of evidence from one case to another does not require severance.\" Moore, 917 F.2d at 221 (relying upon United States v. Gallo, 763 F.2d 1504, 1526 (6th Cir.1985)). Defendants have not made such a showing here.\n \n \n 64\n The fact that a defendant sought to escape prosecution is usually relevant in establishing culpability, so we understand Whited's anxiety about \"transferred guilt\" due to Lawson's flight. However, the district court neutralized any adversity Lawson may have caused his co-defendants by his actions. It gave a cautionary instruction that each defendant's case was to be considered separately and, further, that Lawson's flight could not be used as evidence against anyone but him. The jury appears to have heeded the court's admonition, as defendant William Baird, allegedly a close companion of Lawson's, was acquitted of conspiracy. Other defendants were acquitted on some of the distribution counts brought against them. Thus, the jury was plainly able to view them as distinct individuals in rendering its verdicts. As this was so, the district court did not abuse its discretion in denying the motion to sever Lawson.\n \n \n 65\n D. The Government's Use of Prejudicial Evidence\n \n \n 66\n Whited next contends that the government elicited, or sought to elicit, a variety of evidence that was prejudicial to defendants, thereby warranting reversal.\n \n \n 67\n Specifically, she asserts that the government repeatedly sought to admit testimony related to meetings in Tennessee and Virginia where cocaine allegedly was obtained from Kenneth Lawson and Victor Rojas. As this evidence was never presented to the jury, defendants suffered no harm.\n \n \n 68\n Whited also takes issue with the government being permitted to present testimony that cocaine was acquired by Jerry Parks from Robert Murr while Parks was living at a halfway house in Bowling Green, Kentucky. The district court, however, allowed such evidence to establish the beginning of Parks' dealings with Murr. In our view, this was proper.\n \n \n 69\n Additionally, Whited argues that the \"defense was left helpless ... to rebut the inflammatory nature\" of Jerry Parks' testimony regarding threats allegedly made to him by defendants and their spouses. She seems to claim that the government should have either substantiated the allegations or sought to counteract their effect. We have already determined that reversal is not required as a result of Parks' statements.\n \n \n 70\n Whited also complains that she and her co-defendants were harmed by the government's questioning of witness Ernie Nicely regarding loans allegedly extended to Robert Murr and his ex-wife, Judy, and promissory notes memorializing those loans. The district court struck Nicely's testimony on the basis of a pretrial ruling excluding such evidence. The trial judge cautioned the jury to disregard the testimony, and we believe that he cured any harm to defendants in doing so.\n \n \n 71\n Finally, Whited contends that defendants were prejudiced both by statements from Nicely that Robert Murr was arrested on the same day he was seen with co-defendant Kenneth Lawson, and from witness Donald Bennett that Murr was incarcerated. However, the district court instructed the jury to disregard these remarks, which abated any prejudice.\n \n \n 72\n E. Competency of Jerry Parks and Tommy McKeehan\n \n \n 73\n Whited claims that witnesses Jerry Parks and Tommy McKeehan were incompetent to give testimony on grounds of mental incapacity. In the case of Parks, he had previously been found incompetent to stand trial, had a history of auditory delusions, and had spent time in mental health facilities. As for McKeehan, Whited cites an affidavit filed with the district court by his treating psychiatrist that he could not assist his counsel in an upcoming trial because he suffered from \"confusion, agitation, paranoia and hallucinations.\" This affidavit was dated four days prior to McKeehan having entered into a plea agreement with the government. Because of such information, Whited contends that, at the very least, it was error for the court not to conduct a preliminary examination of Parks' and McKeehan's competency as witnesses.\n \n \n 74\n Under Rule 601 of the Federal Rules of Evidence (General Rule of Competency), \"[e]very person is competent to be a witness except as otherwise provided in these rules.\" The Advisory Committee Notes to Rule 601 explain that \"[t]his general ground-clearing eliminates all grounds of incompetency not specifically recognized in the rules of this Article.\" Accordingly, \"[n]o mental or moral qualifications for testifying as a witness\" are specified. Id. This is because \"[s]tandards of mental capacity have proved elusive in actual application.\" Id.\n \n \n 75\n Thus, the Federal Rules of Evidence strongly disfavor barring witnesses on competency grounds due to mental incapacity. As we wrote in United States v. Ramirez, 871 F.2d 582, 584 (6th Cir.), cert. denied, 493 U.S. 841, 110 S.Ct. 127, 107 L.Ed.2d 88 (1989):\n \n \n 76\n What must be remembered, and is often confused, is that \"competency\" is a matter of status not ability. Thus, the only two groups of persons specifically rendered incompetent as witnesses by the Federal Rules of Evidence are judges (Rule 605) and jurors (Rule 606). The authority of the court to control the admissibility of the testimony of persons so impaired in some manner that they cannot give meaningful testimony is to be found outside of Rule 601. For example, the judge always has the authority under Rule 403 to balance the probative value of testimony against its prejudicial effect. Similarly, under Rule 603, the inability of a witness to take or comprehend an oath or affirmation will allow the judge to exclude that person's testimony. An argument can also be constructed that a person might be impaired to the point that he would not be able to satisfy the \"personal knowledge\" requirement of Rule 602. Again though, it is important to remember that such decisions by a trial judge to either admit or exclude testimony will only be reversed for a clear abuse of discretion.\n \n \n 77\n (Footnote omitted.)\n \n \n 78\n The district court did not rule on Parks' competency before he took the stand; later, in considering a motion for judgment of acquittal, the court indicated that Parks and McKeehan \"were not crazy witnesses.\" Likewise, it addressed the question of McKeehan's mental capacity during a bench conference held after he had begun to testify. The court stated that it had \"observed Mr. McKeehan, and he appears to the Court to be sober, cogent. He appears to the Court to know exactly where he is and what he is doing. His testimony has been direct, and his testimony has not been confused.\" When pressed concerning the psychiatrist's affidavit that McKeehan could not help in his own defense, the court opined that \"he sure has made a remarkable recovery ... [His condition is] fodder for cross-examination, and it would appear that either the psychiatrist made an inaccurate diagnosis September the 5th or the witness has made a remarkable recovery. And the Court observes that--repeats that he does not appear to be confused today.\"\n \n \n 79\n At a hearing on defendants' post-trial motions, the district court supplemented its findings regarding Parks' and McKeehan's competency, and the need for a special examination of their mental faculties. The court noted that\n \n \n 80\n one of the reasons I overlooked stating as to my belief that an independent evaluation at this time would be a waste of time is that--is that such a finding, even if they found that they were incompetent here in April of 1992, would not be dispositive as to their competence or mental state when they testified in September of 1991 at the trial of this case or at the hearings that we held in August.\n \n \n 81\n ....\n \n \n 82\n Similarly, even if I had such an opinion from a psychiatrist or psychologist or whoever that gave us an independent opinion that these people were--Mr. Parks and McKeehan were total screwballs, I would--I would find those opinions to have little probative value and of little weight, and I would not--I would not accept them as being--as being conclusive on the matter. And I would not let such opinions override my own judgment after having seen--personally witnessed their performance in court.\n \n \n 83\n Hence, the district court did not find that Parks and McKeehan were incapable of understanding their oath and obligation to testify truthfully. Nor did the court find, based on its observations, that their mental abilities were so limited that they did not have sufficient capacity to perceive events, to remember them, and to describe them for the benefit of the trier of fact. See Fed.R.Evid. 602. The court was not required, as Whited would have it, to conduct a special examination into their competency. If either Parks' or McKeehan's behavior raised concerns stemming from Rule 602 or 603, it could have excluded their testimony (or portions thereof) without any examination whatsoever. Furthermore, the court had the additional authority, pursuant to Rule 403, to exclude their testimony in light of their past or present mental state. The court chose not to take any of these measures in the circumstances. Instead, it permitted defense counsel to use the psychiatric records of Parks and McKeehan, as well as other indicia of their mental capacity, to vigorously attack their credibility.\n \n \n 84\n After carefully reviewing the record, we conclude that the district court did not abuse its discretion in doing so. As long as a witness appreciates his duty to tell the truth, and is minimally capable of observing, recalling, and communicating events, his testimony should come in for whatever it is worth. It is then up to the opposing party to dispute the witness' powers of apprehension, which well may be impaired by mental illness or other factors. As we are persuaded that Parks and McKeehan were at least minimally capable of offering reliable evidence, the possible weaknesses in their testimony went to its credibility, and so were to be assessed by the jury. See United States v. Moreno, 899 F.2d 465, 469 (6th Cir.1990).\n \n \n 85\n Whited also argues that defendants should have been allowed to introduce the psychiatric records of Parks and McKeehan as substantive evidence. They were ruled inadmissible hearsay by the district court. Whited alleges, however, that they were not put forward for the truth of the matters asserted within, but to show how manipulative Parks and McKeehan could be if they were not, in fact, mentally unbalanced. Such use of the records during cross-examination to challenge Parks' and McKeehan's credibility was appropriate. However, we believe that they would have constituted hearsay if employed as part of a substantive defense. They would have to have been offered to show that the psychiatrists making the records actually concluded that Parks and McKeehan were mentally ill. Otherwise, Parks' and McKeehan's deception would have no basis in fact. Consequently, the district court did not err in declining to admit the psychiatric records.\n \n \n 86\n F. Restriction on Cross-Examination of Government Agent\n \n \n 87\n Finally, Whited asserts that the district court improperly limited defendants' cross-examination of a government witness, Special Agent Clyde Merryman of the FBI. Defense counsel sought to question Merryman about an internal disciplinary investigation that had been resolved in his favor. After a sealed hearing outside the presence of the jury, at which the court placed Merryman under oath and interrogated him about the alleged misconduct, it determined that defendants would be restricted from inquiring into the investigation on cross-examination. Having reviewed the transcript of the hearing and the sealed materials contained in the record, we conclude that the district court did not commit an abuse of its discretion in this regard.\n \n \n 88\n Rule 608(b) of the Federal Rules of Evidence (Evidence of Character and Conduct of Witness--Specific instances of conduct) provides in part that\n \n \n 89\n Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility ... may ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness[.]\n \n \n 90\n \"The first step in a 608(b) analysis is whether the specific conduct is probative of the witness' character for truthfulness or untruthfulness.\" United States v. Hill, 550 F.Supp. 983, 990 (E.D.Pa.1982), aff'd, 716 F.2d 893 (3rd Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984). Here, Merryman was not disciplined following the investigation into his conduct, so it had little worth as a challenge to his credibility. Whatever probative value might have attached to the FBI's proceedings was substantially outweighed by prejudice to the government. See Fed.R.Evid. 403.\n \n IV.\n Robert Phibbs\n A. The Voir Dire\n \n 91\n Phibbs argues that the district court violated Rule 24(a) of the Federal Rules of Criminal Procedure by refusing to submit a questionnaire developed by defendants to prospective jurors, when the court itself conducted the voir dire of the jury venire.\n \n \n 92\n Except for Robert Murr, defendants waived their respective interests in examining the jury venire. According to Phibbs, the other defendants entrusted Murr with undertaking the voir dire to attempt to balance their right to an impartial jury with the district court's concern for expediency. Such a strategy appears to have been partially the result of defendants' fears that the court was leaning towards exclusively examining prospective jurors, and was an effort to devise an alternative procedure more desirable to them. If so, their sense of the court's inclination proved to be accurate.\n \n \n 93\n Rule 24(a) of the Federal Rules of Criminal Procedure (Trial Jurors--Examination) states:\n \n \n 94\n The court may permit the defendant or the defendant's attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or the defendant's attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.\n \n \n 95\n Thus, the trial court may resolve to conduct the voir dire on its own. If the court does so, it may also ask the jury venire other appropriate questions suggested by the parties.\n \n \n 96\n In reviewing the district court's handling of the voir dire in the case at bar, we must ascertain whether the court \"abused the broad discretion vested in him by the rulings of the Supreme Court of the United States in his impaneling of [the] jury.\" United States v. Blanton, 719 F.2d 815, 822 (6th Cir.1983), cert. denied, 465 U.S. 1099, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1984). A trial court \"retains great latitude in deciding what questions should be asked on voir dire.\" Mu'Min v. Virginia, --- U.S. ----, ----, 111 S.Ct. 1899, 1904, 114 L.Ed.2d 493 (1991). So long as the court ensured that the defendant or defendants had \"a fair trial by a panel of impartial, 'indifferent' jurors\", reversal is not mandated. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1960).\n \n \n 97\n In its examination of the jury venire, the district court drew upon the substance of the questions presented by defense counsel. As the voir dire progressed, the court held bench conferences to address areas of concern highlighted by defendants. At its conclusion, the court asked whether there were any other questions from counsel, eliciting no response.\n \n \n 98\n The district court examined the panel members as a group concerning the presumption of innocence, the meaning of \"reasonable doubt,\" their knowledge of the parties and attorneys, and their knowledge of the case. They were also asked about their impressions of the criminal justice system, any predispositions they might have regarding drug prosecutions, whether any of them had prior experience as a juror, whether any of them had been a victim of crime, and whether they could set aside their personal feelings in rendering a verdict. All of these questions, and others, served to establish that the individuals who were ultimately selected as jurors were unbiased.2\n \n \n 99\n Phibbs suggests that the written questionnaire created by defendants was necessary to ferret out those prospective jurors whose biases would not be revealed through a collective examination.3 An individualized examination of the jury venire is not, however, required by the United States Constitution. See Mu'Min, --- U.S. at ----, 111 S.Ct. at 1904. Much of the questionnaire was directed at the personal habits and activities of the panel members (e.g., what books they read, what television shows they watched, etc.). While such information might have aided defendants in identifying sympathetic jurors, it was not needed to compose a fair-minded jury. Accordingly, we hold that the district court did not abuse its discretion in its management of the voir dire.\n \n \n 100\n Phibbs claims nonetheless that considering the length of the trial was estimated at one month, \"a one and one-half voir dire examination was so grossly inappropriate that a fair and impartial jury could not have been seated after such questioning.\" However, he does not cite any instance of prejudice relative to the jury as a body or to any specific juror. Nor does he point out any question that the court failed to ask that harmed defendants. As a result, we find his contention to be without merit.\n \n \n 101\n B. The Presence of Government Agents in the Courtroom\n \n \n 102\n Phibbs also asserts that defendants did not receive a fair trial because FBI Special Agent Clyde Merryman and DEA Special Agent Frank Finken, both of whom appeared as witnesses, were allowed to remain in the courtroom throughout the proceedings.\n \n \n 103\n Rule 615 of the Federal Rules of Evidence (Exclusion of Witnesses) provides:\n \n \n 104\n At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. The rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.\n \n \n 105\n In the instant case, the government sought to designate both Merryman and Finken as its representatives during the trial. After a defense objection, the district court replied:\n \n \n 106\n I think the rule provides that anyone that was necessary to assist counsel in the presentation of the case would be--would be permitted to remain in the courtroom. Inasmuch as this is an extended trial, boxes of documents both from the Eastern District of Kentucky and the Eastern District [of] Tennessee, it would be unduly burdensome on the Court and time consuming if we just had one case agent. So the request of the Government is not unreasonable, so the motion is overruled.\n \n \n 107\n The court then engaged in a colloquy with one of the counsel for the defense, inviting him to bring contrary authority to its attention before any witnesses were called. Counsel did not do so.\n \n \n 108\n Hence, the court initially treated both Merryman and Finken as \"essential\" witnesses under Rule 615(3). Later, however, the court requested that the government designate one of the two as its representative pursuant to Rule 615(2); it would then consider whether the other agent was an \"essential\" witness. The government responded by selecting Merryman as its representative, and the court found that Finken's presence in the courtroom was also needed for the government to effectively present its case.\n \n \n 109\n Phibbs concedes that one of the agents could have stayed in the courtroom, despite the fact that he would later testify. However, he argues that the government had the burden to show that the presence of more than one agent was \"essential\" to it laying out its case. See Fed.R.Evid. 615.\n \n \n 110\n The district court followed our procedure, as set out in United States v. Pulley, 922 F.2d 1283 (6th Cir.), cert. denied, Pulley v. United States, --- U.S. ----, 112 S.Ct. 67, 116 L.Ed.2d 42 (1991), to be used when the government seeks to have two agent-witnesses in the courtroom for assistance. Rule 615(2) affords the government the right to designate only one representative for such a purpose. Id. at 1286. However, certain prosecutions may be complex enough that the aid of more than one law enforcement officer is needed to sort through extensive, technical evidence, and to help \"map out strategy.\" See United States v. Martin, 920 F.2d 393, 397 (6th Cir.1990). When the government wants to have two agent-witnesses in attendance throughout a trial, \"it is always free to designate one agent as its representative under subpart (2) [to Rule 615] and to try to show under subpart (3) that the presence of the second agent is \"essential\" to the presentation of its case.\" Pulley, 922 F.2d at 1286.\n \n \n 111\n Demonstrating that an additional agent4 is, in fact, \"essential\" is no easy task. Criminal defendants, as do all persons caught up in the legal process, have a substantial interest in \"discouraging and exposing fabrication, inaccuracy, and collusion\" related to in-court testimony. Advisory Committee Notes to Fed.R.Evid. 615. This interest was recognized in the text of Rule 615, which made the exclusion of witnesses by the parties a matter of right, subject to exceptions that are narrowly defined.\n \n \n 112\n The \"essential\" witness exception set out in Rule 615(3) \"contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation.\" Advisory Committee Notes to Fed.R.Evid. 615. We are persuaded that Finken fell within this category due to the particular circumstances of the case at bar. This was a trial that was scheduled for approximately one month, involving several defendants and a great deal of evidence, not all of which was readily accessible. After Merryman was designated the government's representative in accordance with Rule 615(2), the court determined that Finken, who was intimately familiar with portions of the evidence, was also needed to advise the government in its handling of the prosecution. As Merryman and Finken were, for the most part, responsible for distinct aspects5 of a far-flung investigation, this was not an abuse of discretion.\n \n \n 113\n We note that the district court took steps to guarantee that Merryman and Finken would not parrot each other's testimony. It directed that, when one of them was on the stand, the other was to be outside the courtroom. Such a measure could be taken, not only on the basis of the court's inherent powers of trial oversight, but also in reliance upon Rule 615 itself. See, e.g., United States v. Womack, 654 F.2d 1034 (5th Cir.1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 314 (1982) (breach of conditions placed on sequestration constitutes violation of Fed.R.Evid. 615).\n \n \n 114\n Phibbs, however, asserts that government counsel really wanted Finken and Merryman in court so that they might be in a position to coach Parks during recesses, or to otherwise guide his testimony. He claims that defendants were prejudiced because Merryman had substantial contact with Parks, \"and the clear purpose and effect of allowing Agent Merryman to remain in the courtroom was to be able to listen to all of the testimony and to, in fact, cumulatively correct any questionable credibility problems and to bolster the credibility of Mr. Parks[.]\" As for Finken, he \"also had the opportunity to sit through this testimony and assist Agent Merryman in the 'correction' of Mr. Parks' testimony.\" Phibbs offers nothing to support his charges, and we find them to be rank speculation.\n \n \n 115\n Despite the possibility of improper influence, Rule 615(2) allows the government to have any law enforcement officer it wants at its counsel table. Similarly, Rule 615(3) does not categorically bar any class of agents from assuming \"essential\" witness status. Ordinarily, if there are concerns about coaching by an agent-witness, the court may order him not to discuss the case with any other witness. If the agent fails to adhere to such an order, the court has a variety of remedies at its disposal, ranging from commenting on the transgression to the jury, to holding the agent in contempt, or disqualifying him as a witness, or even declaring a mistrial.\n \n \n 116\n In addition, the defense is free to cross-examine both the agent-witness and the alleged object of his coaching efforts, subject to the control of the court. See Geders v. United States, 425 U.S. 80, 89-91, 96 S.Ct. 1330, 1335-36, 47 L.Ed.2d 592 (1976). See also M. Graham, Federal Practice and Procedure: Evidence § 6611 at 217-221 (West 1992). Here, defendants engaged in spirited cross-examination of Parks, Merryman, and Finken, touching upon the question of coaching.\n \n C. Sufficiency of the Evidence\n \n 117\n Phibbs next contends that the evidence underlying his convictions was insufficient, and that the district court erred in denying both his motion for a directed verdict following the government's case-in-chief, and his subsequent motion for judgment of acquittal.\n \n \n 118\n Phibbs was convicted of conspiracy to possess cocaine with the intent to distribute the drug (21 U.S.C. § 846), as well as on nine counts of possession of cocaine, or aiding and abetting the possession of cocaine, with the intent to distribute (21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2).\n \n \n 119\n Jerry Parks testified that Phibbs, an employee of Robert Murr's, wrote a letter to the United States Probation Office in Memphis, Tennessee, stating that he would employ Parks if he was transferred to Knoxville. Phibbs sent the letter on behalf of Murr because Murr was under investigation by authorities in Knoxville. Their efforts were successful, and Parks was given permission to work for Automotive Enterprises, one of Murr's companies. After Parks began his tenure there, Phibbs represented to Parks' probation officer that he was on the job. However, according to Parks, his employment was a \"sham\" and \"[he] didn't do anything there at Automotive Enterprises other than carrying on Mr. Murr, the Chief's, cocaine business.\" Phibbs sometimes paid Parks with \"sham\" checks, which he would then cash, returning the money to Phibbs to put back in the account.\n \n \n 120\n After Parks began supplying Murr's cocaine customers with the drug, he often gave Phibbs the money he collected from them if Murr was unavailable. This was done on Murr's express instructions, so that Parks would not be carrying large sums on his person. The amount turned over to Phibbs would frequently be in the neighborhood of $10,000 to $15,000.\n \n \n 121\n When, after November of 1988, Murr decided to move the location of the cocaine stash from the house he rented for defendant Diane Whited, he told Parks to bury the drugs inside a pipe on a hillside behind Automotive Enterprises. Parks testified that the only other person \"in the world\" who knew where the cocaine was subsequently hidden was Phibbs. This was so that, in the event Parks was arrested or injured, \"somebody in our organization ... would know.\"\n \n \n 122\n Ernie Nicely, a business partner of Murr's, stated that on two occasions when defendant Kenneth Lawson came to see Murr at Anderson County Auto Auction, ostensibly to discuss matters related to the cocaine conspiracy, Phibbs was \"on the property.\" This was unusual because \"[h]e very seldom came out there\"; it was 20 miles away from Phibbs' job at Automotive Enterprises. On the last day that Nicely saw Lawson, August 17, 1989, Murr called him and asked him to take two suitcases out of the safe at Anderson County Auto Auction and to deliver them to Phibbs at Automotive Enterprises.\n \n \n 123\n Later, in September of 1989, Murr told Nicely that defendant Edward Rogers owed him $2,000, and that Phibbs was to deduct that amount from the $10,000 that he was holding for Rogers. According to Nicely, Rogers owed the money \"for drugs or something.\" Around that time, Murr instructed Nicely to \"get rid of \" a 1984 Porsche 940 that was on Murr's property until he could get a title for it. Phibbs informed him that Murr had obtained the car in exchange for a kilogram of cocaine. When he titled the Porsche in his own name, Phibbs furnished the money to pay the tax.\n \n \n 124\n Rogers' statements at trial corroborated those of Parks and Nicely regarding Phibbs' participation in the drug distribution ring. He confirmed that he owed Murr $2,000 for drugs, and that he went to Phibbs to settle his account. Phibbs claimed that he actually owed $4,000 for four ounces of cocaine. During their conversation, Rogers asked Phibbs if he was \"still in business,\" and Phibbs replied in the affirmative.\n \n \n 125\n All of this testimony was buttressed by the government's introduction of records demonstrating that calls were made from Murr-related telephones to Phibbs' residence, his beeper, or to Whited's cellular phone, which was listed in his name, during the periods delineated in the distribution counts.\n \n \n 126\n Viewing the evidence in the light most favorable to the government, there was sufficient proof from several sources that Phibbs \"knew of, intended to join and participated in\" the charged conspiracy. Pearce, 912 F.2d at 161 (6th Cir.1990) (quoting United States v. Stanley, 765 F.2d 1224, 1237 (5th Cir.1985)). He received and processed drug money, helped install Parks as a middleman, and was part of the security surrounding the cocaine stash. As for the distribution counts, Parks' testimony, in particular, indicated that Phibbs handled drug money during the relevant time frames. His contention must therefore be rejected.\n \n \n 127\n D. \"Minimal\" v. \"Minor\" Participation; Acceptance of Responsibility\n \n \n 128\n Phibbs further argues that, at sentencing the district court should have accorded him a four-point reduction in offense level, attendant to a finding that he was a \"minimal\" participant in the drug ring, rather than a two-point reduction for being a \"minor\" participant. He also asserts that he was entitled to a two-point reduction for acceptance of responsibility.6\n \n \n 129\n A district court's factual decisions, such as those related to a defendant's acceptance of responsibility, or his role in the offense, are reviewed under the clearly erroneous standard. United States v. Perry, 908 F.2d 56, 58 (6th Cir.1990). To be clearly erroneous, \" 'a decision must strike us as more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.' \" Id. (quoting Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.1988), cert. denied, 493 U.S. 847, 110 S.Ct. 141, 107 L.Ed.2d 100 (1989)).\n \n \n 130\n Application Note 1 to United States Sentencing Guidelines § 3B1.2 (Mitigating Role) states in part that: \"Subsection (a) [dealing with minimal participants] applies to a defendant who plays a minimal role in concerted activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group.\" With this language in mind, Phibbs latches onto the probation officer's conclusion in his presentence report that \"Phibbs gives the appearance, amid all of the co-defendants to be least involved in the group\" to contend that he should have been considered a minimal participant. He further claims, in this regard, that he did not have \"organizational, managerial or monetary interests in any of the trips to Kentucky to buy cocaine.\"\n \n \n 131\n However, Application Note 2 to U.S.S.G. § 3B1.2 underscores that:\n \n \n 132\n It is intended that the downward adjustment for a minimal participant will be used infrequently. It would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.\n \n \n 133\n The district court, in passing sentence, felt that Phibbs was not merely on the fringes of the drug distribution ring:\n \n \n 134\n You knew what the deal was, you knew what the deal was from beginning to end. And I really believe that and I infer you were into it deeper than what the United States was able to prove. The ostrich defense is not applicable in cases like this.\n \n \n 135\n In comparing the roles of Whited, whom it considered to be a minimal participant, and Phibbs, the court took Whited's dependence on Murr and the fact that, unlike Phibbs, she was not a repository of drug money to be significant. In its view, these factors placed her \"below Phibbs\" for sentencing purposes.\n \n \n 136\n Our examination of the record convinces us that Phibbs was not the sort of marginal player that the United States Sentencing Commission and Congress conceived of as a minimal participant. He was involved in the drug distribution ring throughout the bulk of its existence, having been entrusted with drug-related funds, as well as critical knowledge concerning the whereabouts of the cocaine supply. Consequently, the district court's conclusion as to his role in the enterprise was not clearly erroneous.\n \n \n 137\n Phibbs further contends that he should have been granted a reduction in offense level for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. In a statement furnished to the district court, Phibbs acknowledged that he was aware, or should have been aware, that he was given money that was the product of Murr's cocaine deals. Once Murr was arrested, it became clear to him that the money was, in fact, drug-related. Thus Phibbs avers that he \"truthfully admitte[d] the conduct comprising the offense(s) of conviction.\" Application Note 1(a) to U.S.S.G. § 3E1.1.\n \n \n 138\n However, the district court was not so sure. It told Phibbs' counsel that \"I have read his statement, and I don't think that the statement even comes close to a contrite heart and acceptance of responsibility.\" Accordingly, the court denied Phibbs' request for a sentence reduction under U.S.S.G. § 3E1.1.\n \n \n 139\n We approve of the court's decision. Phibbs did not even begin to address the scope of the charges on which he was convicted. To the extent that he did, he did not do so in good faith. There was evidence that he understood all along he was collecting tainted money, and that he was enlightened with respect to the magnitude of the drug distribution ring. Rogers' testimony indicated that he continued his criminal conduct after Murr was arrested. In no way did he assist law enforcement authorities in their probe of the ring's activities. Hence Phibbs could not be said to have accepted responsibility for his offenses in a manner contemplated by the federal sentencing guidelines.\n \n V.\n Victor Rojas\n \n 140\n A. The Government's Use of Grand Jury and Administrative Subpoenas\n \n \n 141\n Rojas contends that the district court erred in allowing the government to employ administrative subpoenas to uncover evidence without a finding of probable cause that a crime had taken place. He also claims that the government abused the grand jury subpoena power by using it to gather additional evidence in support of the previously-returned indictment.\n \n \n 142\n After Rojas was arrested on January 9, 1991, he was informed that a sealed indictment had been returned against him on May 2, 1990. His counsel filed motions for discovery and inspection, and received materials including Rojas' telephone records, and those of defendants Kenneth Lawson and Mary Lawson. These records had been subpoenaed after the May 1990 indictment. In addition, his attorney was provided with Rojas' credit card statements, subpoenaed on January 17, 1991, defendant William Baird's telephone records, ordered subpoenaed on June 19, 1990, as well as other items.\n \n \n 143\n Rojas subsequently moved to dismiss the indictment based upon the government's alleged abuse of the grand jury subpoena power. He argued that the government improperly utilized this power to obtain materials to supplement the indictment already handed down. The district court denied Rojas' motion after a hearing at which the government represented that the materials in question were secured by way of DEA administrative subpoenas, not grand jury subpoenas.7 At trial, Rojas, joined by his co-defendants, objected to such subpoenas having been being employed without a demonstration of probable cause before a neutral magistrate.\n \n \n 144\n Pursuant to 21 U.S.C. § 876(a) (Subpoenas--Authorization of use by Attorney General):\n \n \n 145\n In any investigation relating to his functions under this subchapter with respect to controlled substances ... the Attorney General may subpena witnesses, compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation.\n \n \n 146\n The Attorney General may delegate this power to special agents in charge of those criminal investigations covered by the statute. United States v. Hossbach, 518 F.Supp. 759, 765-66 (E.D.Pa.1980) (citing 28 C.F.R. Subpart R, Appendix § 7(a)). The sorts of items that are capable of being procured as a result plainly include the records presently in controversy. Id. at 767 (telephone records); United States v. Mountain States Tel. & Tel. Co., 516 F.Supp. 225 (D.Wyo.1981) (telephone records).\n \n \n 147\n Once a targeted individual has been indicted, the government must cease its use of the grand jury in preparing its case for trial. United States v. Breitkreutz, 977 F.2d 214, 217 (6th Cir.1992). It may, however, continue to employ the grand jury process as part of an ongoing investigation, possibly leading to further charges against the subject of the former indictment. Id. Section 876 of title 21 simply furnishes the Attorney General and his delegates with an alternative mechanism for carrying on the investigation. However, unlike the grand jury system, it may also be used to discover evidence related to the charges in the original indictment.8\n \n \n 148\n Recipients of administrative subpoenas, such as those issued in accordance with 21 U.S.C. § 876, are afforded certain protections under the Fourth Amendment to the United States Constitution. The subpoena has to be \"sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance [would] not be unreasonable.\" See v. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943 (1967).\n \n \n 149\n If it is a subpoena duces tecum, the government does not have to secure a judicial warrant before service is effectuated. Nonetheless, \"the subpoenaed party [must be able to] obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.\" Id. at 545, 87 S.Ct. at 1740. See also Donovan v. Lone Steer, Inc., 464 U.S. 408, 415, 104 S.Ct. 769, 773, 78 L.Ed.2d 567 (1984).\n \n \n 150\n Should an on-premises search and inspection be required to execute the subpoena, a valid search warrant is needed as a condition precedent if consent is not forthcoming. If, as in the instant case, the subpoena is to be based upon 21 U.S.C. § 876, \"and the purpose behind the search [is] ... a quest for evidence to be used in a criminal prosecution,\" a full probable cause showing is mandatory.9 United States v. Lawson, 502 F.Supp. 158, 165 (D.Md.1980). See also Michigan v. Tyler, 436 U.S. 499, 508, 512, 98 S.Ct. 1942, 1949, 1951, 56 L.Ed.2d 486 (1978). A showing which only comports with \"reasonable legislative or administrative standards\", as when regulatory noncompliance is suspected, will not suffice. See Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). See also Marshall v. Barlow's Inc., 436 U.S. 307, 320, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978) (\"Probable cause in the criminal sense is not required\" to undertake administrative search aimed at uncovering civil violations of the Occupational Health and Safety Act).\n \n \n 151\n Here, the administrative subpoenas were not directed at Rojas, but rather at third party businesses. As a consequence, he did not have standing to dispute their issuance on Fourth Amendment grounds, unless he could demonstrate that he had a legitimate expectation of privacy attaching to the records obtained. See, e.g., United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is evident, however, that Rojas did not have both an actual and a justifiable privacy interest in any of these materials, including his credit card statements and telephone records. See Smith v. Maryland, 442 U.S. 735, 742, 99 S.Ct. 2577, 2581, 61 L.Ed.2d 220 (1979) (in case involving pen register, the Court \"doubt[ed] that people in general entertain any actual expectation of privacy in the numbers they dial\"); United States v. Miller, 425 U.S. 435, 440-41, 96 S.Ct. 1619, 1623, 48 L.Ed.2d 71 (1976) (records of bank transactions were not \"private papers,\" over which a person could claim ownership or possession, but were business records). The information contained within them was readily accessible to employees during the normal course of business. Rojas therefore lacked standing to challenge the government's use of the subpoenas.10\n \n \n 152\n The situation would not have been different if the government had infringed upon the constitutional rights of those entities subpoenaed. One generally does not have standing to complain about the breach of another's rights. See, e.g., Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). As it happened, none of the parties subpoenaed was opposed to turning over the requested items.\n \n \n 153\n B. Motion In Limine Related to Rojas' Colombian Origins; Motion For Mistrial Based Upon References to Rojas' Colombian Ties\n \n \n 154\n Rojas further asserts that the district court should have granted his motion in limine to prohibit the government from mentioning his having been born in Colombia, or from introducing his passport records, which revealed that he had journeyed to Colombia several times, ostensibly to visit relatives, in the three to five years prior to his arrest.11\n \n \n 155\n Rojas also argues that a mistrial was warranted because of inflammatory references that were made concerning his connections to Colombia. In his view, they were gratuitous and were designed both to arouse ethnic bias and to tap into the jury's presumed eagerness to combat the national drug crisis, including by way of a misguided verdict. See United States v. Solivan, 937 F.2d 1146, 1153-54 (6th Cir.1991) (urging jury to \"strike a blow to the drug problem\" was \"harmful to the constitutional right to a fair trial\"); United States v. Doe, 903 F.2d 16, 25 (D.C.Cir.1990) (appeals to racial passion affected jury impartiality). He cites three such references aside from those adverted to regarding his motion in limine.\n \n \n 156\n First, the government was allowed to call a federal prisoner, Andres Tealdo, as a witness and to ask him leading questions. This led Tealdo to testify that he knew Rojas in 1989, and that Rojas told him that he sold cocaine from Colombia. Second, the government stated during its closing argument that \"Robert Dale Murr could pick up a telephone and arrange for his cocaine broker, the Defendant Kenneth Lawson, to have a Columbian drug dealer, Victor Rojas, bring him kilogram quantities of cocaine by Kentucky by a phone call.\" Lastly, on cross-examination, Jerry Parks referred to Rojas on one occasion as \"Victor Manuel Noriega Rojas.\" While not a direct reference to his background, Rojas claims that, by implication, it drew attention to his ties to Colombia, a country commonly understood to be a hub in the international drug trade.\n \n \n 157\n Motions in limine to exclude evidence are reviewed for an abuse of discretion. We detect no such abuse in the instant case. That Rojas had ties to Colombia and travelled there frequently was relevant to the government's contention that he was the cocaine supplier in the charged conspiracy. We believe that, as proffered for such a legitimate purpose, the complained-about evidence was not unduly prejudicial. See Fed.R.Evid. 403.\n \n \n 158\n The denial of a mistrial motion is also assessed under the abuse of discretion standard. Moore, 917 F.2d at 220. Before Tealdo took the stand, the district court and counsel held a lengthy bench conference, during which they discussed the implications of his anticipated evidence. The government expected that Tealdo's testimony would be that Rojas admitted to him that he was a drug dealer whose cocaine source was in Colombia. Significantly, defense counsel objected only on the grounds that this would constitute irrelevant and prejudicial evidence of other \"bad acts,\" relying upon Rule 404(b) of the Federal Rules of Evidence. We are of the opinion that it was properly allowed in and was not, in fact, inflammatory. As a consequence, the portion of the government's closing argument about which Rojas complains had a basis in evidence.\n \n \n 159\n As for Parks' calling him \"Victor Manuel Noriega Rojas,\" Rojas suggests that this was harmful because General Noriega's highly-publicized drug trial was underway in Florida at the same time as the instant proceedings. While such a reference was inappropriate, it was an isolated remark and we are satisfied that it did not deprive him of a fair trial. See Bowers, 739 F.2d at 1055. Accordingly, the district court did not err in denying Rojas' motion for a mistrial.\n \n \n 160\n C. The Rojas \"Photospread\"\n \n \n 161\n Rojas also alleges that only after the government's examination of witness Vivian Cummins did he first become aware that she had been shown a \"photospread\" containing his picture as part of her pretrial identification of him. He contends that this violated his right under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny to any exculpatory or impeachment evidence held by the government.\n \n \n 162\n The record indicates that Rojas did request such so-called \"Brady evidence\" in the proper fashion. At side bar, the government averred that defense counsel had been provided with a copy of the photospread \"before Ms. Cummins even hit the stand.\" Whether this was so, we are persuaded that Cummins had a sufficient basis for her pretrial identification of Rojas, independent from any refreshment provided by the photospread. As a result, Rojas' timely mistrial motion need not have been granted.\n \n D. The Confidential Presentence Information\n \n 163\n Rojas, on behalf of his co-defendants, next asserts that the district court erred in allowing confidential presentence information to be submitted by the United States Probation Office without affording him an inspection of the materials, and an opportunity to comment as to their import.\n \n \n 164\n At a hearing where sentencing matters were discussed, defense counsel asked whether the district judge had any confidential presentence information in his possession. The judge indicated that he did, but maintained that it was not the sort of material he was obligated to divulge:\n \n \n 165\n [A]ny information that I may get, directly or indirectly, from the probation officer independent of the presentence report of a confidential nature ... is solely--if any information that I receive from the probation office, directly or indirectly, is for my illumination and my consideration, and it would not be of any--any use or benefit to you or the defendant at all. And that information is exempt.\n \n \n 166\n The district judge then overruled counsel's motion, made in accordance with Rule 32(c)(3)(B) of the Federal Rules of Criminal Procedure, for a summary of the confidential information.\n \n \n 167\n The information in question was placed under seal, and we examined it. It consisted of nothing more than the probation officer's sentencing recommendations concerning defendants. Pursuant to Fed.R.Crim.P. 32(c)(3)(A), such recommendations are not required to be disclosed to the accused. Consequently, the district court did not withhold any sentencing information that defendants were entitled to examine.\n \n E. Acceptance of Responsibility\n \n 168\n Finally, Rojas argues that he should have been given a two-point reduction in offense level under the federal sentencing guidelines for acceptance of responsibility. Rojas asserts that he offered to plead guilty and to acknowledge that he conspired to distribute, and did distribute, the amount of cocaine charged in the indictment. However, according to his attorney, there was a dispute with the government \"over Mr. Rojas' remembrance or memory of what quantities came down here on a certain date, and Mr. Parks and Mr. McKeehan's memory.\" As a result, the government would not enter into a plea agreement with Rojas, and he subsequently went to trial.\n \n \n 169\n Rojas claims that, in spite of his desire to admit his wrongdoing, his offense level was not lowered because he did not, in fact, plead guilty. Consequently, he contends that he was penalized for exercising his right to a trial as guaranteed by the Sixth Amendment to the United States Constitution.\n \n \n 170\n Section 3E1.1 of the sentencing guidelines (Acceptance of Responsibility) does not inflict an across-the-board penalty upon those defendants who go to court to contest their prosecution. Application Note 2 to the section plainly provides that:\n \n \n 171\n Conviction by trial ... does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.\n \n \n 172\n It is well established that a penal scheme which extends a benefit to defendants who own up to their conduct does not unconstitutionally burden those who exhibit no remorse. See, e.g., Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970). A plea of guilty is an indication of contrition, so it is not surprising that \"leniency is more often granted to defendants who accept responsibility by pleading guilty.\" United States v. Saunders, 973 F.2d 1354, 1362 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1026, 122 L.Ed.2d 171 (1993).\n \n \n 173\n The record reveals that Rojas' acceptance of responsibility was not unconditional; he was keenly interested in securing a plea agreement. Rojas' counsel stated explicitly that \"because of my understanding that the United States cannot give him any assurance that he will not be prosecuted in any other district, then he is not pleading guilty ... I want to state on the record that he is willing to plea, except for the Government said they would not promise to prosecute him in any other districts.\" He also complained that the government \"[was] not willing to cut [Rojas] one iota\" as part of a bargain because, in his view, Rojas' testimony might not resonate with that of Parks and McKeehan. Notwithstanding Rojas' equivocation, the district judge told him that he would \"take ... into account\" his alleged readiness to concede his culpability. The court need not have done so; that it did demonstrates that its failure to give Rojas an offense level reduction under section 3E1.1 was not punishment for his having stood trial.\n \n \n 174\n However, the court ultimately felt that Rojas' refusal to testify against his co-defendants, which may have resulted in the acquittal of one of them, and to adequately divulge information about his superiors in his cocaine supply network was significant. The district court's findings concerning a defendant's acceptance of responsibility for his offense are not to be reversed unless clearly erroneous. Perry, 908 F.2d at 58. \"The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.\" Application Note 5 to U.S.S.G. § 3E1.1. Applying such a standard here, we do not believe the district court's particular conclusion as to Rojas was improper.12\n \n VI.\n Robert Murr\n A. The Plea Agreement\n \n 175\n Murr claims that his convictions should have been dismissed by the district court because he had entered into an earlier plea agreement with the government in the Eastern District of Tennessee. Murr contends that the terms of this agreement precluded his prosecution in the case at bar.\n \n \n 176\n On August 17, 1989, Murr was arrested in Knoxville, Tennessee, and was later indicted for cocaine distribution and for using a telephonic device to facilitate such distribution. In January of 1990, Murr agreed in writing to plead guilty to the distribution charges in exchange for the government moving to drop the remaining counts of the indictment at sentencing. The agreement provided in part that:\n \n \n 177\n If the defendant complies with the terms of this agreement, the United States will not further charge the defendant in the Eastern District of Tennessee for those non-tax-related offenses of which it presently has knowledge. It is further agreed that the defendant will not be prosecuted in the Northern District of Georgia for any non-tax-related offenses concerning actions involving Bobby Joe Wilson.\n \n \n 178\n The last paragraph of the agreement underscored that:\n \n \n 179\n The parties further agree that this plea agreement constitutes the full and complete agreement and understanding between the parties concerning the defendant's guilt to the above-referenced charges, and that there are no other agreements, promises, undertakings or understandings between the defendant and the United States.\n \n \n 180\n In his motion for dismissal, Murr asserted that the promise that he would not be prosecuted in the Eastern District of Tennessee or in the Northern District of Georgia was actually meant to signify a global resolution of his criminal exposure. He based this assertion on purported representations by government counsel to this effect. Furthermore, according to Murr, it was logical that such was the intention of the parties because the only investigations of his activities known to be underway were in those districts. His counsel supposed that it would not have been reasonable for him to demand that the United States Attorney contact every jurisdiction in which Murr's conduct might possibly be under scrutiny.\n \n \n 181\n The district court, however, rejected these arguments. It held that, on its face, Murr's plea agreement did not restrict the government from trying him in the Eastern District of Kentucky on the instant indictment. Its finding is subject to the clearly erroneous standard of review. See United States v. Robison, 924 F.2d 612, 614 (6th Cir.1991).\n \n \n 182\n In determining whether a plea agreement has been broken, \"the trial court should look to what the defendant reasonably understood\" when he entered into the agreement. United States v. Herrera, 928 F.2d 769, 771 (6th Cir.1991). However,\n \n \n 183\n [i]t is impossible for a trial judge to properly administer a plea agreement if it consists of secret terms known only to the parties. Furthermore, \"a plea bargain itself is contractual in nature and 'subject to contract-law standards.' \" ... [W]here Rule 11 procedures were fully adequate, absent extraordinary circumstances, or some explanation of why defendant did not reveal other terms, at least when specifically asked to do so by the court, a defendant's plea agreement consists of the terms revealed in open court[.]\n \n \n 184\n Baker v. United States, 781 F.2d 85, 90 (6th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986) (citations omitted). Hence, as the district court observed, the most persuasive evidence of what a defendant reasonably appreciated as his bargain is found in the plain language of the court-approved agreement.\n \n \n 185\n Here, Murr participated in intensive negotiations with the government over a possible plea bargain. He was invited to advise the government of other districts in which he required protection from prosecution so that they might be considered for inclusion in any agreement. In response, Murr raised concerns about his criminal liability in the Northern District of Florida, as well as in the Eastern District of Tennessee and the Northern District of Georgia. However, the ultimate product of the negotiations only contained an agreement not to prosecute him in the latter two venues. This promise was kept.13 See United States v. Turner, 936 F.2d 221, 225 (6th Cir.1991) (United States Attorney's grant of \"criminal immunity\" within the Southern District of Florida did not bar prosecution in the Eastern District of Michigan).\n \n \n 186\n Murr expressly acknowledged that the plea agreement he struck \"constitute[d] the full and complete agreement and understanding between the parties concerning the defendant's guilt to the above-referenced charges, and that there are no other agreements, promises, undertakings or understandings between the defendant and the United States.\" (Emphasis added.) In doing so, we are satisfied that he comprehended the terms of the agreement. Thus, the district court did not err in finding that they had not been breached.\n \n \n 187\n Nonetheless, Murr insisted to the district court that he was lulled by the government into \"letting sleeping dogs lie\" with regard to other judicial districts where he might be criminally liable. Murr maintained that the government knew or should have known that charges against him were being prepared in the Eastern District of Kentucky. It then \"sandbagged\" him into not seeking a no-prosecution provision in his plea agreement pertaining to that venue.\n \n \n 188\n The district court did not accept Murr's characterization of events. It concluded that the government, and specifically the Assistant United States Attorney who was negotiating with Murr, was unaware of his drug operation reaching into Kentucky until Jerry Parks was debriefed in late February of 1990. The record bears out such a conclusion, as does common sense. It is most unlikely that the government would have agreed to the deal that it did--five years' imprisonment--if it had been apprised of the full extent of Murr's alleged offenses. As the court opined, the burden was on Murr to obtain the best plea bargain that he could. Not surprisingly, he decided to keep silent about his cocaine venture in Kentucky, running the risk that it would eventually be exposed by the government. Unhappily for him, he lost this gamble and was indicted there. As we detect nothing akin to fraud surrounding the construction of the Tennessee plea agreement, the district court was correct in not going beyond its four corners to find that it did not bar Murr's prosecution in the instant case.\n \n B. Sufficiency of the Evidence\n \n 189\n Murr next contends that there was insufficient evidence underlying his conviction for having engaged in a continuing criminal enterprise.\n \n \n 190\n Five elements comprise a continuing criminal enterprise offense:\n \n \n 191\n (1) a felony violation of the federal narcotics law; (2) as part of \"a continuing series of violations;\" (3) \"in concert with five or more persons;\" (4) for whom the defendant is an organizer or supervisor; and (5) from which he derives substantial income.\n \n \n 192\n United States v. English, 925 F.2d 154, 156 (6th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2810, 115 L.Ed.2d 983 (1991) (quoting 21 U.S.C. § 848(c) (1988)). Viewing the evidence in the light most favorable to the government, we are persuaded a rational trier of fact could have determined that Murr's conduct satisfied these elements beyond a reasonable doubt.\n \n \n 193\n The evidence revealed that Murr distributed thousands of dollars worth of illicit narcotics in an ongoing criminal venture. His challenge to his conviction under 21 U.S.C. § 848 primarily rests on his assertion that he did not manage or organize \"five or more persons,\" with whom he acted \"in concert.\" We believe, however, that the government proved that Murr supervised at least six other individuals in such a context: Jerry Parks, Jim Hurt, Diane Whited, Tommy McKeehan, Robert Phibbs, and Ernie Nicely.\n \n \n 194\n Jerry Parks was brought to Knoxville through Murr's machinations in order to sell cocaine to his pre-existing customers. Parks did so from August of 1988 until May of 1989. He obtained the drug in Kentucky at Murr's direction and, from January of 1989 until May of 1989, stored it in Knoxville. Murr paid him $500 for each kilogram of cocaine that he transported from Kentucky and $100 for each ounce of the drug that he delivered to Murr's customers.\n \n \n 195\n Murr argues that Parks' employment with him could not have been used to support his continuing criminal enterprise conviction because the government was aware that Parks was selling drugs for him in the Eastern District of Tennessee when it entered into its plea agreement with him there. As we have explained, however, this agreement did not shield Murr from prosecution in the Eastern District of Kentucky. In addition, it did not prevent the government from using evidence which it possessed at the time to prove a criminal offense of which it did not then have actual knowledge. See United States v. Sutton, 794 F.2d 1415, 1423 (9th Cir.1986).\n \n \n 196\n After Parks was arrested in May of 1989 on a burglary charge, Murr brought in Jim Hurt to take over some of Parks' functions. See United States v. Chalkias, 971 F.2d 1206, 1214 (6th Cir.1992) (approving customers is indication of coordination of another). Hurt sold cocaine to Edward Rogers but, as this cocaine was not of acceptable quality, Rogers stopped buying from Hurt. Murr then began supplying Rogers himself.\n \n \n 197\n Murr asserts that Hurt, who stepped into Parks' shoes, could not have been considered a distinct \"person\" for purposes of 21 U.S.C. § 848. However, as long as the defendant was an organizer or a supervisor of a \"larger criminal organization,\" it is irrelevant that particular underlings came and went and were replaced. United States v. Bafia, 949 F.2d 1465, 1470-71 (7th Cir.1991). See also United States v. Bond, 847 F.2d 1233, 1237 (7th Cir.1988) (\"A small time dope dealer who keeps to himself and has a single mule to smuggle the drug into the country is outside the statute's scope. The dealer's need to replace his aide ... would not authorize a CCE prosecution on the theory that the small-timer had one servant in January, a second in February, a third in March, and so on. The organization would never be larger than two.\"). Here, there was evidence that Murr coordinated a drug distribution enterprise of some dimension. As a result, Hurt could have been counted as a separate \"person\" who was managed by him.14\n \n \n 198\n The cocaine that was procured by Murr from September through November of 1988 was stored in the house he rented for defendant Diane Whited. See Chalkias, 971 F.2d at 1214 (storage of drugs in domicile of another implies existence of managerial relationship). Murr placed the drugs under Whited's dominion during that time and, on at least one occasion, she helped Murr and Parks weigh and package them. Parks made 15 to 20 trips to Whited's residence during the fall of 1988 to pick up cocaine which he then sold to Murr's customers. She, in turn, \"watched\" some of money that was generated from these transactions. She was plainly a supervisee of Murr's.\n \n \n 199\n While defendant Tommy McKeehan had his own customers to whom he sold drugs, he was also supervised in many respects by Murr. Each of McKeehan's excursions to Kentucky to buy cocaine, except for one, was arranged by Murr. During the initial trips, McKeehan travelled with Murr and was dependent upon him to get the drugs from defendant Kenneth Lawson and then to give McKeehan his share. Eventually, Murr assigned Parks to accompany McKeehan to Kentucky in his stead. Only the May 1989 trip was put together by McKeehan, after Murr told him it would be all right to bypass Lawson and to contact defendant Victor Rojas directly. \"The ordinary meaning of the word 'organizer' does not carry with it the implication that the organizer is necessarily able to control those whom he or she organizes.\" United States v. Ray, 731 F.2d 1361, 1367 (9th Cir.1984). Although McKeehan had a significant degree of free agency vis-a-vis Murr, Murr facilitated his cocaine purchases; in turn, McKeehan lent support to Murr's efforts and submitted to his authority. Hence, Murr \"organized\" him in a manner coming within the ambit of 21 U.S.C. § 848.\n \n \n 200\n On Murr's instructions, Robert Phibbs helped get Parks' probation transferred to Knoxville so that he might work for Murr in the drug distribution ring. When Parks sold cocaine to Murr's customers, he often gave the money he received in return to Phibbs for safekeeping. Phibbs was also part of the \"security system\" for concealing the cocaine stash after it was moved from Whited's residence. In case anything happened to Parks, he was the only other person who knew exactly where the drugs were located. After Murr was arrested in August of 1989, Phibbs collected money owed to Murr by defendant Edward Rogers from cocaine purchases made by Rogers. All of these activities suggested that Phibbs was an integral part of Murr's enterprise from September of 1988 through August of 1989.\n \n \n 201\n In 1987, Ernie Nicely entered into a partnership with Murr in several ventures. Until their assets were sold in June of 1989, Murr furnished Nicely with some of the proceeds from his drug sales to keep these businesses afloat. However, Murr required Nicely \"to cover for half the money,\" i.e., to take credit for half of the investments, even though all of the money was actually coming from Murr. Nicely understood this money to be drug-related. After the assets of the businesses were liquidated, the proceeds were delivered by Nicely to Phibbs at Murr's direction. As a result, the jury could have concluded that Murr used Nicely to knowingly launder some of the profits from the drug distribution ring. While Nicely may have been unaware of most of the details of Murr's cocaine operation, he clearly knew that Murr was trafficking in cocaine, and that his assistance was being sought in an attempt to squirrel away drug profits. He therefore agreed to the \"design or plan\" of Murr's venture. United States v. Schuster, 769 F.2d 337, 340 (6th Cir.1985) (citing Jeffers v. United States, 432 U.S. 137, 148-49, 97 S.Ct. 2207, 2214-15, 53 L.Ed.2d 168 (1977)).\n \n \n 202\n Accordingly, Murr supervised or otherwise coordinated at least five persons within the framework of a continuing criminal enterprise.15 Nonetheless, Murr argues that, pursuant to 21 U.S.C. § 848, the government was obligated to prove he acted \"in concert\" with five other individuals simultaneously; evidence that five or more persons were involved in the enterprise at various times is not enough. He goes on to contend that the participation of the members of the drug distribution ring did not overlap such that he could have been shown to have managed the same five individuals in a series of drug offenses.\n \n \n 203\n Every circuit which has considered this argument has rejected it. See Bafia, 949 F.2d at 1470; United States v. Jenkins, 904 F.2d 549, 553-54 (10th Cir.1990); United States v. Ricks, 882 F.2d 885, 891 (4th Cir.1989), cert. denied, 493 U.S. 1047, 110 S.Ct. 846, 107 L.Ed.2d 841 (1990); United States v. Fernandez, 822 F.2d 382, 386 (3rd Cir.), cert. denied, 484 U.S. 963, 108 S.Ct. 450, 98 L.Ed.2d 391 (1987); United States v. Boldin, 818 F.2d 771, 775-76 (11th Cir.1987); United States v. Lueth, 807 F.2d 719, 731 (8th Cir.1986); United States v. Burt, 765 F.2d 1364, 1366 (9th Cir.1985); United States v. Young, 745 F.2d 733, 747 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); United States v. Phillips, 664 F.2d 971, 1034 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). \"The question is whether [the defendant] acted in concert with five as manager or coordinator. It is on this question that the tenure of office of the staff is irrelevant.\" Bond, 847 F.2d at 1237 (emphasis added).\n \n \n 204\n Hence, the government was only required to demonstrate that Murr had a conspiratorial agreement, as part of a design or plan, with each of at least five underlings. The five need not have acted in concert with each other. Bafia, 949 F.2d at 1471 (citing Jeffers v. United States, 432 U.S. 137, 147-49 and n. 14, 97 S.Ct. 2207, 2214-15 and n. 14, 53 L.Ed.2d 168 (1977)). We are convinced that the government met its burden in this regard.\n \n \n 205\n Murr further claims that the evidence underlying both his conviction for conspiracy and his distribution convictions was also insufficient. However, Parks' testimony was that he, Murr, and McKeehan made three trips to Kentucky in the fall of 1988 to obtain multi-kilogram quantities of cocaine from Lawson and Rojas. These drugs were then resold by them in Knoxville. In 1989, McKeehan and Parks journeyed to Kentucky on a monthly basis to procure cocaine. With one exception, Murr invested in the acquisition of these drugs, arranged the transactions, and directed the distribution of the drugs in Knoxville. McKeehan essentially gave the same account of Murr's actions at trial. Furthermore, Edward Rogers testified that he was introduced to Parks by Murr, who asked him whether he would be willing to purchase cocaine from Parks. After Parks was arrested, Murr replaced him with Jim Hurt, and when Rogers became dissatisfied with the cocaine sold to him by Hurt, Murr personally supplied Rogers. This testimony, and that of other witnesses, was corroborated by the government's introduction of hotel and telephone records, as well as books taken from Parks, which detailed some of the activities of the drug distribution ring. Such evidence could have led a rational jury to find Murr guilty of those charges on which he was convicted.16\n \n C. Bill of Particulars; Jury Instructions\n \n 206\n Murr further contends that the district court erred in denying his motion for a bill of particulars naming the five individuals whom he purportedly supervised in a continuing criminal enterprise. He asserts that, in the absence of such information, he was deprived of his ability to prepare a proper defense.\n \n \n 207\n \"The grant or denial of a motion for a bill of particulars lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.\" United States v. Rey, 923 F.2d 1217, 1222 (6th Cir.1991). \"Proof of abuse of discretion 'requires a showing of actual surprise at trial and prejudice to the defendant's substantial rights by the denial.' \" Id. (quoting United States v. Paiva, 892 F.2d 148, 154 (1st Cir.1989)).\n \n \n 208\n Absent such a showing, \"there is no requirement that an indictment or a bill of particulars identify the supervisees in a [case pursuant to 21 U.S.C. § 848].\" English, 925 F.2d at 159 (quoting United States v. Zanzucchi, 892 F.2d 56, 58 (9th Cir.1989)). The statute \"does not make the identity of the [persons managed] important\"; the government only has to prove that five or more individuals were, in fact, managed by the defendant. United States v. Beverly, 913 F.2d 337, 352-53 (7th Cir.1990).\n \n \n 209\n Our task, therefore, is to determine whether Murr was legitimately surprised at the list of alleged supervisees first referred to by the government following the close of its proof. We think that he was not. Tommy McKeehan, Diane Whited, and Robert Phibbs, were co-defendants and were further referred to in pretrial discovery. Jerry Parks and Ernie Nicely, were known by Murr to be government witnesses, and were cross-examined by him at a hearing one month prior to trial. Jim Hurt's name was included in the government's supplemental bill of particulars, filed on September 11, 1991. Murr's ex-wife, Judy, lived with him at times during the life of the conspiracy, and was adverted to in Special Agent Merryman's grand jury testimony, which was provided to Murr as Jencks Act material. See 18 U.S.C. § 3500. As a result, Murr should have been put on notice that any or all of these individuals might be persons whom the government would allege were controlled by him.\n \n \n 210\n Murr also claims that the district court erred in refusing to instruct the jury, as requested by the defense, as to which persons could not be considered one of the five predicate supervisees for a conviction under 21 U.S.C. § 848.\n \n \n 211\n When it became apparent that Murr's suggested list was unduly long, the court raised the possibility of furnishing the jury with the names of the seven individuals whom the government actually contended were managed by him. Murr's counsel, however, objected to Judy Murr's name being included in this fashion because \"we never had the opportunity to even deal with her.\" The court, feeling it was being \"whipsawed,\" then offered defendants a choice: it would either tell the jury to only consider the seven persons specified by the government, or it would give no other instructions on the matter. When Murr's counsel continued to protest, the court decided not to provide a narrowing instruction.\n \n \n 212\n We have not adopted a pattern instruction for the offense of conducting a continuing criminal enterprise. Chalkias, 971 F.2d at 1215 n. 10. The district court stepped into this void by informing the jury, in part, that\n \n \n 213\n [t]he terms organizer, supervisor, or manager are to given their usual and ordinary meanings as commonly understood by the public or business community. An organizer can be defined as a person who puts together a number of people engaged in separate activities and arranges them in their activity in one operation or enterprise. A supervisory position can be defined as meaning one who manages or directs or oversees the activities of others. In other words, the Government must prove beyond a reasonable doubt that the Defendant Murr was more than just a fellow worker, but likewise Defendant Murr need not be the dominant organizer or manager as long as he was in a managerial position with respect to five other persons.\n \n \n 214\n In United States v. Chalkias, we held that a less-detailed instruction than this one was not \"so deficient as to constitute plain error.\" Id. at 1215. There, we were invited to adhere to a ruling by the Ninth Circuit that\n \n \n 215\n where the jury had a confusing array of persons presented, some of whom could be counted [as persons managed by a CCE defendant] and some of whom could not be counted, it was plain error to fail to instruct the jury as to who could not count towards [the defendant's] conviction of a continuing criminal enterprise.\n \n \n 216\n Id. at 1214 (quoting United States v. Jerome, 924 F.2d 170, 173 (9th Cir.), opinion replaced, 942 F.2d 1328 (9th Cir.1991)).\n \n \n 217\n Jerome involved a situation where the government had argued to the jury that the defendant could be viewed as the organizer of his \"suppliers\" and \"the suppliers of his suppliers.\" 924 F.2d at 172. The Ninth Circuit was of the opinion that this was incorrect as a matter of law, holding that \"an organizer within the sense of the statute [is more than] simply being a steady customer.\" Id. at 173. Accordingly, the district court's lack of an instruction in this regard was troublesome.\n \n \n 218\n The circumstances were different in Chalkias; the government did not put before the jury \"an erroneous list of persons managed by [the defendant].\" 971 F.2d at 1215. Consequently, we determined that the holding in Jerome was not applicable. We also declined to take the position that \"failure to give an instruction setting out the persons that could not be considered to have been managed by a CCE defendant is per se plain error.\" Id.\n \n \n 219\n In the case at bar, as in Chalkias, the government did not mislead the jury concerning who, as a matter of law, could be deemed to be a supervisee of Murr's.17 This leads us to reach the same conclusion as we did there--that the jury was not subjected to undue confusion \"in the context of the case as a whole.\" Id.\n \n \n 220\n Murr further suggests that the district court should have instructed the jury that, in order to convict him of directing a continuing criminal enterprise, it had to unanimously determine the identities of the five individuals he supervised or organized. As the jury was under no duty to make such a finding, Murr's argument lacks merit. Id. at 1214 n. 7. See also English, 925 F.2d at 157-58.\n \n \n 221\n Additionally, Murr asserts that the district court should have instructed the jury that a mere buyer-seller relationship does not establish one that is supervisory in nature. See Chalkias, 971 F.2d at 1214. However, the evidence adduced at trial indicated that none of the individuals the government contended he managed was in a buyer-seller relationship with him. Therefore, he was not entitled to the requested instruction. See United States v. Canino, 949 F.2d 928, 941 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1701, 118 L.Ed.2d 410 (1992).\n \n \n 222\n D. The Government's Disclosure of Brady and Jencks Act Materials\n \n \n 223\n Lastly, Murr asserts that the government did not turn over relevant exculpatory and impeachment evidence to defendants in a timely manner, thereby denying them a fair trial.\n \n \n 224\n Pursuant to the Jencks Act, 18 U.S.C. § 3500(b), \"[a]fter a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.\"\n \n \n 225\n Furthermore, as a general matter, the government is required \"upon request, to give a defendant any exculpatory information the prosecut[ion] may have which is material to guilt or innocence.\" United States v. Bibby, 752 F.2d 1116, 1125 (6th Cir.1985) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). Similarly, the accused must be afforded any relevant impeachment evidence. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Unlike the Jencks Act, the force of Brady and its progeny is not limited to the statements and reports of witnesses.\n \n \n 226\n Murr calls our attention to the following Brady and Jencks Act materials which the defense either did not receive or, in his opinion, did not receive in time to have used effectively at trial: documents reporting suspected wrongdoing by Tommy McKeehan; notes from government-conducted interviews of McKeehan; probation officer Ed Lynn's file on Jerry Parks; forms outlining government payments to Parks and Ernie Nicely; information about Parks' association with an individual named Sam Scruggs in a cocaine distribution scheme; checks made out to Parks by Murr and drawn on Automotive Enterprises; the original of a letter by Robert Phibbs to the United States Probation Office offering Parks a job with Automotive Enterprises; Parks' tape recordings recounting his participation in a variety of drug transactions; Jencks Act material derived from Edward Rogers; and Parks' prison records. Murr contends that, had defendants been able to take advantage of these materials, they might have influenced the jury's assessment of their culpability.\n \n \n 227\n The record reveals that defendants were, in fact, able to make use of Parks' tapes at trial, playing portions of them to the jury. Likewise, the defense employed Lynn's file on Parks to conduct a searching cross-examination of the officer.\n \n \n 228\n As for Parks' prison records, the government maintains that they were never in the prosecution's control and that it was otherwise unaware of any exculpatory information contained within them. See Bibby, 752 F.2d at 1125 (due process requires only that government, upon request, divulge to defendant relevant exculpatory evidence possessed by the prosecution); United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976) (Brady doctrine only covers evidence which prosecution knew or should have known was exculpatory). The government did eventually provide the records to defense counsel just before Parks was cross-examined, and they were exploited accordingly.\n \n \n 229\n The government furnished the defense with records concerning payments made to Parks and Nicely stemming from their respective service as informants. Other memoranda were given to the district court under seal because they included information regarding their whereabouts following their relocation by the government. The court reviewed these documents in camera and determined they had no impeachment value beyond those materials which defendants already had obtained. Our own examination of the memoranda confirms this. Their suppression did not act to \"undermine confidence in the outcome\" of the instant case. Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.\n \n \n 230\n With regard to the Phibbs letter and the checks made out to Parks by Murr, government counsel stated to the district court that these materials only \"came to [his] attention\" after the discovery deadline had passed. He then promised to turn them over to defendants. When the government could not find the original Phibbs letter, it sought to introduce a copy into evidence; the district court sustained a defense objection to the copy being admitted. While there are conflicting accounts of whether the checks were, in fact, furnished to the defense, Murr was able to introduce into evidence an Automotive Enterprises check written out to Parks by Phibbs, and had the opportunity to cross-examine Parks about the check. Assuming, arguendo, that defendants did not receive the checks, the totality of the evidence presented convinces us there was not a reasonable probability that, had they been disclosed, the results of the trial would have been different. See Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987).\n \n \n 231\n Government counsel and Special Agent Merryman interviewed McKeehan before trial regarding his drug dealing. McKeehan did not, however, adopt the notes that were taken at these interviews as \"substantially verbatim to the statement[s] given [by him].\" United States v. Williams, 962 F.2d 1218, 1224 (6th Cir.), cert. denied, Williams v. United States, --- U.S. ----, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992) (quoting United States v. Arnold, 890 F.2d 825, 829 (6th Cir.1989)). As a result, they did not constitute Jencks Act material.\n \n \n 232\n The defense also requested information concerning McKeehan's plea agreement with the government, and any investigations of criminal wrongdoing on his part touched upon by the agreement. In response, defendants were provided with copies of the agreement, which named 16 judicial districts where the government had afforded McKeehan protection from prosecution. In addition, they were given copies of both McKeehan's \"rap sheet\" and an affidavit from his treating psychiatrist.\n \n \n 233\n The government went on to describe to defendants two incidents of cocaine transportation which explained the inclusion of most of the 16 districts in McKeehan's plea agreement. Defendants, however, asked for additional information which would account for the remaining districts; in particular, they sought the results of a Tennessee grand jury investigation into McKeehan's activities. Government counsel asserted that it was not required to divulge evidence concerning \"suspected\" wrongdoing or ongoing criminal investigations. He then represented to the district court that the government had disclosed all \"tangible\" records of established wrongdoing, i.e., McKeehan's criminal history and misconduct acknowledged by him as part of his plea bargain.\n \n \n 234\n Evidence in the prosecution's files related to the \"suspected\" wrongdoing of a witness must be made known to the defendant if it is favorable to the accused and is material to the question of his guilt or innocence. See Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. The Supreme Court, in construing the government's obligations under Brady v. Maryland and its offspring, has drawn no distinction between such evidence and that pertaining to proven or admitted criminal behavior.\n \n \n 235\n Frequently, though, evidence associated with \"suspected\" wrongdoing will not be admissible even for impeachment purposes, having no bearing on the capacity for truth of any witness. Furthermore, even if logically relevant, its prejudicial effect may nonetheless substantially outweigh its probative value, thus pointing towards its exclusion. See Fed.R.Evid. 403. Additionally, its probative value may be eclipsed by the likely harm resulting from its public revelation, such as to persons embroiled in the case, or to others, or to the success or direction of a continuing official investigation. However, in the unusual instance that its suppression acted to deny a defendant a fair trial, reversal is mandated. See Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.\n \n \n 236\n Here, we are satisfied that defendants were accorded the lion's share of any evidence the government had that properly could have been used to impeach McKeehan. The defense incisively cross-examined him on the basis of this evidence. We do not feel the outcome of the proceedings would have been altered if defendants had been privy to the information which was withheld from them.\n \n \n 237\n In the case of Rogers, defendants were furnished with copies of his plea agreement, which memorialized his guilty plea to the conspiracy charged in the case at bar, as well as to a RICO charge flowing from a pending investigation in the Eastern District of Tennessee. They were also given copies of Rogers' \"rap sheet,\" information regarding sundry other \"bad acts\" committed by him, and copies of five reports of government interviews with him.\n \n \n 238\n The government did not, however, provide the defense with transcripts of FBI interviews with Rogers concerning his awareness of facts pertinent to the Tennessee RICO investigation. These documents were filed under seal with the district court, which found that they did not contain exculpatory information. We concur with the court's decision not to compel the release of this material.\n \n \n 239\n The information concerning Parks' transportation of cocaine for Sam Scruggs in the summer of 1988, just prior to the time he joined the charged conspiracy, was also kept under seal by the district court. Much of it probably would not have been admissible as probative of Parks' character for truthfulness. See Fed.R.Evid. 608(b). At most, if disclosed to the defense, it would have constituted cumulative impeachment evidence. Accordingly, its suppression does not require that defendants' convictions be vitiated. Having thus concluded that the district court's handling of defendants' Brady and Jencks Act concerns was appropriate, Murr's contention must be rejected.\n \n \n 240\n AFFIRMED.\n \n \n \n *\n The Honorable David D. Dowd, Jr., United States District Court for the Northern District of Ohio, sitting by designation\n \n \n 1\n Huckelby asserts that no evidence was adduced that he was present in the Eastern District of Kentucky during the life of the conspiracy. This, however, is of no moment. Venue lies in any district in which an overt act was committed in furtherance of the charged conspiracy. See United States v. Turner, 936 F.2d 221, 226 (6th Cir.1991)\n \n \n 2\n In addition, the district court permitted defendants to utilize a total of 26 peremptory challenges\n \n \n 3\n Each member of the jury venire did fill out the official juror's questionnaire form\n \n \n 4\n Unlike Fed.R.Evid. 615(2), Rule 615(3) does not restrict the number of witnesses who may be deemed \"essential to the presentation of [a] party's cause.\"\n \n \n 5\n Finken was the case agent in Kentucky, while Merryman was stationed in Tennessee\n \n \n 6\n Since all appropriate arguments of one defendant have been adopted by the other defendants, the government assumes that Huckelby and Whited joined in Phibbs' argument concerning acceptance of responsibility, and that Huckelby joined in his argument regarding a sentence reduction for minimal participation in concerted activity. We do not make such an assumption, since these issues are largely fact-specific and are not common to the group\n \n \n 7\n Our review of the record confirms that the subpoenas in controversy were, indeed, administrative subpoenas. Accordingly, we need not address Rojas' grand jury-related argument\n \n \n 8\n It is also distinct from Rule 17(c) of the Federal Rules of Criminal Procedure (Subpoena--For Production of Documentary Evidence and of Objects)\n \n \n 9\n In such a context, the reasonableness of giving the warrant without advance notice to the subject and an opportunity to be heard is to be analyzed consistent with those Fourth Amendment principles applicable to criminal warrants\n \n \n 10\n Rojas' co-defendants were likewise devoid of standing\n \n \n 11\n At the time of his arrest, Rojas was a legal alien residing in New Jersey\n \n \n 12\n Although Rojas has joined in the arguments of the other defendants, we do not consider Rojas to have challenged the sufficiency of the evidence supporting his convictions. Such a contention is generally unique to any given defendant. As it is not our function to craft an appellant's arguments, he may not simply \"join\" the briefs of his co-defendants on this issue\n \n \n 13\n It may have been nothing more than good fortune for Murr that this was so. \"[I]t is unclear that a United States Attorney in one judicial district has the power to bind another United States Attorney in another judicial district.\" United States v. Turner, 936 F.2d 221, 225-26 (6th Cir.1991)\n \n \n 14\n Murr asserts that, as the government's theory that Hurt was a supervisee of his was never advanced in front of the grand jury, there was a fatal variance between the indictment and the evidence introduced at trial. As a result, Murr argues that he was denied his Fifth Amendment right to be tried only upon those offenses which were first presented to a grand jury. The Supreme Court has concluded that an indictment is sufficient \"if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.\" Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). It is \"generally sufficient if it sets forth the words of the statute itself, as long as the statute itself adequately states all of the elements of the offense.\" United States v. Paulino, 935 F.2d 739, 750 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 883, 116 L.Ed.2d 787 (1992). Here, the indictment emanating from the grand jury tracked the statutory language of 21 U.S.C. § 848, without naming any of the five persons purported to have been organized or managed by Murr. However, we have held in regard to a conspiracy charge that \"it is the grand jury's statement of the 'existence of the conspiracy agreement rather than the identity of those who agree' which places the defendant on notice of the charge he must be prepared to meet.\" United States v. Piccolo, 723 F.2d 1234, 1239 (6th Cir.1983) (en banc) (quoting United States v. Davis, 679 F.2d 845, 851 (11th Cir.1982)). Similarly, with a continuing criminal enterprise offense, there is no requirement that the indictment set out the identities of five alleged supervisees; the government need only demonstrate at trial that five or more persons were, in fact, supervised. Murr also asserts that his Fifth Amendment rights were violated when the government did not pursue before the petit jury its theory, which it had put to the grand jury, that L.D. Welch and Conrad Schultz were part of his criminal enterprise. To Murr, this constituted an improper modification of the indictment. However, it is well established that a \"variance between the broad allegations in the indictment and the narrower proof at trial\" is acceptable so long as \"the offense proved was fully contained within the indictment.\" United States v. Miller, 471 U.S. 130, 137, 105 S.Ct. 1811, 1816, 85 L.Ed.2d 99 (1985). Such was the situation here\n \n \n 15\n The government had also asserted that Murr's ex-wife, Judy Murr, was controlled by him. In ruling upon Murr's motion for judgment of acquittal, the district court found that there was \"no direct evidence that she was consciously a part of the drug conspiracy or did anything in furtherance of the conspiracy.\" After reviewing the record, we concur in the court's holding\n \n \n 16\n Murr especially takes issue with his convictions on count two (possession of cocaine with intent to distribute, or aiding and abetting the same, on or about August 25, 1988) and count nine (possession of cocaine with intent to distribute, or aiding and abetting the same, on or about May 8 or 9, 1989) of the indictment. With regard to count two, there was evidence that Murr planned to obtain four kilograms of cocaine from Lawson near Lexington, Kentucky, on the date charged. However, the transaction did not come off because Parks, who was carrying the money, was delayed in reaching the Kentucky rendezvous site. The deal was ultimately consummated after other arrangements were made. It was reasonable to infer that when Murr met with Lawson on August 25, one or both of them possessed the cocaine, though the exchange did not actually take place on that date. Even if the cocaine was exclusively in Lawson's possession, liability could be imputed to Murr as a co-conspirator under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). As for count nine, the evidence showed that Parks and McKeehan travelled to Kentucky to acquire one kilogram of cocaine, which was brought by McKeehan with his own money. However, Murr set up the purchase and sent Parks, his subordinate, to accompany McKeehan on the trip. Furthermore, after Parks and McKeehan returned to Knoxville, Tennessee, about half of the kilogram of cocaine was conveyed to Parks on Murr's behalf because their supply of the drug had run out. This was supported by Parks' seized drug records, which showed that he had \"borrowed\" approximately 16 ounces of cocaine from McKeehan in May of 1989. Thus, there was sufficient evidence to sustain Murr's conviction on count nine\n \n \n 17\n In passing upon Murr's motion for judgment of acquittal, the district court found there was insufficient evidence that Judy Murr was managed by Murr. The jury, however, was not categorically misinformed about her conduct as was the jury in Jerome. In that case, the Ninth Circuit held that persons who have the status of suppliers cannot be said to have been \"organized\" by their customers. Nothing that Judy Murr supposedly did to advance the charged conspiracy put her in a similar position\n \n \n ","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"united-states-v-robert-phibbs-92-5509-victor-rojas-92-551292-5523"} {"case_name":"Calimino Woods, Jr. v. State of Florida","citation_count":0,"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2014-07-30","date_filed_is_approximate":false,"id":2687052,"opinions":[{"download_url":"https://edca.1dca.org/DCADocs/2014/1442/141442_DC05_07032014_113118_i.pdf","ocr":false,"opinion_id":2687052,"opinion_text":" IN THE DISTRICT COURT OF APPEAL\n FIRST DISTRICT, STATE OF FLORIDA\n\nCALIMINO WOODS, JR., NOT FINAL UNTIL TIME EXPIRES TO\n FILE MOTION FOR REHEARING AND\n Appellant, DISPOSITION THEREOF IF FILED\n\nv. CASE NO. 1D14-1442\n\nSTATE OF FLORIDA,\n\n Appellee.\n\n_____________________________/\n\nOpinion filed July 3, 2014.\n\nAn appeal from the Circuit Court for Escambia County.\nGary L. Bergosh, Judge.\n\nCalimino Woods, Jr., pro se, Appellant.\n\nPamela Jo Bondi, Attorney General, Tallahassee, for Appellee.\n\n\n\n\nPER CURIAM.\n\n AFFIRMED.\n\nPADOVANO, WETHERELL, and MAKAR, JJ., CONCUR.\n\f","page_count":1,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"calimino-woods-jr-v-state-of-florida"} {"attorneys":"Robert H. Rines, Boston, Mass., for appellant., Frederick M. Woodruff, St. Louis, Mo., for appellee.","case_name":"Bolt, Beranek and Newman, Inc. v. McDonnell Douglas Corporation, Bolt, Beranek and Newman, Inc. v. McDonnell Douglas Corporation","case_name_full":"BOLT, BERANEK AND NEWMAN, INC., Appellant, v. McDONNELL DOUGLAS CORPORATION, Appellee; BOLT, BERANEK AND NEWMAN, INC., Appellee, v. McDONNELL DOUGLAS CORPORATION, Appellant","citation_count":4,"citations":["521 F.2d 338"],"court_full_name":"Court of Appeals for the Eighth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Eighth Circuit","court_type":"F","cross_reference":"See 96 S.Ct. 855.","date_filed":"1975-08-15","date_filed_is_approximate":false,"headmatter":"\n Before JONES, Senior Circuit Judge,\n \n *\n \n and HEANEY and HENLEY, Circuit Judges.\n
\n WARREN L. JONES, Senior Circuit Judge, Fifth Circuit, sitting by designation.\n
\nWhen a party is not obliged to jroduce a peeper in his possession. — when an irrelevant statement of a witness cannot be contradicted to discredit his testimony— a jury may convict on theuncorroborated testimony of an accomplice — what ques- ■ turns may be put to a witness to impeach him.
","id":6256476,"judges":"Hardin, Smith, Talcott","opinions":[{"author_str":"Hardin","ocr":true,"opinion_id":6123926,"opinion_text":"\nOpinion by\nHardin, J.;\nTalcott, P. J., and Smith, J., concurred.\nJudgment and conviction affirmed, and proceedings remitted to the Court of Sessions of Ontario county, with directions to enforce the same.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"stape-v-people","summary":"Writ of Error to the Court of Sessions of Ontario county, with a bill of exceptions containing all the evidence, to review the trial and conviction of the plaintiff in error of grand larceny. The plaintiff was indicted in February, 1879, for grand larceny, committed October 2, 1878, in the town of Gorham, by taking a horse and buggy from one Murray \"Witter’s barn burglariously in the night-time, in company with Frederick Lauer. The latter was discharged upon the trial. The jury having convicted the plaintiff in error, he was sentenced to four years’ imprisonment. James L. Bush and his wife Adelaide were the principal witnesses called to establish the crime. Bush, having been charged with the crime, was arrested, and, having pleaded guilty, was committed to await trial. Before this trial came on a justice of the peace, by the name of Doolittle, called upon Bush, and took down a statement of the details of the crime, and took his affidavit thereto and lodged it with the district attorney, who had possession of it when Bush was upon the stand as a witness. The justice was called and testified that he delivered the statement to the district attorney shortly after he took it from Bush. Thereupon the prisoner’s counsel asked the district attorney to produce it and the district attorney refused, stating it was made at his request and for his use. At an earlier stage of the trial, Bush was asked in the course of his cross-examination about making the affidavit, and he stated it was made the Sunday after he was lodged in jail, and stated that he could not say what was done with the paper. Thereupon the prisoner’s counsel called for the paper, and the district attorney refused to give it up. At a later stage of the trial, the case states that the prisoner’s counsel “again called upon the district attorney for the affidavit made by Bush, which was refused for reasons stated before.” The prisoner’s counsel claims that it was important that the affidavit should be produced “ to impeach the evidence of Bush; and the district attorney had no right to smuggle this paper away to prevent a legitimate use of it.” The court, at General Term said : “We do not find that the district attorney in any manner ‘ smuggled the paper away.’ It was made preparatory for his use, as we must assume from the statements already quoted, and kept by the district attorney after it was placed in his hands by Justice Doolittle. He had apparently the legal and proper custody of the statement and affidavit. Nor do we find any evidence in the case, which would justify us in concluding that the affidavit was ‘ evidence ’ which could be properly used upon the issue involved. There was nothing given to show that the witness Bush had ■ made any different statement of the transactions in the affidavit from his evidence before the court. Until that fact was made to appear we fail to see how the affidavit could have been used, had it been handed over to the prisoner’s counsel. We are not to presume that it would contradict the witness, nor that the district attorney had any improper motive in keeping possession of it. Nor do we think he was under any duty to part with its possession upon the demand of the prisoner’s counsel ; we do not think we have before us an attempt £ to stifle or suppress evidence.’ (1 Graham & Waterman on New Trials, 55; People v. Yermilyea, 1 Cow., 369.) It is not necessary for us to pass upon the question whether the prisoner’s counsel might not have obtained an inspection of the affidavit by proper diligence, in advance of the trial, or by calling the district attorney as a witness with a subpoena duees teeum. Such diligence was not used. (People v. Yermilpa, supra.) \\ . . “ Nor can we say that the refusal of the court to allow Gates and H. Hannon to testify to statements made by Bush when in jail, as to his stopping at Harmon’s barn to steal his horse, and found him so thin he would not and did not take him. The prisoner, it is true, had asked Bush if he made such a statement, and he said he did not. The fact was not material to any fact involved in the issue; nor was it relevant or material to the evidence given in chief by Bush. Its exclusion is, therefore, justified by the rule we have laid down in People v. Gox * (10 Weekly Digest, 29, op. of Smith, J.); 1 Wharton Ev., 559 ; Ga/rpenter v. Ward (30 N. Y., 243); Marx v. People (63 Barb., 618); Ross v. Achermcm (46 N. Y., 210). . . . “The witness, Walters, was asked — did you desert from the army? This was objected to by the prisoner’s counsel, and the objection was overruled and an exception taken. The witness stated, viz.: £ I don’t know whether I did or not.’ He. did not claim his privilege. If he had been convicted of the crime of desertion. he would have been a competent witness, though his'conviction might have been, shown to affect his credibility, and it might have been proven by the record, or by his own oath. (Code of Civ. Pro., § 832.) The party examining him might not have been concluded by his answer. (§ 832.) But the question put to the witness, was as to his guilt or innocence of the crime of desertion. In the absence of a claim of his privilege, we think the question was proper. (Great Western Tel. Go. v. Loomis, 32 N. Y., 127; Shepard v. Parker, 36 Id,, 517.) This is distinguishable from the case of People v. Grapo (15 Hun, 269 ; affirmed, 76 N. Y., 288), as in that case the inquiry was simply as to whether he had been charged with bigamy. “ There was no error committed in the charge to which an exception was taken. {Brotherton v. People, 75 N. Y., 162.) It was not error for the court to refuse to charge the jury that they could not convict on the uncorroborated evidence of the accomplice. They were cautioned to scan, criticise, scrutinize and weigh cautiously the whole evidence, and if they came to the conclusion that the prisoner, beyond a reasonable doubt, was guilty, they should convict. The charge accorded with the settled rule in this State,. that a jury have the right to accept the evidence of an accomplice, and though it be contradicted by the prisoner, find the prisoner guilty. (.Raskins v. People, 16 N. Y., 344; Frazer v. People, 54 Barb., 306; People v. Haynes, 55 Id., 450 ; People v. Pyle, 21 N. Y., 578 ; People v. La/wton, 56 Barb., 126 ; Li/ndsary v. People, 63 N. Y., 143.)”"} {"attorneys":"Elisabeth Kosterlitz, Assistant District Attorney, for the Commonwealth., Patricia A. DeJuneas for the defendant.","case_name":"Commonwealth v. Cabrera","case_name_full":"Commonwealth v. Enrique Cabrera","case_name_short":"Commonwealth","citation_count":0,"citations":["76 Mass. App. Ct. 341"],"court_full_name":"Massachusetts Appeals Court","court_jurisdiction":"Massachusetts, MA","court_short_name":"Massachusetts Appeals Court","court_type":"SA","date_filed":"2010-02-25","date_filed_is_approximate":false,"id":6589295,"judges":"Grasso","opinions":[{"author_str":"Grasso","ocr":true,"opinion_id":6463715,"opinion_text":"\nGrasso, J.\nOn October 15, 2007, Boston police officers arrested the defendant, Enrique Cabrera, after a patfrisk revealed that he was unlawfully carrying a loaded firearm. The defendant *342moved to suppress the firearm and other evidence seized, and after an evidentiary hearing, a judge of the Boston Municipal Court allowed the defendant’s motion.1 The judge concluded that the police lacked the requisite reasonable suspicion of criminal activity to stop the defendant and the requisite reasonable apprehension of danger to frisk him.\nA single justice of the Supreme Judicial Court allowed the Commonwealth’s application for an interlocutory appeal from the allowance of the defendant’s motion to suppress. See Mass. R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The case is now before us on the Commonwealth’s interlocutory appeal. For the reasons that follow, we reverse the order of suppression.\n1. Facts. We summarize the facts, supplementing the judge’s factual findings “with uncontested testimony from the suppression hearing, . . . mindful that assessment of witness credibility is the province of the motion judge.” Commonwealth v. Murphy, 63 Mass. App. Ct. 11, 12 (2005) (citation omitted). On October 15, 2007, at around 10:00 p.m., Boston police Detectives Greg Walsh and Michael Feeney were patrolling in plain clothes in an unmarked Jeep sport utility vehicle in the vicinity of the Cathedral Housing Project in the South End section of Boston.2 In the course of their patrol, they observed a grey Chrysler 300 automobile with Virginia license plates and three occupants, which was not remarkable for any reason other than its out-of-State license plate. Because it was a slow night, the officers decided to run a check on the vehicle’s plate. The check disclosed that the car was a rental vehicle, a fact that was significant to Walsh, who had extensive experience in drug investigations. In Walsh’s experience, rental vehicles are often “tools of the trade” for persons involved in drug distribution and other illegal activities.3\nWalsh and Feeney followed the Chrysler at a distance as it *343traveled to the Massachusetts Bay Transportation Authority’s Back Bay Station on Dartmouth Street, a location known for drug dealing. En route, the officers did not observe the Chrysler commit any motor vehicle violations or its occupants engage in any actions indicative of criminal activity.\nJust after the Chrysler passed the Back Bay Station, it made a U-turn on Dartmouth Street and pulled over to the curb. After a few seconds, the Chrysler pulled back into traffic in the opposite direction. As it did, a gray Volkswagen Jetta automobile with tinted windows began to follow the Chrysler. The officers observed no signals, waving of the hands, or other acknowledgments exchanged between the two vehicles or their occupants.\nThe officers followed the two vehicles at a distance for several blocks. As they did, they ran a check on the Volkswagen’s license plate and learned that the vehicle was registered to an individual named Mary Ortiz Gementis from Southbridge. Upon reaching 365 Massachusetts Avenue, a multi-unit apartment building, the two vehicles pulled into a dead-end public alley that ran along the side of the building. Without blocking egress, the officers positioned their unmarked vehicle at the beginning of the alley. From that vantage, the officers saw the vehicles come to a stop and park in two parking spaces along the left-hand side of the alley.4\nThe officers observed the operator of the Chrysler, later identified as Emilio Rosado-Lara, exit the vehicle and meet up with the defendant, who exited the driver’s side of the Volkswagen. The two men entered a common hallway in the rear of 365 Massachusetts Avenue. Meanwhile, the two passengers (later identified as David Medina and Carlos Reyes) exited the Chrysler, as did the passenger in the Volkswagen (later identified as Francisco Agron). The three men stood near the cars and began-talking.\nSuspecting that a drug transaction was afoot, the officers drove down the alley and parked their unmarked vehicle without blocking the Chrysler or the Volkswagen. With their badges displayed conspicuously from their necks, the officers approached the three men standing alongside the two vehicles. Detective Feeney asked them who owned the Volkswagen, which was still *344idling with no operator or passenger inside. The men responded by shaking their heads to indicate that they did not know to whom the car belonged, a response that the officers considered untruthful. As this was occurring, Walsh noticed Medina take out his cellular telephone, place it down by his side, and attempt to dial a number. Concerned that Medina was attempting to alert someone to the presence of the police, Walsh asked Medina to stop and put the telephone away. Medina then told Walsh that he lived at 365 Massachusetts Avenue, that Reyes was his uncle, and that Agron was a friend of theirs.\nAs Medina explained this, the rear door to 365 Massachusetts Avenue opened and Rosado-Lara came out, followed closely by the defendant. The men appeared surprised by the officers’ presence in the alleyway. Rosado-Lara made eye contact with Walsh and abruptly turned around and attempted to go back inside, bumping into the defendant. Because the door had shut and locked, the men could not reenter. Both Rosado-Lara and the defendant began looking around nervously, scanning the scene. They looked to Walsh as if they wanted to flee.\nWalsh did not know precisely why Rosado-Lara and the defendant were acting as they did, but considering what he and Feeney had observed and the fact that they were outnumbered and in an alley with only one route of egress, he was fearful for his safety and decided that a patfrisk for weapons was in order. Walsh ordered the five individuals to place their hands on the top of one of the cars and called for backup to assist in the patfrisk. While waiting for backup to arrive, all the men complied with Walsh’s order.5\nWithin two minutes of Walsh’s call, Officers Donga and Hynes and Sergeant Detective Fitzpatrick arrived on the scene. At Walsh’s direction, Donga conducted a patfrisk of the defendant and found a gun loaded with five rounds in the rear pocket of the defendant’s baggy jeans.\n2. Discussion. “[W]e accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Costa, 65 Mass. App. Ct. 227, 229-230 (2005), quoting from *345Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Although the judge’s subsidiary factual findings are supported by the record, we disagree with his conclusion that the police lacked reasonable suspicion of criminal activity to justify a stop, see Commonwealth v. Moses, 408 Mass. 136, 140 (1990), and reasonable apprehension of danger to justify a frisk. See Commonwealth v. Mercado, 422 Mass. 367, 369-370 (1996).\nWe view the case as presenting another example of the increasingly fine, and sometimes indiscernible, line between conduct that is permissible under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights and conduct that is not. Compare Commonwealth v. DePeiza, 449 Mass. 367, 371-372 (2007) (defendant’s straight-arm gait and shielding of his side from view provided reasonable suspicion that he possessed firearm unlawfully), and Commonwealth v. Johnson, 454 Mass. 159, 163-164 (2009) (officers investigating possible trespass in high crime area “not required to accept risk of . . . ambiguity” posed by defendant who disregarded command to take his hands out of his pockets), with Commonwealth v. Gomes, 453 Mass. 506, 512-514 (2009) (although stop of defendant was properly based on reasonable suspicion of drug activity, no reasonable safety concern supported frisk). On balance, we conclude that the facts known to the police at the time they ordered the defendant to put his hands on the car sufficed to support a stop and a patfirisk for weapons.\na. Reasonable suspicion and the stop. The stop of the defendant in the constitutional sense did not occur until Walsh directed the defendant and his companions to place their hands on top of the car.6 See Commonwealth v. DePeiza, supra at 370-371 (no seizure when police stepped from unmarked vehicle and engaged in conversation with defendant); Commonwealth v. Gomes, supra at 510 (no seizure of defendant until officer conducted patfrisk); Commonwealth v. Martin, 73 Mass. App. Ct. 526, 530-532 (2009) (same). Prior to that time, the police neither *346commanded the defendant to stop nor displayed any indicia of authority to signal that he was not free to leave. See Commonwealth v. Williams, 422 Mass. 111, 116 (1996) (merely following without activating lights and siren not stop in constitutional sense); Commonwealth v. Sykes, 449 Mass. 308, 314 (2007) (stop did not occur until police left cruiser and began chasing defendant). Indeed, the officers had no interaction with the defendant at all until he and Rosado-Lara emerged from the building.\nBy the time the officers commanded the defendant to place his hands on the car, specific and articulable facts supported a reasonable suspicion that a drug deal was occurring and that a threshold detention and further inquiry were in order. See Commonwealth v. Santaliz, 413 Mass. 238, 242 (1992) (in eyes of experienced narcotics investigator, whole “silent movie” disclosed sequence of activity consistent with drug sale); Commonwealth v. Kennedy, 426 Mass. 703, 710-711 (1998) (even though officer did not see what was exchanged, his training, education, and knowledge supported reasonable suspicion of drug transaction); Commonwealth v. Stephens, 451 Mass. 370, 384-385 (2008) (reasonable suspicion of drug transaction arose from observations by experienced officers).\nDetectives Walsh and Feeney observed two motor vehicles from outside the Boston area meet at a known rendezvous for drug transactions. One was a rental vehicle, a known tool of the drug trade. Without exchanging signals, the vehicles proceeded in concert to a location out of public view, a dead-end alley. There, one individual from each vehicle met and went inside a building for less than a minute while the other occupants remained outside. From the officers’ perspective, it was reasonable to suspect that the remaining occupants were acting as lookouts and that the defendant left his vehicle’s engine idling to allow for a quick departure should the need arise. Viewed through the eyes of experienced police officers and as a whole, even seemingly innocent activities may take on a sinister cast and give rise to reasonable suspicion. See Commonwealth v. DePeiza, 449 Mass. at 373 (police may rely on experience and training as basis for reasonable suspicion); Commonwealth v. Sykes, 449 Mass. at 314.\nAdding to the officers’ suspicion that a drug deal was afoot *347was the evasive response of the occupants to their inquiry regarding ownership of the Volkswagen, Medina’s surreptitious attempt to make a call (an action that reasonably could be construed as an attempt to warn the defendant or others of the presence of the police), and the behavior of the defendant and Rosado-Lara who, at the mere sight of the police, tried unsuccessfully to reenter the building and then looked nervously about the alley as if searching for a place to flee. See Commonwealth v. Sykes, supra; Commonwealth v. Wilson, 52 Mass. App. Ct. 411, 415 (2001), and cases cited (flight from police a relevant factor when not triggered by inappropriate police action); Commonwealth v. Monteiro, 71 Mass. App. Ct. 477, 480 (2008) (same).\nMoreover, from all that appeared to the officers, the deal was more than a casual drug transaction at street level. The number of participants, the use of a rental vehicle with out-of-State plates, and the measures taken to avoid detection reasonably suggested that the five individuals were engaged not in an isolated, hand-to-hand street-level sale, but a drug deal of more than inconsequential magnitude. See Commonwealth v. Kennedy, 426 Mass. at 710-711. Indeed, the facts known to the officers reasonably supported the conclusion that it was highly unlikely that five individuals, in vehicles registered outside the locale, would meet in Boston to conclude a drug transaction unless the deal were of such a magnitude as to justify the time and expense. That there may have been an innocent explanation for the actions of the defendant and his cohorts does not remove those actions from consideration in the reasonable suspicion analysis. See Commonwealth v. Gomes, 453 Mass. at 511. In sum, when the facts and inferences underlying the officers’ suspicions are viewed in their totality, they constitute more than a hunch; they add up to reasonable suspicion. See id. at 512.\nb. Reasonable apprehension of danger and the frisk. For a stop or for a frisk, the inquiry is whether, viewed objectively, the facts available to the officer at the moment of the seizure (the stop) or the frisk (the weapons search) would “warrant a [person] of reasonable caution in the belief that the action taken was appropriate.” Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Not every stop justifies a frisk. Even when police possess reasonable suspicion of criminal activity, a frisk is only permissible when, viewed objectively, there is a reasonable apprehension of *348danger to the police or others. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997). “Two questions arise in connection with a determination whether a police officer had a sufficient, reasonable basis to conduct a patfrisk: (1) was the officer rightfully in the presence of the party who was ultimately frisked; and (2) did the officer have a reasonable basis to suspect that this party was likely to be armed and dangerous.” Commonwealth v. Johnson, 454 Mass. at 162. As just discussed, the police possessed reasonable suspicion of criminal activity and were rightfully in the presence of the defendant when they ordered him and his companions to put their hands on the roof of the car and submit to a frisk.\nWhether the officers had a reasonable basis to suspect that the defendant was likely to be armed and dangerous presents a closer question that is dependent on more than a single factor. A reasonable apprehension of danger may arise from the type of crime being investigated, the likelihood that a defendant is armed and dangerous, or both in combination. The extent of the danger is central to “assessing whether the force used by the police in the encounter was commensurate with their suspicion.” Commonwealth v. Willis, 415 Mass. 814, 820 (1993).\nHere, the crime under investigation was not a crime of violence, or one involving the possession or use of a dangerous weapon. See Commonwealth v. Vesna San, 63 Mass. App. Ct. 189, 193 (2005) (given crime under investigation, police entitled to determine whether individuals were armed and posed danger). Nor had the police received a report of a firearm or a dangerous weapon being brandished. See Commonwealth v. Fraser, 410 Mass. 541, 546 (1991); Commonwealth v. Foster, 48 Mass. App. Ct. 671, 676-677 (2000). Rather, the police had reasonable suspicion only that a drug deal was occurring, albeit one of some magnitude.\nWe acknowledge that the case law often observes that the mere fact that drugs are involved does not support the view that guns or other weapons are present. “[Wjhile drug involvement certainly may be a relevant factor in assessment of threats to police safety, we are reluctant to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous for constitutional purposes.” Commonwealth v. Washington, 449 Mass. 476, 482-483 (2007). Cf. Commonwealth *349v. Jimenez, 438 Mass. 213, 220 (2002) (general averment that it is common for drug dealers to possess firearms insufficient to establish probable cause for “no knock” search warrant); Richards v. Wisconsin, 520 U.S. 385, 390-392 (1997). We also recognize that Detectives Walsh and Feeney observed no bulges in the defendant’s clothing that would suggest that the defendant was armed and dangerous. Compare Commonwealth v. DePeiza, 449 Mass. at 372. Nor did the defendant or any of his companions make furtive gestures or ignore the officers’ commands to keep their hands on the car.7 Compare Commonwealth v. Johnson, 454-Mass. at 163-164. Nevertheless, viewed collectively and not in isolation, the situation encountered by the police gave rise to the requisite safety concerns justifying a frisk. See Commonwealth v. Nestor N., 67 Mass. App. Ct. 225, 230 (2006).\nAs discussed, the suspected drug activity was not an isolated sale between two individuals at street level, but a transaction of sufficient magnitude to occupy five men, two vehicles, and precautions designed to minimize police surveillance. The officers found themselves outnumbered five to two, at night, and in a dead-end alley. They knew nothing of the defendant or the other individuals, or whether any other participants might remain inside the building.8 In such a rapidly developing circumstance, it was neither imprudent nor constitutionally unreasonable for the police to view the whole as greater than the sum of its parts and conclude that sufficient danger existed to merit a patffisk and that backup was required to do so safely. See Commonwealth v. Sinforoso, 434 Mass. 320, 325 (2001).\nNor did the arrival of backup render a frisk unnecessary. See Commonwealth v. Torres, 433 Mass. 669, 676 (2001) (arrival of backup officers prior to frisk does not diminish justification for frisk). It would be a perverse principle were police who possess the authority to frisk but are reasonably fearful of doing so to lose that authority when sufficient backup arrives to conduct *350the frisk safely. See Commonwealth v. Willis, 415 Mass. at 820-821 (patfrisk permissible where officers outnumbered defendant and approached with guns drawn).\nCommonwealth v. Gomes, 453 Mass. at 512-513, does not dictate a different result. There, a majority of the court concluded that the police lacked a reasonable basis for concluding that a sole defendant engaged in a hand-to-hand street-level drug sale in the open doorway of a building that fronted a street in the heart of the theater district was armed and dangerous. The situation encountered by police here is markedly different and presents obvious dangers that were lacking in Gomes. As the Supreme Judicial Court has observed, “While a mere hunch is not enough, ... it does not take much for a police officer to establish a reasonable basis to justify [a] . . . search based on safety concerns, and if the basis is there, a court will uphold the order.” Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999) (internal citation omitted). The police are “not required to gamble with their personal safety,” Commonwealth v. Robbins, 407 Mass. 147, 152 (1990); see Commonwealth v. Feyenord, 445 Mass. 72, 75-76 (2005), and are entitled- to take reasonable precautions for their protection. See Commonwealth v. Willis, 415 Mass. at 817; Commonwealth v. Johnson, 454 Mass. at 164. Here, the police response was reasonable and proportional to the danger, and we are loath to second guess that judgment. See Commonwealth v. Willis, supra at 819-820; Commonwealth v. Stampley, 437 Mass. 323, 327-328 (2002).\n\nOrder allowing motion to suppress reversed.\n\n\n The judge also denied the Commonwealth’s motion to reconsider.\n\n\n The unmarked Jeep was not equipped with blue lights, sirens, or other emergency equipment common to police vehicles.\n\n\n A rental vehicle is not as readily subject to seizure and can be easily exchanged for a different make and model. As well, occupants of a rental vehicle can more easily disclaim knowledge of drugs or other contraband discovered inside.\n\n\n Lights mounted on the back of the building illuminated the area. Also posted along the wall were several “No Trespassing” signs.\n\n\n The judge expressly discredited Walsh’s assertion that the men took their hands off the vehicle several times before ultimately complying.\n\n\n To the extent that ordering Medina to put away his cellular telephone may have effected a stop of Medina, the defendant has no basis for challenging that action. See Commonwealth v. Montanez, 410 Mass. 290, 301 (1991) (determination turns on whether police conduct has intruded on constitutionally protected privacy interest of defendant).\n\n\n As discussed, the motion judge specifically discredited the claim that the defendant or any of his companions failed to comply with the officers’ command to keep their hands on top of the car until backup arrived. See note 5, supra.\n\n\n The officers were not required to believe Medina’s assertion that he lived at 365 Massachusetts Avenue. Medina had attempted to use his cellular telephone to alert someone to the presence of the police and did not tell the police that he lived there until after he was caught attempting to make a call.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"January 13, 2010.","precedential_status":"Published","slug":"commonwealth-v-cabrera"} {"case_name":"Melson v. Allen","case_name_full":"Robert Bryant Melson v. Richard F. Allen, Commissioner, Alabama Department of Corrections","case_name_short":"Melson","citation_count":0,"citations":["177 L. Ed. 2d 1081","2010 U.S. LEXIS 5124","130 S. Ct. 3491","561 U.S. 1001"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2010-06-21","date_filed_is_approximate":false,"id":6797582,"opinions":[{"ocr":true,"opinion_id":6682484,"opinion_text":"\nPetition for rehearing granted. Order entered October 5, 2009, denying the petition for writ of certiorari vacated. Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of *1082Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010).\nSame case below, 548 F.3d 993.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"melson-v-allen"} {"attorneys":"Mr. J. 8. Grogan, for plaintiff (appellant)., Jfessrs. Glenn & Manly, for defendant.","case_name":"Long v. Home Insurance Co.","case_name_full":"S. L. LONG v. HOME INSURANCE COMPANY OF NEW ORLEANS","case_name_short":"Long","citation_count":0,"citations":["114 N.C. 465"],"court_full_name":"Supreme Court of North Carolina","court_jurisdiction":"North Carolina, NC","court_short_name":"Supreme Court of North Carolina","court_type":"S","date_filed":"1894-02-15","date_filed_is_approximate":true,"id":6807889,"judges":"Clakk","opinions":[{"author_str":"Clakk","ocr":true,"opinion_id":6693531,"opinion_text":"\nClakk, J.:\nThe finding of the Court below that the appearance of the defendant at August Term was a special appearance is not reviewablc.\nThe Act of 1891, ch. 120, authorizing service of summons and other process upon a non-resident by an officer of the county and State where he resides, is, as the act expresses it, only “in lieu of publication in a newspaper.” It can only be done in those cases in which publication could be made and has only the effect publication would have, except it may be that when the actual notice is brought *468Lomo, by such service to a non-resident he has not the right allowed the defendant when publication is made by The Code, §220, to defend after judgment. But as to this we need not decide now.\n“Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of ¡H’oo.ecdings taken whore property is once brought under the control of the Court by seizure, or some equivalent act. * * * Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem,; * * * process from the tribunals of one State cannot run into another State and summon parlies there domiciled to leave its territory and respond to proceedings against him.” Pennoyer v Neff, 95 U. S., 714, 727; Wilson v. Seligman, 144 U. S., 43, 44. “There is a large class of cases which are not strictly actions in rem, but are frequently spoken of as actions quasi in rem, * * * in which property of nonresidents is attached and held for the discharge of debts due by them to citizens of the State, and actions for the enforcement of mortgages and other liens.” Freeman v. Alderman, 119 U. S., 185; Hornthall v. Burwell, 109 N. C., 10. Where the proceeding is for the enforcement of mortgages or other liens, or the condemnation of a right of way or other- easement, or the partition of realty and the like, the jurisdiction as to non-residents only authorizes a judgment acting upon the property. Where the enforcement of a debt or other personal liability is sought by subjecting property of the non-resident the jurisdiction is based upon *469the seizure of the property aucl only extends to the property attached. In neither case can any personal judgment-be rendered against the defendant, not even for the costs, nor affecting other property of his even within the State. Winfree v. Bagley, 102 N. C., 515. The act (1891, ch. 120) allowing service of process of this State upon a non-resident where he resides does not and cannot extend the jurisdiction. It is a convenient and probably a more sure way of bringing homo to the non-resident the notice which formerly was made solely by publication. It is optional with the plaintiff which mode he shall use. Mullen v. Canal Co., at this Term. But the service of process in another State is valid only in those cases in which publication of the process would be valid. 22 A. & E. Eve., 137; York v. State, 73 Tex., 651. This is true also in action for divorce. Barton v. Burton, 45 Hun., 68.\nIn the present case, the action being for the recovery of a debt, publication of summons would have been invalid because there was no attachment of the property of defendant to confer jurisdiction. Winfree v. Bagley, supra. As no publication of summons would have been valid the actual service in another State “in lieu thereof” was equally invalid. The plaintiff declined the leave given him to amend his.proceedings to bring the defendant into court, and the Judge therefore properly dismissed the action.\nNot only has the process, issuing from one State, no extra territorial effect when served in another State (except as notice of a proceeding in rem, or quasi in rem, which could be served by publication of the notice), but even in the Federal Courts, whose jurisdiction extends throughout the Union, a personal judgment can be had against a defendant only when sued in the district where he resides. Toland v. Sprague, 12 Pet., 300. A personal judgment against a non-resident can only be obtained in a State Court *470when he can be found and served with process while in the State (Peabody v. Hamilton, 106 Mass., 217; Smith v. Gibson, 83 Ala., 284), or, if a corporation, by service on its agent there. It should be noted that the statute now (The Code, §347), as amended by chapter 77, Acts 1893, is materially different from the act in force when Wilson v. Manvfactur-ing Co., 88 N. C., 5, was'decided.. An attachment now lies for unliquidated damages arising out of breach of contract or for injury to personal or real property, but not for any other torts, such, for instance, as libel, which was the caúse of action in Winfree v Bagley, supra. No Error.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"long-v-home-insurance-co","summary":"The plaintiff caused summons to bo issued by the Clerk of Forsyth Superior Court and to be served on the defendant corporation in New Orleans by an officer of the State of Louisiana, as provided for in cli. 120, Acts of 1891. At August Term, 1893 (the return Term), the plaintiff filed his complaint and an attorney for the defendant entered a special appearance and moved to dismiss the action, for that the -defendant was not in court, and that no sufficient affidavit for summons to issue to a foreign State under oh. 120, Acts of 1891, had been made. Plaintiff’s counsel moved for judgment, stating that there was an affidavit filed or he -would file a sufficient affidavit. Iiis Honor declined to give judgment, but gave plaintiff time to file affidavits to obtain the jurisdiction of the Court, and gave to defendant time to answer. On December 4th the plaintiff filed an affidavit, as follows : “S. L. Long, being duly sworn, says that the defendant company has its general place of business in the city of New Orleans, and therefore prays a summons and asks process issue that the same may be sent to the Sheriff or other proper officer of that city.” At the December Term, 1893, defendant’s attorneys stated that they entered a special appearance with Mr. Patterson and moved to dismiss the action, for that no sufficient affidavit had been filed warranting the process of the Court or obtaining the jurisdiction of the Court; that it was admitted that the defendant was a resident of the State of Louisiana, and plaintiff had not alleged it had property within the State of North Carolina, and that the action was simply in -personam. Plaintiff moved for judgment for want of an answer, and alleged that his affidavit of December 4th was sufficient and that defendant was in court. His Honor Winston, J., held and found as a fact on the affidavit of J. L. Patterson filed and statement of counsel that a special appearance only had been entered, and asked plaintiff if he wished to file an additional affidavit or wished an alias summons. Plaintiff stated that he did not, and moved for judgment on his complaint. This his Honor declined. The defendant moved to dismiss the action, which motion his Honor granted and plaintiff appealed.","syllabus":"Practice — Special Appearance — Service of Summons Outside of State- — Jurisdiction—A ttaclini en t.
1. The finding of the Court below that an appearance entered by a . defendant in an action was a special appearance is not reviewable in this Court.
2. The service of summons and other process which ch. 120, Acts of 1891, authorizes to be made upon a non-resident by an officer of the county and State where he resides, is “in lieu of publication in a newspaper,” and can only be made in those cases where publication could be made, to-wit, in actions which are virtually proceedings ¡u rom or qvasi in ran, and in which the jurisdiction as to non-residents only authorizes a judgment acting upon the property.
3. Where an action is for the recovery of a debt and there is no attachment of the property to confer jurisdiction there can be no service by publication of the summons and, hence, actual service in another State “in lieu of publication” would be invalid.
4. Where the enforcement of a debt or other liability is sought by subjecting property of a non-resident, the jurisdiction is based upon the seizure of the property and only extends to the property attached; and no personal judgment can be rendered against the defendant, not even for the costs,- or affecting other property within the State.
"} {"attorneys":"W. F. Kerncm and C. F¡. Schmidt, for appellants. K. A. Cross and F. J). Brame, Hace, Foster á Merriclc for appellees.","case_name":"Succession of Payne","case_name_full":"Succession of A. G. Payne","case_name_short":"Succession of Payne","citation_count":0,"citations":["25 La. Ann. 202"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1873-03-15","date_filed_is_approximate":true,"headnotes":"Where the husband joins tli© wife in her petition, this is sufficient authorization to her to sue.
Where the motion was for a suspensive appeal, and the one granted was merely devolutive, if the appellant submits to this modification of his demand, the appellee, not being injured by it, can not complain.
Where the motion to appeal was made in the name of the husband and the wife, the authorization to appeal is sufficiently established, and the appeal bond can not be objected to, when made out in the name of the husband and the wife and is signed by both.
Where plaintiff was not an heir; Held — That she had no right to attack a will in so far as it related to the disposal made by the testator of his property, but that she might sue to annul it in so far as it interfered with her rights to have the tutorship of her grand children.
It is unnecessary to decide the question raised whether a testament is valid as a will by nuncupative public act, when it is good as a nuncupative will under private signature.
Where the objection to the validity of such a will was, that the person who wrote and read, it was not designated the: ein as a witness, but as a notary;
Held — That there is no law which declares that a man, because he is a notary public, is not a good witness to a will; and there can be seen no reason why he should not be.
A will can be set aside only when the law itself pronounces it to be null on accouut of the want of compliance with those formalities which are declared to be sacramental.
Where A was appointed by will tutor to minors, and at the same timo the testator declared that the care, management and raising of his children should be left in the hands of Miss B:
Held — That this was not appointing her tutrix; that this was merely giving her the personal care of the children, whilst the legal control of the persons and property of the minors was vested in A, who could as tutor, when he chose, remove them from her care.
","id":7274029,"judges":"Concurr, Howell, Ludeling, Morgan, Taliaferro, Wyly","opinions":[{"author_str":"Morgan","ocr":true,"opinion_id":7189581,"opinion_text":"\nMorgan, J.\nAppellee moves to dismiss this appeal on several grounds, which we will consider in the order in which they are presented.\nFirst — That there is no testimony in the record showing that the plaintiff was authorized to institute and prosecute this suit.\nThe husband joins the wife in the petition; this is sufficient authorization.\nSecond — That the appeal granted from the main action was a devolutive appeal, while the motion was for a suspensive appeal.\nThe fact is as stated ; but if the appellant submits to this modification of his demand, the appellee, not being injured by it, can not ■complain.\nThird — The testimony does not show that plaintiff was authorized by her husband either to institute the suit or to take the appeal.\nWe have already said that he authorized her to sue by joining her in ■the suit, and as the motion for appeal was made in the name of the ■husband and the wife, we consider the authorization to appeal sufficiently established.\n*203Fourth — -That the order of court does not fix the amount of the •appeal bond in the injunction suit if suspensive.\nThe order of appeal does fix the amount of the bond. It is fixed at ■ one hundred and fifty dollars, and the bond is made out in the name of vthe husband and the wife, and is signed by them both.\nThe motion to dismiss is therefore overruled.\n","per_curiam":false,"type":"020lead"},{"ocr":true,"opinion_id":7189582,"opinion_text":"\nOn the Merits.\nThis is a suit instituted by the maternal grandmother of the minors ¡Bayne, issue of the marriage between A. G-. Payne and plaintiffs’ daughter, both deceased, to annul the last will of A. G-. Payne, and to ■cause herself to be appointed tutrix to the children.\nThe will which is sought' to be revoked is alleged to be a nuncupative will by public act passed before a notary public and five witnesses on the thirtieth March, 1872. It gives to his two children all the property of which he dies possessed, but burdens the one-third •thereof with a usufruct in favor of Miss Annie Byrne, which is to last •during her life, or until she marries; appoints D. C. Hardee his executor, giving him seizin of his estate; constitutes him tutor to his ■children, but gives the care of them to Miss Byrne. After the will was made, and two days before his death, he married Miss Byrne.\nThe grounds upon which the will is sought to be aunulled are :\nFirst — That it does not furnish proof that it was written by the 'notary in the presence of the testator; nor in the presence of the testa'tor and of the witnesses, as required by law; nor can that fact be necessarily implied from any expression contained in the will.\nSecond — That it does not express that it was ever signed by the witnesses named therein, nor by any witnesses whatever, nor in whose presence it was signed; that the will, to be valid, should state expressly that the witnesses signed the same in the presence of the notary and of the testator; and that these facts can not be necessarily implied from any expressions contained in the will.\nThey allege further that the will is not valid as a nuncupative will by private act, because it was not read by one of the witnesses to the testator in presence of the other witnesses, as required by law.\nDefendants excepted to the petition upon the ground that plaintiff had no right of action, she being in no sense an heir of the testator, or related to him by blood.\nThis exception was maintained as to plaintiffs’ right to sue for a revocation of the will, except as regards her right to claim the tutorship of her grand children. From a judgment rendered against her the plaintiff has appealed, both upon the exception and the merits.\nThe ruling of the judge on the exception was correct. Not being an heir, she had no right to attack the will in so far as it relates to the *204disposal made by the testator of his property. But she is entitled to-the tutorship of her grand children, unless she has been legally deprived thereof. The will does deprive her of it. It is an obstacle-to the assertion of her legal rights, and she is authorized to remove it,, if she can. If the will is null, the appointment of the tutor falls, and' the tutorship, by law, will come to her. She may, therefore, sue to-annul it, in so far as it interferes with her rights.\nWe do not find it necessary to decide whether the will is valid as a. will by nuncupative public act. Assuming it not to be — upon which point however we express no opinion whatever — we are all of opinion-that it is good as a nuncupative will under private signature.\nThe will is as follows :\nBe it remembered, that on the thirty-first day of March, 1872, at the-residence of the Rev. Alexander Galbreath Payne, a resident of the Parish\" of East Feliciana, I, notary, repaired to his residence in said-parish, for the purpose of receiving his last will and testament, when and where, I, Henry Hawford, Notary Public in and for said parish,, duly commissioned and sworn, with George W. Munday, George H. Paekwood, William A. Knapp, James G. D’Armond and William Y. Broadway, five competent witnesses, males, of the full age of majority, residents of said parish of East Feliciana, came personally into the presence of said Rev. Alexander Galbreath Payne, and he dictated tome his last will and testament in the presence of the above named witnesses, and I received his dispositions in his own words in presence of said witnesses as follows:\nItem First — I give to my children, William S. and Alexander G. Payne, all of the property of which I may die possessed, with the exception of one-third, which one third I give and devise to Miss Annie Byrne, in usufruct during her lifetime, unless she should marry after my death, in which case the usufruct shaU expire.\nItem Second — I hereby appoint Colonel David C. Hardee as executor of my last will and testament, and give him full seizin of my estate; and I also appoint him tutor of my children. The care and management, and raising of my said children, I leave in the hands of Miss-Annie Byrne. And it is my last will and wish that they be entrusted to her care and personal supervision.\nAnd I, the said notary, received the foregoing testamentary disposition as dictated to me by said testator, in the presence and hearing of said five witnesses, residing in said parish and State. And I, the said notary, wrote the same as they were dictated by the testator in the presence of said five witnesses. And I then read the same in a loud tone of voice, in the presence of said five named witnesses, and in their hearing to said testator, Rev. Alexander Galbreath Payne, who declared the same to be his last will and testament, to me, notary, and *205to said five witnesses, and in the presence of said witnesses (five), and in presence of me, notary, signed the same with his own proper ■signature.\nAll of which formalities were had and observed at one time, without interruption and without turning aside to other acts, on the day and date aforesaid, at the residence of the Rev. A. C. Payne, in Clinton, •said parish. It is signed by the notary twice and by the witnesses therein named.\n“A nuncupative testament, under private signature, must be written by the testator himself, or by any other person from his dictation, or •even by one of the witnesses, in presence of five witnesses residing in •the place where the will is received, or of seven witnesses residing out •of that place.” C. C. 1574.\n, “The testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator. It must be signed by the witnesses, or at lea*t by two of them, in ease the ■others knew not how to sign.” C. C. 1575.\nThis will was written by Henry Hawford, from the dictation of the testator, in presence of five witnesses other than Hawford. It was read by Hawford to the rest in presence of the testator. It was signed by the testator and by the witnesses.\nIt is objected that it was not written or read to the testator by a witness to the will. The objection is that Hawford, who wrote and •read it was not a witness, but a notary. He is so designated in the will. But we know of no law which declares that a man, because he is a notary public, is not a just witness to a will, and we see no reason why he should not be. He was certainly a witness to everything which took place with regard to the making of the will, and all the law requires is that he should be a witness. The formalities required by the law are indispensable, it is true, to the proper making of testaments, but they are not snares and pitfalls by which the testator is to be caught, and into which he must necessarily fall when he attempts to do with his property what the law authorizes him to do with it. We are to sustain the will which legally disposes of a testator’s property, if we can, and not to pick it to pieces by criticisms, to which almost every composition is subject; we think we can only destroy it when the law itself pronounces it to be null, and for the want of compliance with those formalities which are declared to be sacramental. In the present case we see nothing to indicate that the requirements of the law were not complied with. On ti.e contrary, we think they were. It is further contended that the will is null because it, in point of fact, appoints a woman tutrix to the testator’s children. That the law does not permit a woman to be tutrix except where they are the mothers or grandmothers of the children. But in *206this case a woman was not appointed. D. C. Hardee was named. It is true the testator declared that the care and management and raising-of his children should be left in the hands of Miss Byrne. This, however, is not appointing her tutrix; it is merely giving the children to her charge and management. Hardee testifies that when asked to-assume the responsibility of tutor he declined, upon til© ground that his own family was large and that he could not, in justice to his own,, add to his duties. To obviate this objection the personal care of the-children was given to another. We do not see in this the appointment of a tutrix. We look upon it as a mere designation of a person who-would be competent to care for and manage them. It was the testator’s last will and wish that they should be intrusted to Miss Byrne’scare and personal supervision, but we do not consider this will and wish as differing in any manner from an expressed desire that they should be educated at a particular institution of learning. The test is, we believe, who has the legal control of the persons and property of the minors? The answer is, the tutor. Who is the tutor? D. C.. Hardee. So long'as ho chooses to allow them to remain under the charge of Miss Byrne he may do so, but we imagine that if he wished to remove them from her care he could not be successfully opposed^ On the contrary, we think he has the clear right to do so whenever he sees fit.\nAnother test would be this : Could Miss Byrne bind the minors in any manner? If she were to die, would the minors be without a tutor?.' These questions we think answer themselves in the negative, and dispose of the objections to the will on this point.\nThe judgment is affirmed.\nRehearing refused.\n","per_curiam":false,"type":"080onthemerits"}],"precedential_status":"Published","slug":"succession-of-payne","summary":"APPEAL from the Probate Court, parish of East Feliciana. Pipián, J."} {"attorneys":"For the plaintiff, Heyman & Heyman., For the defendant Globe Indemnity Company, Charles Stockdell Gray.","case_name":"Barrett Co. v. Globe Indemnity Co.","case_name_full":"THE BARRETT COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY v. GLOBE INDEMNITY COMPANY, A CORPORATION, AND FABIO MATAZZA","citation_count":0,"citations":["10 N.J. Misc. 534"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1932-04-09","date_filed_is_approximate":false,"id":7374418,"judges":"Oijphant","opinions":[{"author_str":"Oijphant","ocr":true,"opinion_id":7293243,"opinion_text":"\nOijphant, C. C. J.\nIt was stipulated that this case be heard by the court without a jury and that the only question involved was whether the defendant the Globe Indemnity Company was responsible for the act of its agent in issuing the bond sued on.\nOn December 29th, 1928, the borough of Bellmawr, in the county of Camden, entered into an agreement with the defendant Matazza for the construction of a highway in said county, and on the same date, it is alleged that Matazza as principal and the Globe Indemnity Company, a corporation of this state as surety, entered into a bond in the sum of $21,881.31 for the faithful performance of said contract and for the payment among other things of all subcontractors and materials furnished under the contract.\nThe plaintiff herein furnished materials in the sum of $7,372.95 on account of which there was paid $5,000, leaving a balance due of $2,372.95.\nThe work was accepted and the statutory requirements complied with.\n*535The bond was signed “Globe Indemnity Company, by Arthur P. Ellis, attorney in fact,” and the seal of the company was affixed thereto. It was not in the usual printed form but was typewritten and no power of attorney was annexed thereto to show the authority of the said Ellis.\nThe home office of the company was not advised of the execution of the alleged bond, it did not know it had been written and received no premium therefor.\nThe power of attorney issued by the Globe Indemnity Company to Ellis, and which was put in evidence, showed that the limit of the authority given to Ellis for the writing of bonds such as the one in suit was $15,000.\nUnder date of December 2fth, 1928, Ellis on a letterhead of the Globe Indemnity Company wrote to the borough of Bellmawr to the effect that the company would furnish any and all bonds required of Matazza, should he be the successful bidder for the work. That letter was signed by Ellis as attorney in fact. Uo communication was ever had by the borough of Bellmawr or Matazza with the Globe Indemnity Company except through Ellis.\nPlaintiff relies on the doctrine laid down by the Court of Errors and Appeals in Millville Fire Insurance Co. v. Mechanics and Workingmen’s Building and Loan Association, 43 N. J. L. 652, but the instant case turns up a different question than the one there decided, nevertheless the reasoning of the court in that ease bears out the conclusion I have reached herein.\nIt is true that one may rely upon the apparent authority of an agent and that one who entrusts authority to another is bound by all that is done by the agent within the scope of his apparent authority and cannot screen himself from the consequences thereof upon the ground that no authority was given to do the particular act. It is- likewise the settled law that if a person is in fact, or apparently, a general agent of the company, he stands in the place of the company with those he is doing business with, and in the absence of any limitation of his power made known to the third party, any act done by him within the apparent range of his employment is binding upon the principal.\n*536lt is also the settled law that if a third person dealing with a general agent has actual or constructive notice of a limitation upon the agent’s authority he is put upon inquiry as to the scope of the authority. Those dealing with the agent of the defendant here were bound as a matter of law to notice that the purported bond was signed by him as “attorney in fact,” and a reading of the contract and the signature with the words “attorney in fact” following it was sufficient to put those dealing with the agent and all parties connected with the transaction upon notice that they were dealing with a special agent, and, having constructive notice that such agent’s authority was limited, they were no longer justified in acting upon the agent’s apparent authority. 3 Am. Eng. E-ncycl L. (2d ed.) 281, defines an attorney in fact as “any private or special agent appointed for some particular or definite purpose not connected with a proceeding at law, by formal authority, called a letter or power of attorney, in which is expressed the particular act or acts for which he is appointed and the extent of his authority.” Black’s Law Dictionary 105, defines an attorney in fact as “a private attorney authorized by another to act in his place and stead, either for some particular purpose, as to do a particular act, or for the transaction of business in general not of a legal character. The authority is conferred by an instrument in writing called a 'letter of attorney.’ ” It is clear, therefore, that the words “attorney in fact” were notice that the agent signed as a special agent.\nIt is well settled in this state that where one receives notice that he is dealing with a special agent, he is bound to inquire the nature and extent of his authority. The cases on this point are too numerous to mention here, the more important ones being Black v. Shreve, 13 N. J. Eq. 455; Armour & Co. v. Bruner, 19 Id. 331; Cooley v. Perrine, 41 N. J. L. 322; Strauss v. Rabe, 97 N. J. Eq. 208.\n' Whatever puts one upon inquiry amounts to notice. In Hay v. Bramhall, a decision of the Court of Errors and Appeals contained in 19 N. J. Eq. 563, the court held “the general doctrine is, that whatever puts a party upon an in*537quiry, amounts in judgment of law to notice, provided the inquiry became a duty, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding.” This is apparently the leading case on this point and has been followed in numerous instances since.\nOne of the most recent decisions which applies with particular force to the case sub judice is that of Massachusetts Bonding and Indemnity Co. v. Bankers’ Surety Co., 179 N. E. Rep. 329. The facts in that case are very similar to those in the present case. In that case a bond was submitted to a county board in behalf of a general contractor, said bond being executed by a general agent and signed by said agent as “attorney in fact” for his principal. The court said: “When Bayless Harvey [the agent] signed the bond in question as ‘attorney in fact/ the board of commissioners of Du Bois county and all parties connected with such transaction, as a matter of law, were compelled to take notice that Harvey’s authority as agent was limited and special in nature and that such authority was limited by an instrument in writing, and that he depended upon the authority, special and limited in nature, delegated to him in such written instrument to execute the bond in question.”\nIn the case of Wiss v. Vogel, 86 N. J. L. 618, the Court of Errors and Appeals said:\n“The question in every such case is whether the principal lias by his voluntary act placed the agent in such a situation that a person of ordinary prudence conversant with business usages, and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question * *\nIn the present case it can hardly be said, in view of the third person failing to make inquiry, that he exercised ordinary prudence. The words “conversant with business usages, and the nature of the particular business,” seriously limit the rule as to apparent agency and the case sub judice falls within this exception.\nThe plaintiff herein was put upon inquiry by the facts, first, that the bond was signed by the agent as “attorney in fact;” *538second, that the usual form used in the regular course of business was not used, and third, that the written power of attorney was not attached thereto.\nI am convinced that the agent acted beyond the scope of his authority; that the parties with whom he dealt had notice of his limited authority; that they made no inquiry in relation thereto; that the company is not chargeable with any rule of estoppel and that judgment should be for the defendant.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"barrett-co-v-globe-indemnity-co"} {"attorneys":"Delores R. Boyd of Mandell & Boyd, Montgomery, for appellant., Rose Mary Sanders of Chestnut, Sanders, Sanders & Turner, Selma, for appellee.","case_name":"Tyson v. Tyson","case_name_full":"Willie D. TYSON v. Eva Pritchett TYSON","case_name_short":"Tyson","citation_count":0,"citations":["411 So. 2d 149"],"court_full_name":"Court of Civil Appeals of Alabama","court_jurisdiction":"Alabama, AL","court_short_name":"Court of Civil Appeals of Alabama","court_type":"SA","date_filed":"1982-03-03","date_filed_is_approximate":false,"id":7587549,"judges":"Scruggs","opinions":[{"author_str":"Scruggs","ocr":true,"opinion_id":7516568,"opinion_text":"\nSCRUGGS, Retired Circuit Judge.\nThis is a divorce case.\nThe parties were married in 1947 in Lowndes County and their four children were born in 1947, 1950, 1952 and 1954. The husband was employed by the county in its road maintenance program. He quit that employment in either 1953 or 1954, promptly moved to Montgomery, lived with his sister for the next ten years, and obtained employment there. None of his family moved to Montgomery with him. He left all of their meager possessions, consisting almost exclusively of some furniture, with the wife. They had acquired nothing of substance. They were poor, just barely living. The wife did not work prior to this separation. Their rented house had no inside plumbing, a not unusual circumstance at that time and place.\nAfter the husband had failed to provide for the support of the children for six months following the separation, the wife, through nonsupport proceedings, obtained a court order whereby he was directed to pay $7 per week for the children’s support. The husband and his sister testified that he paid $30 per month as such child support until the youngest child reached eighteen years, while the wife testified that he only paid child support for a total period of two years.\nAfter their separation, he lived his life and the wife lived hers. Two years after he left, the wife gave birth to a child by a man other than the husband. Later, the husband fathered a child by his girl friend.\nHe is fifty-eight years of age, and is presently employed at a post office as a custodian, his estimated take-home pay being around $500 biweekly. He cannot read. He now lives with his girl friend, and the two of them have been jointly purchasing a home since 1979. He stated that he is paying $200 per month upon the purchase money mortgage. The mortgage debt of $38,-800 is payable at the rate of $384.51 per month. This is the only house that he has ever owned, his interest therein being a joint ownership with his girl friend. There was no inquiry into his living expenses.\nAfter the husband moved to Montgomery, his family was on welfare. Two daughters and a grandchild presently reside with the wife. For taking care of her elderly mother who lives alone, the wife now draws $60 per month from the Department of Pensions and Security, and one of the daughters obtains assistance for her child. Both of those daughters work only part time and they contribute toward living expenses, which were not detailed.\nThe above summarizes all of the evidence. When both sides had rested, the trial court held that, although alimony had not been sought through the wife’s pleadings, the parties had litigated that matter without objection. In the subsequent judgment, which divorced the parties because of incompatibility of temperment, the trial court further ordered the husband to pay to the wife as periodic alimony the sum of $100 per month; hence this appeal.\nThe second sentence of rule 54(c), A.R. C.P., is as follows:\nExcept as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.\nThat principle is reiterated and reinforced by the following language from rule 15(b):\nWhen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.\n*151The evidence adequately allowed rules 54(c) and 15(b) to be applied by the trial court, which did not err in that respect.\nThe husband next contends that the trial court abused its discretion in awarding alimony and as to the amount thereof. Those were trial court discretionary matters, and its judgment is presumed to be factually correct upon appeal and cannot be changed by this court unless the judgment is unjust or palpably wrong if it was supported by legal evidence in the ore tenus trial. Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980); Cobb v. Cobb, 352 So.2d 1384 (Ala.Civ.App.1977); Nix v. Nix, 348 So.2d 802 (Ala.Civ.App.1977).\nFrom the evidence, the trial court could have reasonably concluded that the husband quit his job and voluntarily abandoned his wife and children. His being forced to provide child support through the nonsupport proceedings would bolster such a finding. We have not been cited to, and by our lengthy independent research have not located, any case which expressly holds that a twenty-seven year separation, without spousal support, alone bars an award of alimony. The time of the separation and lack of assistance in the wife’s maintenance were facts which could be considered by the trial court, but they are not absolutely controlling factors, especially in this case in view of the valid finding which could have been made of her abandonment by the husband.\nThere was evidence that the wife was being supported through the allowance of $60 per month which she received for caring for her mother and through limited assistance from two daughters, neither of which had a full time job. The work history of the husband was established, his net income exceeding $1,000 per month. He testified that he paid $200 per month on the mortgage, there being no evidence as to how the balance of such monthly payments were made. His other expenses and liabilities were not established and no request was made to the trial court that the husband be permitted to present further or additional evidence on the alimony question when the trial court decided that alimony was an issue which had been tried in the case.\nPeriodic alimony of $100 per month certainly is not excessive. It constitutes less than one-tenth of the husband’s net monthly income. Her new monthly income will total $160 per month, $100 as alimony and $60 from D.P.S. “The issues presented by the proof were clearly related to alimony and support, though there .was no specific evidence of the requirements of the plaintiff nor the child for alimony and support. We find sufficient inferential evidence to support the award of the court.” Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (1975).\nThe trial court’s award of periodic alimony, and the amount thereof, are both adequately supported by the evidence. No palpable wrong is shown and there was no abuse of discretion. Accordingly, we must and do affirm.\nThe foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.\nAFFIRMED.\nAll the Judges concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"tyson-v-tyson"} {"attorneys":"Paulette R. Taylor, Tallahassee, for appellant., Robert J. Orovitz, for appellee.","case_name":"Bony v. Public Health Trust","case_name_full":"Carole M. BONY v. The PUBLIC HEALTH TRUST OF DADE COUNTY","case_name_short":"Bony","citation_count":0,"citations":["743 So. 2d 583"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1999-09-24","date_filed_is_approximate":false,"id":7786455,"judges":"Cope, Nesbitt, Shevin","opinions":[{"ocr":true,"opinion_id":7725973,"opinion_text":"\nPER CURIAM.\nCarole M. Bony appeals an adverse summary final judgment in her independent action to set aside an earlier final judgment in favor of the Public Health Trust of Dade County. The Public Health Trust has not filed a brief.\nMs. Bony and her husband, Eddy Bony, were defendants in a suit by the Public Health Trust to collect medical bills for services rendered to Ms. Bony at Jackson Memorial Hospital. The Bonys were represented by counsel. There was a stipulation for an agreed sum to be paid by installments, failing which the Public Health Trust would be entitled to entry of an ex parte final judgment. The payment schedule was not complied with, and judgment was entered against the Bonys.\nIn her complaint and affidavit, Ms. Bony states that she did not sign the settlement stipulation and that her signature was placed on the document without her knowledge or consent. In essence she claims that her signature was placed on the document either by her former lawyer or by her husband.\nMs. Bony brought an independent lawsuit against the Public Health Trust for relief from judgment. The Public Health Trust’s first ground for summary judgment was the contention that plaintiff failed to give statutory notice of her claim under section 768.28, Florida Statutes (1997).\nWe concur with Ms. Bony that section 768.28 has no application here. The statute by its terms applies to an action “to recover damages in tort for money damages against the state or its agencies or subdivisions_” Id. § 768.28(1). Neither an independent action for relief from judgment, nor a motion for relief from judgment, fits within the scope of section 768.28.*\nThe Public Health Trust argued alternatively that, as a matter of law, there can be no claim of extrinsic fraud where a party was represented by counsel. The *585case law does not support that proposition. At least in some circumstances, the unauthorized action of counsel in settling a case without permission has been held to constitute extrinsic fraud. See Huffman v. Delacruz, 719 So.2d 385, 386 (Fla. 4th DCA 1998); see also DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla.1984). Although we need not reach the point now, the same logic may well apply to a fraud perpetrated by a co-party.\nSince the legal proposition advanced by the Public Health Trust below did not entitle it to summary judgment, we reverse for further proceedings. We express no opinion on the merits of Ms. Bony’s claim.\nReversed and remanded for further proceedings consistent herewith.\n\n As already staled, the Public Health Trust has not filed a brief here. Its submissions in the trial court did not include any citation of case law supporting the proposition that a section 768.28 notice is required in these circumstances, and our research has disclosed none.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"bony-v-public-health-trust"} {"attorneys":"J. II Sloan in support of motion., C. Moffo,t contra.","case_name":"Wells v. Stackhouse","case_name_full":"WELLS v. STACKHOUSE","case_name_short":"Wells","citation_count":0,"citations":["17 N.J.L. 355"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1840-02-15","date_filed_is_approximate":true,"headnotes":"This court will not interfere by mandamus, where an unsuccessful applica^ ‘cion has been made to the court below, purely to their discretion, where they acted in perfect consistency with their own lawful rules of practice.
","id":8096612,"judges":"Hornblower","opinions":[{"author_str":"Hornblower","ocr":true,"opinion_id":8057069,"opinion_text":"\nHornblower, C. J.\nBy one of the rules of practice adopted by the Common Pleas of Burlington, it is provided, that\" no appeal shall he deemed or taken to be in court, until, on the application of the appellant or his attorney, a rule of the court, is made for the entry of such appeal, which rule, when made,shall *356be entered on the minutes of tho court : and which rule may be applied for and made at any time during the term next succeeding the judgment appealed from ; but if not so applied for, and made and entered, the said appeal shall be deemed and taken as not prosecuted by the appellant, without any further or other rule for that purpose.”\nThe appeal in this case, was returned to Nov. term, 1838, of the Common Pleas of Burlington, and as appears by the affidavit of Mr. Sloan, the attorney for the appellants, a rule for tiie entry of tiie appeal, was applied for by him, openly in court during. that term, and an order was then made, that the appeal should be entered. But Mr. Sloan having neglected to enter the rule or to cause it to be entered, the appeal was deemed and taken, by force of the aboverule of practice, to be nofurtherprosecuted by the appellants, and the attorney for the appellee, obtained an order at a subsequent term to prosecute the appeal bond. Ata special term in September last, of the Burlington\" Pleas, and after three regular terms liad intervened, Mr. Sloan applied to tho court for leave to enter the preliminary rule, nunc pro tunc: that motion was adjourned over to'the regular term in November last, when it was refused by the court. Mr. Sloan now moved fora mandamus to the Common Pleas, commanding them to permit such rule to be entered, and thus to restore the appeal and proceed therein according to law. In my opinion this ought not to be done. To say nothing about tho lateness of the period, when the appellants applied for the restoration of the appeal, I think this is not a case in which we ought to interfere by mandamus, with the regular proceedings of tiie court below.— Whether tiie rule of practice, under which this question arises, was a necessary or convenient one, I am not prepared to say :— nor is there any occasion to express any opinion on that point. If it was not an unlawful ride, the Court of Common Pleas had a right, under the provisions of the practice act, to make it, and we ought not to interfere. I see nothing unlawful in the rule ; and the only question is, whether the Common Pleas have acted according to, or in violation of it\nWe have interfered by mandamus, in cases where the court below have acted contrary to, or in disregard of their own rules of practice; or have evidently misapplied them to the case; but *357never, so far as I know, where the application below was purely to the discretion of the court, and they acted in perfect consistency with their own rules of practice, as the Common Pleas of Burlington have done in this case. As to the argument that it was the duty of the clerk to enter the rule, there is nothing in it. Undoubtedly it would have been the duty of the clerk to have done so, if the attorney had specially requested him to do it,and liad furnished him with the materials os* a proper memorandum, to enable him to enter such rule, To say nothing about the uniform practice in this and in every other court, so far as my experience extends, of every attorney entering, or attending to the entry of his own rules, I would ask, how it is possible that the clerk, in the hurry of business, while engaged at his tabic in performing other duties, can hear and understand, and recollect all ike rales that are applied for in rapid succession, with the names of parties, and the specific directions of the court in each case? A clerk, to be competent for such a task, would require more eyes, and ears, and hands, and a better memory too, than nature has ordinarily supplied men with. The appellants’ counsel states in his affidavit, that he had forgotten to enter the rule; and if he could not remember in his own case, and when, perhaps, it was the only rule he applied for, how can it resonably bo required of the clerk, to recollect and enter every rule moved ios* during a whole term ; many, perhaps most of which, he docs not even hear mentioned,either by court or counsel. In my opinion, the motion must be denied\nFon», Dayton, and Njbvips, Justices, concurred.\nWhite, J. absent.\nMotion denied»\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"wells-v-stackhouse","summary":"Motion for a mandamus in matter oí appeal."} {"attorneys":"Allerton deO. Tomphins for the appellant., John W. Douglas, Assistant Attorney General (Samuel D. Speotor, trial attorney) , for the appellee.","case_name":"Wilmington Shipping Co. v. States","case_name_full":"Wilmington Shipping Company v. United States","case_name_short":"States","citation_count":0,"citations":["52 Cust. Ct. 642"],"court_full_name":"United States Customs Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Customs Court","court_type":"FS","date_filed":"1964-05-11","date_filed_is_approximate":false,"id":8152634,"judges":"Donlon, Richardson","opinions":[{"author_str":"Donlon","ocr":true,"opinion_id":8114131,"opinion_text":"\nDoNloN, Judge:\nOn application of appellant (plaintiff below), we have reviewed the decision of the trial judge. He dismissed these appeals to reappraisement, holding that they were filed before ap-praisement and, hence, were not lawfully filed under the provisions of section 501, Tariff Act of 1930.\nWhen the reappraisement appeals were called for trial in Wilmington, N.C., defendant moved to dismiss them on the ground that they had been prematurely filed. The official papers were received in evidence on defendant’s motion, as were also certain documentary exhibits offered by plaintiff (exhibits 1 to 4, inclusive). The former assistant collector of customs at Wilmington, Mr. Edward C. Snead, was called by appellant (plaintiff below) and testified. In support of its motion, appellee (defendant below) introduced no proofs other than the official papers.\n*644The facts are not in controversy. This merchandise is plywood, exported from Japan between January 25, 1960, and June 10, 1960, and consigned to appellant. Some shipments were for the account of Thomas Plywood Corp. of Fayetteville, N.C.; other shipments were for the account of United Plywood Co. of London, England. Appellant, in entering these plywood shipments, retained as consultant Mr. Edward C. Snead, then a customs broker, but who, for upwards of 32 years, prior to 1959, had been in customs service. His official positions included assistant collector at Wilmington, N.C., and at Charleston, S.C.; acting collector at Wilmington; and administrative officer with the Bureau of Customs.\nThe reports of the appraiser to the collector on forms entitled “Summary of Entered Value,” with respect to this merchandise, are dated November 10, 1960. Written notices of appraisement, issued by the assistant collector, are dated that same day, and appellant does not dispute the fact that such notices of appraisement were duly mailed to appellant on November 10, 1960. The appeals to reappraisement were filed November 2, 1960, and November 3, 1960, prior to issue of such notices.\nSection 501 provides as follows:\nThe collector shall give written, notice of appraisement to the consignee, his agent, or his attorney, if (1) the appraised value is higher than the entered value, or (2) a change in the classification of the merchandise results from the appraiser’s determination of value, or (3) in any case, if the consignee, his agent, or his attorney requests such notice in writing before appraisement, setting forth a substantial reason for requesting the notice. The decision of the appraiser, including all determinations entering into the same, shall be final and conclusive upon all parties unless a written appeal for a reappraisement is filed with or mailed to the United States Customs Court by the collector within sixty days after the date of the appraiser’s report, or filed by the consignee or his agent with the collector within thirty days after the date of personal delivery, or if mailed the date of mailing of written notice of appraisement to the consignee, his agent, or his attorney. Every such appeal shall be transmitted with the entry and the accompanying papers by the collector to the United States Customs Court.\nWhat appellant argues is, in substance, that on the facts shown in opposition to defendant’s motion to dismiss the appeals, it has proved that the decision of the appraiser has not become final and conclusive, under section 501, because written appeals for reappraisement were, in fact, filed with the collector within 30 days after personal delivery of written notices of appraisement by the collector to appellant, as section 501 requires. What appellant asks us to construe as the collector’s written notices of appraisement, required by section 501, are the appraiser’s notices of probable unpaid duties, dated October 28, 1960, sent by the appraiser to appellant. Such notices advised that the appraiser contemplated appraisement at certain increased values.\n*645On November 2, 1960, after receipt by appellant of the appraiser’s notices of probable unpaid duties, Mr. Snead, acting in appellant’s behalf, personally requested the appraiser to withhold his report of appraisement for 20 days. This the appraiser said he would not do. He told Mr. Snead (November 2, 1960) that the merchandise had, in fact, already been appraised. Nevertheless, his signed report to the collector is dated November 10,1960, and the collector’s written notices of appraisement also bear that date.\nThe assistant collector at Wilmington, with whom Mr. Snead talked after his conference with the appraiser, confirmed to Mr. Snead that appraisement had been made, at the values advised in the appraiser’s written notice of probable unpaid duties which Mr. Snead showed to the assistant collector.\nThe question is, do these oral exchanges, in combination with the appraiser’s written notice of probable unpaid duties, constitute the notice of appraisement which the collector is required to give, under section 501, and which is the notice starting the statutory period within which appeals to reappraisement may be filed.\nAdmittedly, it was the appraiser, not the collector, who signed and issued to appellant the notices of probable unpaid duties. Admittedly, it is the collector whose written notice of appraisement, under section 501, starts the period for filing an appeal to reappraisement. What appellant argues is, in effect, that the collector orally adopted, as his written notice of appraisement under section 501, the appraiser’s written notice of probable unpaid duties when, on November 2, 1960, the assistant collector at Wilmington, Mr. James E. Townsend, in conversation with Mr. Snead, representing appellant, advised Mr. Snead (1) that the merchandise had been appraised on October 28,1960, and (2) that appraisement was at the values recited in writing in the notices of probable unpaid duties which Mr. Snead had previously received from the appraiser.\nSection 8.29(c) of the Customs Eegulations, as amended, is as follows:\nIf the examiner believes that the entered rate or value of any merchandise is too low, or if he finds that the quantity imported exceeds the entered quantity, and the estimated aggregate of the increase in duties in the shipment exceeds $15, he shall promptly notify the importer of record on every shipment, on such form as may be appropriate at the port, and specify the nature of the difference on the notice. The report of appraisement shall not be withheld unless in the judgment of the appraiser there are compelling reasons that would warrant such action.\nIt has been held that notice of appraisement need not be in any particular form, but that it must give notice that the merchandise has been appraised. C. S. Emery & Co. v. United States, 11 Cust. Ct. 8, C.D. 782. The notice of increased and additional duties, prepared on customs Form 5107, required to be sent out after liquidation, has *646been held not to constitute notice of appraisement. Orlix Dyes & Chemicals Corporation v. United States, 41 Cust. Ct. 168, C.D. 2036. A purported notice of appraisement which does not bear a signature is not the notice section 501 requires. Inlander-Steindler Paper Co. v. United States, 40 Cust. Ct. 825, Reap. Dec. 9150. The court there said:\nIt is tlie notice of advance in value of imported merchandise, sent by the collector, in compliance with section 501, which validates and legalizes the appraisement. Until such notice is sent by the collector, the appraisement is incomplete and, consequently, there is no final appraised value for the merchandise upon which the collector can base a liquidation. The so-called notice in this case is nothing more than a sheet of paper with certain figures and words thereon, with nothing to indicate that it was sent by the collector, as required by said section 501. The fact that said form is prepared for the signature of a “Deputy CoUeetor,” with no name or signature thereon, suggests that it might not have been sent by either the collector or deputy collector. [P. 829.]\nIn a subsequent bearing in the same case, testimony was introduced to show that the notice did contain a proper signature (Inlander-Steindler Paper Co. v. United States, 45 Cust. Ct. 446, Reap. Dec. 9756), but the stated principle of law is not affected by the later decision on different facts.\nIn a recent case, Phillipp Brothers Chemicals, Inc. v. United States, 51 Cust. Ct. 35, C.D. 2410, a notice of appraisement that was sent on a form which recited that it was “given for the reason checked below,” but where none of the printed reasons was checked, was held not to be the required section 501 notice of appraisement.\nThe court said:\nA statement of official action is required to be definite and a blanket notice is not sufficiently definite to meet this required standard. It follows that a notice which recites that it is being sent “for the reason checked below” and lists three reasons without checking or specifying which one is applicable to the noticee’s importation is a “blanket notice” and no notice in law. Ambler v. Patterson, 114 N.W. 781, 782, 80 Neb. 570. An appraisement is not complete without a valid notice of appraisement to the noticee. Where the notice of appraisement is a blanket notice it is defective, and an appraisement completed upon such defective notice is invalid. * * *\nThe appraiser’s notices of probable unpaid duties do not constitute the collector’s notices of appraisement per se; but appellant claims that the collector adopted them as his written notices of appraisement and constituted them a personal delivery of written notices of appraisement by his statement to Mr. Snead. According to the record, the assistant collector stated orally to Mr. Snead that appraisement had been made at the values set forth in the notices of probable unpaid duties, and also stated that, in his opinion, this conversation about appraisement constituted personal delivery of the statutory written notice. Since the statute provides definitely for a written notice of appraisement, the written notice of probable unpaid duties, plus such conversations, or oral notice, does not satisfy the statutory *647requirement. Smith v. School Dist. No. 18, Pandera County, 115 Mont. 102, 139 P. 2d 518; 66 CJS, section 16.\nIn view of the fact that no written notices of appraisement were delivered to appellant’s agent, either personally or by mail, prior to November 10,1960, these appeals were filed prior to the commencement of the statutory period of 30 days within which, and only within which, appeals may be filed.\nAppellant claims, however, that the appraiser actually made his appraisements on or before November 2, 1960, and that appeals may be filed within 30 days thereafter even though the statutory period, under section 501, has not commenced to run. It is necessary, therefore, to consider when this merchandise was appraised.\nAppellant argues that United States v. European Trading Co., 26 CCPA 103, C.A.D. 1, supports its claim.\nThe issue there was timeliness of an application by the Government for review of a judgment of this court, under decision of a single judge, sitting in reappraisement, on March 4, 1937. Judgment was entered the same day in the clerk’s office in New York City. The decision was filed with the collector at Seattle, on March 8, 1937. On that day, the Government filed with the Customs Court in New York City its application for review. It was argued by the importer that the application for review of the judgment below was filed prematurely because, there being a 3-hour time differential between New York and Seattle, the decision could not have been filed with the collector at Seattle on March 8, at an hour prior to the hour when the application for review was filed in New York. Section 501 of the Tariff Act of 1930, as then effective, provided:\n* * * Such [reappraisement] decision shall he final and conclusive upon all parties unless within thirty days from the date of the filing of the decision with the collector an application for its review shall be filed with or mailed to the United States Customs Court by the collector or other person authorized by the Secretary of the Treasury, and a copy of such application mailed to the consignee, or his agent or attorney, or filed by the consignee, or his agent or attorney, with the collector, by whom the same shall be forthwith forwarded to the United States Customs Court.\nThe court pointed out that the decision and judgment were duly promulgated on March 4,1937; that the 30-day provision, section 501, is primarily a statute of limitations, its object being to fix a time after which the decision will become final and conclusive, unless an application for review has been filed. The court said:\nIn our opinion, when a decision or judgment is rendered by the Customs Court and duly promulgated, and an appeal or application for review thereof is permitted by statute, such application or appeal may be taken at any time between the promulgation of such decision or judgment by the Customs Court and the expiration of the time permitted by the statute for the filing of such application for review or appeal.\n*648No passible legislative purpose could be served in requiring tbe Government or the importer to wait until a decision had been filed with the collector before it or he might file an application for review, and it is not reasonable to suppose that Congress ever intended any such limitation upon the right of review provided for by section 501. [Pp. Ill, 112.]\nThe court pointed out, however, that “an appeal filed before entry of the judgment sought to be appealed from is premature and void,” and distinguished cases where appeals were taken before judgment had been entered.\nIf the principle of that case is to be applied here, and we think it should be applied, it must first be determined whether there had been appraisement of this merchandise prior to the filing of these appeals, inasmuch as in order “to appeal for reappraisement there must necessarily be an appraisement to appeal from.” United States v. W. X. Huber, 41 CCPA 69, C.A.D. 531.\nAppellant argues that there had been appraisements, and this argument is based on the statement of Mr. Snead that he was advised, on November 2,1960, in the office of the appraiser, that appraisements had been completed on October 28, 1960; and also on the statement of assistant collector Townsend the same day, that appraisements had been made and at the values stated in writing in the appraiser’s notices of probable unpaid duties. Nevertheless, the fact is that the appraiser’s returns to the collector are dated November 10, 1960, and notices of appraisement were mailed by the collector on that day.\nThe evidence of the decision of the appraiser is found in his official return. Muser v. Magone, 155 U.S. 240. The term “appraiser’s report” means his report to the collector giving his decision as to the appraised value. United States v. W. X. Huber, sufra. The actual decision of the appraiser is made when he files his report with the collector. Peabody & Co. v. United States, 12 Ct. Cust. Appls. 354, T.D. 40491. Appraisement is not complete and final until such report is lodged with the collector. Prior to that time, the appraiser may make alterations, but he may not do this after he returns his report to the collector for then there is appraisement. United States v. C. V. Vance (International Milling Co.), 69 Treas. Dec. 1 637, Reap. Dec. 3904; United States v. Gothic Watch Co., 23 Cust. Ct. 235, Reap. Dec. 7712. Section 501 requires a written notice of appraisement to be given, and appraisement is not complete until such notice has been forwarded to the consignee, his agent, or attorney, either by personal delivery or by mailing. Peabody & Co. v. United States, sufra; Josefh Fischer as Liquidating Agent of Schmoll Fils Associated, Inc. v. United Stales, 23 Cust. Ct. 1, C.D. 1179, affirmed on other grounds 38 CCPA 143, C.A.D. 452; Inlander-Steindler Pafer Co. v. United States, 45 Cust. Ct. 446, Reap. Dec. 9756.\n*649In the instant case, therefore, it seems to us that appraisements were not complete until November 10, 1960. On that date, reports of ap-praisement were lodged by the appraiser with the collector. Prior to November 10, 1960, “probable” values could be reconsidered by the appraiser, and could be changed. Written notices of appraisement were not mailed by the collector to the consignee until November 10, 1960. As stated above, the earlier personal delivery of notice prior thereto was not the personal delivery of a written notice of appraisement, such as section 501 requires. Since the appraisements were not completed until November 10,1960, appeals filed prior to that date are premature. They were filed before appraisement, and must be dismissed.\nIt, is regrettable that customs officials told plaintiff’s agent that the merchandise had been appraised on October 28,1960, and advised him to file appeals for reappraisement at that time. However, written notices of appraisement were sent to plaintiff when the appraisement was completed, and plaintiff could then have investigated and could then have filed timely appeals. It is well settled that customs officials are not required to advise importers as to the nature and extent of their rights. Jacksonville Paper Co. v. United States, 30 CCPA 159, C.A.D. 228; F. B. Wilcon v. United States, 13 Cust. Ct. 96, C.D. 876; United States v. Kenneth Kittleson and E. W. Hollow, 43 CCPA 31, C. A.D. 605. In the Jacksonville case, the court said:\nThat the importer was “influenced” by the officials to make the entry seems to be true, and the importer’s agents evidently obtained the impression that such entry was “required” as a condition precedent to obtaining the merchandise, but it could not have been legally “required,” and had importer tendered proper bond all its statutory rights could have been preserved by its following the defined statutory procedure. [Pp. 164,165.]\nThere are certain legal precepts that may not be overlooked. It is well settled that there is no inherent right to sue the United States, that such right is permissive, and that a suit against the United States can be maintained only pursuant to the terms laid down in the grant of permission. Congress may attach to its consent to sue such conditions as it deems proper. Reid v. United States, 211 U.S. 529; United States v. Loeb & Schoenfeld Co., 7 Ct. Cust. Appls. 380, T.D. 36961; ese parte Bakelite Corporation, 279 U.S. 438; Munro v. United States, 303 U.S. 36; and others.\nAppellant has failed to bring itself within the statutory grant of permission conferred by section 501.\nThe decision and judgment of the trial court dismissing the appeals, as being prematurely filed, are affirmed.\nJudgment will enter accordingly.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"wilmington-shipping-co-v-states"} {"attorneys":"William Hayward, U. S. Atty., of New York City (James C. Thomas, Asst. U. S. Atty., of New York City, of counsel), for appellant. Chas. J. Katzensteih, of New York City, for appellee.","case_name":"People ex rel. Altman v. Tod","case_name_full":"PEOPLE of the United States ex rel. Tauba ALTMAN, Alien, Relator-Appellee v. Robert E. TOD, Commissioner of Immigration at the Port of New York","case_name_short":"Tod","citation_count":0,"citations":["295 F. 1018"],"court_full_name":"Court of Appeals for the Second Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Second Circuit","court_type":"F","date_filed":"1924-02-21","date_filed_is_approximate":false,"id":8848890,"opinions":[{"ocr":true,"opinion_id":8834234,"opinion_text":"\nPÍ1R CURIAM.\nOrder is modified, and the case remanded to the District Court, with directions to proceed in accordance with the opinion of this court in United States ex rel. Engel v. Tod, 294 Fed. 820.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-ex-rel-altman-v-tod"} {"attorneys":"Emil R. Narick, Pittsburgh, Pa., for plaintiffs., Stanley W. Greenfield, Pittsburgh, Pa., Paul M. Levinson, New York City, for Pa. Telephone Union, Local No. 1944., Lawrence J. Cohen, Washington, D. C., for defendants.","case_name":"Collins v. Pennsylvania Telephone Union, Local No. 1944","case_name_full":"Frances COLLINS, Helen Preston, M. P. Corrado, Ruth Reber, Rose Gordon, Sylvia Petrovich, Johanna Bish, Ruth Regan, Yvonne R. Davis, Barbara Sobocinski, Patricia Crawford v. PENNSYLVANIA TELEPHONE UNION, LOCAL NO. 1944, IBEW, AFL-CIO, and International Brotherhood of Electrical Workers, AFL-CIO","case_name_short":"Collins","citation_count":0,"citations":["431 F. Supp. 842"],"court_full_name":"District Court, W.D. Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"W.D. Pennsylvania","court_type":"FD","date_filed":"1977-05-13","date_filed_is_approximate":false,"id":8858954,"judges":"Weber","opinions":[{"author_str":"Weber","ocr":true,"opinion_id":8844434,"opinion_text":"\nOPINION\nWEBER, Chief Judge.\nThis is an action for damages by the plaintiffs under §§ 102 and 609 of the Labor-Management Reporting and Disclosure Act [LMRDA] [29 U.S.C. §§ 412 and 529] for infringement of plaintiffs’ membership equality, freedom of speech and due process rights found in Title I of the Act, §§ 101(a)(1), (2) and (5), [29 U.S.C. §§ 411(a)(1), (2) and (5)]. The plaintiffs originally sought injunctive relief and compensatory damages. The request for injunctive relief was denied upon consideration of defendants’ motion for partial summary judgment. Collins v. Pennsylvania Tel. Union, Local No. 1944, 418 F.Supp. 50 [W.D.Pa.1976]. Defendants have now moved for summary judgment as to all remaining issues before the court. Plaintiffs oppose this motion.\nThis lawsuit arose as the result of the alleged wrongful dismissal of local union members from their elective office. Frances Collins and Helen Preston were vice-president and treasurer, respectively, of their local union. Both of these plaintiffs were removed from office by the International Vice-President after a hearing on charges alleging violations of the union constitution while in office. The decision of the union’s International Vice-President barred them from seeking union office for two years. The other plaintiffs join in the complaint on the grounds that the removal of Collins and Preston from office deprived rank and file members of their rights as union members under § 101.\nSince the institution of this suit, three things have occurred; (1) the President of the International Union has lifted the two year suspensions of plaintiffs Collins and Preston on their right to represent the local union, thereby restoring their right to run for any union office; (2) this court has *844dismissed plaintiffs’ request for injunctive relief; and, (3) both Collins and Preston ran for local union office in November, 1976, Preston being elected vice-president and Collins losing her bid for union president.\nAs this court noted in its opinion denying injunctive relief, it is well settled in this circuit that the LMRDA protects the union-member relationship, not the union-officer or union-employee relationship. Harrison v. Local 54 of American Federation of State, 518 F.2d 1276 [3d Cir. 1975] cert. denied 423 U.S. 1042, 96 S.Ct. 764, 46 L.Ed.2d 631 [1976]; Martire v. Laborers' Union 1058, 410 F.2d 32 [3d Cir. 1969], cert. denied 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 [1969]; Sheridan v. United Brotherhood of Carpenters, etc., 306 F.2d 152 [3d Cir. 1962]. However, in opposition to defendants’ motion, plaintiffs submit that, aside from the ruling of the court that plaintiffs are not afforded a remedy under § 101(a)(5) of the Act by reason of their removal from office, part of the penalty imposed on plaintiffs Collins and Preston by the union, which barred them from holding office for two years, is a deprivation of a right of union membership which affords the plaintiffs a remedy. Although the defendants refer to the union decisions as barring Collins and Preston from representing the union membership for a two year period, they dwell only on the “removal from office” aspect of the sanctions imposed. Defendants fail to note that in fact the plaintiffs Collins and Preston were prohibited from running for or holding office for the two year period. This fact is not disputed by the defendants.\nI.\nWith respect to those claims made by plaintiff union members in Count I of the complaints, we find a factual situation similar to the present one in a case not cited by either of the parties, Schonfeld v. Penza, 477 F.2d 899 [2d Cir. 1973]. In Schonfeld, the secretary-treasurer [Schonfeld] of a district council consisting of a group of locals of the International Brotherhood of Painters and Allied Trades, brought an action to restrain members of the district council trial board and the international president from enforcing a decision of the trial board removing Schonfeld from office and declaring him ineligible for union office for five years due to acts in violation of the constitution and by-laws of the International. In a related action [referred to as the “Schwartz action”], consolidated with the Schonfeld action, rank and file members of the locals sought to restrain the punishment of Schonfeld for his alleged union crimes. The district court granted the injunctive relief in both actions on the basis that Schonfeld’s removal and disqualification for re-election was an interference with the rights of members of the locals “to choose their own representatives”, 29 U.S.C. § 401(a), “to nominate candidates”, 29 U.S.C. § 411(a)(1), “to vote in elections”, id. and “to express any views, arguments, or opinions.” 29 U.S.C. § 411(a)(2).\nThe Second Circuit disagreed with the district court in respect to jurisdiction of the Schwartz action insofar as it challenged Schonfeld’s removal from office and ineligibility to run for future office.\n“Title IV of the LMRDA, 29 U.S.C. § 481 et seq., governs the election of union officers and requires that union members have ‘a reasonable opportunity . for the nomination of candidates . and . . . the right to vote for or otherwise support the candidate . of [their] choice.’ 29 U.S.C. § 481(e). The union member’s remedy for Title IV violations, following exhaustion of intraunion remedies, is to file a complaint with the Secretary of Labor, 29 U.S.C. § 482(a), who in turn may then seek relief in the federal courts upon finding or probable cause to believe Title IV has been violated.” 477 F.2d at 902.\nIn Schonfeld, the rank and file members’ Complaint relied on Title I and not Title IV of the LMRDA. The plaintiffs had failed to exhaust union remedies and file a complaint with the Secretary of Labor. In *845Calhoon v. Harvey,1 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 [1964] the Supreme Court held that Title I rights are “no more than a command that members and classes of members shall not be discriminated against in their right to nominate.” 379 U.S. at 139, 85 S.Ct. at 295 [emphasis added]. Schonfeld’s exclusion from office eligibility did not affect or infringe on the “equal rights” of the complaining union members in the Schwartz action since they were not personally discriminated against. They had the same right as any other union member to nominate and elect any eligible candidate. To this extent, the Circuit Court found the Schwartz action “indistinguishable from Calhoon.” All F.2d at 903, and without more, would have reversed the district court. However, the Complaint also alleged that the removal of Schonfeld and the restrictions on his subsequent eligibility constituted a form of intimidation of the membership and of their duly elected officers and amounted to reprisals for efforts of the plaintiffs in implementing and advocating change in the union structure and procedures. Prima facie, these additional allegations raised the question of whether the sanctions imposed on Schonfeld infringed on the rights of other union members protected under § 101(a)(2).\nIn Count I of the Complaint in the present action, plaintiff union members also allege that the defendants’ conduct in removing plaintiffs Preston and Collins from office and their subsequent restrictions on eligibility for union office “constituted a veiled form of intimidation of and reprisals against the entire membership and of the duly elected officials for their efforts to advocate and seek changes in policy” (Complaint, par. 27) and thereby infringed upon the free speech and association rights of the members. Therefore, it would appear that a cause of action under the Act has been stated here since rights of free speech and of association — as opposed to the rights of voting and election — of union members may have been invaded by the actions of the international officers, the requirement of initial appeal to the Secretary under Title IV being inapplicable. Schonfeld v. Penza, supra.\nWhile Schonfeld made it clear that free speech rights of union members are not threatened or infringed every time a political dispute occurs in the union and dissident members interpret some action by union officials as a threat, the mere appendage of free speech allegations to a complaint is not sufficient to take the case out of Title IV’s requirements as interpreted by Calhoon. However, where it is established by the record, as in Schonfeld, that the action of the union administration is part of an established and deliberate policy to suppress dissent, then a Title I claim is made out.\n“The competing values between Title I rights and Title IV procedural requirements are best reconciled, in our opinion, by limiting initial federal court intervention to cases where union action abridging both Title I and Title IV can be fairly said, as a result of established union history or articulated policy, to be part of a purposeful and deliberate attempt by union officials to suppress dissent within the union [citations omitted]. We think that the allegations in the complaints here were sufficient to meet this test.” 477 F.2d at 904.\nIn the present case, such “established union history or articulated policy . part of a purposeful and deliberate attempt by union officials to suppress dissent” is nowhere alleged. Here, the only allegation in the complaint is of an intraunion dispute involving the passage of a resolution requiring mandatory retirement of local union officials at the age of 65. While admittedly a considerable controversy over this matter may have existed among members of the local (this is denied in defendants’ answer) such a dispute over the union’s internal structure does not rise *846to the level of infringement of union members’ basic rights as protected to Title I of the Act, but are Title IV rights, as measured by the Schonfeld test, and therefore require an initial appeal to the Secretary of Labor. For this reason we lack jurisdiction over those claims made by the rank and file union members pursuant to the LMRDA regarding the removal and eligibility of Collins and Preston for union office. 29 U.S.C. § 482(a), Calhoon v. Harvey, supra. Accordingly, we dismiss Count I of this suit.\nII.\nWith reference to plaintiffs Collins and Preston, Count II of the complaint claims that the penalty imposed on them by the International Vice-President prohibiting them from holding elective office within the union for two years, was in contravention of their rights secured under § 101(a)(5) of the Act and therefore provides them with a remedy under the enforcement provisions of § 609. Thus, these plaintiffs claim that, having asserted a right under the Act for which a remedy is provided, and assuming the plaintiffs were denied a full and fair hearing as required by § 101(a)(5), summary judgment as to their claims, is not appropriate.\nThe right that Collins and Preston claim was violated by the higher level union officers is the right of any member to be a candidate for office. Collins and Preston contend that rendering a person ineligible from seeking union office, whether for five years or six months, affects that person as a union member and permits her under the Act to challenge the fairness of the procedures resulting in such political exile. Therefore, so say the plaintiffs, this court does have jurisdiction over their individual claims. Schonfeld v. Penza, supra.\nIn support of their position, Collins and Preston cite Martire v. Laborers’ Local Union 1058, supra. In Martire, which involved an action by a suspended business manager of a local union brought against the local and international and pursuant to § 102 of the LMRDA, the Third Circuit reaffirmed the doctrine of Sheridan that neither Title I nor § 609 of the LMRDA affords a remedy to a union officer removed from office prior to the expiration of his elected term. However, the court went on to hold that:\n“that part of the penalty imposed on Martire by the District Council which bars him from holding office in the Union for five years affects his status qua union member, and that circumstance affords him a remedy under Section 101(a)(5).” 410 F.2d at 35.\nSince the penalty imposed in Martire is indistinguishable from the present sanction of Collins and Preston’s eligibility for union office, we conclude that plaintiffs Collins and Preston have asserted a cause of action under Title I of the Act.\nSummary Judgment is never warranted except on clear showing that no genuine issue of any material fact remains for trial after considering the pleadings and proof in the form of depositions, affidavits, and admissions on file. In determining the existence of a disputed issue of material fact, all inferences, doubts and issues of credibility should be resolved in favor of the nonmoving party. Suchomajcz v. Hummel Chemical Co., 524 F.2d 19 [3d Cir. 1975]. Tomalewski v. State Farm Life Ins. Co., 494 F.2d 882 [3d Cir. 1974].\nCollins and- Preston claim that, contrary to the contentions of the defendants, there are substantial and genuine factual questions existing as to the issue of whether the above plaintiffs received a full and fair hearing prior to the imposition of the election eligibility sanctions. If this is true, entry of summary judgment in favor of the defendants would be improper. However, consideration of this matter has become moot due to the fact that the International President has lifted these sanctions prior to the November election.\nBy letter dated October 10, 1975, certain members of plaintiffs’ union filed charges against Collins and Preston alleging violations of various sections of the union’s constitution. A decision by the International Vice-President on January 9, 1976, removed Collins and Preston from their elective offices and further ordered that they not be *847permitted to represent the union in any manner for a period of two years. Subsequent to that decision, on June 25,1976, the International President terminated that portion of the vice-president’s decision prohibiting Collins and Preston from representing the union for a period of two years.2 If the eligibility sanction had remained in effect, Collins and Preston would have been barred from running for local union office in the next election scheduled for late 1976. Elections of the local union were held in November of 1976. Helen Preston ran for and was elected vice-president and Frances Collins ran for but was defeated in her bid for the office of president. Since we can see no action on behalf of the union actually affecting Collins’ and Preston’s right to run for union office, such right being impaired only from January 9,1976 through June 25, 1976, we must dismiss the remaining cause of action as moot.\nUnder Article III of the Constitution, federal courts have jurisdiction of actual cases and controversies. The controversy must exist at all stages of the litigation. Prieser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 [1975]; Defunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 [1974]; Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 [1973], Under the facts of this case, we have no problem in concluding that the holding of the scheduled election and the participation of the “aggrieved” parties in that election has extinguished the underlying controversy and rendered this case moot as to all issues except the awarding of attorney fees.\nIII.\nThe Complaint also requests this court to award plaintiffs “reasonable attorney fees, cost of court and expenses herein.” While the issue raised in Count II is now moot, it was viable up to the time the International President lifted the bar on Plaintiffs running for union office. An award of attorneys fees may be appropriate despite the fact that Plaintiffs have not been successful in the form of a judgment. [See Brennan v. United States Steelworkers of America AFL-CIO-CLC, 554 F.2d 586 (3d Cir. filed April 20, 1977)].\n\n. In Calhoon, the Court held that Title I rights were not violated by restricting eligibility for elective office to five-year members of the national maritime union with 180 days or more of seatime service in each of the two preceding three years on unionized vessels. In Calhoon, the union members had to seek relief from the Secretary in the first instance.\n\n\n. The letter of the International President, dated June 25, 1976, modifying that portion of the decision relative to Collins’ and Preston’s “prohibition from representing Local Union 1944 for a period of two years” [Defendants’ Exhibits in Support of Summary Judgment] may be interpreted as permitting them to run for local union office, but, allowing the prohibition as to office in the international stand. The parties have not attributed this interpretation to the modification letter in their pleadings or briefs, nor, does the Court. In their brief opposing summary-judgment, the plaintiffs claim a remedy only “for that period which barred them from holding or running for union office for the period from January 9, 1976 to June 25, 1976, when the International President lifted that portion of the penalty barring them from running for union office.” (emphasis added). This unqualified recital indicates that the prohibition against election for any union office was lifted.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"As Amended May 23, 1977.","precedential_status":"Published","slug":"collins-v-pennsylvania-telephone-union-local-no-1944"} {"case_name":"American Smelting & Refining Co. v. United Steelworkers of America","case_name_full":"American Smelting & Refining Co. v. United Steelworkers of America, AFL-CIO and Federated Metals Corp. v. United Steelworkers of America, AFL-CIO","citation_count":0,"citations":["454 U.S. 1031"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1981-11-09","date_filed_is_approximate":false,"id":9035757,"opinions":[{"ocr":true,"opinion_id":9029067,"opinion_text":"\nC. A. 3d Cir. Certiorari denied. Reported below: 648 F. 2d 863 (first case); 648 F. 2d 856 (second case).\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"american-smelting-refining-co-v-united-steelworkers-of-america"} {"case_name":"Duncan v. Georgia","case_name_full":"Duncan et ux. v. Georgia and Van Nice v. Georgia","case_name_short":"Duncan","citation_count":0,"citations":["480 U.S. 931"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1987-03-23","date_filed_is_approximate":false,"id":9066978,"opinions":[{"ocr":true,"opinion_id":9060659,"opinion_text":"\nCt. App. Ga. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"duncan-v-georgia"} {"case_name":"Reidt v. Department of Veterans Affairs","case_name_full":"Reidt v. Department of Veterans Affairs","case_name_short":"Reidt","citation_count":0,"citations":["502 U.S. 948"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1991-11-04","date_filed_is_approximate":false,"id":9114646,"opinions":[{"ocr":true,"opinion_id":9109153,"opinion_text":"\nC. A. 9th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"reidt-v-department-of-veterans-affairs"} {"case_name":"In re Disbarment of Ewing","case_name_full":"In re Disbarment of Ewing","citation_count":0,"citations":["517 U.S. 1131"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1996-04-15","date_filed_is_approximate":false,"id":9158945,"opinions":[{"ocr":true,"opinion_id":9153644,"opinion_text":"\nCharles William Ewing, of Hilliard, Ohio, is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-disbarment-of-ewing"} {"case_name":"In re Disbarment of Wellons","case_name_full":"In re Disbarment of Wellons","citation_count":0,"citations":["524 U.S. 901"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","cross_reference":"[For earlier order herein, see 523 U. S. 1043.]","date_filed":"1998-06-01","date_filed_is_approximate":false,"id":9169913,"opinions":[{"ocr":true,"opinion_id":9164630,"opinion_text":"\nDisbarment entered.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-disbarment-of-wellons"} {"attorneys":"Eva Garcia, Las Vegas, for Appellant., Alverson, Taylor & Mortensen, and Bryan K. Gould, Las Vegas, for Respondents.","case_name":"Perez v. Las Vegas Medical Center","case_name_full":"BERTHA PEREZ, Special Administratrix of the Estate of MARCO LOPEZ, and BERTHA PEREZ, Natural Mother and Guardian of ARIANNY CELESTE LOPEZ, Appellant, v. LAS VEGAS MEDICAL CENTER, DR. GREGORY, Respondents","case_name_short":"Perez","citation_count":81,"citations":["805 P.2d 589","107 Nev. 1"],"court_full_name":"Nevada Supreme Court","court_jurisdiction":"Nevada, NV","court_short_name":"Nevada Supreme Court","court_type":"S","date_filed":"1991-02-01","date_filed_is_approximate":false,"headmatter":"\n Before GILBERT, HUNT, and RUDKIN, Circuit Judges.\n
","id":1561892,"judges":"Gilbert, Hunt, and Rudkin, Circuit Judges","opinions":[{"author_str":"Rudkin","ocr":false,"opinion_id":1561892,"opinion_text":"\n6 F.2d 201 (1925)\nWEEDIN, Commissioner of Immigration,\nv.\nWONG TAT HING et al.\nNo. 4387.\nCircuit Court of Appeals, Ninth Circuit.\nJune 1, 1925.\nThos. P. Revelle, U. S. Atty., and Donald G. Graham, Asst. U. S. Atty., both of Seattle, Wash., for appellant.\nHugh C. Todd, of Seattle, Wash., for appellees.\nBefore GILBERT, HUNT, and RUDKIN, Circuit Judges.\nRUDKIN, Circuit Judge.\nSection 6 of the Act of May 6, 1882 (22 Stat. 60), entitled \"An act to execute certain treaty stipulations relating to Chinese,\" as amended by the Act of July 5, 1884 (23 Stat. 116 [Comp. St. § 4293]), provides that every Chinese person, other than a Chinese laborer, who may be entitled to come within the United States, and who shall be about to come to the United States, shall obtain the permission of and be identified by the Chinese government, or of such other foreign government of which at the time such Chinese person shall be a subject, to be evidenced by a certificate issued by such government. The certificate is required to be in the English language and must set forth certain information concerning the applicant therefor, and if the applicant be a merchant the certificate shall, in addition to the other requirements, state the nature, character, and estimated value of the business carried on by him prior to and at the time of his application to enter. It is further provided that nothing therein contained or in the treaty between the United States and China (22 Stat. 826) shall be construed as embracing within the meaning of the word \"merchant,\" hucksters, peddlers, or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation.\nThe certificate therein provided for, and the identity of the person named therein shall, before such person goes on board any vessel to proceed to the United States, be viséed by the indorsement of the diplomatic representatives of the United States in the foreign country from which the certificate issues, or of the consular representative of the United States at the port or place from which the person named in the certificate is about to depart, and the diplomatic representative or consular representative, whose indorsement is so required, is empowered, and it shall be his duty, before indorsing such certificate, to examine into the truth of the statements set forth therein, and if he shall find upon examination that any of the statements therein contained are untrue it shall be his duty to refuse to indorse the same. The certificate, when viséed as required, is prima facie evidence of the facts set forth therein, and shall be produced to the collector of customs of the port in the district in the United States at which the person named therein shall arrive, and afterward produced to the proper authorities of the United States when lawfully demanded, and shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States. The certificate thus provided for may be controverted, and the facts therein stated disproved, by the United States authorities.\nThe term \"merchant\" is defined by section 2 of the Act of November 3, 1893 (28 Stat. 7 [Comp. St. § 4324]), as follows: \"A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor, except such *202 as is necessary in the conduct of his business as such merchant.\"\nSection 3 of the Immigration Act of May 26, 1924 (43 Stat. 154), provides: \"When used in this act the term `immigrant' means any alien departing from any place outside the United States destined for the United States, except * * * (6) an alien entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of a present existing treaty of commerce and navigation.\"\nThe appellees here are 19 in number. Thirteen are merchants and 6 are sons of merchants. Each merchant presented to the immigration authorities at the port of arrival the certificate prescribed by section 6 of the act of 1884, together with proof of his identity as the proper holder of the certificate. The applications to enter were denied by the Department of Labor, upon the ground that the applicants were not merchants within the meaning of the law. The applicants thereupon applied to the court below for a writ of habeas corpus, and the present appeal is prosecuted from an order allowing the writ and granting a discharge.\nFor 40 years following the passage of the act of 1884, Chinese merchants have been freely admitted into this country upon presenting the certificates prescribed by section 6 of the act of 1884, in proper form, and duly visaed by consular officers of the United States, upon proof of their identity as the proper holders of such certificates, and we find nothing in the act of 1924, changing or modifying this long-established rule.\nSection 25 of the Immigration Act of 1924 provides that the provisions of that act are in addition to, and not in substitution for, the provisions of the immigration laws, and shall be enforced as a part of such laws; that an alien, although admissible under the provisions of the act of 1924, shall not be admitted to the United States, if he is excluded by any provision of the immigration laws other than the act of 1924, and that an alien, although admissible under the provisions of the immigration laws other than the act of 1924, shall not be admitted to the United States, if he is excluded by any provision of the latter act. Section 28 of the act of 1924 provides that the term \"immigration laws\" includes the Immigration Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 4289¼a-4289¼u), the Immigration Act of 1924, and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, or expulsion of aliens.\nThe appellees, who are merchants, were clearly admissible under the act of 1884, and they are still admissible, unless excluded by some provision of the act of 1924. The only two provisions of the latter act which have any bearing on the question now under consideration are clause 6 of section 3 and section 15. The former we have already quoted, and the latter provides that the admission to the United States of an alien excepted by clause 6 of section 3 shall be for such time and under such conditions as may be by regulations prescribed, including, when deemed necessary, the giving of bond with sufficient surety, in such sum and containing such conditions as may be by regulations prescribed, to insure that at the expiration of such time, or upon failure to maintain the status under which admitted, he will depart from the United States.\nClause 6 of section 3 excepts aliens who are entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of a present existing treaty of commerce and navigation. If the acts of 1882 and 1884 have been superseded and abrogated, how are the immigration authorities or the courts to ascertain or determine who are entitled to admission under the foregoing provision? The treaty between the United States and China (22 Stat. 826) consists of four brief articles and is not self executing. Article IV provides that, whenever the government of the United States shall adopt legislative measures in accordance therewith, such measures will be communicated to the government of China, and the acts of 1882 and 1884 were passed for the express purpose of executing the stipulations of that treaty. If these acts have been abrogated, there is now no law to execute the stipulations of the treaty because the three lines of clause 6 can hardly be considered as such a law. Section 15 of the Immigration Act of 1924 provides that the admission of clause 6 aliens shall be under such conditions as may be by regulations prescribed; but this general provision would not seem to work a repeal of the existing Chinese exclusion acts, and, so far as we are advised, no attempt has been made to promulgate any such regulations.\nFor these reasons, we are of opinion that Chinese merchants are still entitled to be admitted to the United States; that the certificates prescribed by section 6 of the act of 1884 are still the sole evidence permissible on their part to establish their right of entry into the United States; and, that the certificates, when produced, are still prima facie *203 evidence of the facts therein stated. If we are correct in these conclusions, the Chinese merchants in question were entitled to be admitted to the United States upon producing certificates in proper form, unless the United States authorities have controverted and disproved the facts therein stated, and we agree with the court below that this has not been done.\nAs already stated, the appellees are merchants and sons of merchants. The question of the right of the minor son of a Chinese merchant to enter the United States under the immigration act of 1924 has been certified by this court to the Supreme Court of the United States, and it was stipulated between counsel that the appeal should be heard as to the Chinese merchants, and the case continued as to the other appellees, until the question certified has been answered by the Supreme Court.\nThe judgment of the court below is therefore affirmed as to the 13 Chinese merchants, and as to the remaining appellees the case is continued until the question certified has been answered by the Supreme Court, or until otherwise ordered by this court.\nSince the foregoing opinion was written, the right of the wives and minor children of Chinese merchants to enter the United States has been upheld by the Supreme Court. Cheung Sum Shee v. Nagle, 45 S. Ct. 539, 69 L. Ed. ___, decided May 25, 1925.\nThe judgment is therefore affirmed in its entirety.\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"weedin-v-wong-tat-hing"} {"attorneys":"Dunne, Dunne & Phelps, and Desmond G. Kelly, San Francisco, Cal., Koerner, Young, McColloch & Dezendorf, James C. Dezendorf and James H. Clarke, Portland, Or., for appellant., O’Gara & McGuire, James O’Gara, Jr., E. James McGuire, Walter R. Wright, San Francisco, Cal., for appellee.","case_name":"Interstate Plywood Sales Company, a Corporation v. Interstate Container Corporation, a Corporation","case_name_full":"INTERSTATE PLYWOOD SALES COMPANY, a Corporation, Appellant, v. INTERSTATE CONTAINER CORPORATION, a Corporation, Appellee","citation_count":7,"citations":["331 F.2d 449"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","date_filed":"1964-05-22","date_filed_is_approximate":false,"headmatter":"\n Before ORR, HAMLEY and BROWNING, Circuit Judges.\n
\n . When the contract was executed the parties contemplated that Container Corp. would make Digger pine plywood. This was a new product, though, and was not successful on the market. As a consequence Container Corp. ceased Digger pine production about two years after the contract was entered into, and since then has produced Douglas fir plywood exclusively.\n
\n\n Summary Calendar.\n
2 3 Mining Shares in Voluntary Association: sale for non-payment of assessment. A trustee took a mining lease with option to purchase, and providing- that certain work should he done monthly, failure to do which for ten days should forfeit the lease. He formed a voluntary association, issuing to each member a certificate representing a 1-30 interest, and providing that the holder should pay $10 on the fourth of each month, and on failure to pay assessments the share might be sold, etc. Afterwards, at a meeting of all the shareholders, they agreed that the monthly expenses should be divided into thirty parts, each part to constitute an assessment, and thereafter , the assessment's were doubled. Plaintiff purchased a share of the original holder, and on default, his share, with other delinquents was sold. Held, that, even, if the organization was a partnership, and not a joiht stock association, the sale of plaintiff’s delinquent share was as valid as plaintiff’s purchase thereof.
1 4 'Construction of sale clause. In view of the necessity of prompt payments to comply with the terms of the lease, arid the manifest intent of the parties, the provision in the certificates that the sale of* delinquent shares should “take place on the tenth day of the month following such failure,” etc., should be construed to mean the tenth day of the same- month after the default in payment of assessments.
5 Laches of person whose share was sold. The purchaser of plaintiff’s delinquent share, after having paid $46.90 in assessments, offered to return it to plaintiff without charge if plaintiff would keep up future assessments. Plaintiff refused and thereupon the purchaser assigned to defendant on the same terms who paid two assessments. Eighteen months after the mine became profitable plaintiff sued to recover the share. Held, that he was estopped by his laches from claiming the property, or objecting to irregularities, if any, in the sale of his share as delinquent.
","id":7198669,"judges":"Waterman","opinions":[{"author_str":"Waterman","ocr":true,"opinion_id":7109899,"opinion_text":"\nWaterman, J. —\n\n*270\n1\n\n2 *269On July 30, 1897, one George W. Hilbo, as trustee, took a lease, containing an option to pur*270chase, of a certain mining claim in the state of Colorado,, from the Jack Pot Mining Company, its then owner.. This lease provided that the lessee should perform a certain amount of work, viz, sinking at least 15 feet. of shaft, or drifting or cross-cutting at least 20 feet, during-each month of the term granted, and that a failure to work the premises for a period of 10 consecutive days should forfeit the rights of the lessee. We are not concerned with any of the other provisions of the instrument. Those we have given are material only as showing the necessity for prompt payment of assessments for carrying on the work. After procuring this lease, Bilbo formed a voluntary association of individuals, who were styled cestuisque iruslent, and entered into a trust agreement, as it is. styled in the instrument, but which, inasmuch as it is signed only by Bilbo, trustee, may, with more accuracy, be denominated a declaration of trust. The ceshois que trustent are mentioned as signing the agreement as party of the first part, and are described as owners of certain certificates or shares issued by Bilbo as trustee, each of which represents a one-thirtieth interest in the leased property. It was provided the certificate holders should pay the sum of $10 on each share on the 4th day of each month. The trustee was directed to give notice by letter on the 25 th of each month to every certificate holder, of such assessments. It was also stipulated that said payments were for the purpose of developing the mine, and to meet other necessary expenses. In case of a failure to pay the assessment on any certificate, it was provided that such share may be sold “on the 10 th day of the month following-such failure”; sale to be made by the trustee for the highest and best price he could obtain on said day. A further provision made the certificate assignable, if assessments were not in default. With this agreement as a basis, Bilbo formed the association of persons mentioned, at and about Crestón in this state, to whom certificates were executed. Originally there *271were 36 certificate holders, but the number was afterwards reduced to 30. Each certificate provided that the holder was entitled to an undivided one-thirtieth interest in the leased property, and was entitled to receive any profit or advantage “that may come into the hands of said trustee.” It (contained the same provision as the declaration of trust, in relation to the right of the trustee to sell the certificate for a default of the holder in paying assessments. One Stewart was originally the owner of a share. On February 15, 1898, for a consideration of $5 he sold and transferred the same to plaintiff. Some time after the organization of this association, and before plaintiff acquired his share, it became necessary to increase the assessments, and at a meeting attended by all the shareholders, including Stewart, plaintiff’s assignor, it was unanimously agreed that the monthly expenses, whatever they might be, should I hereafter be divided into 30 equal parts, and the holder of each certificate should pay one such part, as the assessment on his share. Under this arrangement the assessments increased considerably, beginning with the month of September, 1897. For the month of .February, 1898, the assessment was $25; March $20; April, $20; May, $20, and June, $26. The most strenuous efforts were required from time to time, by the trustee, to secure payment of the assessments due and perform the required work on the property, necessary to prevent a forfeiture of the lease.* Certificate holders lost heart and ceased to pay. About the beginning of the year 1898, the prospect was unusually gloomy. At the end of the month of March when the pay roll of that month was reported, a number of shareholders refused to pay assessments. Early in April a telegram was received from the mine, that the men had refused to work for several days because they had not been paid for their March labor. The money was borrowed to pay them, and they were induced to go to work just in time to prevent a forfeiture of the lease. Plaintiff refused to pay *272his March assessment, he says not unconditionally; nevertheless, he admits the money was not forthcoming on demand. On the 11th day of April, the 10th falling on Sunday, plaintiff’s share, with four others which were delinquent, were sold. There was no public bidding, for the shares had no value, but at a meeting called for the purpose of disposing of them, it was sought to find some person who would take them paying the assessment in arrear and assuming those to be thereafter levied. The five shares delinquent were finally ■so disposed of, Bilbo taking plaintiff’s share. Bilbo then paid the March assessment, $20, and paid á proportionate ■share of other bills due, amounting to $6.90. He paid the April assessment of $20, and thereafter offered to return the .■share to plaintiff without charge, if the latter would keep up future assessments. Plaintiff refused. Bilbo, after this, induced defendant Davenport to take the share and pay subsequent assessments, and that is how the latter becomes personally a defendant herein. Other assessments for May and June were paid by Bilbo or Davenport. In the latter part ■of June, 1898, the mine developed into a producing property. The company was incorporated as the Crestón Gold Mining Company. Up to the time of trial in the court below something over $12,000 in dividends had been paid on each share. This action was begun in October, 1899.\n3 I. Plaintiff asserts that the first organization of which he was a member was a co-partnership. ^Perhaps it was, for it has many of the incidents of a joint stock company, though it differs in one particular from any such companies to which our attention has been called, — in that title to its property or assets was vested in a trustee. But the matter is of no consequence. Whatever the character of the original association, authority was given the trustee to sell the shares for non-payment of assessments, and the exercise of this power was as valid as was that of assigning shares, .and it was by or through such an assignment, as we have already seen, that plaintiff acquired his certificate.\n\n*273\n\n4\n\n\n•5 II. Certain objections are made to tbe methods pursued in accomplishing the forfeiture. It is said no written notice was given plaintiff of the assessment the assessment was for more than $10; there was no notice of the sale given plaintiff, nor advertisement thereof, nor appraisement of the property. Some other matters are suggested, but not argued; so we shall not notice them. As to the increase in assessment, this was agreed to by all parties before Joseph became a member. That he knew of it when he took his certificate is shown by the fact that he paid the February assessment of $25, and made no objection to the assessment for March on the score of amount. Furthermore, he has never offered to pay even the amount of the assessments which he now admits were legal. With relation to the other matters, it may be said plaintiff knew of the amount of the March assessment and admits that demand was made upon him therefor. It also appears that he was verbally notified of the date of the forfeiture sale. While nothing is said in the articles about the manner of sale, its purpose and object, together with the date fixed for it, indicate that it was to be without the formality of appraisement, and without the delay of advertisement provided for in sales on execution. The sale was to “take place on the 10th day of the month following such failure,” etc. This language is clear when the purpose is considered. Ten days’ delay in the work on the property would forfeit the lease; prompt payments by certificate holders were necessary in order to continue the work, for that was the only source of revenue. To delay the sale of a certificate upon which an assessment was delinquent for a month would result almost inevitably in the. loss of the property. Therefore, this clause is to be construed as the 10th day of the same month after such failure, and not the 10th day of the iollowing month. But if the sale was prematurely made, and if there were irregularities in making an assess*274ment and sale, of which plaintiff might have been heard in timely complaint, we think he has lost such rights by his laches. Plaintiff knew of the March assessment, and declined to pay it. He knew of the date of the sale of his stock. After the sale, he refused to receive the certificate and assume future obligations, when a return of it was offered. At that time the certificate represented only an obligation of indebtedness, and he did not care for it. He knowingly permitted the purchaser to go on paying assessments to save the lease, and only when it became manifest the certificate was of value, some 18 months after forfeiture, did he make claim to its ownership. Even now he does hot tender the amount of the assessments paid on his stock. There seems no equity in his favor. Laches is an equitable estoppel. Evans v. Montgomery, 50 Iowa, 327. The doctrine is enforced in all cases where there has been an omission to assert a right in conjunction with lapse of time causing prejudice to an adverse party. Blackman v. Wright, 96 Iowa 541; Horn v. French, 99 Iowa, 73; Bacon v. Chase, 83 Iowa, 521. These cases are cited only as announcing the general nature of this equitable doctrine. The rule may be narrowed for the purpose of the present case, into the statement: Equity will hot relieve against a forfeiture of stock, where the shareholder has acquiesced in the same until a change of 'circumstances or conditions has arisen. Thompson, Corporation, section 1807; 2 Pomeroy, Equity Jurisprudence 965. In Sayre v. Heat Co., Cal. (7 Pac. Rep. 437), certain shares of stock belonging to plaintiff’s assignor were sold for non-payment of assessments and bought in by the corporation. Afterwards they were tendered back on condition that the assessment should be paid. The owner refused to receive them. At this' time the stock was worth but little. Subsequently it became profitable, and action was brought to recover the shares. Plaintiff was denied relief because of his acquiescence in the sale. Hayward v. Bank, 96 U. S. 611 (24 L. Ed. 855) is even a stronger case, or perhaps we should *275say, states a phase of the rule more pertinent to the case at bar. In that case mining stocks had been deposited as collateral, and were sold by the pledgee. Plaintiff was informed of the sale, and did not object. The stocks thereafter increased in value, and action was brought to redeem. Held, that delay in bringing suit — about 3^ years — barred his rights, the court saying; “Without reference to any statute of limitation, equity has adopted the principle that the delay which will defeat a recovery must depend upon the particular circumstances of each case. The question of acquiescence or delay may often be controlled by the nature of the property which is the subject of litigation. A delay which might have been of no consequence in an ordinary case may be amply sufficient to bar relief when the property is of a speculative character, or is subject to contingencies, or where the rights and liabilities of others have been in the meantime varied. If the property is of a speculative or precarious nature, it is the duty of a man complaining’ off fraud to put forward his complaint at the earliest possible time. He cannot be allowed to remain passive, prepared to affirm the transaction, if the concern should prosper, or to repudiate it if that should prove to his advantage.” See also, to substantially the same effect, Twin Lick Oil Co. v. Marbury, 91 U. S. 587 (23 L. Ed. 328).\nThe trial court made a proper disposition of the case, and its judgment is ahbtrmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"joseph-v-davenport","summary":"Appeal from Union District Court. — Hon. H. M. Towner, Judge. Action in equity for an accounting and to recover tlie profits on an interest in a gold mining company, wbicb interest plaintiff claims be owns and bolds, and wbicb defendants insist he forfeited by failing to pay certain assessments levied thereon. From a judgment dismissing the petition and taxing costs to plaintiff, be appeals. —"} {"attorneys":"Peter Mineo, Jr. of Peter Mineo, Jr, P.A. and Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., Fort Lauderdale, for appellant., Robin Corwin Campbell and Eric Lee of Atlas, Pearlman, Trop & Borkson, P.A., Fort Lauderdale, for Appellee Steven D. Gelbard, M.D.","case_name":"Ondo v. Gieseke","case_name_full":"Gloria ONDO, as Personal Representative of the Estate of Michael E. Ondo, on Behalf of herself and the survivors v. F. Gary GIESEKE, P.A., Steven D. Gelbard, M.D., Matthew r. Moore, M.D., Glen Sutherland, M.D., Ted Carson, M.D., Neil Katz, M.D., and Galen of Florida, Inc, d/b/a Humana Hospital Cypress f/k/a Pompano Beach Medical Center","case_name_short":"Ondo","citation_count":0,"citations":["707 So. 2d 968"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1998-04-08","date_filed_is_approximate":false,"id":7774477,"judges":"Glickstein, Shahood, Warner","opinions":[{"ocr":true,"opinion_id":7713080,"opinion_text":"\nPER CURIAM.\nAffirmed. See Ondo v. Gieseke, 697 So.2d 921 (Fla. 4th DCA 1997).\nGLICKSTEIN, WARNER and SHAHOOD, JJ, concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"ondo-v-gieseke"} {"case_name":"State v. Cheramie","case_name_full":"STATE of Louisiana v. Mickey CHERAMIE","case_name_short":"Cheramie","citation_count":0,"citations":["791 So. 2d 653"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"2001-05-04","date_filed_is_approximate":false,"id":7802187,"opinions":[{"ocr":true,"opinion_id":7742719,"opinion_text":"\nIn re Cheramie, Mickey; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. E, No. 50,907; to the Court of Appeal, Fifth Circuit, No. 01-KH-81.\nDenied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-cheramie"} {"attorneys":"F. E. Latham and J. G. Tarhox, for appellant., Foland é McCv/ne, for respondent.","case_name":"Oevermann v. Loebertmann","case_name_full":"BERNARD OEVERMANN v. HENRY LOEBERTMANN","case_name_short":"Oevermann","citation_count":0,"citations":["68 Minn. 162"],"court_full_name":"Supreme Court of Minnesota","court_jurisdiction":"Minnesota, MN","court_short_name":"Supreme Court of Minnesota","court_type":"S","date_filed":"1897-05-06","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"Assumpsit — Statute of Limitations — Partial Payments — Pleading.
An allegation in a complaint is sufficient which alleges an indebtedness and part payments thereon at such times as would prevent the statute from operating as a bar to the cause of action. Words or acts indicating that the debtor acknowledged that more was due and would be paid need not be alleged. The rule that part payment of a debt will not take the case out of the statute unless the payment be made under circumstances which will warrant the jury in inferring therefrom a promise to pay the residue is one of evidence, and not of pleading. It is not necessary to plead implied promises.
","id":8014796,"judges":"Buck","opinions":[{"author_str":"Buck","ocr":true,"opinion_id":7969865,"opinion_text":"\nBUCK, J.\nThe evidence in this case, if admissible under the complaint, is ample to sustain the verdict. It is' contended that the complaint does not state facts sufficient to constitute a cause of action, and, as it is quite brief, we quote the same, viz.:\n“For his complaint herein, the plaintiff alleges: That on the 1st day of September, 1888, at the county of Wright, in said state, he lent to defendant, at his special instance and request, the sum of two thousand dollars ($2,000). That the defendant has not paid the same, or any part thereof, except as follows: In December, 1888, $400; in July, 1889, $300; in July, 1891, eight bushels of oats, of the value of $2.40; in December, 1891, $30; in March, 1892, $10; in September, 1894, two bushels of oats, of the value of seventy (70) cents. That frequently, before the commencement of this action, plaintiff demanded of defendant payment of said sum. Wherefore plaintiff demands judgment against defendant for the sum of $2,000, with interest thereon at seven per cent, since September 1, 1888, less the several sums *164above set forth, with interest on each of said sums from the date of payment thereof, as above specified, and for the costs and disbursements of this action.”\nWhen the case was called for trial the defendant moved for judgment in his favor upon the pleadings, which motion was denied. When the plaintiff offered evidence to support the allegations in his complaint, the defendant again objected, upon the ground that no cause of action is stated in the complaint, and because the complaint showed that the cause of action was barred by the statute of limitations. This objection was overruled, and defendant excepted.\nWe are of the opinion that the ruling of the trial court in each instance was correct. The plaintiff is not required to set out the facts or circumstances attending the various payments made by the defendant upon the indebtedness. These are matters of evidence, and need not be pleaded. The appellant cites Brisbin v. Farmer, 16 Minn. 187, 196 (215), as affirming the rule laid down by Chitty,\n“That part payment of a debt will not take the case out of the statute unless the payment be made under circumstances which will warrant the jury in inferring therefrom a promise to pay the residue.”\nBut, conceding this to be the law, it refers to the circumstances attending the payment, and is a rule of evidence, and not of pleading. When the pleader alleges in his complaint that a loan on a certain day has been made, or the execution of a note payable at some future time, and that certain payments have been made thereon, within which time the statute of limitations would not operate as a bar to a recovery on the original indebtedness, he need not allege the words or acts to indicate that it was meant that they were to be construed as carrying with them an acknowledgment that more was due and would be paid. In this case the complaint alleges part payment at different times on the loan, and that they were made at such times as would save the statute from operating as a bar to his cause of action.\nThe defendant admits the original loan or indebtedness, and, if he made the payments as alleged, this is a further admission of indebtedness. If nothing more was said or done by the debtor with reference to such indebtedness, and no protest or assertion made that it had been paid in whole or in part, the making a voluntary payment in part of a larger indebtedness without objection would be evidence from *165which a jury would be warranted in inferring a new promise to pay the balance. This is what we understand is meant by the rule so frequently laid down in the law books, that part payment must be under such circumstances as reasonably, and by fair implication, leads to the inference that the debtor intended to renew his promise of payment. Of course, it must appear that the payment was made upon the debt sued on, and that it was so intended by the debtor and so accepted by the creditor.\nWe do not wish to be understood as holding that even if objections were made to the amount of the original indebtedness, or a claim that more had been paid, the jury might not consider whether a payment then made would not warrant a finding that the debtor intended to pay the balance, notwithstanding his protest. All of the attending circumstances might be considered by the jury which go to repel the idea of an intention not to pay, as well as an intention to pay, the balance. The rule that the partial payment of a debt takes it out of the operation of the statute of limitations is founded upon the theory that a payment of a part of a subsisting debt is acknowledgment that the debt exists, from which the law implies a new promise to pay the balance. Taylor v. Foster, 132 Mass. 30. It is not necessary to plead implied promises. While the law encourages promptitude in the prosecution of remedies, yet as the statute of limitations never pays a debt, although it may bar the remedy, it gives effect to such affirmative acts of the debtor as tend to recognize or pay an honest indebtedness; for honesty is a favorite of the law as well as of equity. The complaint being sufficient, if the defendant wished to rely upon the statute of limitations he should have pleaded it in his answer.\nThis he did not do, and, as the jury found against him upon the facts, the order denying the motion for a new trial is affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"oevermann-v-loebertmann","summary":"Appeal by defendant from an order of the district court for Wright county, Smith, J., refusing a new trial after a verdict for plaintiff for $1,256.90. A mere payment on account does not establish a new point from which the statute of limitations begins to run. 2 Wood, Lim. A.ct, § 232. See Brisbin v. Farmer, 16 Minn. 186 (215); Chadwick v. Cornish, 26 Minn. 28; Young v. Perkins, 29 Minn. 173. A simple part payment even by a debtor to his creditor is not evidence that there is more due, nor is it evidence alone of a promise to pay the balance of a debt. Smith v. St. Paul, 56 Minn. 202. In case of an acknowledgment or implied promise, there should be a direct recognition of the indebtedness. Whitney v. Reese, 11 Minn. 87 (138). Payment is not necessarily admission. Merriam v. Bayley, 1 Cush. 77; Shoemaker v. Benedict, 11 N. Y. 176; Winchell v. Hicks, 18 N. Y. 558; Conway v. Wharton, 13 Minn. 145 (158); Erpelding v. Ludwig, 39 Minn. 518; U. S. v. Wilder, 13 Wall. 254, 257; Buckley v. U. S., 8 Ct. Cl. 517; Jones v. Langhorne, 19 Colo. 206; Stevens v. Lord, 84 Hun, 353; Crow v. Gleason, 141 N. Y. 489; Liseur v. Hitson, 95 Ga. 527; Compton v. Bowns, 23 Civ. Proc. R. 225; Ayres v. Hubbard, 71 Mich. 594. A simple allegation of part payment is not an allegation of any fact which would remove the bar of the statute, and if it appear by the complaint that the cause of action was barred, the defendant may demur. Kennedy v. Williams, 11 Minn. 219 (314); Humphrey v. Carpenter, 39 Minn. 115; Hoyt v. McNeil, 13 Minn. 362 (390); West v. Hennessey, 58 Minn. 133. The objection must clearly appear in the complaint that the action is barred. McArdle v. McArdle, 12 Minn. 53 (98); Kennedy v. Williams, supra; Eastman v. St. Anthony, 12 Minn. 77 (137); Humphrey v. Carpenter, supra; Henkel v. Pioneer, 61 Minn. 35; Smith v. Den-nett, 15 Minn. 59 (81); Solomon v. Vinson, 31 Minn. 205; Cochrane v. Quackenbush, 29 Minn. 376; Trebby v. Simmons, 38 Minn. 508. When it appears from the complaint that partial payments have been made toward the debt sued on within less than the statutory time before the commencement of the action, demurrer will not lie. Davenport v. Short, 17 Minn. 8 (24); Downer v. Read, 17 Minn. 470 (493); McArdle v. McArdle, supra; Kennedy v. Williams, supra; Trebby v. Simmons, supra. See, also, Board v. Cole, 8 Ind. App. 485; Cameron v. Cameron, 82 Ala. 392. Limitations must be pleaded unless the complaint shows on its face that the action is barred. City v. Twiford, 13 Ind. App. 384; Rich v. Bray, 37 Fed. 273; Chellis v. Coble, 37 Kan. 558; Inhabitants v. Syms, 49 N. J. L. 546; Bliss, Code Pl. § 355; 1 Wood, Lim. Act. § 7."} {"attorneys":"Hooker $ Wilson, for appellant., Cochran $ Bozeman, for appellees.","case_name":"Alexander v. Lloyd","case_name_full":"C. B. Alexander v. J. C. Lloyd","case_name_short":"Alexander","citation_count":0,"citations":["70 Miss. 662"],"court_full_name":"Mississippi Supreme Court","court_jurisdiction":"Mississippi, MS","court_short_name":"Mississippi Supreme Court","court_type":"S","date_filed":"1893-03-15","date_filed_is_approximate":true,"id":8031335,"judges":"Cooper","opinions":[{"author_str":"Cooper","ocr":true,"opinion_id":7987362,"opinion_text":"\nCooper, J.,\ndelivered the opinion of the court.\nThe service of the writ of garnishment was. not made five days before the return-day, and, for that reason, could not support a judgment at the return-term. Section 2134, code 1892, provides that writs of garnishment “shall be served as a summons is required by law to be executed.” Section 3417 provides that summons “ shall be executed five days before the return-day thereof; and if executed within five days before the return-day, it shall be good to require the appearance of the party at the term next after that to which it is returnable.” Section 3427 declares in what ways the service shall be made. The purpose of § 2134 is to place writs of garnishment under all the rules applicable to other original process.\n\"Where there has not been personal service upon the garnishee, no final judgment can be rendered against him, but a judgment nisi must be taken, with scire facias returnable to the next term, “unless the court be satisfied that the garnishee can be personally served at once, in which case it may be returnable instanter.” Code 1892, § 2134. It is the scire facias, and not the original writ, to which this clause refers.\n\n■ Judgment affirmed.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"alexander-v-lloyd","summary":"From the circuit court of Holmes county. Hon. C. H. Campbell, Judge. Appellant, Alexander, plaintiff iu a judgment against the Equitable Fire Insurance Company, of Meridian, Mississippi, caused a writ of garnishment thereon to issue against J. C. Lloyd and others, the appellees herein, returnable before the circuit court of Holmes county on the fourth Monday of November, 1892. The writ was executed personally on the garnishees, but the service was not had until two days before the return-day. The garnishees did not appear at the return-term, and on the third day thereof judgment by default was entered against them for the full amount of plaintiff’s judgment. Ou a subsequent day of the term, said garnishees moved the court to set aside the judgment against them, because the writ of garnishment had not been served on them five days before the return-day. This motion was sustained, and the judgment was set aside, and plaintiff appeals. While it is true that a writ of garnishment, as to the garnishees, is original process, it is not required to be served five days before court. A fair construction of § 2134, code 1892, is that the garnishment shall be served in the same manner that a summons is required to be executed. But the latter part of the section shows that all the time the garnishee can require is five days after personal service before judgment, Avhether the service be two days before court or on the first day of the term. If he does not answer within five days after service, plaintiff is entitled to judgment. The garnishees were in court, both by service of process and by appearance, and the plaintiff was entitled to judgment. We submit that a writ of garnishment must be executed in all respects as a summons. Code 1892, § 2134. It must be made returnable to a term of the court. §§ 2130, 2131. The garnishee must answer on the first day of the return-term. §2140. As a writ'of garnishment is original process, and controlled by the law applicable to a summons, where the service is within five days before the-return-day, it is effectual only to require appearance at the term next after that to which it is returnable. § 3417. Counsel for appellant admit that the garnishee must have five days’ personal service, but deny that it must be five days before the return-day. Such a construction would be contrary to the obvious meaning of all the code provisions above cited. The latter part of § 2134 has no application to the original writ of garnishment. The filing of the motion to set aside the judgment was not such an appearance of the garnishee as validated the judgment already rendered.","syllabus":"1. Garnishment. Service. Judgment by default. Code 1892, 2134, 3417.
Section 2134, code 1892, requires writs of garnishment to be served as a summons. Under ? 3417, where the service is within five days before the return-day, the garnishee is not required to answer until the next term. In such case, judgment by default cannot be taken against him before the next term, and the fact that five days have elapsed after service, and before entry of the judgment, does not change this.
2. Same. Personal service. Scire facias. Code 1892, § 2134.
The last clause of \\ 2134, which provides that if a garnishee be not personally served, and make default, judgment nisi shall be rendered against him, and a scire facias awarded, returnable to the next term, unless the court be satisfied that he can be personally served at once, “in which case it may be returnable instanter,” applies only to the service of the scire facias, and does not obviate the necessity of serving the original writ five days before the return-term.
"} {"attorneys":"Messrs. Harris & Cameron and Messrs. Morey, Andrews & Morey, for plaintiff in error., Mr. B. Harwits; Mr. Alex. Hume and Mr. C. W. Baker, for defendant in error.","case_name":"Bank v. Pump Co.","case_name_full":"Bank v. Pump Company","case_name_short":"Bank","citation_count":0,"citations":["66 Ohio St. (N.S.) 662"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"1902-04-22","date_filed_is_approximate":false,"id":8376407,"judges":"Burket, Davis, Price, Spear, Williams","opinions":[{"ocr":true,"opinion_id":8345654,"opinion_text":"\nJudgment affirmed.\nWilliams, C. J., Burket, Spear, Davis and Price, JJ., concur. .\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"bank-v-pump-co","summary":"Error to the Circuit Court of Butler county."} {"case_name":"Pier 3, Inc. v. Sancho Bonet","case_name_full":"Pier 3, Inc., aplte. v. Sancho Bonet, Tes. apldo.","citation_count":0,"citations":["52 P.R. Dec. 962"],"court_full_name":"Supreme Court of Puerto Rico","court_jurisdiction":"Puerto Rico, PR","court_short_name":"Supreme Court of Puerto Rico","court_type":"TS","date_filed":"1937-07-19","date_filed_is_approximate":false,"id":8579515,"judges":"Asociado, Asoeiado, Corte, Dávila, Hutchison, Intervino, Por","opinions":[{"ocr":true,"opinion_id":8553528,"opinion_text":"\nExaminadas las dos mociones que anteceden, así como la trans-cripción de la evidencia acompañada a la primera a la luz del ale-gato de la parte apelante, y no apareciendo que dicha transcripción hubiera afectado el resultado, no ha lugar a la reconsideración ni a la eliminación solicitada.\nEl Juez Asoeiado Sr. Córdova Dávila no intervino.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"pier-3-inc-v-sancho-bonet"} {"attorneys":"Page, McCutchen, Harding & Knight, for libelant., Andros & Hengstler, for respondents.","case_name":"Dodwell & Co. v. Munich Assur. Co.","case_name_full":"DODWELL & CO., Limited v. MUNICH ASSUR. CO., Limited","citation_count":0,"citations":["123 F. 841"],"court_full_name":"District Court, N.D. California","court_jurisdiction":"California, CA","court_short_name":"N.D. California","court_type":"FD","date_filed":"1903-06-02","date_filed_is_approximate":false,"id":8767898,"judges":"Haven","opinions":[{"author_str":"Haven","ocr":true,"opinion_id":8751385,"opinion_text":"\nDE HAVEN, District Judge.\nUpon the agreed facts the libelant is entitled to recover the sum of $1,555-35, and interest thereon from December 12, 1900, and costs. This conclusion is sustained by the following cases: The London & Northwestern Railway Co. v. Glyn, 1 Ellis & Ellis (Q. B.) 52, 102 E. C. L. 652; Waters v. Assurance Co., 5 Ellis & B. 870, 85 E. C. L. 870; California Insurance Co. v. Union Express Co., 133 U. S. 387, 10 Sup. Ct. 365, 33 L. Ed. 730. It is not alleged in the libel nor shown that the libelant had any lien for freight or advance charges upon the goods covered by the policy belonging to other parties, nor that the action of the libelant in obtaining insurance upon such goods was previously authorized, or has since been ratified by the owners; nor is it directly alleged that the action is brought for their benefit. But it would seem that the libelant, as charterer of the Tacoma, had the right, and indeed was legally bound, to either secure or discharge the general average contributions due upon the goods of the several owners before delivery to the consignees, and upon such payment would be entitled to a lien upon the goods liable to such contribution for their reimbursement. The rule is that the goods of the shipper may be retained by the *843master or shipowner until their share of the contribution is paid, •or secured. United States v. Wilder, 3 Sumn. 308, Fed. Cas. No. 16,694. This being so, the libelant had an insurable interest in all the goods carried by the steamer, of which it was the charterer, and could lawfully insure the same against general average charges.\nLet a decree be entered in favor of the libelant for the sum of $1,555.35, interest from December 12, 1900, and costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"dodwell-co-v-munich-assur-co","summary":"In Admiralty. Suit on marine policy of insurance. This was an action to recover upon a policy of marine insurance. The case was submitted, to the court for decision upon an agreed statement of facts, from which it appeared: The libelant was the charterer of the steamship Tacoma, then about to sail from Seattle, in the state of Washington, for Nome, in the district of Alaska, and had received on board of the steamer a cargo of merchandise for transportation between said ports. This cargo exceeded in value the sum of $100,000, and a portion thereof, of the value of $19,837.30, belonged to the libelant, and the remainder to various shippers, to whom the libelant had issued bills of lading in the usual form. The libel-ant applied to the defendants for insurance upon all of the said cargo, and the defendants issued to the libelant a policy of insurance in writing, whereby they insured the said libelant, “as well in their own name as for and in the names of all and every other person or persons to whom the subject-matter of this policy does, may or shall appertain, in part or in all,” against “general average and/or salvage only.” After the delivery of the policy the Tacoma sailed from Seattle on the voyage described in the policy. In the course of the voyage, by reason of the stranding of the steamer in Behring Sea, and by reason of sacrifices made by jettison of cargo in order that the steamer and her cargo might be floated and saved, and for the benefit of the interests concerned in the adventure, general average charges were incurred by the cargo, which charges were lawfully payable thereon whenever and as soon as a general average adjustment thereof should be made. Such general average adjustment was made, and the libelant, as- charterer of the ship and bailee of the cargo, paid to the steamship and her owners the full amount of the general average charges upon all of said cargo. On the 12th day of December, 1900, the libelant presented to the defendants the general average adjustment, and requested payment to it of the sum of $1,555.35, that being the amount payable by the defendants if, under the insurance carried by their policy, they were liable for a loss suffered by the libelant upon merchandise in its possession simply as carrier, as well as that owned by it. The defendants refused to pay the sum demanded, or to acknowledge any liability exceeding $334.70, which amount represents the loss of the libelant upon the merchandise which was owned by it, but not that owned by other parties, and in its possession as carrier.","syllabus":"1. Marine Insurance — General Average Losses on Cargo — Insurance Against by Charterer.
The charterer of a steamship, being primarily bound to secure or discharge general average contributions due upon the goods of the several cargo owners, and entitled to a lien thereon for his reimbursement, has an insurable interest in such goods, and under a policy insuring him against general average charges on the cargo may recover the amount of contributions so paid by him on cargo owned by others as well as by himself.
¶ 1. See Insurance, vol. 28, Cent. Dig. § 156.
"} {"attorneys":"Arthur B. McCoid, pro se; H. O. Bumery, of counsel., Moses, Bosenthal & Kennedy, for defendant in error; Julius Moses and Hirsch E. Soble, of counsel.","case_name":"Bobo v. McCoid","case_name_full":"John L. Bobo, in error v. Arthur B. McCoid, in error","case_name_short":"Bobo","citation_count":0,"citations":["216 Ill. App. 636"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1919-12-31","date_filed_is_approximate":false,"disposition":"Affirmed.","id":8847898,"judges":"Gridley","opinions":[{"author_str":"Gridley","ocr":true,"opinion_id":8833213,"opinion_text":" Mr. Justice Gridley delivered the opinion of the court. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"bobo-v-mccoid","summary":"Action to recover money due under written instrument. Judgment for plaintiff. Error to the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919."} {"case_name":"Smith v. Baker","case_name_full":"Smith, Trustee v. Baker, Trustee","case_name_short":"Baker","citation_count":0,"citations":["409 U.S. 1012"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1972-11-13","date_filed_is_approximate":false,"id":8990836,"judges":"Certiorari","opinions":[{"ocr":true,"opinion_id":8983009,"opinion_text":"\nC. A. 3d Cir. Petition for certiorari before judgment to C. A. 3d Cir. denied.\nMr. Justice Douglas would grant certiorari.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"smith-v-baker"} {"case_name":"Barnthouse v. Colorado","case_name_full":"Barnthouse v. Colorado","case_name_short":"Barnthouse","citation_count":0,"citations":["493 U.S. 1026"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1990-01-08","date_filed_is_approximate":false,"id":9093716,"opinions":[{"ocr":true,"opinion_id":9087932,"opinion_text":"\nSup. Ct. Colo. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"barnthouse-v-colorado"} {"case_name":"Patrick Shawn Elizondo v. the State of Texas","citation_count":0,"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"2023-02-23","date_filed_is_approximate":false,"id":9379689,"opinions":[{"download_url":"https://search.txcourts.gov/RetrieveDocument.aspx?DocId=12953&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa11%5cOpinion","ocr":false,"opinion_id":9375165,"opinion_text":" 11TH COURT OF APPEALS\n EASTLAND, TEXAS\n JUDGMENT\n\nPatrick Shawn Elizondo, * From the 244th District Court\n of Ector County,\n Trial Court Nos. C-20-0630-CR,\n C-20-0631-CR, & C-20-0729-CR\n\nVs. No. 11-21-00173-CR * February 23, 2023\n\nThe State of Texas, * Memorandum Opinion by Williams, J.\n (Panel consists of: Bailey, C.J.,\n Trotter, J., and Williams, J.)\n\n This court has inspected the record in this cause and concludes that there is no\nerror in the judgment below. Therefore, in accordance with this court’s opinion,\nthe judgment of the trial court is in all things affirmed.\n\f","page_count":1,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"patrick-shawn-elizondo-v-the-state-of-texas"} {"case_name":"Tamiami Partners v. Miccosukee","case_name_short":"Miccosukee","citation_count":1,"citations":["177 F.3d 1212"],"court_full_name":"Court of Appeals for the Eleventh Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Eleventh Circuit","court_type":"F","date_filed":"1999-06-07","date_filed_is_approximate":false,"id":73830,"opinions":[{"download_url":"http://www.ca11.uscourts.gov/opinions/ops/19965262.OPN.pdf","ocr":false,"opinion_id":73830,"opinion_text":" [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT FILED\n U.S. COURT OF APPEALS\n ELEVENTH CIRCUIT\n 06/07/99\n No. 96-5262 THOMAS K. KAHN\n CLERK\n\n\n D.C. Docket No. 92-CV-489-SH\n\nTAMIAMI PARTNERS, LTD.\nby and through TAMIAMI DEVELOPMENT\nCORP., its general partner,\n\n Plaintiff-Appellee,\n\n versus\n\nMICCOSUKEE TRIBE OF INDIANS OF\nFLORIDA; BILLY CYPRESS; JASPER\nNELSON; JIMMIE BERT; MAX BILLIE;\nHENRY BERT; and DEXTER LEHTINEN,\n\n Defendants-Appellants.\n\n\n\n Appeals from the United States District Court\n for the Southern District of Florida\n\n\n (June 7, 1999)\n\n\nBefore TJOFLAT and BIRCH, Circuit Judges, and RONEY, Senior Circuit Judge.\nTJOFLAT, Circuit Judge:\n\f This case, which is making its third appearance before our court,1 is the result\n\nof a protracted contractual dispute between the Miccosukee Tribe of Indians of Florida\n\n(“the Tribe”) and Tamiami Partners, Ltd. (“Tamiami”). The most recent incarnation\n\nof this dispute is Tamiami’s second amended complaint against the Tribe as well as\n\nagainst the Tribe’s attorney and several officers of the Tribe’s Business Council and\n\nGaming Agency (collectively, the “individual defendants”). In the district court, all\n\nof the defendants filed motions to dismiss Tamiami’s second amended complaint on\n\nthe following grounds: lack of subject matter jurisdiction, sovereign immunity, and\n\nfailure to state a claim. The defendants bring this interlocutory appeal from the\n\ndistrict court’s order denying their motions. Because of this procedural posture, we\n\nconsider only the issues of subject matter jurisdiction and sovereign immunity. With\n\none minor exception, see infra part III.B., we affirm the district court’s order on these\n\nissues with respect to the Tribe. As to the individual defendants, however, we hold\n\n\n\n 1\n The dispute between these parties has not been confined solely to federal\ncourt. See, e.g., Cypress v. Tamiami Partners, Ltd., 662 So. 2d 1292 (Fla. 3d DCA\n1995) (quashing discovery order on basis of sovereign immunity); Mandel v.\nMiccosukee Tribal Gaming Agency, No. CV 93-18, 22 Indian L. Rep. 6148\n(Miccosukee Tribal Ct. Jan. 31, 1994) (affirming denial of gaming license applications\nby Gaming Agency); In re Conservatorship for Miccosukee Indian Bingo, No. CV 93-\n11 (Miccosukee Tribal Ct. Apr. 13, 1993) (enforcing Gaming Agency order\nappointing conservator); Miccosukee Tribe of Indians v. Tamiami Partners, Ltd., No.\nCV 92-07 (Miccosukee Tribal Ct. July 16, 1992) (directing parties to arbitrate their\ndisputes).\n 2\n\fthat the doctrine of Ex parte Young does not allow Tamiami to defeat their claims of\n\nsovereign immunity.\n\n\n\n I.\n\n A.\n\n Because our prior opinions discuss the facts and initial procedural history of\n\nthis case in detail, we provide only a summary here.2 On April 7, 1989, the Tribe\n\nentered into a Management and Economic Development Agreement (the\n\n“Agreement”) with Tamiami Development Corporation (“TDC”) to operate a bingo\n\ngaming facility on Tribal lands under a gaming scheme authorized by the Indian\n\nGaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721 (1994), and a 1985 tribal\n\nordinance. The Agreement had a seven-year term and was renewable by TDC, at its\n\noption, for an additional three years. In exchange for forty percent of the facility’s\n\nmonthly “net revenues,” TDC agreed to purchase a parcel of real estate (outside the\n\n\n\n\n 2\n Most of the facts we recite in part I are drawn from the record in this case and\nfrom our prior opinions. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians,\n63 F.3d 1030 (11th Cir. 1995); Tamiami Partners, Ltd. v. Miccosukee Tribe of\nIndians, 999 F.2d 503 (11th Cir. 1993). We occasionally draw upon the allegations\nin Tamiami’s second amended complaint, which we accept as true in reviewing the\ndefendants’ motions to dismiss. See Jackson v. Okaloosa County, 21 F.3d 1531, 1534\n(11th Cir. 1994).\n 3\n\fMiccosukee reservation), convey the parcel to the United States in trust for the Tribe,\n\nand then design, construct, and manage a bingo facility on that parcel.\n\n Two provisions of the Agreement are particularly relevant here. Article 12\n\nprovides that “[a]ll disputes, controversies and/or claims arising out of or relating to\n\nthis Agreement, or the breach thereof, shall be settled by arbitration . . . .” Under\n\nArticle 23 of the Agreement, the Tribe waived its common-law immunity from a suit\n\nbrought by TDC either to compel arbitration under Article 12 or to enforce an\n\narbitration award. Article 23 states:\n\n The [Tribe] waives its sovereign immunity from suit as expressly\n provided in this Article. The United States District Court for the\n Southern District of Florida, shall have jurisdiction over the parties\n hereto in order to enforce the terms hereof specifically, upon one or both\n of the following events (i) [the Tribe] fails to participate in an arbitration\n proceeding invoked as provided in Article 12, or (ii) failure by [the\n Tribe] to abide by the terms of an arbitration award. . . . This waiver of\n sovereign immunity shall not become effective until [TDC] has given\n written notice to the Miccosukee Tribal Business Council, detailing the\n nature of the complaint and the [Tribe] shall have failed after 30 days\n following such notice to cure such complaint.\n\n After the Agreement was approved by a designee of the Secretary of the\n\nInterior, TDC purchased the parcel and began to construct the bingo facility. On\n\nJanuary 23, 1990, with the Secretary’s approval, the parties effected a novation of the\n\nAgreement in order to substitute Tamiami – a Florida limited partnership of which\n\nTDC was the general partner – for TDC. Thereafter, Tamiami completed the facility\n\n\n 4\n\fand began operating it as Miccosukee Indian Bingo (“MIB”) in September 1990. On\n\nAugust 9, 1991, the Tribe adopted an ordinance establishing a Tribal Gaming Agency\n\nto oversee the registration and licensing of the managers and key employees of its\n\ngaming enterprises, including the facility managed by Tamiami. Under this ordinance,\n\nthe denial of a license would result in termination of employment and eviction from\n\nthe gaming facility.\n\n During the first sixteen months of MIB’s operation, the Tribe made two\n\nseparate offers to purchase Tamiami’s interest in the facility. The highest offer was\n\nfor an amount equal to Tamiami’s initial investment in the facility. Tamiami rejected\n\nboth offers. On January 28, 1992, the Tribe notified Tamiami by letter that the\n\nAgreement had been “terminated by action of the [Tribe’s] Business Council . . .\n\neffective 30 days from the date hereof, because of repeated and flagrant violations of\n\nthe letter and spirit of that Agreement.” On February 25, pursuant to Article 12 of the\n\nAgreement, Tamiami formally demanded arbitration “to determine the validity of the\n\nTribe’s purported notice of termination.” The Tribe responded by filing a “Statement\n\nof Claim” in Miccosukee Tribal Court to obtain a declaration that the Agreement had\n\nbeen terminated. On February 27, Tamiami initiated this lawsuit by filing its original\n\nverified complaint against the Tribe in the United States District Court for the\n\nSouthern District of Florida. This complaint sought a declaratory judgment that\n\n\n 5\n\fArticle 12 of the Agreement bound the Tribe to settle all disputes by arbitration, as\n\nwell as an injunction compelling the Tribe to arbitrate the termination dispute and\n\npreventing it from taking control of MIB pending the completion of such arbitration.\n\n On March 5, 1992, the district court issued its first “omnibus order” in the case.\n\nAs a threshold matter, the court determined that it had subject matter jurisdiction\n\nbecause the case presented the question of Tribal Court power over a non-Indian. It\n\nstayed further proceedings in the case, however, pending either the parties’ exhaustion\n\nof their remedies in the Tribal Court or any action by the Tribe to evict or otherwise\n\nimpede Tamiami from operating MIB. See Tamiami Partners, Ltd. v. Miccosukee\n\nTribe of Indians, 788 F. Supp. 566 (S.D. Fla. 1992).\n\n On July 16, 1992, the Tribal Court issued a ruling that directed the parties to\n\ninitiate arbitration proceedings in accordance with the Agreement. During that same\n\nmonth, the Tribe denied seventeen license applications that Tamiami employees had\n\nsubmitted to the Tribal Gaming Agency. Tamiami responded by filing a motion\n\nasking the district court to enjoin the Tribe from exercising self-help in order to\n\nterminate the Agreement. Tamiami alleged in its motion that the Tribe, under the\n\npretext of issuing legitimate license denials, was engaging in self-help in order to\n\nprevent Tamiami from operating MIB and thus effectively terminate the Agreement.\n\nIn its second omnibus order, issued on August 19, the district court addressed this\n\n\n 6\n\fmotion. The court found that the Tribe’s licensing process was arbitrary and\n\ncapricious under the Administrative Procedure Act. Nevertheless, the court concluded\n\nthat Congress, in enacting IGRA, had made no provision for suits by management\n\ncontractors (such as Tamiami) to challenge a Tribe’s licensing procedures. Moreover,\n\nit held that the Tribe’s narrow waiver of sovereign immunity did not constitute\n\nconsent to federal court suits challenging its licensing process. For these reasons, the\n\ncourt denied Tamiami’s motion. See Tamiami Partners, Ltd. v. Miccosukee Tribe of\n\nIndians, 803 F. Supp. 401 (S.D. Fla. 1992).\n\n On August 21, Tamiami moved the district court for leave to file a\n\n“supplemental” complaint and for a preliminary injunction that would compel\n\narbitration of the licensing dispute and prevent the Tribe from using the licensing\n\nprocess to frustrate Tamiami’s operation of MIB. The court denied this motion on\n\nSeptember 15. Thereafter, Tamiami took interlocutory appeals from the district\n\ncourt’s August 19 and September 15 orders.\n\n An arbitration panel eventually was convened on December 17, 1992. On April\n\n13, 1993, while the interlocutory appeals and arbitration were pending, the Tribe took\n\nseveral steps to oust Tamiami from MIB. The Tribal Gaming Agency denied licenses\n\nto Tamiami, TDC, and two of TDC’s principal officers – Cye Mandel and John Sisto.\n\nThe Gaming Agency also appointed a conservator to take control of MIB and to\n\n\n 7\n\foperate the facility; the conservator was instructed to pay the Tribe its share of MIB’s\n\nnet revenues and to deposit Tamiami’s forty percent share into a trust account at\n\nJefferson National Bank in Miami, Florida. The Tribal Court ratified the\n\nconservator’s appointment the same day. The Tribal police then forced Mandel and\n\nSisto to leave the MIB premises, the MIB accountant surrendered MIB’s financial\n\nrecords to the Tribe, and the Tribe began the process of obtaining control of MIB’s\n\nbank accounts.\n\n Tamiami immediately returned to the district court seeking an injunction to\n\nprevent the Tribe from exercising self-help. In its third omnibus order, issued on\n\nApril 15, the district court found that the Tribal Court had exceeded its jurisdiction in\n\nratifying the conservator’s appointment. The court also concluded that the Tribe had\n\nexceeded its sovereign powers in rejecting the license applications of Tamiami, TDC,\n\nMandel, and Sisto. In its view, these rejections were simply an attempt to circumvent\n\nthe ongoing arbitration and to terminate the Agreement. Accordingly, the court\n\ndeclared that all of the Tribe’s April 13 actions were void and ordered the parties to\n\nreturn to the status quo ante of April 12. The court certified its order under 28 U.S.C.\n\n§ 1292(b) (1994) to allow the Tribe to appeal. We permitted the Tribe’s appeal and\n\nconsolidated it with Tamiami’s two pending interlocutory appeals.\n\n\n\n\n 8\n\f On August 16, 1993, a panel of this court decided these three appeals.\n\nSee Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 999 F.2d 503 (11th Cir.\n\n1993) [hereinafter Tamiami I]. Addressing the subject matter jurisdiction of the\n\ndistrict court, the panel applied the “well-pleaded complaint rule”3 and held that\n\nTamiami’s complaint failed to state a federal question within the meaning of 28\n\nU.S.C. § 1331 (1994). See Tamiami I, 999 F.2d at 506-07. The panel recognized that\n\n“[t]he right to be protected against an unlawful exercise of tribal court judicial power\n\nis . . . a claim arising under federal law,” id. at 507, but stated that Tamiami’s\n\ncomplaint failed to assert such a right. Instead, the complaint merely invoked section\n\n1331 and then “present[ed] facts establishing a breach of contract claim.” Id.\n\nAccordingly, the panel reversed the district court’s third omnibus order and remanded\n\nthe case with the following instructions:\n\n Because we are now aware of facts which suggest that the district court\n could have [subject matter] jurisdiction if the case arose today, we\n remand the case to the district court with directions that the district court\n dismiss this action unless one of the present parties files a complaint or\n other pleading which properly alleges jurisdiction.\n\nId. at 508.\n\n\n\n 3\n Under the well-pleaded complaint rule, a case does not raise an issue of\nfederal law “unless a federal question is presented on the face of the plaintiff’s\ncomplaint.” Kemp v. International Bus. Machs. Corp., 109 F.3d 708, 712 (11th Cir.\n1997).\n 9\n\f B.\n\n On remand, Tamiami accepted the panel’s invitation by filing an amended\n\ncomplaint on September 14, 1993. This complaint essentially presented three claims.4\n\nFirst, Tamiami asserted a breach of contract claim against the Tribe. It alleged that\n\nthe Tribe, operating through its Business Council and Gaming Agency, breached the\n\nAgreement by taking control of MIB and ousting Tamiami from the premises. Such\n\nactions, according to Tamiami, violated IGRA and exceeded the sovereign powers\n\naccorded to the Tribe under federal law. As a remedy for these violations, Tamiami\n\nsought an injunction restoring its position as the MIB operator and requiring the Tribe\n\nto pay Tamiami its forty percent share of MIB’s net revenues.\n\n In its second claim, Tamiami contended that the Tribe, acting through its\n\nGaming Agency, abused the licensing authority conferred by IGRA and its associated\n\nregulations by refusing to license Tamiami, TDC, Mandel, and Sisto. Tamiami\n\ntherefore sought an order declaring that such abuses had occurred and enjoining the\n\nGaming Agency to issue the requested licenses. Tamiami’s third claim, which also\n\n\n 4\n This court gleaned these three claims from a fair reading of the complaint. See\nTamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1046-47 (11th\nCir. 1995). In addition to these claims, Tamiami further contended that the\nMiccosukee Tribal Court and its judges had exceeded their jurisdiction and sought to\nhave the Tribal Court’s actions of April 13, 1993, declared invalid. Because this court\nlater declared these claims against the Tribal Court and its judges to be moot, see id.\nat 1044, 1046 n.57, we do not discuss them further here.\n 10\n\fpertained to the licensing authority conferred by IGRA and its regulations, was\n\nbrought against individual members of the Tribe’s Business Council and Gaming\n\nAgency. According to Tamiami, because these individuals were executing the Tribe’s\n\nplan to assume control of MIB by refusing to license Tamiami’s key personnel, they\n\nwere subject to suit under IGRA in the district court. As to these defendants, Tamiami\n\nsought an injunction ordering them to grant the licenses at issue, restore Tamiami to\n\nthe MIB premises, and turn over its share of the net revenues.\n\n Meanwhile, the arbitration between the parties was proceeding and the\n\narbitration panel had scheduled a final hearing for September 23. On September 15,\n\nthe Tribe filed a motion in Tribal Court requesting a stay of arbitration proceedings.\n\nThe court granted the stay on the following day. On September 21, the arbitration\n\npanel concluded that it derived its authority from Article 12 of the Agreement and that\n\nthe Miccosukee Tribal Court had no jurisdiction to enforce that article. The panel\n\ntherefore proceeded to hold its final hearing as scheduled, albeit without the\n\nparticipation of the Tribe or its chosen arbitrator. On October 6, a majority of the\n\npanel issued a decision in which it found that the Tribe had violated the Agreement\n\nby terminating Tamiami’s MIB program director after denying his application for a\n\ngaming license. The panel awarded Tamiami fees and costs, and gave the Tribe a\n\n\n\n\n 11\n\fchoice between reinstating Tamiami as manager of MIB or paying Tamiami $9.5\n\nmillion in satisfaction of the Tribe’s obligations under the Agreement.\n\n On October 12, 1993, the Tribe again restructured the management of MIB by\n\nterminating the conservator. At the Tribe’s direction, the conservator withdrew\n\nTamiami’s share of net revenues from the trust account at Jefferson National Bank;\n\nhe received those funds in the form of a cashier’s check for approximately $1,566,000\n\nthat was made payable to “Dexter Lehtinen, trustee.” Lehtinen, the Tribe’s legal\n\ncounsel, then endorsed the check over to the Tribe for deposit in a separate account\n\nat Jefferson National Bank entitled “Miccosukee Indian Bingo Reserve Account.”\n\nThe district court froze this separate account on October 27.\n\n Also on October 12, the defendants filed motions to dismiss Tamiami’s\n\namended complaint on the grounds of lack of subject matter jurisdiction, sovereign\n\nimmunity, and failure to state a claim. The district court ruled on these motions on\n\nFebruary 28, 1994. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 898\n\nF. Supp. 1549 (S.D. Fla. 1994). The court began by holding that Tamiami’s amended\n\ncomplaint raised a federal question – “namely, whether these defendants exceeded\n\ntribal powers in their actions towards [Tamiami].” Id. at 1560. Turning to the issue\n\nof sovereign immunity, the court concluded that Tamiami’s claims against the Tribe\n\nand its Business Council and Gaming Agency were barred because the Tribe had not\n\n\n 12\n\fclearly waived its immunity and Congress had not abrogated it. Accordingly, the\n\ncourt dismissed these claims with prejudice. With regard to the individual defendants,\n\nhowever, the court – applying the doctrine of Ex parte Young, 209 U.S. 123, 28 S. Ct.\n\n441, 52 L. Ed. 714 (1908) – held that the Tribe’s sovereign immunity did not shield\n\nthe individual defendants given Tamiami’s allegation that they had “acted beyond the\n\nauthority that the Tribe is capable of bestowing upon them under federal laws defining\n\nthe sovereign powers of Indian tribes.” Id. at 1561-62. The court therefore denied the\n\nindividual defendants’ motions to dismiss.\n\n The individual defendants appealed the portion of the district court’s order\n\nrejecting their claims of tribal sovereign immunity. After the district court entered\n\nfinal judgment on Tamiami’s claims against the Tribe and its associated entities,\n\nTamiami appealed that judgment. A second panel of this court consolidated these\n\nappeals and issued an opinion on August 16, 1995. See Tamiami Partners, Ltd. v.\n\nMiccosukee Tribe of Indians, 63 F.3d 1030 (11th Cir. 1995) [hereinafter Tamiami II].\n\n\n\n As to the subject matter jurisdiction of the district court, the panel held that each\n\nof Tamiami’s three claims presented a federal question. Tamiami’s claim that the\n\nTribe had breached the Agreement, according to the panel, was essentially a claim that\n\nthe Tribe – acting through its Gaming Agency – had violated IGRA and its associated\n\n\n 13\n\fregulations (which the Agreement incorporated) by failing to process Tamiami’s\n\nlicense applications in good faith with the sole purpose of taking over MIB. Thus,\n\nTamiami’s arguments that IGRA imposed an obligation to process license applications\n\nin good faith and that the Tribe violated this obligation presented a federal question.\n\nThe panel also concluded that Tamiami’s second and third claims, which were based\n\ndirectly on IGRA and the regulations, presented federal questions. See id. at 1047.\n\n Turning to the issues of sovereign immunity and failure to state a claim, the\n\npanel examined Tamiami’s first and second claims against the Tribe. It agreed with\n\nthe district court’s conclusion that Tamiami’s first claim was barred by the Tribe’s\n\nsovereign immunity, which Congress had not abrogated and the Tribe had not clearly\n\nwaived. Although Article 23 of the Agreement did provide a waiver for the limited\n\npurposes of compelling the Tribe to arbitrate or enforcing an arbitration award, the\n\npanel found that Tamiami’s first claim – “simply a breach of contract claim for which\n\nit seeks money damages and injunctive relief,” id. at 1048 – did not seek the type of\n\nrelief contemplated by that waiver. In footnote 66, which appeared at the end of its\n\ndiscussion of Tamiami’s first claim, the panel offered the following comment:\n\n Tamiami’s original complaint sought an order compelling the Tribe to\n submit to arbitration; its amended complaint, however, does not seek that\n relief. Tamiami remains free, of course, to seek enforcement in the\n district court of the October 6, 1993 arbitration award and to seek an\n order in the district court compelling arbitration of any remaining\n contract disputes.\n\n 14\n\fId. at 1048 n.66. As to Tamiami’s second claim alleging violations of IGRA and the\n\nregulations, however, the panel did not agree that it was barred by the Tribe’s\n\nsovereign immunity. Rather, it “dispose[d] of that claim on the separate ground that,\n\nbecause IGRA provides Tamiami no right of action, Tamiami has failed to state a\n\nclaim for relief.” Id. at 1048.\n\n Finally, the panel considered Tamiami’s claim against the individual\n\ndefendants. It found that the district court’s denial of the individual defendants’\n\nmotions to dismiss on the ground of Tribal sovereign immunity was immediately\n\nappealable under the Cohen collateral order doctrine. See id. at 1050; see also Cohen\n\nv. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S. Ct. 1221, 1225-26, 93\n\nL. Ed. 1528 (1949). The panel then proceeded to affirm the district court’s ruling,\n\nunder the doctrine of Ex parte Young, that the individual defendants were not shielded\n\nby the Tribe’s sovereign immunity. It declined to decide, however, whether Tamiami\n\ncould state a claim for relief against the individual defendants. See id. at 1051 & n.72.\n\n\n\n\n C.\n\n On remand, the district court granted Tamiami’s motion to file a second\n\namended complaint – the pleading now before us. This complaint, which Tamiami\n\n\n 15\n\ffiled on November 17, 1995, contains six counts and names as defendants the Tribe,\n\nindividual members of the Tribe’s Business Council and Gaming Agency (Billy\n\nCypress, Jasper Nelson, Jimmie Bert, Max Billie, and Henry Bert), and the Tribe’s\n\nlegal counsel, Dexter Lehtinen. The first count essentially requests two types of\n\ndeclaratory relief: (a) a declaration that all disputes between Tamiami and the Tribe\n\nthat arise out of or relate to the Agreement – including the licensing dispute – are\n\narbitrable; and (b) a declaration against all of the defendants that the funds in the\n\nfrozen account belong solely to Tamiami. The second and third counts request a\n\njudgment requiring the Tribe to comply with the October 1993 arbitration award and\n\ncompelling the Tribe to arbitrate certain other disputes arising out of or related to the\n\nAgreement.\n\n In the fourth count, Tamiami seeks an injunction against the Tribe in the form\n\nof an order directing the individual members of the Business Council and Gaming\n\nAgency to rescind their orders of April 13 and October 12, 1993 – which converted\n\nTamiami’s share of MIB’s net revenues to the Tribe – and return the funds in the\n\nfrozen account to Tamiami. The fifth count is a conversion claim against Billy\n\nCypress, Chairman of the Tribe, and Dexter Lehtinen. In this count, Tamiami\n\ncontends that Cypress and Lehtinen caused to be converted to the Tribe certain sums\n\nrightfully belonging to Tamiami, including the $1.5 million in the frozen Jefferson\n\n\n 16\n\fNational Bank trust account and a $50,000 advance that was in the custody of the\n\nconservator as of April 13, 1993. As a result of this conversion, Tamiami requests\n\ncompensatory damages “in excess of $1.5 million.” The sixth count requests that the\n\ncourt order all defendants to make an accounting to Tamiami for the funds taken from\n\nthe frozen account and for MIB’s revenues since October 1993. In addition, Tamiami\n\nseeks a judgment imposing a constructive trust over its forty percent share of MIB’s\n\nnet revenues, the funds in the frozen account, and the $50,000 advance, as well as an\n\norder requiring the defendants immediately to pay these sums to Tamiami.\n\n On December 4 and 5, all of the defendants filed motions to dismiss Tamiami’s\n\nsecond amended complaint on the following three grounds: lack of subject matter\n\njurisdiction, sovereign immunity, and failure to state a claim.5 The district court\n\ndenied these motions in a memorandum opinion and order dated September 27, 1996.\n\nIn its brief opinion, the court found that the first three counts of Tamiami’s complaint\n\nwere predicated on the arbitration clause of the Agreement. Referring to the Tamiami\n\nII panel’s comments in footnote 66, it concluded that the Eleventh Circuit had\n\ncontemplated the assertion of such arbitration claims on remand. The court therefore\n\n\n 5\n Certain defendants included a fourth ground for dismissal, namely that\nTamiami had waived its contractual right to arbitration under the Agreement. This\nwaiver argument, however, is an affirmative defense, see Fed. R. Civ. P. 8(c); it is not\na ground upon which Tamiami’s complaint could be dismissed. Therefore, we do not\nconsider the issue of waiver here.\n 17\n\frejected the defendants’ arguments as to those claims. Turning to counts four through\n\nsix, the court found that it had supplemental jurisdiction to consider the state law\n\nclaims asserted therein. The court also rejected “the individual defendants’ invocation\n\nof sovereign immunity as to the claims asserted against them, pursuant to its prior\n\nanalysis under the doctrine of Ex parte Young, which was affirmed by the Eleventh\n\nCircuit.” This appeal followed.\n\n\n\n II.\n\n The defendants urge us to find that the district court erred in rejecting each of\n\nthe three grounds upon which they based their motions to dismiss. Because this is an\n\ninterlocutory appeal from the district court’s denial of the defendants’ motions,\n\nhowever, we must exercise care in determining which of these three issues are\n\npresently before us for review.\n\n We have no doubt that the issue of subject matter jurisdiction is before us. As\n\na threshold matter, we have a special obligation to satisfy ourselves not only that we\n\nhave jurisdiction over this appeal, but also that the district court had jurisdiction over\n\nthe various counts of Tamiami’s complaint. See Steel Co. v. Citizens for a Better\n\n\n\n\n 18\n\fEnv’t, 523 U.S. 83, —, 118 S. Ct. 1003, 1012-13, 140 L. Ed. 2d 210 (1998).6 “[When\n\nthe lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the\n\nmerits but merely for the purpose of correcting the error of the lower court in\n\nentertaining the suit.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106\n\nS. Ct. 1326, 1331, 89 L. Ed. 2d 501 (1986) (alterations in original) (quoting United\n\nStates v. Corrick, 298 U.S. 435, 440, 56 S. Ct. 829, 832, 80 L. Ed. 1263 (1936)).\n\nThus, it is appropriate for us initially to consider whether the district court erred in\n\nfinding that it had subject matter jurisdiction over Tamiami’s complaint. Cf. In re\n\nSealed Case, 131 F.3d 208, 210-12 (D.C. Cir. 1997) (considering issue of subject\n\nmatter jurisdiction before addressing issue that qualified for interlocutory appeal under\n\ncollateral order doctrine).\n\n The issue of sovereign immunity is also properly before us. Under 28 U.S.C.\n\n§ 1291 (1994), we have “jurisdiction of appeals from all final decisions of the district\n\ncourts . . . , except where a direct review may be had in the Supreme Court.” The\n\nCohen collateral order doctrine gives a “practical construction” to this final decision\n\nrule by permitting appeals “from a small category of decisions that, although they do\n\nnot end the litigation, must nonetheless be considered ‘final.’” Swint v. Chambers\n\n\n 6\n This obligation applies to every appeal; it is “inflexible and without\nexception.” Id. at —, 118 S. Ct. at 1012 (quoting Mansfield, C. & L.M. Ry. Co. v.\nSwan, 111 U.S. 379, 382, 4 S. Ct. 510, 511, 28 L. Ed. 462 (1884)).\n 19\n\fCounty Comm’n, 514 U.S. 35, 42, 115 S. Ct. 1203, 1208, 131 L. Ed. 2d 60 (1995)\n\n(quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221,\n\n1225-26, 93 L. Ed. 1528 (1949)). This small category of immediately appealable\n\ndecisions “includes only decisions that are conclusive, that resolve important\n\nquestions separate from the merits, and that are effectively unreviewable on appeal\n\nfrom the final judgment in the underlying action.” Id. As the panel recognized in\n\nTamiami II, 63 F.3d at 1050, the district court’s denial of sovereign immunity to the\n\ndefendants falls within this category.\n\n Regarding the issue of whether Tamiami has failed to state a claim, the\n\ndefendants ask us to exercise pendent appellate jurisdiction on the theory that this\n\nissue is “inextricably intertwined” with the issue of sovereign immunity.7 In\n\naccordance with the Supreme Court’s suggestion in Swint, 514 U.S. at 51, 115 S. Ct.\n\nat 1212, we have previously recognized that pendent appellate jurisdiction over related\n\nclaims “may be appropriate when a nonappealable decision is ‘inextricably\n\nintertwined’ with an appealable decision or when ‘review of the former decision [is]\n\nnecessary to ensure meaningful review of the latter.’” United States v. Lopez-Lukis,\n\n102 F.3d 1164, 1167 n.10 (11th Cir. 1997) (exercising such jurisdiction). In this case,\n\n\n 7\n The defendants do not – and could not – rely upon either Cohen or 28 U.S.C.\n§ 1292 (1994) as a basis for their contention that we have jurisdiction to consider the\nissue of whether Tamiami has failed to state a claim.\n 20\n\fhowever, a brief overview of the defendants’ specific contentions suffices to\n\ndemonstrate that the issue of whether Tamiami has failed to state a claim is not in fact\n\ninextricably intertwined with the issue of sovereign immunity.8 The defendants argue\n\nthat Tamiami has failed to state a claim because counts one through three of its\n\ncomplaint rely on certain provisions of IGRA that do not apply to the Agreement and\n\nprovide no cause of action, and because counts four through six are duplicative\n\nprayers for relief that state no claim under either federal or state law. Plainly, these\n\narguments are wholly unrelated to the defendants’ contentions that Tamiami’s claims\n\nagainst the Tribe do not fall within the Tribe’s waiver of sovereign immunity and that\n\nthe individual defendants are not amenable to suit under the doctrine of Ex parte\n\nYoung. Therefore, we decline to exercise pendent appellate jurisdiction over the issue\n\nof failure to state a claim; we consider only whether the district court had subject\n\nmatter jurisdiction and whether the Tribe and the individual defendants were shielded\n\nby sovereign immunity.\n\n\n\n\n 8\n We are aware of, and unimpressed by, the defendants’ assertion that the\nTamiami II panel has inextricably intertwined these issues. According to the\ndefendants, the panel did so by deciding that the individual defendants were amenable\nto suit under Ex parte Young and then refusing to reach the issue of whether Tamiami\ncould state a claim against them. See Tamiami II, 63 F.3d at 1051 n.72. If anything,\nthis discussion indicates that the panel did not view these issues as inextricably\nintertwined.\n 21\n\f III.\n\n A.\n\n The issue of whether the district court had subject matter jurisdiction over\n\nTamiami’s complaint is a question of law subject to de novo review. See Tamiami I,\n\n999 F.2d at 506. We begin our review with the defendants’ contention that the first\n\nthree counts of Tamiami’s complaint do not state a federal question. See 28 U.S.C.\n\n§ 1331 (1994). According to the defendants, these counts merely address contract and\n\narbitration disputes arising under the Agreement. They argue that such disputes do\n\nnot raise a federal question and that the statement in Article 23 of the Agreement that\n\nthe district court “shall have jurisdiction” over the parties cannot change this result.\n\n\n\n The defendants are correct in part. It is well-settled that parties cannot create\n\nsubject matter jurisdiction by agreement. See Love v. Turlington, 733 F.2d 1562,\n\n1564 (11th Cir. 1984). In addition, the mere fact that a dispute concerns a contract or\n\nan agreement to arbitrate, without more, does not raise a federal question. See\n\nTamiami I, 999 F.2d at 507 (holding that the presentation of facts establishing a\n\nbreach of contract claim does not state a federal question); Merrill Lynch, Pierce,\n\n\n\n\n 22\n\fFenner & Smith, Inc. v. Haydu, 637 F.2d 391, 395 (5th Cir. Unit B Feb. 1981)9\n\n(noting that the Federal Arbitration Act alone is insufficient to confer federal\n\njurisdiction over disputes involving arbitration agreements, and that an independent\n\nbasis of jurisdiction – such as diversity or a federal question – is required). In this\n\ncase, however, we find that the first three counts of Tamiami’s complaint present more\n\nthan a mere dispute concerning a contract or an agreement to arbitrate. Each of these\n\ncounts – at least in part – concerns the arbitration of Tamiami’s claims that the Tribe\n\nhad an obligation under the Agreement to process the gaming license applications of\n\nTamiami and its key employees in good faith, and that the Tribe breached its\n\nobligation when it rejected these license applications for the sole purpose of taking\n\nover MIB.10 These very same claims were before this court in Tamiami II, albeit in\n\n\n\n 9\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),\nthis court adopted as binding precedent all decisions of the former Fifth Circuit\nhanded down prior to October 1, 1981.\n 10\n Specifically, one portion of the first count requests a declaration “that\ndisputes between the parties to the Agreement regarding the licensing of [Tamiami]\nand its principals [are] arbitrable.” The second count requests enforcement of the\nOctober 1993 arbitration award, which addressed the termination of Tamiami’s MIB\nprogram director following the denial of his gaming license application by the Tribe.\nThe third count seeks to compel the Tribe to arbitrate certain additional disputes,\nincluding Tamiami’s claims “that the Tribe breached the Agreement by failing to\nprocess the applications of [Tamiami’s] managers and key employees in good faith;\n[and] that the Tribe . . . abused its licensing authority and rejected [Tamiami]\napplications for the sole purpose of taking over MIB.”\n 23\n\fthe context of a direct breach of contract suit against the Tribe. The Tamiami II panel\n\nconcluded that these claims arose under federal law because the Agreement\n\nincorporated – by operation of law if not by reference – the provisions of IGRA and\n\nits associated regulations regarding licensing procedures. See Tamiami II, 63 F.3d at\n\n1047. Because federal law is equally implicated when these claims are presented in\n\nthe arbitration context,11 we must follow the Tamiami II panel’s conclusion here.12\n\n\n\n 11\n The Federal Arbitration Act empowers a district court to issue an order\ncompelling arbitration if the court, “save for [the arbitration] agreement, would have\njurisdiction under title 28, in a civil action . . . of the subject matter of a suit arising\nout of the controversy between the parties.” 9 U.S.C. § 4 (1994). Thus, it is\nappropriate for us to “look through” Tamiami’s arbitration request at the underlying\nlicensing dispute in order to determine whether Tamiami’s complaint states a federal\nquestion.\n 12\n Rather than looking to Tamiami II, the defendants assert that Tamiami’s\ncurrent (second amended) complaint asks for the same relief that was held not to\nprovide a basis for federal question jurisdiction in Tamiami I. This assertion is simply\nincorrect. The original verified complaint that was before the Tamiami I panel sought,\ninter alia, an injunction compelling the Tribe to arbitrate the dispute arising from its\ninitial attempt to terminate the Agreement by letter. Because the subsequent licensing\ndispute between the parties had not yet arisen when the verified complaint was filed,\nthat complaint understandably made no allegations and requested no relief regarding\nthe licensing dispute. It is this licensing dispute – not the earlier termination dispute\n– that provides a basis for exercising federal question jurisdiction over Tamiami’s\ncurrent complaint.\n We are aware that Tamiami’s “supplemental” complaint, which the district\ncourt declined to entertain on September 15, 1992, included allegations regarding the\nTribe’s initial license denials and requested an order compelling the Tribe to arbitrate\nthe licensing dispute. The Tamiami I panel, however, had no jurisdiction to consider\nthis version of Tamiami’s complaint. See Tamiami II, 63 F.3d at 1043 n.44.\n 24\n\fWe hold, therefore, that the first three counts of Tamiami’s complaint state a federal\n\nquestion insofar as they relate to the Tribe’s rejection of gaming license applications.\n\nThe portions of these counts that do not relate to gaming licenses are plainly within\n\nthe supplemental jurisdiction of the district court; the defendants do not contend\n\notherwise.\n\n The defendants do contend, however, that the district court lacked the power\n\nto exercise supplemental jurisdiction over counts four through six of Tamiami’s\n\ncomplaint. Under 28 U.S.C. § 1367(a) (1994), a district court that has original\n\njurisdiction in a civil action “shall have supplemental jurisdiction over all other claims\n\nthat are so related to claims in the action within such original jurisdiction that they\n\nform part of the same case or controversy under Article III of the United States\n\nConstitution.” In other words, a district court has the power to exercise supplemental\n\njurisdiction over all claims that “arise out of a common nucleus of operative fact with\n\na substantial federal claim.” Lucero v. Trosch, 121 F.3d 591, 597 (11th Cir. 1997).\n\n\n\n We readily conclude that Tamiami’s federal claims regarding the Tribe’s\n\ngaming license denials are sufficiently substantial to support supplemental\n\njurisdiction. Neither we nor the defendants have discovered any “prior decisions\n\n[that] inescapably render the claims frivolous.” See L.A. Draper & Son v.\n\n\n 25\n\fWheelabrator-Frye, Inc., 735 F.2d 414, 427 (11th Cir. 1984) (quoting Jackson v.\n\nStinchcomb, 635 F.2d 462, 471 (5th Cir. Jan. 1981)). As to whether these substantial\n\nfederal claims share a common nucleus of operative fact with Tamiami’s claims in\n\ncounts four through six, the defendants offer two reasons why they do not. First, the\n\nTribe and its officials argue that no common nucleus exists because Tamiami’s federal\n\nclaims are against the Tribe while its remaining claims are against the individual\n\ndefendants. This argument is both factually and legally incorrect. As a factual matter,\n\nour discussion of Tamiami’s second amended complaint reveals that counts four and\n\nsix are against both the Tribe and the individual defendants. See supra part I.C. In\n\naddition, it is clear from section 1367 itself that the parties to the federal and\n\nsupplemental claims need not be identical in order for supplemental jurisdiction to lie.\n\nSee 28 U.S.C. § 1367(a) (“Such supplemental jurisdiction shall include claims that\n\ninvolve the joinder or intervention of additional parties.”).\n\n Second, defendant Lehtinen argues that a common nucleus is lacking as to\n\ncounts five and six because the facts that bear upon the state-law claims asserted in\n\nthose counts are separate and distinct from the facts that are relevant to the resolution\n\nof Tamiami’s federal claims. Specifically, Lehtinen asserts that the facts necessary\n\nto prove conversion and constructive trust under state law concern the actions of the\n\nindividual defendants regarding certain funds (such as those in the frozen account),\n\n\n 26\n\fwhile the facts necessary to the resolution of Tamiami’s federal claims concern the\n\narbitration provisions of the Agreement between Tamiami and the Tribe. Because the\n\nsuccess of Tamiami’s federal claims does not depend on the success of its state-law\n\nclaims, he argues, supplemental jurisdiction over the state-law claims is unavailable.\n\nWe find Lehtinen’s conception of supplemental jurisdiction to be unduly narrow. In\n\nour view, both Tamiami’s federal claims and its claims in counts four through six seek\n\nto remedy the injury that Tamiami suffered when the Tribe terminated the Agreement\n\nthrough a series of actions by the individual defendants. In its second amended\n\ncomplaint, Tamiami made a strategic decision to attack this termination in two ways:\n\n(1) in the first three counts, Tamiami attacked the Tribe’s method of terminating the\n\nagreement by seeking to arbitrate its federal claim that the Tribe denied its license\n\napplications in bad faith in order to take over MIB; and (2) in counts four through six,\n\nTamiami attacked the result of this termination by seeking to recover its forty percent\n\nshare of MIB’s net revenues from the Tribe and the individual defendants. This\n\nstrategic decision, however, did not catalyze some mysterious fissile process that split\n\nthe sphere of operative facts surrounding the termination dispute into two separate\n\nnuclei. Thus, the district court had the power to exercise supplemental jurisdiction\n\nover counts four through six of Tamiami’s complaint.\n\n\n\n\n 27\n\f B.\n\n We now turn to the district court’s ruling that the Tribe’s sovereign immunity\n\ndoes not shield the Tribe and the individual defendants from suit. The issue of a\n\nsovereign’s immunity from suit is a question of law that we review de novo. See\n\nTinney v. Shores, 77 F.3d 378, 383 (11th Cir. 1996).\n\n “Indian tribes have long been recognized as possessing the common-law\n\nimmunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo\n\nv. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 1677, 56 L. Ed. 2d 106 (1978).\n\nTamiami’s claims against the Tribe itself are therefore “barred by the doctrine of\n\nsovereign immunity unless the Tribe, by the very act of entering into the [Agreement]\n\nand engaging in the gaming enterprise, waived its immunity from suit by Tamiami or\n\nCongress, by enacting IGRA, abrogated that immunity.” Tamiami II, 63 F.3d at 1048.\n\nAlthough we concluded in Tamiami II that IGRA did not purport to abrogate the\n\nsovereign immunity of tribes that engage in bingo gaming, we also found that the\n\nTribe partially waived its immunity in Article 23 of the Agreement. See id. The Tribe\n\ncontends that Tamiami’s claims against it in the second amended complaint do not fall\n\nwithin the scope of this waiver.\n\n Under Article 23 of the Agreement, the Tribe waived its immunity from a suit\n\nbrought by Tamiami to compel arbitration or to enforce an arbitration award. See\n\n\n 28\n\fsupra part I.A. (quoting Article 23). To the extent that counts one (b), four, and six\n\nof the second amended complaint – which seek, respectively, a declaration that the\n\nfrozen funds belong to Tamiami, an injunction compelling the return of these funds,\n\nand an accounting and the imposition of a constructive trust – are directed against the\n\nTribe,13 we agree that these counts do not fall within the scope of the Article 23\n\nwaiver. These counts are therefore barred and the district court erred in refusing to\n\ndismiss them as to the Tribe. Counts one (a), two, and three of the complaint,\n\nhowever, seek only a declaration that the disputes between Tamiami and the Tribe that\n\narise out of or relate to the Agreement are arbitrable, a judgment requiring the Tribe\n\nto comply with the October 1993 arbitration award, and a judgment compelling the\n\nTribe to arbitrate certain disputes arising out of or relating to the Agreement. Plainly,\n\nthese counts seek the type of relief expressly contemplated by Article 23.14 Thus, the\n\n\n\n\n 13\n Count five of the complaint is not directed against the Tribe; it seeks only to\nhold Cypress and Lehtinen individually liable for conversion.\n 14\n We read count one (a) as requesting only that the district court, prior to\nordering the Tribe to arbitrate a given dispute as requested in count three, determine\nthat Tamiami has properly invoked an arbitration proceeding as to that dispute under\nArticle 12 of the Agreement. So read, we find that count one (a) clearly falls within\nthe portion of the Article 23 waiver that permits the district court to “enforce the terms\n[of the Agreement] specifically, [in the event that the Tribe] fails to participate in an\narbitration proceeding invoked as provided in Article 12.”\n 29\n\fdistrict court correctly refused to dismiss these counts on the ground of sovereign\n\nimmunity.\n\n Turning to the individual defendants’ claims of immunity as tribal officers,15\n\nwe begin with the proposition that tribal officers are protected by tribal sovereign\n\nimmunity when they act in their official capacity and within the scope of their\n\nauthority; however, they are subject to suit under the doctrine of Ex parte Young when\n\nthey act beyond their authority.16 In Tamiami II, 63 F.3d at 1050-51, we relied on Ex\n\nparte Young in affirming the district court’s ruling that the Tribe’s sovereign\n\nimmunity did not shield the individual defendants from Tamiami’s suit. Our holding\n\npertained to the third count of Tamiami’s amended complaint, which was brought\n\n\n 15\n Each of the individual defendants claims tribal officer status; Tamiami does\nnot dispute this claim. We therefore assume, without deciding, that all of the\nindividual defendants – including attorney Lehtinen – were officers of the Tribe who\nundertook the complained-of actions in their official capacities. Cf. Stock West Corp.\nv. Taylor, 942 F.2d 655, 664-65 (9th Cir. 1991), modified on reh’g, 964 F.2d 912 (9th\nCir. 1992) (en banc) (citing cases and discussing issue of when tribal attorney is acting\nas tribal official).\n 16\n See Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997); Tamiami\nII, 63 F.3d at 1050-51; Northern States Power Co. v. Prairie Island Mdewakanton\nSioux Indian Community, 991 F.2d 458, 460 (8th Cir. 1993); Imperial Granite Co. v. Pala\nBand of Mission Indians, 940 F.2d 1269, 1271 (9th Cir. 1991); Tenneco Oil Co. v. Sac & Fox Tribe\nof Indians, 725 F.2d 572, 574-75 (10th Cir. 1984); Thompson v. Crow Tribe of Indians, 962 P.2d\n577, 581-82 (Mont. 1998); cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 98 S. Ct.\n1670, 1677, 56 L. Ed. 2d 106 (1978) (citing Ex parte Young and finding that a tribal\nofficer was not protected by tribal sovereign immunity from a suit to enjoin\nenforcement of a tribal ordinance that allegedly violated a federal statute).\n 30\n\funder IGRA and its regulations. This count essentially alleged that the individual\n\ndefendants, by abusing the licensing authority conferred by IGRA, had acted beyond\n\nthe authority that the Tribe was capable of bestowing upon them. Tamiami’s claims\n\nagainst the individual defendants in its present (second amended) complaint, however,\n\ndo not mention IGRA or licensing at all. Instead, in counts one (b) and four through\n\nsix, Tamiami merely offers various theories under which the individual defendants\n\nmust pay it forty percent of MIB’s net revenues. In our view, these claims against the\n\nindividual defendants are simply a thinly-disguised attempt by Tamiami to obtain\n\nspecific performance of the Tribe’s obligations under the Agreement, which allocates\n\nforty percent of MIB’s net revenues to Tamiami. The doctrine of Ex parte Young may\n\nnot be used in this fashion. It is well established that Ex parte Young does not permit\n\nindividual officers of a sovereign to be sued when the relief requested would, in effect,\n\nrequire the sovereign’s specific performance of a contract. See, e.g., Ex parte Young,\n\n209 U.S. 123, 151, 28 S. Ct. 441, 450, 52 L. Ed. 714 (1908) (citing Ex parte Ayers,\n\n123 U.S. 443, 504, 8 S. Ct. 164, 182, 31 L. Ed. 216 (1887); Hagood v. Southern, 117\n\nU.S. 52, 67-68, 6 S. Ct. 608, 615, 29 L. Ed. 805 (1886)); MSA Realty Corp. v.\n\nIllinois, 990 F.2d 288, 294-95 (7th Cir. 1993). We hold, therefore, that the district\n\ncourt erred in rejecting the individual defendants’ claims of sovereign immunity under\n\nthe doctrine of Ex parte Young.\n\n\n 31\n\f IV.\n\n For the foregoing reasons, the defendants’ request that we exercise pendent\n\nappellate jurisdiction over the issue of whether Tamiami’s second amended complaint\n\nfails to state a claim is DENIED. On the issue of subject matter jurisdiction, the\n\ndistrict court’s denial of the defendants’ motions to dismiss is AFFIRMED. On the\n\nissue of sovereign immunity, the district court’s denial of the Tribe’s motion to\n\ndismiss is AFFIRMED as to counts one (a), two, and three, and REVERSED as to\n\ncounts one (b), four, and six. The district court’s denial of the individual defendants’\n\nmotions to dismiss on the ground of sovereign immunity is REVERSED. We\n\nREMAND this case to the district court for further proceedings consistent with this\n\nopinion.\n\n IT IS SO ORDERED.\n\n\n\n\n 32\n\f","page_count":32,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"tamiami-partners-v-miccosukee"} {"case_name":"Signo v. Fla. Farm Bur. Cas. Ins. Co.","case_name_short":"Signo","citation_count":16,"citations":["454 So. 2d 3"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1984-07-11","date_filed_is_approximate":false,"id":1088550,"judges":"Downey","opinions":[{"author_id":6883,"ocr":false,"opinion_id":1088550,"opinion_text":"\n454 So.2d 3 (1984)\nYrma M. SIGNO, M.D., and Manuel Signo, M.D., Her Husband, Appellants,\nv.\nFLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, etc., et al., Appellees.\nNo. 82-2246.\nDistrict Court of Appeal of Florida, Fourth District.\nJuly 11, 1984.\nRehearing Denied September 7, 1984.\nRonald V. Alvarez, West Palm Beach, for appellants.\nJoe N. Unger of Law Offices of Joe N. Unger, P.A., Miami, and Pomeroy, Betts, Wiederhold & Moses, West Palm Beach, for appellees.\nDOWNEY, Judge.\nAppellants, Yrma M. Signo and Manuel Signo, seek review of a summary final judgment in favor of appellees, Wilkinson-Cooper Produce, Inc., and Ellis Wilkinson Farms.\nAppellant Yrma Signo was involved in a motor vehicle collision with a truck owned by Sammie Lee Edwards and driven by Willie James Pope. The truck was transporting a load of corn owned by appellees. Signo and her husband brought suit against Edwards, Pope, and appellees, Wilkinson-Cooper Produce, Inc., and Ellis Wilkinson Farms, a/k/a Red Devon Farms. The third amended complaint alleged that Pope was an employee of both Wilkinson-Cooper Produce and Ellis Wilkinson Farms and was acting within the scope of his employment for them at the time of the collision. That complaint also alleged that Ellis Wilkinson Farms, because of Pope's *4 poor driving record, had been negligent in selecting Pope as an independent contractor. The circuit court entered final summary judgment on behalf of appellees, and the Signos appealed. This court affirmed the summary final judgment without an opinion. See Signo v. Wilkinson-Cooper Produce, Inc., 404 So.2d 882 (Fla.4th DCA 1981).\nSeven months after the mandate from this court issued, appellants, after obtaining leave of the circuit court, filed a fourth amended complaint. That complaint alleged that the defendants, Wilkinson-Cooper Produce, Inc., and Ellis Wilkinson Farms, were bailees of the vehicle driven by Pope with the appellee-bailees' permission and, as such, were liable for the negligent operation of the vehicle. The appellees moved for summary judgment on the ground that the plaintiffs were estopped on theories of res judicata, estoppel by judgment, and law of the case from asserting a cause of action based on the relationship of the appellees to the driver and owner of the vehicle as this issue had already been adjudicated in the first suit. The circuit court once again entered a summary final judgment for the appellees and, once again, the Signos seek review of that judgment.\nAppellants contend the circuit court erred in entering summary judgment because they alleged an entirely new and distinct cause of action in the fourth amended complaint and because permissive joinder of causes of action is the procedural rule in Florida. More specifically, appellants argue that res judicata does not apply in this case because one of the necessary elements, identity of the cause of action in the two cases, does not exist.\nIn their brief appellants contend that the only issue that was decided in the original summary judgment is that an employer of an independent contractor does not have a duty to investigate the independent contractor's driving record prior to hiring him. However, appellees point out that the duty arising from the independent contractual relationship was only one of two issues resolved by the summary judgment. More importantly, the first summary judgment ruled in favor of the appellees on the claim that appellees were liable based upon the doctrine of respondeat superior, i.e., that appellees were liable because they were Pope's employers. This is undoubtedly correct. The only material difference between the third and fourth amended complaints is that in the third amended complaint appellants sought to establish the liability of appellees because they were Pope's employers and as such were liable for his negligent conduct in the scope of his employment, and in the fourth amended complaint appellants sought to establish the liability of appellees based upon their status as bailees of the truck and as such liable for Pope's negligence when they permitted Pope to drive the truck. Query: does an adjudication that appellees are not liable as employers for Pope's negligence in driving the truck set at rest the claim that appellees, as bailees of the truck, are liable for Pope's negligence? We think it does and that the circuit court properly granted summary judgment.\nThe law involving the doctrine of res judicata and estoppel by judgment involves some difficult nuances, and the cases are not consistent by any means. In any event, we believe the answer to the question presented here is found in a proper understanding of what is precluded by the doctrine of res judicata. The Florida cases are uniform in their announcement of the requisite elements of res judiciata. There must be 1) identity in the thing sued for; 2) identity of the cause of action; 3) identity of persons and parties of the action; and 4) identity of the quality in the person for or against whom the claim is made. Donahue v. Davis, 68 So.2d 163 (Fla. 1953); Poe v. State Road Department, 127 So.2d 898 (Fla.1st DCA 1961).\nAppellants say that a claim that the appellees were liable for Pope's negligence because they were his employers constitutes a different cause of action from the claim that they were liable for Pope's negligence because they were bailees of the truck, because the evidentiary facts necessary *5 to prove the status of the appellees as employers are different from the evidentiary facts necessary to prove their status as bailees. However, we are of the view that appellants' perception of the cause of action precluded by the doctrine of res judicata is too narrow. In our judgment the mere changing of the theory on which the plaintiff proceeds does not constitute a distinct and different cause of action obviating the defense of res judicata. But see Hardee v. Gordon Thompson Chevrolet, Inc., 154 So.2d 174 (Fla.1st DCA 1963).\nThe American Law Institute, Restatement of the Law of Judgments, Second, §§ 24 and 25, contains an effective discussion on the subject. It is pointed out there that much of the confusion and misunderstanding in this area is generated by the terms used, such as claim, cause of action, theory of recovery, grounds, and remedies. The essence of what is intended to be precluded under the concept of res judicata is set forth in Section 24(1) of the Restatement:\n(1) When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar (see §§ 18, 19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.\nRestatement, page 196.\nIllustration No. 8, page 213, contains a practical example that is somewhat similar to this case.\nFrom one episode or transaction one cause of action emerges, though different theories of liability may exist. As the text writer puts it:\nThat a number of different legal theories casting liability on an actor may apply to a given episode does not create multiple transactions and hence multiple claims. This remains true although the several legal theories depend on different shadings of the facts, or would emphasize different elements of the facts, or would call for different measures of liability or different kinds of relief.\nRestatement, page 200.\nSee, too, the discussion at 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4407.\nAs we see it, the transaction here was the collision between Pope and Mrs. Signo while Pope was transporting appellees' produce. Any theories for holding appellees liable for injuries resulting from that transaction not pleaded in the third amended complaint could not properly be pleaded in a fourth amended complaint after affirmance of a summary judgment for the appellees on the theories raised in the third amended complaint.\nThe Supreme Court of Florida followed the foregoing rationale in Woodson v. Woodson, 89 So.2d 665 (Fla. 1956), where a widow sued to recover for the wrongful death of her husband on the theory that he was an invited guest passenger and the defendant was grossly negligent. This suit resulted in a summary judgment for defendant. The widow then filed a second suit for her husband's death, alleging that the deceased and defendant were joint venturers in the control of the truck. A later amendment to the complaint alleged that the relationship was of private carrier for hire and passenger. The defendant alleged these claims were res judicata because the instant action was identical to and concluded by the first action. The supreme court agreed and affirmed the summary judgment for defendant in her second action.\nOne of the cases relied on by the supreme court in Woodson, supra, is Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926). In that case Hay sued Salisbury for specific performance of a verbal agreement to convey certain real property. Salisbury alleged the issues were res judicata as a result of a judgment he obtained in a prior suit commenced by him against Hay to quiet Salisbury's title against Hay's assertion of some record interest in the property. The supreme court affirmed a judgment for Salisbury holding that the issues were res judicata because they arose out of *6 the same cause of action and so Hay should have litigated the specific performance claim in the first suit. The doctrine of res judicata precludes litigation of issues tried in a prior suit and those issues which could have been there litigated.\nIn our view, the claim raised in the fourth amended complaint could have been litigated in the third amended complaint. Accordingly, we affirm the summary judgment for the appellees.\nAFFIRMED.\nBERANEK and HERSEY, JJ., concur.\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"signo-v-fla-farm-bur-cas-ins-co"} {"attorneys":"Gordon D. Hinds, City Atty., James C. Colvin, II, City Atty., Jackson L. Smith, Michael J. Heydt, Deputy City Attys., Spur-geon, Haney & Howbert, W. Allen Spur-geon, Colorado Springs, for defendant-appellant., Hornbein, MacDonald, Fattor & Buckley, P.C., Donald P. MacDonald, Rhett K. Dacus, Denver, Cross, Gaddis, Kin & Quicksall, David L. Quicksall, Colorado Springs, for plaintiffs-appellees.","case_name":"Alexander v. City of Colorado Springs","case_name_full":"Edmond ALEXANDER, Raymond Anderson, Et Al., Plaintiffs-Appellees, v. the CITY OF COLORADO SPRINGS, a Municipal Corporation, Defendant-Appellant","case_name_short":"Alexander","citation_count":5,"citations":["655 P.2d 851"],"court_full_name":"Colorado Court of Appeals","court_jurisdiction":"Colorado, CO","court_short_name":"Colorado Court of Appeals","court_type":"SA","date_filed":"1982-09-02","date_filed_is_approximate":false,"headmatter":"Criminal Law (347) — Motion foe New Trial — Misconduct Af-. iecting Jurors. Affidavits of a juror stating facts constituting misconduct, but not attempting to state what effect it had on the jury, do not come within the rule that a juror will not be heard to impeach his own verdict.
Same. Misconduct of a juror will not be considered as ground for a new trial where the affidavit of the juror denies the alleged misconduct.
Same. A new trial in a prosecution for stealing cattle must be granted, where one of the jurors admitted to the making of statements in the jury room as to his loss of cattle, traced to the vicinity of the defendant’s residence, which were entirely outside of the evidence and might be extremely prejudicial.
","id":4914143,"judges":"Tolman","opinions":[{"author_str":"Tolman","ocr":true,"opinion_id":4720286,"opinion_text":"\nTolman, J.\n— Appellant was tried and convicted upon a charge of grand larceny. A motion for a new trial was interposed, denied by the trial court, and from a judgment and sentence this appeal is prosecuted.\nThe only question raised here is the ruling of the trial court on the motion for a new trial. The motion was supported by the affidavits of two of the jurors who tried the ease, to the effect that one of the other jurors, after the jury was empaneled and before the evidence was all received, said in the presence of the other jurors, or some of them:\n“That he had lost $1,000 worth of cattle in one summer and he knew where they went, and that he had traced them as far as Kahlotus where the defendant lived; that a fellow told him not to let his cattle get on the east side of Sulphur Lake or they would be in Utah where the defendant has a homestead, or might be in Canada; ’ ’\nand repeated-the same statement in the jury room while the jury was deliberating, and was most insistent upon conviction, saying further:\n“That they had just as well cinch Tom McChesney for if they didn’t his brothers-in-law were going to.”\nAnd that still another juror in the cause, during such deliberation, said:\n“That he had been upon another jury where the defendant was tried and that they had acquitted the defendant once and therefore they'didn’t want to do it again; that two other jurors made the same statements.”\nAn affidavit made by appellant’s attorney was also filed with the motion, stating where the appellant and the various jurors lived, the location of the town of Kahlotus, Sulphur Lake, etc., to show the meaning and effect of the statements alleged to have been made. The state submitted the affidavits of the jurors directly *115named by way of answer, the material part of the first being as follows:\n“That as one of the jurors in said matter I have read the affidavits of George L. Cutler and Emil Swanson, two other jurors who were empaneled to try said cause, and affiant alleges that he did in fact say, that he had lost some cattle in one summer, and that they disappeared, and that he had traced the wagon track to the town of Kahlotus, Washington; but affiant denies that he made any statement to said jurors or to any one else that defendant Thomas McChesney or any other person had taken said cattle, and in fact affiant did not know the said defendant Thomas McChesney and had never heard of him, and did not know that anyone had ever charged said McChesney with larceny of any property and affiant alleges that when he was sworn to try said cause, that he .had never heard of said cause and that said defendant was not known personally to affiant, and affiant had no personal interest in said matter, and knew none of the facts in said matter, and his conviction and verdict that said defendant Thomas McChesney was guilty of the charge of stealing a saddle was based entirely upon the evidence adduced at the trial and the instructions of the court, and affiant was not influenced by statement that he had lost some cattle, as in fact, affiant did not know they were stolen or not, and affiant further alleges that someone told him that he had better keep- his cattle on the west side of Sulphur Lake, as they might disappear, but affiant’s informant did not make any charges or intimated who might be responsible for the disappearance of his cattle, and such statement did not influence affiant in arriving at his verdict in said cause, and affiant did not try to influence any other juror or jurors, in any way or manner, except upon the evidence adduced at the trial while the jury was deliberating.”\nThe affidavit of the second juror named was a direct denial of having made the statement attributed to him, coupled with an admission that he had been a juror in *116another criminal case against the same defendant tried at the same term of court in which case the defendant had been acquitted, but asserting that he was not prejudiced by that fact.\nIt will be observed that the affidavits upon which appellant relies, purport to state facts constituting misconduct, and do not attempt to state what effect this alleged misconduct had upon the jury, and therefore do not come within the rule that a juror will not be heard to impeach his own verdict. State v. Parker, 25 Wash. 405, 65 Pac. 776; Marvin v. Yates, 26 Wash. 50, 66 Pac. 131; Ralton v. Sherwood Logging Co., 54 Wash. 254, 103 Pac. 28; State v. Aker, 54 Wash. 342, 103 Pac. 420, 18 Ann. Cas. 972. As we have seen, the reply affidavit of the second juror involved, denies the statement attributed to him, and therefore the alleged misconduct on his part will not be further considered. State v. Underwood, 35 Wash. 558, 77 Pac. 863; State v. Moretti, 66 Wash. 537, 120 Pac. 102.\nWe have carefully weighed the language of the reply affidavit of the first juror involved, and cannot find in it more than a partial denial of the facts charged as constituting his misconduct. The direct admissions contained therein of the fact that he had told the jury that he had lost some cattle, that he had traced a wagon track to the town of Kahlotus, presumably as a part of his search for the lost cattle, and that he had been informed that- he had better keep his cattle west of Sulphur Lake or they would disappear, in view of appellant’s residence being at Kahlotus, and the other facts known to the jury, might well give his hearers to understand that, by innuendo at least, he intended to accuse appellant of the theft. As all of this was wholly outside of the evidence in the case and might be extremely prejudicial, we think this case falls within *117the rule of State v. Parker, supra, and reluctant though we are to disturb a verdict which has the approval of the trial court, yet, because of the facts undenied and admitted, which constitute misconduct, we must hold that a new trial should have been granted.\nReversed with directions to grant the motion for a new trial.\nHolcomb, C. J., and Mitchell, J., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-mcchesney","summary":"Appeal from a judgment of the superior court for Franklin county, Truax, J., entered December 11,1919, upon a trial and conviction of grand larceny."} {"case_name":"Josephite v. United Cigar Stores Co. of America, Inc.","case_name_full":"Ignatz Josephite v. United Cigar Stores Company of America, Inc.","case_name_short":"Josephite","citation_count":0,"citations":["212 A.D. 861"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1925-02-15","date_filed_is_approximate":true,"id":5439919,"opinions":[{"ocr":true,"opinion_id":5278180,"opinion_text":"\nJudgment and order affirmed, with, costs. No opinion. Present — Clarke, P. J., Dowling, Merrell, McAvoy and Burr, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"josephite-v-united-cigar-stores-co-of-america-inc"} {"attorneys":"Thompson & Ballantine (John F. O’Neil, of counsel), for appellant., P. Henry Delehanty, for respondent.","case_name":"Junk v. Moore","case_name_full":"Daniel M. Junk v. James L. Moore","case_name_short":"Junk","citation_count":0,"citations":["88 Misc. 551","151 N.Y.S. 63"],"court_full_name":"New York Supreme Court","court_jurisdiction":"New York, NY","court_short_name":"New York Supreme Court","court_type":"ST","date_filed":"1915-01-15","date_filed_is_approximate":true,"headnotes":"Municipal Courts — dismissal of action — case reserved.
The Municipal Court of the city of New York is without jurisdiction to dismiss a case which, though marked “ reserved generally,” has never been restored to the trial calendar.
Under the rules of the court either party may move to restore the case to the calendar, but if upon the day set for trial plaintiff is not ready to proceed the trial justice may dismiss the complaint.
Section 822 of the Code of Civil Procedure, relating to the dismissal of a complaint, which is applicable only to the courts specified in section 3347(4) of said Code, is not applicable to the Municipal Court of the city of New York.
","id":5573174,"judges":"Lehman","opinions":[{"author_str":"Lehman","ocr":true,"opinion_id":5415062,"opinion_text":"\nLehman, J.\nThe plaintiff herein appeals from a judgment dismissing the complaint for failure to prosecute. The case had previously been marked “reserved generally” and had never been restored to the trial calendar although apparently the plaintiff’s attorney shortly before the motion to dismiss was made had attempted to make a motion for this purpose but had erroneously entitled his motion papers. Aside from any question of whether the court was justified in the exercise of a proper discretion in granting the motion to dismiss under such circumstances, I am of the opinion that the court erred because it had no jurisdiction to consider the motion. Under the Municipal Court rules either party could move to restore, a. cause from the calendar of cases marked “reserved generally ’ ’ to the day calendar and if upon the day set for trial the plaintiff is not ready the trial justice has undoubted power to dismiss the complaint. Until, however, a case is moved before a trial justice for trial I can find no power in the court to entertain a motion to dismiss. The Municipal Court is of course a court of limited jurisdiction and possesses no powers other than those conferred by the statute. Section 822 of the Code of Civil Procedure is the only statute which could possibly be construed as conferring this power on the court but that section is part of chapter VIII of the Code and it is specifically provided by subdi*553vision 6, section 3347 of the Code that chapter VIII applies only to proceedings taken on and after the 1st day of September, 1877, in an action or special proceeding in one of the courts specified in subdivision 4 of the section. The courts specified in subdivision 4 of the same section, as amended in 1913, are ‘ ‘ courts of record ” but previous to that amendment were “ the Supreme Court, the City Court of the city of New York, or a County Court.” Obviously the Municipal Court is not one of the courts specified. It is claimed, however, that in spite of this limitation placed by the Code upon the cases to which section 822 is applicable it is nevertheless applicable to all cases brought in the Municipal Court by virtue of the provisions. of the Municipal Court Act that “ the provision of the Code of Civil Procedure and rules and regulations of the Supreme Court as they may be from time to time shall apply to the Municipal Court as far as the same can be made applicable and are not in conflict with this act. ’ ’ It seems to me, however, quite plain that where the Code has specifically provided that a section is applicable only to specific courts such provisions constitute a direct limitation of the section itself and the mere fact that the legislature thereafter created a new court and declared in general language that the provisions of the Code so far as the same can be made applicable apply to such new court is I think insufficient to permit us to infer that the section whose application has been expressly limited to other specified courts is also applicable to the new statutory court. This court has in all cases where the matter was squarely presented to it so held but the defendant urges that this view is opposed to the decision of the Appellate Division of the second department in the case of Maune v. Unity Press, 139 App. Div. 740. In that case it is true the court held that section 547 of *554the Code of Civil Procedure applied to the Municipal Court though it is a portion of chapter 6 of the Code which like chapter VIII is applicable only to the courts specified in subdivision 4 of section 3347. I thinlc that the opinion in that case, however, shows on the contrary that in the absence of special circumstances the Appellate Division of the second department is in accord with these views. The opinion is based expressly upon the special circumstances that section 547 of the Code was enacted after section 3347 was enacted and last amended, and after section 20 of the Municipal Court Act was enacted and went into effect and that the legislature therefore failed to show any clear intent to limit the application of its last enactment. While as a matter of comity this court has fol-' lowed the decision in that case it has no application to the facts before us for section 822 of the Code of Civil Procedure in substance antedates section 3347 of the Code and that section has been amended in 1913 long after the Municipal Court Act became effective.\nIt follows that section 822 is applicable only to the courts specified in the last amendment of subdivision 4 of section 3347 and is not applicable to the Municipal Court.\nOrder and judgment must therefore be reversed, with costs, and the motion to dismiss be denied with leave to either party to move that the case be placed on the day calendar.\nDelany and Whitaker, JJ., concur.\nOrder and judgment reversed, with costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"junk-v-moore","summary":"Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the complaint for failure to prosecute and from the judgment entered thereon."} {"attorneys":"A. H. Dana, for appellant;, S. Mack, for respondents!","case_name":"Mack v. Renwick","case_name_full":"Stephen Mack v. Robert J. Renwick","case_name_short":"Mack","citation_count":0,"citations":["2 Sarat. Ch. Sent. 70"],"court_full_name":"New York Court of Chancery","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Chancery","court_type":"S","date_filed":"1843-01-23","date_filed_is_approximate":false,"id":5812617,"opinions":[{"ocr":true,"opinion_id":5668104,"opinion_text":"\nAppeal from order of the vice chancellor disallowing exceptions to master’s report on exceptions. Order appealed from, affirmed with costs.\nSame v. The Same. Appeal as to injunction. Order of the vice chancellor .modified; and defendant, Rhinelander, permitted to have an order of reference to a master to inquire as to a suitable allowance for the support of Mrs. Renwick and her children. The costs of Mrs. Renwick and W. C. Rhinelander to be paid out of the estate. Costs of complainant to abide the event.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mack-v-renwick"} {"case_name":"People v. Johnson","case_name_full":"The People of the State of New York v. Howard E. Johnson, Jr.","citation_count":0,"citations":["140 A.D.3d 1630","32 N.Y.S.3d 772"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2016-06-10","date_filed_is_approximate":false,"id":6221938,"judges":"Carni, Nemoyer, Scudder, Troutman, Whalen","opinions":[{"ocr":true,"opinion_id":6088622,"opinion_text":"\nAppeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered January 31, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.\nIt is hereby ordered that the judgment so appealed from is unanimously affirmed.\n*1631Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in the third degree (§ 265.02 [1]), defendant contends that County Court erred in refusing to suppress, as the product of an unlawful search and seizure, the gun found by a team of parole warrant enforcement officers on his person and his statements to the officers. According to defendant, his rights under Payton v New York (445 US 573 [1980]) were violated when, about four months after he absconded from parole supervision, the officers entered his house with only a parole violation warrant, but without a judicial arrest or search warrant. We reject that contention. “Under the Federal Constitution, it is clear that a parolee or a probationer may be arrested in his [or her] home without a judicial warrant” (People v Hernandez, 218 AD2d 167, 171 [1996], lv denied 88 NY2d 936, 1068 [1996]; see generally Samson v California, 547 US 843, 850-857 [2006]). A parole violation warrant by itself justifies the entry of the residence for the purposes of locating and arresting the defendant therein (see Cook v O’Neill, 803 F3d 296, 300 [2015]), provided that, as here, the officers “reasonably believe [d] the defendant to be present” in the premises (CPL 120.80 [4]). In any event, the conduct of the officers in searching the premises for defendant and, following his arrest, in searching his pockets “was rationally and reasonably related to the performance of the parole officer [s’] duty” (People v Huntley, 43 NY2d 175, 181 [1977]), and thus the officers’ conduct would have been permissible even in the absence of a parole violation warrant (see People v June, 128 AD3d 1353, 1354 [2015], lv denied 26 NY3d 931 [2015]; People v Nappi, 83 AD3d 1592, 1593-1594 [2011], lv denied 17 NY3d 820 [2011]).\nPresent — Whalen, P.J., Carni, NeMoyer, Troutman and Scudder, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-johnson"} {"attorneys":"Carter, Ledyard & Milburn (Thomas A. S. Beattie and Joseph F. McCloy, of counsel), for executors., Charles A. Curtin (A. Wells Stump, of counsel), for State Tax Commission.","case_name":"In re the Estate of Guiteras","case_name_full":"In the Matter of the Estate of Ramon Guiteras","citation_count":0,"citations":["122 Misc. 523"],"court_full_name":"New York Surrogate's Court","court_jurisdiction":"New York, NY","court_short_name":"New York Surrogate's Court","court_type":"SS","date_filed":"1924-02-15","date_filed_is_approximate":true,"id":6284275,"judges":"Foley","opinions":[{"author_str":"Foley","ocr":true,"opinion_id":6152358,"opinion_text":"\nFoley, S.\nThis is an appeal from the order fixing tax, made the 26th day of September, 1918, originally taken by the state *524comptroller and continued by his successor, the state tax commission. The ground of appeal is that the order fixing tax did not include a tax of five percentum under former section 221-b of the Tax Law on secured debts of the value of $49,296.84. The question to be decided is whether chapter 765 of the Laws of 1920, amending section 221 of the Tax Law, is valid and constitutional in so far as it directs the cancellation or refund of taxes previously assessed under section 221-b. The decedent died a resident of this state on December 13, 1917. The appraiser’s report in the transfer tax proceeding recommended the assessment of a tax upon the transfer of the secured debts. By some method, unexplained in the record, the ministerial order of the surrogate fixing the tax did not include this additional tax. The state immediately appealed from this order, but by the consent of the parties the appeal was marked “ reserved generally.” It has now been restored to the calendar and awaits decision herein. After the appeal was taken, a motion was made by the estate for an order modifying the order fixing tax upon the ground that the transfer of the legacy to the town of Bristol, R. I., for educational purposes, was exempt from the ordinary transfer tax. It was held that the legatee was within the exempt class and the order fixing tax was modified accordingly. Matter of Guiteras, 113 Misc. Rep. 196; affd., 205 App. Div. 886. No question as to the application of section 221-b was involved in that application, and the present appeal relates exclusively to the additional tax, if any, due under that section. The state tax commission claims that the amendment of section 221 is retroactive and violated article VIII, section 9, of the\" State Constitution. I am of the opinion that this contention is correct and the order fixing tax must be modified by including a tax of five per cent upon the transfer of the value of the secured debts in this estate. That section of the Constitution reads as follows: “ Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking. This section shall not, however, prevent the Legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper. Nor shall it apply to any fund or property now held, or which may hereafter be held, by the State for educational purposes.” Section 221-b was originally enacted by chapter 700 of the Laws of 1917. In Matter of Le Fevre, 233 N. Y. 138, it was held that a corporation, exempt from the ordinary transfer tax, was not entitled to an exemption from the additional tax imposed by that section. Judge Crane in his opinion said (p. 142): “ The Home for Needy Children [the transferee] does not take this devise or bequest free *525from its proportionate part of this tax. The testatrix did not pay her personal property tax upon these bonds in her lifetime and in consequence her estate is called upon to pay the amount fixed by the above section [221-b] at her death. The estate .which the testatrix left, and which passes under her will to her devisees and legatees including this charitable corporation, consists of that portion which remains after the payment of this tax and all debts and expenses.” By chapter 644 of the Laws of 1920 the legislature repealed section 221-b, and by chapter 765 of that year (in effect May 13, 1920) it amended section 221 of the Tax Law to read as follows: “ and the provision of section two hundred and twenty-one-b of this article enacted by chapter seven hundred of the laws of nineteen hundred and seventeen shall not apply to a bequest heretofore made * * * to any one or more of the corporations wholly exempted from and not subject to the provisions of this article, and in all estates where an additional tax under section • two hundred and twenty-one-b has been heretofore imposed * * * on a bequest heretofore made to one or more of the wholly exempt corporations above named, the executors or trustees of the estate may apply to the surrogate of the proper county to have the taxing order amended by exempting such transfers from the additional tax under section two hundred and twenty-one-b and the state comptroller upon receipt of such amended order of the surrogate is hereby authorized to make the proper refund in all estates where it appears from his records that such additional tax has been paid. * * * ”\nThe state tax commission cites the decision in Matter of Burnham, 236 N. Y. 608, as conclusive upon the invalidity of the retroactive part of this amendment That decision was without a supporting opinion and it is unfortunate that the court did not state the reasons for its determination, but there is no question as to the effect of its decision. It plainly decided that the act was unconstitutional in that respect. In that case, as here, a preliminary question was raised as to the exemption from the ordinary tax on transfers to two municipal corporations for charitable and educational purposes. The Court of Appeals held that these transfers were exempt from the ordinary tax. Thereafter, in 1922, an application was made to the surrogate to modify the order fixing tax under the provisions of the 1920 amendment so as to eliminate the additional tax under section 221-b. Surrogate Slater’s order denying the application was made on the 23d day of January, 1922, and his decision was affirmed by the Court of Appeals. An examination of the briefs of the parties in that court shows that the tax commission asserted that the retroactive part of the statute was unconsti*526tutional. The questions certified by the Appellate Division were answered as follows:\n“2. Are the appellants herein entitled to a refund under said section of the additional tax under section 221-b of the Tax Law imposed by the taxing decree herein, against the exempt corporations therein named? Answer, No.\n“ 3. Did the provisions of the Transfer Tax Law as they existed on February 13, 1920, the date of the entry of the taxing decree herein, authorize the Surrogate’s Court of Westchester county to impose an additional tax under section 221-b of the Tax Law upon the transfer of ‘ investments ’ as defined in section 330 of the Tax Law, to the exempt corporations named in this proceeding? Answer, Yes.”\nQuestions 1 and 4 are immaterial to the circumstances here and related respectively tó the time of taking effect of the act and as to whether a deduction for debts and expenses could be made.\nIn its decision the court stated that question No. 1 was answered “ simply as applicable to the particular facts of this case.” No such limitation was applied to questions 2 and 3. It is clear that the answer to question 2 is conclus ve here and that the estate is not entitled to a cancellation of the additional tax due the state. A discussion of the application of the constitutional section to the amendment of 1920 may be of some advantage in my decision here. The section of the Constitution • prohibiting the legislature from giving or loaning the credit or money of the state in aid of a corporation, association or private person, was one based upon sound public policy. Otherwise, the people of the state would be at the mercy of an indulgent or corrupt legislature which might vote away to private individuals or corporations a substantial part , of the funds in the state treasury. If such practice was not prohibited it is easy to appreciate the demands that would be made by special interests, either taxpayers or others, to secure the favor of the legislature in the form of a return of taxes or a gift of public moneys. In the words of Judge Andrews in the recent veterans’ bonus case: “ Conscious of this human weakness, to guard against public bankruptcy the people thought it wise to limit the legislative power. The courts must see to it that their intentions are not frustrated or evaded.” People v. Westchester Co. Nat. Bank, 231 N. Y. 465, 475. It is immaterial whether the funds are actually voted out of the state treasury, or are remitted by cancellation of a tax, validly due but unpaid. The result is the same and the constitutional provision was intended to prohibit either form of diversion. The Court of Appeals has held that taxes, penalties and license fees imposed by statute, but uncollected, by *527the state, are public moneys, within the constitutional restriction. Fox v. Mohawk & H. R. Humane Society, 165 N. Y. 517, 522. The amount of tax which would be lost to the state, if the validity of this amendment were sustained, would be very large, for in one estate in this court the additional tax approximated $150,000. If the legislature may cancel the taxes of charitable corporations retroactively or direct a refund, it could, for example, authorize the return of the income tax paid in 1922 to persons within designated classes, or cancel state taxes due from specifically named corporations or individuals, thereby transferring the burden of taxation to less favored classes. All of these contingencies, and the evils to be prevented, must have been in the minds of the delegates to the Constitutional Convention of 1846 when this salutary provision was first written into the fundamental law. 4 Lincoln’s Const. Hist, of New York, 680; 2 id. 91. In other states somewhat similar provisions of the Constitution have been held to prohibit the cancellation or refund of taxes. Gray Lim. Taxing Power, 908, 939. In California in Estate of Stanford, 126 Cal. 112, an act almost similar in terms to the amendment involved here was held to be void. See, also, Estate of Martin, 153 Cal. 225; Trippet v. State, 149 id. 521; Illinois Central R. R. Co. v. Commonwealth, 128 Ky. 268. It is immaterial also here that the assessment of the tax has not been completed. Under section 222 of the Tax Law these taxes are due and payable at the time of the transfer, which in this case was the date of death of the decedent in 1917. Matter of Penfold, 216 N. Y. 163; Matter of Seaman, 147 id. 69; Matter of Estate of Swift, 137 id. 77. The ministerial order of the surrogate fixing tax is made subject by law to judicial correction in this appeal. It is elementary that the state cannot be deprived of the money lawfully due it by the unauthorized act of a public official. If the amendment of 1920 was construed to prohibit a refund of taxes already paid, but to authorize a cancellation of taxes not paid, an absurd and unjust discrimination would result. As emphasized by the opinion of the court in Matter of Stanford, supra, an executor who had been prompt in complying wth the law and protecting the beneficiaries of estates from a penalty would be punished for his good conduct, while a dilatory and negligent executor would be rewarded by releasing to the estate what actually belonged to the state treasury. The fact that the corporations invalidly exempted by the legislature are charitable, religious or educational corporations does not in any way condone the violation of the Constitution. In the instant case the legatee is a town in Rhode Island. By no stretch of the imagination could it be brought within any public purpose of our state.\n*528I can find but one decision of the lower courts that has ever sustained a similar statute. Church of the Transfiguration v. Niles, 86 Hun, 221. The opinion there makes no reference to the constitutional restriction and nothing more is said in justification of the attitude of the court, but the mere assertion that it was within the power of the legislature to exempt a religious corporation, retroactively, from a tax.\nSubmit order sustaining the appeal and modifying the order fixing the tax accordingly.\nDecreed accordingly.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-the-estate-of-guiteras"} {"attorneys":"Jacob J. Pantell, for the plaintiff., Barry, Wainwright, Thacher & Symmers, for the defendant.","case_name":"Verber v. Seamen's Bank","case_name_full":"Samuel Verber v. The Seamen's Bank for Savings in the City of New York","case_name_short":"Verber","citation_count":0,"citations":["151 Misc. 538"],"court_full_name":"City of New York Municipal Court","court_jurisdiction":"New York, NY","court_short_name":"City of New York Municipal Court","court_type":"ST","date_filed":"1934-04-20","date_filed_is_approximate":false,"id":6287569,"judges":"David, Lewis","opinions":[{"author_str":"Lewisdavid","ocr":true,"opinion_id":6155676,"opinion_text":"\nLewis, David C., J.\nThis matter comes before the court on an agreed statement of facts.\nThe plaintiff contends that certain restrictions in the deeds to the defendant’s chain of title rendered the conveyance of a marketable title by the defendant impossible. It will be noted that the terms of these restrictions did not expressly impose any restraint on the grantor. But at all times the grantor’s use and title remained free of the restrictions.\nThe following facts present the essential features of the case:\nOn October 1, 1917, E. A. Acker acquired title to a parcel of six contiguous lots, which are indicated 56, 57, 58, 59, 60, 61.\nAcker held no other property in the vicinity and his title to this parcel was free of all restrictions.\nIn 1923 Acker erected a two-family structure on the two center lots (lots 58 and 59). This left two unimproved lots to the south (lots 60 and 61). In May, 1924, Acker conveyed the two lots to the north (lots 56 and 57) to PanareUi. The deed contained the following restriction: “ Restricting the aforesaid premises until May 1, 1934, against erection and maintenance of any building designed to be occupied by more than three families.”\nIn July, 1925, Acker conveyed the remaining two unimproved lots (the two to the south) — lots 60 and 61 — to Markap Realty Corporation. This deed likewise contained the restriction: “ The party of the second part [corporation], its successors or assigns, shall not erect any building upon any part of said premises more than two stories in height and for dwelling purposes only.”\nThis covenant was subsequently slightly modified by agreement between the grantor and grantee.\nIn 1927 (after the death of Acker) the two center lots (58 and 59), with the two-family residence upon them, were conveyed by his executors to Thomas Aquino. This deed contained the following authorization to remove the restrictions: “Also the right to remove any restrictions imposed by the said Edward A. Acker during his lifetime on the lots numbered on said map as numbers 56, 57, 60 and 61, formerly owned by the said Edward A. Acker and sold by him subject to the said restrictions as to the buildings thereon to be erected.”\nThe said Aquino subsequently acquired title to lots 56 and 57 and thereafter mortgaged the combined parcel, constituted of lots 56, 57, 58 and 59, to the defendant herein. This mortgage was foreclosed by the defendant, and upon the sale and foreclosure was *540bid in by it, the defendant receiving a deed from the referee containing the following exception provisions: “ Subject to whatever state of facts an accurate survey of the premises might show, and further subject to restrictive covenants contained in instruments recorded in the office of the Register of the County of the Bronx, in Liber 447 of Conveyances, at page 310, and in Liber 772 of Mortgages at page 483.” (The references referred to cover the restrictions involved.)\nThereafter and in 1931 the plaintiff entered into a contract of purchase covering the said four lots (56, 57, 58 and 59) from the defendant. By this contract the defendant agreed to convey the said lots subject to the following expressed exceptions:\n“ 1. Building restrictions and regulations in resolution or ordinance adopted by the Board of Estimate and Apportionment of the City of New York, July 25th, 1913, and amendments and additions thereto now in force.\n“ 2. Encroachments of stoops, areas, or cellar space, if any, upon any street or highway, and such other facts as an accurate survey may show.”\nThe closing was extended at the request of the plaintiff to allow it to secure funds with which to complete the purchase, the defendant insisting, however, that the contract close on February 19, 1932. On that day no one appeared for the plaintiff, and the defendant on February 25, 1932, advised Panarelli that it considered the contract breached, and declared the deposit forfeited.\nIn October, 1933, the plaintiff for the first time claimed that the defendant had been unable to convey a good and marketable title, and for that reason it could not capitalize the alleged default of the plaintiff and forfeit his deposit. Unless the plaintiff’s contention is correct, he cannot prevail.\nNowhere in the stipulated facts or in the express terms of the restrictions can we put our finger on specific words, acts or circumstances, or any combination, whereby the original owner, Acker, the grantor, lost or alienated to either of his immediate grantees, Panarelli or Markup Realty Corporation, his right to cancel the restrictions, or whereby either grantee acquired any authority over the other grantee’s property.\nThe conveyances by Acker were executed independently of each other and at two different times (more than a year apart) to two different purchasers, who apparently remained strangers to each other.\nWe cannot find any proof in this record of a common plan for the development of a tract of land, and that the grantees or purchasers acquired title with reference to such a plan.\n*541A survey of the facts shows no relationship either between the original individual grantees, or their respective grants; that is, between the parties or the transactions.\nThe language of the restriction did not purport to create an estate; only to impose, for a prescribed period, certain limitations upon the use of the property by. the grantee in favor of the grantor. It left Acker, and his successors in title to lots 58 and 59, free to cancel the restrictions over either or both of the adjoining parcels, without the consent of either adjoining owner.\nSo much for the facts. What is the law?\nThe Court of Appeals instructs us that the basis for a reciprocal restriction demands evidence of intent of grantor to impose the restrictions.and of its disclosure to the grantee.\n“ General pronouncements in the books as to the purpose and effect of equitable restrictions are likely to mislead unless read with discrimination as to the facts. ‘ Before a stranger to a conveyance may assert rights based upon a covenant or restriction, “ there must be found somewhere the clear intent to establish the restriction for the benefit of the party suing or his grantor, of which right the defendant must have either actual or constructive notice.” ’ (Vogeler v. Alwyn Imp. Corp., 247 N. Y. 131, 136, citing Equitable L. Assur. Soc. v. Brennan, 148 id. 661.) The facts must be scrutinized to ascertain whether there is a servitude at all, and, if so, the zone and the incidence of benefit and burden. One who imposes a restriction upon buyers of his land may have in mind benefit to himself, or benefit to others. (Korn v. Campbell, 192 N. Y. 490.) If all that he has in mind is benefit personal to himself, the buyers, though subject to the restrictions, do not succeed to the right to enforce it inter se. (Equitable L. Assur. Soc. v. Brennan, supra; Korn v. Campbell, supra; Stone, The Equitable Rights and Liabilities of Strangers to a Contract, 19 Col. L. Rev. 177,181.) * * *\n“ If restrictions evidenced by covenant and binding in their terms upon the land of the grantee, are to be read as meaning that the grantor imposes a like restriction upon any land retained by him, the inference may not be drawn without something to show that exact uniformity in respect of all restrictions was of the essence of the project. (Spicer v. Martin, 14 A. C. 12; In re Birmingham, etc., Co., [1893] 1 Ch. 342; Reid v. Brickerstaff, L. R. [1909] 2 Ch. 305, at 319, 320; Collins v. Castle, 36 Ch. Div. 243; Shoyer v. Mermelstein, 93 N. J. Eq. 57; De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, 338; Sanborn v. McLean, 233 Mich. 227; Summers v. Beeler, 90 Md. 474; Bimson v. Bultman, 3 App. Div. 198, 201; Turner v. Howard, 10 App. Div. 555.) Buyers must have been invited ‘ to come in and purchase on the footing that the *542whole of the property offered for sale was to be bound by one general law ’ as to the size of the lots and the character of the buildings. (Spicer v. Martin, supra; Reid v. Brickerstaff, supra.) ” (Bristol v. Woodward, 251 N. Y. 275, at pp. 284, 285.)\nFor the plaintiff to prevail, he must bring the case within the classification defined by the law:\n“ (1) Those which are entered into with a design to carry out a general scheme for the improvement or development of real property.\n“ (2) Those cases in which the grantor exacts the covenant from his grantee, presumptively or actually, for the benefit and protection of contiguous or neighboring lands which the former retains.\n“ (3) Where there are mutual covenants between owners of adjoining lands in which the restrictions placed upon each produce a corresponding benefit to the other.” (Korn v. Campbell, 192 N. Y. 490, at pp. 495, 496.)\nThe facts found cannot square with these legal requirements.\nThis disposition of the case renders unnecessary a determination of the other points raised.\nJudgment for the defendant. Ten days’ stay.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"verber-v-seamens-bank"} {"attorneys":"APPEARANCES OF COUNSEL, Heller, Horowitz & Feit (Jacob Heller and Eli Feit of counsel), for plaintiff. Paul K. Rooney and Helen Minkin for defendant.","case_name":"Allied Clove Lakes Co. v. Demisay","case_name_full":"Allied Clove Lakes Co. v. Nicholas D. Demisay, Individually and Doing Business as Clove Lakes Health Related Facility","case_name_short":"Demisay","citation_count":0,"citations":["102 Misc. 2d 1034"],"court_full_name":"New York Supreme Court","court_jurisdiction":"New York, NY","court_short_name":"New York Supreme Court","court_type":"ST","date_filed":"1979-08-31","date_filed_is_approximate":false,"id":6331937,"judges":"Greenfield","opinions":[{"author_str":"Greenfield","ocr":true,"opinion_id":6200497,"opinion_text":"\nOPINION OF THE COURT\nEdward J. Greenfield, J.\nPlaintiff moves for an order pursuant to CPLR 3212, granting partial summary judgment on its first cause of action.\nPlaintiff landlord seeks to recover additional rent, pursuant to the terms of a written lease agreement, from the defendant tenant. The subject premises are operated as a nursing home and health related facility. The lease contains a cost-of-living escalator clause. There is no dispute as to whether the cost of living has risen sufficiently to trigger the escalator provision. There is, however, a dispute involving the interpretation of the following provision contained in the lease: \"Any increase hereunder shall be subject to approval, if required, of N. Y. Department of Health, or such governmental body then having jurisdiction thereover.”\nPlaintiff contends that there is no legal requirement for obtaining the approval of the Department of Health prior to effecting a rent increase on a facility such as is involved herein. Therefore, it argues, defendant has no defense to the first cause of action. Defendant argues that that provision should be construed so as to make any increased rental payments conditioned upon its first obtaining approval of increased reimbursement rates from the Department of Health. It appears that approximately 93% of the patients in the facility are recipients of Medicaid and Medicare benefits, the remainder being private patients. Defendant further argues that it has a negative net worth, and, therefore, Department of Health approval of any rent increase is required pursuant to subdivision 5 of section 2808 of the Public Health Law. That section provides as follows: \"Any operator withdrawing equity from a facility so as to create or increase a negative net worth, calculated without regard to any surplus created by revaluation of assets, must obtain the prior approval of the commissioner in accordance with regulations promulgated by the commissioner with the approval of the state hospital review and planning counsel. No facility shall enter into a real property mortgage or lease transaction *1036without thirty days prior notice in writing to the commissioner.”\nIt is the responsibility of the court to interpret written instruments in order to determine the intention of the parties as derived from the language employed (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291). Effect must be given to the intent of the parties as indicated by the language used (Hall & Co. of N. Y. v Orient Overseas Assoc., 65 AD2d 424, 428). The authority of the court extends only so far as enforcing the contract according to its precise tenor, and no so far as redrafting the document under the guise of constructing or interpreting it (see Laba v Carey, 29 NY2d 302, 308; Rodolitz v Neptune Paper Prods. 22 NY2d 383, 386; Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16).\nGuided by these general principles of contract construction, the court finds that the clear and unambiguous language of the lease agreement ineluctably leads to the conclusion that the rent escalation clause would automatically go into effect unless some statute, rule or regulation required the approval of the Department of Health. No such statute, rule or regulation has been brought to the court’s attention. The court finds untenable defendant’s argument that the disputed provision in the lease required approval of increased reimbursement rates as a condition precedent to the application of the increased rent. Indeed, a reading of a rider to the lease shows that where the draftsmen intended to speak of the need for approval of additional reimbursement, the appropriate language was used with clarity.\nDefendant’s reliance upon subdivision 5 of section 2808 of the Public Health Law is misplaced. That section only applies where the operator withdraws equity; increased operating costs do not constitute withdrawal of equity.\nFinally, defendant asserts that summary judgment should be denied to plaintiff because of the existence of its counterclaims. The merits of the counterclaims are disputed. However, the counterclaims are not so inextricably intertwined with plaintiff’s claims as to be inseparable therefrom (Dalminter, Inc. v Dalmine, S. P. A., 29 AD2d 852, 853, affid 23 NY2d 653; Galaxy Int. v Magnum-Royal Pub., 54 AD2d 875).\nDefendant has failed to demonstrate the existence of any genuine triable issue sufficient to warrant denial of plaintiff’s motion for summary judgment on the first cause of action. Accordingly, the motion is granted.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"allied-clove-lakes-co-v-demisay"} {"attorneys":"W. S. B. Hopkins, for the petitioner., F. T. Blackmer, for the respondent.","case_name":"Clark v. City of Worcester","case_name_full":"John S. Clark v. City of Worcester","citation_count":0,"citations":["125 Mass. 226"],"court_full_name":"Massachusetts Supreme Judicial Court","court_jurisdiction":"Massachusetts, MA","court_short_name":"Massachusetts Supreme Judicial Court","court_type":"S","date_filed":"1878-08-30","date_filed_is_approximate":false,"headnotes":"On a petition for the assessment of damages for the taking of land by the city of Worcester under the St. of 1867, c. 106, providing for a system of sewerage for the city, the presiding judge refused to rule that the city had a right of way over the location and a right to keep the location of the sewer free from structures by abutters, but instructed the jury that the city could enter upon the land, make repairs, reconstruct and make such changes as it saw fit, subject to which right the petitioner could use and improve the land as he wished. Held, that the petitioner had no ground of exception.
The assessment by the city of Worcester under § 4 of the St of 1867, c. 106, providing for a system of sewerage for the city, of the benefit to an estate from which land is taken for the construction of a sewer, includes such benefit only as is derived in common with the other estates drained thereby ; and a peculiar benefit to the estate may be set off by the city in the assessment of the owner’s damages for the taking of his land.
","id":6545611,"judges":"Colt","opinions":[{"author_str":"Colt","ocr":true,"opinion_id":6419342,"opinion_text":"\nColt, J.\nThe city of Worcester, by the St. of 1867, e. 106, was authorized to alter and deepen the channels of several brooks, whose names are given; to enclose them in walls, and to cover them so far as might be adjudged necessary for purposes of sewerage, drainage and the public health. The right to take land and water rights was given, subject to the payment of damages, to be assessed in the same manner and upon the same principles as damages are assessed in the laying out of highways. *230Under this authority, Mill Brook, where it passed through the petitioner’s land, was laid out as a main drain and common sewer. Its channel was widened, deepened, enclosed in walls, and covered with substantial stone masonry. The petitioner claimed damages for this taking.\nAt the trial before the jury the city contended that the building of the sewer had increased the value of the petitioner’s land taken; that the petitioner had the right to use the land within the location for all purposes, including building purposes, subject only to the right of the city to enter for repairs, to reconstruct, or to make such changes as it saw fit; and was permitted, against the petitioner’s objection, to introduce evidence tending to show increased value in the land on account of these rights. The petitioner on this point asked the judge to rule that by the taking of the land the city acquired a right of way over it, and a right to keep it free from structures. But the judge, refusing this, instructed the jury that the city acquired the right to construct and maintain a sewer within the location, with the right to enter upon it, make repairs, reconstruct, and make such changes in the sewer as it saw fit; and that, subject to these rights, the petitioner remained the owner of the land, and had the right to use it in any manner he saw fit.\nWe are of opinion that the ruling requested was properly refused ; that the instruction given was correct and sufficient for the requirements of the case; and that with this instruction, and as necessarily controlled by it, the evidence objected to was properly admitted.\nThe authority given to the city was to take and appropriate so much of the petitioner’s estate as should be adjudged necessary to carry out the purposes of the act. The Legislature did not undertake to define more particularly the nature of the estate required to be taken, or the quantity of the land to be used. The right to take is limited by the public exigency stated; beyond that, the power to exercise the right of eminent domain is not given. The statute is to be strictly construed in this respect. The same terms are used which are employed in the statutes giving authority to take land, to railroad and turnpike corporations, and the same rules of interpretation govern. Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 1 Thacher v. Dartmouth Bridge, 18 Pick. 501.\n*231The power to take land for the purpose stated does not confer the right to take an absolute estate in fee simple, because such an estate is not necessary to the enjoyment of the defined privilege any more than it would be necessary where land is taken for a highway, railroad or turnpike. The use only of the petitioner’s land was taken, and that use is limited to the purposes named. The rule is applicable, which defines the rights of the owner of an easement in the land of another, by determining what is reasonably necessary for the enjoyment of that easement. For all purposes consistent with that enjoyment, the right to use the land remains in the owner of the fee. Atkins v. Bordman, 2 Met. 457, 467. Perley v. Chandler, 6 Mass. 454. Adams v. Emerson, 6 Pick. 57. Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 104 Mass. 1, 11. Thus, if the easement is a public or private right of way over the surface of the land, the rule forbids the erection of anything which obstructs that right. If it is a right to construct and maintain an underground drain, sewer or aqueduct, then the landowner may well use and cultivate the surface of his land, erect fences and perhaps other structures thereon, without any invasion of the rights of the owner of the easement. It is a question which must be submitted to the jury, unless the invasion of the right complained of is so manifest as to leave no question of fact for their consideration.\nIn this case, it could not be properly ruled in favor of the petitioner, that the city, as matter of law, had a right of way generally over the location in question, or a right to keep it free from all structures. Nor could it be properly ruled, in favor of the city, that the petitioner had the right to erect structures of any description. The use which he might make of the surface of his land is largely a question of fact; it depends on the size and strength of the sewer, the depth of its location, the character and size of the stream of water flowing through it. And, under the instructions given, the question, as bearing on the damages to be assessed, was properly left to the jury.\nUpon the question of the benefits which were to be set off against the claim for damages, the judge ruled that they must be direct, peculiar and special benefits derived by the petitioner’s estate from the sewer, and not the general benefits acquired *232by this estate with other estates adjoining. By the act under which the sewer was located, the damages were to be assessed in the same way as in the laying out of highways. Section 4 of that act also provides that estates benefited by the sewer shall be assessed a proportionate share of the expenditure of the city-for drains and sewers. Under this section, the petitioner had duly paid his assessment, and contended that the benefit, which he insisted included drainage of this land, having been thus paid for, could not be set off in this proceeding. But the assessment under § 4 is an assessment, upon the several classes of estates, of a proportionate share of the expenditure of the city for drains and sewers, and not an assessment for the particular benefit, derived by any estate from any particular sewer. It is not based upon the peculiar and special benefits of each estate. Butler v. Worcester, 112 Mass. 541. Workman v. Worcester, 118 Mass. 168. Sexton v. North Bridgewater, 116 Mass. 200.\nIt is the intention of the statute that a landowner shall only receive such damages as he is entitled to, after deducting special benefits, and shall be liable to be assessed in common with other estates of the same class for his just and proportionate share of the whole expense for sewers and drains.\n\nExceptions overruled.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Oct. 3, 1877.","precedential_status":"Published","slug":"clark-v-city-of-worcester","summary":"Petition under the St. of 1867, c. 106, for a jury to assess damages for the taking of land by the respondent for the construction of the Mill Brook Sewer in Worcester. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows : It appeared that the respondent took, in constructing its sewer, a strip of the petitioner’s land seventeen feet wide, being the westerly half of its location where it abutted on the petitioner’s remaining land; and that the sewer extended a mile each way from the petitioner’s land. The order of taking was as follows : “City of Worcester. In City Council. December 30, 1867. Voted, That we adjudge it necessary for purposes of sewerage, drainage and the public health, to fix the boundaries of that portion of Mill Brook between the northerly side of Green Street and the southerly side of Front Street, to straighten, deepen and pave the channel of said brook between the termini aforesaid, and to inclose the same in retaining walls, and to appropriate, establish and lay out the same as a main drain and common sewer. Therefore ordered, that the boundaries of Mill Brook between the termini aforesaid be fixed as follows.” [Then followed the boundaries of the sewer.] “ And that the same seo fcion of said brook above described be established and laid out as a main drain and common sewer and suitably paved and enclosed in retaining walls.” There was evidence tending to show that the sewer was laid out thirty-four feet in width, and was very strongly built in the form of an arch about nine feet in height, the thickness of the masonry being some eighteen inches, and the outside span of the walls at the base about thirty feet, the bottom of the watercourse having been sunk in building the sewer some five feet, and the sewer paved with stone; that, before the sewer was built, Mill Brook had become foul, and was covered in by the sewer arch, and that freshets had caused the cellar of the petitioner’s building to be sometimes flooded, which was no longer so after the building of the sewer, by reason of the lowering of the stream; that the whole of the land taken was covered with water in 1867, but had been actually occupied by the petitioner, for more than twenty years before the taking, by piles driven in the soil, upon which, platforms and some wooden buildings had stood for the whole period, which were used for business purposes ; and that it was practicable for the petitioner to have built a brick building over the water, on stone arches set on piles, without any greater obstruction to the flow of the water than that caused by the piles. The respondent contended that the sewer had increased the value of the land taken; that the petitioner had a right to use the land over the sewer for all purposes, including permanent structures, such as buildings, subject only to the right of the respondent to enter to repair the sewer, to reconstruct and make such changes as it saw fit; and introduced evidence tending to show the increased value of the land upon this theory, contending that there was small risk that the respondent would ever be called on to repair the sewer at this point. This evidence was admitted against the objection of the petitioner. The respondent also contended that the adjoining land of the petitioner, owing to its peculiar location, nature and condition, was greatly benefited by reason of the covering in, sinking and paving of Mill Brook, which benefit, including drainage, was direct and peculiar to this estate, and different in kind from the benefit derived by other estates in the vicinity and abutting on the sewer, and which benefit could be set off against the damages suffered by the petitioner. The petitioner offered to show that he had been assessed and had paid his proportionate part of the expenditure incurred by the city in the construction of sewers under the St. of 1867, c. 106; that his estate was adjudged by the mayor and aldermen to be benefited thereby in the following orders: “ January 19, 1872. Ordered, That the sum of four hundred and fifty thousand dollars be assessed upon the persons and estates benefited, together with such sums as the mayor and aldermen may determine as entrance fees.” “ April 15, 1872. Whereas the city of Worcester has expended an amount exceeding one million dollars in laying out and constructing sewers and drains, by order of the city council under an Act of the Legislature passed March 29, 1867, and approved by the voters of Worcester, April 16, 1867, and whereas it is adjudged, by the mayor and aldermen of the city of Worcester, that the estates mentioned and described in the foregoing schedule are benefited thereby, and whereas said mayor and aider-men have adjudged that the sum of ten thousand two hundred and twenty dollars is the proportionate share of said expenditure, to be assessed upon said estates and upon the owners thereof, it is therefore ordered, that the persons named in the foregoing schedule, being owners of the estates therein described, which said estates are situated upon streets in which drains and sewers have been laid under and by virtue of said Act, and upon the line thereof, and of estates which are benefited thereby, be .tnd they are hereby charged and assessed with the sums set opposite their respective names, as their respective proportionate shares of said expenditure; and said schedule is hereby committed to the city treasurer and collector, and he is hereby directed to collect of the persons named in said schedule the amounts therein assessed against them respectively. And all said sums shall become due and payable on the third day of June next, and said treasurer and collector shall cause written or printed notices to be given to all persons and parties or their tenants or lessees forthwith.” The petitioner contended that the benefit derived from the sewer as a sewer, including drainage of his land, could not be. set off in this suit, being contemplated in, and paid for by, the above tax so assessed. The judge admitted evidence of benefits, substantially of the character as contended by the respondent, against the petitioner’s objection. The petitioner asked the judge to instruct the jury as follows: “ 1. Under the statute authorizing the taking of this land by the city, the city, after taking the land, had a right of way over the location, and a right to keep the location of the sewer free from structures by abutters. “ 2. The respondent is not entitled to have set off as benefits any such effects on the real estate of petitioner as were the natural effect or work of the sewer as a sewer, and this would include drainage of the land, the petitioner’s land having been assessed for a sewer assessment under the statute.” The judge refused to give these instructions, but instructed the jury as follows : “ The respondent, by the order by which the land was taken and the sewer located, acquired the right to construct and maintain a sewer within the limits of the location, and to enter upon the land to make repairs, reconstruct and make such changes as it saw fit in the sewer; and, subject to these rights of the respondent, the petitioner remained the owner of the land, and had the right to use and improve it in any manner he saw fit; and the respondent is entitled to have allowed by way of set-off, the benefit, if any, to the property of the petitioner from the sewer; but the benefit to be set off must be some direct, peculiar, and special benefit derived by the petitioner’s estate from the sewer, and not the general benefit acquired by this, with other estates adjacent to the sewer.” The jury returned a verdict for the respondent; and the peti tioner alleged exceptions."} {"attorneys":"McClintock & Quant, of Kansas City, Mo., for plaintiff., John C. Pohlmann and J. Arnot Hill, both of Kansas City, Mo., for defendant.","case_name":"Miller & Hart, Inc. v. Morris Packing Co. of Missouri","case_name_full":"MILLER & HART, Inc. v. MORRIS PACKING CO. OF MISSOURI","citation_count":0,"citations":["7 F.R.D. 592"],"court_full_name":"District Court, W.D. Missouri","court_jurisdiction":"Missouri, MO","court_short_name":"W.D. Missouri","court_type":"FD","date_filed":"1947-12-16","date_filed_is_approximate":false,"id":6785128,"judges":"Reeves","opinions":[{"author_str":"Reeves","ocr":true,"opinion_id":6669221,"opinion_text":"\nREEVES, District Judge.\nThe complainant avers that through a broker it sold a carload of merchandise to the defendant for delivery at a specified date. After the merchandise had been acquired and prepared for shipment it is asserted by the complainant that the defendant canceled the order, whereupon the plaintiff disposed of the merchandise at best advantage and now sues for the loss or damage claimed by the breach of contract.\nThe motion by defendant is for a statement as to “when said hams were procured or from whom said hams were procured * * * date of sale or the person or persons to whom said car was sold,” and a more definite statement as to the necessity for the use of freight or the payment of freight in the sale or disppsition made -of said hams.\n1. It is to be noticed from the complaint there is no ambiguity as to the nature of the claim. It is a simple case of a suit for an alleged breach of contract with respect to the sale and delivery of a carload of merchandise. The facts inquired about are such as may be obtained by interrogatories, requests for admissions, or by depositions.\n2. In this case a motion for a more definite statement performs precisely the office of a motion for a bill of particulars. As said by Judge Holtzoff in his text entitled New Federal Procedure and the Courts, p. 35: “Although there are some intimations to the contrary, it has been definitely held that these two motions are indistinguishable and interchangeable.” There are cases, however, where a motion for a more definite statement would perform the valuable function of clarifying the claim. Rule 12 (e), 28 U.S.C.A. following section 723c, is to be amended, unless the Congress rejects the proposal. Upon the conditions fixed by the Supreme Court the amended rules of federal procedure will become effective on or about April 1, 1948. The amendment proposed to Rule 12(e) accords with the rulings heretofore made by the courts. It eliminates the motion for a bill of particulars and specifies the conditions upon which a motion for a more definite statement may be made, as follows: “If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading he may move for a more definite statement before interposing his responsive pleading.” This proposed amendment to the rule is precisely in accord with the decisions of the judges with respect to the rule as it was formerly adopted.\nThere is nothing vague or ambiguous in the complaint in this case. On the contrary, the defendant in its memorandum supporting the motion for a more definite statement admirably states the issue.\n3. In proposing amendments to the rules the committee took occasion to say concerning Rule 12(e) : “Rule 12(e) as originally drawn has been the subject of more judicial rulings than any other part of the rules, and has been much criticized by commentators, judges and members of the bar.”\nAs heretofore indicated, the facts sought by defendant can be obtained (not for the purposes of answering, as the issue tendered is a clear one, but for the purposes of a trial), either by a request for admission or by interrogatories or by depositions. The two former would be much less expensive. It should be suggested, moreover, that the burden will be upon the plaintiff to approve nearly all, if not all, the facts requested in the motion.\nIn view of the above the motion should be and will be overruled.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"miller-hart-inc-v-morris-packing-co-of-missouri"} {"attorneys":"O. M. Slaymaker and B. E. Killmar, for appellant., Ben J. Gibson, Attprney-general, S. S. Faville, Assistant Attorney-general, and M. B. Stmsell, County Attorney, for appellee.","case_name":"State v. Shackleford","case_name_full":"State of Iowa v. Jesse V. Shackleford","case_name_short":"Shackleford","citation_count":0,"citations":["198 Iowa 752"],"court_full_name":"Supreme Court of Iowa","court_jurisdiction":"Iowa, IA","court_short_name":"Supreme Court of Iowa","court_type":"S","date_filed":"1924-10-17","date_filed_is_approximate":false,"id":7209170,"judges":"Arthur, Evans, Graff, Preston","opinions":[{"author_str":"Preston","ocr":true,"opinion_id":7120881,"opinion_text":"\nPreston, J.\n— The indictment does not describe the property or place where it is alleged the nuisance was maintained. It charges but one offense. No abatement was asked. It charges that defendant maintained a place in Clarke County, Iowa. The specific language is that:\n“On the 20th day of May, 1923, in the county of Clarke aforesaid, and on divers other days between May 20, 1923, and the finding of this indictment, in the county and state aforesaid', did erect, establish, continue, and use a building, erection, and place, with intent and for the purpose then and there and *753therein to sell intoxicating' liquor contrary to law, and with intent and for the purpose then and there and therein to own, keep, and be concerned, engaged, and employed in owning and keeping intoxicating liquor, with the intent unlawfully to sell the same, and did then and there and therein sell intoxicating liquor contrary to law, and did then and there and therein own and keep, and was then and there and therein concerned and engaged and employed in owning and keeping intoxicating liquor, with intent to unlawfully sell the same, contrary to the statute,” etc.\nA search was had of defendant’s premises on May 20, 1923. The search warrant described the premises as the northeast quarter of the northeast quarter of Section 5, Liberty Township, Clarke County, Iowa. Defendant was the lessee of the farm, and m possession thereof.. Two bottles of beer, which, upon analysis, were found to contain more than five per cent of alcoholic content, were found in the dwelling house, in the pantry adjoining the kitchen. A gallon can about half full of alcohol was found in the manger of the barn, covered with hay. Several empty bottles and vesséls were found about the premises, and a small amount of homemade wine in a cellar or cave. Several of the empty vessels about the premises had an odor of intoxicating liquor. At the time the search began, the defendant was not at home, but he returned while the sheriff and deputies were still there. Mrs. Shackleford told the sheriff and his deputy that there had been quite a lot of drinking going on around the premises, and that:\n“It seems as though they come in here, and we let them drink here and put on their parties and such as that. We stand for it because we are good fellows, I guess.”\nIt appears that friends came from Des Moines and stopped at the Shackleford home; and that there had been people there from New Virginia, and girls from Osceola. When the officers arrived at the home, there were two men present, and Mrs. Shackleford and another woman. The sheriff testified that in his opinion these men were drunk at the time he arrived. The house and barn were about one hundred feet apart. The house was used as the dwelling of the defendant and his family. Such *754is the tendency of the testimony of the State. Defendant introduced no evidence.\nAt the close of the evidence, defendant moved that the State be required to elect whether it would rely for a conviction upon the maintaining of a nuisance at the dwelling house or at the barn. The motion alleged that the evidence tended to show separate and distinct offenses, and that the evidence tended to show the keeping of two places. The motion was overruled. Defendant then moved the court to direct the jury to return a verdict of not guilty ’of maintaining a nuisance at the dwelling house, because the evidence showed that the same ■was a private dwelling, and that the only amount of liquor found was two bottles of beer, and there was no evidence to show sales therein, or that liquor had been offered for sale. The motion was overruled.' Defendant then made a like motion to direct a verdict as to the barn, because there was no evidence to show that there had ever been any sales therein, or that any liquor was kept for the purpose of sale. This was overruled. Defendant then made a motion for a directed verdict on the ground that the evidence tended to prove separate and distinct offenses, and because there was not sufficient evidence on which to base a verdict of guilty. This motion was also overruled. The last three motions were not separately overruled, but together. Defendant requested no instructions.\nThe court instructed, in substance, that, if the jury found that defendant kept, used, or maintained a building or place in Clarke County, Iowa, wherein was kept intoxicating liquor with intent to sell in violation of law, it would be justified in finding-defendant guilty. The court also instructed, in substance, that the finding of intoxicating liquors in the possession of one not legally authorized to sell or use the same, except in a private dwelling house, would be presumptive evidence that such liquors are kept for illegal sale; but that such liquors found in the dwelling house of the defendant would not raise the presumption that they were kept for illegal sale; and that, if the jury should find that the two bottles of liquor found in the dwelling-house were the only ones in the possession of the defendant, and that he did hot have possession of or control over any of the *755intoxicating liquors claimed to have been found in the barn, then he should be acquitted; that the jury should consider .all the evidence in the case, together with the presumption as to the liquor found in the barn.\n1. Appellant contends that the trial court erred in the several rulings before referred to. He appears to rely most strongly upon the case of State v. Poull, 14 N. D. 557 (105 N. W. 717), and other like cases cited therein, holding that the doing of prohibited things in different buildings constitutes separate offenses. It is contended by the State that the Poull case is not in point, because the statutes of North Dakota and Iowa are dissimilar. The point is well taken, we think. Under the Iowa statute, the nuisance may be abated. But .in that case, or in an action in equity to enjoin the nuisance, it would be necessary to describe the place. If the place had been described .in the indictment, it would be necessary to prove it. State v. Schuler, 109 Iowa 111. It is not necessary, however, to describe the place in the indictment, but it has been frequently held that it is sufficient to charge that the party maintained a place in .the county. State v. Waltz, 74 Iowa 610. In the Poull case, the court held that, under the statute of that state, the description of the place where the nuisance was maintained was insufficient, and that, under the statute, it was not' sufficiently definite to Avarrant abatement proceedings after conviction. The North Dakota statute and decisions seem to require specific description of the place, in the indictment. The distinction between an action for abatement of the nuisance and a prosecution for a conviction of the defendant, is pointed out in State v. Waltz, 74 Iowa 610, 612. The court said:\n“It Avill be observed that, under the statute applicable..to the case before us, one charged with the offense, of nuisance-, contemplated by it may be indicted, and upon the, indietigent he may be fined, and the nuisance may be abated. Now,;.-if it be assumed that the order of abatement cannot be made in the absence of allegations in the indictment particularly describing the loeus of the nuisance, it does- not follow that the offender may not be punished by fine, upon conviction under such an indictment. The statute declares that he may be fined upon con*756viction. It prescribes further proceedings after conviction under such an indictment, to the end that the nuisance be abated. Now, if the order of abatement cannot be made in the absence of averments as to the locus, the court, upon conviction, will render judgment for the fine, regarding the indictment as not presenting a ease for abatement of the nuisance. It will be presumed that the State sought in the prosecution nothing further in the way of punishment than a fine upon defendant. The statute provides for the fine; the indictment alleges sufficient facts to support a judgment therefor. It does not allege facts sufficient to support an order for abatement. The case will be regarded, then, as one in which the State seeks a conviction and a fine, and nothing more.” *\nIn the Poull case, it appeared that there were two buildings on the lots in question, in one of which defendant lived, and a barn on the rear portion of the lots. The two buildings were not connected in any way. It appeared from the evidence that defendant sold liquors in each of said buildings, and permitted persons to resort to each for- the purpose of drinking. It was held that this evidence would sustain a conviction for maintaining a nuisance at each of said places. Under such circumstances, it was held error to not require the State to elect whether it would rely for a conviction on the evidence concerning sales at the barn or at the residence. The court found that the two buildings were independent, and that there were two separate nuisances maintained.\nThe same court, however, in State v. Brown, 14 N. D. 529 (104 N. W. 1112), in a case where the facts were more like the situation in the instant case, held that “a.place” is a comprehensive term, and may consist of one or more rooms in a building; or it may be an entire building; or, as in that case, more than one building within the same place, used together for the convenient conduct of the prohibited business. In that case, the question arose as to the form of the indictment; while in the instant case, it arises under the evidence. But in that ease, though there were two- buildings, the court said of the indictment:\n“It is, in substance, plainly charged that the frame shanty *757or building was adjacent to the ‘Little Kindred/ and within thé curtilage of the' latter, thereby implying that the shanty was in the same inelosure, and was part' of the same place or tenement. And it is expressly alleged, in effect, that both structures were used together, and constituted a -single nuisance. ’ ’\nThis we understand to be the position of the State in regard to the evidence in the instant case. See, also, Commonwealth v. Patterson, 153 Mass. 5 (26 N. E. 136), where it appeared from the evidence that there were several disconnected buildings on the lot controlled by defendant. He asked that a verdict be directed in his favor on the ground - that the evidence showed that there were two or more tenements, either of which the jury might find defendant guilty of keeping. The trial court refused to so rule. The court said:\n“The place kept and used by the defendant for the'illegal sale of intoxicating liquor, consisting of a lot of land with detached buildings upon it, was properly described as a tenement. While it may have been divisible into several tenements, it was not so divided, but was used as one tenement, and constituted one nuisance, the keeping of which was one offense. ’ ’\nAppellant cites State v. Viers, 82 Iowa 397, 398, as sustaining his contention. The question as to election was not in that case. The question was whether the presence of liquor ih a building is essential to constitute the crime of nuisance. The court held that this was not essential. The court did say, as claimed by appellant, that:\n“If one house is used for the sale of intoxicating liquors which are kept in another, there can be no doubt but both are nuisances.”\nThe court also said:\n“If the liquors were kept in a house not’ occupied by\"the defendant, yet sold in a house occupied by him, he was guilty of committing a nuisance by making sales of liquor.”\nIn other words, defendant might keep liquors in one place and make the sales in another, thus using one in connection with the other. As bearing somewhat upon this proposition, see State v. Donahue, 120 Iowa 154, 157, 158. In that case, the liquor was stored or kept in a room used in connection with the mulct *758saloon. It. was held that this did not violate the statute- which required sales of intoxicating liquors in a single room, under the mulct law. In State v. Illsley, 81 Iowa 49, it was held competent to prove that another place was used as a base of supplies. That cáse was followed in State v. Arnold, 98 Iowa 253, where sales were shown in the hotel; also in other buildings appurtenant thereto.\nWe think that the evidence here as to the barn and the house was so related that it was competent as bearing on the question whether the defendant was maintaining a place wherein intoxicating liquors were kept, with intent to sell, contrary to law. The evidence of the find- . P P 1 ♦.inn* i mg of two quarts of beer m the dwelling house\nwould not, of itself, justify the presumption that, because of the quantity, the liquor was kept with intent, to sell. The jury was so told. The other evidence, of empty bottles, drunken persons, etc., would be relevant, as sustaining the claim that the liquors were kept in the house for sale. The presumption would arise from the finding of the alcohol in the barn, hidden- under the hay. There was no direct evidence of any sales in either the house or barn. True, the jury could have found, under the evidence, that the presumption of illegal keeping in both the barn and the house would obtain; but there is nothing in the evidence to show that they were used separately and independently, of each other. The evidence tends to show that they were used together, as one place, on the same plot of ground. This could be shown if another prosecution should be attempted for either the house or the barn. The defendant introduced no evidence; therefore there was nothing to rebut the presumption. State v. Wilson, 152 Iowa 529. See, also, Shidler v. Keenan Bros., 167 Iowa 70. We are of opinion that the trial court did not err in the rulings complained of. (i ., , -:.if\n2. The trial court did not <■ impose the maximum- fine., .It is, contended by appellant that the, judgment which was.imposed is-.excessive,. He asks, if the judgment is otherwise affirmed, that t]iis court reduce the fine, and. that only the minimum fine be imposed. .There, was no evidence introduced .in mitigation.. Necessarily, the trial court was better acquainted with local eon*759ditions than this court can be. This offense, like ethers, is committed in secret, and there are many evasions. It seems to be the thought of those engaged in the business that, after the enforcing officers run them down and secure evidence sufficient to convict, the courts should “let them off easy,” or prepare a soft feather bed upon which they can light, so that they can get up practically unhurt and start over again. We have said-that the time has come when the punishment inflicted should be such as to have' a deterring effect. State v. Bowers, 197 Iowa 336. See, also, State v. Williams, 195 Iowa 374. The judgment was not excessive.\n3. The State has filed a short additional abstract. There is nothing to indicate that it was not filed in good faith, for the purpose of presenting the case according to the .theory of the State as to how the case should be presented. Under such circumstances, it should not be penalized. ■ Appellant’s motion in reference thereto is overruled. .\nThere is no prejudicial error, and the judgment is— Affirmed. .\nArthur, C. J., and Evans and De Graff, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-shackleford"} {"attorneys":"Mary L. Sfasciotti, Law Offices of Mary L. Sfasciotti, Chicago, IL, for Plaintiff., John Frederick Hurlbut, U.S. Attorney’s Office, James R. Hoofnagle, Jr., Special Assistant U.S. Attorney, Chicago, IL, for Defendants.","case_name":"Ghaly v. Reno","case_name_full":"Rhamis GHALY v. Janet RENO, Attorney General of the United States, Doris Meisner, Commissioner, Immigration & Naturalization Service, and Immigration and Naturalization Service","case_name_short":"Ghaly","citation_count":0,"citations":["41 F. Supp. 2d 830"],"court_full_name":"District Court, N.D. Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"N.D. Illinois","court_type":"FD","date_filed":"1999-03-09","date_filed_is_approximate":false,"id":7304888,"judges":"Bucklo","opinions":[{"author_str":"Bucklo","ocr":true,"opinion_id":7222791,"opinion_text":"\n\nMEMORANDUM OPINION AND ORDER\n\nBUCKLO, District Judge.\nRhamsis Farid Ghaly, a resident of Illinois and a citizen of Egypt, brought this *831action pursuant to the Administrative Procedure Act alleging that he was unable to legalize his residency in the United States because of false and malicious evidence of marriage fraud obtained by defendants, their officers, agents, and employees. Defendants move to dismiss the complaint because the claims are precluded under the principles of res judicata. For the following reasons, the motion to dismiss is granted.\n\nBackground\n\nDr. Ghaly, a native and citizen of Egypt, entered the United States in 1984. In 1985 Dr. Ghaly married Anne Marie Wagner, a citizen of the United States. Ms. Wagner filed a visa petition with the INS on Dr. Ghaly’s behalf. The petition was never approved and was later withdrawn by Ms. Wagner. During an interview with the INS in 1986, Ms. Wagner said in a sworn statement that she agreed to marry Dr. Ghaly in exchange for $1500.00 so that Dr. Ghaly could obtain a visa.1 The INS concluded that Dr. Ghaly committed marriage fraud. In 1998 the INS revoked a visa petition filed on Dr. Ghaly’s behalf by the University of Illinois at Chicago [the “University”] on the basis of the finding of marriage fraud.2 The INS Administrative Appeals Unit [“AAU”] affirmed the order of revocation.\nDr. Ghaly then filed a complaint in federal court, alleging that the decision to withdraw approval of his application based on marriage fraud was arbitrary and capricious and in violation of statutory and constitutional authority. The district court affirmed the decision of the INS. Ghaly v. INS, 1994 WL 171414 (N.D.Ill.1994). Mr. Ghaly appealed, and the decision was affirmed by the Seventh Circuit in Ghaly v. INS, 48 F.3d 1426 (7th Cir.1995). The court considered a notarized letter by Dr. Ghaly’s first wife, Ms. Wagner, stating that they married because they thought they cared about each other. Id. at 1428-29. Other rebuttal evidence submitted by Dr. Ghaly was also evaluated.\nIn a deposition held in September 1995, Ms. Wagner said that her previous, sworn statement concerning the fraudulent nature of her marriage to Dr. Ghaly was coerced, untrue, and altered. In April 1997, Dr. Ghaly filed a motion with the INS to reconsider the marriage fraud bar on his visa petition in light of the new testimony. The AAU denied the motion for various reasons, including that the motion was not filed within 30 days of the decision the motion sought to reconsider. In May 1997, Dr. Ghaly filed a visa petition on his own behalf, which was approved and then revoked; it is now pending appeal with the AAU.\nDr. Ghaly filed this lawsuit in June 1998. He alleges that the defendants’ evidence of his marriage fraud is false and malicious; that he has been denied the opportunity to present evidence showing that he did not commit marriage fraud; and that as a result he has been unable to legalize his status in the United States. Dr. Ghaly seeks an order declaring illegal the decision of the INS denying his motion to reconsider in light of new evidence relating to the marriage fraud; an order enjoining defendants from imposing the marriage fraud bar on any third person’s petition until his case is reconsidered; an order declaring that defendants violated his due process rights; an order requiring defendants to adopt new administrative procedures relating to the marriage fraud bar; *832and attorney fees. Defendants move to dismiss based on principles of res judicata.\n\nRes Judicata\n\nDefendants argue that Dr. Ghaly’s claims are barred by res judicata. The doctrine of res judicata, or claim preclusion, bars claims that were or could have been litigated in an earlier action. D & K Properties Crystal Lake v. Mutual Life Ins., 112 F.3d 257, 259 (7th Cir.1997). “A claim is precluded where it shares three elements with an earlier action: (1) an identity of the parties or their privies; (2) an identity of the causes of action; and (3) a final judgment on the merits.” Id. Dr. Ghaly concedes that the first element is satisfied.\nThe 1998 complaint contains allegations regarding two separate visa petitions. First, it contains allegations regarding Dr. Ghaly’s motion to reconsider the 1993 decision of the AAU affirming the denial of the visa petition filed by the University on his behalf. This decision was the subject of Dr. Ghaly’s prior complaint in federal court. Second, the complaint contains allegations relating to a petition that Dr. Ghaly filed on his own behalf in May 1997, which was revoked in February 1998. This petition has not been the subject of litigation in federal court. At the time the complaint was filed, however, Dr. Ghaly had appealed the denial of the petition he filed on his own behalf to the AAU, and the appeal was still pending. The complaint does not request review of the INS decision involving that petition; even if it did, such review would be premature since Dr. Ghaly has not yet exhausted his administrative remedies. Therefore the only visa petition at issue in this case is the petition filed on Dr. Ghaly’s behalf by the University. That petition was the subject of Dr. Ghaly’s motion to reconsider and the subject of his previous lawsuit in federal court.\nDefendants argue that Dr. Ghaly is barred from relitigating this claim because it is the subject of a final judgment by the Seventh Circuit and because the claim has “identity” with his previous litigation for purposes of res judicata. “A claim has ‘identity’ with a previously litigated matter if it emerges from the same ‘core of operative facts’ as that earlier action.” Brzostowski v. Laidlaw Waste Systems, Inc., 49 F.3d 337, 338-39 (7th Cir.1995). This means that both claims “are based on the same, or nearly the same, factual allegations.” Id. at 339\nDr. Ghaly’s 1998 complaint emerges from the same core of operative facts as his prior complaint. Both lawsuits are based on the finding of marriage fraud by the INS, and the subsequent denial of the petition filed by the University based on that finding. Nonetheless Dr. Ghaly argues that his complaint should not be dismissed because it is based on new evidence. The new evidence alleged in the complaint is deposition testimony by his first wife denying that she was paid to marry Dr. Ghaly and alleging misconduct by INS agents. New evidence, however, does not relieve a plaintiff of the effects of claim preclusion.3 Hudson v. T. Hedge, 27 F.3d 274, 276 (7th Cir.1994).\nDr. Ghaly further argues that the claims asserted in his 1998 complaint are not precluded because they are based on a new decision by the INS — the decision not to reconsider the 1993 denial of the petition filed on his behalf by the University. This motion to reconsider was denied, in part, because it was not timely filed. As discussed above, the subject of the motion to reconsider was the marriage fraud bar on the visa petition filed by the University. This was the subject of his previous suit in federal court, and it is the subject of the case at bar. If plaintiffs were allowed to avoid the effects of claim preclusion based *833on untimely motions to reconsider decisions made years before the filing of those motions — and after final decisions were rendered in federal court — the entire purpose of res judicata would be thwarted.4 Therefore defendants’ motion to dismiss the complaint is granted.\n\nConclusion\n\nFor the reasons discussed above, defendants’ motion to dismiss the complaint in accordance with the principles of res judi-cata is granted.\n\n. She also stated that the marriage was arranged by a third person, that she met Dr. Ghaly on the day of the marriage, that prior to the marriage they arranged never to live together or to consummate the marriage, and that she saw him only twice after the marriage for the purpose of filing the Immigration papers on Dr. Ghaly's behalf.\n\n\n. Section 204(c)(2) of the Immigration and Naturalization Act prohibits approval of a visa petition if \"the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c)(2).\n\n\n. Dr. Ghaly's earlier suit depended on a subsequent letter written by Dr. Ghaly’s first wife that contradicted her sworn statement to the INS. It is questionable whether the present evidence is therefore even new.\n\n\n. As it is, for years Dr. Ghaly has successfully obtained the benefits of the visa he desires despite the finding of ineligibility due to fraud. If each decision can be followed by a new complaint based on \"new evidence” the proceedings presumably could last the remainder of Dr. Ghaly's life.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"ghaly-v-reno"} {"attorneys":"W. P. & W. L. Chitwood, and J. L. Andrews, for appellant., Alexander M. Garber, Attorney-General, for the State.","case_name":"Brown v. State","case_name_full":"Brown v. State","case_name_short":"Brown","citation_count":0,"citations":["150 Ala. 25","43 So. 194"],"court_full_name":"Supreme Court of Alabama","court_jurisdiction":"Alabama, AL","court_short_name":"Supreme Court of Alabama","court_type":"S","date_filed":"1907-03-02","date_filed_is_approximate":false,"headnotes":"\nMurder.\n
1. Criminal Law; Appeal; Record; Dranoing Jury — The record shows the presence of the defendant, the production of the jury box, the drawing of thirty-five names, the list of names drawn, the order to the clerk to issue an order directing the sheriff to summons these men, and the orders of the court to the sheriff as to the service of the venire and indictment upon the defendant, and it appears therefrom that the arraignment and trial were' \"during the same week of court. Held, to show a sufficient compliance with section 5004 and 5005, Code 1896.
2. Same; Evidence; Admissibility. — There was no error in excluding the testiomny that old holes were found in the bones of deceased, where he had been shot before.
3. Same; Evidence; fiwrénder to Officer. — In the absence of evidence of flight the defendant cannot show that he surrendered to the sheriff after the killing.
4. Homicide; Dying Declarations; Predicate. — It appearing that on ■. the morning he died decedent said to his brother ttiat he could not get well and soon thereafter called a certain woman to his ■ bedside and asked her to make him a cigarette stating that would be the last one she would ever make him, his dying declaration was properly admitted.
'5. Same; Instructions. — An instruction asserting that dying' declarations are to be considered with' great caution is properly re'fused.
G. Criminal Laic; Evidence; Instructions. — A charge asserting that before defendant c'an be convicted the hypothesis of his guilt should flow naturally from the facts proven and be consistent with all of them is correct and its refusal error.
7. Same Reasonable Doubt; Instructions. — An instruction that before defendant could be convicted the jury must be satisfied to a moral certainty not only that the proof was Consistent with his guilt, but wholly inconsistent with every other rational supposition, and that unless the jury could be so convinced that each member would venture to act on the decision in matters of the highest importance to their own interest, they should acquit, was erroneous and properly refused.
5. Same. — An instruction was properly refused that asserted that a reasonable doubt is that want of repose and confidence which an honest man has in the correctness of a conclusion which he is about to make after giving the question his best thought.
9. Same. — An instruction is properly refused which states that if after subjecting the facts to the test of reason there remained a doubt of guilt, the jury should acquit.
10. Same; Argumentative Charges. — A requested instruction that the statements of the prosecuting attorney read from the Bible were not evidence in the cause was a mere argument and I>roperly refused.
11. Same. — It was proper to refuse an instruction that accused should not be tried according to the Bible but according to the laws of the land as given in the charge of the court, as being argumentative.
","id":7442494,"judges":"Andebson, Denson, Dowdell, Haralson, McClellan","opinions":[{"author_str":"Andebson","ocr":true,"opinion_id":7362577,"opinion_text":"\nANDEBSON, J.\nThe record shows a sufficient compliance with the statute as to setting case, drawing jury, etc. — §§ 5004, 5005 of the Code of 1896.\nThe defendant sustained no injury as to the exclusion of the evidence as to “old holes in the bones of deceased.”\nThe predicate for the dying declarations was sufficient.—Gregory v. State, 140 Ala. 16, 37 South. 259; McQueen v. State, 94 Ala. 50, 10 South. 433.\nIn the absence of any evidence of flight, the fact that defendant surrendered to the sheriff after the killing was not admissible. He could not by his subsequent act make evidence for himself, and the fact that the state proved this fact for him did not warrant him in *30doing so over the state’s objection. Moreover, this fact had been proved by several, state witnesses, was undisputed, and we cannot see Low the defendant was injured by a denial of further proof on the subject.\nCharge 6, requested by the defendant, should have been given. It is the same as a charge approved by this court in cases of Neilson v. State, 40 South. 221, and Gilmore v. State, 99 Ala. 154, 13 South. 536.\nCharge 11, requested by the defendant, was properly refused. It has often been condemned by this court.—Pitts v. State, 140 Ala. 70, 37 South. 101.\nCharge 18, requested by defendant, is a mere argument, and -was properly refused.\nCharge 25, requested by the defendant, was properly refused. It postulates an acquittal upon a mere “doubt,” and not a reasonable doubt.—Shirley v. State, 144 Ala. 35, 40 South. 269.\nCharges 42 and 43, requested by the defendant, were properly refused. They were mere answers to the solicitor’s argument.—Tribble v. State, 145 Ala. 23, 40 South. 938.\nCharges 45 and 46 were properly refused. While dying declarations should be received in evidence with caution, the -weight and sufficiency is a question for the jury, as is the rule as to all evidence nrled admissible by the trial court. Juries should consider and weigh all evidence with caution; but a charge which singles out certain parts of the evidence, and seeks to lay special stress thereupon, and to give undue prominence thereto, is properly refused.\nCharge' 47, requested by defendant, the general charge, was properly refused.\nCharge 48, requested by defendant, the general charge as to the second count of the indictment, had already been given. It is the same as given charge A.\nFor the error above pointed out, the judgment, of the circuit court is reversed, and the cause is remanded.\nReversed and remanded.\nHaralson, Dowdell, Denson, and McClellan, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"brown-v-state","summary":"Appeal from Colbert Circuit Court. Heard before Hon. Joseph H. Nathan. Tlie record showed, after setting out the arraignment by reading the indictment to the defendant and his plea of not guilty thereto, as follows: “It'is ordered by the court, on motion of the solicitor, the defendant, George Brown, being present in person and by attorney, that the trial of this case be set for Wednesday, April 25, 1906. The number of jurors to be drawn was fixed by the court at 35. On the order of the court, the box containing the names of .the jurors of Colbert county, Ala., was brought into the couitroom, and, having the same well, shaken, the presiding judge then and there, in the presence of the defendant, George Brown, publicly diew therefrom 35 names, as follows.” Here follows the list of 3-5 names. Then follows an order by the court to make out the list, and diiecting the clerk to iss'ue an order directing the sheriff .to suinmon these men to constitute the special venire. Then follow the orders of the court in reference to the service of the venire and indictment upon defendant. In the introduction of the testimony, the undertaker, who was shown to have examined the wounds of the dead man, stated that there was a pistol shot which passed through deceased’s right arm into his right side about two inches and then turned downward; that there was some shot in the back of the deceased, but that they were small shots, and hardly went into the skin. The witness stated that he found some old holes in his bones, where deceased had been shot before. On niotion of the solicitor, the court excluded this testimony as to the old holes, and the defendant excepted.. Robert Hook, the broth pi1 of the deceased, testified that, on the morning before his brother died, deceased called him to the bed, and took him by the hand,'and told him he knew he could not get well and that he was going to die. Deceeased called Carrie JDevinney to him also, and asked her to make him a cigarette, and told her that it would be the. last one she Avould ever make for him. Upon this predicate, the. dying declarations of the deceased were.admitted in .evidence over the objection of the defendant. The defendant offered to shoAV that he Avent down and surrendered to. a police officer just after the killing .occurred; but the court, on motion of the state, excluded this evidence. ' ' The defendant requested the following charges, which were refused: “(6) Gentlemen of the jury, before you can convict the defendant, the hypothesis of his guilt should flow naturally from the facts proved and be consistent with all of them.” “(11) Before you can convict the defendant, you must be satisfied to a moral certainty that not only the proof is consistent with the defendant’s guilt, but that it is wholly inconsistent with every other rational supposition, and that, unless the jury is so convinced by the evidence of the defendant’s guilt that you would each venture to act upon that decision in matters of the highest concern and importance to your own interest, you must find the defendant not guilty.” (18) A rasonable doubt is that want of repose arid confidence which an honest man has in the correctness of a conclusion which he is about to make after he has given the question under consideration his best thought.” “(25) If, after subjecting the facts of this case to the test of reason, there is still a doubt of the guilt of defendant, the jury should acquit him.” “(42) The statements of the prosecuting attorney, read from the Bible, are not evidence in this case, or the law in the case.. (43) That you will not try this man according to the Bible, but according to the law of the state of Alabama as it may be given in charge to you by the court.” “(45) I charge you, gentlemen of the jury, that dying declarations are to be considered with great caution. (46) Evidence consisting of oral statements or declarations should be considered by the. jury with great caution.” Charge 47 was the general charge. Charge 48 was the general charge as to the second count. The record does not show an order of the court ordering thirty-five jurors drawn for the trial of the cause. — Bolton v. The State, 40 South. 409; C. of G. Ry. Co. v. Can-roll, 41 South. 517; Allen v. The State, 41 South. 624; Posey v. The State, 73 Ala. 490; Washington v. The State, 81 Ala, 35. \"The court erred in excluding from the jury the statement of defendant that he went up town and surrendered to the officers. — Ray v. The State, 41 South. 519; Gipson v. The State, 91 Ala. 69; Dobson v. The State, 86 Ala. 63. Charge 6 should have been given. — Harrison v. The State, 40 South. 568. Charges 46 and 47 should have been given. — Miller v. Rowan, 108 Ala. 103; Garrett v. Garrett, 29 Ala. 439; Whitlock v. Keiffer, 31 Ala. 199; G-reenleaf on Evidence, § 200. The record entry shows a sufficient compliance with the statute as to the drawing of the jury, and the predicate for the. dying declarations was sufficiently laid. — McQueen r. the State, 94 Ala. 50; Gregory v. The State, 140 Ala. 16. The fact that the defendant surrendered was not proper to be shown. — Corker v. The State, 139 Ala. 56. Charge 6 was properly refused.' — Neillson v. The State, 40 South. 221. So was charge 11. — Pitts v. The State, 140 Ala. 70. A doubt does not authorize an acquittal. — Shirley r. The State, 144 Ala. 35. Charges 42 and 43 were properly refused. — -Tribble v. The State, 4.0 South. 938. Charges 45 and 46 were invasive of the province of the jury. — Ward v. The State, 78 Ala. 441. Under the indictment the defendant might have been convicted whether the hilling was done with a pistol or with a shot gun. — Turner v. The State, 97 Ala. 57; Jones v. The State, 137 Ala. 12."} {"attorneys":"Duchein & Naquin, C. John Naquin, Jr./C.F. Duchein, Baton Rouge, for Johnny Guillory., Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, for Woolf & Magee, Inc., Woodley, Barnett, Williams, Fenet, Palmer & Pitre, Edmund E. Woodley, Lake Charles, for intervenor.","case_name":"Guillory v. Woolf & Magee, Inc.","case_name_full":"Johnny GUILLORY v. WOOLF AND MAGEE, INC.","case_name_short":"Guillory","citation_count":0,"citations":["534 So. 2d 130"],"court_full_name":"Louisiana Court of Appeal","court_jurisdiction":"Louisiana, LA","court_short_name":"Louisiana Court of Appeal","court_type":"SA","date_filed":"1988-11-09","date_filed_is_approximate":false,"id":7637641,"judges":"Domengeaux, Knoll, Laborde","opinions":[{"author_str":"Laborde","ocr":true,"opinion_id":7570211,"opinion_text":"\nLABORDE, Judge.\nPlaintiff, Johnny Guillory, filed suit against defendant, Woolf & Magee, Inc. (Woolf & Magee) seeking damages for a back injury he suffered when he slipped and fell on an oil rig owned by Woolf & Magee. A trial on the merits was held and the trial court found that defendant was not negligent and that plaintiff’s injuries were caused solely by his own fault. Plaintiff now appeals claiming that Woolf and Magee’s negligence caused his injuries.\nAfter reviewing the trial record and appellate briefs, we find no error in law or manifest error in fact. The trial court wrote a thorough “Memorandum Opinion.” We affirm the judgment below for the reasons assigned by the trial court and annex those reasons hereto. Costs of this appeal are taxed to plaintiff.\nAFFIRMED.\nAPPENDIX\nJohnny Guillory\nVersus\nWoolf and Magee, Inc.\n36th Judicial District Court\nState of Louisiana\nParish of Beauregard\nNo. C-83-21\nMEMORANDUM OPINION\nPlaintiff Johnny Guillory is suing for damages for personal injuries allegedly resulting from an accident that he sustained on or about January 12, 1982, while employed by Schlumberger Well Service in a *131wireline crew working at a drilling rig owned by defendant Woolf and Magee, Inc. and located in the Longville area of Beauregard Parish. Mr. Guillory was descending some metal stairs which led from the floor of the rig to the ground and he slipped and fell, thereby injuring his back. In his petition Mr. Guillory alleged that “... he slipped and fell on an icy step on the stairway which had been bent prior to this occasion by falling pipe and other objects.” He further alleged that the accident was caused solely and proximately by the negligence of defendant in failing to properly maintain the rig; in failing to properly warn persons invited to work on the rig; and in failing to construct the steps out of non-skid materials.\nDefendant denies any fault on its part and contends that the accident was caused solely and proximately by the negligence of Mr. Guillory in failing to maintain a proper lookout; in failing to take steps necessary to protect himself; and in failing to see what he should have seen and to do what he should have done under the circumstances. Alternatively, defendant alleges that plaintiff was guilty of contributory negligence.\nThe case was tried on January 27, 1987, slightly more than five years after the accident and the memories and recollections of those who testified about the incident and the facts and circumstances surrounding it were rather hazy and dimmed by the passage of time. While there really is no doubt that Mr. Guillory fell and was seen on the ground at the foot of the stairs, there is substantial conflict as to exactly when the accident occurred. Plaintiff testified at the trial that it happened at the break of day or just before daylight, and in a deposition given on April 21, 1983, he indicated it was even earlier. Two co-workers, Martin Fournier and R.A. Goodson, said the accident occurred later in the morning, well after daylight. In fact, Mr. Goodson said it was mid-morning, around 10:00 A.M., when plaintiff fell.\nAlso, there is some confusion as to whether the accident happened on January 12 or 13 and plaintiff and other witnesses seemed unsure as to when the Schlumber-ger wireline crew first arrived at the location. The Court has no reason to believe the witnesses were not trying to tell the truth as they remembered it, but the conflicting testimony and confusion is mentioned to indicate that their memories were substantially impaired because of the long period of time that had elapsed.\nAlthough the exact time when the accident occurred is not clear from the evidence, it is more probable than not that Mr. Guillory fell in the early morning hours at or slightly before daybreak, and not long after a sudden ice storm hit the area and caused ice to form on the rig and the stairs. All witnesses agree that some ice accumulated during the late night or early morning hours.\nThe ice formation was sudden and unexpected. There is no evidence that an ice storm had been forecast for that night, that any warnings had been issued, or that there was any other reason for those at the rig to believe that such conditions might develop. From all accounts given at the trial, the ice storm was one of those sudden, unexpected and, for southwest Louisiana, unusual weather developments.\nPlaintiff and his fellow employees at the rig were fully aware of the icy conditions prior to the accident. Mr. Goodson, who was in charge of the wireline crew, said that the sudden ice storm was such an unusual incident that the crew talked about it and even had a short safety meeting before proceeding further. However, they all agreed that the stairs could be used with the exercise of due care and caution.\nMr. Guillory testified he had gone up and down the stairs at least three or four times after the ice formed on them. He said he held the handrails tightly and took one step at a time and had no difficulty. Just prior to his fall plaintiff had gone up the stairs again to the doghouse to get a cup of coffee. At that time, according to Mr. Goodson, the wireline crew was on “hold” for some reason and the purpose of Mr. Guillory’s trip to the doghouse was to obtain a cup of coffee. The Court does not *132believe that plaintiff made the trip to the rig floor at that time to perform any duties.\nMr. Guillory said he slipped and fell when he started down the stairs with a cup of coffee in his left hand. He said his foot slipped and he slid to the bottom of the stairs, landing on his buttocks.\nOn the evidence presented the Court finds that Mr. Guillory has failed to prove that the accident was caused by the fault or negligence of the defendant. There is no liability under Article 2317 of the Civil Code because the metal stairs did not have a vice or defect that caused plaintiff to fall. There was nothing about the stairs, their design, manufacture, construction, or inherent conditions, that created an unreasonable risk of harm to plaintiff. The stairs were sturdy and stable with proper and adequate handrails on both sides.\nIce on the stairs did not constitute a vice or defect. Numerous cases have held that the temporary presence of a foreign object or substance on a “thing” is not a defect for purposes of strict liability under Article 2817. See Mitchell vs. Travelers Insurance Company, 464 So.2d 404 (La.App. 1st Cir.1985) and cases cited therein.\nAdditionally, there can be no strict liability under Article 2322 of the Civil Code because the stairs were not in a state of ruin caused by a vice in construction or a neglect to repair.\nThe main thrust of plaintiffs case is that defendant failed to furnish him a reasonably safe place to work and was negligent in failing to remedy the hazard created by the icy conditions on the stairs. Plaintiff contends that defendant was negligent for failing to either promptly remove ice from the stairs or to put ashes, sand, salt or some appropriate substance on it.\nAn employer has an obligation to provide his employees with a working place and conditions which are reasonably safe considering the nature of the work. He must discover reasonably foreseeable conditions which may be dangerous, especially where there is time to correct the perilous condition or give warning to the employee of the danger. However, an owner/employer is not an insurer of the safety of those on his premises. Where strict liability is not applicable, an owner/employer is not liable in the absence of negligence.\nIn this case, on the evidence presented, and after considering all the relevant facts and circumstances, including societal concerns, this Court cannot conclude that defendant violated its duty to have reasonably safe premises or to furnish plaintiff a reasonably safe place to work. Defendant did not fail to do what a reasonable person (owner/employer) would have done under the same or similar circumstances.\nFormation of ice on the rig and stairs occurred late at night and was sudden and unexpected. Obviously defendant was not able to prevent that from happening and the fact that it did happen was at least as apparent to plaintiff and his fellow workers as it was to representatives of the defendant.\nAs stated above, the Court finds that the accident happened not later than daybreak. The ice had been on the stairs for only a few hours at most, but plaintiff was fully aware of its presence and actually used the steps several times after the ice formed. Thus, defendant did not need to warn plaintiff of the presence of ice on the stairs because he already knew about it. Even with ice on the stairs, it is doubtful that they were unreasonably dangerous to a person who was fully aware of the situation and appreciated any danger posed by it.\nNo evidence was presented that it. is usual and customary that ashes, sand or salt are kept at or around drilling rigs in southwest Louisiana during winter months for use in dealing with icy conditions. Such conditions in this area occur very infrequently and none of the witnesses who had worked on or around drilling rigs had ever seen ashes, sand or salt utilized to deal with icy conditions at a rig.\nThe Court finds that Mr. Guillory’s accident and injuries were due solely to his failure to exercise due care for his own safety. He was fully aware of the condition of the stairs; he was not required to use the stairs when the accident occurred; *133and the danger of descending the stairs with a cup of coffee in his hand was or should have been apparent to him. In short, he failed to act as a reasonable man in providing for his own safety and that failure caused his injury.\nFor the foregoing reasons, the plaintiffs demands will be rejected at his cost.\nAn appropriate decree, approved as to form by both counsel, should be submitted to the Court for signature not later than May 22, 1987.\nDeRidder, Louisiana this 4 day of May, 1987.\n(s) L.H. Coltharp, Jr.\nDISTRICT JUDGE\n","per_curiam":false,"type":"020lead"}],"other_dates":"Writ Denied Jan. 20, 1989.","precedential_status":"Published","slug":"guillory-v-woolf-magee-inc"} {"case_name":"Gulf States Land & Development, Inc. v. Philips","case_name_full":"GULF STATES LAND AND DEVELOPMENT, INC. v. Harry Joseph PHILIPS, Jr. Gulf States Land and Development, Inc. v. John Blackman","case_name_short":"Philips","citation_count":0,"citations":["786 So. 2d 738"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"2001-03-09","date_filed_is_approximate":false,"id":7800575,"judges":"Victory","opinions":[{"ocr":true,"opinion_id":7741028,"opinion_text":"\nIn re Travelers Casualty Company;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. I, Nos. GO-1218, 00-2696; to the Court of Appeal, Second Circuit, Nos. 34612-CW, 34613-CW.\nDenied.\nVICTORY, J., recused.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"gulf-states-land-development-inc-v-philips"} {"attorneys":"If. B. Johnson, Attorney-General, and J. P. Colcord, for respondent., Patrick & Drummond, for appellant.","case_name":"State v. White","case_name_full":"State of Missouri v. David C. White","case_name_short":"White","citation_count":0,"citations":["45 Mo. 512"],"court_full_name":"Supreme Court of Missouri","court_jurisdiction":"Missouri, MO","court_short_name":"Supreme Court of Missouri","court_type":"S","date_filed":"1870-03-15","date_filed_is_approximate":true,"headnotes":"1. Husband and wife — Action charging husband with refusal to maintain wife, etc. — In an information by the wife charging her husband with abandoning her without good cause, and refusing to maintain and provide for her, the question put to a witness, whether defendant had not rented of him a house which plaintiff refused to occupy, was proper, and should have been allowed.
","id":8046234,"judges":"Bliss, Other","opinions":[{"author_str":"Bliss","ocr":true,"opinion_id":8002836,"opinion_text":"\nBliss, Judge,\ndelivered the opinion of the court.\nDefendant’s wife, by information in said court, charged him with abandoning her without good cause, and refusing' to maintain and provide for her. The case was tried by the court, and in the progress of the trial the prosecutrix testified that defendant had left her for about five weeks, and during that time she had received nothing from him for her support. Upon cross-examination, she testified that he had not rented a house for her of Mr. Ferrington, which she refused to occupy. After the State had closed, the defendant, among other evidence, offered Mr. Ferrington as a witness, and asked him if he (defendant), during the last five weeks, had not rented of him a house which his wife refused to occupy. The attorney for the State objected to the question, and the objection was sustained. The record fails to show any reason for the objection or for the action of the court. The question clearly went to the merits of the issue. If defendant furnished his wife with a suitable residence, he had so far contributed to her support; and if she refused to occupy it, it certainly was not his fault. He had a right to contradict her testimony, as well as to prove affirmatively all his acts in the *513direction of bis duty in tbe premises, and the court erred in not permitting him to do so. Certain other questions were raised which have been decided in The State v. Larger, ante, p. 510.\nJudgment reversed and cause remanded.\nThe other judges concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-white"} {"attorneys":"For the appellant, Norman L. Rowe and Randolph Verkins., For the appellee, Benjamin J. Darling and Charles E. S. Simpson.","case_name":"Marten v. Brown","case_name_full":"RUDOLPH MARTEN, AND v. THOMAS H. BROWN, AND","case_name_short":"Marten","citation_count":0,"citations":["80 N.J.L. 143"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1910-07-20","date_filed_is_approximate":false,"headnotes":"1. The doing or undertaking of anything beyond what one is already , bound to do, though of the same kind and in the same transaction, is a good consideration for a promise to pay therefor.
2. The Supreme Court will not review decisions of the District Court upon questions of fact. It will only look to see if there is any legal evidence upon which the judgment may rest.
","id":8103104,"judges":"Trenchard","opinions":[{"author_str":"Trenchard","ocr":true,"opinion_id":8063674,"opinion_text":"\nThe opinion of the court was delivered by\nTrenchard, J.\nThis is an appeal from a judgment of the Second District Court of Jersey City in favor of the plaintiff in a suit for the balance of the contract price of. carpenter work.\nThe evidence at the trial tended to show the facts following: The defendant, as owner, was engaged in the construction of some houses in Jersey City. He let contracts to various materialmen and laborers. Among others, he let a con*144tract for the carpenter work to the plaintiff and a contract for the mason work to another contractor. The specifications under which the contracts were awarded provided that the work was to be done in good and workmanlike manner. Upon that basis the plaintiff proposed to do the carpenter work for $2,100 and was awarded the contract. During the progress of the work, and after about fifteen hundred dollars had been paid plaintiff on account thereof, the plaintiff found that the walls and partitions built by the mason were not erected in a workmanlike manner, but were “irregular and crooked,” and because of such defective mason work the cost of the plaintiff’s carpenter work would be far greater than contemplated on the basis that the mason’s work was to be properly done. In this situation the plaintiff refused to finish the work unless promised extra compensation. The result was that the defendant, a lawyer by profession, wrote and signed the following paper writing: “Whereas, Rudolph Marten has refused to complete his carpenter labor contract at Nos. 64, 66, 68 Tuers avenue, on the ground that said walls and partitions are irregular and crooked, and that to perform said work and complete said work on account of the above defects, will cost $350 above the contract price, I herewith, in consideration of his performing said work at once and not sub-contracting the same, I herewith agree to pay the said sum of $350 extra.\n(Signed) Thomas H. Brown.”\nAccordingly, the plaintiff completed the carpenter work, and the defendant paid all of the original contract price-and $25 on account of the extra compensation, but refused to pay the remainder. Thereupon this suit was brought to recover the sum of $325, the balance alleged to be due.\nThe trial judge, sitting without a jury, rendered judgment for the plaintiff for $325.\nThe defendant first argues that the motion to find for the defendant should have been granted because there was no evidence of a consideration for the agreement to pay the extra compensation.\nWe think there is no merit in the contention.\n*145Of course, the rule is that doing or promising to do what one is already legally bound to do, is no consideration. Hasbrouck v. Winkler, 19 Vroom 431; Watts v. Frenche, 4 C. E. Gr. 407.\nBut that rule has no application to this ease. The rule is grounded upon the reason that the promisor gets no more in return for his promise than the promisee was already bound to give, and therefore receives no consideration. Conover v. Stillwell, 5 Vroom 54.\nBut the doing o1' undertaking of anything beyond what one is already bound to do, though of the same kind and in the same transaction, is a good consideration. Poll. Cont. 177; 9 Cyc. 352, and cases there cited.\nIn the case at bar it was open to the trial judge to find from the evidence that plaintiff: was not bound by his original contract or otherwise to do the extra work rendered necessary by the “irregular and crooked” walls and partitions. The extra work required was a benefit to the defendant and a detriment to the plaintiff, and hence was a consideration for the promise to pay therefor. Conover v. Stillwell, supra; Hasbrouck v. Winkler, supra.\nThe defendant now contends that there was no evidence that the walls and partitions were to he erected in a workmanlike manner. It is a sufficient answer thereto to say that counsel who tried the case in the court below then expressly admitted that the specifications provided that the work was to he performed in a workmanlike manner.\nThere being evidence upon which the judgment may rest, this court will not review the decision upon questions of fact. Aschenberg v. Mundy, 47 Vroom 352.\nThe principle last stated is also fatal to the next reason assigned for reversal, which is that the “said contract was procured through fraud and misrepresentation and is therefore null and void.”\nWe have examined the other reasons but find none justifying reversal.\nThe judgment of the court below will be affirmed.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued February 15, 1910","precedential_status":"Published","slug":"marten-v-brown","summary":"On appeal from the Second District Court of Jersey City."} {"case_name":"BDO USA, LLP v. Jia-Sobota & A2Z Assoc., Inc. D/B/A Everglade Consulting","citation_count":0,"court_full_name":"District of Columbia Court of Appeals","court_jurisdiction":"District of Columbia, DC","court_short_name":"District of Columbia Court of Appeals","court_type":"S","date_filed":"2022-10-06","date_filed_is_approximate":false,"id":8246869,"opinions":[{"download_url":"https://www.dccourts.gov/sites/default/files/2022-10/BDO%20v.%20Jia-Sobota%2020-CV-536.pdf","ocr":false,"opinion_id":8212132,"opinion_text":"Notice: This opinion is subject to formal revision before publication in the\nAtlantic and Maryland Reporters. Users are requested to notify the Clerk of the\nCourt of any formal errors so that corrections may be made before the bound\nvolumes go to press.\n\n DISTRICT OF COLUMBIA COURT OF APPEALS\n\n Nos. 20-CV-536 & 20-CV-696\n\n BDO USA, LLP, et al., APPELLANTS,\n\n V.\n\n ERIC JIA-SOBOTA &\n A2Z ASSOCIATES, INC. D/B/A EVERGLADE CONSULTING, APPELLEES.\n\n Appeal from the Superior Court\n of the District of Columbia\n (2020 CAB 2600)\n\n (Hon. Heidi M. Pasichow, Trial Judge)\n\n(Argued Jan. 27, 2022 Decided October 6, 2022)\n\n Michael B. Kimberly, with whom James M. Commons and Julie H. McConnell\nwere on the brief, for appellant.\n\n Brian Walsh, with whom Ari Micha Wilkenfeld, Todd A. Bromberg, Krystal\nB. Swendsboe, and Hyok Chang were on the brief, for appellee.\n\n Before BLACKBURNE-RIGSBY, Chief Judge, DEAHL, Associate Judge, and\nSTEADMAN, Senior Judge.\n\n Opinion of the court by Associate Judge DEAHL.\n\n Concurring opinion by Associate Judge DEAHL at page 25.\n\f 2\n\n DEAHL, Associate Judge: Eric Jia-Sobota was a partner at BDO USA, LLP,\n\nan accounting firm. He resigned from the partnership to launch a competing firm,\n\nand BDO invoked its right to arbitrate various disputes attendant to his departure,\n\nmostly involving Jia-Sobota’s attempts to bring BDO clients and personnel to his\n\nnew firm. Around the same time, BDO—pointing to a provision in its arbitration\n\nagreement with Jia-Sobota that allowed either party to “seek provisional remedies”\n\nin court—filed a complaint in Superior Court seeking to enjoin Jia-Sobota from\n\ndoing business with or soliciting BDO’s clients, or otherwise using its proprietary\n\ninformation, while the arbitration proceedings were pending.\n\n\n\n When BDO then moved to compel arbitration, the trial court denied the\n\nmotion, ruling that BDO had implicitly waived its right to enforce the arbitration\n\nclause through its litigation tactics. BDO now challenges that ruling in this appeal.\n\nBecause it is uncontested that the arbitration agreement between BDO and Jia-\n\nSobota allowed either party to pursue an injunction without waiving its arbitration\n\nrights, and because Jia-Sobota has not shown that BDO took any action inconsistent\n\nwith its intent to arbitrate its underlying claims, we agree with BDO that it did not\n\nwaive its right to arbitrate, contrary to the trial court’s ruling. See generally TRG\n\nCustomer Sols., Inc. v. Smith, 226 A.3d 751 (D.C. 2020).\n\f 3\n\n Jia-Sobota argues that we should nonetheless affirm on the alternative ground\n\nthat the arbitration clause is unenforceable because it contemplates an arbitration\n\npanel composed entirely of BDO’s own partners. In Jia-Sobota’s view, permitting\n\nBDO’s partners to effectively sit in judgment of their own case would be both\n\nunconscionable and against public policy, given their patent self-interest. The trial\n\ncourt did not reach the question of enforceability, however, and we decline to resolve\n\nit without the benefit of the trial court’s input. We therefore vacate the trial court’s\n\norder concluding that BDO waived its right to arbitrate and remand for consideration\n\nof Jia-Sobota’s challenges to the enforceability of the arbitration agreement.\n\n\n\n I.\n\n\n\n Eric Jia-Sobota was a partner at BDO for eight years. When he entered the\n\npartnership in 2012, he signed a partnership agreement providing that, in the event\n\nhe left the partnership, he would be precluded from soliciting BDO clients and luring\n\naway BDO employees for two years. The agreement also included an arbitration\n\nclause. That clause states that “[a]ny controversy or dispute relating to this\n\nAgreement or the Partnership and its affairs or otherwise arising between a Partner\n\nand the Partnership . . . shall be considered and decided by an arbitration panel\n\nconsisting of two (2) members of [BDO’s] Board of Directors,” and three BDO\n\f 4\n\npartners who did not sit on the board. An earlier provision in the agreement that is\n\nrelevant in this dispute states that “[t]he term ‘Partner’ herein includes ‘former\n\nPartner.’” Notwithstanding the arbitration clause, the agreement also expressly\n\npermitted either party to “seek provisional remedies from a court.”\n\n\n\n Jia-Sobota submitted notice of his intent to withdraw from the partnership in\n\nApril of 2020, at which point he was serving as head of BDO’s Industry Specialty\n\nServices Group. BDO responded by cutting Jia-Sobota off from access to his\n\ncompany email, partnership resources, and his colleagues. Jia-Sobota started a new\n\nfirm called EverGlade Consulting the following month. According to BDO,\n\nEverglade’s launch was the culmination of a “months-long scheme” through which\n\nJia-Sobota planned to lure BDO clients and employees to his new firm, effectively\n\nstealing the Industry Specialty Services Group practice from BDO. Jia-Sobota’s\n\nmaneuvering violated his fiduciary duty to the partnership, as well as the anti-\n\npoaching and non-compete provisions in the partnership agreement, in BDO’s view.\n\n\n\n In the months that followed, BDO pursued these claims via a two-track\n\nlitigation strategy. First, on May 26, BDO filed a “Complaint for Injunctive Relief\n\nin Aid of Arbitration” in Superior Court, naming both Jia-Sobota and EverGlade as\n\ndefendants. In the first paragraph of its complaint, BDO stated that it was seeking\n\f 5\n\n“a temporary restraining order and a preliminary injunction in aid of arbitration, as\n\nexpressly authorized by the partnership agreement.” 1 BDO asked the court to enjoin\n\nJia-Sobota and Everglade “from utilizing any and all BDO trade secrets and\n\nconfidential or proprietary information, doing business with or soliciting business\n\nfrom BDO clients or prospective clients, or offering employment to any current\n\nemployee of BDO during the pendency of arbitral proceedings.”\n\n\n\n While seeking this injunction from the trial court, BDO simultaneously took\n\nsteps to initiate arbitration of its underlying claims against Jia-Sobota. On June 5,\n\nten days after filing its complaint in Superior Court, BDO filed its “demand for\n\narbitration,” summarizing its claims against Jia-Sobota and triggering the arbitration\n\nprocess. Soon thereafter, BDO wrote to Jia-Sobota requesting his input in selecting\n\nthe members of the arbitration panel, though Jia-Sobota demurred.\n\n\n\n Meanwhile, in court, BDO sought and was granted expedited discovery in\n\nsupport of its requests for injunctive relief. BDO was aggressive with its discovery\n\n\n\n\n 1\n A temporary restraining order is often a precursor to a preliminary\ninjunction. It is a more immediate and typically briefer form of injunctive relief,\noften used to preserve the status quo while the parties litigate the propriety of a more\nextended injunction. See generally D.C. Sup. Ct. Civ. R. 65(a)-(b) (describing the\ntwo, with temporary restraining orders expiring after fourteen days unless extended).\n\f 6\n\nrequests, demanding a wide assortment of information and documents from Jia-\n\nSobota, EverGlade, and a number of third parties, spanning the entire eight years of\n\nJia-Sobota’s partnership. BDO also sought to take at least eight depositions of\n\nparties and non-parties alike. On June 11, Jia-Sobota filed an answer to BDO’s\n\ncomplaint, which included several affirmative defenses to BDO’s claims as well as\n\nsix counterclaims against BDO, its CEO, and its affiliates. Two of those\n\ncounterclaims are relevant here. First, Jia-Sobota claimed that, during his\n\nemployment, BDO had made material misrepresentations in violation of the False\n\nClaims Act. See 31 U.S.C. §§ 3729 to 3731. Second, Jia-Sobota sought a\n\ndeclaratory judgment that the arbitration clause in his partnership agreement with\n\nBDO was unconscionable and therefore unenforceable against him. Jia-Sobota\n\nfollowed his answer with discovery requests of his own.\n\n\n\n On June 17—six days after Jia-Sobota filed his answer and counterclaims but\n\nbefore BDO responded—the trial court denied BDO’s motion for a temporary\n\nrestraining order. The court’s denial of BDO’s TRO request expressed some\n\nskepticism about the merits of BDO’s case. Twelve days later, on June 29, BDO\n\nmoved (1) to compel arbitration on four of Jia-Sobota’s counterclaims and (2) to\n\ndismiss with prejudice Jia-Sobota’s purportedly non-arbitrable counterclaims under\n\f 7\n\nthe False Claims Act and for declaratory judgment. 2 Two days after that, Jia-Sobota\n\nmoved to stay all arbitration. He made two arguments in support of his motion: (1)\n\nthat BDO had waived its arbitration rights by litigating in a manner inconsistent with\n\nan intention to arbitrate, and (2) that, in any event, the arbitration clause was\n\nunenforceable by BDO because it was both unconscionable and against public\n\npolicy. The parties then agreed to postpone a then-imminent preliminary injunction\n\nhearing until September.\n\n\n\n On September 2, before the preliminary injunction hearing, the trial court\n\ndenied BDO’s motion to compel arbitration of Jia-Sobota’s counterclaims. The\n\ncourt found that BDO had waived its right to compel arbitration by “engag[ing] in\n\nconduct inconsistent with the arbitration right.” More specifically, the court faulted\n\nBDO for (1) seeking a ruling on the merits regarding two of Jia-Sobota’s\n\ncounterclaims, (2) waiting until after the court had denied the TRO to move to\n\ncompel arbitration, and (3) “engag[ing] in substantial amounts of discovery.” The\n\ncourt did not reach Jia-Sobota’s argument that the arbitration clause was\n\n\n\n 2\n In its motion to dismiss, BDO argued Jia-Sobota’s counterclaim under the\nFalse Claims Act was non-arbitrable as a matter of law because an action under that\nstatute must be brought in the name of the United States, which has a right to\nintervene and may not be bound by private parties’ arbitration agreements. See 31\nU.S.C. §§ 3730(b)(1)-(2).\n\f 8\n\nunconscionable, having found that BDO had waived its right to arbitrate regardless.\n\nIn a move that appears to have caused some confusion among the parties, the court\n\nalso denied Jia-Sobota’s motion to stay arbitration, explaining that the parties\n\nremained free to pursue arbitration if they mutually wished to do so: “In sum, if the\n\nparties wish to arbitrate, they may. If, conversely, any party chooses not to engage\n\nin arbitration, the Court will not compel” that party to do so. BDO appealed.\n\n\n\n The following month, with its first appeal pending, BDO took steps to proceed\n\nwith the arbitration of its original claims against Jia-Sobota. BDO wrote to the\n\narbitration administrator to request a panel be formed without input from Jia-Sobota\n\nbecause of his recalcitrance in the arbitration process. Jia-Sobota responded by\n\nasking the trial court to order BDO to show cause why it should not be held in\n\ncontempt for violating the court’s September 2 order. BDO opposed that motion,\n\narguing that the trial court’s September 2 order had dealt solely with BDO’s\n\nauthority to compel arbitration of Jia-Sobota’s counterclaims, and in no way\n\ninhibited BDO’s right to arbitrate its own claims.\n\n\n\n The court disagreed. In a November 9 order, it characterized its prior\n\nSeptember 2 order as barring arbitration of not only Jia-Sobota’s counterclaims, but\n\nof BDO’s original claims as well. Accordingly, the trial court found that “a request\n\f 9\n\nfrom [BDO] . . . to proceed forward by selecting an arbitration panel based upon the\n\nvery arbitration clause that this Court found [BDO] waived enforcement of is in\n\ndirect contradiction with this Court’s findings,” and ordered BDO to show cause\n\nwhy it should not be held in contempt. BDO appealed that order as well, and we\n\nconsolidated its two appeals.\n\n\n\n II.\n\n\n\n We begin by dismissing BDO’s appeal from the November 9 order to show\n\ncause why it should not be held in contempt (No. 20-CV-696). We lack jurisdiction\n\nto entertain that appeal because the order to show cause is not a final order, see D.C.\n\nCode § 11-721(a)(1); RFB Props. II, LLC v. Deutsche Bank Tr. Co. Ams., 247 A.3d\n\n689, 694 (D.C. 2021) (citing Rolinski v. Lewis, 828 A.2d 739, 746 (D.C. 2003) (en\n\nbanc)), nor is it appealable under any exception to the general rule that only final\n\norders are appealable. See D.C. Code §§ 11-721(a)(2) and (3). This dismissal is\n\nultimately of little consequence, however, because BDO’s principal challenge to the\n\nNovember 9 order is that the trial court erred in concluding that BDO waived its\n\narbitration rights, which is the same attack it directs at the September 2 order.\n\f 10\n\n III.\n\n\n\n We now turn to the question of whether BDO waived its right to arbitrate.\n\n“District of Columbia and federal law broadly protect the right of a party to contract\n\nfor the use of arbitration” in lieu of judicial proceedings. TRG, 226 A.3d at 755.3\n\nAn arbitration agreement is “a creature of contract,” and the parties should generally\n\n“be held to the terms to which they have agreed.” Hercules & Co. v. Shama Rest.\n\nCorp., 613 A.2d 916, 923 (D.C. 1992). “However, like any contract right, the right\n\nto arbitrate may be waived—either expressly or by implication.” TRG, 226 A.3d at\n\n755 (citing Hercules & Co. v. Beltway Carpet Serv. Inc., 592 A.2d 1069, 1073 (D.C.\n\n1991)). In evaluating whether a party has implicitly waived its right to enforce an\n\narbitration clause, “the essential question is whether, under the totality of the\n\n\n 3\n The trial court applied the District’s law when assessing whether BDO\nwaived its right to arbitrate. BDO did not object at the time. Now, for the first time\non appeal, BDO argues that New York law should apply to the question of waiver,\nciting a provision in the partnership agreement providing that New York law applies\nto “the validity, construction, administration and effect of the” arbitration clause.\nWe reject that argument for two reasons. First, it is not clear that the question of\nwaiver concerns “the validity, construction, administration [or] effect” of the\narbitration clause. Second, and more importantly, BDO has waived the argument\nthat New York law applies to the question of waiver (as opposed to enforceability)\nbecause BDO never made that argument in trial court. See Williams v. Gerstenfeld,\n514 A.2d 1172, 1177 (D.C. 1986) (“As a general rule, matters not properly presented\nto a trial court will not be resolved on appeal.”). We therefore apply the District’s\nlaw, as the trial court did.\n\f 11\n\ncircumstances, [that] party has acted inconsistently with the arbitration right” as\n\ndefined by the terms of agreement. Id. (citation omitted); see also SJ Enters., LLC\n\nv. Quander, 207 A.3d 1179, 1184 (D.C. 2019) (“[W]aiver [of a contractual right] . . .\n\nmay be inferred from conduct inconsistent with an intent to enforce that right.”\n\n(citation omitted)). 4 Whether a party has implicitly waived its right to arbitrate is a\n\nquestion of law that we consider de novo. Hercules, 592 A.2d at 1073.\n\n\n\n The question of waiver is a fact-intensive inquiry. See Hossain v. JMU\n\nProps., LLC, 147 A.3d 816, 822 (D.C. 2016). Because the parties’ rights and\n\nobligations are defined by contract, it is not enough for us to examine their actions\n\nin a vacuum; we must consider the potential conflict between the parties’ actions and\n\nthe arbitration right as defined by the agreement at issue. An action that constitutes\n\nwaiver in one case might be perfectly compatible with arbitration in another.\n\nBearing that in mind, our caselaw suggests the following, non-exhaustive list of\n\n\n 4\n In TRG, we also said that arbitration holds a “favored status,” so that we\n“must resolve any ambiguity regarding the scope of a waiver in favor of arbitration.”\n226 A.3d at 756 (citations omitted). We do not rely on that principle here, but note\nthat its continuing vitality is subject to doubt after the Supreme Court decided\nMorgan v. Sundance, Inc., 142 S. Ct. 1708 (2022). Morgan held, with regard to\nfederal law, that “a court may not devise novel rules to favor arbitration over\nlitigation.” Id. at 1713. “The federal policy is about treating arbitration contracts\nlike all others, not about fostering arbitration.” Id. Because we conclude that BDO\ndid not waive its right to arbitrate, we have no cause to consider what (if any) effect\nMorgan has on the ongoing validity of the presumption we articulated in TRG.\n\f 12\n\n“parameters” or “themes,” TRG, 226 A.3d at 757, that counsel in favor of finding\n\nwaiver:\n\n\n • An “unexplained delay . . . [that] cannot be squared with an intent to\n arbitrate” according to the terms of the agreement. Id. at 758 (defendant\n did not communicate desire to arbitrate until five months after initiation of\n judicial proceedings); see also Cornell & Co. v. Barber & Ross Co., 360\n F.2d 512, 513 (D.C. Cir. 1966) (four months);\n\n • Motions practice that “invokes the authority of the trial judge to alter the\n course of the case,” TRG, 226 A.3d at 759, or uses arbitration as a “strategy\n to manipulate the legal process” and get a “‘second bite’ at a favorable\n outcome,” id. at 758 (quoting Nat’l Found. for Cancer Rsch. v. A.G.\n Edwards & Sons, Inc., 821 F.2d 772, 776 (D.C. Cir. 1987)) (defendant\n filed two dismissal motions, entered into a “scheduling order\n contemplating a lengthy discovery period,” and moved to dismiss for\n forum non conveniens before moving to compel arbitration, id. at 759); see\n also, e.g., Khan v. Parsons Glob. Servs., Ltd., 521 F.3d 421, 427 (D.C. Cir.\n 2008) (defendant moved for summary judgment of an arbitrable claim);\n\n • The “conscious decision to exploit the benefits of pretrial discovery . . .\n with relation to [] arbitrable claims,” where such discovery is “fully\n available . . . only in the judicial forum.” TRG, 226 A.3d at 758 (quoting\n Nat’l Found., 821 F.2d at 776); see also Nat’l Found., 821 F.2d at 773\n (parties engaged in two years’ worth of discovery before invoking the\n arbitration right);\n\n • And, perhaps, prejudice to the party opposing arbitration. Hossain, 147\n A.3d at 823 (clarifying that, “prejudice, [] although not necessary, is a\n factor that can be taken into account”); but see Morgan v. Sundance, Inc.,\n 142 S. Ct. 1708, 1712-13 (2022). 5\n\n 5\n In Morgan, the Supreme Court recently suggested that, at least with regard\nto federal law, any inquiry into prejudice may be improper. 142 S. Ct. at 1713\n(“Outside the arbitration context, a federal court assessing waiver . . . focuses on the\nactions of the person who held the right; the court seldom considers the effects of\n\f 13\n\n Taking the above considerations as they apply to the partnership agreement\n\nbetween BDO and Jia-Sobota, we conclude that BDO did not implicitly waive its\n\narbitration right. BDO was fully within its contractual rights to pursue a “two-track”\n\nlitigation strategy, simultaneously seeking injunctive relief and pursuing arbitration\n\nof its underlying claims against Jia-Sobota. As it did so, BDO clearly and\n\nconsistently stated its intention to arbitrate, and never acted inconsistently with that\n\nexpress intention.\n\n\n\n A. Unexplained Delay\n\n\n\n The trial court relied heavily on the fact that BDO did not move to compel\n\narbitration until after the court denied BDO’s request for a TRO and expressed some\n\nskepticism as to the merits of BDO’s claims. In the court’s view, that demonstrated\n\nthe kind of “gamesmanship and manipulation” of the litigation process that should\n\nbe discouraged. TRG, 226 A.3d at 760. We disagree. Recall that BDO demanded\n\narbitration of its own claims on June 5, just ten days after filing its complaint in\n\nSuperior Court and well before the court had ruled on (and before Jia-Sobota even\n\n\n\nthose actions on the opposing party. That analysis applies to the waiver of a\ncontractual right, as of any other.”). We nonetheless consider prejudice below, and\nneed not grapple with the extent to which Morgan calls into doubt our precedents\nplacing stock in it, because there is no meaningful prejudice here in any event.\n\f 14\n\nresponded to) BDO’s TRO request. While it is true that BDO did not move to\n\ncompel arbitration of Jia-Sobota’s counterclaims until after the court had denied its\n\nTRO request, BDO had only the most fleeting opportunity to do so. Jia-Sobota filed\n\nhis answer and counterclaims on June 11. The court denied BDO’s TRO request\n\nonly six days later, on June 17. And it was only twelve days after that, on June 29,\n\nwhen BDO moved to compel arbitration of (most of) those counterclaims in a\n\nsubstantive filing that undoubtedly and understandably took considerable care and\n\ntime to draft. That timeline does not suggest strategic delay on BDO’s part; it\n\nevinces reasonable promptness. 6\n\n\n\n BDO also made clear from the outset that its requests for injunctive relief were\n\n“in aid of arbitration,” language that appeared in both the caption and first paragraph\n\nof BDO’s complaint. And BDO’s motion for a TRO reiterated that “[a]ll of these\n\n\n\n\n 6\n BDO emphasizes that the timeline in this case—days and weeks—is far\nshorter than the timeline in other cases where courts have found waiver. That is true,\nbut that distinction is not dispositive on its own. This case is somewhat atypical in\nthat the party seeking arbitration, BDO, also initiated the litigation, while most of\nour cases involve defendants who move to compel arbitration after being brought\ninto court. See, e.g., TRG, 226 A.3d at 753; Hercules, 592 A.2d at 1070; cf. Hossain,\n147 A.3d at 817-18 (plaintiff sought to compel arbitration of a counterclaim). It is\nto be expected that a defendant would take more time to decide whether to invoke\nits right to arbitrate in response to a claim than would the party driving the litigation,\nwho might have foregone the court proceedings altogether.\n\f 15\n\nclaims are subject to a binding arbitration agreement,” and the partnership agreement\n\nwas appended to the motion as the sole exhibit. Thus, the court was on notice well\n\nbefore ruling on the TRO that BDO intended to arbitrate its underlying claims. If\n\nthe court believed ruling on the TRO request would tip its hand in some way that\n\nwas inconsistent with BDO retaining that right, it might have given some\n\nforewarning to that effect, or simply not ruled until it was satisfied that BDO had\n\npicked its preferred lane. 7 Its decision to rule on the TRO request instead, despite\n\nall indications that BDO was seeking to arbitrate, cannot be counted against BDO in\n\nthe implied waiver calculus. There was no unexplained delay on BDO’s part because\n\nthere was nothing that could fairly be described as delay at all.\n\n\n\n B. BDO’s Motion to Dismiss Two Claims\n\n\n\n The trial court also found that BDO, in moving to dismiss two of Jia-Sobota’s\n\ncounterclaims, was “seeking a ruling on the merits,” which it deemed “inconsistent\n\nwith the arbitration right.” BDO responds that it moved to dismiss only Jia-Sobota’s\n\n\n\n\n 7\n There is no evidence that BDO unreasonably delayed the arbitration process\nitself. BDO contacted Jia-Sobota to begin constituting an arbitral panel within\nweeks of filing its arbitration demand. Indeed, to the extent the arbitration process\nwas delayed, that delay was attributable to Jia-Sobota, who declined to engage in\ninitial steps of arbitration as he pressed his argument that arbitration should be\nstayed.\n\f 16\n\nnon-arbitrable claims, and that such a motion cannot support a finding that it waived\n\narbitration of its remaining, arbitrable claims. We agree. We have been clear that a\n\nmotion for judgment on the merits of non-arbitrable claims does not constitute\n\nwaiver as to other, arbitrable claims. See Hercules, 592 A.2d at 1075 (“The trial\n\njudge’s conclusion that Hercules’ filing of a motion for summary judgment on a non-\n\narbitrable count of the complaint constituted a waiver of its right to demand\n\narbitration was [] erroneous.”).\n\n\n\n Jia-Sobota does not dispute BDO’s contention that the two claims on which\n\nBDO sought dismissal were non-arbitrable. 8 Instead, he offers two other arguments\n\nwhy BDO’s motion to dismiss affected a waiver, neither of which is persuasive.\n\nFirst, Jia-Sobota argues that BDO, in its motion to compel arbitration, implicitly\n\nsought a merits ruling on the enforceability of the arbitration clause against “three\n\nparties that were not signatories” to the agreement (EverGlade, BDO Public Sector,\n\nand BDO’s CEO). According to Jia-Sobota, making such a ruling would require the\n\ncourt to make factual findings about “the relationship between” those parties, which\n\nBDO could then treat as the law of the case in arbitration. But that issue is precisely\n\n\n\n\n 8\n Jia-Sobota later amended his False Claims Act counterclaim in a manner that\narguably rendered it arbitrable, but he does not contend that it was arbitrable as\noriginally pled, which was what BDO sought to dismiss.\n\f 17\n\nthe kind of “preliminary ‘gateway dispute[] about whether the parties are bound by\n\n[an] arbitration clause’” that we have expressly found appropriate for a court to\n\ndecide attendant to arbitration. See Hossain, 147 A.3d at 821 (quoting Woodland\n\nLtd. P’ship v. Wulff, 868 A.2d 860, 864 (D.C. 2005)).\n\n\n\n Second, Jia-Sobota points to what he claims is a disconnect between the scope\n\nof BDO’s complaint and its demand for arbitration. He argues that because BDO’s\n\ncomplaint included claims that it did not raise in arbitration, BDO was asking the\n\ncourt to make merits rulings on those claims, at odds with its stated intent to arbitrate.\n\nWe disagree. BDO never asked the trial court to make merits judgements on any of\n\nits claims. Its complaint made clear that BDO was seeking only injunctive relief. 9\n\nIn short, we conclude that BDO’s motion to dismiss Jia-Sobota’s non-arbitrable\n\nclaims did not “manipulate the legal process,” and its subsequent motion to compel\n\narbitration was not an attempt to procure an ill-gotten “‘second bite’ at a favorable\n\noutcome.” TRG, 226 A.3d at 758 (quoting Nat’l Found., 821 F.2d at 776).\n\n\n 9\n Jia-Sobota also argues in passing that we should consider BDO’s conduct in\nother litigation arising from the same events as evidence that BDO “does not care\nabout arbitration.” There is little in the record to inform us about the details of the\nother cases he cites, all of which were filed in the summer of 2020 in New York state\ncourts. Suffice to say that Jia-Sobota’s agreement with BDO provided only that the\nparties had the option to arbitrate. There is nothing in the agreement that requires\nBDO to be consistent about how it exercises that option with regard to other disputes,\nunder different law, in other courts.\n\f 18\n\n C. Exploiting Pretrial Discovery\n\n\n\n Jia-Sobota’s strongest point comes in this third consideration. The substantial\n\namounts of discovery that BDO engaged in to support its claim for injunctive relief\n\nconflicts with its stated desire to pursue arbitration, where discovery rights are\n\nconsiderably more curtailed. Still, it is important to recall that the partnership\n\nagreement expressly permitted either party to seek injunctive relief without waiving\n\nits right to arbitration, and that BDO consistently represented to the court that it was\n\ndoing just that.\n\n\n\n Jia-Sobota does not dispute that BDO’s contractual right to seek prospective\n\nrelief included the right to engage in some discovery. Instead, Jia-Sobota contends\n\nthat the breadth of that discovery affected a waiver. He argues that BDO’s discovery\n\nrequests were (a) overly aggressive, seeking evidence outside the scope of its\n\ninjunction request in order to build its case in advance of arbitration with evidence\n\nthat would be inaccessible via arbitration alone, and (b) one-sided, because BDO\n\naggressively sought to limit Jia-Sobota’s discovery and because Jia-Sobota—under\n\nBDO’s arbitration rules—is not guaranteed any meaningful right to discovery in the\n\narbitration itself. BDO, in contrast, maintains that its discovery requests were\n\n“carefully tailored to the issues presented” in its requests for injunctive relief, and\n\f 19\n\nthat the scope of those requests was justified because its case is “factually complex”\n\nand requires “substantial investigation” to prove.\n\n\n\n We agree with the premise of Jia-Sobota’s argument—that BDO’s right to in-\n\ncourt discovery was limited to what was relevant to support its injunction request.\n\nTo the extent its discovery requests exceeded that scope, and discovery was not\n\ntargeted at questions underlying the injunction request but instead leveraged the\n\ncourt’s resources and authority to harass Jia-Sobota or to gather evidence that was\n\nnot relevant to its in-court claims in order to build its case in arbitration, that would\n\nsurely represent the kind of “gamesmanship and manipulation” our precedents seek\n\nto prevent. TRG, 226 A.3d at 760. However, in this case, it is difficult to identify\n\nany impermissible discovery request because in order to secure an injunction BDO\n\nwas obliged to demonstrate a “substantial likelihood” that it would “prevail on the\n\nmerits” of its underlying claims. Feaster v. Vance, 832 A.2d 1277, 1287 (D.C. 2003)\n\n(citation omitted). That means that most—if not all—the evidence relevant to\n\nBDO’s underlying claims is also relevant to the injunction request and therefore\n\nwithin the realm of permissible discovery in support of its in-court claim. See Super.\n\nCt. Civ. R. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged\n\nmatter that is relevant to any party’s claim or defense and proportional to the needs\n\nof the case.”).\n\f 20\n\n The D.C. Circuit faced an analogous situation in National Foundation for\n\nCancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d at 775. In that case, a\n\nparty was faced with both arbitrable and non-arbitrable claims arising from the same\n\ntransaction. Id. It engaged in discovery that was potentially relevant to both sets of\n\nclaims, and then sought to arbitrate only the arbitrable claims. Id. Although the\n\ncourt emphasized that the mere existence of the non-arbitrable claims did not\n\nforeclose a finding of waiver, it found that the overlap between the arbitrable and\n\nnon-arbitrable claims “counsel[ed] caution from inferring waiver from [the party’s]\n\ndiscovery efforts.” Id. So too here. If anything, that caution is even more warranted\n\nhere, where the scope of the in-court litigation was explicitly limited to injunctive\n\nrelief, and the court was on notice of that. All of BDO’s motions for discovery were\n\nmade, and granted, on the grounds that the requested discovery was relevant to\n\nBDO’s motion for an injunction. If the trial court felt that BDO’s discovery requests\n\nexceeded the scope of the litigation, it should have denied those requests, or at least\n\nsought clarification from BDO as to what remedies it was pursuing in the judicial\n\nforum. Instead, the court granted BDO’s discovery requests, only to turn around\n\nlater and rule that those same requests were—notwithstanding the terms of the\n\npartnership agreement—so extensive that BDO had waived its right to arbitrate.\n\f 21\n\n Exercising the same caution that the D.C. Circuit advised, we disagree with\n\nthe trial court’s assessment that BDO’s aggressive use of discovery weighs heavily\n\nin favor of a waiver finding. Although we do not foreclose the possibility that late-\n\nbreaking evidence of genuine gamesmanship or duplicity by a party in BDO’s\n\nposition could support a finding of waiver, neither Jia-Sobota nor the trial court point\n\nto any such evidence here. 10 In its absence, we decline to rule that BDO’s discovery\n\nrequests were out of bounds simply because they were also relevant to the claims it\n\nwanted to arbitrate.\n\n\n\n D. Prejudice\n\n\n\n Although the trial court did not comment on the question of prejudice, Jia-\n\nSobota asks us to consider (1) the time and resources he has been forced to expend\n\n\n\n\n 10\n Jia-Sobota encourages us to find such evidence in the one-sidedness of\nBDO’s discovery—in particular the fact that it aggressively resisted Jia-Sobota’s\nefforts in court to engage in discovery of his own, and that its arbitration rules do\nnot guarantee Jia-Sobota any meaningful discovery in arbitration. We decline to do\nso. For one thing, if the trial court felt that the asymmetry of the discovery process\nwas unfair, there were less oppressive ways of levelling the scales. There is no\nreason why it could not grant Jia-Sobota equally expansive discovery rights if\nfairness so dictates. Moreover, as BDO concedes, any arbitration in this case is\nsubject to judicial review. Thus, if, after arbitration, it appears BDO has manipulated\nthe process to deprive Jia-Sobota of a fair opportunity to adjudicate his case, Jia-\nSobota will have recourse in the courts. See D.C. Code § 16-4423 (establishing\ngrounds to set aside an arbitral order).\n\f 22\n\nlitigating BDO’s injunction claim, and (2) that BDO’s litigation tactics have allowed\n\nit to gain access to information about Jia-Sobota and his firm that it would not have\n\nbeen able to procure in arbitration. Those considerations carry little weight under\n\nthese circumstances. As explained above, in determining whether a party has\n\nimplicitly waived its right to arbitration, “the essential question is whether, under the\n\ntotality of the circumstances, [that] party has acted inconsistently with the arbitration\n\nright” as defined by the terms of the agreement. TRG, 226 A.3d at 755. Jia-Sobota\n\nhas not shown that BDO has taken any such action. Whatever disadvantage may\n\nhave accrued to Jia-Sobota as a result of BDO’s litigation tactics, that disadvantage\n\nstemmed from BDO’s compliance with the parties’ agreement. A party does not\n\nwaive a contractual right simply because exercising that right turns out to\n\ndisadvantage the other party.\n\n\n\n Because the terms of Jia-Sobota’s partnership agreement allow BDO to\n\npursue a preliminary injunction in court without waiving its right to arbitration, and\n\nbecause BDO has taken no action inconsistent with its intent to do exactly that, we\n\nconclude BDO has not waived its right to arbitrate and vacate the trial court’s order\n\nto the contrary.\n\f 23\n\n IV.\n\n\n\n Jia-Sobota argues that even if BDO did not waive its right to arbitrate, the\n\narbitration clause is unenforceable both because it is unconscionable and against the\n\npublic policy of the District of Columbia. The trial court did not reach the question\n\nof enforceability, having concluded that BDO, in any event, had waived its right to\n\narbitrate. We have now rejected that basis for the trial court’s ruling, though Jia-\n\nSobota is correct that we nonetheless have discretion to affirm the trial court’s\n\njudgment on an alternative ground, so long as there would be “no procedural\n\nunfairness” in doing so. See Jaiyeola v. District of Columbia, 40 A.3d 356, 372\n\n(D.C. 2012) (explaining there may be no procedural unfairness where “the opposing\n\nparty had notice of the ground upon which affirmance is proposed, as well as an\n\nopportunity to make an appropriate factual and legal presentation with respect\n\nthereto” in the trial court (quoting Franco v. District of Columbia, 3 A.3d 300, 307\n\n(D.C. 2010))). We decline to exercise our discretion to consider this alternative\n\nground for affirmance, and instead leave it to the trial court to address it in the first\n\ninstance.\n\n\n\n Animating our decision not to resolve the question of enforceability is the fact\n\nthat there is virtually no evidentiary record or factual findings on issues that might\n\f 24\n\ninform the “strongly fact-dependent inquiry” into unconscionability. 11 Keeton v.\n\nWells Fargo Corp., 987 A.2d 1118, 1121 (D.C. 2010). “[A]ny evaluation of\n\nunconscionability is tied so closely to the facts of a particular case that we are not in\n\na position to say, on the basis of the limited pleadings before us, whether this\n\nparticular contract [provision] is unconscionable.” Bennett v. Fun & Fitness of\n\nSilver Hill, Inc., 434 A.2d 476, 480 (D.C. 1981). We therefore remand for the trial\n\ncourt to address the arbitration clause’s enforceability in the first instance.\n\n\n\n\n 11\n BDO argues that, under the partnership agreement’s choice-of-law clause,\nNew York rather than the District law governs the question of enforceability. See\nKing Carpentry, Inc. v. 1345 K St. SE, LLC, 262 A.3d 1105, 1110 n.3 (D.C. 2021)\n(choice-of-law provisions are “generally understood to incorporate [] substantive\nlaw”); Parker v. K & L Gates, LLP, 76 A.3d 859, 870 (D.C. 2013) (holding that a\nprocedural rule does not “directly determine the enforceability of [an] arbitration\nclause”). Assuming that is correct, and it is unclear the extent to which that is a\ncontested point, New York law is in accord that questions of unconscionability are\noften fact-intensive. See, e.g., Lawrence v. Miller, 901 N.E.2d 1268, 1272-73 (N.Y.\n2008) (“[W]e have not been presented with facts . . . to evaluate the agreement’s\nunconscionability.”); Simar Holding Corp. v. GSC, 928 N.Y.S.2d 592, 595 (N.Y.\nApp. Div. 2011) (“Where there is doubt as to whether a contract is fraught with\nelements of unconscionability, there must be a hearing where the parties have an\nopportunity to present evidence with regard to the circumstances of the signing of\nthe contract, and the disputed terms’ setting, purpose and effect.” (quoting\nDavidovits v. De Jesus Realty Corp., 474 N.Y.S.2d 808 (N.Y. App. Div. 1984))).\n\f 25\n\n V.\n\n\n\n We reverse the trial court’s ruling that BDO waived its right to enforce the\n\narbitration clause in its partnership agreement with Jia-Sobota, and remand the case\n\nfor further proceedings. We also dismiss the appeal from the trial court’s November\n\n9, 2020, order to show cause.\n\n\n\n So ordered.\n\n\n\n DEAHL, Associate Judge, concurring: I am in full agreement with my\n\ncolleagues that the prudent course is to remand the question of whether the\n\narbitration clause is unenforceable. I write separately to highlight several factors\n\nand precedents that I believe the trial court ought to take into its consideration of Jia-\n\nSobota’s unconscionability argument.\n\n\n\n First, I want to highlight how extraordinarily oppressive this arbitration clause\n\nis when applied to a former partner like Jia-Sobota. This speaks to the clause’s\n\nsubstantive unconscionability, which concerns when contractual terms are\n\nunreasonably favorable to one party. Simon v. Smith, 273 A.3d 321, 330 (D.C.\n\n2022). BDO’s complaint alleges that Jia-Sobota “engaged in a calculated and blatant\n\nscheme to steal . . . a $40 million business,” and, through arbitration, BDO seeks to\n\f 26\n\nhave five of its current partners sit in judgment of its multi-million dollar claim\n\nagainst a person who is now its direct competitor. Those partners would clearly have\n\ndirect economic interests in the arbitration’s outcome, and would effectively be\n\nsitting in judgment over their own case against an adversary. Even under the New\n\nYork law that BDO maintains applies to the question of unconscionability, the\n\ngeneral right of parties to contract for the arbitrator of their choice is not without its\n\nlimits:\n\n\n A well-recognized principle of ‘natural justice’ is that a\n man may not be a judge in his own cause. Irrespective of\n any proof of actual bias or prejudice, the law presumes that\n a party to a dispute cannot have that disinterestedness and\n impartiality necessary to act in a judicial or quasi-judicial\n capacity regarding that controversy.\n\n\nCross & Brown Co. v. Nelson, 167 N.Y.S.2d 573, 575 (N.Y. App. Div. 1957); see\n\nalso In re City of Rochester, 101 N.E. 875, 876 (N.Y. 1913) (“[W]herever tribunals\n\nof justice have existed all men have agreed that a judge shall never have the power\n\nto decide where he is himself a party. . . . So vital is deemed the observance of this\n\nprinciple that it has been held that a judge disqualified [thereunder] cannot act even\n\nwith the consent of the parties interested, because the law was not designed merely\n\nfor the protection of the parties to the suit, but for the general interests of justice.”).\n\f 27\n\n An arbitration provision that names an arbitrator who is a “party to a contract,\n\nor someone so identified with the party as to be in fact, even though not in name, the\n\nparty” is “illusory” and unenforceable under New York law. Cross & Brown, 167\n\nN.Y.S.2d at 576; see also id. at 575 (further describing this as an “absolute\n\ndisqualification”). New York courts have extended this rule to a situation in which\n\nan arbitration clause calls for a panel consisting entirely of members of a corporate\n\nparty’s board of directors. See id. at 575-76 (“We brush aside any metaphysical\n\nsubtleties about corporate personality and view the agreement as one in which one\n\nof the parties is named as arbitrator. Unless we close our eyes to realities, the\n\nagreement here becomes, not a contract to arbitrate, but an engagement to\n\ncapitulate.”).\n\n\n\n It is true that, “[a]s a general matter, under New York law, unconscionability\n\nrequires a showing that a contract is both procedurally and substantively\n\nunconscionable when made.” Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569, 573\n\n(N.Y. App. Div. 1998) (emphasis added and quotation marks omitted). That said,\n\nin some “exceptional” cases, a provision may be unconscionable based on\n\nsubstantive unconscionability alone. Gillman v. Chase Manhattan Bank, N.A., 534\n\nN.E.2d 824, 829 (N.Y. 1988); see also Urban Invs., Inc. v. Branham, 464 A.2d 93,\n\n99 (D.C. 1983) (“[I]n an egregious situation,” a showing of “one or the other may\n\f 28\n\nsuffice.”). Where the terms of a provision—given their “context, their purpose, and\n\ntheir effect”—are sufficiently “outrageous,” id., “the substantive element alone may\n\nbe sufficient to render the terms of [that] provision . . . unenforceable,” Brower, 676\n\nN.Y.S.2d at 574. This provision at least skates up to the line of unconscionable on\n\nsubstance alone, even absent any consideration of procedural unfairness in its\n\ncreation.\n\n\n\n Second, there are several early indications of procedural unfairness in how\n\nthese parties came to agree to the arbitration clause, though I acknowledge the record\n\nis too thin to firmly opine on that question. 12 The procedural component of\n\nunconscionability focuses on the bargaining process itself, essentially asking\n\nwhether the term was agreed to via unfair surprise so that the complaining party\n\ncannot be said to have meaningfully agreed to it. While Jia-Sobota is a sophisticated\n\nparty, cutting against any finding of procedural unconscionability, the substantive\n\nand procedural components of unconscionability operate on a “sliding scale.” See\n\nSimar Holding Corp. v. GSC, 928 N.Y.S.2d 592, 595 (N.Y. App. Div. 2011). The\n\n\n 12\n BDO incorrectly asserts that Jia-Sobota “expressly disclaimed any effort”\nto show procedural unconscionability in the trial court. He did no such thing. He\ninstead correctly noted that the substantive unconscionability of a clause might be\nenough to render it unenforceable in egregious circumstances, supra, and argued that\nthis was one such case. While he did not make a targeted argument that procedural\nunconscionability exists here, neither did he disclaim its existence.\n\f 29\n\nmore substantively intolerable a provision is—and this one approaches an apex on\n\nthat front—the less courts will abide the lack of a meaningful choice in how the\n\nparties arrived at it. “A contract that is 98 parts substantively unconscionable may\n\nrequire only two parts of procedural unconscionability to render it unenforceable and\n\nvice versa.” 1 White, Summers & Hillman, Uniform Commercial Code § 5:16 (6th\n\ned. 2021). In other words, “[t]he harsher the clause, the less ‘bargaining naughtiness’\n\nthat is required to show unconscionability.” Id. (citation omitted).\n\n\n\n The strongest sign of procedural unconscionability here is that BDO seems to\n\nhave hidden the most oppressive aspect of this arbitration clause—its application to\n\nformer partners—in a 46-page, single-spaced, apparently standard-form contract of\n\nthe take-it-or-leave-it variety.13 While it is plain as day that the arbitration clause\n\n\n 13\n This is not like the collective bargaining agreement that BDO highlights\nand the Second Circuit considered in Nat’l Football League Mgmt. Council v. Nat’l\nFootball League Players Ass’n, which the court noted was “negotiated and refined\nover time by the parties themselves so as to best reflect their priorities, expectations,\nand experience.” 820 F.3d 527, 536 (2d Cir. 2016). That case concerned Tom\nBrady’s challenge to his four-game suspension related to “Deflategate,” which NFL\nCommissioner Roger Goodell arbitrated, ultimately upholding the suspension. Id.\nat 531. It bears little resemblance to the case before us. For one, that case did not\neven involve an unconscionability argument, which surely would have been dead on\narrival considering (1) that the NFL Players Association could be said to have\nbargaining power roughly equal to the NFL Management Council, which cannot be\nsaid of Jia-Sobota vis-à-vis BDO, (2) the chosen arbitrator, Roger Goodell, had no\napparent direct financial stake in the arbitration’s outcome (and seemingly acted\ncontrary to his indirect financial interests, sidelining one of the NFL’s biggest stars\n\f 30\n\napplies to disputes “between a Partner and the Partnership”—i.e., intra-partnership\n\ndisputes, where having an all-partner panel makes some sense—its application to\n\nformer partners can only be found two clauses earlier, amidst a page-long provision\n\nthat indicates “[t]he term ‘Partner’ herein includes ‘former Partner.’” For a clause\n\nlike this to be enforceable against former partners, it ought to be in large, bold and\n\nunderlined font, not lurking in diffuse component parts in a sprawling contract. On\n\nthe other hand, the record is scant on other questions that would inform a procedural\n\nunconscionability inquiry: for all we know, Jia-Sobota had sat on one of BDO’s\n\narbitral panels himself, was specifically warned of this clause before agreeing to it,\n\nor knew full-well of its application to former partners through office lore. I cannot\n\nsay on this record, but the early indications are there are at least two parts procedural\n\nunconscionability here sufficient to nudge the 98 parts substantive unconscionability\n\nover the line of unenforceability.\n\n\n\n Third, a number of cases have considered the enforceability of BDO’s\n\narbitration clause, and while the results have been mixed, the cases ruling that it is\n\nunenforceable seem to have the better of the argument. Both Jia-Sobota and BDO\n\n\n\nfor a stretch), and (3) it was truly an intra-league dispute, with Tom Brady still an\nactive player, so it does not resemble BDO’s partners sitting in judgment of a dispute\nwith a former partner and direct competitor.\n\f 31\n\npoint to unpublished opinions of New York trial courts. Jia-Sobota cites to Romer\n\nv. BDO Seidman, No. 1995-7807 (N.Y. Sup. Ct. Feb. 9, 1996) (unpublished), 14\n\nwhere the court found unenforceable an arbitration clause that set an arbitral panel\n\nconsisting entirely of BDO partners. The Romer court reasoned that, because BDO’s\n\npartners had “a direct financial interest in the outcome,” the clause designating them\n\nas the sole arbitrators could not be enforced because the panel would be “so\n\nidentified with the party as to be in fact, even though not in name, the party.” Id.\n\n(quoting Cross & Brown, 167 N.Y.S.2d at 576). Other courts applying New York\n\nlaw have reached the same conclusion in cases concerning iterations of this same\n\narbitration clause. See Buhrer v. BDO Seidman, LLP, No. 022190C, 2003 WL\n\n22049503, at *4 (Mass. Super. Ct. July 7, 2003) (concluding BDO’s arbitration\n\nclause “is offensive to basic notions of fairness”); BDO Seidman v. Miller, 949\n\nS.W.2d 858, 861 (Tex. App. 1997) (“the agreement to arbitrate is invalid on its\n\nface”). 15\n\n\n 14\n Romer was provided to the trial court as an exhibit, and it is part of the\nrecord before us, though it does not appear to be readily available through any online\ndatabase.\n 15\n BDO’s arbitration clause has changed slightly over time. Buhrer concerned\na clause, like the one we confront here, where two members of the arbitral panel\nwould be members of BDO’s board of directors and three would be partners outside\nof the board. 2003 WL 22049503, at *3. Romer concerned a provision where two\nmembers of the arbitral panel would come from BDO’s “Policy Group”—query if\nthat is some predecessor or close cousin to the board of directors—and three would\n\f 32\n\n BDO counters with BDO Seidman, LLP v. Bloom, 799 N.Y.S.2d 159 (N.Y.\n\nSup. Ct. 2004) (unpublished), where the court determined that an arbitral panel\n\nconsisting of two board members and three other partners was enforceable, even if\n\nthe individual arbitrators had some financial stake in the proceedings. Id. at *8. The\n\nBloom court focused not on “disinterestedness and impartiality,” Cross & Brown,\n\n167 N.Y.S.2d at 575, 16 but on agency—reasoning that the arbitrators were not acting\n\nas judges to their own dispute because “the five members that compose the [arbitral]\n\npanel acting as individuals, or in unison, do not have the ability to act for the\n\n\n\n\nbe partners outside of that group. And Miller involved three board members as\narbitrators and two partners outside of the board. 949 S.W.2d at 861. None of those\ncases attached significance to those finer points of the arbitral panel’s composition,\nas between board members and partners outside of the board, and any such\ndistinction (as BDO tries to draw) strikes me as illusory.\n 16\n BDO argues that Cross & Brown was abrogated by Westinghouse Elec.\nCorp. v. N.Y.C. Transit Auth., 623 N.E.2d 531, 534 (N.Y. 1993), and cites to two\nfurther cases in support of that argument, see BDO Seidman, LLP v. Bee, 970 So.2d\n869, 875-77 (Fla. Dist. Ct. App. 2007); Hottle v. BDO Seidman, LLP, 846 A.2d 862,\n875-76 (Conn. 2004). I disagree. Westinghouse concerned whether a mere\nemployee of one contracting party could serve as an arbitrator, but the employee /\nemployer relationship is not akin to the partner / partnership relationship. Only the\nlatter relationship involves a direct financial interest in the outcome of the\narbitration, so I find Westinghouse to be far afield from whether those with a direct\nfinancial stake in one party’s finances can serve as the sole arbitrators to a dispute.\nBoth Buhrer and Miller likewise persuasively rejected BDO’s argument that\nWestinghouse effectively jettisoned Cross & Brown. 2003 WL 22049503, at *3 n.6;\n949 S.W.2d at 861.\n\f 33\n\npartnership in the manner the defendant complains of that gives rise to his\n\ncounterclaims.” Bloom, 799 N.Y.S.2d at *5.\n\n\n\n I find Bloom’s reasoning wholly unpersuasive, and Romer’s a far more\n\nconvincing application of New York law. The axiom articulated in Cross &\n\nBrown—“that a man may not be a judge in his own cause”—is grounded in the\n\nprinciple that the parties to a dispute are entitled to an adjudicator “who is not biased\n\nor prejudiced in favor of or against either side to the controversy.” 167 N.Y.S.2d at\n\n575 (quotation omitted). It defies common sense to presume that an individual with\n\na direct and substantial financial stake in the outcome of a controversy is not\n\noperating as “a judge in his own cause” when they might directly line their pockets\n\nthrough their decision. Where the underlying question is bias, there is no reason that\n\narbitrators with a direct and substantial financial stake in the outcome of an\n\narbitration should be exempted from scrutiny simply because they lack authority to\n\nmake decisions on behalf of the party they are aligned with.\n\n\n\n In sum, I would frame the substantive unconscionability question for the trial\n\ncourt as whether the contemplated arbitral panel here is “so identified with [BDO]\n\nas to be in fact . . . the party.” Cross & Brown, 167 N.Y.S.2d at 576. If so, then\n\nperhaps that is enough to find this arbitration clause unconscionable based on its\n\f 34\n\nsubstance alone. And, at the very least, it would be enough to find the arbitration\n\nclause unconscionable if, as it appears at first blush, the procedure by which Jia-\n\nSobota came to agree to it gives no assurance that his was a genuine and informed\n\nassent to the clause.\n\f","page_count":34,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"bdo-usa-llp-v-jia-sobota-a2z-assoc-inc-dba-everglade-consulting"} {"attorneys":"Snook & Savage, for John Deere Plow Co., Saltzgaber, Hoke & Osborn, for assignee.","case_name":"Assignment of Cook","case_name_full":"Assignment of Charles Cook","case_name_short":"Assignment of Cook","citation_count":0,"citations":["6 Ohio N.P. (n.s.) 298"],"court_full_name":"Van Wert County Court of Common Pleas","court_jurisdiction":"Ohio, OH","court_short_name":"Van Wert County Court of Common Pleas","court_type":"ST","date_filed":"1907-12-15","date_filed_is_approximate":true,"headnotes":"CONTRACTS OF SALE OR OF AGENCY.
Construction of Contract — Whether One of Sale or of Agency to he Determined, Sow — Absence of Limitations or Restrictions, hut a Reservation of Ownership — Conditional Sales — -Evidence of — Assignment for Benefit of Creditors — Section
1. Whether a contract between a machine company and a dealer is a contract of sale or one of agency is to be determined from a consideration of the entire instrument. To determine its real character its purpose rather than its name is to be looked to.
2. Where the contract throughout indicates an absolute sale, there being no limitations or restrictions as to locality, price, terms or conditions of resale, such contract does npt become one of agency as to creditors of the dealer by reason of the single reservation that the ownership shall remain in the company and the proceeds of the sale be the property of the company.
3. Upon assignment for the benefit of creditors by a dealer in possession of machinery under such a contract, the company not having complied with Section 4155-2, Revised Statutes, the assignee is entitled to the possession of such machinery.
","id":8665280,"judges":"Matthias","opinions":[{"author_str":"Matthias","ocr":true,"opinion_id":8646428,"opinion_text":"\nMatthias, J.\nSome time prior to the date of his assignment for the benefit of his creditors Charles Cook had received from the John Deere Plow Company certain farming implements which were in his possession when he made such assignment.\nThe John Deere Plow Company filed an intervening petition in the Probate Court of Van Wert County in which it set up its claim of ownership of said machinery. By agreement such machinery was sold and the proceeds thereof kept separate and held pending the final determination of the claim made by said plow company.\nAll the machinery in controversy was received and held by the assignor under and by virtue of a certain printed contract. The question presented is whether as between the plow com*299pany and general creditors the assignor was merely the agent or factor of the plow company. If he was, then the plow company should be paid the fund, arising from the sale of the machinery in question; otherwise it should go to the general creditors.\nIs this a contract of agency or a contract of sale?\nUpon argument of this case counsel for the plow company urged as applicable to and as decisive of the question here presented the case of Bolles v. Dowagiac Manufacturing Company. That was a suit brought in Fulton county by the company against the agent for the price of a drill. The defense was that he did not purchase it, but was only an agent. The verdict of the jury was no cause of action, and judgment accordingly in common pleas. The circuit court reversed on the ground that the contract between the parties was one of sale. The Su-v preme Court reversed the circuit and affirmed the common pleas (72 O. S., 680). Neither of these decisions are reported, but we have before us, the record and briefs of counsel in the Supreme Court, and from those we conclude that the court of last resort must have held that the contract in question was one of agency, and not one of sale.\nThe record sets out a copy of that contract and the attorneys discuss it quite fully in their briefs. These we have studied quite carefully for the effect the decision upon the question raised and points presented should have upon the interpretation' of the contract before us.\nJudge Sheets and Files & Paxson, counsel for the agent, as he was called, dissected the contract and made many deductions therefrom which supported the view that it was a contract of agency.\nWe shall review those, and make comparisons with the contract we have in the case at bar, for we assume that the Supreme Court was moved at least by some of such deductions and the argument based thereon to hold that the parties sustained to each other the relation of principal and agent.\nIt was urged in the first place that ownership carries with it the right of disposition to such person, at snch price and upon *300such-terms as the owner- sees fit. In looking for customers he is not confined to any particular territory; neither is he limited in the price at which he may sell, nor kind of security he may take.\nIn that contract it was agreed that the defendant should be the sole agent for the plaintiff in the village of Delta and trade tributary.\nThe right of the “agent” was limited to sell machinery manufactured by the company to trade at Delta and that tributary thereto. He is not permitted to handle any other grain seeding machinery and must sell at ‘ ‘ list price. ’ ’\nMachinery “sold” was to be settled for at a discount of twenty-five and ten per cent, in good farmers’ notes, or at a discount of twenty-five, ten and ten for cash. Notes to be drawn upon blanks furnished by the company, payable October 1st of the following year at six per cent.; notes to be indorsed by the agent and security taken if maker of doubtful solvency. The company agreed to fill all orders promptly as long as able, and “to appoint no other agent for said territory.”\nBefore going further we shall compare the two contracts in the particulars mentioned.\nIn the contracts before us Cook is not at any time referred to as an agent of the company, but always as the purchaser; he was not confined to any particular territory in which he could resell such machinery; there is no attempt to limit or control the price which he should ask or obtain for it. No restrictions are placed upon him as to the terms upon which he may sell or the kind of security which he may take; nor is he required to confine his sales to the machinery manufactured by the John Deere Plow Company.\nIt was required of Cook that he “the purchaser ” should settle for machinery by note or cash upon receipt of invoice.\nThe company makes no agreement to ship its machinery exclusively to Cook within any certain territory.\nThese are some of the striking differences in these two contracts.\nUnder the Bolles contract upon the receipt of a consignment .of goods the relation of debtor and creditor did not arise. It *301was at best an - executory contract of sale, the agent agreeing to take what was left over at close of season at a certain price if the company elected to sell. There may not have been any goods left over; if so, the company may elect not to sell. They could take the goods back even though the agent wanted them and offered to pay for them. Certainly with such conditions the relation of vendor and vendee did not arise.\nBut under the contract before us the parties throughout refer to the transaction as one of sale. No right of election to sell or not to sell is retained by the company.\nIn the brief in the Bolles-Dowagiac case, to which we have been referred, counsel cited Norton v. Melick, 66 N. W., 780, and Lenz v. Harrison, 148 Ill., 598 (36 N. E., 567). We find the contracts involved in those cases are similar to the Bolles-Dowagiac contract, and therefore no doubt such decisions had influence upon the Supreme Court in the determination of the question in the Fulton county case.\nThose contracts, however, are quite different from the one before us in this case.\nTrue all these contracts are similar in one respect, and that is a stipulation that the ownership and right of peossession shall remain in the company, and the proceeds of sale be the property of the company, but this only has a tendency to show the attempt on the part of the company to retain a secret lien on the property.\nIt is expressly provided in the contract before us that “nothing in this clause shall release Cook from paying for such machinery.” Cook was bound to pay for all machinery sent him under this contract. The relation of debtor and creditor was thereby assumed.\nThere is absolutely nothing in this contract to show that the relation of agency was contemplated except the one clause referring to accounting for proceeds of sales. Can this .outweigh all else in the determination of the question of sale or agency ? It is the only feature which the two contracts referred to have in common. The rule must be applied, that all parts of the instrument are to be looked to, and to determine its real *302character we are to look to its purpose rather than its name. Can it be said there is no sale? What element is lacking?\nis it not rather a sale with an agreement of additional security by retaining nominal ownership of the property — in other words, a secret lien — just what Section 4155-2, Revised Statutes, was intended to prevent.\nThe contract involved in the Sells case, referred to by counsel, the agent having been found guilty of embezzlement, was quite like the Delta contract and quite different from the one involved herein.\nWe have also examined the contract involved in the Strother & DeCamp bankruptcy proceeding and find its tendency much more toward a contract of agency than the Cook contract. Yet it was held by Referee Richie, and approved by Judge Tayler, that such contract did not have the effect of creating any lien in favor of the company.\nThe discussion took considerable range, but it was finally stated by counsel for plow company, that the whole question is whether the transaction in question is a sale or whether Cook thereby became the factor. For the reasons we have stated we must conclude the relation of vendor and vendee were contemplated and that Section 4155-2, Revised Statutes, was neither successfully evaded nor complied with.\nWhether the assignee for the benefit of creditors can assert rights greater than the assignor, is absolutely settled in this state; hence a consideration of many cases cited from other states need not be entered upon. The rule applicable here is found in Hanes v. Tiffany, 25 O. S., 549.\nIt was there contended that the mortgage given, although defective, was good against the mortgagor, and that his assignee stands in no better situation. But the court held that the mortgage being void as against creditors, there was no reason for the view that the assignee took only the rights of the debtor, and not those of the creditors, and that as to the assignee such mortgage was void.\nIn Kilbourne v. Fay, 29 O. S., 264, the court reaffirms this doctrine, and applies it in favor of an administrator of an insolvent estate.\n*303A similar holding in favor of assignee, notwithstanding such assignee had knowledge of the execution and improper filing of the mortgage, is found in Westlake v. Westlake, 47 O. S., 315, and in Betz v. Snyder, 48 O. S., 492.\nThe same rule is recognized as the settled law in this state in Besuden v. Besuden, 57 O. S., 508, and it is restated and applied' in favor of a receiver representing general creditors in Cheney v. The Maumee Cycle Co., 64 O. S., 205.\nRailroad v. Locomotive Works, 93 U. S., 1003, contains much that is applicable to this case.\nThe decision of the Supreme Court of the United States in the case of York Mfg. Co. v. Cassell (a case from this state reported in 4 O. L. R., p. 327)., is quite unfavorable to the contention of the assignee in this case. But such decision can have little application to the case at bar. The Federal Supreme Court follows the state court in the interpretation and application of the laws of the state. From this decision it appears that there was brought to the attention of the court only the case of Wilson v. Leslie, 20 Ohio, 161.\nIn the Strother & DeCamp bankruptcy proceeding herein-before referred to, Judge Tayler held that the decisions of our Supreme Court must be followed and applied in the interpretation of that contract.\nIn the case of Jones v. Molster, Admr., 11 C. C., 432, the Circuit Court of the Fourth Circuit reviews the eases cited above and applies the doctrine of those cases to conditional sale contracts. We call attention to the discussion of the court in this case, and also to the syllabus in Harvey v. Locomotive Works, (92 U. S., 664), which is -found on page 438 of this decision.\nBut it is contended that Section 4155-2, Revised Statutes, is applicable only in event the sale is on the installment plan, and it is urged that it is so held in National Cash Register Co. v. Cervone, 76 O. S., 12. We can not so read it; nor do we see how the plain language of the statute can be so limited.— It includes such sales and all others where there is an attempt to retain nominal ownership or a lien upon property of which the vendee has possession. ' Its manifest purpose is to prevent secret liens. In the ease referi'ed. to tbe court had under consideration Sec*304tion 4155-3, Revised Statutes. By this section the protection of the installment plan purchaser is sought. Section 4155-2 is for the protection of creditors.\nSnook & Savage, for John Deere Plow Co.\nSaltzgaber, Hoke & Osborn, for assignee.\nWe therefore hold that as to creditors of Cook the contract between him and the John Deere Plow Company was one of sale; that the vendee at the time of his assignment for the benefit of creditors having possession of the machinery delivered to him under such contract, and no copy of such instrument having been filed as provided by law, no lien was preserved as against the creditors; that the assignee is therefore entitled to the fund realized from the sale of such machinery.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"assignment-of-cook"} {"attorneys":"Preddy, Haddad, Kutner & Hardie, Miami, Fla., for plaintiff., George Lanza, Adams, George & Wood, Miami, Fla., for defendants.","case_name":"Morse Auto Rentals, Inc. v. Harbor Insurance","case_name_full":"MORSE AUTO RENTALS, INC., a Florida Corporation v. HARBOR INSURANCE CO., a foreign corporation","citation_count":0,"citations":["329 F. Supp. 1031"],"court_full_name":"District Court, S.D. Florida","court_jurisdiction":"Florida, FL","court_short_name":"S.D. Florida","court_type":"FD","date_filed":"1971-07-30","date_filed_is_approximate":false,"id":8805617,"judges":"King","opinions":[{"author_str":"King","ocr":true,"opinion_id":8789860,"opinion_text":"\nFINDINGS OF FACT AND CONCLUSIONS OF LAW\nKING, District Judge.\nThis matter is before the court on the agreement of the parties that the Court shall determine the remaining issues between the parties. All issues have been resolved but for the question of whether Harbor Insurance Co. is responsible for certain costs of defense, including attorneys’ fees, incurred in defending certain State Court actions and the amount, if any, of attorneys’ fees that should be awarded to the Plaintiff herein for prosecution of this suit as against the Defendant Employers Surplus Lines. The Court is advised that Harbor Insurance Co. has agreed to pay a reasonable attorneys’ fee to Plaintiff’s attorneys for prosecuting this action. The Court having considered the pleadings filed *1032herein, the pre-trial stipulations of the parties, the depositions of witnesses, the Memoranda of the parties, and being otherwise fully advised in the premises, hereby enters the following Findings of Fact and Conclusions of Law:\nFINDINGS OF FACT\n1. On or about January 25th, 1968, one Robert L. Jacobs was operating an automobile owned by the Plaintiff but in the course of his employment with the Coca Cola Co. when he negligently caused severe injury to two individuals named Stahl and Gomez.\n2. Harbor Insurance Co., as an insurer of Morse Auto Rentals, Inc., and Employers Surplus Lines, as an insuror of the Coca Cola Co., both had policies of insurance which provided coverage as to the claims of Stahl and Gomez. The combined limits of coverage were sufficient to satisfy any claim of Stahl and Gomez. (No decision is made as to whether such policies apply on a primary-excess or prorated basis, which is the subject of another pending suit).\n3. Thereafter, suits were brought by Stahl and Gomez in the State Court, which suits named as defendants Morse Auto Rentals, Robert L. Jacobs and the Coca Cola Co. Morse Auto Rentals did appoint the firm of Preddy, Haddad, Kutner and Hardy to represent all defendants in the State Court actions, which representation was initially approved by all insurors concerned.\n4. Morse Auto Rentals at the time in question was the named insured on two policies of insurance. The first of these was a policy with the Old Republic Insurance Co. (hereafter Old Republic) providing coverage of $100,000.00 and the second was with Harbor Insurance Co. (hereafter Harbor) providing coverage of $400,000.00 in excess of Old Republic’s $100,000.00 coverage, for a combined total of $500,000.00 in coverage. Old Republic had the primary obligation to defend lawsuits filed against Morse Auto Rentals, but under certain conditions contained in its policy Harbor had a duty to contribute to the cost of defense.\n5. During the pendency of the Stahl and Gomez suits in the State Court, disagreement arose between Old Republic and Harbor as to the application of coverage and as to the procedures that should be taken with regard to the defense of the pending State Court suits.\n6. On November 11, 1968, the duly authorized representatives of Old Republic and Harbor held a meeting in Miami, Florida, which was also attended by the attorney for Plaintiff herein, which meeting was for the express purpose of attempting to resolve the differences between Old Republic and Harbor. The representatives of Old Republic and Harbor were not able to agree whereupon the Old Republic representative did tender its coverage ($100,000.00) to Harbor on the condition that it (Old Republic) would be relieved of any future responsibility or cost of defending the pending State Court actions. Harbor, by its representative, did accept the tender.\n7. In accordance with the agreement of November 11, 1968, Old Republic paid to Harbor the sum of $100,000.00 and thereafter Old Republic took no part in the management of the defense of the State Court actions, nor was it advised of any developments.\n8. Harbor, in accordance with the November 11, 1968 agreement, did accept the sum of $100,000.00 from Old Republic and thereupon took over active management and supervision of the defense of the pending State Court actions.\n9. Thereafter, the suit by Gomez was settled during trial for the sum of $240,000.00. The Stahl case resulted in a jury verdict returned in the sum of $2,250,000.00.\n10. The Gomez settlement was paid by the contributing insurance carriers, but there was disagreement between Harbor and Employers Surplus Lines (hereinafter Employers) as to participation in payment of the Stahl judgment.\n*103311. Initially Harbor refused to pay any sum toward satisfaction of the Stahl judgment. Employers paid part of the judgment, but left $432,800.67 unpaid. Plaintiff herein, threatened with execution, demanded that both Harbor and Employers fully satisfy the Stahl judgment. Both refused.\n12. After commencement of this action, on June 1st, 1970, Harbor paid its remaining policy limits of $343,437.25 on or about July 7th, 1970, leaving $89,363.42 of said judgment unpaid. Employers refused to pay the balance.\n13. This Court did enter a Summary Judgment as to liability against Employers on February 23rd, 1971, and as a direct result thereof Employers did pay the remaining $89,363.42, which sum was in full and final satisfaction of the Stahl judgment.\n14. That the bringing and prosecution of this suit has resulted in a benefit to the Plaintiff in the sum of $432,800.-67, and both Harbor and Employers are responsible for reasonable attorneys’ fees incurred by the Plaintiff in prosecuting this action and its reasonable costs incurred herein.\n15. That a reasonable attorneys’ fee for Plaintiff’s attorney in bringing and prosecuting this action as against the Defendant Employers is in the sum of $15,000.00.\nCONCLUSIONS OF LAW\n1. This Court has jurisdiction over the subject matter of this lawsuit by virtue of the provisions of Title 28 U.S. C. See. 2201. There is diversity of citizenship between the Plaintiff and the Defendants, and the amount in controversy, exclusive of interest and cost, exceeds $10,000.00.\n2. The November 11, 1968 agreement, whereby Harbor agreed to assume the responsibility and cost of defending the State Court actions is valid and binding upon Harbor.\n3. Harbor is liable for all expense and attorneys’ fees incurred in defending the State Court actions subsequent to November 11, 1968.\n4. Employers is liable to Plaintiff for its reasonable attorneys’ fees incurred herein in the sum of $15,000.00.\n5. Both Harbor and Employers are liable for Plaintiff’s reasonable costs incurred herein.\n6. Any claim made herein as against the Defendant the Coca Cola Co., has become moot, and said Defendant should be dismissed.\nBased upon the foregoing Findings of Fact and Conclusions of Law, it is Ordered and Adjudged:\n1. That Final Judgment in accordance with the foregoing Findings and Conclusions shall be entered in this case.\n2. Counsel for Plaintiff shall submit an Affidavit within five days, itemizing attorneys’ fees and expense incurred by Plaintiff in defending the State Court actions subsequent to November 11, 1968.\n3. Counsel for Plaintiff shall submit a form of Judgment within seven days, in accordance with the above conclusions, holding\n(a) Harbor liable to Plaintiff for the expense of the defense of the State Court actions as set forth above; and\n(b) Holding Employers liable to Plaintiff for attorneys’ fees incurred herein in the sum of $15,000.00; and\n(c) Absolving the Coca Cola Co. from all liability.\nAny party not in accord with the form of such Judgment shall have five days to submit its proposed modifications.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"morse-auto-rentals-inc-v-harbor-insurance"} {"attorneys":"Robert M. Morse, J. H. Benton, Jr., and Charles F. Hanlon, for complainant., Richard Olney, for defendant Taylor., Solomon Lincoln, and Charles K. Cobb, for defendant executors and trustees.'","case_name":"Jordan v. Taylor","case_name_full":"JORDAN v. TAYLOR","case_name_short":"Jordan","citation_count":0,"citations":["98 F. 643"],"court_full_name":"U.S. Circuit Court for the District of Massachusetts","court_jurisdiction":"Massachusetts, MA","court_short_name":"U.S. Circuit Court for the District of Massachusetts","court_type":"FA","date_filed":"1899-12-29","date_filed_is_approximate":false,"headnotes":"1. Federal Courts — Jurisdiction in Equity — Property in Possession of State Court.
During the time the estate of a testator is in process of administration in a state probate court, and before the executors 'have rendered any account, a federal court will not entertain a bill in equity by a cestui quo trust under a trust fund comprising the general residuary estate of the testator to set aside a sale of stocks made by the executors, and to take the proceeds out of their possession, which is, in legal effect, the possession of the probate court, and substitute therefor the property sold.
2. Equity Jurisdiction — Suits against Executors.
As a general rule, an executor who has not settled his final account in the prol)ate court cannot he charged by a suit in equity by the residuary legatees for properly sold by him in violation of his trust, as the rights of such legatees, who are interested only in the residue in the executor’s hands after payment of all specific legacies and charges, can be fully protected by the probate court.
","id":8881741,"judges":"Colt","opinions":[{"author_str":"Colt","ocr":true,"opinion_id":8867637,"opinion_text":"\nCOLT, Circuit Judge.\nThis is a bill in equity brought by the complainant, one of the residuary legatees under the will of Eben D. Jordan, to set aside a sale of 375 shares of stock of the Globe Newspaper Company, made by the defendant executors Jordan and Nichols to the defendant Taylor, and praying that the defendant Taylor may be ordered to transfer to the executors the said stock upon their payment to him of $375,000, the amount paid for the stock. Eben D. Jordan, in his lifetime, executed an agreement with Taylor that he might purchase from his estate, within three months after his death, under the conditions named in the agreement, an amount of Globe stock sufficient to make his share equal to one-half of the capital stock of the corporation. In his will Jordan suggested that the executors should retain the Globe stock as a permanent investment, unless, for good reasons, it should become desirable to dispose of it. At the same time he directed that any agreement made in his lifetime with reference to- the sale of such stock should “be faithfully carried out.” The defendants Jordan, Taylor, and Nichols were appointed executors and trustees under the will. The executors Jordan and Nichols, acting under the agreement, sold to Taylor 375 shares of the stock shortly after the probate of the will, and before he qualified as executor. The bill charges, in substance: First, that the agreement which Jordan made in his lifetime with respect to the sale of the stock to Taylor is void for want of consideration; second, that the conditions contained in the agreement were not complied with; third, that two of the appraisers appointed to fix the price to be paid for the stock under the agreement were not disinterested parties; and, fourth, that, whereas the price at which the stock was sold was $1,000 a share, its fair market value was $2,000 a share. The prayer of the bill is as follows:\n“And that said sale arid transfer of said three hundred and seventy-five (375) shares of the capital stock of the Glohe Newspaper Company by the defendants to the defendant Taylor may be declared null and void, and that the defendant Taylor may be ordered and decreed to assign and transfer to the defendants said three hundred and seventy-five (375) shares, and to pay to the defendants the amount of all dividends which he has received thereon, with interest on the amount of said dividends; the defendants at the same time paying to defendant Taylor the sum of three hundred and seventy-five thousand ($375,000) dollars, and interest thereon from the date of payment by him of his promissory note aforesaid for said amount.”\nThe present bearing was had on demurrer to the bill. The first ground of demurrer to be passed upon is whether the court has jurisdiction in this case. In the consideration of the question of jurisdiction in this' class of cases it is important to examine carefully the particular case which is presented. It is undoubtedly true that a federal court, where the requisite diversity of citizenship exists, *645has jurisdiction in some cases brought by a legatee against executors or trustees to establish rights under a will, or to set aside a wrongful sale of trust property; but the real question now presented for determination is whether, under the frame of this bill, and the specific relief prayed for, the court has jurisdiction in this particular case. The complainant is a beneficiary in the general residuary estate of Eben I). Jordan, which, under his will, is to be held in trust by the trustees designated in that instrument. The complainant has no right to a transfer of this stock in specie to him, or to the trustees for his benefit. He is merely interested in the general residue of the estate after the payment of debts, specific bequests, and charges of administration. He is only entitled to a beneficial interest in the residue coming into the hands of the trustees after they have ceased to act as executors. He is one of four beneficiaries wbo are to share in the income from the trust estate, and the bill is brought, not to have the sale declared void as to himself alone, or to make the executors account to the trust estate for the full value of the stock to the extent of his interest in the trust estate, but the bill is so framed as to call upon the court to adjudicate upon the rights of the other beneficiaries, who may have consented to the sale, or over whom, by reason of their being citizens of Massachusetts, this court has no jurisdiction. This circumstance alone, if the question of jurisdiction rests at all in the discretion of the court, should cause it to hesitate to entertain a suit of this character, where it is plain that the state probate court has full jurisdiction over the subject-matter and all the parties in interest. Under these circumstances, and at this stage in the settlement of the estate, this court is asked, in effect, by the present bill, to take $.375,000 out of the possession of the probate court, and to substitute therefor 375 shares of Globe stock. It is asked to disturb the res in the possession of another court. It is called upon to interrupt the administration of the estate by the probate court before the debts or specific legacies have been paid, or the executors have rendered any account, and while the entire estate is in the actual possession of the probate court. Although the determination of the question of jurisdiction in this class of cases, as shown by the authorities, is not always free from difficulty, there is one principle which has been firmly established, and which applies to the present case. Where property is in the possession of one court of competent jurisdiction, such possession cannot be disturbed by process issued out of another court. Hie possession of the property of a decedent by an administrator appointed by a state court is the possession of the court, and such possession cannot be disturbed by another court.\nIn Byers v. McAuley, 149 U. S. 608, 614, 615, 13 Sup. Ct. 908, 37 L. Ed. 871, the court said:\n“It is a rule oí general application that, where property is in the actual possession oí one court of competent jurisdiction, such possession cannot be disturbed by process out oí another court. The doctrine has been affirmed again and again by this court. Hagan v. Lucas, 10 Pet. 400, 9 L. Ed. 470; Taylor v. Carryl, 20 How. 583, 15 L. Ed. 1028; Peck v. Jenness, 7 How. 612, 625, 12 L. Ed. 841; Freeman v. Howe, 24 How. 450, 16 L. Ed. 749; Ellis v. Davis, 109 U. S. 485, 498, 3 Sup. Ct. 327, 27 L. Ed. 1006; Krippendorf v. Hyde, 110 U. S. *646276, 4 Sup. Ct. 27, 28 L. Ed. 145; Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355, 28 L. Ed. 390; Borer v. Chapman, 119 U. S. 587, 600, 7 Sup. Ct. 342, 30 L. Ed. 532. Secondly. An administrator appointed by a state court is an officer of that court. His possession of the decedent’s properly is a possession taken in obedience to the orders of that court. It is the possession of the court, and it is a possession which cannot be disturbed by any other court. Upon this proposition we have direct decisions of this court.” Yonley v. Lavender, 21 Wall. 276, 22 B. Ed. 536; Williams v. Benedict, 8 How. 107, 12 L. Ed. 1007; Vaughn v. Northup, 15 Pet. 1, 10 L. Ed. 639; Peale v. Phipps, 14 How. 307, 14 L. Ed. 459.\nIt was held in Byers v. McAuley that a citizen of another state may’ proceed in a federal court to establish his right to a share in the estate of a deceased person, or to establish a debt against such estate, but he cannot proceed in any way so as to disturb the actual possession of the property by the state probate court. This is not a suit by a beneficiary against trustees seeking to avoid a sale of specific property held in trust. Morse v. Hill, 136 Mass. 60. It is not a suit brought for the possession of real estate devised in trust under á will. Harrison v. Rowan, 4 Wash. C. C. 202, Fed. Cas. No. 6,143. It is not a suit by a distributee against the administrator and the sureties on his bond to obtain his distributary share in the estate of a decedent. Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260. It is not a suit by a creditor to establish a debt against the estate. Yonley v. Lavender, 21 Wall. 276, 22 L. Ed. 536. It is not a suit concerning trust property, brought after the executors have rendered their final account in the probate court, and the residue of the estate has passed to them as trustees. In Colt v. Colt, 111 U. S. 566, 581, 4 Sup. Ct. 553, 28 L. Ed. 520, the court said:\n“As long as personal property is held by executors as part of the estate of the testator, for the payment of debts or legacies, or as a residuum to be distributed, they hold it by virtue of their office, and are accountable for it as executors. That liability only ceases when it has been taken out of the estate of the testator, and appropriated to and made the property of the cestui que trust.”\nWe have before us in this case the question whether, during the time the estate is. in process of administration in the state probate court, and is in tlie actual possession of that court, and before the executors have rendered any account, a federal court will entertain a bill in equity, brought by a cestui qne trust under a trust fund composing the general residuary estate of the testator, to set aside a sale of stock made by the executors, and to take the proceeds of the sale out of the possession of the probate court, and substitute therefor the property sold. We have been referred to no case where si court of equity has taken jurisdiction under such circumstances. The present bill, in our opinion, cannot be sustained either on principle or authority. As a general rule, an executor who has not settled his final account in the probate court is not liable to be charged by suit in equity by the residuary legatees for property sold by him in violation of his trust. This was so held, and, as we think, properly, by the supreme court of Massachusetts in Morgan v. Botch, 97 Mass. 396. In that case the court said:\n“We do not perceive that the residuary legatees can require anything more than that the stock shall be charged at its utmost value in the probate settle*647ment of the. estate. Full justice will be done to them by such a course. They have no right to a transfer of the slock in specie to them, or in trust for their benefit. All they are entitled to is the residue in the executor’s hands after payment of debts, specific bequests, and charges of administration, which is to be ascertained as a pecuniary balance. They are interested merely in the amount of the residue, as to which all their rights can be fully protected in the probate court. A very different case from the present would be presented if the executor’s account had been finally settled in ignorance of the improper character of the sale. Then, perhaps, a court of equity, if the remedy in the probate court were lost, might enforce a trust, and order a new sale by the executor, or afford other appropriate relief to enable the parties beneficially interested in the estate to realize the full value of the property.”\nThe demurrer is sustained, and the bill dismissed, with costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"jordan-v-taylor","summary":"In Equity. On demurrer to bill."} {"case_name":"Stewart v. United States","case_name_full":"Stewart v. United States","case_name_short":"Stewart","citation_count":0,"citations":["505 U.S. 1227"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1992-06-29","date_filed_is_approximate":false,"id":9123095,"opinions":[{"ocr":true,"opinion_id":9117652,"opinion_text":"\nC. A. 5th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"stewart-v-united-states"} {"case_name":"Munoz v. Board of Trustees of the University of the District of Columbia","case_name_short":"Munoz","citation_count":0,"court_full_name":"District Court, District of Columbia","court_jurisdiction":"USA, Federal","court_short_name":"District of Columbia","court_type":"FD","date_filed":"2010-08-10","date_filed_is_approximate":false,"id":2665491,"judges":"Judge Ellen S. Huvelle","nature_of_suit":"Civil","opinions":[{"author_id":1582,"download_url":"https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv0935-33","ocr":false,"opinion_id":2665491,"opinion_text":" UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n____________________________________\n )\nEMMA MUÑOZ, )\n )\n Plaintiff, )\n )\n v. ) Civil Action No. 08-0935 (ESH)\n )\nBOARD OF TRUSTEES OF THE )\nUNIVERSITY OF THE DISTRICT OF )\nCOLUMBIA, )\n )\n Defendant. )\n____________________________________)\n\n\n MEMORANDUM OPINION\n\n Plaintiff Emma Munoz filed the above-captioned action against the Board of Trustees of\n\nthe University of the District of Columbia (“UDC”), alleging that defendant, her employer, had\n\nviolated her rights under the due process and equal protection clauses of the Constitution, federal\n\nemployment law, and District of Columbia law. The Court dismissed all of plaintiff’s claims.\n\n(Memorandum Opinion and Order, Dec. 3, 2008 [dkt. #15] (“2008 Partial Dismissal Order”);\n\nOrder, Feb. 5, 2009 [dkt. #23] (“2009 Final Dismissal Order”).) Plaintiff’s appeal is now\n\npending1 (Notice of Appeal, Mar. 6, 2009 [dkt. # 24]), but plaintiff, proceeding pro se, is also\n\nseeking relief under Federal Rules of Civil Procedure 60(b)(1) and 60(b)(3). (Pl.’s Motion for\n\nRelief From Final Judgment, Jan. 21, 2010 [dkt. #27] (“Mot. for Relief”).) Due to the pending\n\nappeal, which deprives the Court of jurisdiction to rule on a Rule 60(b) motion, plaintiff instead\n\nasks the Court for an order “stat[ing] either that it would grant the motion if the court of appeals\n\n\n\n1\n Plaintiff’s complaint also included claims against April Massey, her immediate supervisor, but\nplaintiff consented to their dismissal with prejudice. (Minute Order, Aug. 4, 2008.)\n\fremands for that purpose or that the motion raises a substantial issue.” Fed. R. Civ. P.\n\n62.1(a)(3). For the reasons stated herein, plaintiff’s motion will be denied.\n\n BACKGROUND\n\n In relevant part, plaintiff’s complaint included claims for discrimination and retaliation in\n\nviolation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Compl. ¶¶ 60-\n\n74)2; discrimination and retaliation in violation of the District of Columbia Human Rights Act\n\n(“DCHRA”), D.C. Code Ann. § 2-1401.01 et seq. (id. ¶¶ 75-68 (Counts VII-IX)); intentional\n\ninfliction of emotional distress (id. ¶¶ 87-91); and deprivation of her constitutional right to\n\nprocedural due process (id. ¶¶ 42-49) and equal protection (id. ¶¶ 50-55) under 42 U.S.C. §\n\n1983.\n\n Defendant filed a motion to dismiss the complaint for failure to state a claim pursuant to\n\nFederal Rule of Civil Procedure 12(b)(6). (Def.’s Mot. to Dismiss, Sept. 10, 2008 [dkt. # 10].)\n\nUpon consideration of the allegations in the complaint, defendant’s motion and plaintiff’s\n\nopposition thereto, the Court dismissed plaintiff’s Title VII, DCHRA and intentional infliction of\n\nemotional distress claims, but gave plaintiff the opportunity to file an amended complaint as to\n\nher constitutional claims against UDC. (2008 Partial Dismissal Order at 7-8, 11.)\n\n On December 15, 2008, plaintiff filed an amended complaint that was limited to\n\nconstitutional due process and equal protection claims. (First Amended Compl., Dec. 15, 2008.)\n\n\n\n2\n Plaintiff’s complaint alleged three Title VII claims: (1) discrimination based on race and\nnational origin during the course of her employment (Compl. ¶¶ 60-64) (Count IV)); (2)\ndiscrimination based on race and national origin in constructively discharging and/or terminating\nplaintiff’s employment (id. ¶¶ 65-69 (Count V)); and (3) retaliation for complaining about this\ndiscrimination to UDC officials and filing grievances about the alleged discrimination with UDC\nand the EEOC. (Id. ¶¶ 70-74 (Count VI).) These same claims appear under plaintiff’s DCHRA\nclaims in Count VII-IX. (Id. ¶¶ 75-86.)\n\n 2\n\fIn addition to restating those claims as violations of the Fifth Amendment (as opposed to the\n\nFourteenth Amendment), plaintiff altered and added to the factual allegations of her original\n\ncomplaint. Plaintiff did not, however, ask the Court to reconsider its 2008 Partial Dismissal\n\nOrder in light of these revised factual allegations. Defendant moved to dismiss the amended\n\ncomplaint. (Mot. to Dismiss, Dec. 30, 2008 [dkt. #19]; Supp. Mot. to Dismiss, Dec. 31, 2008\n\n[dkt. #20].) On February 5, 2009, after a hearing, the Court granted the motion to dismiss and\n\nentered a final order dismissing the case with prejudice. (See 2009 Final Dismissal Order.)\n\n Plaintiff appealed both the 2008 Partial Dismissal Order and the 2009 Final Dismissal\n\nOrder. (Notice of Appeal, Mar. 6, 2009.) Then, on January 21, 2010, almost one year after the\n\nentry of the 2009 Final Dismissal Order, plaintiff filed the pending motion for relief from final\n\njudgment pursuant to Federal Rule of Civil Procedure 60(b)(1) and 60(b)(3). The Court of\n\nAppeals proceeded to grant plaintiff’s unopposed motion to hold her appeal in abeyance pending\n\nthis Court’s ruling on her motion for relief from judgment. (Order, Munoz v. Board of Trustees,\n\nNo. 09-7028 (D.C. Cir., Jan. 22, 2010) [dkt. #26].)\n\n ANALYSIS\n\n Federal Rule of Civil Procedure 60(b) sets forth the grounds upon which a “court may\n\nrelieve a party . . . from a final judgment [or] order.” Fed. R. Civ. P. 60(b). “Rule 60(b) was\n\nintended to preserve the delicate balance between the sanctity of final judgments . . . and the\n\nincessant command of the court’s conscience that justice be done in light of all the facts.” Good\n\nLuck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980) (internal quotations\n\nomitted). “But as the Supreme Court has said, ‘[t]here must be an end to litigation someday, and\n\nfree, calculated, deliberate choices are not to be relieved from.” Id. at 577 (quoting Ackermann\n\nv. United States, 340 U.S. 193, 198 (1950)). “Rule 60(b) cannot, therefore, be employed simply\n\n 3\n\fto rescue a litigant from strategic choices that later turn out to be improvident.” Id. In addition,\n\n“a party that has stipulated to certain facts or has not presented known facts helpful to its cause\n\nwhen it had the chance cannot ordinarily avail itself on rule 60(b) after an adverse judgment has\n\nbeen handed down.” Id. To obtain Rule 60(b) relief, “the movant must provide the district court\n\nwith reason to believe that vacating the judgment will not be an empty exercise or a futile\n\ngesture.” Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995). A district judge is\n\n“vested with a large measure of discretion in deciding whether to grant a Rule 60(b) motion.”\n\nTwelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988); see also\n\nMurray v. District of Columbia, 52 F.3d at 355 (“An appellate court’s review of the denial of a\n\nRule 60(b) motion is for abuse of discretion.”)\n\n Plaintiff seeks relief under two of Rule 60(b)’s provisions: (1) for “mistake, inadvertence,\n\nsurprise or excusable neglect,” Fed. R. Civ. P. 60(b)(1); and (2) for “fraud . . . ,\n\nmisrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3). Specifically,\n\nplaintiff contends that “mistakes” made by her counsel, defendant’s counsel and the Court\n\nprovide grounds for relief under Rule 60(b)(1) and that “misrepresentations” by defendant’s\n\ncounsel warrant relief under Rule 60(b)(3).\n\nI. TIMELINESS\n\n Defendant argues that plaintiff’s motion is untimely to the extent it seeks relief from the\n\nCourt’s 2008 Partial Dismissal Order. A motion seeking relief under either Rule 60(b)(1) or\n\n60(b)(3) must be made “no more than a year after the entry of the judgment or order or the date\n\nof the proceeding.” Fed. R. Civ. P. 60(c)(1). Plaintiff’s motion was filed on January 20, 2010,\n\nmore than one year after the entry of the 2008 Partial Dismissal Order. However, because Rule\n\n60(b) applies only to “final” judgments or orders, the one-year time limit for seeking relief under\n\n 4\n\fRule 60(b)(1) or Rule 60(b)(3) begins to run only upon the entry of a final judgment or order.\n\nSee Fed. R. Civ. P. 60(b) (Advisory Committee Notes re 1946 Amendment) (“The addition of\n\nthe qualifying word ‘final’ emphasizes the character of the judgments, orders or proceedings\n\nfrom which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within\n\nthe restrictions of the rule, but rather they are left subject to the complete power of the court\n\nrendering them to afford such relief from them as justice requires.”) Here, the “final” order\n\ndismissing plaintiff’s case was not entered until February 5, 2009, making plaintiff’s motion for\n\nrelief timely filed.\n\nII. RULE 60(b)(1)\n\n Plaintiff’s motion identifies numerous “mistakes” allegedly made by her counsel,\n\ndefendant’s counsel, and the Court as the basis for her motion for relief under Rule 60(b)(1).\n\n(Mot. for Relief at 2-25.) As described by plaintiff, the mistakes include (1) “mistakes of fact”\n\nmade by her counsel, as reflected in the complaint, the first amended complaint, and during the\n\nFebruary 5, 2009 hearing (Mot. for Relief at 2-3, 5-16 (mistake #’s 1-13)); (2) “mistakes of fact\n\nand misrepresentations of fact” made by defendant’s counsel in filings and during oral argument\n\non February 5, 2009 (id. at 2-3, 16-18 (mistake #’s 14-16)); (3) “mistakes of fact and errors of\n\nlaw” made by the Court, either as “a direct result of mistakes and misrepresentations made by\n\ncounsel” or “[its] own mistakes of fact resulting in erroneous inferences of fact, erroneous\n\nfindings of fact, and erroneous conclusions of law” in the December 2008 Memorandum\n\nOpinion and in its oral ruling at the February 5, 2009 hearing. (Id. at 2-3, 19- (mistake #’s 17-\n\n19, 22-32 (#’s 20-21 are skipped).) These alleged mistakes (among which there is substantial\n\noverlap) fall into three categories: (1) plaintiff’s counsel’s “mistakes” of failing to allege\n\nadditional claims (mistake #’s 9-13); (2) the Court’s “mistakes” of legal reasoning (mistake #’s\n\n 5\n\f19, 22-29, 31,32); and (3) factual mistakes made by plaintiff’s counsel, defendant’s counsel,\n\nand/or the Court (mistake #’s 1-8, 14-18).\n\n A Rule 60(b)(1) motion “allow[s] district courts to correct only limited types of\n\nsubstantive errors.” Hall v. C.I.A., 437 F.3d 94, 99 (D.C. Cir. 2006). Moreover, “relief will not\n\nbe granted under Rule 60(b)(1) merely because a party is unhappy with the judgment. Instead,\n\nthe party must make some showing of why he was justified in failing to avoid mistake or\n\ninadvertence.” 11 C. Wright, A. Miller & M.K. Kane, Federal Practice & Procedure § 2858 (2d\n\ned. 1995 & 2010 Update). Here, of the mistakes plaintiff identifies, only the alleged factual\n\nmistakes are potentially grounds for Rule 60(b)(1) relief. For other reasons, though, these\n\nalleged mistakes do not persuade the Court that relief is warranted.\n\n A. Plaintiff’s Counsel’s “Failure To Allege” Additional Claims\n\n In plaintiff’s motion, she identifies as “mistakes of omission” made by her counsel for\n\n“fail[ing] to allege” the following claims: (1) breach of employment contract; (2) ongoing and\n\ncontinuing violations of DC regulations; (3) ongoing and continuing COBRA violations; (4)\n\nongoing and continuing breach of fiduciary duty; (5) ongoing and continuing Title VII claim for\n\nintentional discrimination. (Mot. for Relief at 14-16.) However, Rule 60(b)(1) is not a vehicle\n\nfor raising new legal theories. See Good Luck Nursing Home, 636 F.2d at 577 (“Rule 60(b)\n\ncannot, therefore, be employed simply to rescue a litigant from strategic choices that later turn\n\nout to be improvident.”); see also Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356-57 (5th\n\nCir.1993) (“a court would abuse its discretion if it were to reopen a case under Rule 60(b)(1)\n\nwhen the reason asserted as justifying relief is one attributable solely to counsel’s carelessness\n\nwith or misapprehension of the law”); Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 607 (7th\n\nCir.1986) (“Neither ignorance nor carelessness on the part of the litigant or his attorney provide\n\n 6\n\fgrounds for relief under Rule 60(b)(1).”); Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d\n\n1097, 1101, 1103 (9th Cir. 2006) (mistakes resulting from attorney negligence “are more\n\nappropriately addressed through malpractice claims” than under Rule 60(b)(1)).)3 Accordingly,\n\nplaintiff’s attorney’s alleged “mistakes” in failing to bring additional legal claims do not warrant\n\nRule 60(b)(1) relief.\n\n B. Legal Errors Allegedly Made by the Court\n\n Plaintiff’s motion also includes a litany of legal “mistakes” made by the Court.4\n\nStanding alone, a party’s disagreement with a district court’s legal reasoning or analysis is\n\nrarely, if ever, a basis for relief under Rule 60(b)(1). A number of federal courts of appeal have\n\nheld that a party may not use Rule 60(b)(1) to assert that the district court made an error of legal\n\nreasoning, reasoning that the appropriate place to challenge alleged errors of law is by filing an\n\nappeal. See, e.g., Elias v. Ford Motor Co., 734 F.2d 463, 467 (1st Cir.1984); Smith v. Evans, 853\n\nF.2d 155, 158 (3d Cir.1988); McKnight v. U.S. Steel Corp., 726 F.2d 333 (7th Cir.1984); Spinar\n\nv. South Dakota Board of Regents, 796 F.2d 1060, 1062 (8th Cir.1986); see also Ward v.\n\nKennard, 200 F.R.D. 137, 139 (D.D.C. 2001) (discussing cases). Even in those courts that allow\n\nlegal errors to be raised in a Rule 60(b)(1) motion, the circumstances under which such errors are\n\ncognizable are usually very limited, such as an intervening change in law. See Ward, 200 F.R.D.\n\nat 139 (citing Tarkington v. United States Lines Co., 222 F.2d 358, 360 (2d Cir. 1955)).\n\n\n\n\n3\n For the same reason, plaintiff cannot obtain relief based on her newly raised argument that\nequitable tolling or equitable estoppel should have been applied to the claims dismissed on\nstatute of limitations grounds. (See Mot. for Relief, Ex. 20, at 10-18.)\n4\nTo the extent these alleged legal errors arise out of or are inextricably linked to alleged factual\nmistakes, they are not grounds for relief for the reasons set forth below.\n\n 7\n\f Although the Court of Appeals for the District of Columbia Circuit has “declined to\n\ndecide as a general rule whether errors in legal reasoning may be corrected by Rule 60(b)(1)\n\nmotions,” Computer Professionals for Social Responsibility v. United States Secret Service, 72\n\nF.3d 897 (D.C. Cir. 1996) (citing Center for Nuclear Responsibility, Inc. v. United States\n\nNuclear Regulatory Comm’n, 781 F.2d 935, 939-40 (D.C. Cir. 1986)),5 it has only recognized\n\nthe possibility where the district court has made an “obvious error,” such as basing its legal\n\nreasoning on case law that it failed to realize had recently been overturned. See District of\n\nColumbia Fed’n of Civic Ass’ns v. Volpe, 520 F.2d 451, 451-53 (D.C. Cir. 1975); see also\n\nRockefeller ex rel. U.S. v. Washington TRU Solutions LLC, 2004 WL 180264 (D.C. Cir. 2004)\n\n(upholding denial of Rule 60(b)(1) relief where “appellant has not shown that the district court\n\ncommitted obvious error”); see also Bestor v. F.B.I., 539 F. Supp. 2d 324 (D.D.C. 2008) (“this\n\ncircuit also allows the rule to reach the court’s alleged legal errors in the very limited situation\n\nwhen the controlling law of the circuit changed between the time of the court’s judgment and the\n\nRule 60 motion”); Ward, 200 F.R.D. at 139 (“the court holds that the plaintiff fails under Rule\n\n60(b) since he is merely arguing that the court made an error of legal reasoning”).\n\n As explained in Center for Nuclear Responsibility, precluding the application of Rule\n\n60(b)(1) to substantive legal errors serves two important purposes: (1) it avoids eviscerating the\n\nmuch shorter time limitation imposed by Rule 59(e) on motions to “alter or amend the\n\njudgment”; and (2) it avoids indirectly extending the appeal period. 781 F.2d at 939. Here,\n\n5\n In Center for Nuclear Responsibility, the Court observed that “[a]lthough Volpe could be read as\nadopting the more liberal interpretation of Rule 60(b)(1), allowing correction of substantive legal\nerrors during the appeal period, that case involved the unique situation where the controlling law\nof the circuit had changed between the time of the judgment and the time of the motion. Whether\nwe would extend this rule to allow corrections of substantive legal errors where no such change\nin the law of the circuit has occurred we need not decide today.” 781 F.3d at 940.\n\n 8\n\fplaintiff has pointed to no “obvious” legal error or intervening change in law. Accordingly, to\n\nthe extent that plaintiff’s motion seeks to challenge the Court’s legal reasoning in light of the\n\nrecord it had before it, those arguments can and should be addressed on appeal.\n\n C. Factual Mistakes\n\n Plaintiff contends that her counsel filed a complaint (and a first amended complaint) that\n\nincluded a number of factual mistakes, which were then adopted and relied upon by defendant’s\n\ncounsel and the Court. These mistakes fall into two categories: (1) mistakes that plaintiff never\n\nsought to correct until she filed this motion for relief, almost a year after the Court dismissed her\n\ncase; and (2) mistakes in the original complaint that plaintiff’s counsel “corrected” in the First\n\nAmended Complaint.\n\n 1. Mistakes Plaintiff Never Tried To Correct Prior to Filing Her Motion\n for Relief from Judgment\n\n Plaintiff identifies the following as mistakes in the allegations in the original complaint\n\nthat she is only now seeking to correct: (1) the Complaint alleged the initial EEOC filing date to\n\nbe February 14, 2007, but she now asserts that it should have been July 17, 2006, the date of her\n\n“initial inquiry” (Mot. for Relief at 5); (2) the Complaint alleged she was one of two Hispanic\n\nfaculty members, when she was in fact the only one (id. at 5-6); (3) the Complaint alleged that\n\nher sick leave expired in February 2006, but she now asserts it should have been qualified with\n\nthe phrase “according to UDC” because her sick leave was not in fact exhausted (id. at 8); (4) the\n\nComplaint alleged that plaintiff filed a single internal grievance with UDC under the collective\n\nbargaining agreement, but she now asserts that she filed 3 grievances (id. at 11-12); (5) the First\n\nAmended Complaint alleged that her due process and equal protection claims accrued on\n\nNovember 18, 2005, but she now contends that “nothing” accrued then or earlier (id. at 12); and\n\n\n 9\n\f(6) the First Amended Complaint alleged that plaintiff was constructively terminated on\n\nFebruary 1, 2006, but she now argues that the date constructive termination occurred is a legal\n\nissue for the Court to decide. (Id. at 13.)\n\n The fault for the alleged mistakes in the allegations of the complaint and/or the first\n\namended complaint lies entirely with plaintiff or her counsel. And plaintiff proffers no\n\npersuasive justification for the failure to avoid these mistakes in the first place or for not\n\nattempting to correct them until almost a year after the 2009 Final Dismissal Order. It is well-\n\nestablished the Rule 60(b) is not designed to help “[a] party that has stipulated to certain facts or\n\nhas not presented known facts helpful to its cause when it had the chance,” Good Luck Nursing\n\nHome, 636 F.2d at 577, or to provide relief due to “ignorance nor carelessness on the part of a\n\nlitigant or his attorney.” Bershad v. McDonough, 469 F.2d at 1337. Similarly, the Court does\n\nnot believe Rule 60(b)(1) is designed to give a plaintiff a second bite at the apple by changing\n\nthe factual allegations where the plaintiff has no excuse for failing to include the correct factual\n\ninformation in the complaint that was filed with the Court and upon which the Court based its\n\nrulings. Accordingly, the alleged factual mistakes in the complaint and the first amended\n\ncomplaint do not support Rule 60(b)(1) relief.\n\n If plaintiff is not entitled to relief based on the alleged factual mistakes made by her or\n\nher counsel, it necessarily follows that she is not entitled to relief because defendant’s counsel\n\nand the Court adopted and relied on these same mistakes. Accordingly, the fact that defendant\n\nadopted and restated the allegedly incorrect EEOC filing date (Mot. for Relief at 17), that\n\ndefendant attached a copy of the DCOHR charge to its papers that reflected that date (id. at 17-\n\n18), that defendant asked the Court to take judicial notice of that document (id. at 18), that the\n\n\n\n 10\n\fCourt relied on the alleged EEOC filing date (id. at 19), and that the Court took judicial notice of\n\nthe document filed by defendant (id. at 20), cannot be grounds for invoking Rule 60(b)(1).\n\n 2. Mistakes Plaintiff’s Counsel “Corrected” in the First Amended\n Complaint\n\n The other type of factual mistake identified by plaintiff are mistakes that plaintiff’s\n\ncounsel corrected in the First Amended Complaint. Plaintiff identifies only two specific\n\ncorrections: (1) the allegation in the Complaint that plaintiff had been placed on indefinite\n\nadministrative leave was corrected in First Amended Complaint to say that she was placed on\n\npaid administrative leave for the spring semester (Mot. for Relief at 6); and (2) the allegation in\n\nthe Complaint that plaintiff was forced to take sick leave in the Fall of 2005 due to “severe\n\nemotional distress and anger” was corrected in First Amended Complaint to say that she\n\n“requested and was placed on sick leave.” (Id. at 7).\n\n Because the First Amended Complaint was filed after the December 3, 2008 Partial\n\nDismissal Order but before the February 5, 2009 Final Dismissal Order, plaintiff had ample\n\nopportunity to ask the Court to reconsider its Partial Dismissal Order based on the “corrected\n\nfacts” in the First Amended Complaint. See Fed. R. Civ. P. 54. Plaintiff did not do so. Indeed,\n\nplaintiff did not seek relief until almost a year after the final order dismissing the case was filed.\n\nPlaintiff has proffered no justification for her failure to seek reconsideration prior to the 2009\n\nFinal Dismissal Order or for waiting almost a year to see relief based on mistakes that were\n\n“corrected” in December 2008. To reiterate, Rule 60(b)(1) does not exist to save parties from\n\nstrategic decisions or inexcusable neglect such as occurred here. Nor did the Court make a\n\n“mistake” by not sua sponte revisiting the 2008 Partial Dismissal Order in light of the revised\n\nallegations of the First Amended Complaint. See, e.g., MBI Group, Inc. v. Credit Foncier Du\n\n\n 11\n\fCameroun, No. 09-7079, slip op. at 11 (D.C. Cir. Aug. 6, 2010) (“District courts need not refer\n\nback to prior filings to identify arguments that the moving party could (and should) have\n\naddressed in the motion then under consideration.”)6 Accordingly, plaintiff cannot obtain relief\n\nfrom the 2008 Partial Dismissal Order based on the “corrected” factual allegations in the First\n\nAmended Complaint. As for the February 5, 2009 Order, Plaintiff fails to identify where the\n\nCourt relied on the uncorrected facts in the Complaint in granting defendant’s motion to dismiss\n\nthe constitutional claims. Accordingly, plaintiff cannot obtain relief based on the claim the\n\nCourt failed to account for the corrections in the First Amended Complaint.\n\nIV. RULE 60(b)(3)\n\n Plaintiff also seeks relief under Rule 60(b)(3) based on defendant’s “misrepresentations.”\n\nFed. R. Civ. P. 60(b)(3). “In order to prevail on a motion under Rule 60(b)(3), plaintiff must\n\nshow actual prejudice, that is, he must demonstrate that defendant’s conduct prevented him from\n\npresenting his case fully and fairly.” Ramirez v. Department of Justice, 680 F. Supp. 2d 208\n\n(D.D.C. 2010) (citing Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C. Cir. 2004), and that\n\n“the fraud is attributable to the party or, at least, to counsel.” Richardson v. Nat’l R.R.\n\nPassenger Corp., 150 F.R.D. 1, 7 (D.D.C.1993). Here, plaintiff has not made that showing.\n\n\n\n6\n Similarly, plaintiff cannot use a Rule 60(b)(1) motion to raise a new theory or argument. Id.\nFor example, plaintiff contends that one of the legal errors the Court made was its determination\nthat the termination of her health insurance in July 2007 was “not an unlawful employment\npractice.” (See Mot. for Relief at 21.) However, plaintiff fails to acknowledge that the Court’s\nruling stemmed from the allegation in her complaint that the termination of her health insurance\nin July 2007 was a “direct result” of earlier adverse actions against plaintiff, not itself a\ndiscriminatory or retaliatory act. (See Compl. ¶¶ 39-41.) If plaintiff wanted the Court to revisit\nthis ruling based on a new theory, the time for raising the matter was prior to the final dismissal\norder, not in a Rule 60(b)(1) motion filed over a year after the Court dismissed that claim as a\nconsequence of her not returning to work and not an adverse action in violation of the anti-\ndiscrimination laws. (2008 Partial Dismissal Order at 6.)\n\n 12\n\f Plaintiff identifies the following as evidence of defendant’s “fraud . . . misrepresentation,\n\nor misconduct”: (1) that defendant “adopt[ed] and restate[d]” plaintiff’s “mistaken contention\n\nconcerning the initial EEOC Charge filing date” as its “own mistaken contention (Mot. for Relief\n\nat 17); (2) that defendant attached to its motion to dismiss a incomplete copy of plaintiff’s\n\nDCOHR charge, showing February 14, 2007, as the initial EEOC charge filing date (id. at 17-\n\n18); and (3) that defendant asked the Court to take judicial notice of that document. (Id. at 18-\n\n19.) As discussed above, plaintiff now asserts that July 17, 2006, rather than February 14, 2007,\n\nshould have been used as the EEOC filing date, making the key date for statute of limitations\n\npurposes 300 days prior to that earlier date. Even assuming that plaintiff is correct that the\n\nearlier date should have been utilized, there is nothing in the record that would support the\n\nconclusion that defendant’s fraud, misrepresentation or misconduct is responsible for this alleged\n\nerror. To the contrary, as plaintiff acknowledges, the alleged error first appears in her original\n\ncomplaint, which alleges that February 14, 2007, was the date she filed her “initial Charge of\n\nDiscrimination with the United States Equal Employment Opportunity Commission.” (Compl. ¶\n\n10.) Given that fact, she certainly cannot show that defendant’s adoption and use of that same\n\ndate caused her “actual prejudice.” Accordingly, plaintiff has failed to demonstrate any basis for\n\nrelief under Rule 60(b)(3).\n\n CONCLUSION\n\n For the reasons stated above, an accompanying order will deny plaintiff’s motion for\n\nrelief from judgment.\n\n\n /s/\n ELLEN SEGAL HUVELLE\n United States District Judge\nDate: August 10, 2010\n\n 13\n\f","page_count":13,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"munoz-v-board-of-trustees-of-the-university-of-the"} {"attorneys":"Lee N. Kump (John B. Thompson; Thompson & McMullan, on briefs), for appellant., Joseph M. Spivey, III (John E. Holleran; Hunton & Williams, on brief), for appellee.","case_name":"Chappell v. Virginia Electric & Power Co.","case_name_full":"E. Tyree Chappell v. Virginia Electric and Power Company","case_name_short":"Chappell","citation_count":10,"citations":["458 S.E.2d 282","250 Va. 169"],"court_full_name":"Supreme Court of Virginia","court_jurisdiction":"Virginia, VA","court_short_name":"Supreme Court of Virginia","court_type":"S","date_filed":"1995-06-09","date_filed_is_approximate":false,"headmatter":"\n Present: Carrico, C.J., Compton, Stephenson, Whiting, Lacy, and Keenan, JJ., and Poll, Senior Justice\n
\n Second Dist., Div. Two.\n
\n Nov. 2, 1951.]\n
\n April Term, 1956.)\n
\n After Judge Anderson’s death, Judge Thompson was substituted for Judge Anderson. He has listened to the tape of oral argument and read the briefs.\n
\n\n Honorable Earl H. Carroll, United States District Judge for the District of Arizona, sitting by designation.\n
\n\n Petition to review denied.\n
\nTaxation — Property Subject — Shipping—Exemptions—Constitutional Law. Under Const., art. 7, § 2, providing that the legislature shall provide by law a uniform and equal rate of assessment and taxation on all property in the state, Rem. & Bal. Code, § 9093, is unconstitutional in so far as it exempts from taxation ships or vessels whose situs is within this state, when they are used exclusively in trade between this state and other states and territories of the United States, or foreign countries.
Taxation — Shipping—Situs of Vessel. The permanent situs of a vessel engaged in foreign or domestic trade, for the purposes of taxation, is fixed by the domicile of the owner, where the port of registry and home port are in the same place and the vessel has not acquired a situs elsewhere.
"} {"attorneys":"Coldcn for the Plaintiff., Pendleton & Harison contra., Riggs in reply.","case_name":"Steinbach v. Ogden","case_name_full":"Joaquim L. Steinbach against William Ogden","case_name_short":"Steinbach","citation_count":0,"citations":["3 Cai. Cas. 1"],"court_full_name":"New York Supreme Court","court_jurisdiction":"New York, NY","court_short_name":"New York Supreme Court","court_type":"ST","date_filed":"1805-05-15","date_filed_is_approximate":true,"headnotes":"Under a count averring a loss by the barratry of the master, it is not incumbent on the assured to prove, that the master was not the owner. It must, if relied on as a defence, be shewn by the under-writer; a fraudulent sale and purchase by the master of a vessel, will not constitute such an ownership as to afford a defence to a claim for a loss by his barratry. A person contracting and dealing with a master who had purchased in his owner’s vessel, in his capacity of master, may recover under a count for barratry, a loss occasioned by the fraudelent conduct of such master.
","id":5618548,"judges":"Thompson","opinions":[{"author_str":"Thompson","ocr":true,"opinion_id":5463493,"opinion_text":"\nPer curiam delivered by\nThompson, J.\nThere is nothing in the case, tending to shew, that the agent of Steinbach had any knowledge of the manner in which McCulloch had conducted himself, or that he pretended to be owner of the vessel. All the circumstances stated, lead to the conclusion, that McCulloch was considered by him as master only. He appeared in the character of master. The bill of lading was signed by him as master. The agreement respecting the freight was made with him *4as-master, as the witness understood. Under this statement I think the agent must be deemed, prima facie at least, as dealing with him in the character of captain, and in no other capacity. addition to which he is described in the policy as master, so that the underwriter contracted to indemnify the plaintiff against tjie j)arra(-ry 0f this very man. It could not be incumbent on the assured to prove that the master was not the owner of the vessel. That would be calling on him to establish a negative. Proof of that fact, which is to operate as a discharge of the underwriter, lies on him ; and if the master was not the owner, it is immaterial, as it respects the present question, who was. It is unnecessary therefore to examine or determine whether the general freighter is tobe considered owner jiro hac vice, or not; for, it being admitted that MCulloch went to the Havana for fraudulent purposes, the underwriter will be liable for the loss by barratry, unless the master was also owner. I am satisfied that M'Culloch could not be considered as the owner. There does not appear to have heen any necessity for selling the vessel at St. Bartholomew’s. Independent of this, however, it is .expressly admitted, that the sale and all the proceedings were fraudulent. Such sale cannot be made the basis for establishing any rights, or exonerating from any responsibilities. It must, in judgment of law, be deemed ifiso facto void. The onus of proving that McCulloch was owner lay on the defendant, and it cannot be tolerated in a court of justice, that a party should be permitted to derive any benefit or advantage from a transaction confessedly founded in fraud. The opinion of the court, therefore is, that the plaintiff ..is entitled to recover as for a total loss.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"steinbach-v-ogden","summary":"THIS was an action upon a policy of Insurance, on the cargo of the sloop Britton, M'Culloch master, on a voyage from Trinidad to New-York, averring the loss to be from the barratry of the master. The subscription, interest, proof of loss and being admitted, a verdict was entered for the plaintiff, subject the opinion of the Court on the following case. The vessel, owned by some merchants in the United States, sailed from Norfolk in Virginia, on a voyage to Curracoa, under the command of McCulloch; who, instead of proceeding to his port destination, ran away with her, and went to the Island of St. Barholomew, where he procured a fraudulent survey, under which he sold vessel and cargo at public auction, becoming himself the purchaser of the sloop, but without taking a bill of sale from the vendue-master, who merely gave an account of the sale, stating him to be the purchaser. From St Bartnolomew's he went to Trinidad, and there having, in the character of Captain, contracted with the plaintiff's agent to take in a full freight, signed, as master, regular bills of lading for 244 hogsheads of sugar, and 189 quin-tais of Braziletto, deliverable to the plaintiff in New-York. this he sailed from Curracoa to the Havana, where he embezzled the whole cargo, but wrote from thence, ordering insurance on the vessel, in his own name, as owner. It will be contended on the other side, that M'Culloch was owner, as well as master, and therefore could not commit barratry. We, on the other hand, insist, that in judgment of law, he was master only; his fraudulent acts, barratrous, and the defendant consequently liable. The plaintiff dealt with him as master; he acted in that capacity, both in making the e agreement, and signing the bills .of lading. This, to a shipper, is sufficient to shew he was so, and throw the onus of proving the 1 ° contrary on the defendant. Ross v. Hunter 4 D. & E. 33. Against this, may be urged the fact of the purchase at St. Bartholomew’s. By this, it may be argued, he ceased to be captain, and became owner. The deduction, however, cannot be supported. He had only a fiduciary possession, and it is a settled principle, that a trustee cannot, even by a bona fide sale acquire a title against his cestui que trust. Berry v. Smith. Vern. 60. 34. A fortiori when the sale is fraudulent. That the vessel was originally delivered to M'Culloch with the assent of the owners, will not alter the position. A tortious conversion cannot be rendered less so, because the property converted was voluntarily put into the hands of the wrong-doer by the proprietor. If a horse, hired for a day, be ridden away with, animo furandi, it is, notwithstanding the manual tradition of the owner, a felony. The purchase then by M'Culloch was for the benefit, and on account of his employers. Under the circumstances detailed inthe case, a sale by him would not have passed any title, even to a third person. The reason is obvious; it is out of the general scope of a master’s authority, and extreme necessity alone will warrant such a measure. Ekins v. East India Company. 1 P. W. 395, Abbott, 2 to 4. Without such necessity, he can not even create a lien upon the ship; and that it actually exists, it is the duty of the person, in whose favour the charge is imposed, to enquire. Moll. b.2. c. 1. § 10. Bridgman’s Case, Hob. 12. 2 Marsh. 639. 2 Emer. 434. 441. But allowing the vessel to have been M'Culloch’s, still, as she was entirely freighted by the plaintiff, he was pro hac vice, the owner. Vallejo v. Wheeler, Cowp. 147. It is not necessary that there should be any written contract, or conveyance of the right in the ship for the voyage, to constitute a pro hac vice ownership. It is sufficient if the whole use and occupation of her is disposed of. Nutt v. Bordieu, 3 D. E. 327. Abbott. 82. 148. Ross v. Hunter 4 D. & E. 38. per Buller J. The principal question is, who, In insurance, is to be deemed the owner ? A general freighter of the whole ship cannot be considered so, when the captain is neither appointed by him, nor under his direction. There must be a control over the vessel to constitute an ownership. The had none here, and with respect to all the world, except perhaps the original proprietors, M’Culloch, by the purchase, was the owner. His signing the bills of lading, is no argument against this; the instrument is no more than a receipt for the goods shipped, and an engagement to carry them. Even a master-owner must thus contract for their conveyance, as there is, according to the established usage of trade, no other mode. -Ross v. Hunter, decided only, that it was hot necessary in an action on a policy averring the loss to be by barratry, to prove, negatively, that the master was not owner. Nor is it requisite that he should be so, with all the rights of a legal title, to prevent a possibility of committing barratry. A color of title is enough, and McCulloch’s was impeachable, only by his employers. As to third persons, it was-valid, for the trustee is accountable to his cestui que trust alone. Indeed as to land the trustee is the legal owner. The authority from Vernon therefore does not apply. In Parish v. Crawford, 2 Sera. 1251, the charterer was held not to be the owner, as the master was not of his appointment. The true criterion to determine the question of ownership, is by enquiring whether the control of the vessel has been parted with. It might perhaps be the safest rule with respect to barratry to say, that the assent which is to render the master’s act not barratrous, ought to be the assent of the owner of the subject matter of insurance. For, no reason can be assigned why the consent of the owner of the ship to the conduct of the master, should take away from the proprietor of the cargo his remedy against the insurer. If however the title of M‘Cul-loch is void against his owners, on account of the fraud, the defendant cannot set it up against us."} {"attorneys":"APPEARANCES OF COUNSEL, Spiros A. Tsimbinos for appellant., Frederick A. O. Schwarz, Jr., Corporation Counsel (Carolyn A. Reed of counsel), for respondent., Carol Goldstein and Lenore Gittis, Law Guardian.","case_name":"In re Lydia K.","case_name_full":"In the Matter of Lydia K. Commissioner of the New York City Department of Social Services, Respondent Lucille K.","citation_count":0,"citations":["67 N.Y.2d 681"],"court_full_name":"New York Court of Appeals","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Appeals","court_type":"S","date_filed":"1986-02-06","date_filed_is_approximate":false,"id":5688196,"opinions":[{"ocr":true,"opinion_id":5537367,"opinion_text":"\nOPINION OF THE COURT\nOn review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (112 AD2d 306).\nConcur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Decided February 6, 1986","precedential_status":"Published","slug":"in-re-lydia-k"} {"attorneys":"íl. M. TJttley, for plaintiff in error.’, \nA. J. Burnham, contra.\n","case_name":"Jewett v. Osborne","case_name_full":"C. P. Jewett v. C. E. Osborne","case_name_short":"Jewett","citation_count":0,"citations":["33 Neb. 24"],"court_full_name":"Nebraska Supreme Court","court_jurisdiction":"Nebraska, NE","court_short_name":"Nebraska Supreme Court","court_type":"S","date_filed":"1891-09-22","date_filed_is_approximate":false,"headnotes":"1. Bill of Exceptions: Failure of Judge to Sign. Excuses for the failure of the judge, before whom a cause was tried, to sign a bill of exceptions which is not signed, cannot be considered as a reason for sustaining the bill.
2. -: -. A bill of exceptions must be authenticated in some of the modes provided by law to authorize a reviewing court to act upon it. If a judge refuses to settle and sign a a bill duly presented to him for that purpose, the court, in a proper case, will compel action on his part and endeavor, as far as possible, to save the rights of the parties, but it cannot give credence to an unsigned bill.
3. Petitions set out in the opinion, liberally construed, state a cause of action, and alter verdict will be sustained.
","id":6764600,"judges":"Maxwell, Other","opinions":[{"author_str":"Maxwell","ocr":true,"opinion_id":6647356,"opinion_text":"\nMaxwell, J.\nThis action was brought in the district court of Keya Paha county by the defendant in error against the plaintiff, in error to recover damages caused by the destruction of certain property by fire.\nOn the trial of the cause the jury returned a verdict in favor of the defendant in error for the sum of $161.23, and a motion for a new trial having, been overruled, judgment was entered on the verdict. The cause was tried on the 6th day of June, 1889, and the motion for a new trial overruled and judgment on the verdict rendered on the 22d of that month.\nOn the 21st of November, 1889, application was made to Judge Kinkaid, before whom the case was tried, to settle and sign a bill of exceptions, and he made the following statement on the proposed bill:\n“This cause coming on for hearing on the application of defendant and to settle a bill of exceptions in this case, and the objections of plaintiff thereto, I find, on the facts herein and of record, defendant is not entitled to have a bill of exceptions settled in this case and his application is therefore relused, to which defendant excepts.\n“Nov. 21, 1887. M. P. Kinkaid, Judge.”\n*26The plaintiff in error, notwithstanding the refusal of the judge to settle and sign the proposed bill, filed the same in the office of the clerk of the district court, and it is now before us.\nA motion is now made by the defendant in error to strike the alleged bill from the files because the same is not signed by the judge — in other words, is not authenticated. The motion must be sustained. The statute authorizes the clerk of the district court to sign the bill when the parties agree that it is correct, and consent in writing that he may sign the same. Otherwise the judge before whom the cause was tried must settle and sign the bill. If he refuses to settle and sign the same, the law has provided a remedy to compel action. That must be done by a direct proceeding. In a collateral inquiry this court cannot enter into an inquiry as to the reasons which would justify the judge in refusing to affix his signature to the bill.\nThe bill not being signed, the motion must be sustained.\nIt is alleged that the petition on which the case was tried is defective and fails to state a cause of action. The petition is as follows:\n“Eirst — That plaintiff has the right of possession, and was, on the 8th day of April, A. D. 1887, in the possession, of the following described land, to-wit: The E. J N. E. and the S. ~W. \\ of the N. E. J, and the N. E. -J of the S. E. all of sec. 10, town 32, range 20, Keya Paha county, Nebraska, by reason of a United States homestead filing.\n“Second — That on the 8th day of April, 1887, the defendant, Charles P. Jewett, did operate and run a saw-mill near the land above described; that the said mill was run by power furnished and supplied by a steam boiler, the steam in said boiler being generated by a fire built and furnished with wood.\n“Third — That the said boiler was negligently furnished by defendant with a poor and defective screen, and that the *27smoke-stack of said boiler was negligently screened and operated in an improper and defective manner.\n“ Fourth — That the defendant run and fired the said boiler in an improper, careless, and defective manner, thereby endangering and destroying property.\n“Fifth — That on the 8th day of April, 1887, by reason of the negligence herein set forth, plaintiff herein was damaged and injured by reason of defendant negligently allowing sparks of fire escaping from the boiler herein mentioned, and setting on fire the grass in the immediate vicinity of said boiler, and that the fire thus caused did overrun the property and premises of the plaintiff herein described, and did burn, destroy, and injure property and timber of plaintiff, situate and being upon the land herein described, to the amount of $379.” An itemized statement of the property and goods of plaintiff so destroyed is hereto annexed, marked ‘ Exhibit A’ and made a part of this petition.\nExhibit A is as follows:\n2 hogs, wt. 200 lbs. each................................$15 00\n2 shoats..................................................... 5 00\n50 bu. corn................................................ 30 00\n300 ft. lumber............................................. 10 00\n1 cow shed................................................. 10 00\n1 stable.................................................... 15 00\n1 corn crib.................................................. 10 00\n1 hog pen................................................... 5 00\n1 doz. chickens............................................ 2 00\nTimber burnt and killed................................277 00\n$379 00\nThe answer to this is a general denial. Upon these issues the cause was tried and so far as we know no objections were made to the introduction of the evidence.\nAfter the rendition of the judgment objections were made to the sufficiency of the petition, which were sustained, and leave given to file a new petition, which is as follows:\n*28“First — That plaintiff has the right of possession, and was, on the 8th day of April, A. D. 1887, in possession, of the following described land, to-wit: The E. J of the N. E. £, and S. W. i of the N. E. J, and the N. E. £ of the S. E. ‡, all of section 10, township 32, range 20, Keya Paha county, Nebraska, by reason of a United States homestead filing and held by plaintiff in compliance of the laws of the United States.\n“ Second — That on the 8th day of April, 1887, the defendant Chas. P. Jewett did operate and run a saw-mill near the land above described; that said mill was run and operated by power furnished and supplied by a steam boiler, the. steam in said boiler being generated by a fire built and furnished with wood.\n“ Third — That the said boiler was negligently furnished by defendant with a poor and defective screen over the smoke-stack of said engine and boiler, and that the smoke-stack of said boiler was negligently screened and operated in a careless and improper and defective manner by negligently allowing the screen over said smoke-stack to remain open.\n“Fourth — That the defendant run and fired the said boiler in an improper, careless, and defective manner, thereby negligently endangering and destroying property.\n“Fifth — That on the 8th day of April, 1887, by reason of the negligence herein set forth and complained of by the plaintiff on the part of the defendant, the plaintiff herein was damaged and injured by reason of defendant negligently allowing sparks of fire to escape from the boiler and smoke-stack herein mentioned and setting on fire the grass in the immediate vicinity of said boiler and smokestack, and that the fire thus caused did overrun the property and premises of plaintiff herein described, and did burn, destroy, and injure property and timber of plaintiff, situated and being' upon the land herein described, to the amount of $379. An itemized statement of the property *29and goods of plaintiff so destroyed is hereto annexed and marked ‘ Exhibit A’ and made a part of this petition.”\nIn our view these petitions are' sufficient to sustain a verdict for loss of property by fire from negligence of the defendant below. The petitions are not models by any means, but, liberally construed, they do in effect allege that the defendant below negligently and carelessly permitted his steam engine to cast out fire therefrom, into the combustible material adjoining.said mill and s^; fire thereto, which spread onto and over the plaintiff’s land, and burned up and destroyed the property named of the plaintiff. The statement of the plaintiff’s interest in the property is not as full as it should have been, but the remedy for that defect is by motion, and it is impossible for us to say what, if any, damages were allowed for the alleged destruction of particular items.\nUpon the whole case it is apparent that there is no error in the record, and the judgment is\nAffirmed.\nThe other judges concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"jewett-v-osborne","summary":"Error to the district court for Keya Paha county. Tried below before Kinkaid, J."} {"attorneys":"For appellant there was a brief over the names of Messrs. Carey & Kerr, Mr. Harrison Allen and Mr. John H. McNary, with oral arguments by Mr. Allen and Mr. McNary., For respondent there was a brief with oral arguments by Mr. William M. Kaiser and Mr. Myron E. Pogue.","case_name":"Ford v. Oregon Electric Ry. Co.","case_name_full":"FORD v. OREGON ELECTRIC RY. CO.","case_name_short":"Ford","citation_count":0,"citations":["60 Or. 278","117 P. 809"],"court_full_name":"Oregon Supreme Court","court_jurisdiction":"Oregon, OR","court_short_name":"Oregon Supreme Court","court_type":"S","date_filed":"1911-09-26","date_filed_is_approximate":false,"disposition":"Reversed.","headnotes":"Deeds—Property Conveyed.
1. The word “heirs” is not necessary in a deed to convey a fee-simple estate, since, by the direct provisions of Section 7103, L. O. L., all of the grantor’s title passes unless intent to convey a less estate appears by the terms of the deed, or is necessarily implied therefrom.
Covenants—Covenants Running With Land.
2. A covenant in a right of way deed to an electric railway company, requiring it to stop all regular trains at a crossing on the grantor’s farm, ran with the land, and could be enforced by the grantor’s devisee.
Contracts—Public Policy—Establishment op Railroad Station.
3. An agreement in a right of ‘way deed, requiring an electric railway company to stop all regular trains for passengers at a crossing on the grantor’s farm, was void as against public policy; the validity of such a contract not depending upon whether the public has been actually injured thereby, but whether its enforcement might tend to injure the public.
Specific Performance—Enforcement—Discretion of Court—Contracts Against Public Policy.
4. Where the enforcement of a contract will inconvenience the public, equity will refuse to enforce it in the exercise of its discretionary power; the rule being frequently applied to contracts by a railroad company to stop its trains at certain places.
","id":7002835,"judges":"Bean","opinions":[{"author_str":"Bean","ocr":true,"opinion_id":6902306,"opinion_text":"\nMr. Justice Bean\ndelivered the opinion of the court.\nWe deem it better to consider the facts alleged in the complaint, combined with the evidence in the case. It is argued upon the part of defendant that, as the land was devised to plaintiff by Tilmon Ford, the covenantee, the covenant is merely personal to Tilmon Ford; that the covenant extends to a thing not in esse, and does not run with the land, and for this reason the plaintiff can*282not maintain- this suit, citing authorities based upon Spencer’s Case, 5 Coke, 16a, 1 Smith, Lead. Cas. 174 (note 11 Cyc. 1080), from which we quote as follows:\n“Spencer demised a house and lot to S. for years. S. covenanted for himself, his executors, and administrators that he, his executors, administrators, or assigns would build a brick wall on part of the land demised. S. assigned the term to J. and J. to Clark. Spencer sued Clark for a breach of the covenant to build the wall. The court by the first resolve held that a covenant only bound the assignee when it was concerning a thing in esse, parcel of the demise, not when it related to a wall to be built. By the second resolve, they held that, if the covenant had bound the ‘assigns’ by express words, it would have bound the assignee, although it was for a thing to be newly made, as it was to be upon the thing demised; but that if the covenant was for a thing to be done collateral to the land, and did not touch or concern the thing demised, in any sort, as if it were to build a house upon other lands of the lessor, the assignee should not be charged, although the covenant was for the covenantor and ‘his assigns.’ The two principles thus settled have always been acknowledged as law: That the assignee when not named is not bound by a covenant, except it relates to a thing in esse at the time, and that, when named, he is not bound by a covenant collateral to the land, but only for things to be done on or concerning the land.”\nIn Aikin v. Albany, V. & C. R. R. Co., 26 Barb. (N. Y.) 289, 293, it is said:\n“A covenant which is beneficial to or binding on the owner as owner, and on or to no other person, runs with the land. * * (Citing 5 Barn. & Adol. 11; Dolph v. White, 2 N. Y. 302.) * * Yet it is also held that where the thing covenanted, for, though not in esse, touches or concerns the thing demised, the covenant does run with the land. (Citing Allen v. Culver, 3 Denio [N. Y.] 285.) *28311 Cyc. 1081, citing Van Rensselaer v. Smith, 27 Barb. (N. Y.) 104.\n*282“Covenants are to be regarded as affecting the land, though not directly to be performed upon it, provided they tend to increase or diminish its value in the hands of.a holder.”\n*283“In order that a covenant may run with the land— that is, that its benefit or obligation may pass with the ownership—it must respect the thing granted or demised, and the act covenanted to be done or omitted must concern the land or estate conveyed. Whether a covenant will or will not run with the land does not, however, so much depend on whether it is to be performed on the land itself, as on whether it tends directly or necessarily to enhance its value or render it more beneficial and convenient to those by whom it is owned or occupied, for, if this be the case, every successive assignee of the land will be entitled to enforce the covenant. A covenant which may run with the land can do so only when there is a subsisting privity of estate between the covenantor and the covenantee; that is, when the land itself, or some estate or interest therein, even though less than the entire title, to which the covenant may attach as its vehicle of conveyance is transferred. If there is no privity of estate between the contracting parties, the assignee will not be bound by, nor have the benefit of, any covenants between the contracting parties, although they may relate to the land he takes by assignment or purchase from one of the parties to the contract. In such a case the covenants are personal and collateral to the land. On the other hand, if there is a privity of estate, a covenant which may run with the land will pass as an incident to a subsequent conveyance. But if any estate passes, so as to create privity, it is sufficient to carry the covenants, and the decided weight of authority is to the effect that covenants run with incorporeal as well as corporeal hereditaments.” 11 Cyc. 1080, 1083.\nSee, also, Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569, 572 (58 Am. Rep. 623); Taylor v. Florida E. C. Ry. Co., 54 Fla. 635 (45 South. 574: 16 L. R. A. [N. S.] 307: 127 Am. St. Rep. 155).\nIt is said in Duffy v. New York & H. R. R. Co., 2 Hilt. (N. Y.) 496, quoted from by Mr. Justice Moore in Brown v. Southern Pacific Co., 36 Or. 128 (58 Pac. 1104: 47 L. R. A. 409: 78 Am. St. Rep. 761):\n*284“But this nice distinction, originating at a time when it was necessary to use the word ‘heirs,’ or other words of inheritance, in a conveyance, in order to grant or convey an estate in fee, cannot be now said to exist, as in Norman v. Wells, 17 Wend, (N. Y.) 186, it was determined that those covenants run with the land, which are made touching or concerning it, and affect its value, and are not confined to those which relate to some physical act or omission upon it.”\n1. As said by Mr. Justice Moore in that case, the word “heirs” is not now necessary to create or convey an estate in fee simple. All of the grantor’s estate passes by his deed unless the intent to convey a less estate appears by express terms, or is necessarily implied from the language of the deed. Section 7103, L. O. L. See also, Ruhnke v. Aubert, 58 Or. 6 (113 Pac. 38), in which Mr. Justice McBride, in construing the reservation in the deed of right of way for an irrigating ditch says:\n“In determining whether a right granted is appurtenant or in gross, courts must consider the terms of the grant, the nature of the right, and the surrounding circumstances, giving effect, as far as possible, to the legally ascertained intention of the parties, but favoring always the construction of the grant as of an easement, appurtenant rather than of a right in gross. (Citing 10 Am. & Eng. Enc. Law (2 ed.) 405; Washburn, Ease. [4 ed.] 45;Stovall v. Coggins Granite Co., 116 Ga. 376 (42 S. E. 723). And the rule that the rights of parties to a deed must be ascertained from its words is in cases of this kind subject to the modification that surrounding circumstances may be taken into consideration in order to ascertain the intention of the parties. (Citing Jones, Ease., § 38; Jones, Real Prop., § 344.)”\nThe covenant in question is in the nature of a reservation, providing for a means of travel to and from the land mentioned and over the right of way granted to the railroad company. Tested by the rules laid down in the foregoing authorities, and many others to the same effect *285which might be cited, it is clear that, if by the covenant the right for a footpath or bridlepath had been reserved for the use of the owner or people occupying this farm along the right of way mentioned, there would be no question but that such a covenant would run with the land. The covenant is for the benefit of the owner, as owner, or occupant of the farm only, and apparently for the benefit of no other person. It has been held that the covenant to furnish gas for lighting and fuel to be used in buildings upon certain lands would run with the land: Ind. Nat. Gas Co. v. Hinton, 159 Ind. 398 (64 N. E. 224). See, also, a covenant to furnish water to be used upon land. Stanislous W. Co. v. Bachman, 152 Cal. 716 (93 Pac. 858: 15 L. R. A. [N. S.] 357); Ruhnke v. Aubert, 58 Or. 6 (113 Pac. 38); Tone v. Tillamook City, 58 Or. 382 (114 Pac. 938).\n2. We see no reason why a covenant to furnish electricity for lighting or telephone service or car service for the benefit and convenience of the owner and those residing upon certain farms, to which there is no other valid objection, should not, upon the same principle, be for the benefit of the devisees or assigns of the covenantee.\n3. It is further contended, however, that the provision of the deed in question is void as against public policy. It was said in the case of Burney’s Heirs v. Ludeling, 47 La. Ann. 73, 96 (16 South. 507, 516):\n“The railroad corporation was a quasi public agent, and it was its duty, independent of any agreement to secure advantage to it, to establish its stations at points most convenient for the public interests. An agreement, therefore, by the corporations for a part of the land to establish its depots or stations at particular points, is illegal.”\nIn Holladay v. Patterson, 5 Or. 177, in which Holladay, being a director and president of the 0. & C. Railroad Company, and the owner of the controlling interest in *286the stock thereof, agreed with Patterson that, in consideration of the payment to him of a certain sum of money, he would cause the line of road to be located on a certain route, and a depot to be built at a certain place, it is stated:\n“Railroad companies are defined to be puasi public corporations, and the directors act in a double capacity, to wit, as the agents for the company, and also as trustees for the public, clothed with an important public trust. 1 Redfield, Railways, 577, § 140, says: ‘The general duty of railway directors is an important and a public trust, and, whether undertaken for a compensation or gratuitously imposes a duty of faithfulness, diligence, and truthfulness in discharge of its functions in proportion to its difficulty and responsibility.’ It is, among other things, urged that this contract is not against public policy, because contrary to public interest, as the deflection of' the line of the road from the more direct route of the original survey would best subserve the public interest, and promote the welfare of the community through which the road passes. The question of the validity of the-contract does not, however,. depend upon the circumstances whether it can be shown that the public has, in fact, suffered any detriment, but whether the contract is, in its nature, such as might have been injurious to the public.”\nThe court held that this contract was void on the ground of public policy, and in the case of Oregon & C. R. R. Co. v. Potter, 5 Or. 228, a similar case, the court followed the former decision, holding the contract to be invalid. In Florida Cent. v. State, 31 Fla. 482 (13 South. 103: 20 L. R. A. 419, 423: 34 Am. St. Rep. 30), where the defendant town of Tavares filed a petition for mandamus to enforce a contract made by one Abrams, who gave the railway a right of way in the town and also a block of land, known as “Shore Park”, in consideration that the railway company would cause to be-constructed on the block a passenger depot, “and that all *287passenger trains of said railway company should stop at such passenger depot”, a case in which the contract was made direct with the railway company, the court ruled:\n“The case made, however, by the alternative writ before us does not seek merely to compel the erection of a depot building on the line of the respondent’s road at some point at or near the town of Tavares that will be reasonably subservient to the wants and convenience of the inhabitants and business of that community, leaving the exact spot of its location there to the discretion necessarily vested in the company in such matters; but the sole demand of the writ is that the respondent company shall be compelled to erect a depot building on the particular spot in said town known as ‘Shore Park’. * * It seems to be universally well settled that contracts undertaking to obligate a railroad company to establish its depot exclusively at a particular point are void as against public policy.”\nThere are several cases in which contracts similar to the one in question have been sustained in different states, where the statutes therein have either impliedly or otherwise sanctioned such aid being given to the railroad corporation. Among these are the Missouri Pac. Ry. Co. v. Tygard, 84 Mo. 263, 270 (54 Am. Rep. 97); Cumberland V. Ry. v. Baab, 9 Watts (Pa.) 458 (36 Am. Dec. 132); Kansas Pac. Ry. v. Hopkins, 18 Kan. 494. The case of Cedar Rapids & St. P. v. Spafford, 41 Iowa, 292, is based upon similar grounds. The decisions upon this subject are based upon the ground that it ought to be left to the discretion of the directors or officers of a railroad corporation to locate or relocate stations and stop trains where the interest of the public, and public necessity may be best subserved.\nA railroad company, being a public service corporation, owes its first and highest duty to the public, and any agreement having a tendency to interfere, or which may interfere, with that duty, is against public policy, and .should not be enforced in a suit in equity.\n*288It is claimed upon the part of plaintiff that the case at bar differs from that of Holladay v. Patterson, 5 Or. 177, in that a compliance with the' provision of the covenant in question would prohibit the stopping of trains at any other point. This is a matter, we think, in which the difference is in degree only. As was said in the last-named case, the question does not depend upon whether it can be shown that the public has in fact suffered any detriment, but whether the contract is in its nature such as might have been injurious to the public. Should a station be established or trains stopped upon the private property of the plaintiff, with no public roads or other means of access to such point, it certainly would interfere to a certain extent with the stopping of trains at other ■places and the service to the public. Authorities upon this question are not uniform. In the case óf Louisville, N. A. & C. R. R. v. Sumner, 106 Ind. 55, 62 (5 N. E. 404: 55 Am. Rep. 719), such cases are classed as follows: (1) Those containing stipulations, providing for the erection of stations or depots at particular places, and prohibiting them at other. (2) Those in which some officer of the company, for a consideration moving to him, undertakes to secure the location of stations and lines of railway, etc. (3) Those in which the agreement has been made between an individual and a railway corporation for the location of a station or depot at a particular place in consideration of a donation of money or property to the corporation, without any restriction or prohibition against any other location. It is claimed that the case at bar comes within the latter class, and the provision in the deed is not objectionable; that the consideration moving to the company differs from a consideration moving to some officer of the company. In principle, however, we are unable to see any difference in so far as the public is concerned. The company is represented by its. *289officers, and it matters little whether the consideration is paid to one officer or to all of the officers or to the company. The injury to the public would be just the same if its interests are interfered with. The rule announced in the Holladay Case is a salutary one, and under present day conditions the principle there enunciated should be adhered to.\nThe principal reason for plaintiff’s wishing a station at the place referred to, according to his testimony, is that he desires to subdivide and sell his land in five-acre tracts. When this is done, the conditions may be so changed and the number of people to be accommodated so increased that there will then be a greater public necessity for the station. This, however, is a matter of speculation, that can be determined only in the future. It appears that it is half a mile from the crossing of this private road to a county or other public road, and while plaintiff indicates, and no doubt in good faith, that he intends to lay out a road or let people cross his land, the conditions may change, and there is no certainty of any permanent means of ingress to or egress - from the proposed station.\n4. Cases involving contracts of this character, the questions of convenience and inconvenience to the public are considered, concerning which the rule is stated in 6 Pomeroy’s Equity Jurisprudence, §§ 795, 796, as follows:\n“Where the consequence of enforcement of the contract is to inconvenience the public, the discretionary power of equity is exercised to refuse its aid. This rule is frequently applied in contracts by which a railway has bound itself to do some act, as to build a private grade crossing, or stop its trains at complainant’s place. If the public service would be endangered or inconvenienced, with no corresponding benefit to complainant, he cannot have performance. But not every slight inconvenience to the public will be a reason for refusing performance. *290Specific performance not being an absolute right, the fact that enforcement would be of little or no benefit to the complainant, and a burden upon the defendant, is sufficient to constitute performance oppressive, and it will not be given. The disproportion between the burden upon the defendant and the gain to the plaintiff makes performance inequitable. Instances are found on the cases of restrictive covenants on land, where, the character of the neighborhood having changed, as, from a residence to a business neighborhood, the whole purpose of the covenant is gone, and enforcement would be of no benefit to complainant.”\nThe matter of establishing and maintaining the station in controversy is a quasi public question; that is, the general public as well as the parties to this suit is interested therein. No depot building is required to be constructed at this point, and we think the question of stopping the trains thereat is in part at least one of public service by the railroad corporation, the regulation of which is a duty imposed, in the first instance, upon the Railroad Commission of the State, under the provisions of Chapter 53, Laws 1907, p. 67, known as the “Railroad Commission Act.” Section 6875, et seq., L. O. L.\nSection 6887, L. O. L., provides:\n“Every such railroad is hereby required to furnish reasonably adequate service, equipment and facilities. * *”\nSection 6906, L. O. L., provides that, upon complaint of any person, firm,' corporation, or association the service in connection with any railroad is inadequate, the commission may notify the railroad company thereof and proceed to investigate the same, and shall have power to make such orders respecting such regulations, practice, or service found to be inadequate as it shall have determined to be reasonable, which shall be followed in the future, and since the passage of this act the Railroad Commission has been engaged in the performance of its duties thereunder, has considered and acted upon ques*291tions relating to the service, the location of stations and the stopping of trains, etc. See Annual Report of Railroad Commission 1909, pp. 32, 39, 54, 89. Its power to adjust these matters was decided in the case of the Portland Ry. Light & Power Co. v. Railroad Commissioners of Oregon, 56 Or. 468 (105 Pac. 709). While the law provides for a review of acts of the commission, there is not now the necessity for the interposition of a court of equity in the first instance in matters of this nature that formerly existed, rendering less applicable as precedents the cases decided prior to the enactment of this law. Under the present regime, if a court of equity should take cognizance in the first instance, regardless of the general plan and supervision of the Railroad Commission, it would doubtless tend to a confusion of results, to the detriment of the public’s interest, and with but little, if any, benefit to the private parties concerned. Under the law the orders of the commission may be rescinded or amended from time to time, according to change of conditions or requirements of necessity (Section 6908, L. O. L.), while the decree appealed from is in form perpetual.\nThere is practically no public necessity for the station as prayed for on the line of defendant’s railroad, and under all the facts and circumstances in the case we think the contract should not be enforced in a suit in equity. Louisville, N. A. & C. R. R. v. Sumner, 106 Ind. 55, 62 (5 N. E. 404: 55 Am. Rep. 719); Texas & St. R. R. v. Robards, 60 Tex. 545 (48 Am. Rep. 268); Cincinnati & C. Co. v. Washburn, 25 Ind. 259.\nThe decree of the lower court will therefore be reversed, and the suit dismissed. Reversed.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued July 25,, rehearing denied Dec. 12, 1911.","precedential_status":"Published","slug":"ford-v-oregon-electric-ry-co","summary":"From Marion: William Galloway, Judge. Statement by Mr. Justice Bean.This is a suit in equity by Frank Ford against the Oregon Electric Railway Company, a corporation. The defendant, an electric railway corporation, appeals from a decree requiring it to stop its local trains for the accommodation of passengers at a road crossing near the house on the land of plaintiff, in performance of a contract executed August 25, 1906, by Tilmon Ford, accepted by defendant, and duly recorded, the material parts of which, omitting description of the land, is as follows: “Know all men by these presents, that Tilmon Ford, unmarried, of the County of Marion in the State of Oregon, in consideration of the sum of six hundred dollars and other good and valuable considerations hereinafter expressed, to him paid by the Oregon Electric Railway Company, * * the receipt whereof is hereby acknowledged as to said money, and the other consideration hereinafter expressed, has granted, bargained, sold, and conveyed, * * a right of way for its railroad. * *” Several covenants are then inserted in said deed as to fencing the right of way and building cattle guards and crossings, as to said grantee, its successors, and assigns, and then the following: “Said grantee, its successors and assigns, in operating said railway shall stop its local trains for the purpose of taking on or putting off passengers at the road crossing easterly from where the house now stands on said premises, together with all and singular the tenements, hereditaments, or appurtenances thereunto belonging or in any wise appertaining, subject to the terms and conditions of said conveyance.” It appears that after the execution of the right of way deed, the defendant, the Oregon Electric Railway Company, constructed its railroad from Portland to Salem, over which it has been operating its trains since January 1, 1908. The farm of plaintiff, Frank Ford, contains 220 acres, upon which there is situated the farmhouse mentioned and other buildings, eight-tenths of a mile from Chemawa station on the south, and one and four-tenths miles from Quinaby station on the north. The crossing in question is situated near the center of the 220-acre tract and it is asserted by plaintiff that about 40 or 50 people would be better accommodated with a station at that location. It appears that the wagon road crossed by defendant’s electric line is a private roadway; that the plaintiff desires to cut up and sell his land in 5-acre tracts, concerning which facts, in answer to the question, “In order to allow the public tó use your crossing, you- would have to give your permission to go across your land and lay out a road. If the train would stop, you would either have to let the people come across your place, or lay out a road?” the plaintiff replied, “Yes, sir.” Plaintiff demanded of defendant that its trains be stopped according to its contract, and contends that he is entitled to have the contract specifically enforced as his only adequate remedy. On behalf of defendant, it is asserted that there are about 25 people residing within one-half mile -of the proposed station; that from 4 to 6 local trains stop at all of the stations on the road, making 80 stops; the schedule time for the run between Portland and Salem being two hours. Two other through or special trains make the run in an hour and 40 minutes, covering the distance between Chemawa and Quinaby stations in 4 minutes; that the passenger business handled in and out of Chemawa and Quinaby between June 8 and November 30, 1908, was for the former station, 1,912, an average of about 70 passengers per day, and for the latter 689, a daily average of 4 passengers. The total number of passengers for this period passing Chemawa and Quinaby both north and south, exclusive of those moving in and out of such stations, was 66,800, making the daily average of passengers passing these stations about 380; that the establishment and maintenance of another station in this vicinity would consume additional time, and delay the freight and passenger traffic on the line; that the income to be derived from such station would not equal the actual expense of stopping and starting the trains; and that such a requirement would work a hardship and injustice to defendant; that the consideration of $600 paid for the land for the right of way was the full value thereof. It is further contended on the part of defendant that the “necessities and convenience” of plaintiff, and all the inhabitants in the vicinity of his land, have since the operation of the railroad adequately been served by the stations of Chemawa and Quinaby; that at no time has there been enough passenger or freight business to wárrant the establishment of any more stations on this part of the line. It appears that Tilmon Ford was for many years and up to the time of his death the owner in fee of the lands described in the deed, through which the right of way extends. He died March 1, 1908, and since his death by his devise the plaintiff, Frank Ford, has been the owner and in possession of the lands; that such lands are in a sparsely settled community; that the private roadway on the premises leads to a county road, which, in turn, leads to Chemawa and Quinaby stations; and that except by this private road the crossing referred to is inaccessible."} {"attorneys":"Kenneth L. Jones, of Defender Project, of Chicago, for appellant., Bernard Carey, State’s Attorney, of Chicago, (James S. Veldman and Larry A. Sultan, Assistant State’s Attorneys, of counsel,) for appellees.","case_name":"People ex rel. Lick v. Fields","case_name_full":"The People ex rel. Edsel A. Lick, Relator-Appellant v. Theodore P. Fields, Chairman, Illinois State Parole and Pardon Board","case_name_short":"Fields","citation_count":0,"citations":["14 Ill. App. 3d 305"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1973-08-16","date_filed_is_approximate":false,"id":7107280,"judges":"McGloon, Took","opinions":[{"author_str":"McGloontook","ocr":true,"opinion_id":7013287,"opinion_text":" PER CURIAM. McGLOON, J., took no part. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-ex-rel-lick-v-fields"} {"attorneys":"Anthony J. Rossi, of New Orleans, for appellants. Felix J.- Dreyfous and A. D. Danziger, both of New Orleans, for appellee.","case_name":"Aymami v. Realty & Investment Co.","case_name_full":"AYMAMI v. REALTY & INVESTMENT CO.","case_name_short":"Aymami","citation_count":0,"citations":["133 La. 988","63 So. 491"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1913-11-17","date_filed_is_approximate":false,"disposition":"Affirmed.","id":7255221,"judges":"Monroe","opinions":[{"author_str":"Monroe","ocr":true,"opinion_id":7168801,"opinion_text":"\nStatement of the Case.\nMONROE, J.\nPlaintiffs, as children and heirs of Joseph Aymami, who died in 1864, sue to recover a square of ground which he is alleged to have purchased in 1847, as square No. Ill, bounded by Breslau, Arcadia, Valence, and Upperline streets, in the Faubourg Bouligny. They allege that defendant claims ownership of said square, under a chain of title, which they set forth and attack; and they pray for judgment decreeing them to be the owners of the square as above described.\nDefendant, by way of exception, pleaded the prescription of 3, 5, 10, and 30 years; and, the plea (though to what particular prescription the judgment refers does not appear) having been maintained and the suit dismissed, plaintiffs have appealed.\nOpinion.\nFrom the evidence adduced on the trial of the exception, it appears that on December 20, 1884, the state tax collector adjudicated to the state, for the unpaid taxes of 1882, “square 619, bounded by Breslau, Arcadia, Upperline and Valence streets, measuring 146 feet front by 300 feet in depth, which said property [according to act of sale made in confirmation of the adjudication] was duly and legally assessed for the taxes of 1882 and advertised in the name of Pierre Marley.” It further appears that there was an adjudication of the same property, upon the same day, for the taxes of 1883; that on March 30, 1893, the State Auditor sold the square, so numbered and described, to Pierre Abadie, for the amount at which it had been adjudicated, plus the taxes and interest for the years from 1884 to 1893, inclusive, by an act which recites that it had once been advertised and had failed to sell; that Abadie at once took possession of said square, built a fence around it, and pastured his cattle there; that at some time, not definitely shown in this record, the name of Arcadia street was changed to Magnolia and the name of Breslau street to Robertson (or South Robertson, perhaps); ’that Abadie died in 1895, and that, his succession being opened in 1899, the square in question was inventoried as heretofore described; that his widow and heirs were nut in possession by a judgment rendered in 1910 and an amendatory judgment rendered in 1911, in which said square 619 is described, as bounded by “Upperline, Valence, South Robertson, and Magnolia streets”; that on November 8, 1911, said square “No. 619” was sold by said widow and heirs to the defendant herein, according to the description in said judgment (i. e., as bounded by Upperline, Magnolia, Valence, and South Robertson streets, and as being the same property which Pierre Abadie had purchased from the Auditor on March 30, 1893); and that defendant has since built two houses thereon. It further appears that the taxes have been paid since 1893 by Pierre Abadie or those holding under him, and there was no attempt to show that plaintiffs have ever paid any taxes on, or concerned themselves about, the property. In fact, they made no attempt, on the trial of the exception, to show any title in themselves, or that there had ever been any title *991in their father; their counsel having proceeded upon the assumption that, for the purposes of the exception, the allegations of their petition should be taken as true.\nThe descriptions by which defendant and its authors acquired the square in question and held it for nearly 20 years having been amply sufficient to identify it, and the tax title, whereby the state acquired, not being open to any objection, for which, under article 233 of the Oonstitution it could be set aside, the three years’ prescription established by that article was properly sustained, and it is unnecessary to inquire into the others.\nJudgment affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"aymami-v-realty-investment-co","summary":"Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge. Action by Joseph F. Aymami and others against the Realty & Investment Company. From judgment for defendant, plaintiffs appeal.","syllabus":"\n(Syllabus by the Court.)\n
Adverse Possession (§ 79*) — Title by Prescription-Acquisition.
Where it appears that a defendant in a petitory action and Ms author, holding under an auditor’s deed, based upon an adjudication to the state, have been in undisturbed possession for nearly 20 years, that the descriptions in their titles were amply sufficient to identify the property, and that the adjudication is not open to any objection^ for which, under article 233 of the Constitution, it could be set aside, the three years’ prescription, established by that article, is properly sustained.
[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. § 79.*)
"} {"case_name":"Pittman Construction Co. v. Board of Levee Commissioners","case_name_full":"PITTMAN CONSTRUCTION CO., Inc. v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT","citation_count":0,"citations":["247 La. 346","170 So. 2d 865","247 La. 345"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1965-02-05","date_filed_is_approximate":false,"id":7261187,"opinions":[{"ocr":true,"opinion_id":7175744,"opinion_text":"\nIn re: Pittman Construction Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 169 So.2d 192.\nWrit refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"pittman-construction-co-v-board-of-levee-commissioners"} {"case_name":"Saunders v. Mississippi","case_name_full":"Herman Saunders v. Mississippi","case_name_short":"Saunders","citation_count":0,"citations":["179 L. Ed. 2d 1221","2011 U.S. LEXIS 3668","131 S. Ct. 2455","563 U.S. 994"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2011-05-16","date_filed_is_approximate":false,"id":7345008,"opinions":[{"ocr":true,"opinion_id":7262968,"opinion_text":"\nPetition for writ of cer-tiorari to the Supreme Court of Mississippi denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"saunders-v-mississippi"} {"attorneys":"W. E. Weaver, for appellant., J. V. Bouvier, Jr., for respondent.","case_name":"Graham v. Graham-Chisholm Co.","case_name_full":"GRAHAM v. GRAHAM-CHISHOLM CO.","case_name_short":"Graham","citation_count":0,"citations":["133 N.Y.S. 1123"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1912-01-26","date_filed_is_approximate":false,"id":7429676,"opinions":[{"ocr":true,"opinion_id":7349572,"opinion_text":"\nPER CURIAM.\nJudgment affirmed, -with costs. Order .filed.\nLAUGHLIN, J., dissents.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"graham-v-graham-chisholm-co","summary":"Action by Michael Graham, an infant, etc., against the Graham-Chisholm Company."} {"attorneys":"Joseph T. Robinson, Miami, for appellant., Preddy, Haddad, Kutner, Hardy & Josephs and Michael J. Parenti, III, Miami, for appellee.","case_name":"Jackson v. Lester","case_name_full":"Hoover C. JACKSON v. J. L. LESTER, M. D.","case_name_short":"Lester","citation_count":0,"citations":["341 So. 2d 839"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1977-01-25","date_filed_is_approximate":false,"id":7555737,"judges":"Drew, Harris, Hendry, Nathan, Ret","opinions":[{"ocr":true,"opinion_id":7481906,"opinion_text":"\nPER CURIAM.\nThis appeal questions the correctness of a summary final judgment entered in favor of appellee in a malpractice action arising out of a doctor-patient relationship. Appellant’s second point charges that the court erred in denying appellant’s motion to transfer the cause from Monroe County to *840Dade County contrary to a signed stipulation by the parties.\nUpon careful consideration of the record on appeal, briefs and arguments of counsel we have concluded that the appellee-de-fendant has conclusively established the absence of a genuine issue of material fact and that he was entitled to a summary judgment as a matter of law.\nWe further hold that the trial judge did not abuse his discretion in refusing to transfer the cause to Dade County.\nAffirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"jackson-v-lester"} {"case_name":"Schwegmann Bank & Trust Co. v. Bank of Louisiana","case_name_full":"SCHWEGMANN BANK AND TRUST CO. v. BANK OF LOUISIANA","citation_count":0,"citations":["653 So. 2d 567"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1995-04-21","date_filed_is_approximate":false,"id":7750715,"judges":"Dennis, Grant, Kimball, Writ","opinions":[{"ocr":true,"opinion_id":7687744,"opinion_text":"\nIn re Schwegmann Bank & Trust Co.; —Plaintiff(s); applying for writ of certiorari *568and/or review, and supervisory and/or remedial writs; Parish of Orleans, Civil District Court, Div. “F”, No. 91-12186; to the Court of Appeal, Fourth Circuit, No. 94CW-2282.\nDenied.\nDENNIS, J., would grant the writ.\nKIMBALL, J., not on panel.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"schwegmann-bank-trust-co-v-bank-of-louisiana"} {"attorneys":"Petitioner Winston Pitts, pro se., Charlie Crist, Attorney General, Tallahassee, for Respondent.","case_name":"Pitts v. State","case_name_full":"Winston PITTS v. STATE of Florida","case_name_short":"Pitts","citation_count":0,"citations":["837 So. 2d 518"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2003-02-03","date_filed_is_approximate":false,"id":7815391,"judges":"Booth, Kahn, Wolf","opinions":[{"ocr":true,"opinion_id":7756784,"opinion_text":"\nPER CURIAM.\nWinston Pitts filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. We treat the notice of appeal as a petition for certiorari and deny the petition. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).\nBOOTH, WOLF, and KAHN, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"pitts-v-state"} {"attorneys":"Wm. M. Cooke, for appellant,, Glover & Richardson and Carr, for respondent.","case_name":"Holliday v. Atterbury","case_name_full":"Holliday v. Atterbury","case_name_short":"Holliday","citation_count":0,"citations":["22 Mo. 512"],"court_full_name":"Supreme Court of Missouri","court_jurisdiction":"Missouri, MO","court_short_name":"Supreme Court of Missouri","court_type":"S","date_filed":"1856-03-15","date_filed_is_approximate":true,"headnotes":"1. The supreme court will not reverse a judgment of a lower court because the verdict of the jury is against the weight of evidence.
","id":8043222,"judges":"Other, Ryland","opinions":[{"author_str":"Ryland","ocr":true,"opinion_id":7999780,"opinion_text":"\nRyland, Judge,\ndelivered the opinion of the court.\nThe only point in this case is, that the verdict is against the evidence, and the defendant therefore contends that the Circuit Court ought to have set it aside and granted a new trial.\nIn looking over the evidence. preserved in the bill of exceptions, we have no doubt that it was sufficient to carry the ease to the jury, and this court does not disturb a verdict because it is against the weight of evidence. There is no question of law for our adjudication ; the instructions were given for both parties as they were asked for, and these instructions presented the law of the case fairly to the jury.\nIt has long been the practice of this court to refuse to interfere with the verdicts of juries, because it was considered that the evidence did not support such verdicts. These matters more properly employ the discretion of the lower courts, and we will not interfere with such discretion.\nThe judgment must be affirmed ;\nthe other judges concurring.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"holliday-v-atterbury","summary":"\nAppeal from Shelby Circuit Court.\n This was a suit originally instituted in the Circuit Court of Monroe county, whence it was taken by change of venue to the Circuit Court o.f Shelby county. The plaintiff (Holliday) prayed judgment for the possession of a certain negro slave named Nance, and her child, and damages for their detention. Defendant (Atterbury), in his answer, denied plaintiff’s alleged ownership of said negro slave and child, and claimed to own them in his own right. On the trial, the following facts appeared in evidence: The slave Nance had belonged to plaintiff (Holliday), whose daughter married defendant (Atterbury) in the year 1840. In 1843, the slave Nance was in possession of Atterbury and remained so until some time in 1853, about eighteen months after the death of Mrs. Atterbury, when, upon her going to the house of plaintiff (Holliday), she was retained by him and prevented from returning to defendant’s possession. Holliday hired Nance to one Brown, with whom she remained a few days, and from whose possession she was taken by defendant, without the permission and against the objection bf the said Brown ; whereupon the present suit was brought. There was evidence pro and con bearing upon the question whether Holliday, the plaintiff, had made a gift or a loan of the slave Nance to his daughter, Mrs. Atterbury. It is unnecessary to set this forth. The court, on motion of plaintiff, gave the following instructions, to-wit: “1. Although the sending of the negro woman in contest to the defendant and his wife, the daughter of plaintiff, unaccompanied by a declaration that the negro was placed with defendant and his wife as a loan, raises a presumption that the negro was a gift, yet this is a mere presumption, subject to be rebutted and explained by evidence. 2. If the jury believe, from the evidence in the case, that said negro girl was not placed by plaintiff with defendant and his wife as a gift, and was not so meant and intended, and said negro was not in fact given by plaintiff to defendant and his wife, they should find for the plaintiff. 3. If the plaintiff exhibited to defendant a list of advancements in 1844, that he said he had made to the defendant and his wife, and requested defendant and wife to sign a receipt for the same as advancements made to them at that time, and said defendant and wife signed a receipt for said advancements, and said negro was not included in the list and receipt, this is evidence from which the jury may find that the parties did not understand that said negro was given to defendant or wife. 4. If the jury find from the evidence in the case that the negro girl was not understood by the parties to be placed in possession of defendant or his wife as a gift, they should find for the plaintiff, although the plaintiff might not have said to defendant or his wife at the time of placing the negro there, that she was put there as a loan ; and it is competent to find the fact of gift or loan from all the evidence in the cause.” To the giving of the foregoing instructions for plaintiff defendant exeepted. The defendant then asked and the court gave the following instructions: “1. If the jury believe from the evidence that the plaintiff sent the negro Nancy with his married daughter, Mrs. Atterbury, to her house, and permitted her to remain there to serve his said daughter, the law presumes that it was a gift of said negro to his said daughter, and the jury must find for the defendant, unless plaintiff has proved to the satisfaction of the jury that he only loaned said negro to his daughter, and that it was expressly understood not to be a gift at the time, they must find for defendant. 2. Although the jury may believe from the evidence that the defendant has admitted that plaintiff did not give said negro to his daughter nor to himself, yet plaintiff is not bound by such admission, if they were made in ignorance of his rights. 3. The jury should not take into consideration any declaration made by plaintiff, in the absence of defendant, in regard to their title to said negro in question. 4. If the jury believe from the evidence that plaintiff sent the negro Nancy to defendant’s house, with his daughter, and that said negro remained there a considerable length of time, they must find for defendant, unless the plaintiff has proved to their satisfaction in this case that it was expressly understood between the parties at the time that the negro was sent as a loan and not as a gift.” .cited Martin v. Martin, 13 Mo. 66."} {"attorneys":"For the prosecutors, Charles D. Thompson., For the defendants, James B. Vredenburgh.","case_name":"State v. Mayor of Jersey City","case_name_full":"THE STATE, THE CITY PUBLISHING COMPANY AND ANDREW McKNIGHT, PROSECUTORS v. THE MAYOR AND ALDERMEN OF JERSEY CITY AND THE NEW JERSEY STAATS ZEITUNG","citation_count":0,"citations":["54 N.J.L. 437"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1892-06-15","date_filed_is_approximate":true,"headnotes":"1. When a statute directs notice of facts to be published in a newspaper, the courts will presume, in the absence of any legislative intimation to the contrary, that the notice is to be given in the ordinary language of the state and in a newspaper published in the same tongue.
2. Taxpayers of a city may lawfully, in the discretion of the court, intervene by certiorari to prevent the illegal expenditure of municipal funds, deficiencies in which must be made up by general taxation.
","id":8099985,"judges":"Dixon","opinions":[{"author_str":"Dixon","ocr":true,"opinion_id":8060541,"opinion_text":"\nThe opinion of the court was delivered by\nDixon, J.\nThis certiorari- brings up a resolution of the board of aldermen of Jersey City, designating “The New Jersey Staats Zeitung ” as the newspaper wherein shall be published the names, residences and places of business contained in applications or petitions for licenses to sell liquors, under the statute approved March 17th, 1892. This statute requires these names, &c., to be “ published in one daily newspaper published ” in the city. The “ Staats Zeitung ” is printed in the German type and language, and the ground upon which the legality of the resolution is questioned is, that only a newspaper printed in the English tongue can lawfully be designated.\nWe think this ground is well taken.\nWhen a statute directs notice to be published in a newspaper, the courts will presume, in the absence of any indication to the contrary, that the legislature designed the notice to be published in the same language as the newspaper itself. North Baptist Church v. City of Orange, ante p. 111. They will also presume that the notice is to be given in the ordinary language of the state. Road in Upper Hanover, 44 Pa. St. 277.\nThe present statute contains no express intimation as to the language in which the notice is to be given or the newspaper is to be printed. Consequently, the presumptions mentioned arise, and require the notice to be given in English in a newspaper printed in the same tongue.\nCounsel for the defendant suggests that the- only object of the law is to have a newspaper designated, so that the citizens may know where to find the requisite information, if they desire to seek it. But we think more than this was intended. The intention was to display this information where the citizens would be likely to see it in their ordinary search for *439current news, even though they had no especial desire to learn these particular facts.\nThe resolution under reviejv is illegal.\nIt is further urged that the prosecutors have no right to question its legality.\nThe statute requires the expense of publication to be paid out of the license fees. These fees constitute by law municipal funds, to be devoted to specified municipal purposes. If these funds prove deficient, the deficiency must be made up by general taxation, for the purposes are such as the municipality is bound to carry out. Under these circumstances, taxpayers of the city may lawfully, in the discretion of the court, intervene to prevent the illegal expenditure of the funds. The prosecutors are taxpayers.\nThe resolution must be set aside.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-mayor-of-jersey-city","summary":"On certiorari. Argued at June Term, 1892, before Justices Dixon and Werts."} {"attorneys":"Thomas G.A. Brown (Peter B. Sobol and Katherine Polk Failla, Assistant United States Attorneys, of counsel), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee., Kris Sergentakis, pro se Appellant.","case_name":"United States v. Sergentakis","case_name_full":"United States v. Kris SERGENTAKIS","case_name_short":"Sergentakis","citation_count":0,"citations":["307 F. App'x 520"],"court_full_name":"Court of Appeals for the Second Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Second Circuit","court_type":"F","date_filed":"2009-01-21","date_filed_is_approximate":false,"id":8479152,"judges":"Katzmann, Pooler, Sotomayor","opinions":[{"ocr":true,"opinion_id":8451143,"opinion_text":"\nSUMMARY ORDER\nDefendant Kris Sergentakis pleaded guilty to conspiracy to commit commercial bribery, mail fraud, and money laundering, in violation of 18 U.S.C. § 371, use of the mails to facilitate commercial bribery, in violation of 18 U.S.C. §§ 1952(a)(3)(A) & 2, and mail fraud and deprivation of honest services, in violation of 18 U.S.C. §§ 1341, 1346 & 2. After a hearing held pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir.1979), the district court sentenced Sergentakis principally to three concurrent terms of 60 months imprisonment. Sergentakis, proceeding pro se, now appeals. He argues, inter alia, that the district court did not adequately explain the reasons for the sentence that it imposed and that the sentence was without sufficient factual basis. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.\nWe review a sentence under an abuse-of-discretion standard, for both procedural errors and substantive reasonableness. Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Cutler, 520 F.3d 136, 156 (2d Cir.2008).\nSergentakis worked as the print purchasing manager in the graphics department for the Leukemia & Lymphoma Society, Inc. (“LLS”), a non-profit charitable organization, from 2001 to 2004. During that time, he was involved in selecting the vendors that LLS engaged to perform printing services. In 2006, Sergentakis pleaded guilty to a commercial bribery conspiracy in which he awarded printing contracts to certain vendors in exchange for kickbacks.\nThe district court’s sentence was based in part on a calculation of Sergentakis’ offense level under Section 2B4.1 of the United States Sentencing Guidelines. *522That section provides for graduated increases in a defendant’s offense level in a commercial bribery case based on “the greater of the value of the bribe or the improper benefit to be conferred.” U.S. S.G. § 2B4.1.1\nThe government argues that the measure of the “improper benefit to be conferred” is the amount that certain print vendors overcharged LLS during the course of the kickback scheme. The government presented evidence at the Fatieo hearing from a graphic media consultant, Steven Schnoll, who calculated this amount by comparing bids for various LLS print jobs in 2005 to the prices that LLS paid for those same print jobs when Sergentakis was selecting the vendors in 2003. Schnoll testified that Sergentakis gave LLS’ printing business to co-conspirators who were not equipped to finish the jobs in a cost-effective manner. Schnoll described in detail his analysis of several print jobs, presented data, and stated that he had concluded that the effect of Sergentakis’s kickback scheme was to inflate the prices paid by LLS by approximately $1 million in each of the three years that Sergentakis worked there.\nSergentakis argues on appeal that the district court erred because it accepted Schnoll’s methodology rather than measuring the profits each vendor realized on its transactions with LLS. Sergentakis also argues that there is a difference between “loss” and “improper benefit to be conferred” under U.S.S.G. § 2B4.1. We recognize that there is a distinction between these two concepts, even if, sometimes, the amount of loss is the same as the improper benefit conferred. See United States v. Fitzhugh, 78 F.3d 1326, 1331 (8th Cir.1996) (“The victim’s loss is the proper focus for fraud offenses.... The severity of a bribery offense, on the other hand, is measured by the amount of the improper benefit conferred in return for the bribe (or by the amount of the bribe, if greater).”); see also United States v. Montani 204 F.3d 761, 770 (7th Cir.2000) (improper benefit conferred upon conspirator equivalent to loss caused to victim). In this case, the district court correctly calculated the improper benefit conferred and its methodology was not an abuse of discretion. See United States v. Purdy, 144 F.3d 241, 248 (2d Cir.1998) (holding that the appropriate measure of improper benefit was “the difference between the putative untainted prices,” determined, for example, by competitive bidding procedures, “and the actual bribe-obtained prices”).2\nAt the Fatieo hearing, Sergentakis’ attorney argued that the $3 million figure was overstated for various factual reasons independent of the bribery conspiracy. The district court stated at the sentencing hearing that it had given Schnoll’s analysis “careful consideration” and also examined the exhibits and testimony submitted by Sergentakis. Based on its assessment of the evidence, the district court concluded that it could not adopt the ultimate conclusions of either side as to the correct figure. The district court found that the amount of the improper benefit conferred was $1 to $1.5 million dollars. Based on our review of the entirety of the evidence, we are not *523“left with the definite and firm conviction that a mistake has been committed,” and therefore, do not conclude that the district court’s factual finding was clearly erroneous. United States v. Iodice, 525 F.3d 179, 185 (2d Cir.2008) (quotation marks omitted).\nSergentakis also argues that the district court erred in not specifying “what theory of loss it adopted, nor what evidence it found credible, nor what, if anything, had been proven by a preponderance of the evidence in connection with determining the ‘value of the improper benefit conferred.’ ” We find it troublesome that the record contains scant explanation for the district court’s conclusion. However, because Sergentakis failed to raise this objection below, we review for plain error. United States v. Espinoza, 514 F.3d 209, 212 (2d Cir.2008). Thus, the error “must be plain, which at a minimum means clear under current law” and must “affect substantial rights, which normally requires a showing of prejudice.” United States v. Workman, 80 F.3d 688, 696 (2d Cir.1996) (alteration and internal quotation marks omitted).\nAny error by the district court is not plain. The district court was not required to set forth its calculation with mathematical precision or explain the exact extent to which it credited each factor presented by the defense in discounting the government’s $3 million number and arriving at $1 to 1.5 million. See Purdy, 144 F.3d at 248 (“[Ujnder section 2B4.1, the ‘improper benefit conferred’ need not be determined with perfect accuracy.”). Additionally, any error is harmless, because the figure selected by the district court had sufficient support in Schnoll’s testimony and took into consideration the methodological deficiencies raised by the defense.\nAlthough Section 3553(c) requires that the district court “state in open court the reasons for its imposition of the particular sentence,” 18 U.S.C. § 3553, “[t]he appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not.... The law leaves much, in this respect, to the judge’s own professional judgment,” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). We cannot conclude that the district court failed to “set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.” Id.\nWe have found no plain error where a district court failed to state reasons in open court, but rather, as here, adopted the factual findings of a Presentence Report by the United States Probation Office in the judgment and conviction order that were themselves adequate to support the sentence. Espinoza, 514 F.3d at 212. We conclude that the factual findings in the Presentence Report, although not entirely consistent with the government’s arguments at sentencing, provide sufficient description of Schnoll’s basic argument to adequately support the sentence imposed.\nThe district court ultimately concluded that a sentence three months below the applicable Guidelines range was appropriate. Where the sentence is outside of the advisory Guidelines range, the court must also state “with specificity in the written order” “the specific reason” for the sentence imposed. United States v. Lewis, 424 F.3d 239, 243-45 (2d Cir.2005) (quotation marks omitted). We conclude that the district court’s explanation of the sentencing factors that it considered in the Statement of Reasons attached to the Judgment and Conviction order is sufficient to meet that standard here. See *524United States v. Juwa, 508 F.3d 694, 699 (2d Cir.2007).\nWe have considered all of the additional arguments raised by Sergentakis on appeal in his pro se submissions and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Sergentakis’ pending motions are DENIED as moot.\n\n. The government’s brief conflates the improper benefit to be conferred under U.S.S.G. § 2B4.1 with the loss to a victim under U.S.S.G. § 2B1.1. Gov’t Br. at 26. But for purposes of this analysis, the two inquiries are separate. See United States v. Fitzhugh, 78 F.3d 1326, 1331 (8th Cir.1996).\n\n\n. We do not exclude the possibility that the improper benefit conferred might also be measured by gross profits. See U.S.S.G. § 2C1.1 cmt. n. 3 (\"A $150,000 contract on which $20,000 profit was made was awarded in return for a bribe; the value of the benefit received is $20,000.\").\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"united-states-v-sergentakis"} {"case_name":"Union de Empleados de La Corporacion del Fondo del Seguro del Estado, Inc. v. Corporacion del Fondo del Seguro del Estado","case_name_full":"UNION DE EMPLEADOS DE LA CORPORACION DEL FONDO DEL SEGURO DEL ESTADO, INC. Apelante v. CORPORACION DEL FONDO DEL SEGURO DEL ESTADO Apelado","citation_count":0,"citations":["7 T.C.A. 1056","2002 DTA 62"],"court_full_name":"Tribunal De Apelaciones De Puerto Rico/Court of Appeals of Puerto Rico","court_jurisdiction":"Puerto Rico, PR","court_short_name":"Tribunal De Apelaciones De Puerto Rico/Court of Appeals of Puerto Rico","court_type":"TA","date_filed":"2002-02-12","date_filed_is_approximate":false,"id":8593155,"judges":"Matta, Oronoz, Ponente, Por, Presidente, Rivera","opinions":[{"author_str":"Riveraponente","ocr":true,"opinion_id":8569248,"opinion_text":"\nGonzález Rivera, Juez Ponente\n*1057TEXTO COMPLETO DE LA SENTENCIA\nLa Unión de Empleados de la Corporación del Fondo del Seguro del Estado, Inc. (en adelante la Unión) comparece en el presente recurso de apelación para solicitar la revisión y revocación de una sentencia dictada el 8 de octubre de 2001. Mediante el dictamen apelado, el Tribunal de Primera Instancia, Sala Superior de San Juan Hon. Dora Peñagarícano Soler, J., declaró “No Ha Lugar” la demanda presentada por la Unión contra la Corporación del Fondo del Seguro del Estado (en adelante C.F.S.E.). En su consecuencia, ordenó el archivo y sobreseimiento de la causa de acción instada.\nAnte nos, la Unión plantea como fundamento de revocación la comisión de los siguientes errores: (1) concluir que los nombramientos de los empleados unionados cesanteados eran ilegales por haberse efectuado durante el período de veda electoral; (2) concluir que no se había seguido el procedimiento de publicar las convocatorias; y (3) concluir que los empleados cesanteados no tenían interés propietario sobre sus puestos. Cónsono con su posición, la Unión argumenta que la Ley de Personal del Servicio Público, Ley Núm. 5 de 14 de octubre de 1975, 3 L.P.R.A. see. 1301, et. seq., ni el Reglamento de Personal de la C.F.S.E., le son aplicables y que los procedimientos que envuelven estos nombramientos se rigen por el convenio colectivo.\nPor su parte, la C.F.S.E. plantea en su escrito en oposición al recurso, que los nombramientos de los empleados que fueron separados de sus puestos eran nulos por haberse efectuado en contravención a la ley, a los procedimientos establecidos en el convenio colectivo, al principio de mérito y por haberse hecho durante el período de veda electoral.\nConsiderados los fundamentos de error invocados, a la luz del derecho aplicable y la jurisprudencia interpretativa, resolvemos que resulta procedente confirmar la sentencia apelada. No obstante lo anterior, y para mayor claridad de nuestro dictamen, se imponen unas consideraciones relacionadas a la exposición de los hechos incontrovertidos que culminaron en la sentencia que es objeto del recurso que nos ocupa.\nI\nLa Unión presentó una demanda de injunction preliminar y permanente contra la C.F.S.E., en la cual solicitó se ordenase la reinstalación en sus puestos a todos los empleados unionados que fueron destituidos el 24 de agosto de 2001 y se dejara.en vigor todos los acuerdos suscritos entre las partes. Consolidados ambos procedimientos, las partes acordaron dilucidar únicamente la validez de las separaciones de los empleados que fueron nombrados después del 1 de agosto de 2000, que advinieron a ser empleados regulares de carrera conforme a unas estipulaciones firmadas entre el entonces administrador de la C.F.S.E. y el presidente de la Unión. Otras transacciones de personal hechas antes del 1 de agosto de 2000, fueron impugnadas, no obstante, las partes acordaron que la validez de dichas transacciones se iba a dilucidar en el caso KAC2001-5928, pendiente ante dicho foro.\nA tenor con una orden del foro apelado, las partes se reunieron y presentaron un informe conjunto en la cual estipularon hechos y prueba documental. Asimismo, presentaron sendos escritos en apoyo de sus respectivas posiciones, ello con el fin de poner al tribunal en posición de resolver la controversia planteada. Los hechos estipulados son los siguientes:\n\n“1. El 28 de enero de 2000, se firmó el Convenio Colectivo de la Unión de Empleados de la C.F.S.E., con vigencia del 1 de julio de 1999 al 30 de julio de 2003.\n\n\n2. Posterior a la firma del convenio, la C.F.S.E. y la Unión otorgaron varias estipulaciones, entre las que se \n*1058\nencuentra la Estipulación del 1 de agosto de 2000.\n\n\n3. Entre el 1 de agosto de 2000 y el 31 de diciembre de 2000, se efectuaron nombramientos de empleados en la C.F.S.E.\n\n\n4. Trescientos treinta y siete (337) empleados de la C.F.S.E. advinieron regulares conforme a la estipulación del 1 de agosto de 2000. De éstos, ciento cuarenta y cuatro (144) fueron nombrados antes del 1 de agosto de 2000.\n\n\n5. Para efectuar los nombramientos como empleados regulares, no se efectuaron convocatorias.\n\n\n6. Al día de hoy, la C.F.S.E. y la Unión no han acordado el procedimiento a seguir para efectuar convocatorias, según dispuesto en el convenio colectivo vigente.\n\n\n7. Ciento setenta y ocho (178) empleados fueron separados de sus puestos efectivo el 24 de agosto de 2001.\n\n\n8. Las personas que ocupaban posiciones temporeras hasta el 31 de julio de 2000, ciento cuarenta y cuatro (144) empleados, fueron nombrados a puestos regulares a tenor con la Estipulación de 1 de agosto de 2000. Dichos empleados no fueron separados de sus puestos. ”\n\nCon el anterior trasfondo y restando sólo la aplicación del derecho, el 8 de octubre de 2001, el foro apelado dictó sentencia en el caso. Mediante la misma, declaró “No Ha Lugar” la demanda presentada por la Unión contra la C.F.S.E., decretando el archivo y sobreseimiento de la causa de acción instada. Resolvió el Tribunal, que utilizar la alegada situación existente en la C.F.S.E. con los empleados temporeros como subterfugio para realizar nombramientos de personal nuevo a puestos regulares, sin atender las exigencias del principio de mérito e incumpliendo con el período de veda electoral, es violentar y atentar contra el propio convenio colectivo y el principio de mérito. Consecuentemente, resolvió que los ciento setenta y ocho (178) nombramientos realizados luego del 1 de agosto de 2000, son ilegales. \nPresentadas las correspondientes mociones de reconsideración y solicitud de determinaciones de hechos adicionales, éstas fueron declaradas “No Ha Lugar” el 29 de octubre de 2001. Inconforme, la Unión recurrió en tiempo oportuno ante este foro apelativo. Ante nos reproduce los mismos argumentos que levantó ante el foro apelado. Por constituir la médula de esta controversia la alegada inaplicabilidad del principio de mérito y la prohibición de efectuar nombramientos durante el período de veda electoral, discutiremos los tres señalamientos de error en conjunto. Al ejercer nuestra función revisora, reiteramos las normas legales y jurisprudenciales pertinentes al asunto planteado.\nII\nLa Ley de Personal del Servicio Público de Puerto Rico, supra, establece como política pública que el principio de mérito rige el sector de empleo público en Puerto Rico. 3 L.P.R.A. see. 1311 (1). De tal modo, serán los más aptos los que sirvan al gobierno y que todo empleado será seleccionado, adiestrado, ascendido, y retenido en su empleo en consideración al mérito y a la capacidad, sin discrimen por razón de raza, color, sexo, nacimiento, edad, origen o condición social, ni ideas políticas o religiosas. Véase, además, Cintrón Santana v. Supte. Policía de P.R., 131 D.P.R. 1 (1982).\nOriginalmente, la referida Ley excluía de su aplicación a las siguientes instrumentalidades del gobierno: la Rama Legislativa; la Rama Judicial; los empleados de agencias o instrumentalidades del gobierno que funcionen como empresas o negocios privados; y los empleados de agencias o instrumentalidades del gobierno que tengan derecho a negociar colectivamente mediante leyes especiales.\nEn cuanto a la administración de personal de la Rama Judicial y la Rama Legislativa, la Ley dispuso que se regirán por las disposiciones de las leyes vigentes aplicables a dichas ramas. Sin embargo, en cuanto a la *1059administración de los demás organismos excluidos, la Ley dispuso que éstos debían adoptar un reglamento de personal, en el cual tenían que incorporar el principio de mérito.\nPosteriormente, mediante la Ley Núm. 49 de 7 de junio de 1977, 3 L.P.R.A. see. 1338 (5), se añadió a la lista de organismos excluidos de la aplicación de la Ley de Personal del Servicio Público, supra, a la Universidad de Puerto Rico; igualmente se dispuso que. ésta tenía que adoptar un reglamento de personal que incorporase el principio de mérito. Como vemos, la intención legislativa es obligar a los organismos excluidos de la aplicación de la Ley de Personal que incorporen el principio de mérito. Como salvaguarda de dicho principio y a los fines de asegurar la fiel aplicación del mérito en el servicio público, durante períodos pre y post eleccionarios, las autoridades deberán abstenerse de efectuar cualquier transacción de personal que envuelva áreas esenciales del principio de mérito, tales como nombramientos, ascensos, descensos, traslados y cambios en categorías de empleados. Artículo 18 del Reglamento de Personal de la C.F.S.E., supra; Ortiz v. Alcalde de Aguadilla, 107 D.P.R. 819 (1978).\nTal prohibición es salvaguarda por excelencia del principio de mérito que rige el servicio público. El Tribunal Supremo de Puerto Rico ha resuelto que el mismo es un detente legislado para los cuatro meses en que por llegar a máxima efervescencia las pasiones políticas, pueden las flaquezas humanas traducirse en bondad para los partidarios o represalias contra el adversario, determinar cambios en el personal extraños y opuestos al fundamental principio de mérito. Ortiz v. Alcalde de Aguadilla, supra.\nEn virtud de los principios expuestos, toda persona que sea nombrada a un puesto en el servicio público deberá reunir los requisitos de preparación académica o experiencia que se hayan establecido para la clase. Los nombramientos de empleados públicos para ocupar puestos de carrera, hechos en contravención a las disposiciones de ley y reglamentos de personal, son nulos e ineficaces y, por consiguiente, cualquier derecho derivado de la tenencia de tal cargo de carrera, queda anulado una vez se determine su ilegalidad. Véase, 31 L.P. R.A. see. 4.\nIll\nAtendamos el reclamo de la Unión de que el principio de mérito y la veda electoral no son de aplicación a las transacciones de personal aquí en controversia.\nLa Ley Orgánica de la C.F.S.E., Ley Núm 45 de 18 de abril de 1935, según enmendada, 11 L.P.R.A. sec. 1, et. seq, establece en lo pertinente, en la sección l(b)-4(g), lo siguiente:\n\n“(g)... La C.F.S.E. estará exenta de las disposiciones de las sees. 1301 et. seq. del Título 3, conocidas como “Ley de Personal del Servicio Público de Puerto Rico”, y de los reglamentos de personal adoptados en virtud de la misma. No obstante, el Sistema de Personal que se establezca deberá estar basado en el principio de mérito y de conformidad con las reglas y reglamentos que a esos efectos adopte el Administrador. ”\n\nPara dar cumplimiento a dicho mandato, el Administrador aprobó el Reglamento de Personal de la C.F.S.E. efectivo el 1 de marzo de 1983. El mismo establece, como base legal, en su Artículo 1, lo siguiente:\n\n“La Ley Núm. 45 del 18 de abril de 1935, conocida como la Ley de Compensaciones por Accidentes del Trabajo, según enmendada por la Ley Núm. 103 del 28 de junio de 1969, en el inciso (a) del Artículo 6, faculta al Administrador, entre otras cosas, a establecer, organizar y administrar sus propios sistemas y controles adecuados de personal para una operación eficiente y económica de los servicios sin sujeción a las disposiciones de la Ley Núm. 345 del 12 de mayo de 1947, según enmendada, conocida como Ley de Personal.\n\n\nEstablece, además, que el sistema de personal que por esta Ley se faculta al Fondo del Seguro del Estado a establecer, deberá estar basado en el principio de mérito.\n\n\nLa Ley Núm. 5 del 14 de octubre de 1975 deroga la Ley Núm. 345, supra, y establece un nuevo sistema de \n*1060\npersonal del servicio público de Puerto Rico. En el inciso 4 de su sección 10.6 excluye de su aplicabilidad a los empleados de agencias e instrumentalidades del gobierno que tengan derecho a negociar colectivamente mediante leyes especiales, disponiendo, sin embargo, que deberán adoptar, con el asesoramiento de la Oficina de Personal, un reglamento de personal incorporando el principio de mérito que regirá las normas de personal de aquellos empleados no cubiertos por convenios colectivos.\n\n\nLa nueva Ley de Personal precisa una nueva política pública para reafirmar el principio de mérito y extenderlo a todos los sectores del empleo público, de manera que este principio quede garantizado en los sistemas que se establezcan. ”\n\nA su vez, en cumplimiento con la Ley Núm. 45, supra, se incluyó el principio de mérito en el convenio colectivo suscrito entre las partes el 28 de enero de 2000. De tal modo, el Art. 5(4) y el Art. 9(5)(b) establece lo siguiente:\n\n“Artículo 5: Antigüedad\n\n\n4. Las partes reconocen que la antigüedad no está reñida con el principio de mérito y que, por tanto, es un factor que conjuntamente con la preparación académica, la experiencia, la puntualidad, asistencia y la conducta del empleado, debe reconocerse y utilizarse en lo relativo a ascensos, cesantías y otros movimientos de personal. Las partes revisarán el procedimiento actual para certificación y selección de puestos en ascensos y de ingresos que entienda cumplan con la ley y con los parámetros de esta sección...\n\n\nArtículo 9: Nombramientos, Ascensos y Reclasificaciones\n\n\n5. Convocatorias para Ingreso\n\n\na. Las convocatorias para ingreso serán aquéllas donde habrá una libre competencia para todo el público, incluyendo los empleados de la C.F.S.E.. La experiencia y evaluación satisfactoria de un empleado temporero de la C.F.S.E. le cualificara para ser seleccionado a dicha convocatoria excluyendo cualquier otro candidato sin historial previo de trabajo en la C.F.S.E..\n\n\nb. La selección de los candidatos a ingreso se hará a base del principio de mérito, conforme con la preparación académica y requisitos de la convocatoria. Tendrán preferencia los candidatos con historial previo en la C.F.S.E. que hayan prestado servicios satisfactoriamente. Todo candidato seleccionado ajeno a la C.F.S.E. en una convocatoria de ingreso, deberá someterse a exámenes médicos para determinar sus condiciones físicas y mentales, incluyendo pruebas de dopaje realizadas por un laboratorio del Departamento de Salud de Puerto Rico. Todo empleado temporero o candidato seleccionado en una convocatoria de ingreso será referido a la Oficina de la Unión para una entrevista de orientación con un funcionario de la Unión.\n\n\nc. Las partes se reunirán dentro de los próximos cuarenta y cinco (45) días a partir de la fecha de la firma del presente Convenio para iniciar la elaboración del procedimiento a utilizarse para la certificación y selección de los aspirantes a puestos de ingreso, ascenso y todo lo relativo a las convocatorias. ”\n\nExaminado y estudiado el convenio colectivo vigente, vemos que el mismo contempla un proceso de emisión *1061de convocatorias para ingresos o ascensos, en el cual incorpora expresamente el principio de mérito. Se establece de forma clara que la selección de candidatos a ingreso se hará a base de dicho principio. Una vez adopta el principio de mérito, se adopta también su salvaguarda por excelencia, el principio de veda electoral.\nPor otro lado, y abonándose a lo precedentemente expuesto, el Artículo 9(6)(b) dispone:\n“6. Convocatorias para Ascensos:\n\nb. Las convocatorias para ascensos serán únicamente para los empleados comprendidos en la unidad apropiada. Tendrán preferencia los empleados regulares de la unidad apropiada sobre los demás empleados comprendidos en la misma ... Los empleados cubiertos por este Convenio podrán participar y serán certificados, siempre y cuando reúnan los requisitos del puesto, aunque para éstos represente un descenso. Podrán participar, además, y serán certificados aquellos empleados para los cuales el puesto circulado represente un traslado. Si no hubiese empleados dentro de la C.F.S.E. para cubrir tales puestos, se emitirá una convocatoria de ingreso. ”\n\nEl convenio colectivo establece que cualquier aspirante a puesto de ingreso o ascenso, de los empleados comprendidos en la unidad apropiada, podrán competir para una posición y ser certificados siempre que se siga el procedimiento de convocatoria y reúna los requisitos del ppesto, aunque para éstos puedan representar un descenso o un traslado.\nIV\nUna vez incorporado el principio de mérito en el Convenio Colectivo, existía la obligación de la Unión y la C. F.S.E. de honrar el principio de mérito del personal en el servicio público. Ante tal conclusión, examinemos ahora la situación particular de los ciento setenta,y,ocho (178) empleados que ocupaban puestos nombrados luego del 1 de agosto de 2000. Surge de las estipulaciones de hechos de las partes, como una realidad incontrovertida, que para efectuar estos nombramientos no se publicaron convocatorias, ello para permitir la libre competencia para todo el público, incluyendo a los empleados de la C.F.S.E. Una vez incorporado el principio de mérito en el Convenio Colectivo y, por ende, su salvaguarda por excelencia la veda electoral, no existía discusión para obviar el principio de mérito, ni las partes podrían a su libre discreción incumplir con lo acordado. Así mismo, por ser el año 2000, un año en el cual se celebraron elecciones generales en Puerto Rico, la C.F.S.E. no podía efectuar nombramientos durante el período de veda electoral. \nA la luz de las pautas y criterios legales expuestos, nos resulta difícil concluir que la C.F.S.E. pudiera válidamente hacer los nombramientos, ascensos, reclasificaciones aquí en controversia en contravención del principio de mérito y durante el período de veda electoral. La Ley de Personal del Servicio Público, la Ley Orgánica de la C.F.S.E. y su Reglamento de Personal, así como Convenio Colectivo vigente, nos indican lo contrario.\nLos nombramientos aquí impugnados resultan ser nulos. El pretexto de corregir una situación de inequidad en que se encontraba el personal temporero o provisional, no protege la actuación del Administrador del C.F.S.E., pues no hay duda de que en este caso no acató el principio fundamental, revestido de alto interés público, como lo es el principio de mérito.\nLa severidad de las prohibiciones contenidas en la Ley no se debilita por los supuestos buenos propósitos de la autoridad nominadora de resolver una situación de inequidad. Las personas que pasaron a ocupar los puestos de carrera aquí en controversia, sabían o debían saber que habiendo sido seleccionados libremente, a base de criterios ajenos al principio de mérito, de igual forma podían ser separados de los mismos, sin seguir ningún otro procedimiento, ya que no existía un interés propietario sobre los empleos y no les era de aplicación las garantías de retención de los mismos. El hecho de que la actual administración de la C.F.S.E. hubiere avalado el período probatorio de los empleados separados, no imparte a éstos visos de legalidad por adolecer los mismos del vicio de *1062nulidad.\nA tono con lo expuesto y siendo nulos los nombramientos aquí en controversia, por ser contrarios a la ley, el reglamento y el convenio colectivo aquí en disputa, ausente una demostración de que el foro de instancia hubiera actuado movido por pasión, prejuicio, parcialidad o error manifiesto en la apreciación de la prueba, dictaminamos que es procedente declarar No Ha Lugar la moción en auxilio de jurisdicción presentada el 16 de enero de 2002, y confirmar la sentencia apelada dictada el 8 de octubre de 2001.\nAsí lo pronunció y manda el Tribunal y lo certifica la Secretaria General.\nAida Ileana Oquendo Graulau\nSecretaria General\nESCOLIOS 2002 DTA 62\n1.Las estipulaciones fueron las siguientes:\n\n“Primero: Que el 28 de enero de 2000, las partes firmaron un Convenio Colectivo, el cual está en vigor hasta el 30 de junio de 2003 en todas sus partes.\n\n\nSegundo: Que el Artículo 9 del referido convenio: Nombramientos, Ascensos y Reclasificaciones, Inciso 2c establece que los empleados temporeros se nombrarán para realizar tareas por un período determinado para atender necesidades del servicio que requieran pronta acción y que dichas tareas no sean del carácter continuo o permanente.\n\n\nTercero: Que establece, además, el referido artículo en el inciso 5c que las partes se reunirán para iniciar la elaboración del procedimiento a utilizarse para la certificación y selección de los aspirantes a puestos de ingreso, ascenso y todo lo relativo a la convocatoria de puestos.\n\n\nCuarto: Que al presente, las partes no han concluido la elaboración de dicho procedimiento, lo que ha imposibilitado el reclutamiento para cubrir puestos de la Unidad Apropiada, por lo que ha sido necesario reclutar personal temporero o provisional para cubrir las necesidades del servicio de la C.F.S.E..\n\n\nQuinto: Que ante la necesidad que tiene la C.F.S.E. de contar con personal adiestrado para dar continuidad al servicio que ofrece, se ha retenido este personal por más tiempo del establecido en el Convenio Colectivo.\n\n\nSexto: Que para resolver el estado de inequidad en el que se encuentra este personal temporero o provisional, las partes:\n\nACUERDAN\n\nOtorgarle permanencia a todos los empleados provisionales o temporeros que realizan tareas de la Unidad Apropiada que hayan sido nombrados en o antes del 31 de diciembre de 2000 bajo los siguientes términos y condiciones:... ”,\n\n2. De la estipulación de hechos de las partes, se desprende que de los trescientos treinta y siete (337) nombramientos, ciento cuarenta y cuatro (144) fueron realizado antes del 1 de agosto de 2000, sobre los cuales el Tribunal de Primera Instancia no pasó juicio.\nCon un simple cómputo matemático, hemos notado una diferencia de quince (15) nombramientos entre aquéllos que fueron nombrados antes del 1 de agosto de 2000 y aquellos nombrados posteriormente.\n3. La veda electoral comprende el período de dos (2) meses antes y dos (2) meses después de la celebración de las elecciones generales en Puerto Rico. Esta prohibición será absoluta a excepción de aquellas transacciones de personal en que el abstenerse de efectuarlas afectaría adversamente los servicios de la C.F.S.E. Artículo 18: Prohibición de Transacciones de Personal, Reglamento de Personal de la C.F.S.E., supra.\n4. La referida moción pretendía obtener una orden dirigida al administrador del C.F.S.E. para paralizar las convocatorias para *1063cubrir los puestos de empleados que fueron cesanteados el 24 de agosto de 2001 y se ordenare la reinstalación del plan médico a dichos empleados.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"union-de-empleados-de-la-corporacion-del-fondo-del-seguro-del-estado-inc"} {"attorneys":"Barry S. White, James K. Stronski, H. Sarah Park, Frommer, Lawrence & Haug LLP, New York City, for Watson Pharmaceuticals, Inc. and Watson Labs., Inc., James F. Hurst, Derek J. Sarafa, Ivan M. Poullaos, Winston & Strawn LLP, Chicago, IL, for Sun Pharmaceutical Industries, Ltd., Robert L. Baechtold, Diego Scambia, Nicholas N. Kallas, Gregory B. Sephton, Fitzpatrick, Cella, Harper & Scinto, New York, NY, for Novartis Pharmaceuticals Corp., Novartis AG, Novartis Pharma AG, Novartis Int’l Pharmaceutical, Ltd., and Proterra AG.","case_name":"In re Rivastigmine Patent Litigation","case_name_full":"In re RIVASTIGMINE PATENT LITIGATION","citation_count":0,"citations":["246 F.R.D. 428"],"court_full_name":"District Court, S.D. New York","court_jurisdiction":"New York, NY","court_short_name":"S.D. New York","court_type":"FD","date_filed":"2007-06-04","date_filed_is_approximate":false,"id":8766485,"judges":"Francis","opinions":[{"author_str":"Francis","ocr":true,"opinion_id":8749951,"opinion_text":"\n\nMEMORANDUM AND ORDER\n\nJAMES C. FRANCIS IV, United States Magistrate Judge.\nDefendants Watson Pharmaceuticals Inc. and Watson Laboratories, Inc. (collectively, “Watson”) and Sun Pharmaceutical Ltd. (“Sun”) seek to amend their answers and counterclaims against plaintiffs Novartis Pharmaceuticals Corporation, Novartis AG, Novartis Pharma AG, Novartis International Pharmaceutical Ltd. and Proterra AG (collectively, “Novartis”) to add a claim for attorneys’ fees.1 Novartis opposes the motion. For the reasons set forth below, the defendants’ motion is granted.\n\nBackground\n\nThis multidistrict litigation concerns the patent rights for rivastigmine tartrate (“rivastigmine”), the active ingredient in Exelon, a medication marketed by Novartis Pharmaceutical Corporation for the treatment of mild to moderate dementia of the Alzheimer’s type.2 Novartis brought actions alleging that the defendants3 had induced infringe*430ment of two patents owned by Novartis. One defendant, Watson, then counterclaimed against Novartis for a declaratory judgment holding the patents in question to be invalid.\nAfter extensive discovery, Novartis moved to dismiss with prejudice its claims with regard to one of the two rivastigmine patents at issue, U.S. Patent No. 5,602,176 (“the '176 patent”),4 and to dismiss without prejudice Watson’s counterclaims regarding that patent. It also executed covenants not to sue Sun and Watson over the '176 patent. On April 19, 2007, this Court recommended that Novartis’ motion to dismiss be granted, conditioned on certain alterations to their covenants not to sue. In re Rivastigmine Patent Litigation, No. 05 MD 1661, 2007 WL 1154000 (S.D.N.Y. April 19, 2007). The parties filed no objections to that recommendation.\nBefore that recommendation was issued, Sun and Watson moved to amend their answers to add certain allegations and defenses concerning Novartis’ claims on both the '176 patent and the '807 patent. Among the added claims is a request for attorneys’ fees under 35 U.S.C. § 285 on the grounds that the '176 patent was obtained fraudulently and that that claim was prosecuted in bad faith. Novartis does not oppose the amendments concerning the '807 patent. It does oppose the amendments concerning the '176 patent “to the extent that [the defendants] seek[] to add a claim for attorneys’ fees.” (Plaintiffs’ Memorandum in Opposition to Watson’s Motion For Leave to File An Amended Answer and Counterclaims (“Pl. Memo.”) at 1).\nDiscussion5\nA motion to amend is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which states that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a); see also Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2d Cir.2003), rev’d on other grounds, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005). Notwithstanding the liberality of the general rule, “it is within the sound discretion of the court whether to grant leave to amend.” John Hancock Mutual Life Insurance Co. v. Amerford International Corp., 22 F.3d 458, 462 (2d Cir.1994) (citation omitted); accord Krumme v. West-Point Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998). In discussing the use of this discretion, the Supreme Court has stated:\nIn the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave should ... be freely given.\nFoman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (internal quotation marks omitted).\nThe plaintiffs argue that their motion to withdraw voluntarily their claim with regard to the '176 patent divested this Court of subject matter jurisdiction over that claim, thus precluding me from granting the defendants’ motion to amend. As I noted in my Report and Recommendation of April 19, 2007, “‘[i]t is well-established that a trial court may be divested or deprived of subject matter jurisdiction over a particular patent claim if the patentee covenants not to assert an infringement claim against a putative infringer.’ ” In re Rivastigmine Patent Litigation, 2007 WL 1154000 at *2 (quoting Crossbow Technology, Inc. v. YH Technology, No. C-03-04360, 2007 WL 174422, at *2 (N.D.Cal. Jan.22, 2007)). However, as I also explained there, the Federal Circuit’s recent decision in Highway Equipment Co. v. FECO, Ltd., 469 F.3d 1027 (Fed.Cir.2006), *431limited this principle to declaratory judgment counterclaims in patent infringement eases.\nWhile the covenant [not to sue on the claims in question] may have eliminated the case or controversy pled in the patent-related counterclaims and deprived the district court of Article III jurisdiction with respect to those counterclaims, the covenant does not deprive the district court of jurisdiction to determine the disposition of the patent infringement claims raised in the Complaint under Rule 41 or the request for attorney fees under 35 U.S.C. § 285.\nId. at 1033 n. 1 (internal citations omitted).6 Under Rule 41(a)(2) of the Federal Rules of Civil Procedure, dismissal at the plaintiffs behest may be made contingent upon “such terms and conditions as the court deems proper.” Thus, I recommended that dismissal of Novartis’ patent infringement claims be conditioned upon, among other things, allowing the defendants to add a claim for attorneys’ fees to their pleadings.\nAttorneys’ fees may be awarded to a prevailing party in a patent infringement action “in exceptional cases.”7 35 U.S.C. § 285. Here, there is no reason to preclude the defendants from adding a counterclaim for such fees to their pleadings. The plaintiffs do not complain of any prejudice, delay, or futility. Indeed, there would be little basis for such assertions. “ ‘[P]arties ... have been permitted to amend their pleadings long after they acquired the facts necessary to support those claims.’ ” Securities and Exchange Commission v. DCI Telecommunications, Inc., 207 F.R.D. 32, 34 (S.D.N.Y.2002) (quoting Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir.1987)). Here, while the defendants’ motion to amend comes after much discovery, much of the conduct that forms the basis of the claim for attorneys’ fees (Watson’s Amended Answer and Counterclaims to Amended Complaint, attached as Exh. 1 to Watson’s Memorandum in Support of its Motion for Leave to File an Amended Answer and Counterclaims (“Def.Memo.”), ¶¶ 91-109, 113-168), came to light as a result of documents released pursuant to recent rulings in the case. See In re Rivastigmine Patent Litigation, 237 F.R.D. 69 (S.D.N.Y.2006); In re Rivastigmine Patent Litigation, No. 05 MD 1661, 2006 WL 4061853 (S.D.N.Y. Dec.20, 2006). Moreover, the defendants’ claims for attorneys’ fees also rest in part on the plaintiffs’ conduct during litigation, including their motion to withdraw their claim voluntarily and could not have been added prior to the that conduct.\nEven if the defendant had been dilatory in moving to amend, that alone would not warrant denying the motion. Delay, absent bad faith or prejudice, is not a sufficient basis for denying leave to amend. See Parker v. Columbia Pictures Industries, 204 F.3d 326, 339 (2d Cir.2000); Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir.1993); Richardson Greenshields, 825 F.2d at 653 n. 6; In re Horizon Cruises Litigation, 101 F.Supp.2d 204, 215 (S.D.N.Y.2000). Here, the delay was not the result of bad faith. As noted above, the claim for attorneys’ fees is based primarily on information revealed by documents that were only, re*432cently produced. Moreover, the delay in the production of those documents was due to the strenuous resistance of the plaintiffs.\nNor will the claim for attorneys’ fees prejudice the plaintiffs. Fact discovery regarding the '176 patent claim has been concluded and the defendants seek no additional discovery related to the attorneys’ fees claim. (Def. Memo, at 5 n. 11). While both parties will presumably have to brief the claim for attorneys’ fees, the expenditure of additional resources involved in doing so is minimal, as the facts and claims involved are essentially those that have been at the center of the case since its inception. Since Novartis’ patent infringement action regarding the '176 patent has already been dismissed, concerns about delaying resolution of that claim do not apply here. Nor will this amendment affect the course of litigation over Novartis’ claims concerning the '807 patent.\nFinally, the motion to amend is not futile. A motion to amend may be denied as futile if the amendment would not withstand a motion to dismiss pursuant to Rule 12(b)(6). See Oneida Indian Nation, 337 F.3d at 168; Milanese v. Rush-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001); Smith v. CPC International, Inc., 104 F.Supp.2d 272, 274 (S.D.N.Y.2000). To overcome objections of futility, the moving party must merely show that it has “at least colorable grounds for relief.” Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 783 (2d Cir.1984) (citation omitted); see also Kaster v. Modification Systems, Inc., 731 F.2d 1014, 1018 (2d Cir.1984). As noted above, the plaintiffs do not contend that the motion is futile, nor are there any obvious grounds upon which to base a claim of futility, apart from the jurisdictional argument discussed above. The defendants’ contention that the patent was obtained fraudulently and that the litigation was prosecuted in bad faith are both sufficient grounds for relief under 35 U.S.C. § 285. See Serio-US Industries, Inc. v. Plastic Recovery Technologies Corp., 459 F.3d 1311, 1321-1322 (Fed. Cir.2006) (stating that exceptional cases under 35 U.S.C. § 285 usually feature conduct such as “fraud or inequitable conduct in procuring the patent, misconduct during litigation, [or] vexatious or unjustified litigation”); Kao Corp. v. Unilever United States, Inc., 441 F.3d 963, 974 (Fed.Cir.2006) (same).\nAccordingly, the defendants’ motions to amend are granted. As explained in my previous opinion, this Court retains jurisdiction over the defendants’ claims for attorneys’ fees despite the dismissal of the underlying claim under Rule 41. In re Rivastigmine Patent Litigation, 2007 WL 1154000, at *9; see also Highway Equipment, 469 F.3d at 1032-33 & n. 1; Digeo, Inc. v. Audible, Inc., No. C05-464, 2006 WL 3486801, at *3 (W.D.Wash. Dec. 1, 2006); Polarity, Inc. v. Diversified Technologies, Inc., No. C-06-0646, 2006 WL 2982151, at *2 (N.D.Cal. Oct.17, 2006) (preHighway Equipment, collecting cases for proposition that “[m]ost courts that have considered the issue agree ... that a court retains jurisdiction over a claim for attorney’s fees under [35 U.S.C.] § 285 even after [voluntary] dismissal”).\n\nConclusion\n\nFor the reasons set forth above, the defendants’ motions to amend are granted.\nSO ORDERED.\n\n. Watson filed a formal motion, while sun submitted a letter seeking similar relief. (Letter of Derek J. Sarafa dated April 4, 2007).\n\n\n. The factual background of this litigation is set out at length in previous orders, see, e.g., In re Rivastigmine Patent Litigation, No. 05 MD 1661, 2005 WL 957426 (S.D.N.Y. April 25, 2005), and will be discussed here only as it pertains to the instant motion.\n\n\n. Proceedings have been stayed with regard to a third set of defendants in the original action, Dr. Reddy’s Laboratories, Ltd. and Dr. Reddy's Laboratory, Inc. Those defendants have stipulated that the disposition of their claims will reflect the *430ultimate determination of the parallel claims litigated by defendants Sun and Watson.\n\n\n. Thus, Novartis' claims with regard to the other patent, U.S. Patent No. 4,948,807 (the \"'807 patent”), are still at issue in this litigation.\n\n\n. I note at the outset that the law of the Federal Circuit governs questions of patent law, while the law of the regional circuit applies to procedural questions that are not specific to patent law. See Madey v. Duke University, 307 F.3d 1351, 1358 (Fed.Cir.2002). I therefore apply the law of the Second Circuit to the procedural question of whether to allow amendment of the pleadings.\n\n\n. Novartis reiterates its claim that Highway Equipment is \"inconsistent” with earlier Federal Circuit case law and that, according to Federal Circuit custom, the earlier holding must be given precedence absent en banc reconsideration. See Newell Companies, Inc. v. Kenney Manufacturing Co., 864 F.2d 757, 765 (Fed.Cir.1988) (\"This court has adopted the rule that prior decisions of a panel of the court are binding precedent on subsequent panels unless and until overturned en banc.”). (Pl. Memo, at 3 n. 3). But, as I explained in my earlier opinion, Highway Equipment is not irreconcilable with Federal Circuit precedent and indeed, the court specifically distinguishes the cases cited by Novartis. In re Rivastigmine Patent Litigation, 2007 WL 1154000, at *4. As interpreted by the court in Highway Equipment, those cases address only the court's ongoing subject matter jurisdiction over declaratory judgment counterclaims, rather than the underlying patent infringement claims. Id. (citing Highway Equipment, 469 F.3d at 1033 n. 1).\n\n\n. Whether such a claim for attorneys' fees must be formally pled is unclear, See L.E.A. Dynatech, Inc. v. Allina, 49 F.3d 1527, 1530 (Fed.Cir.1995) (\"District courts possess inherent power to assess attorney fees as a sanction when a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons.”), but that issue need not be considered here since Watson’s motion to amend their pleadings to add such a claim is granted.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-rivastigmine-patent-litigation"} {"attorneys":"Cutting, Moore & Sidley and West & Eokhart, for appellant Art Institute of Chicago., George E. Gorman, for appellant South Park Commissioners; Nathan G. Moore, Horace Kent Tenney and Percy B. Eokhart, of counsel., George P. Merrick and Hugh T. Martin, for appellee.","case_name":"Stevens Hotel Co. v. Art Institute","case_name_full":"Stevens Hotel Company v. The Art Institute of Chicago and South Park Commissioners","citation_count":0,"citations":["260 Ill. App. 555"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1931-03-23","date_filed_is_approximate":false,"id":8867563,"judges":"Matchett","opinions":[{"author_str":"Matchett","ocr":true,"opinion_id":8853178,"opinion_text":" Mr. Presiding Justice Matchett delivered the opinion of the court. This appeal is from a decree by which the Art Institute and the South Park Commissioners and all persons claiming through or under them were permanently enjoined “from constructing or continuing to construct, erecting or continuing to erect, causing or permitting or suffering to be erected or constructed or placed thereon, any building or other structure or obstructions of any kind, nature or description whatever, anywhere within the limits of . . . Lake Park, or Grant Park, or Lake Front Park,” in the City of Chicago. The decree further adjudged that complainant had a perpetual vested right to prevent the erection of buildings upon Grant Park and every part of it and the right to forever restrain and prevent the erection, construction or placing of any building, structure or obstruction thereon and to have this tract of land forever remain public ground as an open park vacant of buildings, structures or obstructions of any kind, and that this right “descends and extends to its assigns, representatives and grantees forever.” From this decree the Art Institute and Park Commissioners prayed and were allowed an appeal to the Supreme Court of Illinois. That court held that it was without jurisdiction and transferred the cause to this court. Stevens Hotel Co. v. Art Institute, 342 Ill. 180. Grant Park is a tract of land which covers little more than 303 acres situated in the heart of Chicago. It is bounded on the north by Randolph Street, on the east by Lake Michigan, on the south by Park Row, on the west by a line running north and south 90 feet east of the west line of Michigan Avenue. The title thereto and the rights of the public and of abutting property owners therein have for more than half a century been the subject of frequent litigation in the courts of this State and of the United States. The right of way of the Illinois Central Railroad passes through and over Grant Park in a north and south direction, and the rights of that road, of the City of Chicago and of the State of Illinois in and to this land were determined in the case of Illinois Cent. R. Co. v. People, 146 U. S. 387. The history of the title to this tract of land is set forth at length in the opinion filed in that case from the time that the north end of it was occupied by the government of the United States as a military site. At that time the shore of Lake Michigan in a general way was along the line of what is now Michigan Avenue, and when later the land fronting east on Michigan Avenue was subdivided this tract between that avenue and the lake was dedicated to a public use to the end that it should at all times be kept clear of any buildings or structures whatsoever. By this original dedication, by ordinances of the City of Chicago and by repeated decisions of the courts construing these, it has been determined that the owners of the property abutting on Michigan Avenue to the west have acquired a perpetual easement over this tract of land and a vested right to have the same kept free- from buildings, structures and obstructions of every kind and character, and that this easement extends to land created either by avulsion or accretion. City of Chicago v. Ward, 169 Ill. 392; Bliss v. Ward, 198 Ill. 104; Ward v. Field Museum, 241 Ill. 496. In South Park Commissioners v. Montgomery Ward & Co., 248 Ill. 299, it was held that the right of the abutting property owners to have Grant Park remain free from buildings, was more than a mere property right which could be compensated for in damages and that an attempt to take away this easement of these owners by exercise of the right of eminent domain was illegal. In McCormick v. Chicago Yacht Club, 331 Ill. 514, it was held that the erection of a clubhouse beyond the harbor line, as established by the Secretary of War in 1921 on submerged land formerly owned by the State was not an erection of a building in the dedicated park, and an injunction was refused upon that ground. This case seems to have been followed in Stevens Hotel Co. v. Chicago Yacht Club, 339 Ill. 463, but both these decisions are placed upon the ground that the building was erected upon submerged land which was outside the limits of the park and over which the Park Commissioners had no jurisdiction. The right, therefore, of abutting property owners to have this tract of land kept free and clear of buildings would seem to be finally determined, if it may be properly said that any legal question ever can be so determined. The bill in this case was filed February 8, 1929, and prayed an injunction as afterwards granted. It was later amended by proper averments so as to allege that the contract of January 18, 1928, between the Art Institute and the South Park Commissioners constituted a violation of the rights of complainant under the Constitution of the United States, in that it would impair the obligation of a contract and deprive complainant of its property without due process of law and also was a violation of separate section 2 of the Constitution of Illinois, which provided in substance that no municipality should subscribe to the capital stock of any railroad or private corporation or make a donation or loan to its credit in aid of such corporation. The bill alleged that by the contract of January 18, 1928, leave was given the Art Institute to use other tracts of land for erection thereon of additions to the building of the Art Institute, contrary to complainant’s rights under its easement. Defendants in their answers admitted the execution of this contract, claimed the right to do so and submitted a proposed plan for the enlargement of the Institute in conformity therewith. A plat showing the present location of the Art Institute, the land now occupied by it, and the proposed additional grants appears on the opposite page. Since it is apparent that the proposed additions are to be erected on Grant Park, all of which was originally subject to the rights of complainant under the easement as above described, the conclusion of the trial court would seem to be unavoidable, unless the rights of complainant have been modified by some agreement to the contrary, either express or implied, or unless by some act or conduct of complainant or of its predecessors in title, complainant is precluded from asserting these rights, or unless there has been some adjudication by the courts to the contrary. Defendants contend that there was such consent and agreement ; that by the conduct hereinafter set forth complainant is precluded and estopped, and that it has been so adjudged by the courts. In this connection it may be well to recite some material and undisputed facts. Defendant Art Institute of Chicago is a corporation, not for pecuniary profit, organized under the laws of the State of Illinois. Its only place of business is in Chicago, Cook county, Illinois. Its original name was “The Chicago Academy of Fine Arts.” It was organized May 22, 1879, for the object, as stated in its articles of incorporation, “the founding and maintenance of schools of Art of design, the formation and exhibition of collections of Objects of Art and the cultivation and extension of the Arts of design by any appropriate means.” On November 25, 1925, by amendment to its articles the objects were enlarged. In 1893 the Art Institute enrolled 947 students and employed a faculty of 21 instructors and operated its school at an annual expense of $20,800. At that time its membership was 2,149. Its annual attendance of visitor^ numbered 215,600. It owned art objects of the value of $187,488.67 and held in trust endowment funds to the amount of $1,500. In that year the population of Chicago was 1,438,010 and the pupils enrolled in the public schools of Chicago at that time numbered 166,895. The public schools of the city then employed a teaching staff of 3,523 instructors. A permanent and suitable location for the Art Institute (it is conceded) had become imperative as early as 1891. [[Image here]] March 30th of that year the city council of the City of Chicago, the predecessor in title of the South Park Commissioners, passed an ordinance which recited that the World’s Columbian Exposition was desirous of erecting an art building on the Lake front and that the Institute and many of its students desired that the building so erected should become “a permanent building,” the use of which should be given to the Art Institute after the Exposition had been held. The ordinance recited that those interested had offered to contribute a large sum of money to the end that the building should be suitable “for the permanent accommodation of the said Art Institute.” The ordinance further recited that “to secure the erection of said permanent building” it was necessary action should be taken “granting the right to use said building to the said Art Institute.” It was therefore ordained that after the time limited for the use thereof by the Exposition, the title and ownership of the building “and all the appurtenances thereto, shall be vested in the City of Chicago . . . but the right to the use and occupation of said building, and of the grounds appurtenant thereto and necessary for the reasonable enjoyment thereof, shall be vested in the Art Institute of Chicago, a corporation organized under the laws of the State of Illinois, for the objects for which said Art Institute is incorporated, so long as said Art Institute shall faithfully keep, perform and observe the provisions and conditions of this ordinance hereinafter contained, or until the said building and premises shall be voluntarily surrendered by the said Art Institute to the City of Chicago under the conditions aforesaid, the said use of said building being granted to the said Art Institute upon the following conditions. . . . These conditions were stated to be that as soon as practicable after the surrender of the possession of the building by the Exposition, the Art Institute should transfer to, place and arrange in the building its museum, library and collections, or such portions thereof as could be properly displayed to the public therein; that the exhibition halls of the building should upon certain days and under certain rules and regulations be kept open and accessible to the public, free of charge; that all professors and teachers of the public schools of Chicago, or of other institutions of learning in the city, should be admitted to the advantages offered by the Art Institute; that the Art Institute should each year submit to the City of Chicago a report of its operations, transactions, receipts, payments, etc., and that if the Art Institute at any time desired to surrender possession of the building it should give the city not less than three months’ notice; that the by-laws of the Institute should be amended so as to make the mayor and the comptroller of the City of Chicago ex officio members of the board of trustees; that “said permanent building shall not have a frontage of over four hundred feet on Michigan Avenue”; that the mayor and the comptroller of the city were authorized to execute in behalf of the city a contract with the Art Institute granting and securing to it the use and occupation of the building to be erected upon the terms as stated. This ordinance was duly approved by the mayor of Chicago on April 3, 1891. May 8,1891, the directors of the Exposition adopted a resolution appropriating $200,000 to apply on the construction of the building, the resolution providing that the building should be permanently occupied by the Art Institute, the title to remain in the City of Chicago, then the predecessor of the South Park Commissioners. December 3, 1891, the City of Chicago, the Exposition and the Art Institute entered into a written contract pursuant to and in conformity with the terms of ordinances enacted by the City of Chicago. This contract recites the desire of the parties that the building should be permanent with the right to use the same given to the Art Institute and states that a large sum of money has been given to the end that the building may be suitable for “the permanent accommodation of the said Art Institute.” In 1903 the legislature of Illinois conveyed the fee to Grant Park to the South Park Commissioners, a municipal corporation (see Callaghan’s 111. Annot. Stats., chap. 105, fifí 151 and 152). Thereafter, on July 21, 1903, the city council of Chicago passed an ordinance giving the consent of the city to the transfer and granting to the South Park Commissioners the right to take, regulate, control and govern all that part of Grant Park lying west of the Illinois Central Railroad Company’s right of way and north of the north line of Jackson Street extended, subject to certain rights, reservations and exceptions, as stated: “First. The right of the Art Institute of Chicago as defined by an ordinance of the City Council of the City of Chicago passed on the 30th day of March, A. D. 1891, and duly approved by the Mayor of said City on the 3rd day of April, A. D. 1891, and the contract between the City of Chicago and said Art Institute bearing date the third day of December, A. D. 1891, and the terms, provisions and conditions thereof, and to the rights, occupation, uses and benefits of the Art Institute of Chicago thereunder, all and every of which the South Park Commissioners accept, assent to and do and will permit.” By the second section of this ordinance the mayor and comptroller were directed to execute, acknowledge and deliver all instruments necessary or proper in order to transfer all right, title and interest of the city “to the building known as the Art Institute of Chicago to the said South Park Commissioners, and to carry out the intent and meaning of this ordinance. ’ ’ December 30, 1903, by ordinance duly passed the South Park Commissioners accepted the transfer subject to all the legal rights, reservations and exceptions therein contained, and the jurisdiction of the South Park Commissioners was extended to all of Grant Park as the same existed at that time. It is stipulated that prior to the acceptance by the. Park Commissioners, a majority of the owners of lots and lands abutting on Grant Park, including complainant’s predecessors in title, who were owners at that time of all of the property now owned by complainant, had in writing consented to the transfer of Grant Park to the South Park Commissioners, but several of complainant’s predecessors in title expressly reserved in their written consents all their rights to their easements over the park. Pursuant to that ordinance the City' of Chicago by Carter Harrison, mayor, executed an indenture whereby the city granted, conveyed and transferred to the South Park Commissioners “all the right, title and interest of the City of Chicago aforesaid, in and to the building known as the Art Institute of Chicago, which is referred to in said ordinance of July 20, 1903, and which is situated upon that portion of the said premises known as Grant Park, otherwise known as Lake Front Park, in the said City of Chicago, which is referred to and described in and covered by said ordinance of July 20, 1903; . . . but subject, as in said ordinance of July 20, 1903, provided, to the right of the Art Institute of Chicago as defined by said ordinance of March 30, 1891, and said contract and the terms, provisions and conditions thereof, and to the rights, occupation, uses and benefits of the Art Institute of Chicago thereunder, all and every of which the South Park Commissioners have accepted, assented to, done and permitted, and accept, assent to, do and will permit, as provided in and by said ordinance of July 20, 1903.” This transfer is also signed by Lawrence E. McCann, city comptroller, is under seal and is attested to by Fred C. Bender, city clerk. June 27, 1895, the City of Chicago enacted an ordinance which extended the limits of Lake Front Park eastwardly to the line then established, or to any other line that might thereafter be established by the government of the United States as a harbor or dock line. The General Assembly of Illinois by an act approved April 24, 1899, changed the name of Lake Front Park to Grant Park. By an amendment to that act approved May 10, 1901, the legislature granted to the City of Chicago the right to fill in the submerged land for park purposes. By an act of the General Assembly approved May 14, 1903, Grant Park was conveyed to the South Park Commissioners. It is stipulated by the parties with reference to ordinances of June 27, 1895, and October 21, 1895, and acts of April 24, 1899, May 10,1901, and May 14,1903, and decisions of City of Chicago v. Ward, 169 Ill. 392; Bliss v. Ward, 198 Ill. 104; Ward v. Field Museum, 241 Ill. 496; South Park Commissioners v. Montgomery Ward & Co., 248 Ill. 299, and Illinois Cent. R. Co. v. People, 146 U. S. 387, that— 1 1 The findings of the respective courts and the facts as stated by said courts in all of said decisions, opinions and decrees, and the said Acts and Ordinances are hereby, by this reference, included in and by the agreement of the parties made a part hereof and are agreed facts in this proceeding as completely as though set forth verbatim herein.” August 3, 1889, one Leland, an owner of lots abutting on Michigan Avenue, to which the easement in question was appurtenant, filed his bill in behalf of himself and other owners, making defendants thereto the City of Chicago and others. He prayed that the defendants should be enjoined from erecting any structures on this tract of land and that structures thereon should he removed. A temporary injunction issued October 26,1889. Sarah Daggett, another owner, similarly situated, was afterwards allowed to appear as a co-complainant. April 6, 1892, Leland withdrew as complainant. March 30,1891, while that suit was pending, the ordinance heretofore described was enacted and the contract pursuant thereto made. The Art Institute building was erected in 1892 while that suit was pending. Mrs. Daggett caused the Art Institute and the mayor of the city to be cited for contempt for violation of the injunction. The Art Institute and others filed a petition asking that the original order of injunction be modified so as to permit the completion of the building. The mayor and the Art Institute answered the rule to show cause, setting up in their answer the ordinance of March 30, 1891, and the contract entered into pursuant thereto, and alleging that “all the owners of property interested consented to the erection of the said Art Institute Building upon said Lake Front.” Evidence was heard upon this petition, and the court then ordered and adjudged that the injunction should be “so modified as not to interfere with the erection, construction and use of a building on the Lake Front, between Jackson and Monroe streets, in pursuance of, and as contemplated by an ordinance passed by the city council of the City of Chicago, on the 30th day of March, 1891, and of an act of the General Assembly of the State of Illinois, entitled ‘An Act in relation to the World’s Columbian Exposition, approved A.ug. 5, 1890.’ And of all contracts made in pursuance thereof. ’ ’ The original documents, by which the property owners consented, are not in the record. October 16, 1890, A. Montgomery Ward et ah, filed a bill against the City of Chicago, the Illinois Central Railroad Company et al., in the superior court of Cook county, praying that the defendants might be restrained from erecting or causing the erection of any structure upon the land now described as Grant Park and might be required to remove lumber, timber, dirt, rubbish, garbage, etc., which had been placed thereon. This case was pending also at the time the Art Institute building was erected, and a decree was not entered therein until September 14, 1896. The decree was in favor of the complainants but contained the following clauses: “Provided, however, nothing in this decree contained shall be construed to prohibit, enjoin or restrain the use, occupation, repair or necessary enlargement of the building known as the Art Institute, situated opposite the east end of Adams street, so long as the same shall be used in accordance with the terms of the ordinance of the City Council authorizing the construction and location of the same. . . .” This decree was affirmed in City of Chicago v. Ward, 169 Ill. 392. The Supreme Court in that opinion, referring to the Leland case, says: “It was then sought to have the above injunction in the Leland case modified to permit the erection of this building, and such modification having been assented to in writing by all the property owners, it was accordingly modified, notwithstanding the objections of Mrs. Sarah A. Daggett, whose husband had signed her assent to the proposed modification. In pursuance of the permission thus granted the Art Institute building was subsequently erected with a frontage of about 300 feet. Again, the opinion says: “The only permanent building, perhaps, that is excepted from the injunction is the Art Institute, and all the property owners gave their consent to its erection. ’ ’ The exception in favor of the Art Institute is also noted in the opinion of the Supreme Court in Ward v. Field Museum, 241 Ill. 496. The exception in favor of the Art Institute is also noted in the opinion of the Supreme Court in Ward v. Field Museum, 241 Ill. 496. As stated, the written consents of the owners are not before us, but the interpretation which seems to have been put upon the rights of the Art Institute after the erection of the building is significant. It is stipulated that between the years 1893 and 1911, the Art Institute added to the usable area of the original building and constructed additions thereto, all of these additions being east of the original building and west of the right of way of the Illinois Central Railroad; that Fullerton Hall was erected in 1897, Ryerson Library in 1900, Blackstone Hall in 1903, Grand Stairway in 1910, School Additions from 1898 to 1928, General Offices in 1911, and a shipping room in 1916. These various improvements occupied additional area of 56,825 square feet, and the total cost of such improvements was $386,345.31. It is stipulated that this expansion of the Art Institute was in the opinion of its trustees and officers rendered necessary by its growth and development coincident with the growth and development of the City of Chicago. Upon the completion of these improvements the expansion and enlargement of the Institute building had reached the west line of the right of way of the Illinois Central Railroad, and by reason of the fact that the ordinance of March 30,1891, limited the Institute to a frontage not to exceed 400 feet on Michigan Avenue, 320 feet of which had already been utilized, it became necessary that further enlargement and expansion should extend over the tracks and east of the right of way of the Illinois Central Railroad in order that the original building might retain its original height of two stories and its architectural beauty of form and method of sky lighting. In the year 1913, with the consent of the Illinois Central Railroad Company and the South Park Commissioners, the ’ Art Institute constructed Gunsaulus Hall, commonly called the “Bridge,” which extends from the Art Institute’s original building as enlarged on Michigan Avenue, a distance of 256 feet eastward over the Illinois Central railroad right of way to the park east thereof. This hall or bridge is 60 feet in width, has 14,370 square feet of area, is 74 feet 6 inches above city datum at its highest point, and cost $147,-585.75. Thereafter the Art Institute constructed other enlargements and extensions east of the right of way of the Illinois Central Railroad company, all connected with each other and with Gfunsaulus Hall and through the Bridge with the original Art building west of the right of way of the railroad company. From 1920 to 1926 Hutchinson Wing was constructed, in 1922 Mc-Kinlock Court, in 1923 Goodman Theatre, in 1924 Decorative Arts Gallery, in 1927 Temporary School, from 1927 to 1928 Permanent School, in 1928 Allerton Wing and from 1928 to 1929 Rehearsal Gallery. These various improvements occupied an additional area of 91,910 square feet and were made at a cost of $1,286,-948.81. Upon their completion these extensions and enlargements were occupied by the Art Institute, and it is stipulated that all were rendered necessary in the opinion of the trustees and officers of the Art Institute by the growth and development of that institution and of the City of Chicago. In 1929 the city had attained to an estimated population of 3,250,000. It enrolled in its public schools in 1928, 514,818 pupils, and the number of its teachers had increased at that time to 12,241. In 1929 the Art Institute school enrolled 4,437 pupils, employed a faculty of 85 instructors and operated its school at an annual cost of $297,000. In the same year the total attendance of visitors was 1,006,122. Its membership of persons making annual payments had increased to 19,017, its annual pay roll was $605,000, its employees numbered 343, the value of its art collections was $15,000,000, the endowment funds held in trust amounted to $7,552,387.59, and the value of its buildings was placed at $6,000,000. It is further stipulated that all of the extensions and enlargements were with the express consent of the South Park Commissioners, were carried on openly and visibly, were discussed in the public press and were generally known to all of the citizens of Chicago and particularly to the abutting property owners, including complainant’s predecessors in title and the officers of complainant, who were all citizens and residents of Chicago; that the constructions were in plain view, and that during said construction the workmen, teams, material and all other activities were easily visible to all persons concerned and were apparent and known to the abutting property owners upon the west side of Michigan Avenue and all others interested in Grant Park; that at no time since the construction of the original building had any legal proceedings been instituted against the Art Institute by any abutting property owner or by others to recover damages or to enjoin its activities in Grant Park; that all of the constructions, including the original building and the subsequent enlargements and extensions, were carried on in good faith by the Institute, relying upon the modified order of injunction in the Leland case and the final injunctional decree in Ward v. City of Chicago, and the decisions of the Supreme Court of this State in these and other cases mentioned; that during all the time hereinbefore mentioned, the abutting property owners have vigorously and successfully opposed the construction of any other buildings in Grant Park, but that in all of the Supreme Court decisions growing out of such litigation, the right of the Art Institute has either not been questioned or has been expressly recognized and declared to be the only exception permitted. The Art Institute building is located at the foot of Adams Street, in Grant Park, on the east side of Michigan Avenue, facing west. Complainant’s hotel is located on the west side of Michigan Avenue, facing east. Between the center line of the Art Institute and the center line of the Stevens Hotel the distance is 2,563 feet. The Art Institute is almost exactly north of the Stevens Hotel, and from none of the windows of that hotel is the view of Lake Michigan over Grant Park obstructed by the Art Institute. The erection of the concrete walls on both sides of the Hlinois Central railroad tracks, and the gradual raising of the level of the park by filling in up to a point 22 feet and 6 inches above city datum, have rendered the lake, as well as the Illinois Central trains, invisible from the street level. We have before us the briefs filed in the Supreme Court while the appeal was pending there, and thé opinion of that court has eliminated from our consideration several of the points upon which complainant relies. That opinion distinctly holds (1) that no undecided question as to the infringement of constitutional rights is in the case either under the Constitution of the Hnited States or of Illinois; (2) that no question as to the validity of any ordinance of the City of Chicago or of the South Park Commissioners is involved; (3) that the contract between the South Park Commissioners and the Art Institute may not be properly considered as a municipal ordinance; (4) that a freehold is not involved. Complainant, still insisting that a freehold is involved, has entered a motion to dismiss upon the ground that this court is without jurisdiction, which motion, for obvious reasons, has been denied. Defendants contend that there remain only three questions open for discussion: First, whether complainant at the present time has a right to raise against the Art Institute the question as to its right to and the extent of its site. Defendants contend that complainant does not have such right and that its bill should have been dismissed for that reason; that the earlier owner of the hotel property once had the right to raise such a question, but that right was long ago deliberately waived, as was held might be done in South Park Commissioners v. Ward, 248 Ill. 299, upon the authority of People v. Walsh, 96 Ill. 232. We do not entertain any doubt of the right of such owner to waive any and all his rights acquired under such an easement as exists here, as was held in City of Chicago v. Ward, 169 Ill. 392. Such right may be waived as to one party and not as to another or may be waived as to one part of the premises and not to another. Such waivers would not destroy the easement. The opinion of the court states (and we assume it to be true) that the original waivers were in writing, but as already stated, those writings are not before us and we can only know from adjudication of the courts, by necessary inferences from other documents, from the construction put upon the same by the parties, the terms and conditions, if any, upon which these waivers were made. As to the original building and additions thereafter erected prior to the filing of the bill, we entertain no doubt that under the adjudication of the courts and by reason of the admitted acquiescence of this complainant, its right to object that any or all of these violate its rights under the easement must be deemed waived. It by no means follows that its rights under the easement have ceased as against this institution, and upon a proper showing we do not doubt the right of complainant to object and in a proper case, obtain relief. In other words, its status as the holder of rights under the easement and to maintain these rights against the defendants has not been destroyed as defendants contend. A second question is argued by the parties, namely, the question of the right of the South Park Commissioners on behalf of the public to stipulate with the Art Institute for the occupancy of a larger area of its site on which to enlarge its present building for the uses of the Institute. It is contended by complainant that the Institute has no such right, while defendants say that the question has been decided contrary to complainant’s contention in Furlong v. South Park Commissioners, 340 Ill. 363, 367. We do not understand that any question of the rights of property owners under the easement here considered or analogous thereto was involved in that case. That in general the Commissioners and the Art Institute have the right and the power to contract with reference to property in which they are mutually interested, is not questioned, and that decision, as well as Maskin v. Chicago, 93 Ill. 105; Mound City v. Mason, 262 Ill. 392, and Potter v. Fond du Lac Park Dist., 337 Ill. 111, sustain that proposition. Indeed, that power and authority has been expressly given by statute (see Cahill’s Ill. Rev. Stats. 1929, ch. 105, ¶ 369.) Defendants have the right to contract with each other concerning this property, but they cannot of right make a contract concerning it which would be destructive of complainant’s rights under the existing easement. The controlling question in the case is whether the proposed enlargement and additions provided for under the contract of January 18, 1928, as entered into between these parties would violate the rights of complainant under the easement. The contract itself recognizes the obligation of the parties to respect complainant’s rights under the easement. It specifically provides: “Any and all of the permits and permission herein granted by the said South Park Commissioners to the Art Institute of Chicago, are subject to the rights, if any, of any persons, firms or corporations, referred to in the decisions of the Supreme Court of Illinois relative to Lake Front Park or Grant Park being forever free of buildings.” Further, the contract recites that the present building in Grant Park occupied by the Art Institute has become inadequate; that the time has arrived for the Art Institute to secure final and definite plans for a complete museum building; that the most feasible plan submitted is for the construction of proper additions to the existing building now occupied, which additions should be large enough to take care of the extensions of the Art Institute for the next 50 to 100 years in order that it may keep step with the growth and development of Chicago and the Middle West. It recites that the Art Institute has arranged to conduct a competition among leading architects of America and Europe for the purpose of securing the best available plans and specifications, and that additional space in Grant Park is necessary upon which to build such additions. For this purpose the contract expressly grants the right to occupy the land as shown by the plat. It grants permission to erect such additions which shall become a part of the building now used and occupied and to be the property of the South Park Commissioners, but provides that such additions shall be used and occupied by the Art Institute for the purpose of a museum for the collection and display of objects pertaining to the arts and sciences, and subject to the conditions therein contained. These conditions, in substance, are: No work of construction on any of the additions should be done until a competition among the leading architects of Europe and America has been conducted and a comprehensive plan for the development of the additional land by the erection of a building or museum of distinguished architectural design and appropriate interior arrangement, including specifications for the additions, shall have been submitted to and approved by the South Park Commissioners. Detailed plans and specifications must also be submitted to the Commissioners before any such additions shall be erected. The building now used and occupied, as well as all additions, must be maintained by the Art Institute in good order and condition, and the public admitted thereto, in accordance with the terms and provisions of an act entitled, “An Act concerning Museums in Public Parks,” approved June 17, 1893, in force July 1, 1893, as amended by an act approved May 14,1903, in force July 1,1903, Cahill’s St. ch. 105, 11 369 et seq.; that the Art Institute shall furnish to the South Park Commissioners a detailed statement of the annual cost of maintaining and caring for the Institute and the buildings and grounds thereof; that the Art Institute shall open to the public without charge on Sunday and on two other days of each week, and to the children in actual attendance upon any of the schools of this State, at all times; that the buildings, lawn, walks and other appurtenances of the park allocated to the use of the Art Institute shall be kept in a manner to conform with the general park development according to the plans to be furnished by the Institute and approved by the Commissioners, and shall be kept in a clean and sanitary condition and free of any and all nuisances; that the Art Institute shall construct and maintain at its sole expense four enclosed bridges over and across the right of way and tracks of the Illinois Central Railroad Company, provided that the bridges shall be constructed according to plans and specifications submitted to and approved by the Commissioners, and provided that the Art Institute obtains the consent of the Illinois Central Railroad Company thereto. The several ordinances, contracts, agreements and decisions of the courts, as hereinbefore recited, seem to us in every provision to contemplate the possession of a portion of Grant Park by the Art Institute permanently for the purposes for which it was created and with a view to its future expansion and development as the city in which it is situated, should expand and develop. It seems to be a necessary inference from all the evidence recited that this was the intention of the respective parties at the time the owners upon Michigan Avenue executed their written consents to the location and construction of the original building. Not only does that intention appear from the language of the documents, but it is corroborated by the contemporaneous and continued construction which seems to have been put upon these waivers during the years in which no objection has been made to the continuous development of the Art Institute as an institution. We hold such to be the reasonable construction. The easement of complainant and other property holders is not destroyed, but they have, as the Baggett case shows and the Ward case holds, given their consent to the erection of the original building and to such enlargements as may become necessary by reason of the growth and expansion of the community in which the institution is located. Such enlargements must be reasonably necessary. They must be made in good faith. They may not occupy more than 400 feet frontage on Michigan Avenue and must in all respects conform to the provisions of the ordinance of March 30, 1891, as construed and determined in the Baggett case and in City of Chicago v. Ward, 169 Ill. 392. Both parties appeal to the doctrine of res adjudicaba. Defendants, as already stated, rely on City of Chicago v. Ward and the Daggett case, both of which have already been considered. Complainant relies on all the cases in which its rights under the easement have been repeatedly declared and definitely established. We hold that in substance the rights of the parties have been settled and determined in those cases. Complainant has its easement except in so far as it has been waived in favor of defendants. Complainant has waived its rights thereunder so far as the present use and occupation of the defendant Art Institute is concerned and so far as the enlargements of the Art Institute now or in the future may make necessary the erection of other buildings which are an essential part of the Art Institute. City of Chicago v. University of Chicago, 228 Ill. 605. From a colloquy which occurred at the time the decree was entered and which appears in the record, it would seem that the trial court was of the opinion that there was no evidence in the record tending to show the proposed additions were reasonably necessary. The evidence, we think, appears in the stipulation, tending to show this; but if it did not so appear we would nevertheless be of the opinion and hold that under the facts such as appear here, the bill failing to state that the proposed enlargements were unnecessary, complainant is not entitled to relief as prayed. Defendant Art Institute upon the trial offered to enter into a voluntary stipulation by which it would impose upon itself certain limitations to the effect that in case it should be held that the Institute might lawfully erect upon the site the further enlargements of its building now proposed and described in the pleadings, there might be incorporated in the decree the following as the meaning and intent thereof: ‘ ‘ That the boundaries of the ground of the total area upon which it claims the right to erect such buildings are as follows: Not further north than the south line of Monroe street extended. Not further south than the north line of Jackson street extended. Not further west than the present location of its Michigan Avenue frontage. And not further east than the west line of the west drive as shown on the plat (Ex. D — p. 56 stipulation of facts) of the ground in question attached to the stipulation of facts herein. Also, that any such building on its Michigan Avenue frontage shall not extend more than four hundred (400) feet from the north to south. Also, that no part of the proposed new structure shall be of any greater height above datum than the highest point of its present existing building on the Michigan Avenue frontage, unless merely by way of ornament, pinnacles or flagpoles.” We think these stipulations might well be incorporated in the final decree entered in case complainant should agree. For the reasons which we have indicated the decree of the circuit court will be reversed and the cause remanded with directions to enter a decree in conformity with the views expressed herein. Reversed and remanded with directions. O’Connor and McSukely, JJ., concur. ","per_curiam":false,"type":"020lead"}],"other_dates":"Heard in the first divi-, sion of this court for the first district at the June term, 1930., Rehearing denied April 6, 1931.","precedential_status":"Published","slug":"stevens-hotel-co-v-art-institute"} {"case_name":"Washington v. Ohio","case_name_full":"Washington v. Ohio","citation_count":0,"citations":["465 U.S. 1038"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1984-02-21","date_filed_is_approximate":false,"id":9350023,"opinions":[{"ocr":true,"opinion_id":9345484,"opinion_text":"\nSup. Ct. Ohio. Certio-rari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"washington-v-ohio"} {"attorneys":"Jno. C. Avery and Richard L. Campbell for Appellant., Blount & Blount for Appellee.","case_name":"Wheeler v. Baars","case_name_full":"W. A. S. Wheeler v. Henry Baars","case_name_short":"Wheeler","citation_count":2,"citations":["33 Fla. 696"],"court_full_name":"Supreme Court of Florida","court_jurisdiction":"Florida, FL","court_short_name":"Supreme Court of Florida","court_type":"S","date_filed":"1894-01-15","date_filed_is_approximate":true,"id":5097155,"judges":"Taylor","opinions":[{"author_str":"Taylor","ocr":true,"opinion_id":4914626,"opinion_text":"\nTaylor, J.:\nHenry Baars, the appellee, sued the appellant in the Circuit Court of Escambia county in an action for deceit in the sale of a steam tug boat, and recovered judgment for $381.64, from which the defendant below •appeals.\nThe original declaration contains four counts in substance as follows: (1) That on March 28th, 1884, the plaintiff bought of defendant, as trustee of Piaggio *698Bros., one steam tug called “Jumbo,” for a large sum of money, mz\\ The sum of $4,250, and that upon said sale the defendant falsely and fraudulently represented that said steam tug was free from all liens and encumbrances, whereas in truth and in fact there was a lien upon said tug for the sum of $246, of which said lien the defendant well knew, and of which plaintiff was ignorant. That since said purchase plaintiff has been compelled to pay the full amount of said lien in order to prevent a sale of the said tug to pay same, which lien together with interests and costs of suit brought by the said lien holders to enforce same, and which plaintiff was also compelled to pay, amounts to $337.54. (2) The second count is substantially the same as the first except that it alleges that the false representation by the defendant was made in order to induce the plaintiff to purchase said tug. (3) The third charges that the defendant, craftily and frauduulently intending to deceive the plaintiff and to benefit himself thereby, as agent of one Rinaldo • Piaggio,. caused the plaintiff and others to purchase on March 28th, 1884, of the said Rinaldo Piaggio a steam tug called “Jumbo,” and in order to effect said sale falsely and fraudulently represented to plaintiff that the said tag was free from all liens and encumbrances, whereas in truth and in fact, as defendant ought to have known, there was a lien, .upon said tug and of which plaintiff was ignorant; and plaintiff has been compelled to pay the full amount of said lien together with the costs of suit brought to enforce the same, amounting to $337.54. (4) The fourth count alleges that the defendant as trustee for Piaggio Bros, and R. L. Campbell, on and prior to the sale of said tug boat to the plain tiff, falsely and wrongfully intending to deceive the plaintiff to his own profit and advantage failed to in*699form plaintiff that there was a claim existing against said tug, although plaintiff particularly inquired of him whether there was any claim upon said tug, and although defendant knew at the time of said inquiry that W. F. & J. E. Creary had a claim' against said tug for $242.06, and that they had brought suit thereupon, and that of the existence of such claim plaintiff remained ignorant until after his purchase of said tug, and that he was compelled to pay the judgment for $337.50 that said parties afterward recovered on said claim against said tug in order to save her from sale-thereunder.\nBefore plea by the defendant the plaintiff filed, as-an amendment to his declaration, three additional counts, besides the common count for money had and received, in substance as follows: (1) That the defendant as trustee for Piaggio Bros, and R. L. Campbell negotiated with plaintiff’s agent, one William Elias,, for the sale of said steam tug to plaintiff, and that during the pendency of said negotiations that were consummated by a sale on March 28th, 1884, of said tug to plaintiff, defendant falsely and fraudulently warranted said boat to be free from all encumbrances in the shape of claims, whereas in truth and in fact the-firm of W. P. & J. E. Creary had a claim against the tug which, since said sale to plaintiff, the Circuit Court of Escambia county and the Supreme Court of Florida have adjudged to be a valid lien upon said tug for materials and repairs amounting to $246.02, and plaintiff was compelled to pay the full amount of same with costs of suit, amounting in all to $337.54. (2) The-second additional count charges substantially that the-defendant as agent for Rinaldo Piaggio, while conducting negotiations that culminated on March 28th, 1884, in the sale of the steam tug Jumbo by the said *700Rinaldo Piaggio to plaintiff, falsely and fraudulently warranted that no claims existed against said steam tug, whereas in truth and in fact a claim of W. F. & J. E. Creary for materials and repairs, amounting to $246.02, did so exist, which, since said sale to plaintiff the Circuit Court of Escambia county and the Supreme Court of Florida have adjudged to be a valid lien upon said tug, and plaintiff has been compelled to pay same with costs of suit brought to enforce same, amounting in all to $337.54. The third additional count of the amended declaration it is unnecessary to notice, as it was withdrawn by the plaintiff before the submission of the cause to the jury.\nTo the original and amended declaration the defendant pleaded the general issue of not guilty, and ‘ ‘never was indebted’ ’ to the common count for money had and received.\nThe testimony for the plaintiff was as follows: William Elias deposed.for the plaintiff that his occupation was that of a commission agent, that he resided in London, England. I acted as agent for Henry Baars, and' as such agent entered into negotiations with defendant Wheeler for the purchase on behalf of plaintiff Henry Baars, of the steam tug “Jumbo,” Prior to said sale by Wheeler I did speak to him in regard to the existence or non-existence of claims against said steam tug! I spoke to him on this subject a, few days prior to the date on which the tug had been advertised for public sale in the Pensacola papers. I can not now recall the exact date. The conversation took place in one of the rooms of the First National Bank, Pensacola, and Wheeler assured me that there were, with the exception of that of the First National Bank, no claims of any kind against the said steam/tug “Jumbo,” and he further said, in order to prove -such assertions *701to be correct, that had there been any claims, all claims would have been sent in to the First National Bank, as that institution had advertised said steam tug for sale by public auction in various papers and there were no claims lodged. I made such investigation in regard to' claims against said boat in the interest of Henry Baars and at his special request. I certainly did not know at the time or before I was negotiating said sale from defendant to plaintiff of the existence of any claim against the Jumbo by W. F. & J. E. Creary, and I first heard of such claim being put in when Creary started an aption against the tug boat Jumbo some long time after I had completed the purchase of said tug on behalf of the plaintiff Henry Baars. The defendant Wheeler distinctly told me that if I bought the tug there were no claims out against her for which my principal, Henry Baars (not then known to Wheeler), would be responsible. If such a claim as Creary’s was known it was only known to the defendant Wheeler. I certainly was not informed of it. Had I been so informed I certainly should have insisted on such claim’s being satisfied before concluding the purchase on behalf of my client, the plaintiff Henry Baars.\nThe plaintiff also introduced the record in a suit instituted on March 20th, 1884, and the judgment therein in the Circuit Court of Escambia county in favor of W. F. & J. E. Creary against R. & D. Piaggio, as owners of the steam tug Jumbo, in which their claim was adjudged to be a superior lien on said tug boat. In which suit a writ of garnishment was issued on the 4th day of April, 1884, and served same day on the defendant W.A.S. Wheeler, as garnishee, requiring him to show upon oath what moneys, etc., he held of the said R. & D. Piaggio. The garnishee (the defendant *702herein) answered said writ on the second day ■of June, 1884, in which he averred that he then had no money or effects of the said Piaggios in his possession, and was not indebted to them ■except as follows: “That Richard L. Campbell held a mortgage on the steam tug Jumbo, owned by the defendants (Piaggios), and that mortgage debt being due and unpaid, the said Campbell and the Piaggios appointed him (Wheeler) their trustee to take and ■sell the said tug and apply the proceeds of the sale to the satisfaction of said mortgage debt. He accepted .said trust and sold the said tug, realizing from the sale less than the amount of the said mortgage debt,- two hundred and fifty dollars of the proceeds of said sale still remaining in his hands to be disposed of as the court should direct.” This record shows that W. F. & J. E. Creary recovered judgment on their claim against the Piaggios on December 19th, 1884, for $266.70, the judgment declaring it to be a lien on said steam tug, and that' she be sold to satisfy same. This record shows further that upon execution being issued on the judgment in favor of the Crearys and levied on said steam tug, the plaintiff in this suit, Henry Baars, interposed a claim thereto, giving the usual claim bond. It shows further that upon the trial of this claim it was adjudged that said tug was subject to the lien of the judgment and execution of the Crearys. From this judgment the claimant, Henry Baars (the plaintiff herein) took an appeal to the Supreme Court where the judgment of the lowmr court upon his claim was affirmed (23 Fla., 311, 2 South. Rep., 662).\nThe garnishment against the defendant, Wheeler, in the suit of Creary against the Piaggios was dismissed .according to the evidence, but the record before us *703■does not show when or at whose instance it was dismissed. ►\nThe plaintiff, Henry Baars, on his own behalf, testified that William Elias was directed by him as his agent to call upon Mr. Wheeler, who had the steam tug Jumbo for sale, and negotiate the purchase of her for him. He purchased her for him; subsequently he was compelled to pay the lien of W. F. & J. E. Creary on the Jumbo, which the Supreme Court of the State held was a valid lien on her. This closed the testimony on behalf of the plaintiff.\nThe defendant then on his own behalf testified as follows: I remember Mr. Elias calling on me with reference to the purchase of the tug “Jumbo.” I was advertising her for sale as trustee, and solely under the authority I had through a writing from Piaggio Bros. This is the paper:\n“Pensacola, Fla., 1st March, 1884. ■\nWe hereby authorize and empower W. A. S. Wheeler to take possession of and to sell at public auction after fifteen day’s notice in the Pensacola Commercial newspaper of the city, for cash, steam tug J umbo, and to apply the proceeds of said sale in payment of debts due by Piaggio Brothers to R. L. Campbell and Mrs. Emily C. Smith; and we hereby authorize said Wheeler to execute any writing under seal or otherwise which may be necessary to give effect to the power hereby vested in him. Witness our hands and seals the day and year above written.\nR. Piaggio (seal),\nDario Piaggio (seal).”\nI had no other power, authority or connection with the matter. I do not remember stating to Mr. Elias that there was no lien on the boat. I did not tell him that the only claim against the boat was that of the First *7041STational Bank. The bank had no claim at all, and had nothing to do with the matter. I had no knowledge of the existence of the lien of W. F. & J. E. Creary until after -the date of the service of the writ of garnishment on me in the suit against Piaggio Bros. How I first learned the fact that there was such a lien I do not remember. 1 retained out of the proceeds of the sale of the Jumbo two hundred and fifty dollars to-meet the garnishment-, and held it until the garnishment was dismissed. I am prepared to swear that I did not tell William Elias that there were no liens on the Jumbo. I do say that I did not know of the existence of said lien until after the writ of garnishment was served on me. On cross-examination the following paper was handed to the defendant witness by the plaintiff’s counsel:\nAccount sales Steamer Jumbo and Lighters, account of R. L. Campbell’s mortgage against PiaggioBros.\nBY SALE,\nSteam tug Jumbo to Elias..................$3,250.00\nLighter Florida to Brent.................... 600.00\nLighter Genoa to Wittich................... 525.00\nLighter Tycoon to Elias.................... 150.00\nLighter Minnie H. to Brent................. 750.00\n$5,575.00\nOHAKG-ES.\nJos. Sierra, auctioneer, on $1,575 at 5 per cent..................... $78.75\nPensacola Commercial, advertising ........................... 8.00\nCommissions 5 per cent........... r 278.75\n1 month’s interest on $750 note for Minnie H, dated February 28, 1884 .......................... 7.00\n*705Amount reserved awaiting result of suit against Jumbo, W. F. & J. E. Creary, for repairs.......... 246.02\n--$619.02’\nProceeds ...................... $4,955.98,\nW. A. S. Wheeler..\n1884\nMarch 31 Note Piaggio Bros, dated Dec. 1, 1882... $3,100.00.\n4 M. B. 10 per cent, interest from maturity, April 4 to April 20, 1883................ 13-.76-\n-$3,113.76\nLess amount' paid April 20, 1883............. 1,117.22\n$1,996.54\nInterest from April 20, 1883, to March 31, 1884................. 191.90-\n$2,188.44»\nNote dated April 20, . 1883, 6 months after date, due Oct. 23 1883 3; 150.00\nInterest from maturity to March 31, 1884... 140.00 3,290.00*\n$5,478.44\nThe defendant testified in reference to. this paper that he presumed that it is the account rendered by him to Piaggio Bros, of his action as trustee; and. the disbursement he had made. I recognize the signature to it as my signature. Yes, it is th,e account rendered.. *706This statement was made at the date it bears. On redirect examination he said that after his attention had been.called to the dates upon the paper and to the writ of garnishment, this paper has no date at the bottom where statements are “usually dated. The date was omitted through an oversight, I presume. I am sure that it was not rendered until after the service of the writ of garnishment on me.\nR. L. Campbell for the defendant testified as follows: I know that Mr. Wheeler’s connection with the .Jumbo was solely through the paper he has produced :as his authority. I gave him such instructions as he received. I did not tell him that there was any lien on ifche Jumbo. I knew of the existence of none. Did .not know of it until after the service of the writ of .-garnishment on Wheeler. He rendered us an account In the matter which showed that he held $250 under the garnishment of W. F. & J. E. Creary. This account 'was not rendered until after the service of the writ of garnishment which had been previously brought to my attention. Of this I am sure. How I ■can be sure, I can only explain by stating that I recollect it as a matter of memory only. This comprises .the entire evidence.\nThe court then gave the following instructions to the .jury: “(1) You are the judges of the weight of the evidence and the credibility of the witnesses. In determining the latter you may take into consideration ■-their interest in the suit and their manner upon the stand. If you believe that Wheeler, although agent ■■or trustee, made the representation alleged in the declaration, and .that .he made it to induce the alleged purchase, and the representation was not true, and the purchase was made upon the representation, his principal would not be bound, but he would be. (2) If *707you find that Wheeler, for the purpose of obtaining a higher price, represented to Elias that there was no lien on the boat, and the representation was of a character to impress Elias with the fact that there was no lien, and the representation afterwards turned out false, Wheeler would be responsible. (3) Written declarations made at, before or soon after a transaction are entitled to greater weight than an oral statement, unless the oral statement is of such character as to show that the written statement was made through mistake.”\nThe following instructions requested by the defendant were refused by the court: “(1) To authorize the jury to find a verdict against the defendant upon the charge that he falsely represented at the time of negotiating the sale of the steamer Jumbo to the plaintiff or his agent that there existed no claim or lien against or upon the said steamer other than that which defendant was about to sell her to satisfy, it must be proved to the satisfaction of the jury, first, that there was such claim or lien at the time of said negotiation; second, that defendant did, at the time'of the negotiation, represent to the plaintiff or his agent Elias that there was no such claim or lien; third, that at the time defendant made such representation he knew it to be false, and in the absence of satisfactory proof on s any one of these points the jury must find for the defendant upon the count in the declaration charging him with such false representation. (2) That the defendant in becoming trustee under the deed of trust, which is in evidence, had no legal duty to perform under said deed except to take possession of and sell the mortgage property and pay the proceeds over to R. L. ■Campbell to the extent of his mortgage debt, and the residue, after paying expenses, to the Piaggios; and *708though the writ of garnishment in the case of Oreary against. Piaggio, which is in evidence, might have-bound the funds in defendant’s hands while it was in force, yet when the garnishment proceeding was dismissed defendant’s legal duty was to pay over the money to his principal, and, therefore, plaintiff in this case can base no right to a verdict upon said garnishment suit or anything done therein before said dismissal. (3) In order to enable the jury to find a verdict against the defendant Wheeler they must be-satisfied that the testimony before them proves that at the time of the negotiations between said Wheeler and Elias, the agent- of plaintiff, for the sale of the steamboat, that said Wheeler had knowledge of the existence of the Creary claim upon the steamer Jumbo, and with that knowledge, and with the intention to-cheat and defraud the plaintiff, represented to the plaintiff’s said agent that no such lien or claim of a like kind existed at the time of such negotiation. (4) Proof that such a lien existed at the time of the nego; tiations for the sale, and even that defendant represented that there was no such claim, does not make-out the plaintiff’s case, unless it is further proved that; the defendant Wheeler knew, when he made the representation, that such a claim existed. (6) In order for any warranty or representation made by Wheeler to Baars to avail Baars you must find that Baars had knowledge of the warranty or representation, for such warranty or representation made to Elias and not communicated to or acted upon by Baars would not avail him in this suit unless you find from the evidence that-Elias was authorized to and did consummate the purchase without further communication with Baars after his interview with Wheeler. (7) The warranty, if you find one was made to Elias, must have been communi*709oated to Baars before the sale to him in order to avail him in this suit, unless Elias was authorized to and did consummate the purchase upon such assurance by Wheeler without further authority from Baars. If Elias was' not aathorized to purchase and did not communicate the warranty to Baars before the sale, you will find for the defendant.”\nThe following instruction, numbered fifth, requested for defendant was given by the court: “If you find from the evidence that Wheeler stated to Elias, acting for Baars, that there was no lien or claim against the Jumbo other than that he named at the time, and that in so doing he gave his reason for the statement, that reason is to be taken as a part of the statement or representation, and was notice to Elias that the representation or statement was to be limited by the reason given.”\nUpon the rendition of the verdict against the defendant he moved for a new trial, the grounds thereof being that the verdict was contrary to the evidence, and against its weight and preponderance, and contrary to the charge of the court; and that the court erred in refusing the instructions requested by defendant and quoted above; and because the court erred in giving the first, second and third instructions quoted above as having been given. The refusal of the motion for new trial, and the refusal of the instructions requested by defendant, and the giving of the first, second and third instructions are the errors assigned.\nThe charges refused by the court on the defendant’s request, that embody the idea that the representation •alleged to have been falsely made must have been known to be false at the time it was made by the defendant in order to warrant a recovery, makes it necessary to consider the rules of law applicable to actions *710of this kind. The action is clearly one for deceit. The elements essential to a recovery in such cases are thus tersely formulated in 1 Bigelow on Fraud, p. 466: “A false representation of a material fact, made with knowledge of its falsity, to a person ignorant thereof, with intention that it shall be acted upon, followed by reliance upon and by action thereon amounting to substantial change of position, is a fraud of which the law-will take cognizance.” As to the scienter—the knowledge—by the maker of the representation Of its falsity, the same author (vol. 1, p. 509) says: “A false-representation made with knowledge of its falsity— made scienter, in technical phrase—affords, if other elements of liability are present, a right of action in damages. A false representation may be made scienter., in contemplation of law, in any of the following ways: (1) with actual knowledge of its falsity, (2) with-without knowledge either of its truth or falsity, or (3) under circumstances in -which the persoD making it ought to have known, if he did not know, of its falsity. Ho action for damages can be maintained without proof of the scienter in one of these three phases.” If the first phase of the scienter is relied upon for a recovery the plaintiff must show that the representation was made with actual knowledge of its falsity, unless it be a case where the defendant, in making the representation that was false, couches it in such positive and unqualified terms as to amount to an affirmation of his knowledge of its truth. The second phase of the scienter includes all those cases where the misleading and false statement has been made in such absolute, unqualified and positive terms as implies Imowledge on the part of the person making it, and if the party making such positive statement has no Imowledge whether it is true or false he has know*711ingly told what is untrue, in putting his statement in such form as to amount to an assertion that he has-knowledge of its truth, when in fact he- has not.. When one party seeks information of another upon a material matter upon which he is about to act and the party from whom the information is sought is ignorant and has no-information on the subject, the demands of' truth; would require him to disclose and affirm such ignorance; but, in such case, if he conceals or withholds; his ignorance and positively asserts thus or so to be-true, when in fact he knows not whether it be- true or false, he is as culpable a deceiver,, if his- statement, proves to be false, as the party who wilfully asserts that to be true that he absolutely knows to be false-The third phase of the scienter embraces those cases-where, from the party’s special situation or means of knowledge, it becomes his duty to know as to the truth' or falsity of the representation made; and in cases of this kind the plaintiff can generally satisfy the rale in-regard to proof of the scienter by showing that the-situation of the defendant was such as to possess him,, with special means of knowledge as to the truth or-falsity of his assertions. Evans vs. Edmonds, 13 C. B., 777; Lynch vs. Mercantile Trust Co., 18 Fed. Rep.,. 486; Litchfield vs. Hutchinson, 117 Mass., 195; Bristol vs. Braidwood, 28 Mich., 191; Arkwright vs. Newbold,. L. R., 17 Ch. Div.,301; Dunn vs. White, 63 Mo., 181; Marsh vs. Falker, 40 N. Y., 562. From what has been said, and under the proofs in this case, we-do not think that the. charges requested by the defendant upon the question of the scienter were erroneously-refused. As an abstract, broad, general proposition of law it is quite true that no recovery can be had in an action of this kind unless the maker of the representation knew it to be false when made, and, that he *712made it with, intention to deceive; but the proof of such knowledge, or scienter is sufficient if it establishes a case falling within either of the three phases already pointed out, and the intent to deceive is to be inferred from the facts in proof. 1 Bigelow on Fraud, p. 537. It was not enough, therefore, for the court, under the proofs here, to simply say to the jury, in the language of the refused instructions, “that the plaintiff could not recover in the absence of satisfactory proof that the defendant made the representation knowing it to be false.” Had these charges proceeded ■further after the announcement of the general proposition. that scienter must be shown, with an explanation of the rules touching the three phases of proof that the law deems sufficient to establish such scienter, then it would have been proper to have given them; but in the form presented they are too general, and calculated to mislead.\nIt is contended further for the appellant that the judgment should be reversed because the proofs show that the lien, whose existence produced the plaintiff’s damage, was a matter of record and that it was the plaintiff’s duty to search those records for. himself, the access thereto being easy, and that he had no right to rely upon the defendant’s representations contrary to the facts that would have been disclosed by such record. There are some authorities that sustain this view of the law, but we are satisfied that the great weight of the authorities, English and American, supported by the soundest reasoning, establish a contrary doctrine that is thus forcefully expressed by Zollars, C. J., in West vs. Wright, 98 Ind., 335: “There maybe good, prudential reasons why, when I am selling you a piece of land, or a mortgage, you should not rely ixpon my statement of the facts of the title, but if I have *713made that statement for the fraudulent purpose of inducing you to purchase, and you have in good faith made the purchase in reliance upon its truth, instead of making the examination for yourself, it does not lie with me to say to you, ‘it is true that I lied to you, and for the purpose of defrauding you, but you were guilty of negligence, of want of ordinary care, in believing that I told the truth; and because you trusted to my word, when you ought to have suspected me of falsehood, I am entitled to the fruits of my falsehood and cunning, and you are without remedy.’ ” McClellan vs. Scott, 24 Wis., 81; David vs. Park, 103 Mass., 501; Upshaw vs. Debow, 7 Bush (Ky.), 442; Linington vs. Strong, 107 Ill., 295; Reynell vs. Sprye, 1 DeG., M. & G. 660; Olson vs. Orton, 28 Minn., 36; Parham vs. Randolph, 4 How. (Miss.), 435. As there must be a reversal of the judgment appealed from because of .another error in the charge of the court presently to be noticed, we do not think it necessary further to discuss the main points presented by the instructions given or refused, since, from what has been said, any •defects or omissions therein can, upon another trial, be rectified.\nThe proposition contained in the first charge of the court to the effect that “a principal is not liable civilly for the frauds and deceits of his agent committed in the course of his employment,” was clearly erroneous. It is well settled that for deceit and false representations made by an agent in the course of his employment, both the agent and his principal are civilly liable; and, so far as the liability of the principal is concerned, it makes no difference whether he authorized or was cognizant of the misrepresentation .and deceit of his agent or not. 1 Lawson’s Rights, *714Rem. & Prac., Sections 112, 114, and authorities cited.\nThe third charge of the court to the jury, as follows: “Written declarations made at, before or soon after a transaction are entitled to greater weight than an oral statement unless the oral statement is of such character as to show that the written statement was made through mistake,” in view of the evidence in the cause, was fatally erroneous. The written statement or account of the sales made by the defendant and introduced in evidence contained an item of $246.02, stated to have been reserved to await result of suit of W. F. & J. E. Creary for repairs. It also contained three dates that indicate that the items and assertions of fact therein were in existence and were known to> the defendant on March 31st, 1884, several days prior1 to the issuance and service of the writ of garnishment on him in the suit of W. P. & J. E. Creary against Piaggio Bros., all of which tended to show that the defendant did have knowledge, prior to the service of such writ of garnishment on him, that thei’e was a claim against the boat he was selling, in favor of W. P. & J. E. Creary. The defendant, however, and R. L. Campbell both testified orally, but positively, that, the appearances, from the paper itself, to the effect that it was made out on March 31st, 1884, were incorrect, and that such written statement was not in fact, made out until after the service of the writ of garnishment, and that defendant did not know of the existence of the Creary claim until the writ of garnishment, was served on him. Here, then, was oral statement-set up in juxtaposition with written, upon a vital point in the case; it was error for the court to invade the exclusive right of the jury to determine how much and what comparative weight they were to give to the *715different kinds of evidence in the cause by telling them, in effect, as matter of law, that the written statement was entitled to more weight than the oral.. Williams vs. Dickenson, 28 Fla., 90, 9 South. Rep., 847; Williams vs. LaPenotiere, 32 Fla., 491, 14 South. Rep., 157, and cases cited. For this error in the-•charge of the court the judgment appealed from must-be reversed and a new trial awarded, and it is so-ordered.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"wheeler-v-baars","summary":"Appeal from ‘the Circuit Court, for Escambia ■county. The facts in the case are stated in the opinion of the court.","syllabus":"Action for deceit—proof of scienter—principal and agent BOTH LIABLE FOR AGENT’S DECEIT—FAILURE TO SEARCH REOORDS NO DEFENSE TO PARTY DECEIVING—COURT MUST NOT INSTRUCT ON THE WEIGHT OF EVIDENCE.
1. A false representation of a material fact, made with knowledge of its falsity, to a person ignorant'thereof, with intention that it shall be acted upon, followed by reliance upon and by action thereon amounting to substantial change of position, is a fraud of which the law will take cognizance.
2. The knowledge, by the maker of the representation, of its falsity, or, in technical phrase, the scienter, can be established by either one of the three following phases of proof: (1) That the representation was made with actual knowledge of its falsity; (3) without knowledge either of its truth or falsity; (3) under circumstances in which the person making it ought to have known, if he did not know, of its falsity. Under the first phase the proof must show actual knowledge of the falsity of the representation. Under the second phase it should show that the representation was made in such absolute, unqualified and positive terms as to imply that the party making it had knowledge of its truth, and that he made such absolute, unqualified and positive assertion on a subject of which he was ignorant., and that he had no knowledge whether his assertion in reference thereto was true or false. Under the third phase -the proof should show that the party occupied such a special ■situation or possessed such means of knowledge as made it his duty to know as to the truth or falsity of the representation made. If the proof establishes either one of these three phases, the scienter is sufficiently made out.
3. The requisite intent to deceive in suoli cases is to be inferred from the facts in proof.
4. The laches of a party, to whom a misrepresentation of a material . fact has been made, in failing to search public records or other accessible sources of information that would have disclosed the falsity of the representation made, furnishes no excuse or defense to the party guilty of the misrepresentation in an action for deceit thereon.
5. For deceit and false representations made by an agent in the course of his employment, both the principal and his agent are civially liable; and, so far as the liability of the principal is concerned, it makes no difference whether he authorized, or was cognizant of the misrepresentation and deceit of his agent or not.
'6. It is the exclusive right of the jury to determine how much and what comparative weight they will give to the different kinds of evidence submitted in a cause; and it is error for the court to instruct them, as matter of law, that one kind of evidence is entitled to more or greater weight than another kind.
"} {"case_name":"Kraly v. New York Rapid Transit Corp.","case_name_full":"Anthony Kraly v. New York Rapid Transit Corporation","case_name_short":"Kraly","citation_count":0,"citations":["222 A.D. 754"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1927-12-15","date_filed_is_approximate":true,"id":5460289,"opinions":[{"ocr":true,"opinion_id":5299289,"opinion_text":"\nJudgment dismissing complaint reversed upon the law and new trial granted, costs to abide the event, upon authority of Kraly v. New York Rapid Transit Corporation (post, p. 754), decided herewith. Young, Lazansky, Hagarty, Seeger and Carswell, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"kraly-v-new-york-rapid-transit-corp"} {"case_name":"Brown v. Beth Israel Hospital Ass'n.","case_name_full":"Naoma A. Brown and Leo Brown v. Beth Israel Hospital Association, Inc., Impleaded with Another","case_name_short":"Brown","citation_count":0,"citations":["253 A.D. 806"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1938-01-28","date_filed_is_approximate":false,"id":5513061,"opinions":[{"ocr":true,"opinion_id":5353108,"opinion_text":"\nOrder unanimously affirmed, with twenty dollars costs and disbursements. No opinion. Present — Martin, P. J., Glennon, Untermyer, Dore and Callahan, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"brown-v-beth-israel-hospital-assn"} {"case_name":"In re K.L.","case_name_full":"In the Matter of K.L., Glenn Martin, Respondent Attorney General of State of New York, Intervenor-Respondent","case_name_short":"In re K.L.","citation_count":0,"citations":["1 N.Y.3d 531"],"court_full_name":"New York Court of Appeals","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Appeals","court_type":"S","date_filed":"2003-11-20","date_filed_is_approximate":false,"id":5638695,"opinions":[{"ocr":true,"opinion_id":5484351,"opinion_text":"\nMotion by New York Lawyers for the Public Interest, Inc., et al. for leave to file a brief amici curiae on the appeal herein granted. Three copies of a brief may be served and 20 copies filed within 30 days.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted September 22, 2003;","precedential_status":"Published","slug":"in-re-kl"} {"attorneys":"John D. Elmer for motion., No one opposed.","case_name":"Betty J. v. James J.","case_name_full":"In the Matter of Betty J. \" W \" v. James J. \" X \"","citation_count":0,"citations":["29 N.Y.2d 645"],"court_full_name":"New York Court of Appeals","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Appeals","court_type":"S","date_filed":"1971-07-07","date_filed_is_approximate":false,"id":5678874,"opinions":[{"ocr":true,"opinion_id":5526841,"opinion_text":"\nMotion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that no appeal lies as of right.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted June 21, 1971;","precedential_status":"Published","slug":"betty-j-v-james-j"} {"attorneys":"Robert C. Ray, for appellant., Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, Arthur K. Bolton, Attorney General, James L. Mackay, Assistant Attorney General, for appellee.","case_name":"Buckner v. State","case_name_full":"BUCKNER v. State","case_name_short":"Buckner","citation_count":0,"citations":["239 Ga. 838"],"court_full_name":"Supreme Court of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Supreme Court of Georgia","court_type":"S","date_filed":"1977-10-19","date_filed_is_approximate":false,"id":5744615,"judges":"Hall, Nichols","opinions":[{"author_str":"Nichols","ocr":true,"opinion_id":5596387,"opinion_text":"\nNichols, Chief Justice.\nThe defendant, Isaac Romas Buckner, was convicted of the December 25, 1972 murder of Lawson Murell. Howard O. Murell, the brother of the deceased, testified to the following: On the night of December 24,1972, he was awakened by someone knocking at the door of the apartment that he shared with his brother. When he got up and opened the door, his brother was ushered in at gunpoint by the appellant. The appellant, who lived in the same apartment building, appeared very angry and repeatedly threatened him and his brother with death unless the appellant received his money. The appellant never described the money about which he was talking. The appellant then ordered them to' go outside to the appellant’s parked car. Before they reached the appellant’s car, however, he persuaded the appellant to let him go back to the apartment and put on some clothes. As they were walking back to the apartment, he heard a gunshot. He turned around and saw his brother falling to the ground. He grabbed for the appellant, saw a flash and was knocked unconscious. When he awoke, he saw the appellant’s car leaving the apartment parking lot.\nDetective J. B. Wilhoit of the Atlanta Police Department testified that he spoke to both the victim and his brother at Grady Hospital on the night of the incident, that both men were conscious, coherent and rational when *839he interviewed them, and that based on his conversation with the decedent, he began looking for a man named \"Ike.” The appellant’s picture was later identified as the man known as \"Ike” by a photograph line-up shown to residents of the decedent’s apartment building.\n1. The appellant’s first three enumerations of error are based on general grounds, to-wit: that the verdict is contrary to the evidence and without evidence to support it, that the verdict is decidedly and strongly against the weight of the evidence, and that the verdict is contrary to law and the principles of justice and equity. We find no merit in the appellant’s contentions. A verdict will not be disturbed if there is any evidence to support it. Lawson v. State, 234 Ga. 136 (2) (214 SE2d 559) (1975).\n2. The appellant also contends that the trial court erred when it refused his written request to charge on the lesser included offense of involuntary manslaughter as set out in Code Ann. § 26-1103 (b). That Code section provides that a person commits involuntary manslaughter when he causes the death of another human being, without intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.\nThe defendant testified that he was forcibly robbed of a large sum of money in the parking lot behind his apartment by Lawson Murell, that he quickly obtained a pistol from his car and pursued Lawson Murell to Howard and Lawson Murell’s apartment, that when he got to the apartment the two brothers were dividing his money between themselves, that before he could recover the money Lawson Murell ran out into the parking lot with it, that he forced Howard Murell to go with him to pursue Lawson Murell because he feared for his life, that when he went outside he was hit from behind by Lawson Murell and then became embroiled in a struggle with the two men for possession of the gun, that both men during this struggle stated that they had to kill him, that as the struggle continued the three men fell to the ground, causing the gun to discharge and that the deceased was evidently hit by this discharge.\nPretermitting the question of whether the defendant’s request to charge the offense of involuntary *840manslaughter as set out by Code Ann. § 26-1103 (b) was untimely submitted because the defendant failed to comply with local court rules, the offense of involuntary manslaughter was not reasonably raised by the evidence. Robertson v. State, 140 Ga. App. 506 (231 SE2d 367) (1976). The defendant’s testimony might support a finding that the killing was justifiable or in self-defense, but it sets forth no facts to show that the defendant was guilty of involuntary manslaughter.\nSubmitted September 9, 1977\nDecided October 19, 1977.\nRobert C. Ray, for appellant.\nLewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, Arthur K. Bolton, Attorney General, James L. Mackay, Assistant Attorney General, for appellee.\n\nJudgment affirmed.\n\n\nAll the Justices concur, except Hall, J., who dissents.\n\n","per_curiam":false,"type":"020lead"},{"author_str":"Hall","ocr":true,"opinion_id":5596388,"opinion_text":"\nHall, Justice,\ndissenting.\nIn my opinion, the trial court was in error in refusing appellant’s written request to charge on the lesser included offense of involuntary manslaughter as set out in Code Ann. § 26-1103. See Kerbo v. State, 230 Ga. 241 (196 SE2d 424) (1973). Robertson v. State, 140 Ga. App. 506 (231 SE2d 367) (1976), is inapposite for the reason that the defendant there admitted to a deliberate discharge of the firearm.\n","per_curiam":false,"type":"040dissent"}],"other_dates":"Submitted September 9, 1977","precedential_status":"Published","slug":"buckner-v-state"} {"attorneys":"W. P. Wallis, L. J. Blalocle, for plaintiff., Shipp & Sheppard, for defendants.","case_name":"Parker v. Loving & Co.","case_name_full":"PARKER, guardian v. LOVING & COMPANY","case_name_short":"Parker","citation_count":0,"citations":["13 Ga. App. 284"],"court_full_name":"Court of Appeals of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Court of Appeals of Georgia","court_type":"SA","date_filed":"1913-08-25","date_filed_is_approximate":false,"headnotes":"1. A rejected amendment is no part of the record, and an assignment of error upon its refusal can not be considered, unless the amendment is set forth, either literally or in substance, in the bill of exceptions, or attached thereto as an exhibit.
2. Livery-stable keepers who let animals and vehicles for hire are not common carriers of passengers and, as such, bound to exercise extraordinary diligence for the safety of their passengers. They are bound only to exercise ordinary care and diligence, which is such care and skill as prudent and cautious men experienced in the business are accustomed to use under similar circumstances. Under the code of .this State bailors for hire warrant “that the thing bailed is free from any secret fault rendering it unfit for the purposes for which it is hired.”
3. Where one hires for the use of himself and family a vehicle ordinarily used for the carriage of several persons, the owner owes to each member of the family who uses the vehicle the same degree of care as is owing to the person to whom the vehicle is let; and this is true without reference to whether the owner has actual notice that the vehicle is to be employed for the carriage of any other person than he to whom it is let.
","id":5754247,"judges":"Pottle","opinions":[{"author_str":"Pottle","ocr":true,"opinion_id":5606598,"opinion_text":"\nPottle, J.\nParker brought suit, as guardian for an insane person, to recover damages for injuries to his ward, received by being thrown from a vehicle in which she was riding and which had been *285let by the defendants to the guardian. It is alleged, that the defendants furnished defective harness, which had been brokén and which was tied together with a cotton string; that while driving along the road in a usual and ordinary manner, and without fault on the part of the plaintiff, the string broke and the tongue of the vehicle dropped to the ground, and the horses became frightened and ran away. It is alleged in the petition that the plaintiff’s ward was a member of his family, being his sister, and that he hired the vehicle for the purpose of taking his family, including his ward, on a visit to his wife’s mother, a distance of some eight or nine miles. The trial judge rejected a proffered amendment to the petition, and sustained a demurrer upon the ground that the petition failed to show any duty owing by the defendants to the plaintiff’s ward, and that it also appeared from the petition that the plaintiff could have known of the defects in the harness complained of, and by the exercise of ordinary cafe could have avoided the consequences of the defendant’s negligence. The plaintiff excepted to the rejection of the amendment to his petition, and also to the dismissal of the original petition.\n1. The rejected amendment was n.o part of the record and could not be specified and be brought to this court as such. It is not set out in the bill of exceptions, either literally or in substance, nor attached thereto as an exhibit. Consequently this court can not consider what purports to be a copy of it, embraced in the transcript of the record, and can not determine the assignment of error upon the refusal to allow the amendment. Taylor v. McLaughlin, 120 Ga. 703 (48 S. E. 203).\n2. A livery-stable keeper who lets horses and vehicles for hire is not a common carrier of passengers and, as such, bound to exercise extraordinary diligence for the safety of his passengers. The relation between the person to whom the vehicle is hired and the owner is that of bailee and bailor; and the liability of the owner is governed by the rules applicable to such a contract of bailment. He is but a private carrier for hire and required to exercise due care and diligence in performance of the duty imposed upon him by the contract; that is to say, such care and skill as prudent and cautious men experienced in the business are accustomed to use under similar circumstances. See 25 Cyc. 1513; Erickson v. Barber, 83 Iowa, 367 (49 N. W. 838); Payne v. Halstead, 44 Ill. App. 97; Hadley v. *286Cross, 34 Vt. 586 (80 Am. D. 699); Stanley v. Steele, 77 Conn. 688 (60 Atl. 640, 69 L. R. A. 561, 2 Ann. Cas. 342); McGregor v. Gill, 114 Tenn. 524 (86 S. W. 318, 108 Am. St. R. 919). Under our code tlie obligation of a bailor for hire, amongst other things, is “to keep the thing in suitable order and repair for the purpose of the bailment; and to warrant the right to possession, and that tlie thing bailed is free from’ any secret fault rendering it unfitted for the purposes for which it is hired.” Civil Code, § 3479. Here, therefore, is a statutory declaration that due care on the part of the bailor requires him to examine the thing bailed for the purpose of seeing that it has no hidden defects which would render it unsuitable for the purposes for which it was hired. What would be ordinary care depends upon the particular business in hand, the circumstances surrounding the particular transaction, and the situation of the parties. Under our statute the bailor warrants the soundness and suitableness of the thing bailed, and is liable for any injury or damage which may result from a latent defect of which the bailee has no knowledge and the consequences of which he could not avoid by the exercisé of ordinary care. Much more is it the duty of the bailor to see that the thing bailed is free from patent defects which render it unfit for the purposes for which it is hired. If the bailee knows of the defect or in the exercise of ordinary care ought to discover it, and, notwithstanding this actual or implied knowledge, he uses the thing and injury results on account of the defect, he will be held to have waived his right to claim damages, since by the exercise of ordinary care he could have avoided the consequences of the bailor’s neglect. But what amount of care the bailee ought to use to discover the defect is a question of fact for the jury. It can not be said as a matter of law that simply because a piece of harness was tied with a string, the person to whom it was hired is guilty of such negligence in using it as would defeat his right to recover for damage of which the defective, harness was the proximate cause. The question whether, in the exercise of ordinary care, he ought to have discovered the defect, and whether, if he had discovered it and that the harness had been repaired by means of a string, he was still guilty of negligence in using it in this condition, were both questions of fact, neither of which could be resolved against him as a matter of law.\n3. Since the relation between the parties arose solely from con*287tract, the right of the plaintiffs ward to recover must depend upon whether she sustained any contractual relation with the defendants, either express or implied, so as to raise a duty on their part to use ordinary care and diligence for her care and protection. It is alleged in the petition that the plaintiff’s ward was a member of his family, and that he hired the vehicle for the purpose of transporting his family; but it is nowhere alleged that the defendants knew that his ward was a member of his family, or that he intended to convey her in the vehicle. It is not even distinctly alleged that the defendants knew that he intended to transport his family, though this may be inferred from the allegations. All this is, however, immaterial. The fact that a vehicle capable of conveying several persons .was hired was itself enough to put those from whom it was hired on notice that the person to whom it was let intended to convey therein persons other than himself. There was an implied agreement on the part of the owners that the vehicle might be used for the conveyance of any person whom the person to whom it was let might invite to accompany him, or at least for the carriage of members of his family for whom he was obliged to provide necessary means of travel. The plaintiff was a member of the family, under the protection of her brother who hired the vehicle, and the implied agreement that she might be transported in the vehicle raised a duty on the part of the defendants to use the same measure of diligence for her protection as for the person to whom the vehicle was let. The court erred in sustaining the demurrer.\n\nJudgment reversed.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"parker-v-loving-co","summary":"Action for damages; from city court of Americus — Judge Greer presiding. March 24, 1913."} {"case_name":"Goldman v. New York State Division of Housing & Community Renewal","case_name_full":"In the Matter of Lloyd Goldman v. New York State Division of Housing and Community Renewal","case_name_short":"Goldman","citation_count":0,"citations":["6 A.D.3d 197","774 N.Y.S.2d 151"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2004-04-06","date_filed_is_approximate":false,"id":5817847,"opinions":[{"ocr":true,"opinion_id":5673407,"opinion_text":"\nJudgment, Supreme Court, New York County (Diane Lebedeff, J), entered October 26, 2000, which denied petitioner landlord’s application to annul respondent Division of Housing and Community Renewal’s (DHCR) determination fixing the fair market rent of the subject apartment, and dismissed the petition, unanimously affirmed, without costs.\nThe determination is rationally supported by the rent history of other apartments in the subject building that are in the same line and otherwise comparable to the subject apartment. The rental history of apartments in different lines was rationally rejected on the basis of DHCR records showing that such apartments consist of three rooms, not two as in the case of the subject apartment (see Matter of Axelrod Mgt. Co. v Conciliation & Appeals Bd. of City of N.Y., 95 AD2d 691 [1983]). No due process issues are raised by the fact that DHCR did not give petitioner notice that it would be relying on its own records and not making any inspections (cf. Matter of Franco v State of N.Y. Div. of Hous. & Community Renewal, 251 AD2d 140 [1998], lv denied 92 NY2d 818 [1999]). In any event, even if the subject apartment were three rooms, petitioner fails to show (see Matter of Ullman Estates v New York City Conciliation & Appeals Bd., 97 AD2d 296 [1983], affd 62 NY2d 758 [1984]) that its other characteristics, including, in particular, square footage, are comparable to that of the three-room apartments in different lines (cf. Matter of Parcel 242 Realty v New York State Div. of Hous. & Community Renewal, 215 AD2d 132, 134 [1995], lv denied 86 NY2d 706 [1995]). DHCR also rationally rejected petitioner’s appraisal report listing as comparables apartments that are not in the same area as the subject apartment (Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-513 [b] [1]). We have considered and rejected petitioner’s other arguments. Concur—Tom, J.E, Saxe, Ellerin, Lerner and Gonzalez, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"goldman-v-new-york-state-division-of-housing-community-renewal"} {"case_name":"Perdue v. Perdue","case_name_full":"Leslie G. Perdue v. Gloria J. Perdue","case_name_short":"Perdue","citation_count":0,"citations":["8 A.D.2d 584"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1959-03-11","date_filed_is_approximate":false,"id":5851590,"opinions":[{"ocr":true,"opinion_id":5707748,"opinion_text":"\nMotion granted and appeal dismissed, without costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"perdue-v-perdue"} {"case_name":"Claim of Alexander v. County of Erie: E. J. Meyer Memorial Hospital","case_name_full":"In the Matter of the Claim of Dorothy Alexander v. County of Erie: E. J. Meyer Memorial Hospital, and Special Fund for Reopened Cases, Workmen's Compensation Board","citation_count":0,"citations":["28 A.D.2d 1069"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1967-10-31","date_filed_is_approximate":false,"id":5906710,"judges":"Gabrielli","opinions":[{"author_str":"Gabrielli","ocr":true,"opinion_id":5764088,"opinion_text":"\nGabrielli, J.\nHerlihy, *1070J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"claim-of-alexander-v-county-of-erie-e-j-meyer-memorial-hospital"} {"case_name":"Gourdine v. Village of Ossining","case_name_full":"Norman Michael Gourdine, as of Harry Gourdine v. Village of Ossining","case_name_short":"Gourdine","citation_count":0,"citations":["72 A.D.3d 643","897 N.Y.S.2d 647"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2010-04-06","date_filed_is_approximate":false,"id":5939021,"opinions":[{"ocr":true,"opinion_id":5797405,"opinion_text":"\nIn an action pursuant to RPAPL article 15 to determine claims to real property, the plaintiff appeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered October 19, 2007, which granted the separate motions of the defendants Village of Ossining, Mayor of the Village of Ossining, and Village of Ossining Board of Trustees and the defendants Cappelli Enterprises, Inc., Ginsburg Development Corp., and Harbor Square, LLC, for summary judgment dismissing the complaint insofar as asserted against each of them and denied his cross motion for summary judgment on the complaint.\nOrdered that the order is affirmed, with one bill of costs.\nA party seeking to obtain title to real property by adverse possession on a claim not based upon a written instrument, in accordance with the law in effect at the time this action was commenced (see RPAPL former 522; cf. L 2008, ch 269, § 5, as amended; Walsh v Ellis, 64 AD3d 702, 703-704 [2009]), “must show that the parcel was either ‘usually cultivated or improved’ or ‘protected by a substantial inclosure’ ” (BTJ Realty, Inc. v Caradonna, 65 AD3d 657, 658 [2009], quoting RPAPL former 522 [1], [2]). Additionally, the party must satisfy the common-law requirement of demonstrating, by clear and convincing evidence, that the possession of the parcel was “(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period” (Walling v Przybylo, 7 NY3d 228, 232 [2006]; see Chion v Radziul, 62 AD3d 931, 932 [2009]; Goldschmidt v Ford St., LLC, 58 AD3d 803, 804 [2009]; Seisser v Eglin, 7 AD3d 505, 506 [2004]).\nHere, all of the defendants established their prima facie entitlement to judgment as a matter of law by showing that the plaintiffs possession of the parcel was not hostile and under claim of right, or exclusive. Moreover, the defendants Cappelli Enterprises, Inc., Ginsburg Development Corp., and Harbor Square, LLC, established their prima facie entitlement to judgment as a matter of law by demonstrating that they claimed no right, title, or interest in the subject property (see McGahey v Topping, 255 AD2d 562, 563 [1998]; Berman v Golden, 131 AD2d 416, 418 [1987]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d *644320, 324 [1986]). Accordingly, the Supreme Court properly granted the defendants’ respective motions for summary judgment dismissing the complaint, and denied the plaintiffs cross motion for summary judgment on the complaint. Mastro, J.P., Skelos, Eng and Roman, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"gourdine-v-village-of-ossining"} {"case_name":"De Witt v. Stender","case_name_full":"Abraham V. De Witt, as Trustee, etc. v. Emma L. Stender and others","case_name_short":"Stender","citation_count":0,"citations":["59 N.Y. Sup. Ct. 615"],"court_full_name":"New York Supreme Court","court_jurisdiction":"New York, NY","court_short_name":"New York Supreme Court","court_type":"ST","date_filed":"1889-05-15","date_filed_is_approximate":true,"id":6270647,"opinions":[{"ocr":true,"opinion_id":6138450,"opinion_text":"\nOrder affirmed, without costs. Opinion by Landon, J.; Learned, P. J., not acting.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"de-witt-v-stender"} {"attorneys":"Taylor & Taylor for defendant. Albert Averbach for plaintiff.","case_name":"Fizette v. Riverview Plaza, Inc.","case_name_full":"Katharine Fizette v. Riverview Plaza, Inc.","case_name_short":"Fizette","citation_count":0,"citations":["40 Misc. 2d 1"],"court_full_name":"New York Supreme Court","court_jurisdiction":"New York, NY","court_short_name":"New York Supreme Court","court_type":"ST","date_filed":"1963-08-27","date_filed_is_approximate":false,"id":6315077,"judges":"Gabrielli","opinions":[{"author_str":"Gabrielli","ocr":true,"opinion_id":6183501,"opinion_text":"\nDomenick L. Gabrielli, J.\nThe challenged bill of particulars was served with the verification having been made by plaintiff’s attorney because the plaintiff was not a resident of the county where plaintiff’s attorney maintains his office.\nThe motion to strike the bill of particulars upon the above ground is denied.\nThis is a negligence action. In response to a demand for the specific items of claimed negligence, the bill of particulars stated: “ 3. Plaintiff does not, at this time, have knowledge of *2the specific facts constituting the negligence of the defendants, and each of them, and, therefore, relies upon the theory of res ipsa loquitur, reserving the right, however, to prove that the defendants, their respective agents, servants and employees, were careless and negligent in causing, allowing and permitting the occurrence of the event alleged in the complaint which resulted in injury and damage to the plaintiff.”\nThe defendant moves for an order of preclusion claiming that it is not responsive to the demand made by the defendant.\nIt is, of course, axiomatic that plaintiff cannot reserve the right to prove anything not included in the bill of particulars. (Lesser v. Kennedy, 19 Misc 2d 812; Rico v. Pierleoni, 33 Misc 2d 955; Carney v. Liebmann Breweries, 8 Misc 2d 1064.) Under proper circumstances the bill of particulars may be amended.\nThe question of the basis for the claimed negligence is basically one of proof. Whether plaintiff at the time of the trial will proceed upon the theory of res ipsa loquitur or upon specific acts of negligence, is a matter for her to determine.\nHowever, if such is the case, the defendant is entitled to know of and to be furnished with the particulars of the specific acts of claimed negligence.\nThere is no compulsion upon the plaintiff to select her theory at this point or of electing upon which basis she will proceed, at this time. She may do so if she desires, but she is not forced to. Neither is the court empowered to direct her to make such an election. (Haines v. City of Newburgh, 234 App. Div. 389; Fischer v. Johnson & Sons, 20 Misc 2d 891; De Roire v. Lehigh Val. R. R. Co., 205 App. Div. 549; Whylie v. Craig Hall, 272 App. Div. 603.)\nAs was said in Fischer v. Johnson & Sons (supra) “ It is not the pleading of specific acts of negligence, but the attempt to prove such acts at the trial of the action which will deprive plain liff of the benefit of the presumption under the res ipsa doctrine. (Bailey v. Bethlehem Steel Co., 277 App. Div. 798, affd. 302 N. Y. 717; Goodheart v. American Airlines, 252 App. Div. 660, 662-663, 254 App. Div. 566; Langeland v. 78th & Park Ave., Corp., 129 N. Y. S. 2d 719, 721.) ”\nA defendant is entitled to particulars of the specific acts of his negligence as plaintiff will claim them to be (King v. Craddock, 252 App. Div. 719), unless it clearly appears that plaintiff relies solely on the doctrine of res ipsa loquitur (Haines v. City of Newburgh, supra). In the case at bar it does not clearly appear that the plaintiff will rely solely upon the res ipsa loquitur doctrine.\n*3An order may, however, be submitted which will provide that the plaintiff will be precluded from giving evidence of specific acts of negligence (see demand No. 3) at the time of the trial unless she furnishes a further bill of particulars of these items within 15 days from the entry and service of a copy of this order.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"fizette-v-riverview-plaza-inc"} {"attorneys":"Mark R. Zimmer, District Attorney, Patrick L. Robinson, First Assistant D.A., for Com., Jeffrey J. Wander, Honesdale, for Lockwood.","case_name":"Commonwealth v. Lockwood","case_name_full":"COMMONWEALTH of Pennsylvania v. David A. LOCKWOOD","case_name_short":"Commonwealth","citation_count":0,"citations":["558 Pa. 108","735 A.2d 705"],"court_full_name":"Supreme Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Supreme Court of Pennsylvania","court_type":"S","date_filed":"1999-09-09","date_filed_is_approximate":false,"id":6395679,"judges":"Cappy, Castille, Flaherty, Newman, Nigro, Saylor, Zappala","opinions":[{"ocr":true,"opinion_id":6266150,"opinion_text":"\n\n*109\nORDER\n\nPER CURIAM.\nInsofar as it is consistent with our dispositions in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999) and Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) we affirm the Order of the Wayne County Court of Common Pleas dated November 4, 1998. Furthermore, we remand the matter to the common pleas court for disposition of any remaining issues.\nJurisdiction is relinquished.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted Aug. 11, 1999.","precedential_status":"Published","slug":"commonwealth-v-lockwood"} {"attorneys":"Gleed & Sendee and Dillingham <& Durant, for the defendant., 'Child & Benton, for the plaintiff.","case_name":"Bingham v. Marcy","case_name_full":"Mary R. Bingham v. Marvin R. Marcy","case_name_short":"Bingham","citation_count":0,"citations":["32 Vt. 278"],"court_full_name":"Supreme Court of Vermont","court_jurisdiction":"Vermont, VT","court_short_name":"Supreme Court of Vermont","court_type":"S","date_filed":"1859-08-15","date_filed_is_approximate":true,"headnotes":"\nPractice. Bastardy. Supreme 'and county courts'.\n
The litli section of chap. xxxi. of the Comp. Stat., p. 243, authorizing the supreme or county court, in case of the ioss of the writ and declaration in any action therein pending, to order a new declaration to be filed, does hot apply to a prosecution for bastardy, Where the original complaint, justice's record and warrant are lost.
","id":6696776,"judges":"Pierpoint","opinions":[{"author_str":"Pierpoint","ocr":true,"opinion_id":6576764,"opinion_text":"\nPierpoint, J.\nThis was a pro'cee'ding upon a complaint of bas\"ta!rdy. From the exceptions it appears that after the suit was entered in court, the original complaint, warrant and records of the proceedings before the magistrate, which were brought up and filed in the county court, were lost; no copies of them appear to have been in existence. The plaintiff applied to the county court for leave to file another complaint, warrant and record that should “be in substance a correct copy of the originals, which were lost.” The court ordered such papers to be filed, whereupon the defendant filed a motion to dismiss the proceedings, which the court overruled, and the case proceeded to trial and judgment.\n*280It seems to be conceded by counsel, and we think correctly, that the county court had no authority to allow the filing of these new papers, as a substitute for the original, unless such authority is conferred by the statutes of this State. But it is insisted by the plaintiff that the 11th section of the 31st chapter of the Comp. Stat., relating to Process, gives the court such power. That section provides that when any writ and declaration are lost, etc., the court may order a declaration to be filed, and that such proceedings shall be had on such declaration, as, though it was the original writ and declaration in such action. This presents the question whether the proceedings in a case like the one now before us come within the letter or spirit of the statute. Can either of the papers filed in this case, under the Order of the court, be called a declaration or writ within the legitimate meaning of those terms, as used in common or legal parlance ? We think not. We do not think that the legislature ever intended by the use of those terms to include therein the complaint and warrant in a bastardy case. They evidently only intended that this section should apply to that class of civil proceedings that are commenced in our courts by the issuing of a writ and declaration. And although suits of this kind have long been considered in this State as civil suits for many purposes, yet for other purposes, and particularly in respect to the form of the proceedings, they have been regarded as criminal proceedings. The mode of proceeding is wholly unlike that in a civil suit. The complaint is required to be made by the woman in writing and under oath, and this is made the basis of all future proceedings ; the magistrate issues his warrant and brings the accused party before him, not for the purpose of a hearing or trial, but that he may be put under bonds for his appearance at the next term of the county court, to answer to such complaint, or to be committed to jail to await the time of trial. The statute requires such complaint to be returned by the magistrate to the county court, and it is upon such complaint thus verified by the oath of the complainant, that the defendant is put upon his trial. These proceedings are quite summary and have sometimes been regarded as somewhat arbitrary. We think that after the accused has been thus arrested and bound up for trial, he has the right to *281insist that he shall be tried upon the complaint as it was originally made, and not be put to trial upon another complaint not made according to the requirements of the statute, but as near like the original as the best recollection of the plaintiff or her counsel can make one. It is not claimed that the papers upon which the party was tried, were copies of the original papers. They were themselves original papers, intended to be made similar to the old ones. The original complaint-, made to the magistrate, is a statement of the facts made by the party under oath, The defendant is entitled to the benefit of a comparison of her statement on the stand with the original statement.\nCircumstances may have transpired between the time of making the complaint and the time of trial, that would make the statements and the complaint important testimony for the defendant. To allow the plaintiff to file a new complaint in the absence of the original one, might deprive the defendant of the benefit of this testimony, for the experience of this case shows that with the best possible intentions to make the last complaint like the first, when the case came to trial it was found that very serious errors had been committed and further alterations were required.\nThese considerations have no application to the filing of a new declaration in ordinary civil cases. There the plaintiff does not profess or attempt to make his new declaration a copy of or in its details at all like the original. If it is for the same cause of action it is sufficient, and the defendant can sustain no injury by the substitution. The legislature may well grant to the courts the power to allow the substitution in such cases when they would not in cases like the present.\nThe result is the judgment of the county court overruling the motion to dismiss the case is reversed, and judgment is entered that the suit be dismissed With costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"bingham-v-marcy","summary":"Complaint tor bastardy. Tlie complaint was entered in. the county court at the May Term, 1857. At the May Term, 1858, tlie plaintiff showed to the court that the original complaint before the justice of the peace, and his record 'of the proceedings before him thereon, an'd the original warrant issued by him, all of which had been returned by him to and filed in the county court, were lost, that the bond of recognizance entered into by the defendant and his surety in conformity with the warrant of the justice, which still remained in court, recited the proceedings before the justice in such a way that a correct copy in substance of the original complaint, warrant and record could be made, and the plaintiff thereupon moved for leave to file a complaint, warrant and record to be in substance a Correct copy of the lost originals. The county court-, at the December Term, 1858-, — Antis, J., — presiding, granted this motion, allowed the copy presented by the plaintiff to be filed, to which the defendant excepted. The copy so filed contained evident errors of dates, which required correction, and which the court also allowed to be corrected on affidavit of the plaintiff’s attorney, showing that they occurred in making the copies by the aid of the bbnd of recognizance, and his recollection as to the substahce of the papers' which were lost. The court then proceeded to try the case upon its merits, on the copies so filed and corrected-, and the jury returned a verdict of guilty against the defendant."} {"attorneys":"Timothy F. Brown, McLean, Virginia, for plaintiffs., Donald E. Kinner, Civil Division, Department of Justice, Washington, D.C., with whom was Frank W. Hunger, Assistant Attorney General, and David M. Cohen, Director, for defendant.","case_name":"Garchik v. United States","case_name_full":"Stephen J. GARCHIK, David W. Evans and the Evans Company, Stafford Place Associates II, L.P., and Square 46 Associates, L.P. v. UNITED STATES","case_name_short":"Garchik","citation_count":0,"citations":["37 Fed. Cl. 52"],"court_full_name":"United States Court of Federal Claims","court_jurisdiction":"USA, Federal","court_short_name":"Federal Claims","court_type":"FS","date_filed":"1996-12-02","date_filed_is_approximate":false,"id":6763444,"judges":"Margolis","opinions":[{"author_str":"Margolis","ocr":true,"opinion_id":6646186,"opinion_text":"\nOPINION\nMARGOLIS, Judge.\nThis case, a pre-award bid protest by Stephen J. Garchik, David W. Evans, the Evans Company, Stafford Place Associates and Square 46 Associates (hereinafter “Garchik” or plaintiffs), is one of several lawsuits filed in this court challenging the efforts by the defendant, the United States, acting through the Securities and Exchange Commission, (hereinafter “SEC” or “Commission”), to lease commercial office space to house the Commission’s headquarters staff. The case is currently before the court on defendant’s motion for summary judgment. Defendant argues that because the government never requested and plaintiffs never submitted a formal “bid” during the SEC’s sole-source procurement of a headquarters lease, there is no implied-in-fact contract between plaintiffs and the Commission that would permit this court to exercise its equitable jurisdiction. Plaintiffs respond that a formal bid is not required to form an implied-in-fact contract. Instead, plaintiffs argue, an implied-in-fact contract was created when plaintiffs responded to a market survey that was conducted by the SEC in connection with the sole-source procurement. Alternatively, plaintiffs argue that this court has jurisdiction over the case by virtue of a previous order by this court in Triangle MLP Limited Partnership v. United States, No. 95-430C, an earlier dispute involving the SEC’s attempts to procure a headquarters lease.\nAfter carefully considering the parties’ written briefs and oral argument, the court concludes that an implied-in-fact contract was not created when plaintiffs responded to the Commission’s market survey. Therefore the court lacks jurisdiction to hear Garchik’s claim. In addition, the court finds that the Triangle order cannot serve as a separate basis for this court to exercise jurisdiction over the present dispute. Accordingly, the government’s motion for summary judgment is granted.\nFACTS\nThe present controversy can be traced back to August 1994, when the Securities and Exchange Commission first issued a Solicitation For Offers (SFO) for commercial office space to house the Commission’s headquarters staff. The August 1994 SFO indicated that the SEC intended to lease 550,000 to 600,000 net usable square feet of office space in the Washington, DC metropolitan area for a term of 20 years. Although the Commission received numerous proposals from interested property owners throughout the Washington area, the SFO was suspended in May 1995 after the General Services Administration ordered a government-wide “time out” review of all federal leasing activity. The purpose of this time out was to allow agencies such as the SEC to evaluate their long-term leasing strategies in light of the recent trend in government downsizing and the executive branch’s “Reinventing Government II” initiative.\nAfter conducting the mandated “time out” review, the SEC determined that its leasing needs could best be satisfied by remaining in the Commission’s existing downtown Washington, DC headquarters under a short-term lease. According to the SEC’s Contracting Officer (“CO”) for the headquarters lease, Kenneth Fpgash, the Commission’s decision to pursue a short-term lease extension was dictated by “continuing budgetary constraints and uncertainty” within the SEC, as well as “the government-wide downsizing policy.” In addition, the Commission’s decision was influenced by a desire to avoid disruption of employees’ short term commut*54ing patterns.1 Based on these considerations, the SEC cancelled the August 1994 SFO and began to proceed with a sole-source procurement to extend the Commission’s existing headquarters lease for an additional five-year term.\nOn January 2, 1996, the SEC published a notice in the Commerce Business Daily (“CBD”) and several Washington-area newspapers indicating the Commission’s intent to enter into a sole-source lease with its current landlord, Judiciary Plaza Limited Partnership (“JPLP”). Unlike the August 1994 SFO, which specified a twenty-year lease term, the January 1996 CBD Notice indicated that the SEC intended to enter into a five-year lease, to commence January 1, 1998, with an option to terminate on eighteen months notice any time after January 1, 1999. Additionally, while the 1994 SFO invited proposals from property owners throughout the entire Washington, DC metropolitan area, the January 1996 CBD Notice indicated that the SEC was only interested in leasing property located within a narrowly-defined geographic area in downtown Washington, DC. Specifically, the CBD Notice declared that “[t]he Space must be within the following delineated area: Bordered by K Street, NW/NE to the North; Second Street, NE, to the East; Southeasl^Southwest Freeway, to the South; and Twentieth Street, to the West.” The notice also specified that the property “must be [located] within 1750 walkable linear feet of a metrorail stop.”\nIn addition to providing a synopsis of the Commission’s leasing requirements, the January 1996 CBD Notice also invited proposals from interested property owners who were capable of satisfying the Commission’s specified lease requirements. As required by procurement regulations and statutes, this invitation for proposals was intended solely to assist the Contracting Officer in conducting a “market survey” of potential sources before entering into the proposed sole-source contract with JPLP. See 41 U.S.C. § 253; FAR Subparts 5.2, 6.3. The CBD Notice made clear that the Commission’s notice of intent and request for proposals was “not a request for competitive proposals____ Information received will normally be considered solely for the purpose of determining whether to conduct a competitive procurement.”\nThe Commission received a total of four responses to the CBD Notice, including a response from plaintiffs that was submitted to the SEC on February 29, 1996. In their response, plaintiffs proposed to construct and lease to the SEC a commercial office building in the Stuart Park office project in Arlington, Virginia. The plaintiffs’ proposal specified that the space would be leased to the SEC for a ten-year term with “the option to terminate the lease at the end of five years, upon eighteen months advance notice, for a termination price of $4 million.”\nAlthough the three “non-plaintiff’ proposals were determined to be within the geographic area specified in the CBD Notice, the SEC rejected each of the non-plaintiff proposals for various reasons. One response was rejected because it proposed housing the SEC in multiple buildings, while the CBD Notice invited proposals for a single structure. Another response was rejected because it contained insufficient information. The third and final non-plaintiff response was rejected because of “uncertainty” and “unacceptable financial and timeliness risks to the SEC” associated with the respondent’s proposed construction schedule. After determining that none of the responses to the CBD Notice satisfied the Commission’s short-term leasing needs, the CO concluded that there was no “reasonable prospect of competition if the SEC sought to procure ... its headquarters office space requirement” through competition rather than sole-source procurement.\nPlaintiffs’ response to the CBD Notice was rejected by the SEC for three primary reasons. First, the SEC informed Garchik and the other plaintiffs that the Stuart Park property did not present a viable source because it is located in Arlington, Virginia, well “outside the SEC’s delineated area as published in the Commerce Business Daily.” *55Second, the SEC indicated that plaintiffs’ response was unacceptable because the proposed “ten year lease term did not meet the CBD requirement for a five year term.” Similarly, plaintiffs’ proposal to allow the SEC to terminate the lease after five years, with a $4 million penalty, did not comport with the termination provision specified in the CBD Notice. Finally, plaintiffs’ proposal was rejected because the Commission found that “the Stuart Park property does not have an existing structure that meets the SEC requirement. The financial and timeliness risks to the SEC entailed by constructing and building out a property are too great for the short term of the requirement, and are unacceptable.”\nOn December 20,1995 — before the present case was filed, and even before the SEC published its CBD Notice indicating its intent to extend the existing headquarters lease — some of the plaintiffs filed a protest with the General Accounting Office challenging the SEC’s decision to proceed with a sole-source procurement. Plaintiffs’ GAO protest was voluntarily dismissed on February 20, 1996, however, and their original complaint seeking declaratory and injunctive relief was filed in this court on the same day. An amended complaint was filed on February 29, 1996 to reflect the fact that some of the named plaintiffs had submitted a proposal to the SEC in response to the CBD Notice. In their complaint, plaintiffs allege, first, that the Commission violated the Competition in Contracting Act (“CICA”) by imposing baseless geographic and time restrictions on its lease requirements to justify a sole-source procurement; second, that the Commission’s use of sole-source procurement procedures in this case violates CICA’s full and open competition requirements; and finally that, even if otherwise legal, the SEC’s current actions are tantamount to an illegal price auction because the Commission impermissibly disclosed source selection information in conducting the disputed sole-source procurement.\nDISCUSSION\nDefendants have moved for summary judgment on the grounds that this court lacks jurisdiction to hear plaintiffs’ claim. Specifically, the government argues that because plaintiffs never submitted a formal bid to the government, there is no implied-in-fact contract of fair and honest dealing that would permit this court to exercise jurisdiction under the Tucker Act, 28 U.S.C. § 1491. Plaintiffs argue that an implied-in-fact contract was created when plaintiffs submitted a proposal in response to the SEC’s CBD Notice, and therefore the court has Tucker Act jurisdiction over the present dispute. Alternatively, plaintiffs argue that the court has jurisdiction over this case by virtue of this court’s order in an earlier challenge to the SEC’s procurement of a headquarters lease.\n\nA. Jurisdiction Under the Tucker Act\n\nThe jurisdiction of the Court of Federal Claims was established by Congress in the Tucker Act, 28 U.S.C. § 1491, which provides that “[t]he United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded ... upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (1996). This statutory grant of jurisdiction encompasses lawsuits, such as the present case, that “challeng[e] the proposed award of contracts based on alleged improprieties in the procurement process.” Central Arkansas Maintenance, Inc. v. United States, 68 F.3d 1338, 1341 (Fed.Cir.1995). As the Federal Circuit explained in Central Arkansas, “[j]urisdiction in these cases arises from an alleged breach of an ‘implied contract to have the involved bids fairly and honestly considered.’ ” Id. (quoting United States v. John C. Grimberg Co., Inc., 702 F.2d 1362, 1367 (Fed.Cir.1983)).\nIn the present case, the government argues that there is no implied-in-fact contract between plaintiffs and the government because the government never requested and plaintiffs never submitted a formal bid. As a result, the government argues, Garchik’s claim falls outside of this court’s Tucker Act jurisdiction. In support of this argument, the government relies primarily on Motorola, Inc. v. United States, 988 F.2d 113 (Fed.Cir. 1993). In Motorola, the Federal Circuit adopted a decision by Judge Wiese of the *56Court of Federal Claims holding that unless a contractor has submitted a formal bid to the government, there is “no basis for finding the existence of a pre-award contract upon which a claim for injunctive relief can be based.” 988 F.2d at 116.\nDespite the Federal Circuit’s holding in Motorola, Garchik argues that an implied-in-fact contract of fair and honest dealing was created when plaintiffs responded to the Securities and Exchange Commission’s January 1996 CBD Notice. To support this argument, Garchik relies on two cases from the former Claims Court — Standard Manufacturing Co., Inc. v. United States, 7 Cl.Ct. 54, 59 (1984), and Magnavox Electronic Systems Co. v. United States, 26 Cl.Ct. 1373, 1378 (1992) — which both squarely held that a contractor’s response to an agency’s notice of intent to conduct a sole-source procurement does, indeed, create an implied-in-faet contract between contractor and agency. Although Standard and Magnavox were extensively criticized in Motorola, Garchik argues that Judge Wiese’s criticism of those two cases was mere dicta, i.e., was not necessary to the disposition of the case in the Court of Federal Claims, and therefore this aspect of the decision was not adopted by the Federal Circuit. For the reasons set forth below, the court concludes that Garchik’s interpretation of the case law is incorrect, and that Standard and Magnavox were both implicitly overruled by the Federal Circuit’s decision in Motorola. 988 F.2d at 116. Consequently, Garehik’s claim must be dismissed.\nMotorola, like the current controversy, concerned a pre-award bid protest by a “non-bidder.” In Motorola, the government invited companies in the defense electronics industry to participate in the development of specifications for an expected procurement of certain electronic devices. 988 F.2d at 114. As a result of an informal dialogue with Motorola and other firms in the industry, the government eventually developed technical specifications and initiated a formal solicitation for technical proposals. Id. at 114. Although Motorola had participated in the development of specifications, however, the company refused to respond to the government’s formal solicitation of proposals. Id. at 114-15. Instead, Motorola filed suit in the Court of Federal Claims in an effort to enjoin the solicitation. Id. at 115.\nThe government moved to dismiss the ease on the same grounds asserted by the government here — namely, that the court lacked subject matter jurisdiction because Motorola had not submitted a formal bid. Id. at 115. In granting the government’s motion to dismiss Motorola’s claim, Judge Wiese of the Court of Federal Claims held that the court lacked subject matter jurisdiction because “Motorola’s grievance [was] not founded on a contract.” Id. The court rejected Motorola’s contention that the company’s communication with the government during the development phase created an implied-in-fact contract of fair and honest dealing analogous to the implied-in-fact contract created by submission of a formal bid. Id. at 115-16. In reaching this conclusion, Judge Wiese specifically noted his departure from Standard Manufacturing, which held that a contractor’s response to an agency’s mai’ket survey created an implied-in-faet contract of fair and honest dealing. Id. at 116. According to Judge Wiese, “this court cannot accept the rationale set forth in Standard Manufacturing. Government requests for information and responses from prospective bidders are not the equivalents of offer and acceptance. Such exchanges are not carried on with an expectation to presently affect legal relations.” Motorola, 988 F.2d at 116.\nAccording to Judge Wiese’s opinion— adopted in its entirety by the Federal Circuit — the reason that Motorola’s informal dialogue did not result in an implied-in-fact contract was that Motorola’s exchange of information with the government was “not carried on with an expectation to presently affect legal relations. Rather the parties [were] dealing ... exclusively with an eye to the future, each being free, in the meantime, to withdraw from the dialogue.” Id. at 116. In a passage that was extensively quoted by the Federal Circuit, Judge Wiese further explained why a formal bid is required to create an implied-in-fact contract. Once a bid is submitted to the government, *57there is a promise ... which empowers the Government, upon acceptance, to bind the contractor to the terms of the solicitation. The essence of the contractor’s engagement — the manifestation of an intent to be bound — warrants reading into the situation a reciprocal commitment from the Government, ie., a promise to fairly and honestly consider the contractor’s bid.\nId. at 114 (quoting Motorola, Inc. v. United States, No. 92-799C (Ct.Fed.Cl. Dec. 23, 1992) (Wiese, J.))\nThe Federal Circuit’s explicit reference to the language quoted above makes clear the nature and scope of that court’s decision— namely that “a contractor’s mere participation in a solicitation (by submitting information or a proposal other than a formal responsive bid) does not give the contractor standing to invoke this court’s bid protest jurisdiction.” Control Data Sys., Inc. v. United States, 32 Fed.Cl. 520, 524 (1994) (citing Motorola, 988 F.2d at 114, 116) (emphasis added). In other words, Motorola implicitly overruled Standard and Magnavox to the extent those cases held that anything less than a formal responsive bid can give rise to an implied-in-fact contract of fair and honest dealing that would permit this court to exercise its equitable jurisdiction. See Motorola, 988 F.2d at 116; Control Data, 32 Fed.Cl. at 524.\nIn the present case, the proposal submitted to the SEC by Garchik and the other plaintiffs was not a formal responsive “bid.” In fact, formal bids were never solicited by the SEC. Rather, the CBD Notice explicitly stated that “[tjhis notice of intent is not intended as a request for competitive proposals.\" (emphasis added). The plain language of the CBD Notice clearly forewarned Gar-chik and the other respondents that the SEC would not treat responses to the CBD Notice as formal bids. Garchik’s submission to the SEC was not a bid, and therefore, under Motorola, there can be no implied-in-fact contract between Garchik and the SEC.\nThe conclusion that an implied-in-fact contract was not created by Garchik’s response to the CBD Notice also conforms with the rationale of the Motorola decision. According to Motorola, a contractor’s submission of a responsive bid creates a power of acceptance in the government, an ability to bind the contractor upon acceptance. See 988 F.2d at 116. The implied-in-fact contract of fair and honest dealing is a “reciprocal commitment” that is imposed on the government in exchange for the contractor’s promise to honor the bid. Id. In this case, the Commission’s CBD Notice informed potential respondents that “[ijnformation received will be received solely for the purpose of determining whether to conduct a competitive procurement.\" (emphasis added). Under these terms, neither the government nor potential respondents such as Garchik were bound by their proposals. Since Garchik never manifested a present intent to be bound, there is no basis for imposing a “reciprocal commitment” on the SEC in the form of an implied-in-fact contract. Consequently, there is no basis for this court to exercise jurisdiction over Garchik’s claim.\n\nB. Jurisdiction Based on the Court’s Order in Triangle\n\nAlternatively, plaintiffs argue that this court has jurisdiction over the present ease by virtue of the court’s order in Triangle MLP Limited Partnership v. United States, No. 95-430C, an earlier case before this court involving the SEC’s attempts to procure a headquarters lease. In Triangle, this court issued an order dismissing the protest. As part of that order, the court stated that “should the Securities and Exchange Commission (“SEC”) pursue obtaining its short term minimum needs for a headquarters facility, the SEC shall fully comply with all applicable statutes and regulations to ensure that these requirements are properly procured.” See Triangle, No. 95-430C, “Order” entered on November 28, 1995. Plaintiffs now argue that this court’s inherent power to enforce the Triangle Order provides a basis to exercise jurisdiction over plaintiffs’ claims in the present case.\nIn support of this argument, plaintiffs have provided the court with language from two eases asserting the general proposition that a “court of competent jurisdiction has the power to make certain the execution of its decrees.” Chemical Leaman Tank Lines, Inc. *58v. United States, 446 F.Supp. 721, 724 (D.Del.1978) (quoted in Pls.’ Opp’n at 10); see also Sandlin v. Corporate Interiors Inc., 972 F.2d 1212, 1216 (10th Cir.1992) (“[T]hat a federal court of equity has jurisdiction of a bill ancillary to an original case or proceeding in the same court, whether at law or in equity, to secure or preserve the fruits and advantages of a judgment or decree rendered therein, is well settled.”) (quoted in Pis. Opp’n at 9-10.) Plaintiffs’ reliance on Chemical Leaman and Sandlin is misplaced, for neither ease supports this court’s exercise of jurisdiction over the present dispute. In fact, upon closer analysis these cases actually undermine plaintiffs’ claim that this court has jurisdiction over this case by virtue of the Triangle Order.\nIn Sandlin, for example, the Court of Appeals rejected plaintiff/appellant’s argument that the district court’s enforcement of its judgment in a previous case served as a basis for the court to exercise jurisdiction over plaintiffs claims against a group of individuals who were not parties to the original action in which the judgment was entered. 972 F.2d at 1217. The court reasoned that plaintiffs claims against these individuals “d[id] not arise out of the same operative facts proved in securing the [prior] judgment; they involve different legal theories; [and] they are not against parties who were brought into the original ... action____ The district court would have to conduct a whole new trial or trials between nondiverse parties ... with recovery not necessarily measured by the amount of the [original] judgment.” Id.\nSimilarly, in Chemical Leaman the court rejected plaintiffs argument that the court’s enforcement of a previous order directed against the Interstate Commerce Commission (“ICC”) formed a basis for exercising jurisdiction over plaintiffs renewed claims against the ICC. In rejecting plaintiffs argument, the court reasoned that “[t]he legal principles upon which [plaintiffs renewed] complaint is based are different from those upon which we relied [in issuing our previous order] ten years ago. And the record presently before this Court for review is a completely new one. In such circumstances, the ‘continuing jurisdiction’ rationale ... is not applicable.” 446 F.Supp. at 724 (citations omitted). The court also observed that “[o]ur prior order disposed of all the issues then properly before us and remanded the case to the ICC for further proceedings. In our view, this effected a relinquishment to the Commission of our jurisdiction over the action. We find this conclusion to be bolstered by the absence in our [prior] opinion and order of any indication that we intended to retain jurisdiction over this controversy.” 446 F.Supp. at 724 (citations omitted).\nNeither Sandlin nor Chemical Leaman supports plaintiffs’ argument that this court retains jurisdiction over the present case. In dismissing Triangle’s protest, the court disposed of all issues then before it without specifically manifesting any intent to retain jurisdiction over the SEC’s ongoing efforts to procure a headquarters lease. Therefore, this court relinquished jurisdiction over the matter when it entered the Triangle Order. See Chemical Leaman, 446 F.Supp. at 724. Furthermore, this court does not retain “continuing jurisdiction” over the present dispute because this ease involves parties, issues of fact, and legal theories that were not before the court in Triangle. See Sand-lin, 972 F.2d at 1217; Chemical Leaman, 446 F.Supp. at 724. First, the parties in the present case — Stephen Garchik, David Evans, The Evans Company, Stafford Place Associates, and Square 46 Associates — were not parties to the Triangle action. Similarly, the factual issues in the present ease were not before the court in Triangle. Specifically, Tnangle only concerned the events leading up to and including the SEC’s decision to cancel the solicitation, while the present case concerns the sequence of events that occurred both before and after the SEC decided to cancel the SFO. Finally, the present case is based on legal theories that were not before the court in Triangle. In Triangle, the court was concerned with whether the Commission had complied with statutes and regulations governing competitive procurements; plaintiffs in the present case, however, are primarily challenging the Commission’s subsequent efforts to conduct a sole-source procurement. As such, plaintiffs’ present claim must be analyzed within an *59entirely new legal framework, ly, this court does not retain “continuing jurisdiction” over the present case. Consequent-\nCONCLUSION\nFor the reasons set forth above, defendant’s motion for summary judgment is granted. Plaintiffs’ submission of a proposal in response to the SEC’s notice of intent to conduct a sole-source procurement did not create an implied-in-fact contract, and as a result this court lacks jurisdiction to consider the merits of plaintiffs’ claim. In addition, this court’s order in Triangle cannot serve as a basis for the court to exercise jurisdiction over the present dispute. The clerk shall dismiss the complaint. Costs for defendant.\n\n. In an internal survey of SEC employees that was conducted in the summer of 1994, the Commission apparently found that a large majority of the Commission's employees “clearly preferred to remain in the District of Columbia.\"\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"garchik-v-united-states"} {"case_name":"Chrysler Fin. Co. v. S.C. Ins.","case_name_full":"Chrysler Fin. Co., LLC v. S.C. Ins. Co.","citation_count":0,"citations":["357 N.C. 504"],"court_full_name":"Supreme Court of North Carolina","court_jurisdiction":"North Carolina, NC","court_short_name":"Supreme Court of North Carolina","court_type":"S","date_filed":"2003-07-01","date_filed_is_approximate":true,"id":6830831,"opinions":[{"ocr":true,"opinion_id":6717934,"opinion_text":"\nDef’s (S.C. Insurance Company) PDR Under N.C.G.S. § 7A-31 (COA02-I079)\nDenied\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"chrysler-fin-co-v-sc-ins"} {"case_name":"In re Lesconcierges, Inc.","case_name_full":"In re LESCONCIERGES, INC.","citation_count":0,"citations":["2 F. App'x 906"],"court_full_name":"Court of Appeals for the Federal Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Federal Circuit","court_type":"F","date_filed":"2001-01-04","date_filed_is_approximate":false,"id":7117125,"opinions":[{"ocr":true,"opinion_id":7024072,"opinion_text":"\nORDER\nThe parties having so agreed, it is\nORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-lesconcierges-inc"} {"attorneys":"William F. Piper, William F. Piper PLC, Portage, MI, for Plaintiff., Brian Mark Schwartz,'David Graham King, Richard ■ William Warren, Miller Canfield Paddock & Stone PLCj Detroit, MI, for Defendant.","case_name":"Perkins v. Rock-Tenn Services, Inc.","case_name_full":"Robbin PERKINS v. ROCK-TENN SERVICES, INC.","case_name_short":"Perkins","citation_count":0,"citations":["190 F. Supp. 3d 720"],"court_full_name":"District Court, W.D. Michigan","court_jurisdiction":"Michigan, MI","court_short_name":"W.D. Michigan","court_type":"FD","date_filed":"2016-06-06","date_filed_is_approximate":false,"id":7320628,"judges":"Bell","opinions":[{"author_str":"Bell","ocr":true,"opinion_id":7238538,"opinion_text":"\nOPINION\n. ROBERT HOLMES BELL, UNITED STATES DISTRICT JUDGE\nPlaintiff Robbin Perkins brings this action against her former employer, Defendant Rock-Tenn Services, Inc. (“Rock-Tenn”), claiming that it paid her less than male employees in her position and that'it failed to notify her of her right to continue her health insurance after she resigned from the company. Before the Court is Defendant’s motion for summary judgment (ECF No. 42). For the reasons discussed herein, the motion will be granted.\nI.\nDefendant operates mills that produce merchandising displays, corrugated packaging, and consumer packaging. One of its mills is located in Battle Creek, Michigan. Plaintiff was hired by Rock-Tenn as a Shipping Superintendent in August 2010 with a starting salary of $70,000, the top end of the salary range for the job posting. (PL’s Dep. 125;1 Job Information, ECF No. 43-6.) She replaced Bob Converse, who had worked at the company since 1979. (ECF No. 44-2.) His salary was $85,000 per year at the time of his retirement in 2010. (Id.) Over time, Plaintiff received regular salary increases. In February 2014, the month that she resigned, her salary was approximately $78,500. (PL’s Dep. 125.) She does not claim that she was paid differently from any other Shipping Superintendent at Rock-Tenn. Rather, she alleges that she was paid less than the employee who succeeded her. (Compl. ¶ 28, ECF No. 1.)\nSome of Rock-Tenn’s employees are union employees, paid on an hourly basis. In 2013, Plaintiff asked her supervisor, Tom Shannon, to provide her with a “Lead,” which is a union employee that assists the Superintendent. (Pi’s Dep. 131-33.) Plaintiff selected Gary Wood. (Id.) Wood started working at the Battle Creek mill in 1994. He initially worked as a Reserve, handling tasks assigned to him, and then he worked in the machine room for 16 years. (Wood Dep. 6-7.)2 In 2009, he transferred to the shipping department. (Id. at 7.) When he became a Lead in 2013, he received a 12% pay increase over the hourly rate earned by a regular shipper, in accordance with the collective bargaining agreement. (See CBA 2004-2009 at 46, ECF No. 43-7; CBA 2009-2013 at 47, ECF No. 43-11; Wood Dep. 24.) Plaintiff also requested, and Wood was able to receive, another 12% increase as a “step up” or “production” lead, during hours when she was not working. (Wood Dep. 23-25.) He maintained this level of pay after Plaintiff left the company. (Id.) Wood earned a total of approximately $75,000 in 2012, $109,000 in 2013, and $113,000 in 2014.\nOn one occasion, Shannon asked Plaintiff to monitor the shipping area to ensure that no one threw cigarette butts on the ground and to issue citations if necessary. (PL’s Dep. 189-90.) Initially, she refused to do it, but then she issued a citation to one of the employees. (Id.) After a discussion with the manager of the mill, she was relieved of this responsibility. (Id. at 190.)\n*724In addition, Plaintiff was asked to train and certify employees to drive industrial trucks. (Id. at 193-95.) Plaintiff believed that her time was better spent in the shipping department, but she began training sessions in January 2014. (Id. at 199.) Two or three weeks later, Wood took over responsibility for conducting these sessions. (Id. at 200-01, 204.)\nAnother responsibility assigned to her was to monitor the security' staff at the mill and to act as a liaison -with the security contractor responsible for that staff. (Id. at 179.) Plaintiff asked if there would be additional compensation associated with this new responsibility. (Id. at 209.) The general manager told her that he would look into it, but he never, got back to her. (Id.) She never asked her direct supervisor for an increase in pay. (Shannon Dep. 27.)3\nOver time, Plaintiff became frustrated with her supervisor. (Pl.’s Dep. 188.) He ignored her suggestions for improving the functioning of the shipping department. (Id. at 228-29.) In February 2014, Defendant was incurring $5,000 to $7,000 per week in detention costs, which are costs charged by independent trucking companies for the time their trucks spend idle on Defendant’s premises waiting to be loaded. (Id. at 42.) Plaintiff suggested that Shannon correct this problem by pre-loading the trailers, but her suggestions were not implemented. (Id. at 184-85,187, 225.)\nOn February 26, 2014, she met with her supervisor, the general manager, and the human resources director. The general manager mentioned that there was a problem with detention costs. Plaintiff indicated that she had given suggestions to Shannon to address this, who became red in the face after she made this comment. (Id. at 187.) The next day, Plaintiff resigned. Sometime after she left, Defendant can-celled her health insurance. Plaintiff claims that she never received any notice of her right to continue her health insurance.\nAfter Plaintiffs -resignation, Shannon assigned Wood to take over substantially all of her responsibilities. Unlike Plaintiff, Wood does not discipline employees and he does not act as liaison with the security service. (Shannon Dep. 48.) However, Wood helps with loading trucks, which is something that Plaintiff would “rarely” do because it is union work. (Pl.’s Aff, 4, EOF No. 46-2.) Wood and Shannon implemented a plan to reduce detention costs by pre-loading the trailers, resulting in significant savings.\nII.\nRule 56 of the Federal Rules of Civil Procedure requires the Court to grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[T]he district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.” Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir.2009) (citing Jones v. Potter, 488 F.3d 397, 403 (6th Cir.2007)). When such a motion is filed by the defendant, as in this case, the “plaintiff must do more than rely merely on the allegations of her pleadings or identify a ‘metaphysical doubt’ or hypothetical ‘plausibility’ based on a lack of evidence; [a plaintiff] is obliged to come forward with ‘specific facts,’ based on ‘dis*725covery and disclosure materials on file, and any affídavits[.]’ ” Chappell v. City of Cleveland, 585 F.3d 901, 912 (6th Cir.2009) (quoting Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for the, non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see generally Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir.1989). Where a defendant seeks summary judgment on an affirmative defense on which it will bear the ultimate burden of proof at trial, summary judgment is proper “ ‘only if the record shows that [the defendant] established the defense so clearly that no rational jury could have found to the contrary.'”’ Beck-Wilson v. Principi, 441 F.3d 353, 365 (6th Cir.2006) (quoting Buntin v. Breathitt Cnty. Bd. of Educ., 134 F.3d 796, 800 (6th Cir.1998)).\nIII.\nIn Count I of the complaint, Plaintiff contends that she was paid less than male counterparts, in- violation of the Equal Pay Act (EPA), 29 U.S.C. § 203 et seq.; Michigan’s Minimum Wage Law of 1964 (MWL), Mich. Comp. Laws § 408.381 et seq.; and the Elliott-Larsen Civil Rights Act- (EL-CRA), Mich. Comp. Laws § 37.2101 et seq, (Compl. ¶ 32.)\nA. Equal Pay Act\nThe EPA prohibits employers from paying an employee at a rate less than that paid to employees of the opposite sex for work requiring “equal skill, effort, and responsibility,” that is “performed under similar working conditions,” unless such payment is made pursuant to a “seniority system,” “merit system,” or “a differential based on any other factor other than sex[.]” See 29 U.S.G. § 206(d)(1). “[T]o establish a prima facie case of wage discrimination, the EPA plaintiff must show that an employer pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions,” Buntin, 134 F.3d at 799 (quotation marks and citation omitted). Plaintiff may establish her prima facie case by showing a wage differential between herself and her predecessor, id. or between herself and her successor, Dixon v. Univ. of Toledo, 638 F.Supp.2d 847, 854 (N.D.Ohio 2009). In this case, it is not disputed that the employee who preceded her as shipping superintendent, Bob Converse, and the employee who succeeded her in substantially all of her responsibilities, Gary Wood, were both paid more than her. The Court will analyze the circumstances of both employees to determine whether there is sufficient evidence to create a genuine issue of fact for trial.\n1. Gary Wood\nDefendant asserts that Plaintiff has not established a prima facie case of discrimination based on the pay differential between her and Wood because Wood’s position was different. Wood was a Lead. He did not hold the position of Shipping Superintendent. Moreover, as a union employee, he lacked management rights, including the ability to hire, fire, promote, or discipline employees.4\nThese distinctions are not dispos-itive. At issue is whether Plaintiffs position and Wood’s position require “essentially the same skill[s]” in order to perform them. 29 C.F.R. § 1620.15(a). “Skill in*726eludes consideration of such factors as experience, training, education, and ability. It must be measured in terms of the performance requirements of the job.” Id. “Congress did not intend through use of the phrase ‘equal work’ to require that the jobs be identical.” Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir.1981). “[0]nly substantial equality of skill, effort, responsibility and working conditions is re^ quired.” Id, In determining whether there is substantial equality in these respects in a given case, it is necessary to make “ ‘an overall comparison of the work, not its individual segments.’ ” Buntin, 134 F.3d at 799 (quoting Odomes, 653 F.2d at 250). Thus, a difference in job titles has minimal relevance. See Beck-Wilson, 441 F.3d at 362 (“In determining whether a comparator is appropriate for the purposes of an EPA claim, our focus is on actual job requirements and duties, rather than job classifications or titles”).\nWood’s inability to hire, fire, or discipline employees did not meaningfully distinguish his position from that of Plaintiffs. Wood testified that, when Plaintiff was still employed by Defendant, he filled in for her on the weekends or during her vacation, whenever she was not working. (Wood Dep. 14.) Generally, whatever she did during the week, he did during the weekend. (Id.) After she left, his duties remained essentially the same, but became full time responsibilities. (Id. at 23-25.) Defendant offers no evidence suggesting that a supervisor with authority to hire, fire or discipline employees requires significantly different skills or responsibility than a supervisor who lacks this authority. Moreover, there is no evidence that hiring and firing employees was a significant, part of Plaintiffs position. Indeed, although Plaintiff had the authority to discipline, she was not necessarily required to exercise that authority; When she disagreed with her supervisor’s request to issue citations to employees when they threw cigarette butts on the ground, she was relieved of that responsibility. (PL’s Dep. 190.)\nDefendant also contends that Wood participated on an employee training team, whereas Plaintiff did not. (Shannon Dep. 57-58.) But Plaintiff avers that this team did not exist when she was employed by Defendant. (Pl.’s Aff. 4.) Moreover, she was involved in discussions and meetings about training with other members of the management team. (Id.) Thus, the Court cannot discern a significant difference based on Wood’s participation on this team.\nDefendant asserts that Wood worked more hours than Plaintiff. Wood testified that Plaintiff worked from 5:30 am to 3:00 or 4:00 pm at least six days per week, whereas Wood works approximately 11 hours per day, 5 days a week, and 8 hours per day on weekends. (Wood Dep. 56.) However, when Plaintiff started her position, before Wood was brought in as a lead, she worked .12 hours per day, every day of the week. (Pl.’s Dep. 109.) Thus, the difference in hours worked appears.to be tied to staffing levels rather than a difference in skills and responsibilities.\nIn short, the Court rejects Defendant’s argument that Plaintiff cannot establish a prima facie case. Though a portion of Plaintiff’s and Wood’s responsibilities was different, it is not disputed that Defendant assigned the bulk of Plaintiffs responsibilities to Wood after she left, rather than hire a new Shipping Superintendent. This fact, coupled with the difference in pay, is sufficient to establish Plaintiffs prima fa-cie case.\n“Once the plaintiff establishes a prima facie case, the defendant must ‘prove’ that the wage differential is justified under one of the four affirmative defenses set forth under § 206(d)(1) of the *727Equal Pay Act: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) any other factor other than sex.” Buntin, 134 F.3d at 799. “Because these are affirmative defenses, the defendant bears the burden of proof.” Beck-Wilson, 441 F.3d at 360.\nDefendant- has offered evidence that the difference in compensation is due to the fact that Wood is a union employee and Plaintiff was not. Plaintiff received a salary set by management. Wood’s wages are set by the collective bargaining agreement (CBA) with the union. (Shannon Dep. 93; Wood Dep. 17.) Rock-Tenn management does not have the ability to set compensation for union employees, except when engaged in negotiations for pay rates applicable to all union employees. (Shannon Dep. 93.) In addition, because Wood is a union employee, he is paid on an hourly basis and is able to earn overtime pay for extra hours worked during the week and on weekends. (Wood Dep. 17-18, 32.) In other words, there is no genuine dispute that the difference in Wood’s pay is based on the non-gender-related reason that he is a union employee paid on an hourly basis in accordance with a pay scale negotiated between Defendant and the union. In contrast, Plaintiff was paid an annual salary approved by management and subject to negotiation between her and the company. A pay differential resulting from a collective bargaining agreement is a factor other than sex. See Thomas v. Cmty. Coll, of Philadelphia, 553 F.Supp.2d 511, 515 (E.D.Pa.2008); Cherrey v. Thompson Steel Co., Inc., 805 F.Supp. 1257, 1263-64 (D.Md.1992); Visnikar v. Dep’t of Envtl. Prot., No. CIV.A. 02-963, 2004 WL 438688, at *14 (W.D.Pa. Jan. 27, 2004); accord Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 925 (7th Cir.2000).\nIn the Sixth Circuit, a factor other than sex must be one that is “adopted for a legitimate business reason.” E.E.O.C. v. J.C. Penney Co., 843 F.2d 249, 253 (6th Cir.1988). It cannot be disputed that paying one employee more than another based on a different measure of compensation (hours worked versus an annual salary) in accordance with an agreement with a union is a legitimate business reason. Moreover, the Court notes that Wood received a higher level of compensation than Plaintiff due in part to' her request that he receive an additional 12% raise in his rate of pay during hours when she was not available.5 Plaintiff points out that this increase is not expressly mentioned in the CBA, but she does not dispute that he obtained it at her request. A request from Wood’s supervisor (i.e., Plaintiff) is also a factor other than gender that was adopted for a legitimate business reason. Having agreed to Wood’s hourly rate for legitimate reasons unrelated to gender, Defendant was not required to reduce that rate when he took over Plaintiffs responsibilities on a full-time basis.\nPlaintiff asserts that Defendant could have chosen to hire a salaried employee after she resigned, rather than assign her responsibilities to Wood, but the EPA does not regulate such decisions. Employers are free to hire or promote whomever they choose, ■ so long as any difference in compensation is based on factors other than sex. Construing the evidence in Plaintiffs favor, there is no genuine dispute that the pay differential be*728tween Plaintiff and Wood was based on factors other than sex.\nAfter a defendant has proven its affirmative defense, the plaintiff can offer evidence to demonstrate that the defendant’s reasons for the pay differential were pre-textual. Buntin, 134 F.3d at 799 n. 7. Plaintiff has not done so. Accordingly, the pay differential between Plaintiff and Wood does not support a claim under the EPA.\n2. Bob Converse\nAlthough she does not allege it in the complaint, Plaintiff asserts in response to the motion for summary judgment that her EPA claim is based, in part, on the difference between her salary and that of Bob Converse, her predecessor. In its motion for summary judgment, Defendant, asserts that Plaintiff has not provided evidence of Converse’s tasks and responsibilities in order to establish a prima facie case of substantial similarity between her position and the one held by Converse. The Court disagrees.\nIt is not disputed that Plaintiff took over Converse’s position. (PL’s Dep. 99,101.) Indeed, Converse trained her how to do his job before he left. (Id, at 101, 106.) A wage difference with a predecessor suffices to establish a prima facie claim. Buntin, 134 F.3d at 799; 29 C.F.R. § 1620.13(b)(2).\nNevertheless, Plaintiff’s EPA claim fails because there is no genuine dispute that the wage difference is attributable to Converse’s long history at Defendant’s company and his experience as a Shipping Superintendent. Converse held a supervisory position' in the shipping departm'ent at least as early as 1984. (ECF No. 43-18.) In 1997, he was being paid approximately $52,000. (ECF No. 44-2.) By 2004, his salary had risen to $69,000. (Id.) Over the next six years, his salary gradually rose to $85,000. (Id.)\nWhen she was hired in 2010, Plaintiff was given a salary at the high end of the range offered in the job posting, despite the fact that she had been unemployed for more than two years, had no experience at Defendant’s company, no experience in Defendant’s industry, and only four years of managerial experience. (See Pi’s Answers to Interrog., ECF No. 47-2, PageID,606.) In other words, Converse had 26 years of management experience at Defendant’s company in 2010, compared to 4 years of experience by Plaintiff at a different company in a different industry, “[YJears of relevant working experience [is] a factor other than sex which justifies starting wage. differentials between male and female employees.” Murphy v. Ohio State Univ., 549 Fed.Appx. 315, 319 (6th Cir.2013).\nAs Plaintiff 'accumulated more experience at the company over the next three and a half years, her salary increased to almost $78,500. It did not rise as high as Converse’s final salary of $85,000, but she did not remain at the company long enough to accumulate comparable experience and seniority, or to receive incremental raises to reach that salary. Both Converse and Plaintiff received small increases in their salary on an annual or semi-annual basis. By way of rough comparison, during the last three and a half years of Converse’s career, his salary rose by less than $6,000. (ECF No. 44-2.) During Plaintiffs similar length of time at the company, her salary rose at an even faster rate, by approximately $8,500. If that rate of increase continued, her salary would have surpassed Converse’s within a few years, even though she would not have obtained his level of experience.\nPlaintiff has acknowledged that she does know what factors were considered when *729changing her salary; she believed that it was based on adjustments to cost of living. (Pl.’s Dep. 125-26.) She offers no evidence to suggest that her starting salary, or her pay raises (or lack thereof) were tied to her gender.\nIn short, Defendant’s undisputed evidence indicates that any disparity between her salary and that of Converse was due to a difference in experience and seniority. Plaintiff offers no reason to believe that these reasons are pretextual. Thus, no rational jury could find that the difference in pay was based on her gender.-\nB. Minimum Wage Law\nPlaintiff also asserts a claim under Michigan’s Minimum Wage Law (MWL), Mich. Comp. Laws § 408.397. Like the EPA, the MWL prohibited discrimination in the form of differing wages. Defendant notes that this law was repealed on May 27, 2014. Plaintiffs complaint was not filed until January 5, 2015, Consequently, she cannot proceed under the MWL. See Hurt v. Michael’s Food Center, 249 Mich.App. 687, 644 N.W.2d 387, 390 (2002) (noting that repeal does not divest a pending cause of action that accrued while the statute was in force). Moreover, Defendant asserts that the- MWL and its successor,...the Workforce Opportunity Wage Act (WOWA), Mich. Comp, Laws § 408.423, do not apply because Defendant is subject to the requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C; § 201 et seq. See Mich. Comp. Laws § 408.420 (stating that the MWL does not apply to an employer subject to the FLSA); Mich. Comp. Laws § 408.394 (same with regard to WOWA). Plaintiff apparently concedes this issue, as she asserts that she “need not discuss” her claim under the MWL because federal law “would occupy the field.” (Pl.’s Br. in Opp’n to Mot. for Summ.- J. 15, ECF No. 46.)\nPlaintiff also concedes that the analysis of her claims under the foregoing laws is the same as that for her claim under the EPA. (Id.) Because the Court will award judgment in favor of Defendant as to the EPA claim, the Court will also award judgment in favor of Defendant as to Plaintiffs claims under the MWL and WOWA.\nC. Title VII\nAlthough not expressly identified in the complaint as the basis for a claim, Defendant asserts that Plaintiff cannot state a claim, for wage discrimination, under Title VII, 42 U.S.C. § 2000e et seq. The Court agrees. “An employer' may.. .avoid liability under a Title VII wage discrimination claim if it can establish one or more of the four affirmative defenses in the EPA.” Beck-Wilson, 441 F.3d at 369. Because Defendant has established an affirmative defense to the EPA claim, it is also entitled to summary judgment as to any claim for wage discrimination under Title VII.\nPlaintiff contends that she states other grounds for'' discrimination. According to Plaintiff, her supervisor’s refusal to take her advice is also evidence of intentional discrimination with regard to her gender.\nTitle VII makes it “an unlawful employment practice for an employer.. .to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment....” 42 U.S.C. § 2000e-2(a)(l). “This provision obviously prohibits discrimination with respect to employment decisions that have direct economic consequences, such as termination, demotion, and pay cuts.” Vance v. Ball State Univ., — U.S. —, 133 S.Ct. 2434, 2440, 186 L.Ed.2d 565 (2013). Plaintiff does not allege any direct economic consequences from her -supervisor’s refusal to take her advice.\n*730Tit}e VII also “prohibits the creation of a hostile work environment.” Id. at 2441. “In such cases.', .the plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered.” Id. Discrimination in this form occurs “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d, 295 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)) (internal citations omitted). A refusal to accept Plaintiffs recommendations is not a sufficiently severe and pervasive action to create an abusive work environment in relation to Plaintiffs gender.\nPlaintiff also points to Defendant’s decision to replace her with Wood rather than a salaried shipping superintendent. This is not evidence of discrimination toward Plaintiff.. Moreover, as discussed above with respect to the EPA, Title VII requires employers to refrain from discrimination; it does not require them to hire one type of employee over another.\nFinally, Plaintiff’ refers to the second 12% wage increase given to Wood as evidence of discrimination. As discussed above, however, Plaintiff requested this increase. Thus, she cannot complain that it was given to Wood on the basis of gender.\nConsequently, the Court will grant judgment in Defendant’s favor as to Plaintiffs claim under Title VII.\nD. Elliott-Larsen Civil Right Act\nTo the extent Plaintiff asserts a claim of wage discrimination in violation of the EL-CRA, her claim fails for the same reasons that her EPA and Title VII claim fail. See Foco v. Freudenberg-NOK Gen. Partnership, 549 Fed.Appx. 340, 347 (6th Cir.2013) (affirming summary judgment for Title VII and ELCRA claims of wage discrimination where Defendant was entitled to summary judgment on the EPA claim).\nFor all the foregoing reasons, the Court will grant judgment in favor of Defendant as to Count I of the complaint.\n\nIV.\n\nIn Count II, Plaintiff alleges that Defendant failed to comply with COBRA because it did not send her a notice that she was entitled to continue her health insurance benefits. COBRA requires employers to notify employees of their right to continue health insurance coverage after a “qualifying event.” See 29 U.S.C. § 1166(a) (notice requirement); 29 U.S.C. § 1162 (continuation of coverage); 29 U.S.C. § 1163(2) (termination of covered employee as qualifying event).\nDefendant offers evidence that it did send such notices. The human resources director for Rock-Tenn, Karol Fecteau, asserts in an affidavit that Rock-Tenn’s regular practice is to send notice to a third-party vendor, Aon Hewitt, that an employee has departed. (Fecteau Aff., ECF No. 43-24.) Aon Hewitt is responsible for sending the notices. Documents from Aon Hewitt, which are attached to the affidavit, purport to show that notices were sent to Plaintiff on March 7, 2014 and on February 17, 2015. (Ex. to Fecteau Aff., ECF No. 43-24, PageID.382-84.) These documents include an electronic copy of the notice and what appears to be a screenshot of an Aon Hewitt database entry showing Plaintiffs name and several dates, one labeled “Initially Created,” another labeled “Effective,” and a third labeled “Since.” (Id.) Above the screenshot there is text stating, “Screenshot below shows the no*731tice was created on 3/7/14 for effective date of 2/27/14. It was created a second time on 2/17/15 and ‘# Times created = 2’ verifies it was sent on[e] time and sent a second time[.]” (Id. at PageID.384.) Fecteau avers that she reviewed these documents and that they confirm that the notices were sent.\nPlaintiff notes that Fecteau does not contend that she herself sent the notices; thus, she does not have personal knowledge of whether they were sent. Plaintiff also objects that the copy of the notice and the screenshot are hearsay. Generally, a court may not consider hearsay evidence when deciding a summary judgment motion. Tranter v. Orick, 460 Fed.Appx. 513, 514 (6th Cir.2012). Exceptions to this rule include documents such as affidavits, depositions, and answers to interrogatories. Id.\nThe Court agrees that Fecteau’s affidavit lacks foundation and that the exhibits purporting to show that Aon Hewitt mailed the notices to Plaintiff are hearsay. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). The screenshot and explanatory text are not sworn statements by Fecteau; they are merely commentary and a picture from an unknown source purporting to establish the truth of the matter asserted, i.e., that Aon Hewitt sent two notices to Plaintiff. It does not appear that the screenshot would satisfy any exception to hearsay. Fecteau does not assert that it is a record kept in the ordinary course of business. Fed. R. Evid. 803(6). Thus, her affidavit and its exhibits are not sufficient in themselves to establish that Defendant complied with COBRA.\nRule 56(c)(2) permits a party to “object that material cited 'to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(e)(2). In response to an objection under Rule 56(c)(2), the Court may take one of several steps, including giving the party an opportunity to properly support or address the fact, or issuing any other appropriate order. Fed. R. Civ. P. 56(e)(l)-(4). Accordingly, the Court will give Defendant an opportunity to properly support its evidence by considering the evidence that it submitted in its reply in support of the summary judgment motion. That evidence includes an affidavit by Clyde Watson, the Delivery Manager for Aon Hewitt. (Watson Aff., ECF No. 47-10.) Watson asserts that he is responsible for ensuring that COBRA notices are sent to departing Rock-Tenn employees, as directed by Rock-Tenn. (Id.) According to his review of Aon Hewitt’s computer records, it sent COBRA notices to Plaintiff by regular mail on March 7, '2014, and on February 17, 2015. (Id.) Watson’s affidavit properly supports Defendant’s contention that it complied with COBRA by having notices mailed to Plaintiff. The fact that Plaintiff did not receive these notices does not mean that Defendant failed to comply with COBRA. “Several courts have specifically found that employers are in compliance with § 1166(a) when they send COBRA notices via first class mail to an employee’s last-known address.” Torres-Negrón v. Merck & Co., Inc., 488 F.3d 34, 45 (1st Cir.2007) (citing Holford v. Exhibit Design Consultants, 218 F.Supp.2d 901, 906 (W.D.Mich.2002); Torres-Negronv. Ramallo Bros. Printing, Inc., 203 F.Supp.2d 120, 124-25 (D.P.R.2002)). There is, thus, no genuine dispute that Defendant complied with' COBRA. Consequently, the Court will also grant summary judgment in Defendant’s favor as to Count II of the complaint.\ny.\nIn summary, the record shows that no reasonable jury could find in favor of *732Plaintiff. Accordingly, Defendant’s motion for summary judgment will be granted.\nAn order and judgment will be entered consistent with this Opinion.\n\n. Excerpts of Plaintiff's deposition transcript are located at ECF Nos. 43-3, 46-20.\n\n\n. Excerpts of Wood’s deposition transcript are located at ECF Nos. 43-9, 46-20.\n\n\n. Excerpts of Shannon's deposition transcript are located at ECF Nos, 43-8, 46-21.\n\n\n. Under the collective bargaining agreement, Leads do not have the ability to hire, fire, or discipline employees. (See CBA, ECF No. 43-11, PageID.288.).\n\n\n. Plaintiff asserts that this increase was obtained after she resigned (Pl.’s Br. in Opp'n to Mot. for Summ. J. 12, ECF No. 46.), but that assertion is not supported by any evidence. Wood testified that he received this increased while Plaintiff was still employed by Defendant.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"perkins-v-rock-tenn-services-inc"} {"attorneys":"Mr. Hymen B. Mintz argued the cause for appellants., Mr. Aaron Lasser argued the cause for respondent (Messrs. Lasser \\& Lasser, attorneys; Mr. H. Lee Sarolcin, on the brief).","case_name":"Blau v. Friedman","case_name_full":"LESLIE BLAU, PLAINTIFF-RESPONDENT v. MORRIS FRIEDMAN AND BETTY FRIEDMAN","case_name_short":"Blau","citation_count":0,"citations":["46 N.J. Super. 573"],"court_full_name":"New Jersey Superior Court Appellate Division","court_jurisdiction":"New Jersey, NJ","court_short_name":"New Jersey Superior Court App Div.","court_type":"SA","date_filed":"1957-10-16","date_filed_is_approximate":false,"id":7389915,"judges":"Jayne","opinions":[{"author_str":"Jayne","ocr":true,"opinion_id":7308843,"opinion_text":"\nThe opinion of tho court was delivered by\nJayne, J. A. D.\nFactual dissimilarities often demand legal distinctions, and in the process of ironing them out great circumspection must be employed lest a new wrinkle is put in for every one smoothed out. In the present case we are informed that on May 28, 1956 the defendants contractually engaged in writing the services of tho plaintiff as a realtor to solicit and procure for them a purchaser of the premises designated as Hos. 26 and 28 Elmwood Avenue in the Town of Irvington, Essex County, Hew Jersey. In literal confirmation of their agreement the defendants subscribed their respective signatures to the following written memorandum:\n“In accordance with our conversation, this will authorize you to represent us as our Exclusive Agent for the Sale of the land and building which we own at 26 & 28 Elmwood Aye. Irvington.\n*576This Agreement shall be effective May 28 1956 and will operate until June 28 1956.\nWe agree that the sale price for the premises will be 113,700. In the event that you succeed in selling this property for us for this or any other price that we may agree to accept, we will pay you a commission equal to 5% of the total purchase price if, as and when title to the, property actually passes to the purchaser, whether that purchaser is produced by you, any other broker, or by us direct during the term of this Agreement.\nVery truly yours,\nMORRIS FRIEDMAN BETTY FRIEDMAN”\nWe ourselves have italicized those portions of the verbiage of the memorandum which snapshot preliminarily the particularly significant characteristics of the employment agreement.\nThe acknowledged eventualities were that the plaintiff in pursuance of his authorization actually obtained for the defendants a satisfactory purchaser ready, able and willing to acquire title to the premises for the specified price. The conveyance of the property, however, failed of consummation for reasons somewhat singular.\nBy means of the prosecution of this action, the plaintiff has a judgment against the defendants for his brokerage commission in the sum of $5,685, the legal and factual propriety of which we are requested by the defendants to investigate.\nIn rationalizing the problem, let us begin at the beginning with the realization that in the absence of some qualifying or oppugnant expression in the contract of employment, a broker who is duty engaged earns his commission when he procures for the owner a purchaser ready, able, and willing to comply with the terms specified in the authority thus conferred, or with other or different terms which, however, are satisfactory to the owner. Marschalk v. Weber, 11 N. J. Super. 16, 21 (App. Div. 1950), certification denied 6 N. J. 569 (1951); Alnor Construction Co. v. Herchet, 10 N. J. 246, 253 (1952); Todiss v. Garruto, 34 N. J. Super. 333 (App. Div. 1955), certification denied 18 N. J. 549 (1955); Beckmann, Inc., v. (Zinke’s) Rainbow’s End, Inc., *57740 N. J. Super. 193 (App. Div. 1956), certification denied 22 N. J. 219 (1956), in all of which, citations of the earlier decisions appear.\nIn association with the foregoing general rule is the established principle that a broker and his employer may by a special agreement contract to fix definitely or to postpone the time of payment of the commission or, indeed, conditionally make the payment of the commission entirely dependent on a stated contingency such as “if, as and when title to the property actually passes to the purchaser.” Hinds v. Henry, 36 N. J. L. 328 (Sup. Ct. 1873) ; Morse v. Conley, 83 N. J. L. 416 (Sup. Ct. 1912); Leschziner v. Bauman, 83 N. J. L. 743 (E. & A. 1912); Simon v. Garber, 3 N. J. Misc. 150 (Sup. Ct. 1925); Lippincott v. Content, 123 N. J. L. 277 (E. & A. 1939) ; Real Estate Exchange v. Lieberman, 8 N. J. Super. 99 (App. Div. 1950); Richard v. Falleti, 13 N. J. Super. 534 (App. Div. 1951) ; Alexander Summer Co. v. Weil, 16 N. J. Super. 94 (App. Div. 1951); Todiss v. Garruto, supra; Beckmann, Inc., v. (Zinke's) Rainbow’s End, Inc., supra.\nWe are disposed at this point to express the conclusion that under the terms of the brokerage agreement now before us, the accrual of the commission was mutually intended, to be made contingent upon the actual consummation of the conveyance. Compare, Lehrhoff v. Schwartsky, 2 N. J. Misc. 353 (Sup. Ct. 1924); Taylor & Rose, Inc., v. Buonincontri, 101 N. J. L. 278 (Sup. Ct. 1925) ; Dermody v. New Jersey Realties, 101 N. J. L. 334 (E. & A. 1925); Mahlenbrock v. Stonehell Realty Co., 104 N. J. L. 176 (E. & A. 1927); J. R. Tucker, Inc., v. Mahaffey, 6 N. J. Misc. 17 (Sup. Ct. 1928); Kram v. Losito, 105 N. J. L. 588 (E. & A. 1929), illustrative of clauses in the brokerage agreement interpreted merely as designating the time for the payment of the commission.\nIt is, however, a comprehensive axiom that one cannot ordinarily utilize advantageously his own fault as an exit of escape from the performance of his contractual obligations. Keifhaber v. Yannelli, 9 N. J. Super. 139, 142 *578(App. Div. 1950); 3 Williston on Contracts 1952, § 677; Restatement, Contracts, § 295, p. 438. Therefore, there is a principle of law supported by an abundance of judicial authority in numerous jurisdictions that the condition upon which the payment of the broker’s commission is contractually made to depend is rendered ineffectual and inoperative where his principal, the vendor, has indulged in some affirmative wrongful act which in effect has prevented the consummation of the sale. Rauchwanger v. Katzin, 82 N. J. L. 339 (Sup. Ct. 1912); Lehrhof v. Schwartsky, supra; Keifhaber v. Yannelli, supra; Marschalk v. Weber, supra; Beckmann, Inc., v. (Zinke’s) Rainbow’s End., Inc., supra. Vide, Amies v. Wesnofske, 255 N. Y. 156, 174 N. E. 436, 438, 73 A. L. R. 918 (Ct. App. 1931); cf. Stern v. Gepo Realty Corporation, 289 N. Y. 274, 45 N. E. 2d 440, 441 (Ct. App. 1942).\nThis principle is universally recognized. The discordancy and divergency of opinion discoverable in the decisions are not attributable to any incertitude concerning the principle, but to the contrastive and differential conceptions of its applicability to the circumstances of the given case, and to the particular terms of the brokerage contract.\nIn the present case, as you will recognize, we have a known and express misrepresentation by the vendors to the broker concerning the very cause that in fact prevented the accomplishment of the conveyance. The defendants definitely represented in the memorandum to the innocent and otherwise uninformed broker that they were the owners of the property. This representation indubitably transported the rational implication that they were the sole owners of the premises and were themselves clad with the ability to transmit to the desired purchaser a marketable title thereto. Magrill v. Langan, 43 N. Y. S. 2d 210 (Sup. Ct. 1943); Cash v. Diamond, 208 Misc. 712, 144 N. Y. S. 2d 627 (N. Y. C. Mun. Ct. 1955).\nThis unqualified declaration of the defendants tinted by its productive implications was inexact,- uncandid, and-pragmatically deceptive. The undeniable fact is that the mother of the defendant Morris Eriedman had a beneficial *579one-half interest or estate in the property. She declined to join the defendants in the effectuation of the negotiated sale; hence it collapsed.\nIn Kruse v. Berber, 91 N. J. L. 470 (Sup. Ct. 1918), the broker’s employer proved only to be “a tenant by curtesy initiate’’; in Taub v. Shampanier, 95 N. J. L. 349 (Sup. Ct. 1921), the employer was a “tenant by the entirety”; in J. I. Kistak, Inc., v. Judge, 102 N. J. L. 506 (Sup. Ct. 1926), also a “tenant by the entirety”; in Blitzer v. Burns, 15 N. J. Misc. 736 (Dist. Ct. 1937), the employer was a life tenant. In each instance the broker achieved a recovery.\nWe are not aware that it is in the least doubted that the plaintiff faithfully, fully, and completely performed the service sought of him by the defendants.\nNoticeably, however, the memorandum in the present case evidencing the plaintiff’s employment stipulated that his commission would be payable to him “if, as and when title to the property actually passes to the purchaser.” Initially, it would seem that this quoted provision is so interrelated that it cannot be severed from the accompanying representations therein; to wit, “* * * this will authorize you to represent us as our Exclusive Agent for the Sale of the land and building which we own * * *,” and “in the event that you succeed in selling this property for us * *\nWas it contemplated and intended by the parties that the contingency provision, although ordinarily applicable, should be operative, and effectually applicable, where, contrary to the express representation, the defendants themselves knowingly lacked a full ownership of the premises and omitted to divulge that fact to the plaintiff?\nThe New York Court of Appeals, in Colvin v. Post Mortgage & Land Co., 225 N. Y. 510, 122 N. E. 454, 455 (1919), stated:\n“The broker may, if he chooses, agree that, if the sale falls through because of the seller’s fault, he shall be entitled to nothing. Commonly, however, such is not the meaning of the parties, and an agreement should not be so construed unless such a result is clearly intended.”\n*580. Here, the defendants engaged the plaintiff to represent “us” and to procure a purchaser “for us.” The plaintiff did so for them in complete fulfillment of his engagement and to their satisfaction. A distinguishing feature of this case which we desire to emphasize is that the misrepresentation in the brokerage agreement was the precise obstacle, that prevented the consummation of the sale.\nFundamentally, therefore, we recognize significantly the pertinent principles of law and the demonstrable facts which we have already announced. But it is advocated that the admittedly false representations of the defendants, although affirmatively expressed to the plaintiff and of vital consequence, were not motivated by any willful, malicious, or fraudulent intent.\nIn the endeavor to reduce the act of the defendants from vice to listless inadvertence, it was disclosed at the trial that by virtue of a written declaration executed by the defendant Morris Friedman on May 29, 1947, he acknowledged that he held in the capacity of a trustee the title to an undivided one-half estate in the premises for his mother, Sarah R. Friedman. The instrument, also executed by the mother, bestowed upon the trustee power to sell or mortgage the property.\nHowever, by another instrument in writing, the mother on January 18, 1952 expressly revoked the power of sale theretofore conferred upon her son by the trust indenture and on January 22, 1952 caused both the unrecorded trust agreement and the instrument revoking the power of sale to be entered in the records of the Essex County Register’s office. The defendants assert that they were unaware of the revocation of the power of sale at the time of the plaintiff’s employment on May 28, 1956. We do not pass upon the valid efficacy of the intended revocation by the sole cestui que trustent. The fact is that the concealed equitable estate of the mother in the property was the sole causal circumstance that influenced the parties to abandon the bargain.\nAt best, we are asked to envision a situation in a scenic environment in which the vendors actually deceived their *581broker but did not mean to do so. In such, an exigency of affairs, will the law permit the defendants to utilize the contingency clause as a shield to insulate them ex aequo el bono from rewarding the plaintiff for his acknowledged services ? Upon mature consideration, our answer is to the contrary.\nIt becomes excusable to iterate that this is not a case in which the failure of the consummation of the conveyance was attributable to unknown defects in the vendors’ title, or to the arbitrary refusal of the purchaser to perform his obligations under a contract of sale, in which event the vendors stood passive and neutral, nor one in which there was cooperating wrongdoing of both the vendors and the purchaser, but obviously a cause of action implicating solely the complete performance by the broker and the frustrating conduct of his clients.\nThe material consequence of the concealment of the mother’s estate is conspicuous. Had the truth been made known to the plaintiff, he would in reasonable probability have also sought the mother’s authorization. It was the deceptive conduct of the defendants that inspired the services of the plaintiff and thwarted the conclusion of the negotiated opportunity to sell the property.\nHad the defendants misrepresented their lack of ownership in a contract of sale delivered to the purchaser, however carelessly heedless of the truth, would the law exonerate them from liability to the deceived buyer? How much less should the law be disposed to liberate them in such a circumstance from responsibility to compensate the broker who in ignorance of, and reliance upon, the deception has completely performed the services for the rendition of which he was employed. 3 Corbin on Contracts, p. 957.\nIt is realized that in reading the decisions in Apfelbaum, Inc., v. Topf, 104 N. J. L. 343 (E. & A. 1928); Lippincott v. Content, 123 N. J. L. 277 (E. & A. 1939); Womersley v. Nicosia, 135 N. J. L. 452 (E. & A. 1947); Clark v. Jelsma, 40 N. J. Super. 58 (App. Div. 1955), some ambivalence of authority is seemingly discernible, but omitting an explana*582tion of inordinate detail, we choose only to state that those decisions are manifestly distinguishable in factual and legal background from the circumstances of the case before us.\nIt is resolved that the judgment under review should be affirmed.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued September 4, 1957","precedential_status":"Published","slug":"blau-v-friedman"} {"case_name":"Jonescue v. Pinellas County","case_name_full":"Nick JONESCUE and Marjorie Jonescue, his wife v. PINELLAS COUNTY, a political subdivision of the State of Florida","case_name_short":"Jonescue","citation_count":0,"citations":["312 So. 2d 273"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1975-04-30","date_filed_is_approximate":false,"id":7545166,"opinions":[{"ocr":true,"opinion_id":7470472,"opinion_text":"\nPER CURIAM.\nAffirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"jonescue-v-pinellas-county"} {"attorneys":"Mr. Charles B. Mclnnis for petitioner., Solicitor General Reed, Assistant Attorney General Wideman, and Mr. James W. Morris for respondent.","case_name":"George v. Commissioner","case_name_full":"George v. Commissioner of Internal Revenue","case_name_short":"George","citation_count":0,"citations":["296 U.S. 634"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1935-10-28","date_filed_is_approximate":false,"id":8190056,"opinions":[{"ocr":true,"opinion_id":8151987,"opinion_text":"\nPetition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"george-v-commissioner"} {"case_name":"Sanle Zhang v. 56 Locust Rd., LLC","case_name_full":"SANLE ZHANG v. 56 LOCUST ROAD, LLC","citation_count":0,"citations":["175 A.3d 44","327 Conn. 986"],"court_full_name":"Supreme Court of Connecticut","court_jurisdiction":"Connecticut, CT","court_short_name":"Supreme Court of Connecticut","court_type":"S","date_filed":"2017-12-14","date_filed_is_approximate":false,"id":8260759,"opinions":[{"ocr":true,"opinion_id":8226066,"opinion_text":"The defendant's petition for certification to appeal from the Appellate Court, 177 Conn. App. 420, 172 A.3d 317 (2017), is denied.McDONALD and MULLINS, Js., did not participate in the consideration of or decision on this petition.","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"sanle-zhang-v-56-locust-rd-llc"} {"attorneys":"Mr. Sarmiento, for appellant., Messrs. Cuevillas and Tecciclor, for respondents.","case_name":"Sola v. Morera","case_name_full":"Sola v. Morera","case_name_short":"Sola","citation_count":0,"citations":["7 P.R. 7"],"court_full_name":"Supreme Court of Puerto Rico","court_jurisdiction":"Puerto Rico, PR","court_short_name":"Supreme Court of Puerto Rico","court_type":"TS","date_filed":"1904-05-16","date_filed_is_approximate":false,"headnotes":"Intervention of Ownership — Title of Plaintiff in Intervention — Annulment or Rescission Thereof. — If in a complaint in intervention of ownership the title of the plaintiff in intervention is attacked on the ground that it is ineffective, either because it is null or capable of being rescinded, or because it was acquired in fraud of creditors, the defendant in his answer must expressly request the annulment or rescission of such title.
Action for Rescission — Contracts Executed in Eraud of Creditors. — Actions for rescssion are subsidiary, and therefore in order to consider the reasons which may justify the rescission of a sale made in fraud of creditors it is necessary to show that there is no other means of obtaining reparation for the damage.
Cancellation of Record. — In order that the cancellation of a record of a title in the registry of property may be ordered it is necessary first to allege and pray for the nullity of such title, and the cancellation of the reeord thereof will not be ordered in cases where the same has not been requested.
Third Party — Cautionary Notice of Attachment. — A cautionary notice of attachment entered in the registry of property at the request of a creditor cannot prejudice a property right acquired by a third party prior to the entry of such cautionary notice of attachment, although the property right may not have been recorded prior to the entry of such notice.
","id":8549318,"judges":"Figueras, Hernández, MacLeary, Quiñones, Sulzbachee","opinions":[{"author_str":"Sulzbachee","ocr":true,"opinion_id":8521993,"opinion_text":"\nMe. Justice Sulzbachee,\nafter stating the foregoing facts, delivered the opinion of the court.\nThe findings of fact of the judgment appealed from are accepted.\nIn their answer the defendants merely ask that the complaint be rejected and that they be acquitted thereof, the note of the suspension of the proceedings made in the verbal action being cancelled, but without seeking a declaration as to the nullity of the deed of sale in favor of the plaintiff in intervention, Sola, or the rescission of said deed, as .would be the case if the basis of the answer were the invalidity of the consideration for its nullity, or if it should have been rescinded in consequence of having been executed in fraud of creditors.\nThe grounds set up by the defendant do not constitute legal causes for the annulment of the deed of ownership of the plaintiff in intervention, and in order to take into consideration the grounds for the nullification of the sale made *14in fraud of creditors, it is necessary to bear in mind article 1294 of the Civil Code, which declares the action to be a subsidiary one, which can be maintained only in the absence of some other legal remedy, and this fact has not been established.\nThe application for the annulment of the document showing the ownership of the plaintiff in intervention, or at least an allegation of the fact, should be considered necessary to order the annulment of the record thereof in the registry of property, and if it has not been prayed for or alleged, it would be improper to order the registrar to proceed to such annulment of the entry.\nInasmuch as the deed of purchase of Solá was prior to the cautionary notice of the attachment levied in favor of the defendant, article 44 of the Mortgage Law must be applied in favor of the plaintiff in intervention, as has been held by this court in analogous cases, the said cautionary notice of attachment not operating to his disadvantage.\nReversing the judgment appealed from, we adjudge that the complaint in intervention was properly presented, and we order the property in question to be left at the free disposal of the plaintiff in intervention, the costs of the suit to be paid by the opposing defendants, and no special imposition being made of the costs of the appeal. The records are ordered to be returned with the proper certificate.\nChief Justice Quiñones and Justices Hernández, Figueras and MacLeary concurred.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"sola-v-morera","summary":"Appeal from the District Court of San Juan. STATEMENT OE TI-IE CASE. This is an action instituted in the District Court of San Juan by Saturnino Sola y Rodriguez against Juan Morera Martínez and Francisco Armengol, indorsee and manager, respectively, of Baquero & Gándara, involving an intervention of ownership. This case is pending before us on appeal in cassation, now ordinary appeal, prosecuted by the plaintiff from the judgment of such court, Saturnino Sola y Rodriguez having been represented in this court by Attorney Antonio Sarmiento, and the defendants having been successively represented by Attorneys Hilario Cuevillas y Hernández and Jacinto Texidor. Said judgment reads as follows: ‘\"Judgment. — In the city of San Juan, Porto Rico, the 7th day of April, 1902. A hearing was had of the present action instituted by José Saturnino Sola y Rodriguez, represented by Attorney Sar-miento y Porras, against Juan Morera Martínez and Francisco Armengol, indorsee and manager, respectively, of Messrs. Baquero & ■Gándara, involving an intervention of ownership of a house attached in verbal actions brought by the defendants in the municipal court of the San Francisco district against Aniceto Crespo for the recovery of a sum of money. “On September 22, 1900, Juan Morera Martínez, as assignee of Baquero & Gándara, brought a verbal action in the municipal court óf the San Francisco district of this city against Aniceto Crespo, a resident of Aguas Buenas, for the recovery of six hundred and sixty-one pesos and twenty-seven centavos, provincial money, upon a matured installment. “Francisco Armengol, manager of Baquero & Gándara, brought an action on the same date and before the same court against the ■said Aniceto Crespo, for the recovery of six hundred and fifty pesos •and sixty-three centavos, provincial money. “In both actions a cautionary attachment was applied for and ■granted, the same being levied by the municipal court of Aguas Buenas in each case upon one-half of a house. “Orders in duplicate having been issued to the Registrar of Property of Caguas directing him to enter both cautionary attachments of record, said orders were presented in that office on September 24, 1900, and on the 27th of said month the cautionary notice was made without difficulty upon the attached house, which appeared on the registry on that date as the property of Aniceto Crespo. “The prosecution of the verbal actions'having been continued, judgment was rendered in both of the same under date of the 9th of October directing Aniceto Crespo to mate payment of the amounts sued for, together with interest and costs, notice of which judgments was served upon the defendant and the same became final on the 25th of said month. “At this stage of the proceedings Saturnino Solá y Rodríguez brought an action in intervention of ownership against Baquero & ■Gándara and Juan Morera Martínez, on October 16, 1900, based on the facts alleged in his petition found at folio 3. “ It is averred as facts that the plaintiff in intervention purchased the attached house on July 23, 1900, firom Mrs. Calixto Ortiz y Rodriguez, wife of Aniceto .Crespo, for the sum of twelve hundred dollars • American money, and that the deed of purchase and sale had been recorded in the registry of property. “The grounds of law relied upon are confined to a declaration that the contract of purchase and sale constitutes a sufficient title to convey ownership, and that inasmuch as the plaintiff in intervention had produced a document evidencing a contract of that description, the ownership claimed by him should be respected, it being clear that by means of the appropiate action, he is entitled to recover his house from any person having the same in his possession as holder or possessor, wherefore the attachments should be discharged and the property placed at his free disposal, the defendants to pay all the costs of the proceedings. “In consequence of the refusal of the defendants to recognize the ownership sought to be established, the verbal actions were suspended and the prosecution of the proceedings in intervention of ownership was continued throughout all the formalities, the defendants having requested in the final prayer of their answer that the complaint be rejected, that they be acquitted thereof, and that the entry suspending the proceedings made in the verbal actions be vacated, the costs to be expressly imposed upon the plaintiff in intervention. “From the evidence and documents produced in the case it appears that not only the facts set forth in the. foregoing findings of fact have been established, but the following also appears to be proved: 1. That Mrs. Calixta Ortiz y Rodriguez, the wife of Ani-ceto Crespo, while still married, sold the property involved in* this controversy to Saturnino Sola, on July 23, 1900; 2. That no cash consideration, but only an admitted one, appears to have been paid at the said sale in the presence of the notary; 3. That the deed of sale executed by Mrs. -Calixta Ortiz states that the vendor acquired the property by purchase from Paulino Pumareda del Valle, out of her separate funds, that is, paraphernal property, by deed executed June 26, 1899, before a notary of Bayamón; 4. That said purchase made from the separate paraphernal property of the wife is not shown except by the admissions of the husband contained in said documents; 5. That neither the deed of July 23, 1900, nor that of June 26, 1899, was recorded in the registry of property until September 29, 1900, the house having appeared upon the registry up to that date as-the property of Aniceto Crespo. “During this action Marcelino' Sola has not shown, or even attempted' to show, that Mrs. Calixta Ortiz brought property to her marriage with Aniceto Crespo, either as paraphernal property or any other kind. “The plaintiff in intervention has not impeached either the genuineness of the claims of the defendants or the correctness of the judgments obtained by the latter against Aniceto Crespo in the verbal actions in question. “On the 25th of March of the present year the oral trial was held, at which, after reviewing the evidence taken, - the attorneys for the parties presented arguments in support of their respective contentions, and upon the conclusion thereof a day was set for the voting upon the judgment. “Upon the termination of all the steps in the trial, the voting on the judgment took place, on the 7th of April last, after a citation of the parties, the same being unanimously rendered in favor of dismissing the complaint,, the costs being imposed upon Marcelino Sola. “In this case all the formalities prescribed for this class of actions by the Law of Civil Procedure and General Order No. 118 have been observed. “When, as in the present case, no marriage agreement exists, the marriage is understood to have been contracted under the system of conjugal partnership. (Art. 1315 of the Civil Code). “Property acquired for a valuable consideration during the marriage at the expense of the partnership property, whether the acquisition is made for the partnership or for one of the spouses only, belongs to the conjugal partnership, that is to the parties to the marriage. (Art. 1401, subd. 1, of the Civil Code.) “The house involved in this litigation having been purchased during the marriage of Aniceto Crespo and Mrs. Calixta Ortiz, it cannot be questioned that, said property belonged from the time of its acquisition to the parties to said marriage and to the conjugal partnership, not only by reason of the matters set forth in the foregoing conclusions of law, but also because neither in this action nor in the deed of purchase has it been proven that the amounts expended in the purchase belonged to the wife, Calixta Ortiz, as parapher-nal property, and the mere confession of the husband cannot be accepted for the reason that it is not sufficient for the purpose, according to the doctrine laid down by the Supreme Court of Spain in its decisions of December 4, 1867, December 15, 1860, and January 4, 1867. ‘ ‘ Under these circumstances, as the ovuiership over the same thing cannot be considered as existing exclusively in several persons at the same time, it must be beld that as the thing belongs to the conjugal partnership, and the latter being still in existence when Calixta Ortiz sold the property in question, she never had the ownership of the same. “In accordance with the legal principle that no one can transmit to another greater rights than those which pertain to him, it is evident that Calixta Ortiz could not convey to Marcelino Solá a right of ownership which she did not possess, and the deed of sale of July 12, 1900, is therefore not tainted with nullity because lacking in the requirements prescribed by article 1261 of the Civil Code. “Pursuant to article 33 of the Mortgage Law, the recording of instruments which are null according to law does not render the same valid, and Marcelino Solá cannot adduce the provisions of article 34, since in the registry itself it appeared that the person with whom he contracted was a married woman, and the evidence necessary at all times to prove the existence of paraphernal property, in order to destroy the legal presumption, established by the registry, that the property which he was about to purchase pertained to the conjugal partnership, so long as it, be not duly shown that the wife brought into the said partnership a sufficient amount to permit of the acquisition of the property by her, and the provisions of the second paragraph of the said article cannot be successfully invoked in this behalf, because the said paragraph can only be availed of by a third party, and Marcelino Solá is not a third party, according to the decision of the Supreme Court of Spain rendered February 7, 1896, and other decisions of the same court. “Calixta Ortiz being devoid of the ownership of the property, she could not transmit the same to any one, and Marcelino Solá being nothing more than her successor in interest with respect to such ownership these proceedings in intervention are improper, as they could not arise from or be sustained except by virtue of the existence of such right. “Petitions of nullity are understood to be implied in every application which in itself precludes the validity of acts, and it is not necessary to make any specific claim upon these points, as the Supreme Court of Spain has held a great many times. “Cautionary attachments subject the property entered to the effectiveness of the transactions for the security of which they have been established, so that the house in question is subject to the credits declared by the final judgment in favor of the creditors sued by Marcelino Solá, not only .from the date on which the cautionary notices of attachments were entered, but also from the date of the presentation of the orders of September 24, 1900. “Although article 44 of the Mortgage Law declares that the preference of credits entered refers only to others of a subsequent date, it is understood that when preferred rights are involved, regard should be had not only to the evidences of indebtedness, but principally to the credits for which preference is claimed, and here it happens that the right of Marcelino Sola is tainted with nullity, has no legal existence, and cannot be presented for comparison. “The conjugal partnership is liable for all the debts and obligations contracted during the marriage by the husband, which is the ease with Juan Morera Martínez and Baquero & Gándara, who have a final judgment in their favor, and against which nothing has been alleged to the contrary. (Art. 1408, subd. 1., of the Civil Code.) “According to article 1297 of the Civil Code contracts by virtue of which the debtor alienates property, for a gratuitous consideration, are presumed to be executed in fraud of creditors, the presumption which classifies as a gratuitous consideration everything in which the delivery of the stipulated price merely appears as admitted, being a legal presumption. (Arts. 397 and 40 of the Mortgage Law). And in this suit it is found that the plaintiff in intervention has not shown that he has in reality paid the purchase price of the house of which he claims ownership. “The community property being liable for the payment of the debts ánd obligations contracted during the marriage of the husband, it cannot be permitted, under any legal theory, that a married woman should dispose of said ■ property, not for the purpose of satisfying said charges, but for the purpose of appropriating the amount thereof, upon the ground of bringing to the marriage property which has not been purchased and it therefore appears that the conveyance made by Mrs. Calixta Ortiz is in manifest violation of the provisions of articles 141 and 1408 of the Civil Code, the nullity of - said contract being obvious, in view of the provisions of article 4 of the same Code. “According to section 63 of General Order No. 118 costs should be paid by the litigant who loses his case on all points. “In view of the legal provisions cited in the body of this judgment,, we adjudge that we ought to declare land do declare that the proceedings in intervention instituted by Marcelino Sola will not lie, and that Juan Morera Martínez and Baquero & Gándara are acquitted of liability under the complaint, and in consequence thereof we order the notes of the suspension of the proceedings made in the verbal action to be cancelled, the plaintiff in intervention, Marcelino Sola being expressly adjudged to the payment of all the costs. Thus by this our judgment do we pronounce, order and sign. Juan R. Ramos, José R. F. Savage, Angel Garcia.” “Notice of said judgment having been served upon Sa-turnino Sola Bodriguez, he took an appeal in cassation to this court for error of law, which was allowed, and the record was ordered to be forwarded to this court after citation of the parties for the legal period. The parties having appeared, after the appeal had been conducted as one of cassation, it was thereafter proceeded with as an ordinary appeal, under the provisions of the act of March 12, 1903, converting this Supreme Court into a court of appeals. A day was set for the hearing, at which the appellant and respondent alleged such matters as they deemed proper in support of their respective contentions."} {"attorneys":"Juan de Gusmán Benites for the appellant. Adolfo Gorda Yevp and Juan B. Soto for the appellee.","case_name":"Benítez-Gómez v. Calzada-Bonano","case_name_full":"Juan Benítez-Gómez, and v. Tomasa Calzada-Bonano, and","case_name_short":"Benítez-Gómez","citation_count":0,"citations":["36 P.R. 634"],"court_full_name":"Supreme Court of Puerto Rico","court_jurisdiction":"Puerto Rico, PR","court_short_name":"Supreme Court of Puerto Rico","court_type":"TS","date_filed":"1927-05-05","date_filed_is_approximate":false,"id":8556967,"judges":"Audrey","opinions":[{"author_str":"Audrey","ocr":true,"opinion_id":8529836,"opinion_text":"\nMr. Justice Audrey\ndelivered the opinion of the court.\nThe following are the facts on which shall be based a decision in the appeal taken by the appellant' from a judgment dismissing his complaint:\nBy public deed No. 2 of February 1, 1924, Tomasa Cal-zada Bonano and Juan Benitez Gómez entered into a contract by which the former hired the services of the latter to manage the properties belonging to her and to her minor children for the term of six years for the consideration of *635eighteen percent of the income from- the properties to he paid monthly. It was stated in the deed that the powers and authority to he exercised by the manager would be specified in a power of attorney to he granted by Tomasa Calzada Bo-nano on the same date and that he would carry out the management in accordance therewith.\nOn the same date and before the same notary, she executed deed No. 3 in which, after referring to the former contract and defining clearly the authority given to Juan Beni-tez Gómez as manager of the aforesaid properties, she gave him very ample powers for the management of the properties belonging to her and to her minor children.\nJuan Benitez Gómez managed, under the above deeds, the properties in question during the months of February, March and April of 1924 and received monthly the compensation stipulated; but on the last month Tomasa Calzada Bo-nano revoked the power which she had given to Juan Beni-tez Gómez and the management of the properties was handed oyer to another person. Although in the deed revoking-1 the power no mention is made of any reason for such decision, something had happened, however, which displeased Tomasa ( ‘alzada Bonano, and it was the marriage of her daughter of eighteen years of age to the said Juan Benitez Gómez.\nThereupon Juan Benitez Gómez sued Tomaba Calzada Bonanó for the sum of $23,573.40 as his compensation for the management until the expiration of the contract for his services and legal interest thereon at the rate- of $345 monthly and payable at the end of each month from the last of May and so on until payment thereof.\nThe plaintiff in his appeal alleges, among others, three grounds referring to the legal fundamental question in this suit and which may be considered jointly. They are as fol - lows:\n“III.- — The court erred in declaring that it appeared from an examination of the deeds of hiring- of services and of power of attorney *636that the legal relation between the plaintiff and the defendant was the same as that between principal and agent.\n“IV. — The court erred in declaring that the principal contract and substantially the only one between the parties was that of the hiring of services and that the power of attorney was only accessory to the former.\n“V. — The court erred in holding that the defendant was entitled to revoke the agency given by her to the plaintiff defining his functions in the performance of the contract for his services.”\nThe theory of the appellant in this appeal is that though an agency may he terminated, at the pleasure of the principal, it can not be terminated in that manner when it is subsidiary to another and principal contract'.such as the hiring of services for a definite length of time and compensation, as is the case here.\nOur Civil Code defines agency as a contract by which á person binds himself to render' some service or to do something for the account or at the request of another; that in the absence of an agreement to the contrary the agency is presumed to be gratuitous; and that one of the manners of terminating an agency is by revocation. Sections- 1611, 1613 and 1634. Therefore, under our present laws, the agency may be for a compensation and may be revoked even if compensated for by an agreement or by the presumption of being so where the agent has for an occupation the performance of services of the kind to which the agency refers. The ground for the revocability of the agency is that the latter is an extension of the personality of the principal, because' the agent acts for the account and at the request of the principal and this constitutes at the same time an act of trust. In this connection Manresa, in his Commentaries on the Spanish Civil Code, when dealing with section 1732 thereof which is the equivalent to section 1634 of our code, says:\n“According to section 1732 one of the manners by which an agency may be terminated is by revocation of the power granted. That is to say, once the juridical relation has been created by the *637consent of the parties, the tvill of either will be sufficient to terminate the agency. Such will when exercised by the principal is called revocation. This means an exception to the general principles, and it rests on the fact that as the representation and trust are the main bases of the contract, it must be the will of the principal which must put an end to such representation. Furthermore, this being an act of trust, it must logically cease when the trust disappears. Were it otherwise the nature of the contract would be changed, turning the agency into a real conveyance of the personality, into something which is at variance with the principles of modern jurisprudence, and which would mean, if continued with that character of irrevo-cability, a survival of the servitude of the medieval behetrías. That is why, no doubt, eminent authors and civil law writers consider the-irrevocability as an essential element of the agency and, forbidding any stipulation to the contrary as opposed to its nature, they consider as axiomatic the maxim of Fiwita voluntatae, finitum est mandatum. Holding identical views, Bertier said: ‘that when a man trusts another with his property, the duration of the agency is understood to last as long as his confidence, because the principal does not part either in perpetuity or even for a certain time with the full exercise of his rights, the agency terminating whenever the principal makes up his mind to notify his will in that respect to his agent without the latter having any right to oppose it.’ This absolute concept of the revoeability is categorically explained by section 1733 which provides that the principal may revoke the agency at will.” Vol. XI, pages 556, 557.\nIt is true that, notwithstanding the right to revoke provided by the code, some commentators admit exceptions to the right to revoke the agency, Manresa himself saying that when the agency has been given in the interest of the principal and of a third person, or of the principal and agent alike, or when the agency is embodied in a clause of a symallag-matic contract, that is to say, that it is embodied in any other agreement subsidiary thereto, it shall not be revoked except by mutual dissent and it shall be governed by the principles established in this respect in the principal contract to which it is subsidiary. Likewise Sánchez Román says that* an apparent exception may be an agreement not to- revoke resulting from an obligation contracted by the *638principal or principals, when several, among* themselves, or with a third person other than the agent, by virtue of which and in order to carry out a contractual obligation, bilateral or plurilateral, of common interest, of which the granting of an agency forms a more or less principal part, the parties thereto bind themselves not to revoke such agency until the consummation of the capital purposes of the agreement, for the reason that such agency has been constituted for the benefit not only of the principal or principals but of all of them in regard to each other or of the principal who bound himself to a third party not to revoke for a consideration.\nThe Civil Code which sets down the principle of the re-vocability of the agency does not contain exceptions to that rule and whether the cases mentioned by the commentators quoted are exceptions thereto is a question which we need not consider at present because from an examination made by us of the documents used by the appellant for his contention we are convinced that the present case is not included in any of those established by the aforesaid authors as exceptions to the legal precept.\nThe, appellant alleges that there is here a principal contract, which is the contract of lease, to which the agency is a subsidiary contract, but we do not agree to that because though two contracts were executed there was really a contract of agency by which the appellee gave her representation to the appellant to render his services in the management of her property and that of her minor children for a certain compensation agreed upon. Such an agency was necessary for the agent to carry out the management of the property, and this was also shown by the fact that the separate document regarding the hiring of services was made dependent on the powers to be granted to him in the contract of agency, thus showing that the latter and not the contract of the hiring of services was the principal contract. This is also shown by the fact that a single instrument could have been executed embodying the agency, the consideration there*639for and the length, of time for which it had been executed without this last stipulation being' an obstacle to the revocar t.ion of the agency in view of its legal nature and the provisions of section 1634 already quoted and which grants to the principal the right to revoke the agency without regard to whether it is gratuitous or otherwise, notwithstanding the knowledge on the part of the legislators that the agency may be for a compensation and of having established the case where it is supposed to be compensated for; and as the law makes no distinction we can not make any.\nLet us quote Manresa in this connection. He says:\n“Another question that can be raised is whether there is any distinction for the purpose of revocation between a gratuitous agency and that for a compensation. Modern civil law writers are unanimous in asserting that in the_ case of a gratuitous agency there is no doubt whatever that the will of the principal is sufficiently powerful to terminate the contract; but in the ease of an agency for a compensation, as happens in the majority of cases nowadays, an injustice would be apparent because it is not only a question of considering the interests and the benefit of the principal but of breaking a stipulation and prejudicing the agent.\n“For those like us who profess the principle that where the law makes no distinction there is no room to distinguish, the question does not offer any doubt from the legal point of view. Section 1733 unreservedly provides that the principal may revoke the agency at will, and therefore it makes no difference whether the agency is gratuitous or for a consideration. Once the correctness of this construction is admitted, the question comes up as to whether the agent is entitled to compensation for the injury suffered by the termination of the agency. From the strict legal point it seems that he shbuld not be, because no compensation for the injury sustained by an agent could be demanded; for the legal exercise of a right by the principal; but equity may recommend such compensation, as some foreign jurisprudence has acknowledged. However, from the point of view of positive law, the only .one to -be recognized by the courts, such acknowledgment is of no consequence, because it would amount to taking the question from the positive law to the constituent law, from what it is to what it should be.” 11 Manresa, Spanish Civ. Code, pages 558. 559. ■ ■ '\n*640Indeed, the document in regard to the hiring of services does not constitute a contract independent from that of agency, nor is it principal to the latter, because it depended on the powers to be granted in the contract of agency and therefore although it set a time for its duration it could not change the rule of the revocability of the agency so as to establish the conclusion that the appellee had conveyed her personality for a certain number of years. Therefore, wd have to come to the conclusion that the judgment appealed from must be affirmed.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued May 4, 1926.","precedential_status":"Published","slug":"benitez-gomez-v-calzada-bonano"} {"case_name":"Struve v. Schwedler","case_name_full":"STRUVE v. SCHWEDLER","case_name_short":"Struve","citation_count":0,"citations":["23 F. Cas. 268","4 Blatchf. 23"],"court_full_name":"U.S. Circuit Court for the District of Southern New York","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Circuit Court for the District of Southern New York","court_type":"FA","date_filed":"1857-04-15","date_filed_is_approximate":false,"headnotes":"Case No. 13,551.
Copyright — How Secured.
Under section 4 of the copyright act of February 3d, 1831 (4 Stat. 437), in order to secure a copyright to a book, a printed copy of its title must be deposited in the proper clerk’s office, before its publication, and, within three months after its publication, a copy of it must be delivered to such clerk.
[Cited in Donnelley v. Ivers, 18 Fed. 594.]
[See Baker v. Taylor, Case No. 782.]
","id":8657706,"judges":"Nelson","opinions":[{"author_str":"Nelson","ocr":true,"opinion_id":8637553,"opinion_text":"\nNELSON, Circuit Justice.\nBesides the apparent title of the defendants to the edition of the six volumes of the history in question, derived under the agreement of Schluter with the plaintiff, and the printing and publication in pursuance thereof, there is another objection to the injunction asked for, to which no answer has been given. By the 4th section of the copyright act of February 3d, 1831 (4 Stat. 437), it is provided, that no person shall be entitled to the benefit of it, unless he shall, before publication, deposit a printed copy of the title of his book in the clerk’s office of the district court of the district in which the author resides, and shall, within three months from the publication of the book, deliver a copy of it to the clerk of the said district. In this case, neither of these steps was taken till some years after the publication, and after two editions had been printed, and the greater part of them sold. The motion for the preliminary injunction must, therefore, be denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"struve-v-schwedler","summary":"In equity. Thiswas an application for a provisional injunction, to restrain the defendants [Frederick Schwedler and another] from the publication of a work called “Gustav Struve’s Welt-Geschichte,” or “Gustav Struve’s History of the World,” for which the plaintiff claimed to have obtained a copyright. The defendants, in their answer, set up that, as early as the year 1852, the plaintiff made an arrangement with one William Schluter, the printer of a German newspaper in New York, to print certain parts of the work; that, in pursuance of such arrangement, six volumes of the same were printed and published between the year 1852 and the 1st day of October, 1854; that, by the terms of the agreement, the plaintiff was to receive from Schluter, and did receive, during the publication thereof, ten dollars per sheet for the manuscript of the work, and was also to participate in some degree in the . profits of the sales; and that the work was put on sale immediately on its first publication, and so continued until April, 1856, when Schlu-ter became unfortunate in business and made an assignment of his property for the benefit of his creditors, including the edition of the work then on hand, and also the stereotype plates of the same. He had also previously given a chattel mortgage upon the same to one Sebastian Sehovadderbeck, to secure a large indebtedness. The property was subsequently sold under the assignment and mortgage, at public auction; and the title of the defendants was derived from that sale. It was also shown that the copyright of the plaintiff was not taken out for the work until the 26th of April, 1856."} {"attorneys":"Michael Thomas Simpson, U.S. Attorney’s Office, Tallahassee, FL, Robert G. Davies, U.S. Attorney’s Office, Pensacola, FL, for Plaintiff-Appellee, Pamela C. Marsh, Pro Se, Karriece Quontrel Davis, Pro Se","case_name":"United States v. Davis","case_name_full":"United States v. Karriece Quontrel DAVIS","case_name_short":"Davis","citation_count":0,"citations":["667 F. App'x 763"],"court_full_name":"Court of Appeals for the Eleventh Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Eleventh Circuit","court_type":"F","date_filed":"2016-07-26","date_filed_is_approximate":false,"id":8697511,"judges":"Fay, Pryor, Wilson","opinions":[{"author_str":"Per Curiam","ocr":true,"opinion_id":8680633,"opinion_text":"\nPER CURIAM:\nKarriece Davis appeals the denial of his second motion for reconsideration of the district court’s decision not to compel the Government to file a Rule 35(b) motion. Davis bases his arguments on a provision of his plea agreement that provided if, in the United States Attorney’s sole discretion, Davis provided substantial assistance to the Government prior to or within one year of sentencing, then the U.S. Attorney would file a substantial assistance motion. We conclude that his appeal is foreclosed by an earlier decision from this court and thus affirm.\nDavis advanced substantially the same arguments in a motion four years ago. See United States v. Davis, 451 Fed.Appx. 876, 877-78 & n.2 (11th Cir. 2012) (per curiam). When presented with these arguments previously, we affirmed the district court’s decision to deny Davis’s motion to enforce specific performance of the plea agreement because (1) “the plea agreement gave the government sole discretion to determine whether Davis provided substantial assistance,” and (2) “[t]he record reflects that the Government refused to file the motion due to Davis’s untruthfulness and inconsistent cooperation, which is not an unconstitutional motive.” See id, at 878. Thus, Davis had failed to show he was entitled to relief.\n“The law of the case doctrine bars reliti-gation of issues that were decided, either explicitly or by necessary implication, in an earlier appeal of the same case.” United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005). Under that doctrine, we are bound by findings of fact and conclusions of law that we made in a prior appeal “unless (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a con*764trary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.” United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (per curiam).\nIt follows that our conclusions in the 2012 appeal bind us here unless one of the exceptions applies. We conclude that no exception saves Davis’s current appeal. Davis has not introduced substantially different evidence or argued for the applicability of any new, controlling precedent. Furthermore, our prior decision was not clearly erroneous.\nDavis’s only new claim—that the Government’s refusal to file a Rule 35(b) motion violates his equal protection rights because the Government filed such motions for other, similarly situated persons—was implicitly resolved in our 2012 decision. At that time, we concluded the Government refused to file a Rule 35(b) motion in light of Davis’s dishonesty and inconsistent cooperation. That ruling forecloses us from reassessing the extent of Davis’s assistance and reviewing the Government’s refusal to file. Accordingly, we affirm.\nAFFIRMED.1\n\n. Davis’s motion for leave to amend his reply brief is GRANTED. We are in receipt of the supplemental materials Davis submitted and considered the same in deciding this appeal.\n\n","per_curiam":true,"type":"020lead"}],"precedential_status":"Published","slug":"united-states-v-davis"} {"attorneys":"Joseph Robert Murray, II, Murray Law Firm, PLLC, Ripley, MS, for Plaintiff., Richard Jarrad Garner, Benjamin B. Morgan, Adams and Reese LLP, Ridge-land, MS, for Defendants.","case_name":"Papagolos v. Lafayette County School District","case_name_full":"Catherine PAPAGOLOS v. LAFAYETTE COUNTY SCHOOL DISTRICT Michael McPhail, Board Member in His Official and Individual Capacities and Jeff Nelson, Athletic Director, in His Official and Individual Capacities","case_name_short":"Papagolos","citation_count":0,"citations":["972 F. Supp. 2d 912"],"court_full_name":"District Court, N.D. Mississippi","court_jurisdiction":"Mississippi, MS","court_short_name":"N.D. Mississippi","court_type":"FD","date_filed":"2013-09-16","date_filed_is_approximate":false,"id":8728443,"judges":"Davidson","opinions":[{"author_str":"Davidson","ocr":true,"opinion_id":8711641,"opinion_text":"\n\nMEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART ALL DEFENDANTS’ MOTION TO DISMISS AND DENYING AS MOOT DEFENDANTS’ McPHAIL AND NELSON’S MOTION FOR QUALIFIED IMMUNITY\n\nGLEN H. DAVIDSON, Senior District Judge.\nPresently before the Court is a motion to dismiss [9] pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by Defendants Lafayette County School District, Michael McPhail, and Jeff Nelson, as well as a motion for qualified immunity [13] filed by Defendants Michael McPhail and Jeff Nelson. Upon due consideration and for the reasons stated below, the Court finds that the motion to dismiss [9] filed by Defendants Lafayette County School District, Michael McPhail, and Jeff Nelson should be granted in part and denied in part, and that the motion for qualified immunity [13] filed by Defendants Michael McPhail and Jeff Nelson should be denied as moot.1\n\nA. Factual and Procedural Background\n\nOn December 13, 2011, Plaintiff Catherine Papagolos (“Plaintiff’), former head coach for the Lafayette County School District’s girls’ softball team and advanced fitness teacher, filed this action against Defendants Lafayette County School District (“LCSD”); Michael McPhail, a member of the LCSD school board (“Defendant McPhail”), in his individual and official capacities; and Jeff Nelson, athletic director of LCSD (“Defendant Nelson”), in his individual and official capacities. Plaintiff asserts causes of action for discrimination under Title IX; retaliation under Title IX; gender discrimination under Title VII; Equal Pay Act violations; age discrimination under the Age Discrimination in Employment Act (the “ADEA”); First Amendment free speech retaliation under 42 U.S.C. § 1983; First Amendment free speech violation under 42 U.S.C. § 1983; Fourteenth Amendment procedural and substantive due process violations under 42 U.S.C. § 1983; conspiracy under 42 U.S.C. § 1985; malicious interference with employment under state law; and wrongful termination under state law.\nIn lieu of answering the complaint, Defendants LCSD, McPhail, and Nelson have filed a motion to dismiss [9] under Rule 12(b)(6) challenging the viability of all claims asserted against LCSD except the Title IX claims and the Title VII claims, as well as the viability of all claims asserted against Defendants McPhail and Nelson in their individual and official capacities.\nAdditionally, Defendants McPhail and Nelson have filed a motion for qualified immunity [13] on the First Amendment free speech violation, First Amendment free speech retaliation, and Fourteenth Amendment due process violation claims under Section 1983, as well as the Section 1985 conspiracy claims of First Amendment free speech violation and equal protection violation. Because the Court finds that the Section 1983 and Section 1985 claims must be dismissed for failure to state a claim under Rule 12(b)(6), the Court need not address the separate arguments for dismissal on qualified immunity grounds.\n\n*918\nB. Rule 12(b)(6) Standard\n\nMotions to dismiss pursuant to Rule 12(b)(6) “are viewed with disfavor and are rarely granted.” Kocurek v. Cuna Mut. Ins. Soc’y, 459 Fed.Appx. 371, 373 (5th Cir.2012) (citing Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir.2003)). “The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when all well-pleaded facts are assumed true and are viewed in the light most favorable to the plaintiff.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010) (citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007)).\nThe complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Under the Rule 12(b)(6) standard, all well-pleaded facts are viewed in the light most favorable to the plaintiff, but plaintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.” Webb v. Morelia, 522 Fed.Appx. 238, 241 (5th Cir.2013) (per curiam) (quoting City of Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 152-53 (5th Cir.2010)). “[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Id. (quoting Femandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.1993)). “Threadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In a Rule 12(b)(6) determination, the court must not evaluate the likelihood of the claim’s success, but instead ascertain whether the plaintiff has stated a legally cognizable claim that is plausible. Lone Star Fund, 594 F.3d at 387 (citing Iqbal, 556 U.S. 662,129 S.Ct. 1937).\n\nC. Analysis and Discussion\n\n1. Title IX Claims Against Defendants McPhail and Nelson\nDefendants first challenge the viability of the Title IX claims asserted against Defendants McPhail and Nelson. Plaintiff concedes that she is not asserting her Title IX claims against Defendants McPhail and Nelson. See Pl.’s Mem. Br. Supp. Resp. Opp’n to Defs.’ Mot. Dismiss [16] at 8. The Court thus finds that the Title IX claims against Defendants McPhail and Nelson shall be dismissed. In their Rule 12(b)(6) motion, Defendants do not challenge the Title IX claims brought against the LCSD. Thus, the Title IX claims against Defendants McPhail and Nelson shall be dismissed, but the Title IX claims against LCSD shall remain viable.\n2. Title VII Claims Against Defendants McPhail and Nelson\nDefendants next challenge the viability of the Title VII claims asserted against Defendants McPhail and Nelson. Plaintiff alleges under Title VII unlawful discharge based on gender discrimination and retaliation suffered for reporting discriminatory activity. Defendants contend that Title VII claims can only be made against an employer, and that because fellow employees are not subject to suit on Title VII, such claims must be dismissed against Defendants McPhail and Nelson. Plaintiff recognizes that this is a correct statement of the law as it pertains to gender and retaliation claims brought under Title VII, but argues that controlling Fifth Circuit precedent is erroneous. See id. *919The Court is bound by Fifth Circuit precedent and thus finds that Defendants’ argument that the Title VII claims for gender discrimination and retaliation against Defendants McPhail and Nelson is well taken and such claims shall be dismissed. See, e.g., Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.1994) (“The definition of the term ‘employer’ in [42 U.S.C.] § 2000e(b) does not include individuals who do not otherwise qualify as employers under the statute.”). Defendants do not challenge the Title VII claims brought against the LCSD. Thus, although the Title VII claims for gender discrimination and retaliation against Defendants McPhail and Nelson shall be dismissed, the Title VII claims for gender discrimination and retaliation against LCSD shall remain viable.\n3. Equal Pay Act Violation Claim Against Defendants McPhail and Nelson\nDefendants next challenge the viability of the Equal Pay Act violation claim asserted against Defendants McPhail and Nelson. Defendants contend that such claim must be dismissed against Defendants McPhail and Nelson, as Defendants McPhail and Nelson are not employers for purposes of the Equal Pay Act, which imposes liability only on employers for gender-based salary discrepancies. For the reasons stated below, the Court finds this argument is well taken.\nThe United States Supreme Court has stated\nTitle VII and the Equal Pay Act primarily govern relations between employees and their employer, not between employees and third parties. We do not suggest, of course, that an employer can avoid his responsibilities by delegating discriminatory programs to corporate shells---- [T]he Equal Pay Act applies to “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d).\nCity of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 718 n. 33, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). To determine whether an employer/employee relationship exists, the Fifth Circuit utilizes the “economic reality” test. Gray v. Powers, 673 F.3d 352, 354-55 (5th Cir. 2012); see Williams v. Henagan, 595 F.3d 610, 620 (5th Cir.2010); Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir.1990); see also Goldberg v. Whitaker House Co-op., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961).\nIn the economic reality test, the Court must consider whether the alleged employer “(1) possessed the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Gray, 673 F.3d at 355 (quoting Williams, 595 F.3d at 620). “Under that test, the right to control the details and means by which the work is to be performed is the most important factor.” Craftr-Palmer v. State Farm Ins. Co., 157 F.3d 903, 1998 WL 612388, at *1 (5th Cir.1998) (per curiam) (citing Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir.1990) (internal quotation marks omitted)). In cases where there may be more than one employer, such as the case sub judice, the Court “must apply the economic realities test to each individual or entity alleged to be an employer and each must satisfy the four part test.” Id. (citing Watson, 909 F.2d at 1556). Thus, here, the Court will apply the economic realities test to both Defendants McPhail and Nelson, as Plaintiff maintains that both of them were her employer for purposes of the Equal Pay Act.\n\n*920\n1. Power to Hire and Fire Employees\n\nWith respect to the first factor, as Defendants argue, it is well established that school boards in Mississippi are vested with final authority for ultimate employment decisions, such as dismissal and non-renewal. See Yarbrough v. Camphor, 645 So.2d 867, 870 (Miss.1994); Tutwiler v. Jones, 394 So.2d 1346, 1348 (Miss.1981). Thus, Plaintiff cannot establish that either Defendant McPhail or Defendant Nelson, acting alone, hired or fired her.\n\n2. Supervision or Control of Employee Work Schedules or Conditions of Employment\n\nWith respect to the second factor, the Court looks to see whether Plaintiff has alleged that Defendant McPhail and/or Defendant Nelson supervised or controlled her work schedules or conditions of employment.\n\nDefendant McPhail\n\nPlaintiff alleges that Defendant McPhail, as a board member, had some control over LCSD athletic teams’ financial issues and had “co-signed for a bank note so the baseball team could get a state-of-the-art pitching machine”; Plaintiff further alleges that Defendant McPhail “had told [Jimmy Lee Murphey, LCSD’s assistant athletic director,] he was not going to pay for the work [Murphey had] done on the softball dugout.” PL’s Compl. [1] ¶38. Plaintiff avers that Defendants McPhail and Nelson came to her office before school started and asked her not to go to the school board and speak about her concerns of inequality and stated that “they would take care of the lack of coaches and inequalities among the softball and baseball teams.” Id. ¶ 47. Plaintiff argues in her response to Defendants’ motion that she has alleged that Defendant McPhail “intimidated [Plaintiff] into removing her name from a board agenda, thus preventing her from informing the board of the discrepancies in pay”; told Plaintiff after that meeting that she “may have won some battles, but he would win the war”; and (3) “further instructed male coaches not to disclose their actual stipends and threatened employees with termination if they assisted in any investigation questioning LCSD’s coaching stipends.” PL’s Mem. Br. Supp. Resp. Opp’n to Defs.’ Mot. Dismiss [16] at 10. None of her allegations or argument support that Defendant McPhail supervised or controlled her work schedules or conditions of employment. Thus, Plaintiff has failed to satisfy the second factor with respect to Defendant McPhail.\n\nDefendant Nelson\n\nThe Court now turns to whether Plaintiff has alleged that Defendant Nelson supervised or controlled her work schedules or conditions of employment. It is clear to the Court from the face of Plaintiffs complaint that Defendant Nelson, as athletic director, supervised at least certain key aspects of Plaintiffs work. She alleges that Defendant Nelson “named” the individuals who served as Plaintiffs assistant coach during her time at LCSD, see PL’s Compl. [1] ¶ 26; “moved the girls’ softball team training period” in a preliminary draft for the 2011-2012 school year, id. ¶ 61; “promised [to] address” Plaintiffs concerns about the alleged inequalities she faced as the girls’ head softball coach with the LCSD school board, see id. ¶¶ 46-47, 64; and “reassigned Plaintiff from her middle school advance fitness teaching post to study halls at the middle school” and “released Plaintiff from all her coaching obligations” — in effect “demoting]” her, see id. ¶¶ 72, 77. It is apparent from Plaintiffs complaint that she felt that Defendant Nelson was her supervisor, as Defendant Nelson was the one she voiced her numerous concerns to about her assistant coaches, see id. ¶ 27-28, as well as her *921concerns about the alleged inequalities the girls’ softball team faced in comparison with the boys’ baseball team, see id. ¶¶ 46, 60. It is also apparent, however, from the face of Plaintiffs complaint, that Defendant Nelson was subordinate to the LCSD school board, see id. ¶¶ 52, 64, 70, 78, 80, and at least at times acted more as a mediator than supervisor between the various LCSD athletic teams, see id. ¶ 60. Plaintiff argues in her response to Defendants’ motion that Defendant Nelson also “cooked the books in dealing with coaching stipends to hide the fact that men got paid more than women”; “after Plaintiff confronted [Defendant Nelson] on the salary inequities, Defendant Nelson immediately went to the board and recommended [Plaintiff] be removed from her position as softball coach”; and that “[t]he Board followed his lead and rubber[-]stamped his decision.” PL’s Mem. Br. Supp. Resp. Opp’n to Defs.’ Mot. Dismiss [16] at 10. Overall, the Court finds that Plaintiff has alleged that Defendant Nelson supervised or controlled her work schedules or conditions of employment and thus has satisfied the second factor with respect to Defendant Nelson.\n\nS. Determination of the Rate or Method of Payment\n\nWith respect to the third factor, school boards in Mississippi are vested with the authority to assign the salaries of licensed employees. See Miss.Code Ann. § 37-9-37. Thus, Plaintiff cannot establish that either Defendant McPhail or Defendant Nelson, acting alone, determined the rate and method of her pay.\n\nk- Maintenance of Employee Records\n\nPlaintiff does not allege that either Defendant McPhail or Defendant Nelson maintained employment records. Thus, Plaintiff has not satisfied the fourth factor.\nIn sum, applying the economic reality test to Defendant McPhail and then to Defendant Nelson, the Court finds that Plaintiff has failed to allege that either Defendant McPhail or Defendant Nelson were her employer for purposes of the Equal Pay Act. She has alleged that Defendant Nelson supervised, at least somewhat controlled her work schedule, and controlled some conditions of her employment. However, meeting this factor alone is insufficient to establish that Defendant Nelson was her employer for purposes of the Equal Pay Act. Plaintiff has not alleged that Defendant McPhail and/or Defendant Nelson were sufficiently involved in the operation of her employment to be her employer for purposes of the Equal Pay Act, and thus, this claim is dismissed. Defendants do not challenge Equal Pay Act violation brought against the LCSD. Thus, although the Equal Pay Act claim against Defendants McPhail and Nelson shall be dismissed, the Equal Pay Act claim against LCSD shall remain viable.\n4. ADEA Age Discrimination Claim Against Defendants McPhail and Nelson\nDefendants next contend that Plaintiffs ADEA age discrimination claim against Defendants McPhail and Nelson fails because the ADEA is limited to employers and an employer’s agent in his official capacity. 29 U.S.C. § 628. Plaintiff recognizes that this is a correct statement of the law, but argues that controlling Fifth Circuit precedent is erroneous. See PL’s Mem. Br. Supp. Resp. Opp’n to Defs.’ Mot. Dismiss [16] at 11. The Court is bound by Fifth Circuit precedent and thus finds that Defendants’ argument that the ADEA age discrimination claim against Defendants McPhail and Nelson is well taken and such claim shall be dismissed.\n*9225. ADEA Age Discrimination Claim Against LCSD\nDefendants next contend that Plaintiffs ADEA age discrimination claim against LCSD fails. Plaintiff alleges that LCSD unlawfully terminated her because of her age in violation of the Age Discrimination in Employment Act of 1967 (the “ADEA”), 29 U.S.C. § 621 et seq. Defendants contend that Plaintiff has failed to allege facts that plausibly suggest that she was actually discharged due to her age and thus that her ADEA claim fails and must be dismissed. The Court finds Defendants’ argument is not well taken.\nThe ADEA provides that “it shall be unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). To establish a prima facie ADEA case, the plaintiff must show “(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.” Berquist v. Washington Mut Bank, 500 F.3d 344, 349 (5th Cir.2007) (quotation marks and citation omitted). Ultimately, “a plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir.2010); see Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343,174 L.Ed.2d 119 (2009) (ADEA claim requires but-for causation); see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2523, 186 L.Ed.2d 503 (2013) (“the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct”) (citing generally Gross).\nAt the Rule 12(b)(6) stage, however, the plaintiff need not plead a prima facie ADEA case to state a plausible claim of age discrimination under the ADEA. Flores v. Select Energy Sews., L.L.C., 486 Fed.Appx. 429, 432 (5th Cir.2012) (per curiam); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (“The prima facie case under McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ] is an evidentiary standard, not a pleading requirement.”). However, “[t]he elements of a prima facie case are helpful ... in framing what constitutes an ADEA claim.” Flores, 486 Fed.Appx. at 432.\nLooking to the face of Plaintiffs complaint, the Court finds that the Plaintiff alleges that (1) she was discharged, Pl.’s Compl. [1] ¶¶ 26, 141, 145-47, 149; (2) she was qualified for the position of head Softball coach, id. ¶ 26; (3) she is a member of a protected class of individuals over forty years of age, id. ¶ 129; and (4) she was replaced by a younger employee “with little or no experience coaching a team,” id. ¶¶ 82, 137. Plaintiff has also alleged that Defendants’ stated reasons for allegedly terminating Plaintiff from the head Softball coach position were mere pretext. See id. ¶ 141. The Court finds that Plaintiffs factual allegations are sufficiently plausible to support an ADEA claim of age discrimination at the early Rule 12(b)(6) stage of this case. Thus, the Court shall sustain Plaintiffs ADEA age discrimination claim against LCSD.\n6. Section 1983 Claims Against All Defendants\nDefendants next challenge the viability of Plaintiffs Section 1983 claims. Plaintiff alleges pursuant to Section 1983 that De*923fendants violated her right to First Amendment right to free speech, retaliated against her for exercising her right to free speech in violation of the First Amendment, and deprived her of her constitutionally protected property interest in her head softball coach position without due process of law in violation of the Fourteenth Amendment.\nSection 1983 provides in pertinent part:\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,\n42 U.S.C. § 1983. “To state a claim under [Section] 1983, a plaintiff must [1] allege the violation of a right secured by the Constitution and laws of the United States, and [2] must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citing cases). The Fifth Circuit has recognized that to sustain a Section 1983 claim, a plaintiff is required to assert “claims of specific conduct and actions giving rise to a Constitutional violation.” See Baker v. Putnal, 75 F.3d 190, 195 (5th Cir.1996) (emphasis added). As shown below, the Court finds that Plaintiff has failed to allege the violation of either a First Amendment or Fourteenth Amendment constitutional right; thus, the Court need not reach whether Plaintiff has shown that the alleged acts were committed by a person acting under color of state law.\na. First Amendment Claims under Section 1983 Against All Defendants\nPlaintiff claims that under Section 1983 Defendants violated her First Amendment right to free speech and removed her as head girls’ softball coach in retaliation for engaging in speech protected by the First Amendment. To establish a Section 1983 free speech retaliation claim, Plaintiff must ultimately prove that “(1) [s]he suffered an adverse employment action; (2) [s]he spoke as a citizen, and not as a public employee, on a matter of public concern; (3) [her] interest in the speech outweighed the employer’s interest in promoting efficiency; and (4) the speech precipitated the adverse employment action.” Briscoe v. Jefferson County, 500 Fed. Appx. 274, 277 (5th Cir.2012) (per curiam) (citing Garcetti, 547 U.S. at 417, 126 S.Ct. 1951). Plaintiff has alleged that she suffered an adverse employment action by being terminated from her position as head girls’ softball coach. See Pl.’s Compl. [1] ¶¶26, 141, 145-47, 149. However, because Plaintiff does not allege facts supporting that she was speaking as a citizen on a matter of public concern, Plaintiff fails to state either a First Amendment free speech claim or a free speech retaliation claim under Section 1983.\nIt is well established that “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citations omitted). The idea that “teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work” is a *924“premise that has been unequivocally rejected in numerous ... decisions of the [Supreme] Court.” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti 547 U.S. at 419, 126 S.Ct. 1951 (citing Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).\nFirst, the plaintiff must show he or she was speaking as a citizen not as part of his or her public job. See Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (citing Mills v. City of Evansville, 452 F.3d 646, 647 (7th Cir.2006)). The Court’s focus is not on the content of Plaintiffs alleged speech, but rather “the role the speaker occupied when [s]he said it.” See id. “An employee is not speaking as a citizen — but rather in his role as an employee — when he ‘makes statements pursuant to his official duties.’ ” Haverda v. Hays County, Tex., 723 F.3d 586 (5th Cir.2013) (quoting Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir.2007) (in turn quoting Garcetti 547 U.S. at 421, 126 S.Ct. 1951)). “Activities required by one’s position or undertaken in the course of performing one’s jobs are activities pursuant to official duties.” Id. (citing Williams v. Dali. Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir.2007)). Thus, “[e]ven if the speech is of great social importance, it is not protected by the First Amendment so long as it was made pursuant to the worker’s official duties.” Williams, 480 F.3d at 692 (citing Garcetti 547 U.S. at 421, 126 S.Ct. 1951).\n“Formal job descriptions, although relevant, are not dispositive, as they ‘often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.’ ” Elizondo v. Parks, 431 FedAppx. 299, 303 (5th Cir.2011) (per curiam) (quoting Garcetti 547 U.S. at 424-25, 126 S.Ct. 1951). Instead, “the inquiry is a ‘practical one,’ and the controlling factor is whether the plaintiffs expressions were made pursuant to one of the numerous duties for which the plaintiff was employed.” Id. (quoting Garcetti 547 U.S. at 421, 424, 126 S.Ct. 1951). “Activities undertaken in the course of performing one’s job are activities pursuant to official duties.” Williams, 480 F.3d at 693.\nIn the case sub judice, the alleged speech in question consisted of statements made by Plaintiff concerning perceived gender inequality at LCSD. Plaintiff reiterates in her response that the speech in question articulated concerns “that female athletes were getting short[-]ehanged in terms of practice and equipment” and that “female coaches were not being paid the same as their male counterparts.” Pl.’s Mem. Br. Supp. Resp. Opp’n to Defs.’ Mot. Dismiss [16] at 13 (citing PL’s Compl. [1] ¶¶ 18-34, 40-44, 57-63). Plaintiff maintains that Defendants learned that she had made the statements and that she was planning, as a private citizen, to address the school board in a school board meeting. Id. at 13-14 (citing PL’s Compl. [1] ¶¶ 46-49). Plaintiff further maintains that in a closed door meeting Defendants McPhail and Nelson “told [her] not to address the school board and promised to fix the inequalities” and that “just two months after Defendants McPhail and Nelson told [Plaintiff] she could not address the board, [Plaintiff] was stripped of her coaching duties and her teaching duties (she was *925reassigned to study hall).” Id. at 14 (citing Pl.’s Compl. [1] ¶¶ 66-75, 79). Plaintiff contends that this speech was a matter of public concern, because “LCSD was committing brazen acts of discrimination against female athletes and was ‘cooking the books’ to hide the fact that it was paying male coaches substantially more than female coaches” and “the taxpaying citizens of Lafayette County have a right to know how their money is being spent and whether their board members are using their position of power as a tool of discrimination.” Id. at 16 (citing Pl.’s Compl. [1] ¶¶ 18-34, 40-44, 57-63).\nFirst Amendment case law instructs us as follows. In Pickering, the United States Supreme Court held that a teacher’s First Amendment rights were violated when the school board dismissed him for sending a letter to a newspaper in connection with the school board’s recently proposed tax increase that “constituted, basically, an attack on the [sjchool [b]oard’s handling of 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the bond issue.” 391 U.S. at 564-66, 88 S.Ct. 1731. The Fifth Circuit has summed up the Supreme Court’s holding in Pickering as follows: “Letters to the editor, supporting a candidate during a campaign, are a unique form of speech that embody the very essence of the First Amendment and require its full protection.” Haverda, 723 F.3d 586 (citing Pickering, 391 U.S. 563, 88 S.Ct. 1731, and other cases). Thus, a teacher who writes a letter to a local newspaper addressing the funding policies of the school board can be acting as a citizen. See Williams, 480 F.3d at 693 (citing Pickering, 391 U.S. at 563, 88 S.Ct. 1731).\nSimilarly, a teacher who complains to her principal about the school’s discriminatory hiring practices can be acting as a citizen. See id. (citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979)). In Givhan, a case brought at the height of school desegregation orders, a junior high English teacher was dismissed from her employment at the end of the school year for refusing to administer standardized tests to her students and other alleged acts of non-cooperation with the school, including “private encounters between [the plaintiff] and the school principal in which [the plaintiff] allegedly made ‘petty and unreasonable demands’ in a manner variously described by the principal as ‘insulting,’ ‘hostile,’ ‘loud,’ and ‘arrogant.’ ” See Givhan, 439 U.S. at 411, 411 n. 1, 99 S.Ct. 693. The United States Supreme Court held that the fact that the plaintiffs complaints and opinions concerning the school’s allegedly racially discriminatory practices were made privately to her principal did not remove her comments from the purview of First Amendment protection, and the Supreme Court remanded the case for the factual determination of whether the plaintiff would have been terminated regardless of her “demands.” Id. at 412-17, 99 S.Ct. 693. It is important to note that neither the private expression of the comments nor the contended nature of the comments — variously described by the school principal as “insulting,” “hostile,” “loud,” and “arrogant” — were sufficient to remove the comments from First Amendment protection. See id. at 412, 99 S.Ct. 693. Thus, a teacher who expresses vehement criticisms to her principal that certain school policies and procedures are racially impermissible can be acting as a citizen.\nHowever, a school athletic director and head football coach who submits memoranda to his principal outlining his concerns *926with the school district’s handling of school athletic funds can be acting in his official capacity as a public employee, not as a citizen, if the memoranda focus on his daily operations as a coach, indicate the school’s actions were “hurt[ing his] ability to provide ... student/athletes with critical items and/or materials necessary for competition,” and indicate that he needed to consult with his principal in order to be able to purchase equipment and enter competitions. Williams, 480 F.3d at 690-91, 694. The Fifth Circuit reasoned in Williams that “[s]imply because [the plaintiff] wrote memoranda, which were not demanded of him, does not mean he was not acting within the course of performing his job.” Id. at 694. And despite the plaintiffs arguments to the contrary, the Fifth Circuit held that “[t]he memoranda were not written from [the plaintiffs] perspective as a father and taxpayer.” Id. The Fifth Circuit distinguished Williams from Pickering, in which the Supreme Court had held that a teacher’s reporting of amounts the school district had expended on athletics “were matters of public record [and an issue of public concern] on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer,” and thus that he was acting as a citizen. See Pickering, 391 U.S. at 572, 88 S.Ct. 1731. The Fifth Circuit explained that the Williams plaintiff, unlike the Pickering plaintiff, “had special knowledge” of the school’s budget as athletic director and head football coach and “was also experienced with standard operating procedures for athletic departments” and even his accusatory remarks in the memoranda were “part-and-parcel of his concerns about the program he ran.” Williams, 480 F.3d at 694. Thus, unlike the Pickering plaintiff, the Williams plaintiff was acting in the course of performing his job as athletic director and his speech was consequently not protected by the First Amendment. Id.; see also Elizondo, 431 Fed.Appx. at 304 (state university employee who made statements to his supervisor about company’s budget shortfall and how his job reassignment would impact his workload, salary, and reporting duties was acting in course of his official duties); Davis v. McKinney, 518 F.3d 304, 315 (5th Cir.2008) (audit manager who wrote letter to university president and her immediate supervisor discussing concerns about the university’s inadequate response to her internal computer pornography investigation was acting in course of her official duties); Nixon v. City of Houston, 511 F.3d 494, 498-99 (5th Cir.2007) (police officer who made comments at crime scene to media was acting in course of his official duties).\nIn Charles v. Grief, the Fifth Circuit held that an employee of a state lottery commission who sent an e-mail to high-ranking commission officials raising concerns about racial discrimination and retaliation against him and other minority employees of the commission was acting as a citizen, but the Fifth Circuit explained that “most significantly” in that case, “[the plaintiffs] speech — unlike that of the plaintiffs in Garcetti and Williams — was not made in the course of performing or fulfilling his job responsibilities, was not even indirectly related to his job, and was not made to higher-ups in his organization ... but was communicated directly to elected representatives of the people.” Charles v. Grief, 522 F.3d 508, 509-10, 514 (5th Cir. 2008).\nSimilarly, in Davis v. McKinney, although the Fifth Circuit held that the audit manager was acting in the course of her official duties when she wrote to the university president and her immediate supervisor articulating her concerns about the university’s inadequate response to her internal pornography investigation, the *927Fifth Circuit also held that the audit manager was not acting in the course of her official duties, and was thus a citizen, when she wrote the portion of her letter concerning the number of vice presidents and related issues, as “the topic does not relate to computer use or the internal audit department specifically” and “[t]here was no financial component to [the plaintiffs] position.” Davis, 518 F.3d at 315.\nKeeping all of this in mind, the Court turns to Plaintiffs complaint in the ease sub judice. Taking Plaintiffs allegations as true, which the Court must do at the Rule 12(b)(6) stage, Plaintiff made comments about the alleged inequities her female student athletes and she, as the head softball coach, faced. Her comments were made concerning the salary and stipend she was paid as a coach compared with that of her male counterparts, the fact that her assistant coaches were not paid and were not full-time staff unlike the other LCSD athletic teams, the amount of funding her team received for equipment versus that of other LCSD athletic teams, as well as other various issues the team faced, such as equal access to school facilities. See Pl.’s Compl. [1] ¶¶ 37-46, 66. Like the Williams plaintiff, this Plaintiffs comments focused on the daily operations of her team, including budgetary concerns that would impact Plaintiffs ability as a coach. Like the Williams plaintiff, this Plaintiff had special knowledge of the school’s budget as a head coach and her experience as a coach indicated she was experienced with standard operating procedures for athletic departments in general. Also, like the Williams plaintiff, this Plaintiffs remarks were part-and-parcel of her concerns about the program she ran and the terms of her own position. For all of these reasons, the Court finds that Plaintiff, in making her comments and planning to make the comments at the school board meeting, was acting in the course of performing her job as head softball coach, and her speech was consequently not protected by the First Amendment. Thus, Plaintiffs allegations of a First Amendment free speech claim and her free speech retaliation claim, both brought under the auspices of Section 1983, shall be dismissed for failure to state a claim. The Court now turns to examine Plaintiffs Fourteenth Amendment due process violation claim brought under Section 1983.\nb. Fourteenth Amendment Substantive and Procedural Due Process Claims under Section 1983 Against All Defendants\nPlaintiff maintains that she had a constitutionally protected liberty and/or property interest in her continued employment as LCSD’s head softball coach which was deprived by Defendants. Plaintiff maintains that her complaint alleges two theories supporting a Fourteenth Amendment due process violation: that her rights were violated when Defendants barred Defendant McPhail from testifying at her non-renewal hearing, and that her rights were violated when she was stripped of her softball duties and reassigned to study hall while her 2010-2011 contract was still in full force. See Pl.’s Mem. Br. Supp. Resp. Opp’n [16] at 22. Defendants maintain that Plaintiffs allegations fail to state a claim on either ground. For the reasons stated below, the Court finds that Plaintiffs allegations fail to establish that she had any cognizable liberty or property interest in her continued employment as LCSD’s head softball coach, and thus that her allegations fail to state a claim under Section 1983 that her Fourteenth Amendment due process rights were violated.\nTo state a Fourteenth Amendment due process claim under Section 1983, “a plaintiff must first identify a protected life, liberty or property interest and *928then prove that governmental action resulted in a deprivation of that interest.” Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir.2001). “The threshold requirement of any due process claim is the government’s deprivation of a plaintiffs liberty or property interest.” McCasland v. City of Castroville, 514 Fed.Appx. 446, 448 (5th Cir. 2013) (per curiam) (quoting DePree v. Saunders, 588 F.3d 282, 289 (5th Cir. 2009)). Therefore, unless Plaintiff has an entitlement that is sufficiently definite to be considered a liberty or property interest, the Due Process clause does not come into play. See id.\nAccording to Plaintiff, she had an expectation of continued employment as LCSD’s head softball coach and an advanced fitness teacher, because she was removed from her head softball coach and teaching position during the school year and was non-renewed for the following school year, in effect dismissed from her position and reassigned to study hall. Plaintiff contends that Mississippi law provides its certified teachers due process protections in such situations and creates a protectable property or liberty interest in employment. See PL’s Mem. Br. Supp. Resp. Opp’n to Defs.’ Mot. Dismiss [16] at 24-25. For the reasons stated below, the Court finds that Plaintiff did not have a property or liberty interest in her employment beyond the 2010-2011 school year.\nPlaintiff alleges that she was first employed by LCSD to be a physical education teacher, as well as the head coach to LCSD’s girls’ softball team for 2007-2008 school year. PL’s Compl. [1] ¶¶ 16-17. Plaintiff alleges that her liberty and/or property interest in her continued employment was deprived by Defendants when they “stripp[ed] her of her coaching duties” prior to the season’s end and “reassigned Plaintiff from her middle school advance fitness teaching post to study halls at the middle school.” See PL’s Compl. [1] ¶¶ 69, 72, 73, 75. Plaintiff further alleges that “[o]n or about May 2, 2011, Plaintiff received a letter ... informing her Defendant Nelson had removed her from her position of softball coach permanently.” Id. ¶ 83. Plaintiff attaches the letter to her complaint which provides that Plaintiff was removed from her coaching position for the 2011-2012 school year due to “[unsatisfactory w[i]n/loss record with no playoff wins in a three[-]year period”; “[u]nsatisfactory ability to work with assistant coaches,” as “three assistant coaches left softball program in a three[-]year period”; and “[unsatisfactory ability to work with other coaches and sports programs, such as soccer and volleyball, in athletic department by not being considerate of the sport in season.” May 2, 2011 LCSD Letter to Pl. [1-7] at 1. On June 28, 2011, the LCSD sent Plaintiff a letter, which is attached to her complaint, stating that following Plaintiffs nonrenewal hearing, the school board had decided not to renew Plaintiffs employment contract, but that she was recommended for renewal with a contract for the 2011-2012 school year and yearly salary of $41,305.00. See June 28, 2011 LCSD Letter to PL [1-10] at 1. For all the reasons stated below, Plaintiff has failed to allege that she had a constitutionally protected liberty or property interest in her continued employment as LCSD’s head softball coach.\n\nProperty Interest\n\nFirst, Plaintiff has failed to allege a viable property interest. Property interests are not created by the Constitution. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Rather, whether Plaintiff possessed such a property interest is “determined by reference to state law,” see Wells v. Hico Indep. Sch. Dist., *929736 F.2d 243, 252 (5th Cir.1984), and must “stem from independent sources such as state statutes, local ordinances, existing rules, contractual provisions, or mutually explicit understandings,” see Blackburn v. City of Marshall, 42 F.3d 925, 936-37 (5th Cir.1995).\nPlaintiffs contract for the 2010-2011 school year which Plaintiff attaches to her complaint, see Contract of Employment [1-1], did not create a protected property interest in continued employment. The contract indicates Plaintiff was employed as a “classroom teacher” from August 2, 2010 until May 20, 2011. See id. at 1. Any expectation of employment Plaintiff had beyond the one-year term of her contract did not arise from the terms of the contract itself. See Markwell v. Culwell, 515 F.2d 1258, 1259 (5th Cir.1975) (per curiam) (holding that teacher’s property interest in his employment was “limited by the year-to-year contract and his probationary status”). At best, therefore, Plaintiffs expectation that she would continue to serve in her same position beyond the term of her contract was a unilateral expectation in continued employment that was not reflected in the agreement between Plaintiff and LCSD. A unilateral expectation of continued employment does not create a constitutionally protected property interest. Evans v. City of Dallas, 861 F.2d 846, 850 (5th Cir.1988); see also Roth, 408 U.S. at 577, 92 S.Ct. 2701 (“To have a property interest in a benefit, a person clearly must have ... more than a unilateral expectation of it.”).\nSecond, the contract provides that Plaintiff was employed as a “classroom teacher” and that “the employee agrees to reassignment during the school term to any area for which a valid license is held.” Contract of Employment [1-1] at 1. Thus, any belief Plaintiff had that she should have continued to serve as head softball coach and advanced fitness teacher for the remainder of the 2010-2011 school year, as opposed to being reassigned to a study hall teaching position or any other, was also not supported by the contract and was a unilateral expectation that did not create a constitutionally protected property interest. The contract also provides that it “shall be subject to all applicable policies, resolutions, rules[,] and regulations of the employer and the State of Mississippi....” Id. The applicable Mississippi statutes governing teacher’s employment contracts similarly do not furnish Plaintiff with a constitutionally protected property interest in employment beyond the one-year term of her contract.\nThe pertinent Mississippi statutes provide that school administrators do not need to demonstrate good cause in justifying a decision not to renew a teacher’s contract. Miss.Code Ann. § 37-9-101 et seq.; see Miss. Emp’t Sec. Comm’n v. Philadelphia Munic. Separate Sch. Dish, 437 So.2d 388, 396-97 (Miss.1983). Such decisions constitute a subjective determination made by the superintendent and are ultimately approved by the school board. See Miss. Emp’t Sec. Comm’n, 437 So.2d at 392-94. As described above, the relevant contract in this instance provides merely for employment for the 2010-2011 school year and not thereafter. Further, “[i]t is the intent of the [Mississippi] Legislature not to establish a system of tenure.” Miss. Code Ann. § 37-9-101. Therefore, no Mississippi statute supplies a basis for a claim of entitlement to the head softball coach and advanced fitness teaching position. It is clear to this Court that Plaintiff has failed to allege a constitutionally protected property interest to sustain her Fourteenth Amendment claims under Section 1983.\n\nLiberty Interest\n\nPlaintiff has similarly failed to allege a viable liberty interest. “Mere *930non-renewal of an employment relationship does not constitute a deprivation of liberty.” Kelleher v. Flawn, 761 F.2d 1079, 1087 (5th Cir.1985) (citing Roth, 408 U.S. at 575, 92 S.Ct. 2701; Dennis v. S & S Consol. Rural High Sch. Dist., 577 F.2d 338, 340 (5th Cir.1978)). To show deprivation of a liberty interest, Plaintiff must show “(1) that she has been stigmatized, (2) in or as a result of the ‘discharge’ process, and (3) that the stigmatization resulted from charges made public by her employer.” Id. (citing Wells v. Doland, 711 F.2d 670, 676 (5th Cir.1983)). Upon this showing, the plaintiff is entitled to a hearing — not to recapture her previous employment — but to clear her name. See id. (citing Wells, 711 F.2d at 676 (in turn citing Roth, 408 U.S. at 573-75, 92 S.Ct. at 2701); Dennis, 577 F.2d at 340). “[I]nfringement of one’s liberty interest can be found only where the governmental agency has made or is likely to make the allegedly stigmatizing charges public in any official or intentional manner, other than in connection with the defense of related legal action.” Id. at 1088 (internal quotation marks and citations omitted); see, e.g., Dennis, 577 F.2d at 339, 341 (plaintiff “had been deprived of liberty without due process when members of the school board, in explaining why his teaching contract had not been renewed, publicly charged that he had a drinking problem”). Plaintiff has failed to allege how Defendants made public any charges against her. “[T]he mere presence of derogatory information in confidential files does not infringe an individual’s liberty interest.” Id. at 1087-108 (citing Sims v. Fox, 505 F.2d 857, 864 (5th Cir.1974) (en banc), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678 (1975)). Thus, Plaintiff has failed to allege a constitutionally protected liberty interest to sustain her Fourteenth Amendment claims.\nBecause Plaintiff has not alleged a cognizable constitutionally protected property interest or liberty interest under the Fourteenth Amendment, her Section 1983 Fourteenth Amendment claims shall be dismissed.\nAlthough the Court finds Plaintiff has failed to allege a viable property interest or liberty interest warranting Fourteenth Amendment protection, even assuming arguendo that she had, Plaintiff received all the process she was due. It is undisputed that Plaintiff utilized her right to a non-renewal hearing under the Education Employment Procedures Law, Mississippi Code § 37-9-111. The pleadings also indicate that Plaintiff served Defendant McPhail with a subpoena, see Non-Renewal Hr’g Tr. [1-3] at 142; counsel for LCSD took the position that McPhail would not testify, see id. at 142-47; and nothing in the pleadings indicate Plaintiff attempted to enforce the subpoena through the chancery court as provided in Mississippi Code § 37-9-111, which was discussed on the record at the hearing, see id. at 146-47. The Due Process Clause of the Fourteenth Amendment requires nothing more of the Defendants than they did in this case. Thus, Plaintiffs Fourteenth Amendment due process claims asserted under Section 1983 shall be dismissed.\nBecause Plaintiff has failed to plead constitutional violations upon which she could plausibly recover under Section 1983, Plaintiffs Section 1983 claims shall be dismissed in their entirety.\n7. Section 1985 Conspiracy Claims Against All Defendants\nDefendants next challenge the viability of Plaintiffs conspiracy claims under Section 1985. Plaintiff alleges under Section 1985 that “Defendants conspired to deter, by force, intimidation[,] and/or threat, Plaintiff from exercising her established First Amendment rights and her *931rights to Equal Protection.” Pl.’s Compl. [1] ¶ 5. Because the Court has already found that Plaintiff has failed to allege a First Amendment constitutional violation, she cannot assert a Section 1985 conspiracy claim on that basis. As for her Equal Protection allegations, the Court finds that Plaintiffs purported equal-protection claim “amounts to no more than a restatement of [her FJirst [A]mendment claim.” See Thompson v. City of Starkville, Miss., 901 F.2d 456, 468 (5th Cir.1990). Even if Plaintiff has attempted to assert a separate equal protection claim, her complaint is bereft of allegations supporting such a claim. Accordingly, the Court finds that Plaintiffs Section 1985 conspiracy claims shall be dismissed in their entirety.\n8. State Law Claims Against All Defendants\nFinally, Plaintiff asserts two supplemental state law claims for (1) wrongful termination in violation of public policy, i.e., the public policy exception to the at-will employment doctrine under McAm; and (2) malicious interference with employment. Defendants contend that both claims should be dismissed because Plaintiff failed to comply with the notice requirement in the Mississippi Tort Claims Act (the “MTCA”) to assert these tort claims against Defendants; Defendants are immune from suit on these claims under the discretionary function exemption to the MTCA; and because Plaintiff was under an employment contract, she was not an at-will employee and thus fails to meet one of the required elements to sustain her McAm wrongful termination claim.\nPlaintiff does not dispute that she failed to comply with the notice requirements of the MTCA prior to filing this action, but argues that both of her state law claims fall outside the purview of the MTCA and thus that Defendants are not protected from suit on these claims under the MTCA.2 The Court will first address the McAm wrongful termination claim and will then address the malicious interference with employment claim.\n\nMcAm Wrongful Termination Claim\n\nPlaintiff asserts a tort claim that Defendants wrongfully terminated her based on the public policy exception to the employment at-will doctrine under Mississippi law. For a plaintiff to maintain a tort action against a government entity, he or she must provide the statutorily required notice:\n[A]ny person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity.\nMiss.Code Ann. § 11-46-11(1). The notice-of-claim requirement, which is jurisdictional, “imposes a condition precedent to the right to maintain an action.” Miss. Dep’t of Pub. Safety v. Stringer, 748 So.2d 662, 665 (Miss.1999) (quoting Carr v. Town of Shubuta, 733 So.2d 261, 265 (Miss.1999) (internal quotation marks omitted)). The Mississippi Supreme Court has held that “the ninety-day notice requirement under [S]ection 11-46-11(1) is a hard-edged, mandatory rule which the Court strictly enforces.” See Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 820 (Miss.2006).\n*932The law is clear that McAm wrongful termination claims are governed by the MTCA, and thus, notice pursuant to the MTCA is required to sustain such a claim. See Lamb v. Booneville Sch. Dist., No. 1:08CV254-SA-JAD, 2009 WL 843116, at *1 (N.D.Miss. Mar. 26, 2009); Taylor v. City of Jackson, No. 3:07-cv-76-WHB-JCS, 2007 WL 2122470, at *4 (S.D.Miss. July 20, 2007); Whiting v. Univ. of S. Miss., 62 So.3d 907, 916 ¶¶ 16-17) (Miss.2011); Davis v. Biloxi Pub. Sch. Dist., 110 So.3d 321, 326 (¶ 17) (Miss.Ct.App.2011). Although the MTCA does not apply to “pure contract actions,” it does apply to claims for tortious breach of contract: “The clear intent of the [Legislature in enacting [the MTCA] was to immunize the State and its political subdivisions from any tortious conduct, including tortious breach of ... contract.” City of Grenada v. Whitten Aviation, Inc., 755 So.2d 1208, 1213 (Miss.Ct.App. 1999). Because Plaintiff offers no proof that she complied with the statutorily required notice for her McAm wrongful termination claim and does not challenge Defendants’ contention that she did not comply with the statutorily required notice, her wrongful termination claim fails against LCSD and Defendants McPhail and Nelson in their official capacities. To the extent her McAm claim is asserted against Defendants McPhail and Nelson, those claims similarly fail because liability under McAm is limited to the employer and does not extend to individual defendants. See DeCarlo v. Bonus Stores, Inc., 989 So.2d 351, 358 (Miss.2008).\nDefendants further maintain that Plaintiffs McAm claim fails on another ground: the McAm doctrine only applies in the absence of an employment contract and thus does not apply to the Plaintiff, who was working under contract at the time of the alleged incidents. The Court finds that this argument is not well taken. The Fifth Circuit has explained that McAm applies “[r]egardless of whether a written contract governs an employment relationship.” Kyle v. Circus Circus Miss., Inc., 430 Fed.Appx. 247, 250 (5th Cir.2011) (per curiam). Indeed, the Mississippi Supreme Court stated in McAm:\nWe are of the opinion that there should be in at least two circumstances, a narrow public policy exception to the employment at will doctrine and this should be so whether there is a written contract or not: (1) an employee who refuses to participate in an illegal act as in Laws shall not be barred by the common law rule of employment at will from bringing an action in tort for damages against his employer; (2) an employee who is discharged for reporting illegal acts of his employer to the employer or anyone else is not barred by the employment at will doctrine from bringing action in tort for damages against his employer.\nMcAm v. Allied Bruce-Terminix Co., 626 So.2d 603, 607 (Miss.1993) (emphasis added). Thus, the Court finds that the McAm wrongful termination claim is not subject to dismissal on this additional basis. Because the Court finds that based on Defendants’ arguments the McAm claim is properly dismissed only for failure to comply with the MTCA’s statutory notice requirements, which is a jurisdictional basis, the Court shall dismiss Plaintiffs McAm claim against LCSD and Defendants McPhail and Nelson in their official capacities without prejudice. The Court shall dismiss Plaintiffs McAm claim against the individual-capacity Defendants with prejudice, as the same cannot be stated against the individual-capacity Defendants as a matter of law.\n\nMalicious Interference with Employment Claim\n\nPlaintiff argues that her malicious interference with employment claim *933survives Defendants’ motion to dismiss, because the MTCA does not apply to Plaintiffs malicious interference claim. Plaintiff maintains that such a claim does not fall within the MTCA; Plaintiff further argues that her allegations that Defendants’ McPhail and Nelson acted out of malice (Plaintiff specifically points to her allegations that Defendants McPhail and Nelson met with Plaintiff to prevent her from voicing her concerns at a school board meeting and that Defendant McPhail instructed male coaches not to state their real stipends and threatened employees with termination if they assisted in any investigation of LCSD) support that Defendants’ alleged acts were not within the course and scope of Defendants McPhail and Nelson’s employment duties and thus that these Defendants are subject to suit on this claim in their individual capacities, as well. Defendants argue that Plaintiffs allegations of malicious interference fall within the purview of the MTCA and thus that this claim fails for Plaintiffs failure to comply with the MTCA’s required notice provision. Defendants further argue that the allegations fail to support that Defendants McPhail and Nelson in their individual capacities acted maliciously outside the course and scope of their employment and thus that this claim must be dismissed against the individual-capacity Defendants.\nThe law is clear that a malicious interference with employment claim is not governed by the MTCA. See King v. Bd. of Trustees of State Insts. of Higher Learning of Miss., No. 3:ll-CV-403-CWR-FKB, 2012 WL 2870789, at *4 (S.D.Miss. July 12, 2012); Stephen v. Winston County, Miss., No. 1:07CV118-SA-JAD, 2008 WL 4813829, at *10 (N.D.Miss. Nov. 4, 2008); Gibson v. Estes, No. 2:05CV 170, 2007 WL 1459307, at *1 (N.D.Miss. May 16, 2007). The law is also clear that when a plaintiff alleges a state employee acted with malice, the plaintiff is alleging that the state employee acted outside the scope of his employment, and the state employee is therefore subject to personal liability. See Miss.Code Ann. § 11-46-5(2) (“For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted ... malice .... ”); see also Kirk v. Crump, 886 So.2d 741, 747 ¶¶ 28-29 (Miss.2004). Thus, LCSD and Defendants McPhail and Nelson, in their individual and official capacities, are not subject to the MTCA’s protections on Plaintiffs malicious interference claim. Accordingly, Plaintiffs malicious interference with employment claim against all Defendants survives Defendants’ motion to dismiss.\n\nD. Conclusion\n\nIn sum, the Court finds that Defendants’ Rule 12(b)(6) motion to dismiss [9] shall be GRANTED IN PART AND DENIED IN PART, as follows:\nThe following claims shall be dismissed with prejudice: (1) the Title IX discrimination and retaliation claims against Defendants McPhail and Nelson; (2) the Title YII gender discrimination and retaliation claims against Defendants McPhail and Nelson; (3) the ADEA age discrimination claim against Defendants McPhail and Nelson; (4) all claims under 42 U.S.C. § 1983 against all Defendants; (5) all conspiracy claims under 42 U.S.C. § 1985 against all Defendants; and (6) the state law McAm wrongful termination claim, insofar as it is asserted against Defendants McPhail and Nelson in their individual capacities.\nThe following claim shall be dismissed without prejudice: (1) the state law *934McAm wrongful termination claim, insofar as it is asserted against Defendant Lafayette County School District, as well as Defendants McPhail and Nelson in their official capacities.\nThe following claims survive the motion to dismiss: (1) the Title DC discrimination and retaliation claims against Defendant Lafayette County School District; (2) the Title VII gender discrimination and retaliation claims against Defendant Lafayette County School District; (4) the ADEA age discrimination claim against Lafayette County School District; and (5) the state law malicious interference claim against all Defendants.\nThe Court further finds that the motion for qualified immunity [13] filed by Defendants McPhail and Nelson is DENIED AS MOOT.\nA separate order shall issue in accordance herewith.\n\nMEMORANDUM OPINION GRANTING DEFENDANTS’ MOTION FOR RECONSIDERATION\n\nPresently before the Court is Defendants’ motion for reconsideration [42], wherein Defendants raise a new issue of law bearing on this Court’s memorandum opinion [35] and Order [34] ruling on Defendants’ motion to dismiss [9]. For the following reasons, the Court finds Defendants’ motion for reconsideration [42] is well taken and should be granted.\n“While the Federal Rules of Civil Procedure do not provide for a motion for reconsideration, such a motion may be considered either a Rule 59(e) motion to alter or amend judgment or a Rule 60(b) motion for relief from judgment or order.” Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n. 1 (5th Cir.2004). Because the motion before this Court was filed within twenty-eight days of the Court’s order, the Court will treat the motion as a Rule 59(e) motion to alter or amend judgment. A Rule 59 motion is the proper vehicle by which a party can “correct manifest errors of law or fact” or “present newly discovered evidence.” Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir.2004) (quoting Watt-man v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.1989)).\nIn the earlier memorandum opinion [35] and Order [34], the Court sustained the malicious interference with employment claim as it was asserted in Plaintiffs complaint — against all Defendants. However, in their motion for reconsideration, Defendants contend that the malicious interference with employment claim can only be brought against the individual Defendants, Michael McPhail and Jeff Nelson (the “Individual Defendants”), not against Defendant Lafayette County School District, Plaintiff has filed a response wherein she contends that the malicious interference claim is properly brought against all Defendants. The Court notes that this issue was not raised in the papers associated with the motion to dismiss. Upon due consideration of this newly raised issue, the Court finds that the malicious interference claim is only properly asserted against the Individual Defendants and not Defendant Lafayette County School District.\nDefendant Lafayette County School District is a governmental entity and a political subdivision pursuant to the Mississippi Tort Claims Act (the “MTCA”). See Miss.Code Ann. § 11^46 — 1(g) & (i); Covington Cnty. Sch. Dist. v. Magee, 29 So.3d 1, 4 (¶ 7) (Miss.2010). As such, Defendant Lafayette County School District is not liable and is immune from suit “on account of any wrongful or tortious act” or any wrongful or tortious act by its employee. See Miss.Code Ann. § 11^16-3(1). Although this immunity is waived on “claims *935for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment,” Miss.Code Ann. § 11-46-5(1), the law is clear that a governmental entity’s immunity is not waived for conduct constituting “fraud, malice, libel, slander, defamation[,] or any criminal offense other than traffic violations,” Miss.Code Ann. § 11-46-5(2) (emphasis added).\nMalicious interference with employment has been recognized as a tort in Mississippi. See Nichols v. Tri-State Brick and Tile Co., 608 So.2d 324, 328 (Miss.1992); Bailey v. Richards, 236 Miss. 523, 111 So.2d 402, 407 (Miss.1959). However, it is a tort of which malice is an essential element; therefore, Plaintiffs malicious interference with employment claim falls outside the purview of the MTCA and can only be brought against the Individual Defendants, not Defendant Lafayette County School District. See King v. Bd. of Trustees of State Insts. of Higher Learning of Miss., No. 3:ll-CV-403-CWR-FKB, 2012 WL 2870789, *4 (S.D.Miss. July 12, 2012); Stephen v. Winston County, Miss., No. 1:07CV118-SA-JAD, 2008 WL 4813829, *10 (N.D.Miss. Nov. 4, 2008); Gibson v. Estes, No. 2:05CV 170, 2007 WL 1459307, *1 (N.D.Miss. May 16, 2007); Zumwalt v. Jones Cnty. Bd. of Supervisors, 19 So.3d 672, 688 (¶ 84) (Miss.2009). Thus, Defendant Lafayette County School District is immune from suit on the malicious interference with employment claim.\nAccordingly, the Court amends its memorandum opinion [35] and Order [34] ruling on the motion to dismiss as follows: Plaintiffs malicious interference with employment claim against Defendant Lafayette County School District is dismissed with prejudice, as the same fails as a matter of law.\nPlaintiffs malicious interference claim against the Individual Defendants, Michael McPhail and Jeff Nelson, remains viable.\nA separate order in accordance with this opinion shall issue this day.\n\n. The Court further finds that Plaintiff's requests for hearing or oral argument on these motions are not well taken, as the Court finds that a hearing or oral argument is not necessary to a ruling on the present motions.\n\n\n. The Court notes that Plaintiff states in her response that she has alleged her state law claims against \"Defendants McPhail and Nelson”; however, out of an abundance of caution and considering her allegations in the complaint are pled to pertain to all Defendants, the Court will analyze both state law claims with respect to all Defendants.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Opinion Amending on Reconsideration Nov. 13, 2013.","precedential_status":"Published","slug":"papagolos-v-lafayette-county-school-district"} {"attorneys":"S. Samuel Arsht (of Morris, Steel, Nichols & Arsht), of Wilmington, Del., for plaintiff., Robert H. Richards, Jr. (of Richards, Layton & Finger), of Wilmington, Del., for Beneficial Industrial Loan Corp., C. A. Southerland and Richard F. Corroon (of Southerland, Berl & Potter), of Wilmington, Del., for defendants Felter and Turner.","case_name":"Cohen v. Beneficial Industrial Loan Corp.","case_name_full":"COHEN v. BENEFICIAL INDUSTRIAL LOAN CORPORATION","case_name_short":"Cohen","citation_count":0,"citations":["93 F. Supp. 418"],"court_full_name":"District Court, D. Delaware","court_jurisdiction":"Delaware, DE","court_short_name":"D. Delaware","court_type":"FD","date_filed":"1950-09-21","date_filed_is_approximate":false,"id":8739583,"judges":"Leahy","opinions":[{"author_str":"Leahy","ocr":true,"opinion_id":8722821,"opinion_text":"\nLEAHY, Chief Judge.\nPlaintiff, as a stockholder of Beneficial Industrial Loan Corporation, instituted a derivative action against directors and controlling stockholders in an attempt to recover on behalf of the corporation losses which it allegedly suffered as a result of the wrongful acts of the individual defendants.1 The present matter calls for the disposition of three pending motions, which are: (1) Motion of Beneficial to dismiss the complaint or, in the alternative, for summary judgment on the ground of prior pending actions; (2) motion of Felter and Turner for summary judgment on the ground of prior pending actions; and (3) motion of Felter and Turner to dismiss on the ground of improper venue.\n*419At the present time there are pending three stockholders’ derivative actions on behalf of Beneficial. Two are in this court and the other is in the District Court of New Jersey. Plaintiff in the Delaware actions is Hannah Cohen. The original plaintiff in the New Jersey action was her husband, Sol Cohen, but he having died, his wife Hannah was substituted as plaintiff in her capacity as executrix of his estate. The first Delaware action, our CA No. 312, was begun on June 2, 1943. Defendants were Beneficial, on whose behalf the action was brought, three other affiliated corporations, and twenty-nine individual defendants.2 An action was also instituted in the District Court of New Jersey in June 1943, their CA No. 3033, wherein Beneficial was the nominal corporate defendant; and thirteen individuals were named as defendants- and served with process.3 The second Delaware action, which is the particular cause wherein the present motions were presented, was started on April 29, 1949. Twenty-seven of the twenty-nine individual defendants who were sued in the first Delaware action are named in this particular suit. Felter and Turner were the only individual defendants served with process.\nFirst Delaware Action. On July 27, 1943, defendants filed various motions for bills of particulars, to dismiss, and for summary judgment. All parties requested the court to pass argument on the motions. Accordingly, none of the motions have been heard and issue in this action has not been joined.\nThe New Jersey Action. The New Jersey action has been actively prosecuted by plaintiff. Numerous motions have been made, argued and disposed of. Extensive discovery and inspection proceedings have been had and the complaint has been changed four times. Issue, however, has not, as yet, been joined. On August 1, 1946, a motion was made, in accordance with New Jersey statutory provisions, for an order requiring plaintiff in that action to furnish security for costs, expenses and counsel fees, with the plan in mind, evidently, that if plaintiff was unable to comply then the complaint would be dismissed. The District Court denied the motion, 7 F.R.D. 352. On September 22, 1948, the Court of Appeals reversed, 3 Cir., 170 F.2d 44; and thereafter, on June 20, 1949, the Supreme Court affirmed the decision of the Court of Appeals, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. On October 31, 1949, the District Court in New Jersey directed plaintiff to give security in the sum of $25,-000. On November 14, 1949, argument was had on plaintiff’s motion for inspection of the stock list of Beneficial. Plaintiff was not able to post security in the amount of $25,000 and wished to communicate with other stockholders in an effort to raise such sum. The motion has not been determined by the New Jersey court; and the action there is still pending.\nThe Second Delaware Action. In addition to the three motions already mentioned and pending in this particular action there have been filed (1) a motion to dismiss because the complaint fails to state a claim upon which relief can be granted; (2) to dismiss the second and third causes of action because they fail to state claims upon which relief can be granted; (3) to dismiss the third cause of action for failure to join an indispensable party; and (4) for a more definite statement with respect to complaint paragraphs 12 and 14. A separate motion was filed by Felter for summary judgment on the ground that he has never been- a director of Beneficial. None of these particular motions have been prosecuted by the parties and they have not requested that the same be set down for argument or decided by the court.\n1. As far as the Delaware litigation is concerned, if any wrongs have been done to Beneficial as alleged by plaintiff, the cause of action which plaintiff seeks to prosecute, while it may assume various forms, *420should be disposed of as an entity. Much labor has gone into the writing of briefs and arguments on the various motions and yet, after the lapse of seven years, the case is not even at issue. The litigation has obviously created financial burden on all parties. The question as to whether the case sub judice should be dismissed or summary judgment granted in favor of all defendants on the ground of the prior pending action, our CA 312, has received elaborate legal treatment by counsel and raises interesting questions. But, I prefer a broader approach to the master issues involved in the Delaware litigation. Hence, I shall deny the argued motions which involve the concept of prior pending actions; I have determined to exercise the power’granted by Rule 42(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for I think this is a proper case where such exercise should be had, and consolidate our CA 312 and CA 1215. If there are then any pending motions incident to the consolidated cause, the same should be argued and determined; and thereafter, every effort should be made to get the Delaware litigation at issue in order that the plaintiff may vindicate her allegations of wrong-doing, or the corporation and its former and present officials may at long last be relieved of the litigious harassment which they have been required to meet for more than half a decade. An order may, therefore, be submitted, in accordance with the foregoing, as to the motion of Beneficial and the motion of Felter and Turner .for dismissal of the action and summary judgment on the ground of prior pending actions.\n2. There remains, however, the motion of individual defendants Felter and Turner to dismiss on the ground of improper venue. After the motions based on prior pending actions had been fixed for argument this motion was filed on November 3, 1949. Four months before, on July 8, 1949, these individual defendants had filed three other motions. Plaintiff makes the point that the November 3, 1949 motion should be denied because (1) Turner and Felter have waived any privilege which they might have to object to improper venue and (2) apart from waiver, the venue is proper. I reject plaintiff’s argument that these defendants having filed a consolidated motion on July 8, 1949, under Rule 12(g) and (h), it is now too late for them to raise the question of venue in their separate motion of November 3, 1949. It seems to me under the present Rules a defendant does not lose his defense of improper venue on the technical basis as to the time sequence on which different motion papers are served or filed. In fact, Rule 12 would seem to give a defendant the option of raising the defense of improper venue either by motion or in his answer. And Rule 12(b), (d) and (h) indicates that such a defense is not waived until an answer is filed which fails to raise such defense. See Phillips v. Baker, 9 Cir., 121 F.2d 752, certiorari denied 314 U.S. 688, 62 S.Ct. 301, 86 L.Ed. 551; Martin v. Lain Oil & Gas Co., D.C.Ill., 36 F.Supp. 252. The waiver argument is, as stated, rejected.\nThere remains that portion of plaintiff’s argument which charges that, apart from waiver, the venue is proper and the motion of Felter and Turner for dismissal should be denied. In providing for consolidation, the first and second Delaware actions are, in reality, one action; and, as to this phase of plaintiff’s.objection to the motion, I think defendants are entitled to a dismissal of this action on the separate ground that the District of Delaware is an improper venue under Schoen v. Mountain Producers Corp., 3 Cir., 170 F.2d 707. Plaintiff has not made answer that the defense of improper venue is available under the Schoen case. In fact, her real argument is one in extremis, i, e., that the venue in this district ought to be proper for there is no other district in which the venue would be proper for an action against both Felter and Turner. It would appear, however, that venue would lie against either or both of these defendants in Maryland, New Jersey or New York. Convenience of a plaintiff in selecting the theatre of operations for protracted litigation should not affect the rules as to proper venue. Accordingly, the motion of Felter and Turner to dismiss on the ground of improper venue will be granted.\nA proper order or orders in accordance with this memorandum should be submitted.\n\n. Only Beneficial and the individual defendants ess in this particular action. Felter and Turner were served with proc-\n\n\n. Only five of the defendants were served with process — Beneficial Management Corporation, Beneficial Loan Society, Bankers National Investing Corporation, and individual defendants Bailey and Rivers.\n\n\n. These particular thirteen defendants were named in the first Delaware action but none were served with process.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cohen-v-beneficial-industrial-loan-corp"} {"attorneys":"J. M. Taylor, J. G. Taylor, and Samuel H. West, for appellants., Sol F. Clark, for appellee.","case_name":"St. Louis S. W. Ry. Co. v. Graham","case_name_full":"ST. LOUIS S. W. RY. CO. v. GRAHAM, Intervener","case_name_short":"Graham","citation_count":0,"citations":["56 F. 258"],"court_full_name":"Court of Appeals for the Eighth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Eighth Circuit","court_type":"F","date_filed":"1893-05-15","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"Appeal — Review—Matters not Apparent on Record.
The circuit court, in a suit for the foreclosure of a railroad mortgage, allowed an intervening claim based on a judgment recovered in a state court, and directed its payment out of the proceeds of sale. The decree recited that it was one of those claims theretofore adjudged to be of a preferential character. This latter adjudication was not appealed from, and, on appeal from the decree allowing such intervening claim, the nature of the demand on which the judgment was recovered was not disclosed hy the record. Held, that it must he presumed that the finding of the lower court as to its character was correct, and its decree will be affirmed. Railway Go. v. Stark, 53 Fed. Rep. 758, followed.
","id":8861568,"judges":"Caldwell, Sanborn, Thayer","opinions":[{"author_str":"Thayer","ocr":true,"opinion_id":8847091,"opinion_text":"\nTHAYER, District Judge.\nThis is an appeal from an order made by the United States circuit court for the eastern district of Arkansas, allowing an intervening claim in a proceeding to foreclose a mortgage on the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri, and directing, it to he paid out of the proceeds of the sale of that road. The intervention is founded on a, judgment which was recovered by the appellee in the supreme court of Arkansas against the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri on the 22d day of February, 1892, in the sum of $250 and costs. The decree of the circuit court allowing the claim recites that it is one of those claims which the receivers of the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri were ordered and adjudged to pay, by an order made by the circuit court for the eastern district of Arkansas in the foreclosure suit on the 31sfc day of January, 1890. That order is not contained in the present record, and this proceeding is not an appeal from such order. Furthermore, the record before us does not disclose the nature of (he claim on account of which a judgment was recovered in the supreme court of Arkansas. We must accordingly presume that the finding of the lower court was correct, — that the intervening claim is one of those claims which it had previously adjudged to be of a preferential character, and had directed to be paid out of the proceeds of the sale of the mortgaged property by a general order made in the foreclosure suit on the 31st day of January, 1890. The case is in all respects identical with the case of Railway Co. v. Stark, 55 Fed. Rep. 758, recently decided by this court, and on the authority of that case the decree appealed from is affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"st-louis-s-w-ry-co-v-graham","summary":"Appeal from the Circuit Court of the United States for the Eastern District of Arkansas. This was an intervention by D. P. Graham in a suit to foreclose a mortgage on the property of the St. Louis, Arkansas & Texas Railroad Company in Arkansas and Missouri. From a decree allowing the intervener’s claim, the purchaser under the foreclosure, the St. Louis Southwestern Railway Company, and others, appeal."} {"case_name":"Ratow v. Washington","case_name_full":"Ratow v. Washington","case_name_short":"Ratow","citation_count":0,"citations":["404 U.S. 944"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1971-11-09","date_filed_is_approximate":false,"id":8985769,"opinions":[{"ocr":true,"opinion_id":8977788,"opinion_text":"\nCt. App. Wash. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"ratow-v-washington"} {"attorneys":"Fred F. Eichhorn, Sr., of Gary, for appellant., David P. Stanton, of Gary, for appellee.","case_name":"MEMBERS ETC. v. Adams","case_name_full":"Members Etc. v. Adams","case_name_short":"Adams","citation_count":1,"citations":["163 N.E.2d 745","240 Ind. 280"],"court_full_name":"Indiana Supreme Court","court_jurisdiction":"Indiana, IN","court_short_name":"Indiana Supreme Court","court_type":"S","date_filed":"1960-01-26","date_filed_is_approximate":false,"headmatter":"\n Of the District of Maine, sitting by designation.\n
\n\n Hon. Fred M. Taylor, United States District Judge, District of Idaho, sitting by designation.\n
\n\n Merrimack District Court\n
Advancement.
Where to relieve his son a father pays his debts of about $2,000, the son conveying to him forty-eight acres of land as indemnity, and the father agrees to convey the land to his son’s wife and children upon receiving back his money, and if the same is not received during his lifetime that his heirs will so reconvey said land after his death if the son’s interest in the father’s estate shall amount to said sum, the money so given to the son is an advancement and the father can not recover the possession of the land, and it is held that the wife and son of the son can not recover the legal title of the land during the grantee’s lifetime except upon the payment to him of the money advanced to pay the son’s debt.
","id":7244045,"judges":"Pryor","opinions":[{"author_str":"Pryor","ocr":true,"opinion_id":7156499,"opinion_text":"\nOpinion by\nJudge Pryor:\nSamuel T. Green, a son of the appellee, John Green, being unable to meet the pecuniary demands against him, his father, in order to relieve him from his embarrassments, agreed to pay off his debts, and in order to indemnify himself for the advance made took from his son (the appellant) a deed for a tract of land containing about forty-eight acres, the father at or about the same time agreeing to reconvey the land to the wife and children of his son upon certain conditions. This written agreement, after it had been executed and delivered, found its way back to the possession of the father and the original action in this case was by the son and his wife to recover possession of that writing. The paper had been lost or mislaid, but during the progress of the action was found and filed with the petition. An action was also instituted by the father to stay waste and recover possession of the land by reason of the conveyance made by the son and wife to him. The chancellor gave to appellee the possession, of which the appellant and his wife complain.\nA proper construction of the written agreement evidencing the terms upon which the conveyance was made must determine the rights of the parties. It is manifest that the prime object of the appellee was to secure to the wife and children of his son a home, and *244to relieve the son from his indebtedness, and the conveyance to him of the land was to indemnify him in the payment of the $2,000 or whatever sum might be paid by him. There was no obligation on the part of the son to repay the money during the life of his father and no obligation to pay it, or any part of it, after his death, unless the son’s interest in his father’s estate was insufficient for that purpose. The money paid was in fact an advancement made by the father upon a valuable consideration, as well as the consideration of love and affection, and the conveyance made so that the son or his wife and children would be secured in a home and the son made to account for what he had been advanced at the death of his father.\nThe agreement recites that John Green, the father, has paid or assumed to pay for his son about $2,000, and in consideration therefor the land is conveyed to the father, describing it, and the son, Sam Green, “has the right and privilege of paying me the said $2,000, or so much thereof as he may desire and he able to pay from time to time, and if he pays me all, then I am to convey the said land to his wife, Elizabeth, for life, and in fee to the children of his and her body; but if he shall not pay me all or even any part of said $2,000 during my life then after my death such part as he may have paid me is to be added to his share or interest in my estate; and if the amount so paid and the value of his interest in my estate is equal to or exceeds the $2,000,” then his heirs are to convey to the wife and children of his son the land. If the value of his interest in the father’s estate shall not be as much as the $2,000, then to whatever extent it may be his heirs are to convey of the land, and if no part of the $2,000 is paid then the children of John are to convey to the son’s wife and children “so much of the land as is equal in value to my estate.” Upon these considerations the conveyance was executed, and we find no agreement on the part of the son to pay the money during the life of the father, nor any agreement to surrender the land or its possession.\nThe object of the writing was to place the property beyond the reach of subsequent creditors and thereby secure the land for the family, making the extent of their interest in the land depend upon the extent of the son’s interest in his estate. It is an advancement and nothing more, to be accounted for as provided by the agreement at the death of the father. The son if he desires may repay the money in the life time of the father, but he is not obligated to *245do so by any stipulation of the agreement; but on the contrary it is expressly provided that if not paid by the son, it is to be accounted for out of the estate of the donor. A lien was held on the land conveyed for the money advanced, and construing the two v ritings together, the conveyance and the agreement upon which the conveyance is based, the lien can not be enforced until the death of the appellee, nor is the appellee entitled to the possession, as the very purpose of the writing was to secure the possession to the son, his wife and children.\n\nPeters & Tyler, O. S. Tenney, for appellants.\n\n\nReid & Stone, for appellee.\n\nIt is said, however, that the appellee has the possession and that the son has so sworn in some controversy with others in regard to the land. If so, it might well be asked, Why this proceeding to oust the appellants of possession and the writ of habeas facias called for? The son may have considered himself as the agent of the father, the latter being invested with the legal title, but this can not effect the construction of the writing, nor entitle the appellee to violate the terms of the agreement upon which the conveyance was executed. The appellants have paid some of this money, and so far as.the record shows the report of the commissioner is correct. They have the privilege of paying it all, and if not exercised an account must be taken at the death of the appellee. Nor was interest properly chargeable on the advancement. Such was not the intention of the parties nor the spirit of the agreement.\nThe judgment is therefore reversed and cause remanded with directions to dismiss all the pleadings of the appellee seeking affirmative relief. This leaves the judgment requiring the writing to be delivered in full force and ends the controversy.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"green-v-green","summary":"APPEAL FROM MONTGOMERY CIRCUIT COURT."} {"case_name":"Thompson v. Ward","case_name_full":"Thompson, &c. v. Ward, &c.","case_name_short":"Thompson","citation_count":0,"citations":["12 Ky. 156"],"court_full_name":"Court of Appeals of Kentucky","court_jurisdiction":"Kentucky, KY","court_short_name":"Court of Appeals of Kentucky","court_type":"SA","date_filed":"1822-10-24","date_filed_is_approximate":false,"headnotes":"1. A personal action cannot be maintained in a county -where none of the defendants can be found, by sending, the subsequent process into another county, and having it executed there on all of them. 2.
2. 'Where, after the commencement of the suit, the defendants remove into another county, and that fact appears by the sheriff's return. the plaintiff may, under the act of 1811, send the subsequent process to the county to -which they shall have removed. 2.
A personal action can'lot be 'Maintained in a on. ty wi'ieie' roru bi'the defenda' ts car bf found by sending tile- fobs. - quent process» into another county, and hr.vii-c i< ox ecuted these on all of them.
Where, after the commenceiwnt of the suit, the defendants remove into another cou Uy, and that fact appears by the sheriff’s return -he plaintiff may, Miuler the act oi 181 i- send the subsequent process to the county to which they shall have removed.
","id":7461770,"opinions":[{"ocr":true,"opinion_id":7382849,"opinion_text":"\nTHIS is a writ of error brought by the Thompsons and. Parks to reverse a judgment recovered against them in the Greenup circuit court.\nThe suit was brought in that court by the Wards against the Thompsons, and judgment was rendered against them and Parks, the sheriff by whom the process was executed.\nThe original writ issued to the sheriff of Greenup ponn.y. and was returned by the sheriff, not found’. An alias writ was also issued to the sheriff of Greenup, endorsed to be executed on but one of the defendants, and was returned by the sheriff, no inhabitant. After the alias was returned, a pluries capias was issued against both of the defendants, directed to the sheriff of Fleming county, and was returned executed by tiie sheriff of that county. It was upon the return of the pluries, that the judgment which is sought to be reversed was rendered by the circuit court.\n2. Wt apprehend it was palpably irregular for the circuit court of Greenup county to render judgment upon (lie execution of the. pluries by the sheriff of Fleming county. If either of the defendants had resided in the county of Greenup, it would no doubt have been competent for the plaintiffs to have caused a writ *157to have issued from the clerk’s office of Greenup, to any other county where the other defendant might be found ;■ and after the service of process on the resident defendant, it would have been correct to render judgment against all of the defendants, though the writ might have been served on the other defendí*nts by the sheriff of any county to whom directed. But, in this case, there was no -jet;vice of process by the sheriff of Greenup, on either of the defendants, and there is nothing apparent from the record, to justify the emanation of the writ to Fleming, against botlji of the defendants. If. after the commencement of the action in the county of Greenup, the defendants had removed from that county, it would have been regular to send thephtries to Fleming, or an? other county; but the propriety of doing so, would ¡hen be justified only by the act of the session of 1811*: and according to the provisions of that act, the fact of removal should be certified by the sheriff of the county in which the action is brought, to authorise another writ to be sent to any other county ; and in this case no such certificate was made by the sheriff of Greenup, where the action was commenced. (\nWhere, after the commenceiwnt of the suit, the defendants remove into another cou Uy, and that fact appears by the sheriff’s return -he plaintiff may, Miuler the act oi 181 i- send the subsequent process to the county to which they shall have removed.\nThe judgment must be reversed with costs.\n\n 1 Dig. 263.4.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"thompson-v-ward","summary":"Case 45."} {"attorneys":"Eric Wood, Huntsville, for appellant., Steve Marshall, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.","case_name":"Weatherford v. State","case_name_full":"Zachary Wayne WEATHERFORD v. STATE of Alabama","case_name_short":"Weatherford","citation_count":0,"citations":["251 So. 3d 70"],"court_full_name":"Court of Criminal Appeals of Alabama","court_jurisdiction":"Alabama, AL","court_short_name":"Court of Criminal Appeals of Alabama","court_type":"SA","date_filed":"2017-09-08","date_filed_is_approximate":false,"id":7683189,"judges":"Burke, Welch","opinions":[{"author_str":"Welch","ocr":true,"opinion_id":7618003,"opinion_text":"\nWELCH, Judge.\n*71Zachary Wayne Weatherford appeals the revocation of his probation by the Madison Circuit Court. On February 4, 2016, Weatherford was convicted of the unlawful manufacture of a controlled substance in the second degree. See § 13A-12-217, Ala. Code 1975. He was sentenced to 60 months in prison. His sentence was suspended, and Weatherford was placed on three years' probation. On February 24, 2017, Probation Officer Rachel Murrill filed a delinquency report alleging that Weatherford had violated the terms and conditions of his probation by committing the new offense of first-degree kidnapping1 and by failing to avoid injurious or vicious habits.\nThe trial court held a probation-revocation hearing at which the State presented testimony from two witnesses: Investigator Gary Gilbert of the Huntsville Police Department and Probation Officer Murrill. Inv. Gilbert testified that he was contacted regarding an assault victim at the Madison Hospital emergency room. When he arrived at the hospital, he saw Erica Green Barnes. She had scratches on the right side of her temple and swelling around her left eye. Inv. Gilbert testified that the left side of Barnes's head near her hairline was swollen and that she had a \"busted lip and ligature marks around her ankles.\" (R. 7.) Inv. Gilbert testified that Barnes told him that\n\"[s]he had recently got back together with the ex-boyfriend, Mr. Weatherford, even though they had a prior domestic violence incident back on Black Friday of last year.\n\"The last few days they had been riding around. She said Mr. Weatherford was on a high from methamphetamine and they had been traveling back and forth from that address on Ryland Pike in Madison County back to Huntsville.\n\"Earlier in the day, about the last four hours, they were riding around the back roads in his pickup truck. He made statements that he would kill her because she no longer wanted to be in a relationship with him.\n\"He asked her how she would like to die, it could be by overdose, stab her, run her over with his truck.\n\"He bound her feet together with a phone charger cord and was stabbing the seat of the truck with a knife.\n\"She recalls seeing street signs on Wall Triana, County Line Road, which that puts her in the Huntsville City limits is the area we have there.\n\"They eventually stopped at Fuel City on Swancot Road and she said Mr. Weatherford kind of dozed off, fell asleep. She got the knife and cut the cord from around her ankles and ran into the store.\n\"I was able to view the video from the store. It does show a gold F150 pickup pull up to the pumps and sits there for about 10 or 15 minutes.\n\"A female gets out of the passenger's side and runs inside the store. A male gets out of the truck and then gets back in the truck and drives off.\"\n(R. 8-9.) Inv. Gilbert could not tell from the video whether Weatherford was the male in the video.\n*72Officer Murrill testified that she was informed of the allegation and contacted Weatherford \"to try and see what was going on and see if he would come and talk to [her] about it and explain it.\" (R. 15.) Weatherford told her that \"he got into an argument with Miss Barnes and that he slapped her but that it would be at most an assault third charge.\" (R. 16.) Weatherford stated that Barnes may have hit him back.\nFollowing the testimony, defense counsel argued that the evidence was insufficient because, he said, the only evidence connecting Weatherford to the offense was hearsay. After hearing arguments from both parties, the circuit court stated:\n\"And this is the way I see this case, you have the statement of the victim, which is entirely hearsay.\n\"The officer has corroborated that when he interviewed the victim finding the exact types of multiple injuries-this is not just standard injuries, but all kinds of different injuries to her that he can physically see which corroborate the testimony that she said as to the way the Defendant in this case harmed her.\n\"And then the second amount of corroborating testimony is the officer's seeing the video that confirms the location where this lady said she was let back out at the service station. He couldn't tell whether that was him, but that further corroborates her hearsay testimony.\n\"And, finally, you have the testimony of Officer Murrill in which the Defendant admits to an altercation in which he at least slapped the victim in this case. And we don't know about, you know, whether she slapped him in self-defense.\n\"But when you put all of those together, that is sufficient to corroborate the victim's testimony.\n\"The Court finds that the Defendant violated the terms and conditions of his probation as to Charge One, kidnapping first, terror adult.\n\"As to failure to avoid injurious or vicious habits, normally this has to do with drugs, I find for the Defendant. I just don't think that is a proper charge on that one.\n\"The Defendant's probation is revoked, he is remanded to the Department of Corrections to serve the balance of his sentence.\"\n(R. 22-23.) The circuit court also entered a written order of revocation. This appeal follows.\nOn appeal, Weatherford argues that the evidence was insufficient to support the revocation of his probation. Specifically, he claims that his probation was revoked solely on hearsay evidence. In support of his argument, Weatherford cites Ex parte Dunn, 163 So.3d 1003 (Ala. 2014).\nIn Dunn, the appellant argued that the trial court's revocation \"was based entirely on hearsay and the Court of Criminal Appeals' affirmance of that decision conflicts with Goodgain [v. State, 755 So.2d 591, (Ala. Crim. App. 1999) ].\" 163 So.3d at 1004. The Alabama Supreme Court agreed with Dunn and stated:\n\"In Goodgain, the defendant, William Lindsey Goodgain, appealed the revocation of his probation, arguing that it was based on hearsay evidence that he had committed a new criminal offense of robbery. The Court of Criminal Appeals noted:\n\" 'At the revocation hearing, the State presented one witness: Gregory Johnson, a detective with the Birmingham Police Department. Detective Johnson testified that on December 13, 1998, he received an offense report prepared by an unidentified officer regarding a robbery that had allegedly occurred on December 12, 1998. According to Detective Johnson, *73the offense report indicated that the victim of the robbery had stated that Goodgain and another individual had come to her home and had robbed her at gunpoint, taking $500 in cash and a necklace. Detective Johnson stated that after he received the offense report, he conducted a live lineup and a photographic lineup as part of his investigation of the robbery. He testified that the victim identified Goodgain in the live lineup, and the victim's daughter, who was present during the robbery, identified Goodgain in the photographic lineup. Detective Johnson said that on December 17, 1998, he obtained an arrest warrant for Goodgain for the crime of robbery in the first degree. No other evidence was offered at the hearing to support the allegation in the probation officer's delinquency report. At the time of the revocation hearing, Goodgain had yet to be tried on the robbery charge.'\n\" 755 So.2d at 592.\n\"The Court of Criminal Appeals stated: ' \"It is not necessary in a probation revocation hearing to provide proof beyond a reasonable doubt or by a preponderance of the evidence. Rather, the lower court need only be 'reasonably satisfied from the evidence that the probationer has violated the conditions of his probation.' \" ' 755 So.2d at 592 (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala. Crim. App. 1984), quoting in turn Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975) ). However, the Court of Criminal Appeals also stated: '[H]earsay evidence may not form the sole basis for revoking an individual's probation .... \"The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation.\" ' 755 So.2d at 592 (quoting Clayton v. State, 669 So.2d 220, 222 (Ala. Crim. App. 1995) ).\n\"The Court of Criminal Appeals in Goodgain determined that 'the only evidence that Goodgain violated his probation by committing another crime was Detective Johnson's hearsay testimony regarding the statements of the robbery victim contained in the offense report and regarding the lineup identifications of Goodgain by the victim and her daughter.' Goodgain, 755 So.2d at 592. The Court of Criminal Appeals concluded:\n\" 'Because the State failed to present any evidence, other than the hearsay testimony of Detective Johnson, indicating that Goodgain had, in fact, committed the alleged robbery, the trial court erred in revoking Goodgain's probation. Accordingly, the trial court's order revoking Goodgain's probation is reversed and this cause is remanded for the court to hold another revocation hearing.'\n\" 755 So.2d at 593.\"\nDunn, 163 So.3d at 1004-05.\nThe Alabama Supreme Court held that\n\"[t]he State acknowledges that it 'relied on hearsay evidence' in the revocation hearing, but it argues that 'it corroborated the hearsay evidence when it relied on nonhearsay evidence-Gibbons's testimony regarding the testing that she performed on the blood sample that ultimately matched Dunn's profile that was stored in a database containing DNA profiles from felons and misdemeanors throughout the state.' State's brief, at 11. However, the State provided no nonhearsay evidence, from Gibbons or anyone else, as to where the pants from which the blood sample was taken were *74found or connecting those pants to the robbery. Gibbons testified that the evidence-submission form indicated that 'there was clothing that was found discarded along with [Olensky's] stolen property next door from the scene,' but she had no personal knowledge of that discovery. Detective Shirey testified that Officer McKinley had found the pants, but Detective Shirey had no personal knowledge as to where they had been found. No testimony from Officer McKinley was offered at the revocation hearing. Thus, as was the case in Goodgain, the only evidence connecting Dunn to the alleged commission of the robbery was hearsay evidence.\n\"....\n\"As noted previously, the State has not corroborated by nonhearsay evidence the hearsay evidence connecting the pants, and by extension Dunn, to the burglary. Thus, as in Goodgain, 'the State failed to present any evidence, other than the hearsay testimony of Detective [Shirey], indicating that [Dunn] had, in fact, committed the alleged [burglary],' 755 So.2d at 593, and the Court of Criminal Appeals' decision, affirming the trial court's judgment, conflicts with Goodgain. For the foregoing reasons, we reverse the Court of Criminal Appeals' judgment and remand the cause for further proceedings consistent with this opinion.\"\n163 So.3d at 1005-06.\nHere, the State acknowledges that it relied on hearsay evidence in the revocation hearing, but it argues that sufficient nonhearsay evidence was presented to connect Weatherford to the offense and to corroborate what the victim said occurred. The State argues that Weatherford's admission that he slapped the victim was nonhearsay evidence that \"established that [Weatherford] was in the vehicle with the victim and that he slapped the victim.\" (State's brief, p. 9-10.) The State also contends that Inv. Gilbert's nonhearsay testimony regarding the victim's injuries \"corroborated the injuries the victim said Weatherford inflicted on her.\" (State's brief, p. 10.) Finally, the State argues that the video surveillance footage viewed by Inv. Gilbert showing the victim escaping from her abductor at the gas station was nonhearsay evidence corroborating the commission of the kidnapping offense. We disagree.\nIn the instant case, as in Ex parte Dunn and Goodgain, the State presented only hearsay evidence to support a finding that Weatherford had violated the terms and conditions of his probation by committing the new offense of kidnapping. Contrary to the State's assertion, it did not present any nonhearsay evidence corroborating the hearsay testimony of Inv. Gilbert or connecting Weatherford to the offense. Although Inv. Gilbert testified that he had seen the victim's injuries, no nonhearsay evidence was presented indicating that Weatherford caused those particular injuries. Other than the ligature marks around the victim's ankles, Inv. Gilbert never testified that the victim told him how she had sustained the injuries. Even if Weatherford's statement that he had slapped the victim could be connected to those specific injuries, that admission would not connect Weatherford to the crime of kidnapping. The video-surveillance footage also does not connect Weatherford to the crime of kidnapping. Inv. Gilbert could not identify the male in the video and did not testify that the female in the video was the victim. Although the video may tend to corroborate the victim's statement, it does not connect Weatherford to the offense. See English v. State, 164 So.3d 627, 631-32 (Ala. Crim. App. 2014) (\"Based on the Alabama Supreme Court's holding in [Ex *75parte] Dunn [, 163 So.3d 1003 (Ala. 2014) ], we must agree with English's argument that the State has not presented any nonhearsay evidence to corroborate the hearsay testimony of Assistant Chief Davis. The only evidence connecting English to the alleged burglary and thefts was the hearsay testimony of Assistant Chief Davis. Accordingly, we reverse the circuit court's order revoking English's probation, and we remand the case to the circuit court for proceedings consistent with the Alabama Supreme Court's opinion in Ex parte Dunn, supra.\"); accord Ratliff v. State, 970 So.2d 939, 941-42 (Fla. Dist. Ct. App. 2008) (stating that, \" '[w]hile probation may be revoked based on a combination of hearsay and nonhearsay evidence, when the State seeks to revoke probation based on the commission of new offenses, it must present direct, nonhearsay evidence linking the defendant to the commission of the offense at issue,' \" and holding that the trial court abused its discretion by revoking the appellant's probation because the State failed to present \"non-hearsay evidence establishing the essential elements of the criminal offenses at issue\" (quoting Johnson v. State, 962 So.2d 394, 396-97 (Fla. Dist. Ct. App. 2007) )).\nBecause the State failed to present any nonhearsay evidence to establish that Weatherford had violated the terms and conditions of his probation by committing the alleged kidnapping, the circuit court erred in revoking Weatherford's probation. Accordingly, the circuit court's order revoking Weatherford's probation is reversed and this cause is remanded for further proceedings consistent with this opinion.\nREVERSED AND REMANDED.\nWindom, P.J., and Kellum, J., concur. Burke, J., dissents, with opinion, which Joiner, J., joins.\n\nSection 13A-6-43(a)(5), the section under which Weatherford was charged, defines first-degree kidnapping as the abduction of another person with the intent to terrorize him or her or a third person.\n\n","per_curiam":false,"type":"020lead"},{"author_str":"Burke","ocr":true,"opinion_id":7618004,"opinion_text":"\nBURKE, Judge, dissenting.\nI respectfully dissent from the majority's conclusion that the State failed to present any nonhearsay evidence to establish that Zachary Wayne Weatherford violated the terms and conditions of his probation by committing the alleged offense of first-degree kidnapping.\nAt Weatherford's revocation hearing, the State presented testimony from Investigator Gary Gilbert. As noted in the majority opinion, Inv. Gilbert testified that he interviewed the victim at the Madison Hospital emergency room and that she gave a detailed description of Weatherford's actions on the day in question. Inv. Gilbert also testified to his observations of the victim's injuries including \"scratches on her right side of her temple, swelling around her left eye ... a busted lip and ligature marks around her ankles.\" (R. 7.) Inv. Gilbert's testimony about the victim's injuries were based on his own observations and did not constitute hearsay.\nAdditionally, the State presented testimony from Rachel Murrill, Weatherford's probation officer. Officer Murrill testified that she had been informed that Weatherford was in trouble and that a warrant may be issued for his arrest. Murrill stated that she then telephoned Weatherford \"to try and see what was going on.\" (R. 15.) Murrill gave the following account of her conversation with Weatherford:\n\"When he first picked up the phone, it was hard to understand him. I identified myself as Officer Murrill, State Probation, and asked for Zach Weatherford. There was some mumbling and the phone disconnected.\n\"I called back and asked again and he sounded-what I would describe as paranoid, asking me how I got that phone number that I called.\n*76\"He said it was impossible because he had just gotten that number the weekend that this occurred, that I wouldn't have that number on file.\n\"And I asked him what he was so upset about, what was going on. He said, you know what's going on. And I said I don't. And he stated, 'well I think I'm in some trouble.'\n\"He stated that he got into an argument with [the victim] and that he slapped her but that it would be at most an assault third charge.\"\n(R. 15-16.)\nRule 801(d)(2)(A), Ala. R. Evid., provides that \"[a] statement is not hearsay if ... [t]he statement is offered against a party and is the party's own statement in either an individual capacity or a representative capacity ....\" Accordingly, Weatherford's statements to Officer Murrill are not hearsay.\nAt the conclusion of the hearing, the trial court stated, among other things, that it relied on Inv. Gilbert's testimony that he interviewed the victim and found \"the exact types of multiple injuries-this is not just standard injuries, but all kinds of different injuries that he can physically see which corroborate the testimony that she said as to the way the Defendant in this case harmed her.\" (R. 22.) The trial court also stated that it relied on \"the testimony of Officer Murrill in which the Defendant admits to an altercation in which he at least slapped the victim in this case.\" (R. 23.) Therefore, the trial court did not rely solely on hearsay as the basis to revoke Weatherford's probation.\nAlthough the testimony presented at Weatherford's revocation hearing may not have been sufficient to prove the alleged kidnapping beyond a reasonable doubt, that was not the requisite burden of proof. As the majority notes: \" ' \" 'It is not necessary in a probation revocation hearing to provide proof beyond a reasonable doubt or by a preponderance of the evidence. Rather, the lower court need only be \"reasonably satisfied from the evidence that the probationer has violated the conditions of his probation.\" ' \" 755 So.2d at 592 (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala. Crim. App. 1984), quoting in turn Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975) ).' \" 251 So.3d at 73. I believe that the nonhearsay testimony offered by the State, i.e., Inv. Gilbert's personal observations of the victim's injuries and Officer Murrill's testimony that Weatherford admitted to slapping the victim, coupled with the remaining testimony detailing the alleged kidnapping, was sufficient to reasonably satisfy the trial court that Weatherford violated his probation by committing the offense of first-degree kidnapping. Accordingly, I would affirm the trial court's decision to revoke Weatherford's probation.\nJoiner, J., concurs.\n","per_curiam":false,"type":"040dissent"}],"precedential_status":"Published","slug":"weatherford-v-state"} {"case_name":"Petitions 5869-R of Atlanta Belting Co.","case_name_full":"Petitions 5869-R, etc., of Atlanta Belting Co. (Atlanta)","citation_count":0,"citations":["6 Cust. Ct. 543"],"court_full_name":"United States Customs Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Customs Court","court_type":"FS","date_filed":"1941-02-13","date_filed_is_approximate":false,"id":8121455,"judges":"Dallinger","opinions":[{"author_str":"Dallinger","ocr":true,"opinion_id":8082496,"opinion_text":"\nOpinion by\nDallinger, J.\nThe court was satisfied from the record that under all the circumstances the importer acted in good faith. The petitions were therefore granted.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"petitions-5869-r-of-atlanta-belting-co"} {"case_name":"Yan Sui v. Goodrich","case_name_full":"YAN SUI v. David M. GOODRICH","case_name_short":"Goodrich","citation_count":0,"citations":["135 S. Ct. 948"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","date_filed":"2015-01-12","date_filed_is_approximate":false,"id":8171701,"opinions":[{"ocr":true,"opinion_id":8133476,"opinion_text":"\nPetition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"yan-sui-v-goodrich"} {"case_name":"Com. v. Laros","case_name_full":"COM. v. LAROS, D.","case_name_short":"Com.","citation_count":0,"citations":["201 A.3d 848"],"court_full_name":"Superior Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Superior Court of Pennsylvania","court_type":"SA","date_filed":"2018-11-14","date_filed_is_approximate":false,"id":8268517,"opinions":[{"ocr":true,"opinion_id":8233839,"opinion_text":"Affirmed.","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"com-v-laros"} {"attorneys":"Eor the plaintiff in error, Eclwin Robert Walker., Eor the defendant in error, Scott Scammell.","case_name":"Polhemus v. Prudential Realty Corp.","case_name_full":"PETER G. POLHEMUS, ALSO IN ERROR v. PRUDENTIAL REALTY CORPORATION AND RICHARD J. DEUTZ, THE LATTER, IN ERROR","case_name_short":"Polhemus","citation_count":0,"citations":["74 N.J.L. 570"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1907-03-04","date_filed_is_approximate":false,"headnotes":"1. A promissory note has no legal inception or valid existence until it has been delivered. When, however, it passes into the hands of a bona fide holder for value before maturity, it becomes a chose in action, and the reciprocal rights and duties of the parties to it are fixed. Delivery is, normally, to be in accordance with the' purpose and intent of the parties to a note, but this is subject to exceptions, of which one obtains when the departure from the intent of the parties is one of mode only.
2. A promissory note may be the subject of valid transfer and de- . livery by way of pledge or collateral security. :
3. A party to a note who has himself received no value may nevertheless become liable to a holder for value, the holder having incurred a detriment on the faith of such party’s name. When there are several parties to a note, who have become such for the benefit of another, their status, not only as to the holder for value, but inter sese, is, in the absence of relevant proof to the contrary, that which is shown by the paper upon which they have placed their names.
4. A creditor holding commercial paper as a pledge or collateral security may bring either an action to enforce the principal debt, or one to collect the pledged paper, at pleasure.
5. A person other than the real debtor, but in somewise liable for the debt, may pay the debt to the creditor, and is thereupon entitled to subrogation to the rights of the creditor in any pledge or collateral security held by him. When two or more persons are thus liable in succession, they will enjoy the right of subrogation successively, according to their contractual relations. The right of subrogation itself not being in question, the right of realizing the value of the subject-matter may, on proper occasion, be within the cognizance of a court of law.
6. When a person who has endorsed a note and parted with it, again comes into possession of it in a bona-fide manner, he may strike out his own and subsequent endorsements, and sue the prior parties upon the note.
7. A plaintiff who has made a prima faeie case within the scope of the foregoing principles has shown in himself a right of action which entitles him to go to the jury. A nonsuit is then rightly refused.
8. When a defendant has put in a plea denying the truth of the plaintiff’s declaration, but wholly abstains from supporting his plea by evidence, virtually resting his case on the evidence of the plaintiff, the prima facie evidence of the plaintiff not merely entitles him to go to the jury, but, in the absence of all discrediting circumstances, becomes decisive of the issue. In such a case a direction of a verdict for the plaintiff is not erroneous.
","id":8304985,"judges":"Ghees","opinions":[{"author_str":"Ghees","ocr":true,"opinion_id":8271839,"opinion_text":"\nThe opinion of the court (the foregoing statement having been made) was delivered by\nGhees', J.\nBy way of introduction, it should be remarked that the counsel of the defendant in error objects to both of the assignments; that they lack definiteness in pointing out the grounds of error. It may be that if the arguments of the plaintiff in error seemed to us of compelling force, we would be obliged to inquire whether he had, as a matter of practice, secured a firm foundation whereon his arguments might rest, *575\"but as our consideration of the case leads us to deny any such force to the arguments, the preliminary inquiry -is needless.\nThe questions now to be solved are two, to wit, Had the plaintiff below, when he rested, shown in himself a right of action which entitled him to go to the jury ? and, \"Wien the defendant below abstained from offering any evidence in support of his plea, had the plaintiff already proved such facts as warranted the direction of a verdict in his favor ?\nI. Firstly. Had the plaintiff below, when he rested, shown in himself a right of action which entitled him to go to the jury? In answering this question several legal principles must have their proper application.\n(1) A promissory note has no legal inception or valid existence until it has been delivered. So long as it remains in the hands of the maker or his agent it is inoperative. See Norton Bills & N. (3d ed.) 67, 136; Rand. Com. Pap. (2d ed.), §§ 216, 222, 689; Dan. Neg. Inst. (5th ed.), § 63; Brind v. Hampshire (1836), 1 Mees. & W. 365; Marvin v. McCullum (1822), 20 Johns. (N. Y.) 288, 289; Gale v. Miller (1874), 54 N. Y. 536, 538; Crowell v. Osborne (1881), 14 Vroom 335, 337; Messmore v. Meyer (1893), 27 Id. 31, 33. When, however, the note passes into the hands of a bona fide holder for value before maturity, it becomes a chose in action, and the reciprocal rights and duties of the parties to it are fixed. See Norton Bills & N. 136; Rand. Com. Pap., § 224; Chapman v. Cottrell (1865), 13 W. R. 843; McCutchen v. Kennedy (1858), 3 Dutcher 230, 236, 238, arguendo; Duncan, Sherman & Co. v. Gilbert (1862), 5 Id. 521, 523; Foley v. Emerald Brewing Co. (1898), 32 Vroom 428, 429. u It is to be observed that, for the protection of persons liable, delivery is, normally, to be in accordance with the purpose and intent of the parties to a note. Nevertheless, such a rule is subject to exceptions for the protection of bona fide holders for value. One of such exceptions was lately admitted in this court in the case of Mechanics Bank v. Chardavoyne (1903), 40 Id. 256, 258. Another exception obtains where the departure from the intent of the parties is one of mode only and affects no substantial right. In Jackson v. First National Bank (1880), *57613 Id. 177, 179, following Duncan, Sherman & Co. v. Gilbert, supra, this court held that “when a note was made for the general purpose of accommodating the paj^ee, the particular mode in which it was made to subserve that end was of no account to the maker. Whether the payee raised the money upon it — which was the use indicated at the time — and with the money paid off an old debt, or, without the circuity of a new loan, applied the note directly to the satisfaction or securing of the old debt, would be of no consequence to the defendant. lie lost no right by such diversion of the paper; nor was he subjected to any additional risk.”\n(2) A promissory note maybe the subject of valid transfer and delivery by way of pledge or collateral security. See Rand. Com. Pap. (2d ed.), § 794; Jones Pledg. (2d ed.), §§ 80, 89; Coleb. Coll. Sec. (2d ed.), §§ 2, 3; Rogers et al. v. Sipley et al. (1871), 6 Vroom 86. In Duncan, Sherman & Co. v. Gilbert (1862), 5 Dutcher [133], 521, 526, 529, 530, two promissory notes had been given without consideration by Gilbert to Rowland with the understanding that they were to be discounted at a certain bank for the latter’s benefit, Gilbert having no personal concern in the manner in which the money obtained by the discount should be used. Rowland, however, deposited the notes with Duncan, Sherman & Co. as collateral security for the issue to himself of a foreign letter of credit. On an action brought by the bankers against Gilbert, the maker, it was held in this court that the liability incurred in issuing the letter of credit was a sufficient consideration for the note in their hands, and that, under the evidence and the instruction of the judge at the trial, there was no error in a recovery of the face of the notes.\n(3) A party to a note who has received no value himself inajq nevertheless, become liable to a holder for value. See 2 Pars. Bills & N. 27; Rand. Com. Pap., §§ 472, 692; Dan. Neg. Inst. (5th ed.), § 790. This principle is applicable alike to the maker and endorser of a note by way of accommodation. So, also, an agent may by his express undertaking become liable, as well as the principal, to third persons. See 1 Am. Lead. Cas. (H. & W.) *635; Story Ag. (8th ed.), §§ 155, 157, *577269. In Chaddock v. Vanness (1871), 6 Vroom 517, 519, 528, Chaddock, by Jiis irregular endorsement was, under the proofs, held liable as a joint and several maker, although no value had been received by him. In like manner, in Foley v. Emerald Brewing Co. (1898), 32 Id. 428, 429, Foley would have been held liable as an endorser had it not been for lack of demand and notice. In legal theory, the holder of the note, in such cases; has parted with property or rights on the faith and credit of the party’s name, and therefore the latter is answerable. See Hayden v. Weldon (1881), 14 Id. 128, 130. When there are several parties to a bill or note who have become such for the benefit of another, their status, not only as to the holder for value but inter sese, is, in the absence of relevant proof to the contrary, that which is shown by the paper upon which they have placed their names. See Rand. Com. Pap., § 473; Dan. Neg. Inst., § 703 (8) ; Hill v. Buchanan (1904), 42 Vroom 301, 302; Coolidge v. Wiggin (1873), 62 Me. 568, 572; McGurk v. Huggett (1885), 56 Mich. 187, 189; also, Laubach v. Pursell (1872), 6 Vroom 434, 435; McDonald v. Magruder (1830), 28 U. S. 470, 474, 477. Of two cases to-the contrary, MacDonald v. Whitfield (1883), L. R., 8 App. Cas. 733, 744, 746, turned upon a prior mutual agreement among the endorsers, and Atwater v. Farthing (1896), 118 N. C. 388, has confessedly no extraterritorial importance.\n(4) A creditor, holding a pledge or collateral security, majr, upon default, pursue any or all of his remedies at pleasure, whether by bringing an action on the principal contract or by proceeding to realize the value of the pledge or security. See Jones Pledg. (2d ed.), §§ 589, 663, 720; Coleb. Coll. Sec, (2d ed.), § 113. If the pledge or collateral security be commercial paper, the holder may bring either an action to enforce the principal debt or one to collect the pledged paper. See Jones Pledg., §§ 664, 681; Rand. Com. Pap., § 796; Brick ads. Freehold National Banking Co. (1875), 8 Vroom 307, 308; Paine v. Furnas (1875), 117 Mass. 308.\n(5) A person other than the real debtor, but in somewise liable for the debt, may pay such debt to the creditor, and is thereupon entitled to subrogation to the rights of the creditor-*578in any pledge or collateral security held by the latter for the payment of the debt. See Sheld. Subr. (2d ed.), § 11; Harr. Subr., §§ 1, 3; Wilson v. Brown (1861), 2 Beas. 277, 278; Irick v. Black (1864), 2 C. E. Gr. 189, 195; Philadelphia and Pleading Railroad Co. v. Little (1886), 14 Stew. Eq. 519, 529. AVhen two or more persons are thus liable for the debt of another, in succession, they will enjoy the right .of subrogation successively, according to their contractual relations. See Harr. Subr., §§ 381, 387; Thompson, Administrator, v. Taylor (1878), 12 R. I. 109, 110, 112. When tire very right of subrogation is in question, it may be that the remedy is in equity, but when the right of subrogation itself is practically conceded, and there remains to be enforced only the right of realizing the value of the subject-matter, such right majq on proper occasion, be within the cognizance of a court of law. See Sheld. Subr. (2d ed.), § 1; Sussex County Insurance Co. v. Woodruff (1857), 2 Dutcher 541, 555, 559; Paulin v. Kaighn (1861), 5 Id. 480.\n(6) When a person who has endorsed a note and parted with it again comes into possession of it in a bona fide manner, he maji- strike out his own endorsement and all subsecpient thereto, and sue the prior parties upon the note. See Middleton v. Griffith (1894) , 28 Vroom 442, 445.\nApplying the principles of the foregoing cases and authorities to the facts of the case in hand, we perceive this:\nWhile the promissory note of the Prudential Realty Corporation upon which the action was brought was in the possession of the corporation which made it, or in the hands of Deutz, a defendant below, or Polhemus, the plaintiff below, it had no valid existence, and was unenforceable. They were cither the agents of the corporation or endorsers-to-be, by way of accommodation, for the procuring of money for corporation purposes. When, however, the paper passed into the possession of the Trenton Trust and Safe Deposit Company, as holders for value, before maturity, it had legal inception as a note, and became a chose in action, with all the qualities ordinarily incident thereto. Although it may have been the expectation, when this note was signed by Deutz, as president, *579and Clickner, as treasurer, that the money for the purposes of the corporation would be obtained in the way of ordinary discount, nevertheless the change in the mode of use, by delivering the note as a pledge or collateral security, did not invalidate it, inasmuch as the intended object of the use was effectuated and there was no misappropriation. Furthermore, under the circumstances of this case, no question could arise as to the sum recoverable, such as was considered by this court in Allaire v. Hartshorne (1847), 1 Zab. 665.\nUpon the taking by the trust company of the joint and several note of Deutz and Polhemus, and of the corporation note delivered and pledged therewith, and the loan and advancement of the money in reliance thereon, Deutz and Polhemus became at once liable to the trust company upon both notes, whether the avails went into their own pockets or not, because the trust, company parted with value upon the faith and credit of their names. Even if they were accommodation endorsers of the pledged note, their status as endorsers was presumptively fixed, not only as to the holder, but inter sese, by the paper upon which they had successively placed their names. The creditor trust company, holding, as they did, both a principal contract and a pledge or security, were allowed in law to sue upon the former or to realize at maturity upon the latter, and they chose the former alternative.\nWhen the money borrowed from the trust company by Deutz and Polhemus was paid over by them to the realty corporation, or applied to the uses of the corporation, as it was their duty to do, they became, in effect, sureties- for the corporation, notwithstanding the unusual form of the transaction, and on the corporation note became, in due order, secondarily liable for the debt of the corporation. Therefore, when the money borrowed became due to the trust company, it was lawful for Polhemus to repay it and to take into hi3 possession not only the joint and several note, but the pledged note as well, and thereupon he was.fully subrogated to the rights of the trust company in the pledged note, excepting, of course, the right to sue himself and parties subsequent to himself, if there had been any. When the 'note thus came *580lawfully into Polhemus’ possession by the joint act of himself and the trust company, he had a right to sue any or all parties prior to himself. This right the realty corporation conceded by their default in pleading. Deutz alone disputes it.\nThe plaintiff below having made out this case, the question recurs, Did he show himself entitled to go to the jury, or should the motion for a nonsuit have prevailed ?\nA nonsuit, when ordered by the judge at trial, is a judicial declaration that the plaintiff has failed to adduce evidence sufficient in law to maintain his case. See 1 Chit. Arch. Pr. (12th Eng. ed.) 444. In our courts it has been said that if the facts, clearly settled, or the indubious inferences to be drawn from them, show that the plaintiff is not entitled to recover, the court should nonsuit him. See Aycrigg’s Executors v. New York and Erie Railroad Co. (1864), 1 Vroom 460, 461; Furniture Company v. Board of Education (1896), 29 Id. 646, 648. Again, it has been said that when a plaintiff has made out his case by prima facie proof, the court-should put the defendant on his defence. See Plotts v. Rosebury (1859), 4 Dutcher 146, 147. The latter .form of the rule has been further explained by the declaration that even though the evidence, either in the facts or in the conclusions, is open to fair debate, and leaves the mind in some doubt, the question is one for the jury. See Delaware, Lackawanna and Western Railroad Co. v. Toffey (1875), 9 Vroom 525, 528, 529; Consolidated Traction Co. v. Reeves (1896), 29 Id. 573, 576, 577; also, Synear v. Wharton (1886), 19 Id. 97.\nWe think that the plaintiff, when he rested, had made out a prima facie case. That is to say, he had offered proofs sufficient to satisfy thd judge, on the preliminary question of law, that there was evidence which the jury should be allowed to consider — evidence upon which, as the case then stood, the jury might properly find a verdict for him, upon whom the burden of proof lay. See Wigm. Ev., §§ 2487, 2494 (2); Baldwin v. Shannon (1881), 14 Vroom 596, 602, 603; Ryder v. Wombwell (1868), L. R., 4 Exch. 32, 38. The plaintiff below was entitled to go to the jury (State v. Hardelein *581(1902), 169 Mo. 579, 585), and the motion for a nonsuit\" was rightly refused.\nII. We now come to the second inquiry: Whether, when the defendant below abstained from offering' any evidence in support of his plea, the plaintiff had already proved such facts as warranted the direction of a verdict in his favor.\nIn considering this question we are not to ask what would have been propér had the defendant done anything in the way of rebutting the plaintiff’s case, or setting up an affirmative defence, either under general principles of law or under any provision of the Negotiable Instrument act of 1902. We are merely to inquire,whether a direction was proper and lawful under the existing circumstances.\nThe defendant below put in his plea denying the truth of the declaration, and thus, so far as pleading goes, made his defence. He wholly failed, however, to support his plea by evidence going to the point in isstie. He virtually rested his case on the evidence of the plaintiff.\nWe have already determined that the plaintiff, on hispnma facie evidence, was entitled to go to the jury. That is to say, we agreed with Lord Chelmsford, in Giblin v. McMullin (1869), L. R., 2 P. C. App. 331, 335, that when evidence is left to the jury, it is after this preliminary question is answered affirmatively by the presiding judge: “Is there any evidence upon which a jury may propei’ly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed ?”\nWhen, however, the defendant failed to meet the plaintiff’s case, a further determination was and is proper, to the effect that the prima facie evidence became decisive of the issue. In Kelly v. Jackson (1832), 31 U. S. 622, 632, the Supremo Court of the United States, speaking by Mr. Justice Story, dealt with prima facie evidence, not rebutted, in these words:\n“Is it not plain, then * * * that the plaintiff is entitled to recover. What is prima facie evidence of a fact? It is such as, in judgment o'f law', is sufficient to establish'the fact, and, if not rebutted, remains sufficient for the purpose. The jury are bound to consider it in that light, unless they are *582invested with authority to disregard the rules of evidence by which the liberty and estate of every citizen are guarded and supported. Ho judge would hesitate to set aside their verdict and grant a new trial if, under such circumstances, without any rebutting evidence, they disregard it. It would be error on their part, which would require the remedial interposition of the court. In a legal sense, then, such prima facie evidence, in the absence of all controlling evidence or discrediting circumstances, becomes conclusive of the fact. That is, it should operate upon the minds of the jury .as decisive to found their verdict as to the fact. Such we understand to be the clear principles of law on this subject.”\nAnd we may be permitted to add to the queries of Justice Story that if prima facie proofs, unrebutted, should operate upon the minds of the jurors as decisive, why should not the judge at a trial so instruct them?\nIn Stark. Ev. (9th Am. ed., 4zth Eng. ed.) *819, the rule is thus stated: “Prima facie evidence is that which, not being inconsistent with the falsity of the hypothesis [that is, it might be proved to be untrue by the opponent], nevertheless raises such a degree of probability in its favor that it must prevail, if it be accredited by the jury, unless it be rebutted, or the contrary be proved.”\nIn our own state it may be gathered, from Delaware, Lackawanna and Western Railroad Co. v. Toffey (1875), 9 Vroom 525, 529; Fifth Ward Savings Bank v. First National Bank (1886), 19 Id. 513, 518; Baumann v. Hamburg-American Packet Co. (1901), 38 Id. 250, 252, 253, that when a plaintiff has fulfilled the burden of proof laid upon him, and no facts in evidence show that the plaintiff’s testimony cannot be true, the court is warranted in directing a verdict in his favor. This may be'simply putting in another form the rule that when no other verdict would be supported by the evidence, a direction is hot erroneous. See Anderson v. Central Railroad Co. (1902), 39 Id. 269, 272.\nThe foregoing view might be strengthened by invoking the principle of natural presumptions in evidence, but it seems unnecessary to do this.\n*583We find no legal error in the direction of a verdict for the plaintiff. The judgment of the Supreme Court must therefore be affirmed, and it is so ordered.\nFor affirmance — The Chancellor, Ci-iiee Justice, Garrison, Eort, Hendrickson, Pitney, Swayze, Eeed, Trenci-iard, Bogert, Yredenburgi-i, Green, Gray, Dill, J.J. 14.\nFor reversal — None.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted July 9, 1906 —","precedential_status":"Published","slug":"polhemus-v-prudential-realty-corp","summary":"On error to tire Supreme Court. This was an action ex contractu begun in the Supreme Court by the defendant in error, Peter G-. Polhemus, against the plaintiff in error, Bichard 3. Deutz, impleaded with the Prudential Bealty Corporation. The declaration was in the form prescribed by the Practice act of 1903 (Pamph. L., p. 542, § 30), and the notice annexed to the declaration contained a copy of the promissory note and the endorsements thereof, as follows: “$2,000. Few Brunswick, F. J., Mar. 28th, 1904. “Three months after date, we promise to pay to the order of Prudential Bealty Corporation two thousand dollars, at Fational Bank of F. J., Few Brunswick, F. J., value received. Prudential Bealty Corporation. “B. J. Deutz, President. “B. EL Cliokner, Treasurer.” [Endorsed.] “Prudential Bealty Corporation. “B. J. Deutz, President. “B. EL Cliokner, Treasurer. “E. J. Deutz. “P. G. Poli-iemus.” The defendant corporation suffered judgment by default to be entered, but the defendant Deutz interposed a plea of the general issue. The issue joined was tried at the Somerset Circuit, before Mr. Justice G-arretson and a jury. At the trial evidence was adduced on the part of the plaintiff which exhibited a state of facts as follows: The Prudential Bealty Corporation, in the winter or early spring of 1904, was in need of ready money for the payment of outstanding obligations, and, for the purpose of raising the money, made and endorsed, by its official agents, the promissory note for $2,000 set out in the notice annexed to the declaration, and delivered the same to Bichard J. Deutz and Peter G. Polhemus, the former of whom was a shareholder in the corporation and the president thereof, and the latter was a shareholder, and was or had been a director. The note remained in the hands of Deutz and Polhemus until April 4th, 1904, when, to carry out the purpose for which the note was made and endorsed by the corporation, they borrowed the sum of $2,000 from the Trenton Trust and Safe Deposit Company upon a note, made and endorsed by themselves, which was, in part, in the form following: “Trenton, N. J., April 4th, 1904. “On June 1st, 1904, for value received, we jointly and severally promise to pay to the order of ourselves two thousand dollars, having deposited as collateral security for the payment of this * * * a note of the Prudential Realty Corporation, dated March 38th, 1904, payable to the order of the Prudential Realty Corporation, for $3,000, endorsed by Richard J. Deutz and P. G. Polhemus.” And at the same time they endorsed the corporation note in the order and manner set forth in the notice above mentioned, and delivered the same note to the trust and safe deposit company as a collateral security for the repayment of the money borrowed. The joint and several note of Deutz and Polhemus fell due on June 1st, 1904, about four weeks before the corporation' note became payable, and was not paid at its maturity, whereupon an action upon it was begun by the trust and safe deposit company for the recovery of the money loaned. Pending that action the corporation note fell due, was presented for payment at the National Bank of New Jersey, and was dishonored, of which dishonor notice appears to have been given. Before judgment was recovered by the trust and safe deposit company, Polhemus went to the companyr and repaid the borrowed money ($3,000), and thereupon he received and became possessed of both the joint and several note and the corporation note which had been given to the company as collateral security. No part of the money thus paid out by Polhemus had; up to the time of the trial, been repaid to him by any person whomsoever. At the close of the plaintiff’s case, a motion for a nonsuit, on the ground that the plaintiff had shown no right of action in himself upon the corporation note, was made on behalf of the defendant Deutz. This motion being denied, the défendant prayed an exception, which was signed and sealed. The defendant wholly abstained from offering any evidence in support of his plea, and the ease went to the jury on a very brief charge by the presiding justice that, no defence having been made out in law, a verdict should be found for the plaintiff for the sum due upon the note. To this instruction an exception was also prayed and sealed. A verdict having been found in accordance with the instruction, judgment was entered for the plaintiff, and to review the same, a writ of error was sued out by the defendant. He assigns as error that the court refused to nonsuit the plaintiff upon the conclusion of the plaintiff’s testimony, and that the court directed the jury to render a verdict for the plaintiff."} {"case_name":"State v. Powers","case_name_full":"STATE v. POWERS","case_name_short":"Powers","citation_count":0,"citations":["627 S.E.2d 352"],"court_full_name":"Court of Appeals of North Carolina","court_jurisdiction":"North Carolina, NC","court_short_name":"Court of Appeals of North Carolina","court_type":"SA","date_filed":"2006-03-21","date_filed_is_approximate":false,"history":"Appeal from Sampson (02CRS54785).
","id":8391620,"opinions":[{"ocr":true,"opinion_id":8361874,"opinion_text":"Case reported without published opinion. No error.","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-powers"} {"attorneys":"James H. Kelly, Jr., Winston-Salem, for Callabridge/Granite., James E. Scarbrough, Concord, for Malcolm., John W. Francisco, Charlotte, for Duke Energy Corporation.","case_name":"Duke Energy Corp. v. Malcolm","case_name_full":"DUKE ENERGY CORP. v. MALCOLM","case_name_short":"Malcolm","citation_count":0,"citations":["637 S.E.2d 541"],"court_full_name":"Supreme Court of North Carolina","court_jurisdiction":"North Carolina, NC","court_short_name":"Supreme Court of North Carolina","court_type":"S","date_filed":"2006-10-16","date_filed_is_approximate":false,"id":8392647,"opinions":[{"ocr":true,"opinion_id":8362901,"opinion_text":"The following order has been entered on the motion filed on the 11th day of October 2006 by Defendant (Callabridge/Granite) for Leave to File Reply Brief:\"Motion Allowed by order of the Court in conference this the 16th day of October 2006.\"","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"duke-energy-corp-v-malcolm"} {"attorneys":"John D. Alkire, Esq., Savitt & Bruce LLP, Seattle, WA, for Plaintiffs-Appellants., Jon W. MacLeod, Esq., James Savitt, Savitt & Bruce LLP, Seattle, WA, for Plaintiffs-Appellants and Defendants-Appellees., Brian C. Kipnis, Esq., John McKay, Esq., Paul J. Lawrence, Esq., Preston Gates & Ellis LLP, Seattle, WA, for Defendants-Appellees.","case_name":"Citizens for Mobility v. Mineta","case_name_full":"CITIZENS FOR MOBILITY Stuart Weiss Donald F. Padelford Richard Nelson Richard Fike Thomas Coad Emory Bundy, Plaintiffs—Appellants v. Norman MINETA, Secretary of Transportation Rick Krochalis, Regional Director, Federal Transit Administration, Region X Department of Transportation Federal Transit Administration Jenna Dorn, Administrator of the Federal Transit Administration Central Puget Sound Regional Transit Agency, Defendants—Appellees","case_name_short":"Mineta","citation_count":0,"citations":["119 F. App'x 882"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","date_filed":"2004-12-23","date_filed_is_approximate":false,"id":8459159,"opinions":[{"ocr":true,"opinion_id":8430913,"opinion_text":"\nMEMORANDUM *\nCitizens for Mobility (Citizens) alleges that the environmental review by Sound Transit and the Federal Transit Administration (FTA) (collectively, “the agencies”) for the Central Link Light Rail Project violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. The district court granted summary judgment to the agencies, and we affirm. We have jurisdiction under 28 U.S.C. § 1291.\nCitizens first argues that the agencies should have prepared a supplemental environmental impact statement (EIS) for the Initial Segment of the Central Link Light Rail Project. We set aside the agencies’ decision not to complete a supplemental EIS only if that decision was arbitrary and capricious. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The agencies completed an environmental assessment (EA) on the impacts of the Initial Segment, including the effects of running both buses and trains through the Downtown Seattle Transit Tunnel (Tunnel). The FTA issued a finding of no significant impact (FONSI) based on the EA. Assuming without deciding that NEPA applies, we hold that the FONSI was not arbitrary and capricious and, therefore, that no supplemental EIS was required.\nTo support the FONSI, the agencies must provide a “convincing statement of reasons” to explain why the Initial Segment’s impacts are not significant. See, e.g., Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998). Citizens claims that fire, life, and safety issues require further analysis. The FONSI was based on evidence that a signal system would obviate the fire, life, and safety concerns raised by joint bus-rail use of the Tunnel. Because the agencies analyzed the safety impacts of the Initial Segment and based their FONSI on convincing evidence, the FONSI was not arbitrary and capricious.\nThe FTA must supplement an EIS whenever changes to the proposed action would result in significant environmental impacts that were not evaluated in the first EIS. 23 C.F.R. § 771.130(a)(1). Because a supplemental EIS is required only when proposed changes significantly impact the environment, id., and the FONSI documents that the proposed change— from rail-only to joint bus-rail use of the Tunnel — does not significantly impact the *884environment, the agencies were not required by NEPA to supplement the EIS.\nCitizens also claims that the 1999 EIS violated NEPA because it failed to assess two alternatives, the Initial Segment and a transportation system management (TSM) baseline alternative. An EIS need not separately analyze alternatives that “are not significantly distinguishable from alternatives actually considered, or which have substantially similar consequences.” Westlands Water Dist. v. United States Dep’t of Interior, 376 F.3d 853, 868 (9th Cir.2004) (quoting Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th Cir.1990)). According to the FONSI, the environmental consequences of the Initial Segment, including joint use of the Tunnel, are not significantly different from the alternatives considered in the 1999 EIS or in the EIS on the Tukwila Route. Therefore, the 1999 EIS did not need to consider the Initial Segment as a separate alternative.\nCitizens’ argument that the 1999 EIS should have included a TSM baseline alternative fails because NEPA does not require the analysis of such an alternative. Agencies seeking New Start funding must analyze baseline alternatives, 49 C.F.R. § 611.7(a)(3), but nothing in NEPA or its implementing regulations similarly requires the agencies to assess a TSM baseline alternative. Although the FTA must consider all reasonable alternatives in an EIS, 23 C.F.R. § 771.125(a)(1), we have been presented with no evidence that the TSM baseline alternative was a reasonable alternative that was excluded.\nFinally, Citizens contends that the agencies violated NEPA by failing to identify mitigation measures for the safety risks that joint bus-rail use of the Tunnel will create. NEPA requires mitigation only of adverse environmental impacts. 40 C.F.R. § 1502.16(h). The FONSI established that joint bus-rail use of the Tunnel would not cause adverse environmental impacts. Therefore, there are no adverse impacts to mitigate.\nAFFIRMED.\n\n 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.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued and Submitted Dec. 8, 2004.","precedential_status":"Published","slug":"citizens-for-mobility-v-mineta"} {"case_name":"Waggoner","case_name_full":"Harry L. Waggoner","case_name_short":"Waggoner","citation_count":0,"citations":["149 Ct. Cl. 838"],"court_full_name":"United States Court of Claims","court_jurisdiction":"USA, Federal","court_short_name":"Court of Claims","court_type":"FS","date_filed":"1960-04-22","date_filed_is_approximate":false,"id":8613608,"opinions":[{"ocr":true,"opinion_id":8592336,"opinion_text":"\nMilitary pay; retired pay. Upon consideration of plaintiff’s motion for judgment on the pleadings and defendant’s motion for summary judgment, together with oral argument by counsel and based upon Prentiss v. United States, 123 C. Cls. 225, and Bond v. United States, 133 C. Cls. 204, it was ordered that plaintiff’s motion be granted, and defendant’s motion denied with the amount of recovery to be determined pursuant to Eule 38(c).\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"waggoner"} {"attorneys":"George P. Hills and Butters & Clark, for appellant., E. C. Swift and L. W. Brewer, for appellee.","case_name":"Donaghue v. Fraikin","case_name_full":"Matthew Donaghue v. Edward J. Fraikin","case_name_short":"Donaghue","citation_count":0,"citations":["200 Ill. App. 339"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1916-04-14","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"Abstract of the Decision.
1. Animals, § 43*—when evidence sufficient to show ownership. In an action for personal injuries sustained by the plaintiff as a result of his driving over a cow lying in a highway, evidence held sufficient to sustain a finding that the cow belonged to the defendant.
2. Animals, § 42*—when evidence of custom in allowing animals to run at large admissible. In an action for personal injuries sustained as a result of the plaintiff running over the defendant’s cow lying in a highway, where the defendant claimed that a cow which had escaped from its inclosure without the owner’s fault was not running at large within the meaning of J. & A. If 322, evidence of a custom of the defendant to permit his domestic animals to run in the highway, and that they had been seen there unattended shortly before the accident, held admissible on the question of knowledge and care of defendant.
3. Animals, § 14*—when allowing to run at large constitutes negligence. A cow permitted to run at large in a public highway in the nighttime may be reasonably expected to lie down in the road and' become a danger and menace to travel.
4. Roads and bridges, § 241*—when modification of instruction as to contributory negligence of driver of horse proper. In an action for personal injuries resulting from the plaintiff driving over a cow lying in the highway, a modification of an instruction that the plaintiff could not recover if he “could by the exercise of reasonable and ordinary care have so driven his horse and buggy prior to and at the time in question as to have avoided the accident,” by inserting the word “just” before \"prior,” held proper and not to exclude consideration of the question whether the plaintiff was intoxicated, since if he could not have seen the cow because he was intoxicated he would not have been exercising due care.
","id":8840002,"judges":"Carees","opinions":[{"author_str":"Carees","ocr":true,"opinion_id":8825139,"opinion_text":" Mr. Justice Carees delivered the opinion of the court. ","per_curiam":false,"type":"020lead"}],"other_dates":"Rehearing denied May 12, 1916.","precedential_status":"Published","slug":"donaghue-v-fraikin","summary":"Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1915."} {"case_name":"Clark v. Dugger","case_name_full":"Clark v. Dugger, Secretary, Florida Department of Corrections","case_name_short":"Dugger","citation_count":0,"citations":["498 U.S. 975"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1990-11-18","date_filed_is_approximate":false,"id":9103274,"judges":"Marshall","opinions":[{"ocr":true,"opinion_id":9097656,"opinion_text":"\nApplication for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied.\n","per_curiam":false,"type":"020lead"},{"author_str":"Marshall","ocr":true,"opinion_id":9097657,"opinion_text":"\nJustice Marshall,\ndissenting.\nAdhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976), I would grant the application for stay of execution in order to give the applicant time to file a petition for writ of certio-rari and would grant the petition and vacate the death sentence in this case.\n","per_curiam":false,"type":"040dissent"}],"precedential_status":"Published","slug":"clark-v-dugger"} {"case_name":"Artis v. Wright","case_name_full":"Artis v. Wright, Warden","case_name_short":"Artis","citation_count":0,"citations":["508 U.S. 916"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1993-05-17","date_filed_is_approximate":false,"id":9134183,"opinions":[{"ocr":true,"opinion_id":9128790,"opinion_text":"\nC. A. 4th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"artis-v-wright"} {"case_name":"Cox v. Ohio Dept. of Transp.","case_name_short":"Cox","citation_count":0,"citations":["2011 Ohio 4847"],"court_full_name":"Ohio Court of Claims","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Court of Claims","court_type":"SS","date_filed":"2011-08-09","date_filed_is_approximate":false,"id":2695054,"judges":"Weaver","opinions":[{"download_url":"http://www.sconet.state.oh.us/rod/docs/pdf/13/2011/2011-ohio-4847.pdf","ocr":false,"opinion_id":2695054,"opinion_text":"[Cite as Cox v. Ohio Dept. of Transp., 2011-Ohio-4847.]\n\n\n\n Court of Claims of Ohio\n The Ohio Judicial Center\n 65 South Front Street, Third Floor\n Columbus, OH 43215\n 614.387.9800 or 1.800.824.8263\n www.cco.state.oh.us\n\n\n\nSANFORD W. “BILL” COX, et al.\n\n Plaintiffs\n\n v.\n\nOHIO DEPARTMENT OF TRANSPORTATION\n\n Defendant\n\nCase No. 2009-07342\n\nJudge Clark B. Weaver Sr.\n\nDECISION\n\n\n\n\n {¶1} Plaintiffs brought this action alleging negligence and loss of consortium.\nThe issues of liability and damages were bifurcated and the case proceeded to trial on\nthe issue of liability.1\n {¶2} This case arises out of a motorcycle crash involving plaintiff2, Sanford W.\nCox, which occurred in Athens County on Sunday, September 2, 2007, at approximately\n4:00 p.m. Plaintiff, who was then 66 years old and a resident of Parkersburg, West\nVirginia, testified that at around noon that day, he decided to take a leisurely ride on his\n1997 Honda Gold Wing motorcycle. Plaintiff stated that he commonly made such\nexcursions on Sunday afternoons, and that he had no established route or destination,\nother than to return home in time for a family dinner at approximately 5:00 p.m.\n\n\n\n\n1\n Plaintiffs’ October 12, 2010 motion in limine to prohibit defendant from introducing the testimony of Dale\nFletcher and Jaime Hendershot is DENIED as moot.\n2\n As used herein, “plaintiff” shall refer to Sanford W. Cox.\n\fCase No. 2009-07342 -2- DECISION\n\n {¶3} From Parkersburg, plaintiff rode south on West Virginia State Route 68,\nwhich essentially parallels the Ohio River, to Ravenswood, West Virginia, where he\nstopped to rest and have coffee at a McDonald’s restaurant. Plaintiff then crossed the\nOhio River and began traveling north on Ohio State Route 124. Plaintiff stated that he\ndecided to travel on State Route 124 because he knew it to be a scenic route.\n {¶4} Unbeknownst to plaintiff, a segment of State Route 124 was closed at that\ntime approximately one mile north of the intersection with Athens County Road 62 (also\nknown as Youba Ridge Road). Plaintiff testified that from the time he entered Ohio and\nbegan traveling on State Route 124, he never saw a sign stating that the road was\nclosed. Plaintiff acknowledged that when he passed through the intersection with\nCounty Road 62, he saw a barricade with an attached sign several feet from the\nroadway, but he stated that it was positioned such that he could not read it and he\ntherefore assumed that it was not in use.\n {¶5} Plaintiff stated that as he continued past the intersection, he was traveling\nabout 40 miles per hour and was looking at the scenery, which included the Ohio River\nto his right and high bluffs to his left. According to plaintiff, the road curved to the left\naround one of the bluffs and then straightened, at which time he saw a pile of sand\nthree to four feet high in his lane of travel. There is no question that a large orange and\nwhite barricade was situated above or in front of the sand, spanning nearly the width of\nthe lane, but plaintiff stated that he did not see it.\n {¶6} Plaintiff testified that inasmuch as the southbound lane appeared to be\nunobstructed, he believed he could simply pass to the left of the sand and continue on\nhis way. However, both lanes of travel were closed at that point, with the closure of the\nsouthbound lane being effected by a steel cable strung from a pole at the center line of\nthe roadway to another pole on the berm of the southbound lane. Several orange\nribbons were tied to the cable. Additionally, the pole at the center line of the roadway\nhad a sign affixed to it which read “no passing on the left.”\n\fCase No. 2009-07342 -3- DECISION\n\n {¶7} Although plaintiff has no recollection of the crash, the evidence\ndemonstrates that as the motorcycle approached the closure, it fell onto its left side due\nto either hard braking or plaintiff defensively laying the motorcycle down. The\nmotorcycle then slid through the sand, barricade, and center line pole, and came to rest\nin the southbound lane. Plaintiff stated that once he regained consciousness, he\ntelephoned his son, Christopher Cox, for assistance.\n {¶8} Christopher Cox was driving to plaintiff’s home for dinner, along with his\nwife Teri and their infant son, when he received plaintiff’s call. Christopher then drove\nto the scene by heading south on County Road 62, and turning left onto State Route\n124. Christopher testified that he saw no signs stating that State Route 124 was closed.\nTeri testified that she saw a “road closed” sign near the intersection of County Road 62\nand State Route 124, but that the sign was positioned “at a confusing angle” several\nfeet from the roadway, in the front yard of a home, such that she was not sure which\nroad or direction the sign pertained to.\n {¶9} Christopher testified that when he and Teri arrived at the scene, plaintiff\nwas incoherent. According to Christopher, several area residents and other persons\nwho were picnicking or camping along the river had gathered around the wreckage, and\nan ambulance and an Ohio State Highway Patrol (OSHP) trooper arrived soon\nafterward. Teri telephoned her parents, Edwin and Lois Porter, and asked them to bring\na trailer in order to retrieve the motorcycle.\n {¶10} Edwin Porter testified that he drove his pickup truck and trailer south on\nCounty Road 62 and turned left onto State Route 124, during which time he saw no\nsigns warning of the closure. Lois Porter, who was a passenger in the truck, testified\nthat she saw a sign a few feet from the pavement at the County Road 62/State Route\n124 intersection, but that it was situated such that she could not discern what it said.\n {¶11} Trooper Steven Daugherty of the OSHP testified by way of deposition that\nhe arrived at the scene of the crash at 4:38 p.m. Daugherty stated that he approached\n\fCase No. 2009-07342 -4- DECISION\n\nthe scene via State Route 124, and that by the time he traversed the intersection with\nCounty Road 62, about 40 minutes after plaintiff passed through, a “road closed” sign\nsimilar to the one described by other witnesses was “in the middle of” State Route 124,\npartially blocking both lanes such that he had to maneuver his patrol car around it. After\nbriefly interviewing plaintiff, who was then transported by ambulance to a local hospital,\nDaugherty investigated the crash and compiled a report. (Plaintiffs’ Exhibit 10.) As a\nresult, Daugherty issued plaintiff a citation for failure to control a motor vehicle, to which\nplaintiff pleaded guilty and paid a fine.\n {¶12} At trial, each of the parties presented the testimony of crash reconstruction\nexperts. Plaintiffs’ expert, Jack Holland, testified that the OSHP report establishes that\nthe barricade was visible from plaintiff’s lane of travel at a distance of 750 feet. Holland\ntestified that plaintiff had a sufficient distance in which to stop his motorcycle by simply\napplying normal braking technique. According to Holland, though, the photographs\nincluded in the OSHP report appear to show that plaintiff “laid the motorcycle down” as\na defensive maneuver after perceiving a hazard when he was 156 feet from the\nbarricade. Holland opined that the grooves and other marks in the OSHP photographs\nshow that when the motorcycle came down upon its side, plaintiff was traveling\napproximately 40 miles per hour and was steering the motorcycle to the left, as if to\npass to the left of the sand and barricade. Holland acknowledged, however, that when\nplaintiff approached the sand and barricade, these obstructions would have blocked his\nline of sight and prevented him from knowing whether his lane of travel was passable\nbeyond that point.\n {¶13} Defendant’s expert, Henry Lipian, opined that tire deceleration marks and\ngrooves in the pavement which are visible in the OSHP photographs demonstrate that\nplaintiff probably did not intentionally lay the motorcycle down, and that it instead fell\nover on its left side as a result of heavy braking. According to Lipian, plaintiff perceived\nthe need to stop when he was only about 125 feet from the closure, at which time he\n\fCase No. 2009-07342 -5- DECISION\n\nwas traveling at least 40 miles per hour, if not slightly faster. In contrast to Holland’s\nopinion that plaintiff intended to steer around the sand pile and barricade, Lipian stated\nthat the pavement grooves depicted in the OSHP photographs show that the motorcycle\nwas headed straight toward those obstructions and that it only careened into the\nsouthbound lane as a result of striking the sand.\n {¶14} In order to prevail upon his claim of negligence, plaintiff must prove by a\npreponderance of the evidence that defendant owed him a duty, that defendant’s acts or\nomissions resulted in a breach of that duty, and that the breach proximately caused his\ninjuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-2573, citing\nMenifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.\n {¶15} It is well-settled that defendant is subject to a general duty to exercise\nordinary, reasonable care in maintaining state highways. White v. Ohio Dept. of Transp.\n(1990), 56 Ohio St.3d 39, 42. However, defendant is not liable for damages caused by\ndangerous conditions on state highways unless it has actual or constructive notice of\nthe condition. McClellan v. Ohio Dept. of Transp. (1986), 34 Ohio App.3d 247, 249. \"In\norder for there to be constructive notice of a nuisance or defect in the highway, it must\nhave existed for such length of time as to impute knowledge or notice.\" Id. at 250.\n {¶16} Additionally, the common law of Ohio also imposes a duty of reasonable\ncare upon motorists, which includes the responsibility to observe the environment in\nwhich one is driving. Hubner v. Sigall (1988), 47 Ohio App.3d 15, 17.\n {¶17} On June 10, 2010, defendant filed a stipulation admitting both that it owed\nplaintiff a duty and that it committed a breach of such duty, but the stipulation did not\nspecify the nature of either the duty or the breach.\n {¶18} Regarding signage at the intersection of State Route 124 and County\nRoad 62, the evidence demonstrates that defendant installed a “road closed” sign\naffixed to a mobile barricade, but that at some point prior to the time when plaintiff\ntraversed the intersection, the device became situated out of place, in the front yard of a\n\fCase No. 2009-07342 -6- DECISION\n\nhome, several feet from the roadway, and at an angle such that its message was\nunintelligible to those traveling northbound on State Route 124. However, the evidence\ndoes not establish how long the device had been situated in this manner. Upon review,\nthe court finds no evidence to support the conclusion that defendant had actual or\nconstructive notice of this dangerous condition.\n {¶19} However, to the extent that the Ohio Manual of Uniform Traffic Control\nDevices provides that “road closed” signs “shall be preceded” by a “road closed ahead”\nsign, defendant was negligent in failing to install any such sign in advance of the State\nRoute 124/County Road 62 intersection. (Plaintiff’s Exhibit 16.)\n {¶20} The court thus finds that defendant committed a breach of its duty with\nregard to the lack of signage in advance of the “road closed” sign, but not with regard to\nthe “road closed” sign that was out of place. The court also finds, however, that plaintiff\ncommitted a breach of his duty to observe the roadway. Moreover, the court is\npersuaded that plaintiff’s inattentiveness was the sole proximate cause of his injuries.\n {¶21} Plaintiff admitted both that he opted to travel on State Route 124 because\nhe knew that it was a scenic route, and that he was indeed looking at the Ohio River\nand other scenery just before the crash. Even though the crash occurred at 4:00 p.m.\non a sunny, summer afternoon with no adverse weather conditions, plaintiff testified that\nhe failed to see the large orange and white barricade blocking his lane of travel.\nInstead, plaintiff stated that he only saw the pile of sand which was underneath or in\nfront of the barricade, and that he believed he could simply steer around the sand.\n {¶22} However, the court finds that plaintiff’s lane of travel afforded a view of the\nbarricade from 750 feet away, and both experts agreed that plaintiff had ample distance\nto stop the motorcycle with normal braking. Plaintiff’s expert opined, though, that\nplaintiff perceived a need to stop or take other defensive action at a distance of just 156\nfeet from the closure. According to defendant’s expert, plaintiff made this perception\neven later, when he was a mere 125 feet from the closure.\n\fCase No. 2009-07342 -7- DECISION\n\n {¶23} Although plaintiff’s expert opined that plaintiff probably intended to pass to\nthe left of the obstructions in his lane until perceiving that the southbound lane was also\nobstructed, the court finds defendant’s expert to be more persuasive in opining that\nplaintiff’s path of travel was directly toward the sand and barricade and that the\nmotorcycle came to rest in the southbound lane only as a result of colliding with the\nsand and thereby being diverted into that lane. Inasmuch as the barricade was a\nreasonably discernable, stationary object in plaintiff’s path of travel and did not suddenly\nappear, the court finds that plaintiff was negligent in failing to maintain an assured clear\ndistance ahead. See R.C. 4511.21(A); Sauer v. Crews, Franklin App. No. 10AP-834,\n2011-Ohio-3310, ¶17. Further, even if plaintiff had been attempting to maneuver\naround the sand and barricade, both experts stated that plaintiff was traveling about 40\nmiles per hour, and the court finds this to be an unreasonable speed at which to\napproach such obstructions, which spanned across plaintiff’s lane and obscured his\nview of the roadway beyond.\n {¶24} Based upon the foregoing, the court concludes that plaintiff failed to prove\nhis negligence claim by a preponderance of the evidence and, therefore, the derivative\nclaims for loss of consortium also must fail. See Bowen v. Kil-Kare, Inc. (1992), 63 Ohio\nSt.3d 84, 93. Accordingly, judgment shall be rendered in favor of defendant.\n\fCase No. 2009-07342 -8- DECISION\n\n\n\n\n Court of Claims of Ohio\n The Ohio Judicial Center\n 65 South Front Street, Third Floor\n Columbus, OH 43215\n 614.387.9800 or 1.800.824.8263\n www.cco.state.oh.us\n\n\n\n\nSANFORD W. “BILL” COX, et al.\n\n Plaintiffs\n\n v.\n\nOHIO DEPARTMENT OF TRANSPORTATION\n\n Defendant\n Case No. 2009-07342\n\nJudge Clark B. Weaver Sr.\n\nJUDGMENT ENTRY\n\n {¶25} This case was tried to the court on the issue of liability. The court has\nconsidered the evidence and, for the reasons set forth in the decision filed concurrently\nherewith, judgment is rendered in favor of defendant. Court costs are assessed against\nplaintiffs. The clerk shall serve upon all parties notice of this judgment and its date of\nentry upon the journal.\n\n\n\n _____________________________________\n CLARK B. WEAVER SR.\n\fCase No. 2009-07342 -9- DECISION\n\n Judge\n\ncc:\n\n\nEmily M. Simmons Jessica Olsheski\nEric A. Walker Timothy J. Boone\nAssistant Attorneys General 1654 East Broad Street, 2nd Floor\n150 East Gay Street, 18th Floor Columbus, Ohio 43203\nColumbus, Ohio 43215-3130\n\nRCV/dms\nFiled August 9, 2011\nTo S.C. reporter September 22, 2011\n\f","page_count":9,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"cox-v-ohio-dept-of-transp"} {"case_name_full":"44 Fair empl.prac.cas. 1499, 43 Empl. Prac. Dec. P 37,107, 44 Empl. Prac. Dec. P 37,410 Buetine Demery v. City of Youngstown, Patrick Ungaro, and Randall A. Wellington, Defendants","citation_count":21,"citations":["818 F.2d 1257"],"court_full_name":"Court of Appeals for the Sixth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Sixth Circuit","court_type":"F","date_filed":"1987-05-12","date_filed_is_approximate":false,"id":488548,"opinions":[{"download_url":"http://bulk.resource.org/courts.gov/c/F2/818/818.F2d.1257.86-3261.html","ocr":false,"opinion_id":488548,"opinion_text":"818 F.2d 1257\n 44 Fair Empl. Prac. Cas. (BNA) 1499,43 Empl. Prac. Dec. P 37,107,44 Empl. Prac. Dec. P 37,410Buetine DEMERY, Plaintiff-Appellant,v.CITY OF YOUNGSTOWN, Patrick Ungaro, and Randall A.Wellington, Defendants- Appellees.\n No. 86-3261.\n United States Court of Appeals,Sixth Circuit.\n Argued March 13, 1987.Decided May 12, 1987.\n \n E. Winther McCroom, Youngstown, Ohio, William L. Robinson, Richard T. Seymour, John P. Relman, Lawyers Committee for Civil Rights Under Law, Washington, D.C., for plaintiff-appellant on rehearing.\n William Higgins, City Law Dept., Youngstown, Ohio, Richard LaCivita, Cheryl L. Waite, argued, for defendants-appellees.\n Before ENGEL, KRUPANSKY and GUY, Circuit Judges.\n KRUPANSKY, Circuit Judge.\n \n \n 1\n Plaintiff-appellant Buetine Demery (Demery) appealed from the district court's judgment dismissing his civil rights claims as time-barred in this action commenced pursuant to 42 U.S.C. Secs. 19811 and 1983. The defendants-appellees are the City of Youngstown, Ohio (Youngstown or City), the Mayor of Youngstown, Patrick Ungaro, and the Youngstown Chief of Police, Randall A. Wellington.\n \n \n 2\n The record disclosed the following facts. Demery, a black male, was awarded a provisional civil service appointment to the position of patrolman in the Youngstown Police Department on October 5, 1981. On July 11, 1982, Demery was on duty at the city jail when a prisoner \"escaped,\" and on July 12, 1982, Demery was discharged for violating several department rules and regulations with regard to the incident. After his discharge, an investigation was conducted concerning the escape, and Demery was indicted in the Court of Common Pleas for Mahoning County, Ohio for aiding and abetting in the escape. The indictment was later dismissed after the prosecutor determined that insufficient evidence existed to support a conviction.\n \n \n 3\n On April 24, 1985, approximately three years after his discharge, Demery commenced this action seeking relief under 42 U.S.C. Secs. 1981 and 1983. On February 18, 1986, the defendants moved for summary judgment, which was granted by the district court on February 21, 1986. The district court determined that the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), which directed federal courts to apply each state's personal injury statute of limitations in Sec. 1983 actions, was equally applicable in Sec. 1981 actions. The court therefore concluded that Demery's Sec. 1981 action was time-barred under Ohio's applicable one year personal injury statute of limitations as mandated by Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1985), cert. denied, --- U.S. ----, 106 S. Ct. 2902, 90 L. Ed. 2d 988 (1986).2 Demery thereafter commenced this timely appeal challenging only the dismissal of his Sec. 1981 claim.\n \n \n 4\n Generally, when Congress has not enacted a statute of limitations expressly applicable to a particular federal cause of action, federal courts will borrow and \"apply the most closely analogous statute of limitations under state law.\" Del Costello v. International Bhd. of Teamsters, 462 U.S. 151, 158, 103 S. Ct. 2281, 2287, 76 L. Ed. 2d 476 (1983). In Wilson v. Garcia, supra, the Supreme Court directed lower federal courts confronted with Sec. 1983 actions to apply each state's statute of limitations for personal injury actions in determining whether the claims were time-barred.\n \n \n 5\n A catalog of other constitutional claims that have been alleged under Sec. 1983 would encompass numerous and diverse topics and subtopics: discrimination in public employment on the basis of race or the exercise of First Amendment rights, discharge or demotion without procedural due process, mistreatment of schoolchildren, deliberate indifference to the medical needs of prison inmates, the seizure of chattels without advance notice or sufficient opportunity to be heard--to identify only a few. If the choice of the statute of limitations were to depend upon the particular facts or the precise legal theory of each claim, counsel could almost always argue, with considerable force, that two or more periods of limitations should apply to each Sec. 1983 claim. Moreover, under such an approach different statutes of limitations would be applied to the various Sec. 1983 claims arising in the same State, and multiple periods of limitations would often apply to the same case. There is no reason to believe that Congress would have sanctioned this interpretation of its statute.\n \n \n 6\n * * *\n \n \n 7\n * * *\n \n \n 8\n Although the need for national uniformity \"has not been held to warrant the displacement of state statutes of limitations for civil rights actions,\" Board of Regents v. Tomanio, 446 U.S. , at 489, 100 S.Ct. [1790] at 1797 [64 L. Ed. 2d 440], uniformity within each State is entirely consistent with the borrowing principle contained in Sec. 1988. We conclude that the statute is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations for all Sec. 1983 claims. The federal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored this simple approach.\n \n \n 9\n 105 S.Ct. at 1946-47 (footnotes omitted).\n \n \n 10\n Several circuits have addressed the issue joined herein, and have decided that the reasoning of Wilson v. Garcia is equally applicable to causes of action arising pursuant to 42 U.S.C. Sec. 1981 and that the same statute of limitations mandated by Wilson v. Garcia also applies to actions anchored in Sec. 1981. The Tenth Circuit approached the issue as one analogous to its decision in Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984) (en banc). In Garcia v. Wilson, the Tenth Circuit concluded that each state's personal injury statute of limitations governed all Sec. 1983 actions brought within that state, which conclusion was affirmed by the Supreme Court in Wilson v. Garcia, supra. In Equal Employment Opportunity Comm'n v. Gaddis, 733 F.2d 1373, 1377 (10th Cir.1984), the Tenth Circuit determined that its decision in Garcia v. Wilson was applicable to Sec. 1981 actions, thereby requiring the application of the same personal injury statute of limitations in both Sec. 1981 and Sec. 1983 actions:\n \n \n 11\n The rationale supporting our conclusion in Garcia is equally applicable to claims brought under section 1981. \"The interests protected and the evil sought to be remedied are similar under both Sec. 1981 and Sec. 1983, and no significant reason exists to justify differentiating between them for limitation purposes.\" Accordingly, adopting the analysis set out in Garcia, we hold that all section 1981 claims are in essence actions for injury to personal rights.\n \n \n 12\n Id. at 1377 (citations omitted).\n \n \n 13\n The Third Circuit also concluded that the Supreme Court's decision in Wilson was applicable to Sec. 1981 actions, and held, \"therefore, that the personal injury statute of limitations of the forum state supplies the most analogous statute of limitations for actions brought under Sec. 1981.\" Goodman v. Lukens Steel Co., 777 F.2d 113, 120 (3d Cir.1985), cert. granted, --- U.S. ----, 107 S. Ct. 568, 93 L. Ed. 2d 573 (1986). The court reasoned that the direction of 42 U.S.C. Sec. 19883 to borrow and apply state law in civil rights actions applied to both Sec. 1981 and Sec. 1983; that Sec. 1981, like Sec. 1983, protected a broad range of federal rights with each separate claim arguably controlled by a different state statute of limitations for an analogous state cause of action; and that a substantial overlap existed between the types of claims brought under each section.\n \n \n 14\n Similarly, in Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416 (D.C.Cir.1986), the District of Columbia Circuit stated:\n \n \n 15\n Although the Supreme Court has not considered whether the same statute of limitations should apply in Sec. 1981 suits as in Sec. 1983 suits, see Burnett v. Grattan, 468 U.S. 42, 48 n. 11, 104 S. Ct. 2924, 2929, n. 11, 82 L. Ed. 2d 36 (1984), we find the reasoning of Garcia to be persuasive in this context as well. As an initial matter, it is clear that the same statutory directive applies to both types of claims. See 42 U.S.C. Sec. 1988 (1982). Similarly, the Court's emphasis in Garcia on avoiding collateral litigation over the applicable statute of limitations is equally compelling here. Both Sec. 1983 and Sec. 1981 provide remedies for a broad range of actions that could be characterized as various state torts. Allowing the characterization to turn on the particular facts of a case presents the same threat of excessive collateral litigation. Thus the Court's conclusion that Sec. 1988 \"is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations,\" Garcia, 471 U.S. at 275, 105 S.Ct. at 1947, is equally applicable here.\n \n \n 16\n More importantly, we see no difference between the central objectives of Sec. 1981 and Sec. 1983--each a product of the Reconstruction Era--for the purposes of applying Garcia to Sec. 1981 claims. Both statutes were enacted \"to ensure that individuals whose federal Constitutional or statutory rights are abridged [could] recover damages or secure injunctive relief.\" Burnett, 468 U.S. at 55, 104 S.Ct. at 2932. Section 1981, like Sec. 1983, broadly protects the right of all persons \"to the full and equal benefit of all laws and proceedings for the security of persons and property.\" 42 U.S.C. Sec. 1981 (1982). A violation of that command is a \"personal injury\" in very much the same sense as is a violation of Sec. 1983.\n \n \n 17\n * * *\n \n \n 18\n * * *\n \n \n 19\n Moreover, characterization of Sec. 1981 claims as personal injury actions is far from unique. Indeed, before Garcia, courts frequently characterized claims brought under both statutes as personal injury claims. * * * Thus we conclude that characterization of Sec. 1981 claims as personal injury actions is both appropriate and accurate.\n \n \n 20\n Id. at 1421-22 (footnote and citations omitted).\n \n \n 21\n The Eleventh Circuit has also stated that Wilson v. Garcia should be applied to Sec. 1981 actions. Friedlander v. Troutman, Sanders, Lockerman & Ashmore, 788 F.2d 1500, 1503 n. 2 (11th Cir.1986) (\"The same single limitations period should apply to Sec. 1981 claims.\")\n \n \n 22\n This court has reviewed with interest the Seventh Circuit's decision in Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380 n. 5 (7th Cir.1986) wherein it concluded that the statute of limitations applicable to Sec. 1981 actions to be the limitations period that applies to actions in contract. In essence, the Seventh Circuit in arriving at its declaration adopted the reasoning of Judge Garth's dissent in Goodman v. Lukens Steel Co., supra. Balancing the comparative analyses of the Seventh Circuit and Judge Garth's dissent against the decisions of the Third Circuit in Goodman v. Lukens Steel Co., the Eleventh Circuit, the D.C. Circuit in Banks v. Chesapeake & Potomac Telephone Co., and the Tenth Circuit in Equal Employment Opportunity Comm'n v. Gaddis, it is the conclusion of this court that the latter arguments are more appealing and persuasive in logic and in alignment with the intent and purpose of the expressions of the Supreme Court in Wilson v. Garcia.\n \n \n 23\n In characterizing Sec. 1983 for statute of limitations purposes, the Supreme Court in Wilson v. Garcia has directed that lesser courts consider the elements of the underlying cause of action and the congressional purpose in providing it. Although the Supreme Court has not considered whether the same statute of limitations should apply in Sec. 1981 actions as in Sec. 1983 controversies, the reasoning of Garcia is convincing and applies equally to defining a directive to select, in each state, the one most appropriate statute of limitations to be applied in Sec. 1981 suits. The Court noted that the statutory direction of Sec. 1988 applied to both Secs. 1981 and 1983, as well as to other Reconstruction Civil Rights claims. 105 S. Ct. at 1942. 42 U.S.C. Sec. 1988 provides, in part:\n \n \n 24\n Sec. 1988. Proceedings in vindication of civil rights;\n \n \n 25\n attorney's fees\n \n \n 26\n The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title \"CIVIL RIGHTS,\" and of Title \"CRIMES,\" for the protection of all persons in the United States in their civil rights, and for their vindication, ...\n \n \n 27\n Both sections afford remedies for a broad range of actions that are logically and comfortably characterized as various state torts.\n \n \n 28\n As a legacy from the Reconstruction Era, both sections emerged with the common objective of affording individuals asylum from an invasion of constitutionally protected rights through due process and equal protection of the law. The Third Circuit in Goodman v. Lukens Steel Co. observed that:\n \n \n 29\n Present day Sec. 1981's predecessor was founded on the Thirteenth Amendment that allows \"neither slavery nor involuntary servitude\" to exist any longer. It is difficult to imagine a more fundamental injury to the individual rights of the person than the evil that comes within the scope of that amendment. Also of significance is that in Runyon v. McCrary, [427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976) ], the Supreme Court accepted the use of a state's personal injury statute of limitations in a Sec. 1981 case. 427 U.S. at 180-82, 96 S.Ct. at 2599-2600.\n \n \n 30\n Moreover, in its reenactment of Sec. 1981 in 1870, Congress looked to constitutional authority embodied in the Fourteenth, as well as in the Thirteenth Amendment. Croker v. Boeing Company, 662 F.2d 975, 987 (3d Cir.1981) (in banc ); see also General Building Contractors Ass'n., Inc. v. Pennsylvania, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982). Consequently, much of the body of law developed under the Fourteenth Amendment is helpful in the interpretation of Sec. 1981.\n \n \n 31\n 777 F.2d at 119-20.\n \n \n 32\n It is apparent from tracking the remedies available under both Secs. 1981 and 1983 that there exists a substantial overlap. In Banks v. Chesapeake, the D.C. Circuit succinctly summarized in quoting from Burnett v. Grattan, 468 U.S. 42 at 55, 104 S. Ct. at 2932:\n \n \n 33\n Section 1981, like Sec. 1983, broadly protects the right of all persons \"to the full and equal benefit of all laws and proceedings for the security of persons and property.\" 42 U.S.C. Sec. 1981 (1982). A violation of that command is a \"personal injury\" in very much the same sense as is a violation of Sec. 1983. As the Court explained in Garcia,\n \n \n 34\n The unifying theme of the Civil Rights Act of 1871 is reflected in the language of the Fourteenth Amendment that unequivocally recognizes the equal status of every \"person \" subject to the jurisdiction of any of the several States. The Constitution's command is that all \"persons \" shall be accorded the full privileges of citizenship; no person shall be deprived of life, liberty, or property without due process of law or to be denied the equal protection of the laws. A violation of that command is an injury to the individual rights of the person.\n \n \n 35\n 471 U.S. at 277, 105 S. Ct. at 1948 (last emphasis added; footnote omited). See also Curtis v. Loether, 415 U.S. 189, 196 n. 10, 94 S. Ct. 1005, 1009 n. 10, 39 L. Ed. 2d 260 (1974) (suggesting that racial discrimination be treated as a \"dignitary tort\"); Developments-Section 1981, 15 Harv. C.R./ C.L.L.Rev. 29, 224 (1980) (noting that some courts have characterized claims under Sec. 1981 as \"dignitary torts\"). Indeed, it is significant to note that in reaching the conclusion that Sec. 1983 claims are best characterized as \"personal injury\" claims, the Court cited two cases that held that Sec. 1981 claims are also appropriately characterized as \"personal injury\" claims. See Garcia, 471 U.S. at 278 n. 38, 105 S. Ct. at 1948 n. 38 (citing Runyon v. McCrary, 427 U.S. 160, 179-82, 96 S. Ct. 2586, 2598-2600, 49 L. Ed. 2d 415 (1966)); McCausland v. Mason County Bd. of Educ., 649 F.2d 278, 279 (4th Cir.), cert. denied, 454 U.S. 1098, 102 S. Ct. 671, 70 L. Ed. 2d 639 (1981)).\n \n \n 36\n 802 F.2d at 1421-22.\n \n \n 37\n Accordingly, this court adopts the reasoning enunciated by the majority of the circuits that have addressed the issue and concludes that the characterization of Sec. 1981 claims as personal injury actions is both appropriate and accurate and that the statute of limitations to be applied to Sec. 1981 actions is the statute of limitations that applies to tort actions in each state. In summary, the Supreme Court decision in Wilson v. Garcia encompasses Sec. 1981 actions, and the same state personal injury statute of limitations applies equally to Secs. 1981 and 1983 controversies. Having previously determined that Wilson v. Garcia has retroactive effect and that the one year statute of limitations of Ohio Revised Code Sec. 2305.11 is the appropriate statute of limitations for Sec. 1983 actions, Mulligan v. Hazard, supra, this court resolves that the same limitation period is equally and retroactively applicable to Sec. 1981 suits. Demery's Sec. 1981 action, having been filed approximately three years after his discharge, is time-barred. The judgment of the district court is hereby AFFIRMED.\n \n \n 38\n RALPH B. GUY, Jr., Circuit Judge, concurring.\n \n \n 39\n When one concurs in both the result and reasoning of an opinion, it is seldom necessary or advisable to write separately. I do so here only because this is an important issue and one that has divided the circuits.1 Additionally, we do have two prior opinions which have addressed this issue pre-Wilson, and at least one other case under consideration by another panel raising this same issue.2\n \n \n 40\n Regardless of where one ultimately comes out on this issue, it appears clear that the Supreme Court's recent decision in Wilson must be the starting point for consideration. Since Wilson dealt with Sec. 1983 actions, the inquiry becomes what part of Wilson' § holding is appropriately applicable to Sec. 1981 actions by way of analogy? My own answer to that question is that the concept of looking to only one analogous state statute is predicated on a rationale that is equally applicable to Sec. 1981 actions. Whether that one state statute should be the general personal injury statute or whether it must be the same as that chosen for Sec. 1983 actions is less clear. To answer both of these questions affirmatively provides a certain comforting symmetry. However, if exact symmetry is the goal, this may be a matter more appropriately addressed by Congress rather than the courts. Wilson still leaves us with vast differences in limitation periods possible from state to state even in Sec. 1983 cases.\n \n \n 41\n Notwithstanding some reservations,3 I conclude that our decision here is the best resolution of the issue specifically put before us in this appeal. We are asked to choose between Ohio's six-year statute of limitations for liabilities created by statute (Ohio Rev.Code Sec. 2305.07) and the one-year statute adopted by this court for Sec. 1983 actions in Mulligan (Ohio Rev.Code Sec. 2305.11). It is not surprising that plaintiff urges the six-year statute upon us. This not only saves his cause of action here but also is not unreasonably predicated upon our earlier holding in Mason v. Owens-Illinois, Inc., 517 F.2d 520 (1975). If Wilson indeed orders us to \"pick one,\" why not the one we earlier picked in Mason? Given the choice with which we are presented, however, I find a number of reasons for rejecting the six-year statute.\n \n \n 42\n To begin with, I think we must address Mason. The starting point in dealing with Mason is that plaintiff conveniently overlooks the fact that Mason is not the only or even the latest pronouncement by this court on limitation periods for Sec. 1981 actions in Ohio. In Sutton v. Bloom, 710 F.2d 1188 (6th Cir.1983), we adopted a six-month statute. The explanation for this discrepancy is that this was at a period of time when we were not treating Sec. 1981 actions generically, but rather were drawing analogies between the specific facts of each case and the most analogous state limitations statute. Indeed, one of the principal beneficial results of Wilson (at least for Sec. 1983 actions) is to eliminate the type of discrepancy that exists between our decisions in Mason and Sutton. One starting a Sec. 1981 or Sec. 1983 action should not have to guess at his peril into which limitations pigeonhole the facts will fit.\n \n \n 43\n Second, in Mason, the choice offered the court was between a statute of limitations applicable to state administrative agencies and the same six-year statute urged by plaintiff here. The principal rationale of Mason was that state administrative proceedings were not analogous to private actions seeking judicial relief.4\n \n \n 44\n Third, Mason chose between the two statutes offered. There is no discussion by the court of other possible limitation periods. Without attempting to dwell unduly on Mason, it may be observed, however, that there are two obvious problems with the analogy to the Ohio six-year statute. The Ohio statute references \"a liability created by statute.\" Section 1981 does not deal with liabilities; it deals with rights. I think this is more than just a picky semantic distinction. Furthermore, when the Mason court states in support of the analogy that \"[p]laintiff's action is founded upon a federal statute, 42 U.S.C. Sec. 1981, creating a cause of action unknown at common law,\" 517 F.2d at 522, it may have been only partially correct. The rights enforceable under Sec. 1981 as under Sec. 1983 are those found elsewhere--for the most part in the Constitution. Section 1981 did not create rights but, rather, a convenient vehicle for their enforcement. If this \"vehicle\" had never been created, however, it appears clear the courts would have implied a direct cause of action under the Constitution as the Supreme Court did in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), and as we have done in such cases as Gordon v. City of Warren, 579 F.2d 386 (6th Cir.1978); Wiley v. Memphis Police Department, 548 F.2d 1247 (6th Cir.), cert. denied, 434 U.S. 822, 98 S. Ct. 65, 54 L. Ed. 2d 78 (1977); Amen v. City of Dearborn, 532 F.2d 554 (6th Cir.1976); Hanna v. Drobnick, 514 F.2d 393 (6th Cir.1975); Bosely v. City of Euclid, 496 F.2d 193 (6th Cir.1974); Foster v. City of Detroit, 405 F.2d 138, 144 (6th Cir.1968); Foster v. Herley, 330 F.2d 87 (6th Cir.1964). But see Amen v. City of Dearborn, 718 F.2d 789 (6th Cir.1983) (Amen II), cert. denied, 465 U.S. 1101, 104 S. Ct. 1596, 80 L. Ed. 2d 127 (1984); Jones v. City of Memphis, 586 F.2d 622 (6th Cir.1978), cert. denied, 440 U.S. 914, 99 S. Ct. 1230, 59 L. Ed. 2d 164 (1979); Lenoir v. Porters Creek Watershed District, 586 F.2d 1081 (6th Cir.1978).\n \n \n 45\n Lastly, and most importantly, Mason was pre-Wilson, and, arguably, the rules of the game have changed.\n \n \n 46\n If plaintiff here had not had Mason to rely on, there is a high likelihood that he would have made the more common argument5 that the analogy should be to the state limitations period dealing with contracts. He would not have to go far afield to make this argument, since the contract limitations period of six years (contracts not in writing) is found in the same section of the Ohio statutes on which plaintiff is already relying.\n \n \n 47\n Although the courts that have adopted the contract analogy have relied heavily on legislative history, I think an additional lure lies within the language of Sec. 1981 itself when it speaks of the right \"to make and enforce contracts.\" I also feel comfortable in concluding without burden of empirical data that the most frequent fact situation involved in Sec. 1981 litigation concerns the right to contract. Where the analysis falls down, however, is that Sec. 1981 cases are not contract actions. There is a considerable difference, for example, between suing on a contract and suing because you were denied on account of your race the right to contract. Not only is there a difference in these causes of action, but also there is a difference in the rationale behind the statutes of limitations relating to these types of actions.\n \n \n 48\n In true contract actions there is (1) frequently a negotiated relationship (2) which may be ongoing and (3) which more often than not involves documentation or other memoranda of agreement and (4) often involves a breach occurring or discovered long after the original agreement was made. All contracts, whether written or not, involve a meeting of the minds. Under such circumstances, it is understandable that legislatures frequently provide long periods of limitations ranging, for example, in the State of Ohio from six to fifteen years.\n \n \n 49\n Where it is your right to contract, however, that has been infringed upon, there is (1) certainly no meeting of the minds, (2) no relationship ever established, (3) an immediate and apparent injury, and (4) normally only the participants' memories of what occurred as the memorialization of the incident. This, at least to me, sounds like the type of situation typically covered by the shorter statutes of limitations such as are provided for personal injury actions.\n \n \n 50\n I would also note that there is already considerable judicial gloss on Sec. 1981. Part of this gloss relates to the type of damages recoverable and includes such elements as emotional distress and punitive damages. These are tort damage concepts--not contract. Similarly, the element of intent critical to Sec. 1981 actions frequently plays no role in true contract actions unless contract interpretation is the issue.\n \n \n 51\n My last group of reasons for concurring in this opinion all fall under the general heading of its being a practical solution. As my guide in this area, I look to Wilson which is nothing if it is not a practical decision. The Supreme Court tried to bring some order out of an ever growing chaos. Although our license to effect practical solutions may be more limited than theirs, I do not feel it is an inappropriate consideration when this type of \"pay your money and take your choice\" issue is before us.\n \n \n 52\n Since there is a considerable overlap between what is covered under Sec. 1981 and Sec. 1983, e.g., employment discrimination on the basis of race, it is not hard to visualize potential problems arising from different periods of limitation. If you have a six-year statute of limitations for Sec. 1981 and a one-year statute for Sec. 1983, you would have emasculated the limitations period for Sec. 1983 cases in which such overlap exists. But, has not this historically always been the case? Technically \"yes\" but from a practical standpoint \"no.\" It is not unusual for plaintiffs to sue as many defendants under as many different theories as is possible. For example, in civil rights actions, the combining of Sec. 1981 with Sec. 1983 and a liberal sprinkling of direct constitutional causes of action is the rule rather than the exception. When these cases were few in number this kind of shotgun approach was tolerated more often than not. Now that the federal courts are inundated with these cases, a judicial housecleaning is in order and indeed has begun.6\n \n \n 53\n Additionally, if the six-year statute were chosen, there would not only be a non-principled difference in when one could bring a Sec. 1981 and a Sec. 1983 action, but also the difference itself might be discriminatory. The Supreme Court is still wrestling with the question of who is covered under Sec. 1981, but it appears clear, at least as of this writing, that its coverage is not coterminus with Sec. 1983. Just who would be left out and under what circumstances is unclear.\n \n \n 54\n Lastly, I have been motivated, at least in part, in my concurrence by the same factors which led the Supreme Court to adopt the general personal injury statute rationale in Wilson. This is one of the most important statutes of limitations in all states and covers the type of litigation which most frequently finds its way to court. Any attempt by a state legislature to make arbitrary changes in the limitations periods relating to personal injury actions will not go unnoticed by the considerable number of persons and groups both within and without the legal community who are vitally interested.\n \n \n 55\n KRUPANSKY, Circuit Judge.\n \n \n 56\n On Rehearing.\n \n \n 57\n Plaintiff=appellant Beutine Demery (Demery) had petitioned this court for regearing of its decision affirming the district court's dismissal of his 42 U.S.C. Sec. 1981 action as time-barred under Ohio's applicable one-year statute of limitations. Ohio Rev. Code Sec. 2305.11. In his petition, Demery argued that this court erred by applying the same statute of limitations to both Secs. 1981 and 1983 claims and by applying it retroactively to bar his Sec. 1981 claim. The Supreme Court, since this court's decision in this case, has confirmed this court's conclusion that Sec. 1981 claims, like Sec. 1983 claims, should be treated as personal injury actions when selecting the appropriate state statute of limitations applicable to such claims. Goodman v. Lukens Steel Co., --- U.S. ----, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987). Accordingly, this court reaffirms its determination that the one-year limitations period embodied in Ohio Rev. Code Sec. 2305.11 applies to both Secs. 1981 and 1983 claims for the reasons set forth in this court's opinion in Demery v. City of Youngstown, 818 F.2d 1257 (6th Cir. 1987).\n \n \n 58\n With regard to the retroactive application of this decision, Demery directs this court's attention to the Supreme Court's recent decision in St. Francis College v. Al-Khazraji, --- U.S. ----, 107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987), wherein the Court affirmed the Third Circuit's refusal to apply its decision in Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985), aff'd --- U.S. ----, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987), retroactively. The Third Circuit in Goodman, like this court in the case at bar, determined that the same personal injury statute of limitations applied to both Secs. 1981 and 1983 actions. In affirming the Third Circuit's retroactivity determination, the Supreme Court noted that the circuit had previously applied Pennsylvania's six-year statute of limitations in Sec. 1981 actions, that the decision in Goodman overruled its prior holding by applying a shorter statute of limitations, and that the plaintiff was entitled to rely upon the prior decision applying the longer limitations period. Under these circumstances, the Court concluded that the Third Circuit properly refused to apply Goodman retroactively.\n \n \n 59\n This court, like the Third Circuit, had previously held that Ohio's six-year statute of limitations, Ohio Rev. Code Sec. 2305.07, applied in Sec. 1981 employment discrimination actions. Mason v. Owens-Illinois, Inc., 517 F.2d 520 (6th Cir. 1975). Demery reasonably relied upon Mason in filing this action approximately three years after his discharge from the Youngstown Police Department. This court therefore concludes that in circumstances where this decision would mandate the application of a chorter limitations period than had previously been applied in Sec. 1981 actions, it should not be applied retroactively. Accordingly, the petition for rehearing is GRANTED, and the judgment of the district court is REVERSED and the case is REMANDED for further proceedings not inconsistent with this opinion.\n \n \n \n 1\n 42 U.S.C. Sec. 1981 provides:\n All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.\n \n \n 2\n In Mulligan v. Hazard, this court determined that Ohio's one year statute of limitations for libel, slander, assault, battery, malicious prosecution, false imprisonment, and malpractice, Ohio Rev.Code Sec. 2305.11, was the most appropriate personal injury statute of limitations for Sec. 1983 actions. The Mulligan court also concluded that Wilson was to be applied retroactively\n \n \n 3\n 42 U.S.C. Sec. 1988 requires that Secs. 1981 and 1983 actions be governed by \"the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of [the] civil ... cause is held, so far as the same is not inconsistent with the Constitution and statutes of the United States.\"\n \n \n 1\n The Supreme Court granted certiorari in Goodman v. Lukens Steel Co., 777 F.2d 113 (3rd Cir.1985), and heard oral arguments on April 1, 1987\n \n \n 2\n Mason v. Owens-Illinois, Inc., 517 F.2d 520 (6th Cir.1975); Sutton v. Bloom, 710 F.2d 1188 (6th Cir.1983), and Black Law Enforcement Officers Assn. v. City of Akron, Nos. 86-3087, 86-3242 (6th Cir. argued Jan. 27, 1987)\n \n \n 3\n My reservations stem from the fact that I believe Justice O'Connor had the better of the arguments in her dissent in Wilson, and if writing in Mulligan I would have opted for Ohio's two-year statute rather than the one-year statute chosen\n \n \n 4\n However, the period of time rejected in Mason was one year, the same time period we now sanction\n \n \n 5\n See Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372 (7th Cir.1986), and Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985) (dissent)\n \n \n 6\n Wilson is an example but certainly not the only recent one from the Supreme Court. There also are a plethora of recent cases construing and generally limiting Sec. 1983 actions, for example. Another illustration is our own very recent decision in Thomas v. Shipka, 818 F.2d 496 (6th Cir.1987), where we held there is no longer a right to bring a direct constitutional action where Sec. 1983 applies\n \n \n ","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"44-fair-emplpraccas-1499-43-empl-prac-dec-p-37107-44-empl-prac"} {"attorneys":"Harry Ainsworth filed the brief for appellant., Jonathan Hart filed the brief pro se.","case_name":"Hart v. Hill","case_name_full":"Jonathan HART, Dba Hart of Oregon, Plaintiff-Respondent, v. Pamela HILL, Defendant-Appellant","case_name_short":"Hart","citation_count":1,"citations":["216 P.3d 909","230 Or. App. 612"],"court_full_name":"Court of Appeals of Oregon","court_jurisdiction":"Oregon, OR","court_short_name":"Court of Appeals of Oregon","court_type":"SA","date_filed":"2009-09-09","date_filed_is_approximate":false,"headmatter":"\n Multnomah County Circuit Court\n
\n Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.\n
","id":252793,"judges":"Aldrich, Hartigan, Per Curiam, Woodbury","opinions":[{"author_str":"Per Curiam","download_url":"http://bulk.resource.org/courts.gov/c/F2/285/285.F2d.757.5776_1.html","ocr":false,"opinion_id":252793,"opinion_text":"285 F.2d 757\n In the Matter of William F. CALLAHAN, Movant.\n No. 5776 (Original).\n United States Court of Appeals First Circuit.\n Dec. 28, 1960.\n \n Paul T. Smith and Manuel Katz, Boston, Mass., on motion for leave to file.\n Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit judges.\n PER CURIAM.\n \n \n 1\n Movant, William F. Callahan, has filed a motion for leave to file a 'petition for writs of prohibition and mandamus,' accompanied by the proposed petition, but not accompanied, although movant has seemingly contemplated filing such a motion for some time, with any law memorandum or brief, or motion for leave to file such. Movant is not a party to the Complaint of Failure to Comply with Condition of Probation filed by the United States against Thomas Worcester that movant now wishes us to stay 'at least insofar as they concern petitioner,' pending hearing of his proposed petition, and the conduct of which he ultimely wishes us to restrict comprehensively, not simply as it may concern himself, but in general. The allegations which are made to support this requested relief are two; that movant has been subpoenaed as a witness, and that the hearings are injurious to his reputation. It further appears that the hearings are now in progress, that movant has filed request for similar relief in the district court, and that that court has not yet passed upon them, but a about to do so.\n \n \n 2\n For all we know the district court may shortly grant the relief sought by movant, or may restrict his examination within bounds to which he has no objection. Even if we would have power to grant the proposed petition, and even assuming that the proceedings in the district court are as unusual as movant suggests, it would be even more novel that a person not a party to the proceeding, and as yet under no greater inconvenience than being required to come to court as a witness, should be able to interrupt the proceedings at this stage by an application of this character to a higher court.\n \n \n 3\n The motion for leave to file will be denied.\n \n ","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"in-the-matter-of-william-f-callahan-movant"} {"case_name":"Robert Homer Owens II v. State","citation_count":0,"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"2002-03-25","date_filed_is_approximate":false,"id":2865726,"opinions":[{"download_url":"http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=8295&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa03%5cOpinion","ocr":false,"opinion_id":2865726,"opinion_text":"\r\n\r\n\r\n\r\n\r\n\r\n\r\nTEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN\r\n\r\n\r\n\r\n\r\n\r\n\r\nNO. 03-01-00576-CR\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\nRobert Homer Owens II, Appellant\r\n\r\n\r\n\r\nv.\r\n\r\n\r\n\r\nThe State of Texas, Appellee\r\n\r\n\r\n\r\n\r\n\r\n\r\nFROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT\r\n\r\n\r\nNO. 0995878, HONORABLE FRANK W. BRYAN, JR., JUDGE PRESIDING\r\n\r\n\r\n\r\n\r\n\r\n\r\nO R D E R\r\n\r\n\r\nPER CURIAM\r\n\r\nThe order dated March 22, 2002, is withdrawn. The motion for extension of time to\r\nfile appellant's brief is granted. Appellant's counsel, Mr. Travis C. Williamson, is ordered to tender\r\na brief on appellant's behalf no later than May 6, 2002. No further extension of time will be granted.\r\n\r\nIt is ordered March 25, 2002.\r\n\r\n\r\nBefore Justices Kidd, Patterson and Puryear\r\n\r\nDo Not Publish\r\n\r\n\r\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"robert-homer-owens-ii-v-state"} {"case_name":"MARILYN McKEITHAN v. Ophraka Sananikone","citation_count":0,"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"2010-01-21","date_filed_is_approximate":false,"id":3126849,"opinions":[{"download_url":"http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=5683&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa13%5cOpinion","ocr":false,"opinion_id":3126849,"opinion_text":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\nNUMBER 13-09-00461-CV\r\n\r\n\r\n\r\nCOURT OF APPEALS\r\n\r\n\r\n\r\nTHIRTEENTH DISTRICT OF TEXAS\r\n\r\n\r\n\r\nCORPUS CHRISTI - EDINBURG \r\n\r\n\r\n______________________________________________________________\r\n\r\n\t\r\n\r\nMARILYN McKEITHAN, \tAppellant,\r\n\r\n\r\nv.\r\n\r\n\r\n\r\nOPHRAKA SANANIKONE,\tAppellee. \r\n\r\n_____________________________________________________________\r\n\r\n\r\nOn appeal from the 148th District Court\r\n\r\n\r\nof Nueces County, Texas.\r\n\r\n\r\n______________________________________________________________\r\n\r\n\r\nMEMORANDUM OPINION\r\n\r\n\r\n\t\r\n\r\nBefore Justices Rodriguez, Garza, and Benavides \r\nMemorandum Opinion Per Curiam\r\n\r\n\r\n\tAppellant and cross-appellant perfected appeals from a judgment entered by the\r\n148th District Court of Nueces County, Texas, in cause number 06-3604-E. Appellant and\r\ncross-appellant have filed a motion notifying the Court that each party wishes to dismiss\r\nher appeal. \r\n\r\n\tThe Court, having considered the documents on file and appellant and cross-appellant's motion to dismiss the appeal, is of the opinion that the motion should be\r\ngranted. See Tex. R. App. P. 42.1(a). Appellant and cross-appellant's motion to dismiss\r\nis granted, and the appeal is hereby DISMISSED. In accordance with the agreement of\r\nthe parties, costs are taxed against the party incurring same. See Tex. R. App. P. 42.1(d)\r\n(\"Absent agreement of the parties, the court will tax costs against the appellant.\"). Having\r\ndismissed the appeal at appellant and cross-appellant's request, no motion for rehearing\r\nwill be entertained, and our mandate will issue forthwith.\r\n\r\n\r\n\t\t\t\t\t\t\t\t\t\tPER CURIAM\r\n\r\nDelivered and filed the\r\n\r\n21st day of January, 2010. \r\n\r\n\r\n\r\n\r\n\r\n\t\r\n\r\n\r\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"marilyn-mckeithan-v-ophraka-sananikone"} {"attorneys":"Joseph W. Ryan and Frank J. Ryan for Appellant.\n\nU.S. Webb, Attorney-General, and Frank Richards, Deputy Attorney-General, for Respondent.","case_name":"People v. Buchanan","case_name_full":"The People v. George Buchanan, Defendants Donald Davis","case_name_short":"Buchanan","citation_count":11,"citations":["6 P.2d 538","119 Cal. App. 523"],"court_full_name":"California Court of Appeal","court_jurisdiction":"California, CA","court_short_name":"California Court of Appeal","court_type":"SA","date_filed":"1932-01-05","date_filed_is_approximate":false,"id":3298232,"judges":"FRICKE, J.,Pleading — answer — demurrer — action for conversion of a check.
Where the complaint, in an action for the conversion of the proceeds of a check drawn by a savings bank in another state to the order of plaintiffs upon the defendant bank, after alleging that said defendant bank had moneys sufficient to pay the check and that plaintiffs became the owners thereof for value and that defendant had converted it, alleges that the check purported to have been indorsed by plaintiffs but that said indorsement was a forgery and not made by plaintiffs, or their authority, and that defendant paid said check to persons other than plaintiffs who were not authorized to receive the same, an answer, simply alleging in the alternative that plaintiffs had knowledge or means of ascertaining, or notice or knowledge of facts sufficient to put them on inquiry as to the facts, is insufficient in law upon its face; and an order sustaining a demurrer thereto will be affirmed.
","id":5571963,"judges":"Seabury","opinions":[{"author_str":"Seabury","ocr":true,"opinion_id":5413814,"opinion_text":"\nSeabury, J.\nThe defendant appeals from an order sustaining a demurrer to eleven, álleged defenses pleaded to as many causes of action set out in the complaint. The complaint alleges separate causes of action for conversion. The subject of the conversion is alleged to be the proceeds of a separate check drawn by the Dime Savings Bank of Detroit to the order of these plaintiffs for a specified sum upon the defendant bank. The complaint alleges that, at the time the *36check was drawn, the Dime Savings Bank .of Detroit had on deposit with the defendant bank money sufficient to pay the check so drawn; that the plaintiffs became the owners of said check for value, .and that the defendant converted said check. The complaint further sets forth that said check purported to be indorsed by the plaintiffs, but that said indorsement was a forgery, and not made by the plaintiffs or their authority, and that the defendant paid the amount of said cheek to persons other than the plaintiffs, who were not authorized by the plaintiffs to receive the same. The eleven alleged defenses to which the court below sustained the demurrer are set forth in substantially similar language. The evident purpose of the defenses, as illuminated by the appellant’s brief, appears to be to allege that the plaintiffs’ indorsements on the checks in question were forged by an agent or employee of the plaintiffs, and that the plaintiffs had knowledge of the fact that their agent was forging their indorsements to checks made payable to their order, and that, notwithstanding such knowledge, the plaintiffs refused to give notice of this fact to the defendant bank. Upon such an interpretation of its pleading, the defendant’s counsel seeks to invoke the doctrine of estoppel against the claim upon which the plaintiffs seek to recover. The difficulty with the case from the standpoint of the defendant is, that the question as to whether or not the plaintiffs were estopped by reason of their conduct from maintaining the present action is not raised by the allegations of the defendant’s pleading. The pleading must be interpreted in the light of that which it alleges, and not in the light of what counsel in his brief may assert he intended to plead. Tested by this standard, it is clear' that the defendant’s pleading is insufficient, and that the learned court below was correct in so regarding it. The pleading itself cannot fairly be held to allege knowledge of the forgeries on the part of the plaintiffs. Instead of so doing, it alleges in the alternative that the plaintiffs had “ knowledge, or means of ascertaining, or notice or knowledge of facts sufficient to put them upon inquiry as to the facts.” The legal effect of this plea is, that the plaintiffs had the means of ascertaining that checks pur*37porting to bear the indorsement were being presented for payment at banks in New York city, and that the indorsements upon said checks were forgeries. The. duty to give notice to the defendant bank, assuming’ that, in fact, such, a duty existed, could not, under any circumstances, arise until the plaintiffs had knowledge of the facts, or had been guilty of negligence so gross as to preclude them from asserting a lack of knowledge. In the alleged defenses before us, no facts are set forth which show, either knowledge on the part of plaintiffs, or that they were guilty of such negligence as to preclude them from asserting a lack of such knowledge. The pleading in its present form is replete with conclusions, but quite barren of facts, nor does the fact that the pleader characterizes his alleged defense as the defense of \" laches ” entitle it to any greater weight than it would have without being so characterized. This is evident when it is appreciated that this alleged defense of \" laches ” is interposed to a common-law action of conversion. It may be,' as the brief of counsel for the defendant indicates, that more persuasive facts are known to him than his pleading discloses. We are satisfied that the alleged defenses are insufficient in law upon the face thereof, and that the demurrers were properly sustained. It is suggested that, if the demurrer is sustained, counsel should be accorded an opportunity to plead over. We think that, if the defendant desires this privilege, it should apply for it in the court below, where the court may be in a position to inquire as to the merits of such an application.\nOrder affirmed, with ten dollars costs and disbursements and with leave to the defendant to apply to the court below for leave to plead over.\nGuy and Bijur, JJ., concur.\nOrder affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"schnabel-v-hanover-national-bank","summary":"Appeal by the defendant from an order of the City Court of the city of New York sustaining a demurrer."} {"case_name":"Martin Operating Corp. v. Hertzan","case_name_full":"Martin Operating Corporation v. Gary Hertzan, as Administrator of the Estate of Mark Hertzan","case_name_short":"Hertzan","citation_count":0,"citations":["106 A.D.2d 784"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1984-12-14","date_filed_is_approximate":false,"id":6011690,"opinions":[{"ocr":true,"opinion_id":5873933,"opinion_text":"\nApplication pursuant to CPLR 5704 (subd [a]) to review a decision of the Delaware County *785Surrogate’s Court which denied an ex parte application for an order to show cause to commence a proceeding wherein petitioner seeks to recover possession of certain premises together with rent owing and due. Application granted. Petitioner filed a petition with the clerk of the Surrogate’s Court of Delaware County seeking to recover possession of certain premises in the City of New York and the Surrogate refused to issue process on said petition. Thereafter, petitioner submitted a proposed order to show cause to the Surrogate’s Court seeking to commence a proceeding to recover possession of the premises in question and rent due and owing. The Surrogate refused to sign the order to show cause and the present application was made in this court pursuant to CPLR 5704 (subd [a]) to review such denial. The Court of Appeals has recently indicated that unless it is abundantly clear that the matter in controversy in no way affects the affairs of the decedent or the administration of his estate, the Surrogate’s Court should not decline jurisdiction (Matter of Piccione, 57 NY2d 278). Based upon our review of the papers on the present application, we are of the opinion that it cannot be said at the present stage that it is abundantly clear that the matter in controversy in no way affects the affairs of the decedent or the administration of his estate. While such a showing may be made at some later stage of the proceeding, we conclude that in the present posture the order to show cause should have been signed and the proceeding commenced. Accordingly, the matter is remitted to Delaware County Surrogate’s Court for the issuance of an order to show cause authorizing commencement of this proceeding by such service as Surrogate’s Court deems appropriate. Mahoney, P. J., Kane, Main, Casey and Weiss, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"martin-operating-corp-v-hertzan"} {"attorneys":"Philip Price, of Philadelphia, Pa. (Harold P. Dicke and Barnes, Dechert, Price, Smith & Clark, all of Philadelphia, Pa., on the brief), for appellant., Joseph S. Lord, III, of Philadelphia, Pa. (Richter, Lord & Farage, of Philadelphia, Pa., on the brief), for appellee.","case_name":"Bonsall v. Pennsylvania Railroad","case_name_full":"Phyllis H. BONSALL v. PENNSYLVANIA RAILROAD COMPANY","case_name_short":"Bonsall","citation_count":0,"citations":["173 F.2d 223"],"court_full_name":"Court of Appeals for the Third Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Third Circuit","court_type":"F","date_filed":"1949-02-25","date_filed_is_approximate":false,"id":7002901,"opinions":[{"ocr":true,"opinion_id":6902380,"opinion_text":"\nPER CURIAM.\nThe appellant has endeavored to set up numerous grounds for reversal and has urged each of them vigorously on this court. We have considered them carefully and can find no adequate basis for setting aside the judgment of the court below.\nAccordingly the judgment will be affirmed.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued Dec. 7, 1948.","precedential_status":"Published","slug":"bonsall-v-pennsylvania-railroad"} {"attorneys":"Michael J. Frost and David P. Schippers (argued), Schippers & Bailey, Chicago, IL, for Plaintiffs-Appellants., Jennifer A. Kenedy (argued), Lord, Bissell & Brook, Chicago, IL, and Evan A. Burk-holder, McGuire, Woods, Battle & Boothe, Richmond, VA, for Defendant-Appellee.","case_name":"Salgado ex rel. Salgado v. General Motors Corp.","case_name_full":"Samantha SALGADO, a minor by her father and next friend Edwin SALGADO, and Edwin Salgado, individually v. GENERAL MOTORS CORPORATION, a foreign corporation","citation_count":0,"citations":["150 F.3d 735"],"court_full_name":"Court of Appeals for the Seventh Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Seventh Circuit","court_type":"F","date_filed":"1998-07-23","date_filed_is_approximate":false,"id":7067812,"judges":"Coffey, Posner, Ripple","opinions":[{"author_str":"Ripple","ocr":true,"opinion_id":6972067,"opinion_text":"\nRIPPLE, Circuit Judge.\nThis is an action by a passenger injured in an automobile accident and her father, Samantha and Edwin Salgado (“Salgado”), against the manufacturer of the vehicle, General Motors Corporation (“GM”). The district court held that Salgado had failed to comply with the court’s deadline for the submission of the reports of expert witnesses and therefore barred the testimony of those witnesses at the trial. Because this action left Salgado without a case, the district court also granted summary judgment in favor of GM. For the reasons set forth in the following opinion, we affirm the judgment of the district court.\nI\nBACKGROUND\nA. Facts\nOn February 7, 1991, Edith Salgado, despite the flashing warning signs, drove her 1980 Buiek Riviera around several stopped cars and the closed crossing gate into the path of an oncoming commuter train. The resulting collision caused the front right passenger seat to move backwards and to strike the child safety seat holding her seven month-old daughter Samantha. Samantha suffered serious head injuries from the impact with the seat.\nOn February 8, 1993, Samantha, by her father, Edwin Salgado, and Edwin individually, filed suit in Cook County Circuit Court against GM, the manufacturer of the ear.1 The suit claimed that a defect in the passenger seat of the Buick had caused it to fall back on impact, to hit Samantha and to cause her injuries. GM timely removed the case to federal court on the ground of diversity of citizenship of the parties.\nInitially, the court ordered discovery to be completed by October 24, 1995. Salgado filed a motion for an extension on that date and was granted until January 24, 1996, an additional three months, to complete discovery. At a status hearing on January 25, 1996, one day after the discovery was to be completed, Salgado requested, and was granted, a second extension for the completion of discovery, until April 12, 1996. In requesting this extension, Salgado specifically asked for time to complete the expert witness reports of Dr. Anthony Sanees, Jr. and Mr. John M. Stilson. Such expert witness reports are required pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure.\nIn granting this second extension, the district court made clear that April 12th was the “final cut off’ date, and that, unless the reports were turned in by the 12th, the ease would get “dunked” and the plaintiffs would “lose.”2 The court then set the next status hearing for April 16, 1996. Despite the warning by the court, Salgado’s counsel failed to file the reports by the further extended due date of April 12, 1996. Instead, the reports were submitted on Monday, April *73815, the next business day following the deadline.\nB. Ruling of the District Court\nAfter reviewing the history of the discovery timetable that we have just set forth, the district court noted that the expert witness reports had not been filed on time and that the reports that were filed were markedly deficient. The court characterized Dr. Sanees’ report as “conclusory” in nature and therefore “insufficient” under Rule 26(a). R.75 at 5. It characterized Mr. Stilson’s report in the same way, noting that the report was devoid of any factual basis for its conclu-sory opinions. The court further noted that Mr. Stilson had admitted that his report lacked a detailed discussion because he had not been provided with discovery materials. Moreover, although the document did provide an index to the materials that Mr. Stil-son had reviewed, the index was not keyed to the various opinions that he had expressed.\nThe district court also addressed the explanation that Salgado’s counsel offered: He asserted that the reports were cursory because he and opposing counsel had an understanding that the reports would be “preliminary” in nature. In dealing with this explanation by Salgado’s counsel, the district court noted that opposing counsel had, at the court’s request, filed an affidavit stating that he had never waived, implicitly or explicitly, the requirements of Rule 26; moreover, he had never agreed to accept preliminary reports that were less detailed than those required by Rule 26. The court also pointed out that, although opposing counsel had made himself available for a deposition on this matter, counsel for Salga-do had never deposed him. Accordingly, the court found that it was not the custom or practice of defense counsel to waive the requirements of Rule 26 in eases with Sal-gado’s counsel. The court found, moreover, that there was no evidence of such an agreement in this particular case. Nor was the court willing to characterize the deficiency as harmless because defense counsel had handled similar cases and therefore must understand the substance of the plaintiffs’ witnesses’ reports. The court cannot, it concluded, impute to defense counsel what counsel might or might not know about the opinions of the plaintiffs’ experts.\nMore importantly, continued the court, the position of Salgado’s counsel with respect to the preliminary character of the reports “essentially nullifies the requirements of Rule 26.” R.75 at 9. In the court’s view, Rule 26 requires a full statement of an expert’s “opinions and the basis for those opinions irrespective of the particular case or defendant.” Id. at 10. Accordingly, the district court determined that the reports were untimely and did not comply with the requirements of Rule 26(a). Because the court found no substantial justification for the plaintiffs failure to comply with Rule 26(a), it granted GM’s motion to bar the testimony of both experts.\nThe court also denied Salgado’s motion to file a supplemental report to the earlier report of Mr. Stilson. The court noted that Salgado had had custody of the crash vehicle for three years and that a disassembly and laser mapping of the vehicle had taken place on April 13, 1995, a year before the filing of the report. Although Mr. Stilson had inspected the vehicle in April of 1995, it took him a year to file a preliminary report. Furthermore, noted the court, although Mr. Stil-son had attempted to justify the preliminary nature of his submission on the ground that he lacked discovery materials, there was no dispute among the parties that GM had not been served with requests for discovery. The court found “troubling” that Mr. Stilson could now tender a report containing the basis and reasons for his previously-expressed opinions even though he still lacked the discovery materials that he had considered so essential to arriving at those reasons. “[W]e can only conclude,” said the court, “that plaintiffs are now attempting to supplement Mr. Stilson’s preliminary report with information readily available prior to the court-ordered discovery deadlines.” R.75 at 11.\nThe court subsequently granted GM’s motion for summary judgment. The exclusion of the experts’ testimony left Salgado without a case.\n*739II\nDISCUSSION\n1.\nThis case comes to us from the grant of a motion for summary judgment. The standard of appellate review from such a disposition in the district court is de novo. See Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 722 (7th Cir.), petition for cert. filed, 67 USLW 3082 (U.S. July 2, 1998) (No. 98-66); Fisher v. Wayne Dalton Corp., 139 F.3d 1137, 1140 (7th Cir.1998). Here, however, the disposition of the motion for summary judgment was entirely dependent on the district court’s earlier ruling on the motion to exclude Salgado’s expert witnesses for noncomplianee with Rule 26(a). This ruling is reviewed under the abuse of discretion standard. See Cummins v. Lyle Indus., 93 F.3d 362, 367 (7th Cir.1996); Doe v. Johnson, 52 F.3d 1448, 1464 (7th Cir.1995); Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283-84 (7th Cir.1988). Under this standard, we shall affirm the judgment of the district court whenever we believe that the district court chose an option that was among those from which we might expect a district court reasonably to choose. See United States v. Allison, 120 F.3d 71, 74 (7th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 455, 139 L.Ed.2d 389 (1997).3 As our case law makes very clear, however, this standard is not without teeth. See Cunningham v. Waters Tan & Co., 65 F.3d 1351, 1360 (7th Cir.1995); Land v. Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Health & Welfare Fund, 25 F.3d 509, 515 (7th Cir.1994); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 936 (7th Cir.1989) (en banc); In re Ronco, Inc., 838 F.2d 212, 217-18 (7th Cir.1988). In applying this standard, we scrutinize the district court’s determination to ensure that it invoked the correct legal standards and that its findings of fact are not clearly erroneous.4\n2.\nOur use of the deferential standard to review a sanction imposed under Federal Rule of Civil Procedure 37 is a function of the appropriate division of capacity, and therefore responsibility, between the trial and appellate courts.5 It does not denigrate the importance of the decision. Depriving the parties of a merits disposition is serious business. As we wrote in Schilling v. Walworth County Park and Planning Commission, 805 F.2d 272 (7th Cir.1986):\n*740The sanction of dismissal with prejudice must be infrequently resorted to by dis-. trict courts in their attempts to control their dockets and extirpate nuisance suits.... In the normal course of events, justice is dispensed by the hearing of eases on their merits; only when the interests of justice are best served by dismissal can this harsh sanction be consonant with the role of courts.\nId. at 275 (citation omitted). The words of Judge Charles Clark of the Second Circuit in Gill v. Stolow, 240 F.2d 669 (2d Cir.1957), must be remembered whenever the sanction of dismissal is contemplated:\nIn final analysis, a court has the responsibility to do justice between man and man; and general principles cannot justify denial of a party’s fair day in court except upon a serious showing of willful default.\nId. at 670. Therefore, when reviewing the decision of a district court to impose the drastic sanction of dismissal, “[rjeluctant as we are to interfere,” id., we cannot let stand a dismissal that, in light of the entire record, is not “proportionate to the circumstances surrounding a party’s failure to comply with discovery rules.” Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 672 (7th Cir.1996). This does not mean, of course, that the district court must choose the least drastic or most reasonable sanction. See id.; Marrocco v. General Motors Corp., 966 F.2d 220, 225 (7th Cir.1992). But the sanction selected must be one that a reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the infraction. Of course, we must also scrutinize the district court’s methodology. Although the district courts have significant flexibility in the application of the rules in question, that latitude is clearly constrained by the principles of due process of law. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).\n3.\nWhen we deal with sanctions for violations of the rules governing litigation, we must begin, of course, with the text of those rules. Two rules are implicated in the decision of this ease, Rules 26 and 37 of the Federal Rules of Civil Procedure. In pertinent part, they read as follows:\nRule 26. General Provisions Governing Discovery; Duty of Disclosure\n(a) Required Disclosures; Methods to Discover Additional Matter.\n(2) Disclosure of Expert Testimony.\n(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.\n(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.\n(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same *741subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).\nFed.R.Civ.P. 26.\nRule 37. Failure to Make Disclosure or Cooperate in Discovery: Sanctions\n(e) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.\n(1) A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney’s fees, caused by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule and may include informing the jury of the failure to make the disclosure.\nFed.R.Civ.P. 37.\nThe plain wording of these rules makes it clear that the district court acted well within its discretion in setting the schedule it did and in requiring the adherence of the parties to that schedule. The schedule for discovery was set clearly and Salgado was afforded significant extensions to complete the work. Indeed, the last extension was for the specific purpose of affording Salgado an opportunity to complete the necessary preparation for the submission of the required experts’ reports. Despite this careful planning on the part of the district court and its specific warning to Salgado that failure to meet its final deadline would result in dismissal, Salgado never offered — indeed, does not offer to this date — a satisfactory explanation for its failure to comply with the directive of the district court. Counsel’s efforts to suggest that it was difficult for him to work with his own expert witnesses within the three-year time frame between the filing of the complaint and the deadline for discovery is without substance.\nMoreover, we can find no reason to quarrel with the district court’s determination that the reports that were submitted, albeit late, were not in compliance with Rule 26.6 Nor did the district court abuse its *742discretion in determining that the defendants had not waived their right to the report contemplated by Rule 26. We also can find no fault with the district court’s determination that Salgado’s failure ought not be deemed harmless. No matter what GM’s experience with this issue or with Salgado’s counsel may have been in the past, a matter that Salgado declined to pursue fully by failing to depose opposing counsel, GM had a right to know the conclusions of these particular expert witnesses with respect to this particular accident. Moreover, the court has a right, independent of the parties, to conduct trial preparation in a manner that husbands appropriately the scarce judicial resources of that busy district.\nNot only do we believe that the violation of Rule 26 is clearly established but we also believe that the district court acted well within its discretion when it decided to impose the sanction of precluding the witnesses from testifying. As we noted in Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996), the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless. As we have just demonstrated, Salgado has established neither of these mitigating circumstances. Here, moreover, although the district court is not required to fire a warning shot, Salgado was told in very graphic terms that the consequence of noncompliance with the court’s order would be the end of his case-“[I]t gets dunked, you lose-” R.116 at 5. Indeed, counsel replied that he heard the message “loud and clear.” Id.\nIf any further justification were necessary for the sanction, we think that the substance of Salgado’s tendered supplemental report would certainly supply it. Although Salgado had attempted to defend the “preliminary” nature of the initial reports tendered to the district court by suggesting that their super*743ficiality was necessary because of the lack of discovery information, he readily tendered a more thorough report as soon as it was apparent that the district court was serious about the imposition of the exclusion sanction. As the district court noted, because discovery was closed in the case, the information contained in the supplemental report must have been available before the missed deadline.\n4.\nThroughout this opinion, we have referred to the parties as the key actors in this sorry situation. Of course, the matters we have been discussing, the completion of discovery and the filing of witness reports, are, in the normal course of civil litigation, the responsibility of counsel. Here, a young person, injured in infancy, is denied a merits decision apparently because the attorney retained by her parent did not comply with the usual constraints placed by the district court on the parties to ensure the efficient management of litigation. As we pointed out in Patterson v. Coca-Cola Bottling Co., 852 F.2d 280 (7th Cir.1988), the fact that the client is affected by the delicts of counsel is not a justification for excusing counsel’s conduct or for mitigating the operation of the rule. See id. at 284; see also Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Sweat v. Peabody Coal Co., 94 F.3d 301, 306 (7th Cir.1996). However, we point out that a client whose interests are harmed by an attorney is, of course, not without a remedy. See Patterson, 852 F.2d at 284 n. 5.\nConclusion\nThe district court acted well within its discretion in determining that Salgado had not complied with Rule 26 of the Federal Rules of Civil Procedure. Counsel failed to submit the expert witness reports in a timely fashion. When the reports were submitted, they were deficient in substance and counsel offered no meritorious excuse for the deficiency. The district court also acted well within its discretion when it imposed the sanction of excluding the testimony of the expert witnesses. Salgado has made no showing that the violation of Rule 26 was substantially justified or harmless. Indeed, the district court was on solid ground in concluding that the effort to file a supplemental report containing the requisite information demonstrated that the violation of the Rule was an egregious one. Moreover, the district court explicitly warned counsel of the consequences of noncomplianee. Accordingly, the judgment of the district court is affirmed.\n\n. Century Products, the manufacturer of the car seat, originally a defendant, was granted summary judgment and is not now a party in this appeal.\n\n\n. In response to the plaintiffs’ request for a second extension for the completion of discovery at the January 25, 1996 status hearing, the court stated: \"How about if we say a final cut off, this is it, date for — and then it gets dunked, you lose, if it [all discovery) including Rule 26 expert witness reports] is not in [by] April 12th?” R.l 16 at 5.\n\n\n. See also United States v. Depoister, 116 F.3d 292, 294 (7th Cir.1997) (reviewing trial court’s denial of trial continuance); Gateway Eastern Ry. Co. v. Terminal R.R. Ass’n of St. Louis, 35 F.3d 1134, 1142 (7th Cir.1994) (reviewing trial court's determination of amount of bond to be posted); Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 390 (7th Cir.1984) (reviewing trial court’s preliminary injunction rulings).\n\n\n. See Cooter & Cell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (\"A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”); United States v. Silva, 140 F.3d 1098, 1101 n. 4 (7th Cir.1998) (stating that a “district court abuses its discretion when it makes an error of law or when it makes a clearly erroneous finding of fact”); Doe v. Maywood Hous. Auth., 71 F.3d 1294, 1299 (7th Cir.1995) (stating that district court abuses its discretion \"when its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence”); Cunningham, 65 F.3d at 1354 (stating that we shall reverse the district court \"only if it based its decision on a clear error of fact, or if it abused its discretion”).\n\n\n.The Supreme Court has made clear that, because the judicial actor better positioned to decide factual determinations and to rule on legal issues relating thereto is the district court, an appellate court’s review of such issues in the context of a sanctions determination should be deferential in order to \"streamline the litigation process.” See Cooter & Gell, 496 U.S. at 404, 110 S.Ct. 2447 (discussing Pierce v. Underwood, 487 U.S. 552, 559-60, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). For this reason, the abuse of discretion standard governs appellate review of sanctions for the abuse of the discovery process. See Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1052 (7th Cir.1998) (noting that \"[district judges enjoy broad discretion in settling discovery disputes and in delimiting the scope of discovery in a given case,” declaring our review to be \"necessarily deferential”); Sweat v. Peabody Coal Co., 94 F.3d 301, 306 (7th Cir.1996) (noting \"that the district court’s power to levy sanctions against court participants so as to effectuate compliance with the court's discovery directives inheres in its role as administrator of the litigation,” concluding that our review of such discretionary decisions is deferential).\n\n\n. Rule 26(a) expert reports must be \"detailed and complete.” Fed.R.Civ.P. 26 Advisoiy Committee's note; see also Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 57, 136 L.Ed.2d 20 (1996). A complete report must include the substance of the testimony which an expert is expected to give on direct examination together with the reasons therefor. Fed.R.Civ.P. 26 Advisory Committee's note; see also Smith v. State Farm Fire & Cas. Co., 164 F.R.D. 49, 53 (S.D.W.Va.1995); cf. Walsh v. McCain Foods Ltd., 81 F.3d 722, 727 (7th Cir.1996). The report must be complete such that opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources. See Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir.), cert. denied, 516 U.S. 822, 116 S.Ct. 84, 133 L.Ed.2d 42 (1995). Expert reports must not be sketchy, vague or preliminary in nature. Fed. R.Civ.P. 26 Advisory Committee’s note; see also Sierra Club, 73 F.3d at 571. Disclosures must not be used as a means to extend a discovery deadline. See id. Expert reports must include \"how” and \"why” the expert reached a particular result, not merely the expert's conclusory opinions. See Reed v. Binder, 165 F.R.D. 424, 429 (D.N.J.1996).\nCompliance with Rule 26, in particular with the requirement of total disclosure, is emphasized in the Advisoiy Committee comments. The \"incentive for total disclosure” is the threat that expert testimony not disclosed in accordance with the rule can be excluded pursuant to Rule 37(c)(1). The availability of this sanction \"put[s] teeth into the rule.” Richard M. Heimann & Rhonda L. Woo, Import of Amended Federal Rule of Civil Procedure 26(a), 506 PLI/Lit 279, 293 (July-Aug. 1994). The rule presents alternatives less severe than exclusion of the expert testimony, however. If the expert’s report contains only incomplete opinions, the court may choose to restrict the expert's testimony to those opinions alone. See Robert Matthew Lovein, A Practitioner’s Guide: Federal Rule of Civil Procedure 26(a) — Automatic Disclosure, 47 Syracuse L.Rev. 225, 255 (1996).\nThe comments of the Advisoiy Committee make clear that the expert's reports are to be a *742detailed and complete statement of the testimony of the expert on direct examination. It is expected that the reports will be far more complete and detailed than the practice in responding to interrogatories under former Rule 26(b)(4)(i). The comments also indicate that while the rule does not preclude counsel from assisting in preparing the report, it should be written in a manner that reflects the testimony to be given by the witness and must be signed by the expert.\nHeimann, 506 PLI/Lit at 292-93. In A Practitioner's Guide, the author itemizes the information that must be contained in the expert's report in a complete and detailed fashion:\n(1) a complete and detailed statement of all opinions to be expressed at trial and the basis and reasons in support of those opinions. In simple language, this means that the report must contain all information relating to “how\" and \"why” the expert reached the conclusions and opinions contained within the report;\n(2) the data or other information considered by the witness in forming the opinions. This means “what\" the expert saw, heard, considered, read, thought about or relied upon in reaching the conclusions and opinions contained within the report. This includes factual information given to the expert by the attorney in forming an opinion;\n(3) all exhibits to be used as a summary of or support for the opinions. This category encompasses demonstrative evidence which summarizes or supports the expert's opinions;\n(4) the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; (5) the compensation being paid for the study and testimony given by the expert; and\n(6) a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. At a minimum, the identification of \"cases\" should include the name of the court or administrative agency, the names of the parties, the case number, and whether the testimony was by deposition or at trial.\nLovein, 47 Syracuse L.Rev. at 257-58 (citations omitted); see also Steven E. Feldman et ah, Mandatory Disclosure and the Rocket Dockets Accelerating the Processes of Litigation, 456 PLI/Pat 269, 283 (Nov. 1996) (listing requirements of Rule 26(a)(2)); Reed v. Binder, 165 F.R.D. 424 (D.N.J.1996) (same).\nIt is the responsibility of the attorney to ensure that the expert's report contains complete opinions that are properly and thoroughly set forth and supported; it should be the goal of the parties to eliminate surprise, avoid unnecessary depositions and reduce costs. See Reed, 165 F.R.D. at 429 (citing Sylla-Sawdon, 47 F.3d at 284). We agree with the Tenth Circuit that Rule 26 enhances the district court's role as \"gatekeeper,” for it permits \"an early and full evaluation” of evidentiary problems in a case and allows the court to \"make an early pretrial evaluation of issues of admissibility” carefully and meticulously. Robinson v. Missouri Pacific R.R. Co., 16 F.3d 1083, 1089 (10th Cir.1994). Without such completeness, counsel and the party he represents risk the imposition of sanctions under Rule 37.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued Jan. 15, 1998.","precedential_status":"Published","slug":"salgado-ex-rel-salgado-v-general-motors-corp"} {"attorneys":"Daniel D. Yuhas and James K. Zerkle, both of State Appellate Defender’s Office, of Springfield, for appellant., J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Larry Wechter, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.","case_name":"People v. Tyus","case_name_full":"THE PEOPLE OF THE STATE OF ILLINOIS v. JERALD TYUS","case_name_short":"Tyus","citation_count":0,"citations":["97 Ill. App. 3d 207"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1981-06-16","date_filed_is_approximate":false,"id":7112883,"judges":"Trapp","opinions":[{"author_str":"Trapp","ocr":true,"opinion_id":7019377,"opinion_text":" Mr. PRESIDING JUSTICE TRAPP delivered the opinion of the court: On April 16, 1979, defendant, Jerald Tyus, pleaded guilty to the charge of attempt robbery in violation of sections 8 — 4 and 18 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4 and 18 — 1) and was placed on probation for a period of 2 years commencing May 7, 1979. One of the conditions of defendant’s probation was that he not violate any other criminal statutes of any jurisdictions. On August 13, 1980, a petition to revoke defendant’s probation was filed alleging that defendant had committed the offenses of escape and aggravated battery in violation of sections 31 — 6 and 12 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 31 — 6 and 12 — 4). A hearing was held on the petition at the conclusion of which the trial court determined that defendant had been proved guilty of both offenses by a preponderance of the evidence, thus establishing a violation of a condition of defendant’s probation. The court then revoked defendant’s probation. A sentencing hearing was held at which the State presented no further evidence. The defendant and his fiancée testified in mitigation. The presentence report submitted to the court recommended against probation, and the Assistant State’s Attorney recommended a sentence of 3 years’ imprisonment. Defendant requested that he be kept on probation or given a short period of incarceration. If the court was unwilling to do either of those alternatives, defendant requested the minimum sentence. The trial court sentenced defendant to 2 years’ imprisonment, the statutory minimum term of imprisonment for attempt robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(c)(4) and par. 1005 — 8—1(a)(6)). In sentencing the defendant, the trial court simply stated: “Show the evidence heard and arguments heard. We are dealing here with a situation where probation was granted to this defendant originally, and I believe against the recommendation of both the people and the probation Office, and — this defendant has once again involved himself in a crime of violence. So I feel for all that probation must be terminated in this particular situation. And I do terminate the defendant’s probation and revoke it. And I do sentence the defendant to the Department of Corrections of the State of Illinois for a determinate term of two years.” Citing People v. Rickman (1979), 73 Ill. App. 3d 755, 391 N.E.2d 1114, defendant asserts as the sole issue on appeal that he was denied his statutory rights to a proper sentence hearing because the trial court failed to state its reasons for imposing the sentence. Defendant contends that by reason of the alleged error, the cause must be remanded for a proper sentencing'hearing. In addition to the trial court’s statement in colloquy concerning defendant’s further crime of violence while on probation, the record discloses that the written judgment order included statements that the court had considered the nature and circumstances of the offense as well as the history and character of the defendant, and found that defendant’s imprisonment was necessary for the protection of the public and that defendant was in need of correctional treatment that could most effectively be provided by imprisonment. While section 5 — 4—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(c)) provides that “(c) In imposing a sentence for a felony, the trial judge shall specify on the record the particular evidence, information, factors in mitigation or aggravation or other reasons that led to his sentencing determination,” we conclude that the opinion in Rickman does not require that this case be remanded for a further sentencing hearing. The sentence imposed was the statutory minimum, and the defendant has not alleged that the sentence was excessive, or that he was prejudiced by the asserted failure of the trial court to recite all statutory references. The same argument was presented in People v. Taylor (1980), 82 Ill. App. 3d 1075, 403 N.E.2d 607. That court found that remanding for a new sentence hearing was unnecessary, stating: “Defendant has not alleged that his sentence was excessive, that incompetent evidence was considered by the trial court, or that the sentence imposed was not within the statutorily permissible range.” 82 Ill. App. 3d 1075, 1077, 403 N.E.2d 607, 609. In People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9, defendant contended that the trial court had failed to comment upon her educational background and employment history. As to such argument, the court stated: “The requirement that the trial judge set forth his reasons in the record for the particular sentence imposed does not obligate the judge to recite, and assign a value to, each fact presented in evidence at the sentencing hearing,” 81 Ill. 2d 524, 534, 411 N.E.2d 9, 14. In Meeks, there was a further contention that the presentence report failed to comply with the applicable statute in that it failed to set out community resources which might be available to rehabilitate the defendant. The opinion held that the error was not preserved for review. The court stated: “It is the duty of the parties, however, to bring to the attention of the sentencing authority any alleged deficiency or inaccuracy in the presentence report. * * * any objections to the sufficiency of the report must first be presented to the trial court.” 81 Ill. 2d 524, 533, 411 N.E.2d 9, 14. Accord, People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323; People v. Pierce (1976), 62 Ill. 2d 223, 341 N.E.2d 705. In appeals asserting that a failure of the trial court to comply with section 5 — 4—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par 1005 — 4—1(c)) required remandment for a new sentence, the appellate court has found waiver of the formal statutory error for the reasons stated in Meeks. People v. Taylor (1980), 82 Ill. App. 3d 1075, 403 N.E.2d 607; People v. Baseer (1980), 90 Ill. App. 3d 866, 414 N.E.2d 5; People v. Harvey (1980), 92 Ill. App. 3d 465, 415 N.E.2d 1161. As noted in Taylor, if defendant had objected to the failure of the trial court to expand his statement concerning sentence, the error could have been corrected immediately, and that court concluded that defendant’s failure to present the question to the trial court and thereby allow it to supply an omitted statement should preclude him from using the issue on appeal. People v. Carraro (1979), 77 Ill. 2d 75, 394 N.E.2d 1194. There being no contention that the trial court abused its discretion in imposing sentence, the judgment of the trial court is affirmed. Affirmed. GREEN and WEBBER, JJ., concur. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-tyus"} {"case_name":"In re Estate of Wilson","case_name_full":"In re ESTATE of Clifton E. WILSON","citation_count":0,"citations":["284 So. 2d 397"],"court_full_name":"Supreme Court of Florida","court_jurisdiction":"Florida, FL","court_short_name":"Supreme Court of Florida","court_type":"S","date_filed":"1973-10-18","date_filed_is_approximate":false,"id":7534091,"opinions":[{"ocr":true,"opinion_id":7458705,"opinion_text":"\nCertiorari dismissed. 282 So.2d 680.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-estate-of-wilson"} {"case_name":"People v. Hahn","case_name_short":"Hahn","citation_count":0,"citations":["2022 NY Slip Op 06616"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2022-11-18","date_filed_is_approximate":false,"id":8515585,"opinions":[{"download_url":"http://www.courts.state.ny.us/reporter/3dseries/2022/2022_06616.htm","ocr":false,"opinion_id":8488045,"opinion_text":"\n\nPeople v Hahn (2022 NY Slip Op 06616)\n\n\n\n\n\nPeople v Hahn\n\n\n2022 NY Slip Op 06616\n\n\nDecided on November 18, 2022\n\n\nAppellate Division, Fourth Department\n\n\n\nPublished by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.\n\n\nThis opinion is uncorrected and subject to revision before publication in the Official Reports.\n\n\n\nDecided on November 18, 2022\nSUPREME COURT OF THE STATE OF NEW YORK\nAppellate Division, Fourth Judicial Department\n\nPRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.\n\n\n893 KA 17-02230\n\n[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,\nvLEONARD E. HAHN, IV, DEFENDANT-APPELLANT. \n\n\n\n\n\n\nNORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (FARES A. RUMI OF COUNSEL), FOR DEFENDANT-APPELLANT.\nJOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO, NEW YORK PROSECUTORS TRAINING INSTITUTE, INC., ALBANY (DAWN CATERA LUPI OF COUNSEL), FOR RESPONDENT.\n\n\n\tAppeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered May 15, 2017. The judgment convicted defendant upon his plea of guilty of rape in the first degree. \nIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.\nMemorandum: On appeal from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35 [3]), defendant contends that County Court erred in failing to determine on the record whether he should be afforded youthful offender status. We reject that contention. Pursuant to CPL 720.10 (2) (a) (iii), a youth who is convicted of, inter alia, rape in the first degree is ineligible for a youthful offender adjudication unless the court concludes that there are \"mitigating circumstances that bear directly upon the manner in which the crime was committed\" or, \"where defendant was not the sole participant in the crime, [that] the defendant's participation was relatively minor\" (CPL 720.10 [3]). Contrary to defendant's contention, the record establishes that the court properly recognized that defendant, who was 17 years old at the time of the commission of the crime, was eligible for youthful offender treatment if he met \"either or both of the criteria provided in CPL 720.10 (3)\" (People v Middlebrooks, 25 NY3d 516, 526 [2015]). The court offered defense counsel and defendant an opportunity to set forth any mitigating factors, but both declined (see People v Pulvino, 115 AD3d 1220, 1223 [4th Dept 2014], lv denied 23 NY3d 1024 [2014]). The court then properly placed its determination on the record that defendant was not eligible for youthful offender status because he was the sole participant in the crime and there were no mitigating factors bearing directly on the manner in which the crime was committed (cf. People v Williams, 185 AD3d 1456, 1457 [4th Dept 2020]; see generally Middlebrooks, 25 NY3d at 526-527; People v Carlson, 184 AD3d 1139, 1143 [4th Dept 2020], lv denied 35 NY3d 1064 [2020]).\nEntered: November 18, 2022\nAnn Dillon Flynn\nClerk of the Court\n\n\n\n\n\n\n\n\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"people-v-hahn"} {"case_name":"Carroll v. Eyman","case_name_full":"Carroll v. Eyman, Warden","case_name_short":"Carroll","citation_count":0,"citations":["381 U.S. 944"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1965-06-01","date_filed_is_approximate":false,"id":8961520,"opinions":[{"ocr":true,"opinion_id":8952702,"opinion_text":"\nSup. Ct. Ariz. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"carroll-v-eyman"} {"case_name":"Gilliland v. City of Palmdale","case_name_full":"Gilliland v. City of Palmdale and Gilliland v. County of Los Angeles","case_name_short":"Gilliland","citation_count":0,"citations":["456 U.S. 967"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1982-05-17","date_filed_is_approximate":false,"id":9038892,"opinions":[{"ocr":true,"opinion_id":9032223,"opinion_text":"\nAppeals from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question. Reported below: 126 Cal. App. 3d 610, 179 Cal. Rptr. 73 (second case).\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"gilliland-v-city-of-palmdale"} {"case_name":"In re Disbarment of Pattison","case_name_full":"In re Disbarment of Pattison","citation_count":0,"citations":["499 U.S. 945"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","cross_reference":"[For earlier order herein, see 498 U. S. 956.]","date_filed":"1991-04-01","date_filed_is_approximate":false,"id":9107344,"opinions":[{"ocr":true,"opinion_id":9101758,"opinion_text":"\nDisbarment entered.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-disbarment-of-pattison"} {"case_name":"Adams v. Kerr","case_name_full":"Adams v. Kerr, Deputy Warden","case_name_short":"Adams","citation_count":0,"citations":["510 U.S. 1125"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1994-02-22","date_filed_is_approximate":false,"id":9142603,"opinions":[{"ocr":true,"opinion_id":9137282,"opinion_text":"\nC. A. 3d Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"adams-v-kerr"} {"attorneys":"Police Officer Robert P. Burke for the Commonwealth, The petitioner appeared pro se.","case_name":"Commonwealth v. Hawxhurst","case_name_full":"Commonwealth v. James J. Hawxhurst","case_name_short":"Commonwealth","citation_count":0,"citations":["1988 Mass. App. Div. 25"],"court_full_name":"Massachusetts District Court, Appellate Division","court_jurisdiction":"Massachusetts, MA","court_short_name":"Mass. Dist. Ct., App. Div.","court_type":"SA","date_filed":"1988-02-08","date_filed_is_approximate":false,"id":9300391,"judges":"Dohoney, Lenhoff, McGuane","opinions":[{"author_str":"Dohoney","ocr":true,"opinion_id":9295410,"opinion_text":"\nDohoney, J.\nThis action involves an appeal of a civil motor vehicle infraction.\nOn J une 27,1987, the petitioner was given a motor vehicle citation for failure to stop for a stop sign. He requested a hearing before the Clerk-Magistrate of the Clinton Division. At the hearing, he was found responsible by the Clerk-Magistrate and appealed to a justice. He was found responsible by the Justice on August 10,1987, and claimed an appeal to the Appellate Division.\nAs is so often the case in similar matters, the thrust of the petitioner’s case involves factual determinations concerning the configuration of the intersection and whether or not certain admissions were made by the petitioner. These matters fall within the purview of the hearings before the Clerk-Magistrate and the Justice. Our reviewis limited to matters oflaw. See General Laws, Chapter 90C, Section 3(a); Avon Police Department v. Godino, 1987 Mass. App. Div. 155. The Petitioner has not presented an error of law but simply a disagreement with the facts.\nConsequently, the appeal is dismissed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"commonwealth-v-hawxhurst"} {"case_name":"N. Royalton v. Urich","case_name_short":"Urich","citation_count":1,"citations":["2013 Ohio 2206"],"court_full_name":"Ohio Court of Appeals","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Court of Appeals","court_type":"SA","date_filed":"2013-05-30","date_filed_is_approximate":false,"id":2702560,"judges":"Boyle","opinions":[{"author_id":8055,"download_url":"http://www.sconet.state.oh.us/rod/docs/pdf/8/2013/2013-ohio-2206.pdf","ocr":false,"opinion_id":2702560,"opinion_text":"[Cite as N. Royalton v. Urich, 2013-Ohio-2206.]\n\n\n\n Court of Appeals of Ohio\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\n\n JOURNAL ENTRY AND OPINION\n No. 99276\n\n\n\n\n CITY OF NORTH ROYALTON\n PLAINTIFF-APPELLANT and\n CROSS-APPELLEE\n\n vs.\n\n RICHARD URICH, ET AL.\n DEFENDANTS-APPELLEES and\n CROSS-APPELLANTS\n\n\n\n JUDGMENT:\n AFFIRMED AS MODIFIED\n\n\n Administrative Appeal from the\n Cuyahoga County Court of Common Pleas\n Case No. CV-777769\n\n BEFORE: Boyle, P.J., Celebrezze, J., and S. Gallagher, J.\n\n RELEASED AND JOURNALIZED: May 30, 2013\n\fATTORNEYS FOR APPELLANT\n\nJames A. Budzik\nMansour, Gavin, Gerlack & Manos Co., L.P.A.\n55 Public Square\nSuite 2150\nCleveland, Ohio 44113\n\nThomas A. Kelly\nLaw Director\nDonna M. Vozar\nAssistant Prosecutor\nCity of North Royalton\n13834 Ridge Road\nNorth Royalton, Ohio 44133\n\nATTORNEY FOR APPELLEES\n\nMichael W. Piotrowski\nFraternal Order of Police\nOhio Labor Council, Inc.\n2721 Manchester Road\nAkron, Ohio 44319\n\fMARY J. BOYLE, P.J.:\n\n {¶1} Plaintiff-appellant, city of North Royalton (“City”), appeals the trial court’s\n\njudgment (1) confirming and enforcing an arbitration award in favor of\n\ndefendants-appellees, Richard Urich and International Association of Fire Fighters,\n\nAFL-CIO Local 2156 (“Union”), and (2) denying its motion to vacate. Urich and the\n\nUnion have filed a single cross-assignment of error, seeking clarification of the effective\n\ndate of the arbitration award. We affirm the trial court’s judgment confirming the\n\narbitration award and sustain the single cross-assignment of error.\n\n Procedural History and Facts\n\n {¶2} North Royalton and the Union are parties to a collective bargaining\n\nagreement (“CBA”). Under the agreement, disputes between the City and the Union\n\nconcerning the application or interpretation of the CBA must be resolved through the\n\nagreement’s grievance-arbitration procedure.\n\n {¶3} The facts underlying this appeal are not disputed and are set forth in the\n\narbitrator’s opinion and award as follows.\n\n {¶4} Urich had been a North Royalton firefighter–paramedic for seven years. On\n\nApril 17, 2010, Urich and two other firefighter–paramedics were dispatched to assist a\n\nresident suffering an apparent seizure. Upon arriving at the scene, they were informed\n\nby the patient’s wife that the patient had a history of heroin abuse. The paramedics\n\nforcibly removed the bathroom door and found the patient unconscious on the bathroom\n\ffloor. Urich established an IV line and injected Narcan into the patient’s system to\n\ncounteract the effect of a possible heroin overdose. The patient regained consciousness\n\nand within minutes was able to walk to the rescue squad to be transported to Parma\n\nCommunity General Hospital for further treatment.\n\n {¶5} Prior to departing the bathroom with the patient, Urich flushed the toilet\n\ncontaining paper and debris. Urich also inserted the syringe used by the patient and a\n\nsmall package wrapped with a rubber band inside the empty Narcan box. While he was\n\nleaving the apartment, Urich informed Lieutenant Greg Kazmir, who had recently arrived\n\non the scene, that he flushed the toilet in order to protect the safety of the patient’s child.\n\nPrior to departing, Urich removed the syringe from the Narcan box and placed it in the\n\nsharps container located in the rescue squad vehicle. Urich also placed the\n\nrubber-band-wrapped package on the deck of the rescue squad next to the sharps\n\ncontainer.\n\n {¶6} Upon arriving at the hospital with the patient, Urich was contacted by a\n\ndispatcher with the North Royalton Police Department, who inquired whether there were\n\nany drugs on the scene. Urich told the dispatcher that everything had been flushed down\n\nthe toilet to protect the child. Urich subsequently had a discussion with his co-workers\n\nconcerning the patient’s syringe and rubber-band-wrapped package located in the rescue\n\nsquad vehicle. Soon thereafter, Urich telephoned North Royalton police and indicated\n\nthat his co-workers had found the patient’s syringe and rubber-band-wrapped package in\n\nthe rescue vehicle that apparently must have fallen out of the patient’s pocket. The\n\fNorth Royalton police subsequently retrieved the syringe and package and instructed\n\nUrich to complete a statement form regarding the incident.\n\n {¶7} On April 18, 2010, Urich telephoned both Lieutenant Tyson Fabish and Fire\n\nChief Michael Fabish and informed them of the incident. Urich’s co-workers, who\n\naccompanied him on the emergency call and each expressed concerns regarding the\n\nevents that transpired during the course of the call, submitted written supplemental fire\n\ndepartment incident reports on April 18, 2010. Based on conflicting reports between\n\nUrich’s version of the events and his co-workers’, Chief Fabish initiated an internal\n\ninvestigation.\n\n {¶8} On April 20, 2010, the North Royalton Police Department commenced an\n\ninvestigation concerning Urich’s conduct in connection with the April 17, 2010\n\nemergency call. Three days later, Urich was arrested and formally charged with the\n\nfollowing three felony violations: tampering with evidence, obstructing justice, and drug\n\npossession.\n\n {¶9} Urich was subsequently suspended without pay pending final resolution of\n\nthe criminal charges. On April 28, 2011, Urich pleaded guilty to a single count of\n\nattempted obstructing justice, a first degree misdemeanor. On May 31, 2011, the City’s\n\nsafety director issued a decision to terminate Urich’s employment, which was upheld by\n\nthe mayor. Thereafter, the Union provided the City with a notice to submit the matter to\n\narbitration under the CBA.\n\n {¶10} The parties mutually agreed on the arbitrator and submitted the following\n\fstipulated issue for the arbitrator to resolve: “Whether there was just cause to terminate\n\nthe grievant on May 31, 2011? If not, what should the remedy be?” After hearing\n\nthree days of evidence and allowing the submission of post-hearing briefs, the arbitrator\n\nissued a 40-page opinion on February 16, 2012, awarding the following:\n\n The grievant’s discharge was not for just cause. The City failed to\n satisfy its burden of proof that the grievant violated each of the Rules and\n Regulations as cited in the Safety Director’s Decision dated May 31, 2011.\n The grievance is sustained, in part, as follows. The grievant shall be\n reinstated to his former position with his seniority restored, but without\n back pay. The fees and expenses of the arbitrator shall be divided equally\n between the City and the grievant.\n\n {¶11} The City subsequently filed a complaint in common pleas court, seeking to\n\nvacate the arbitrator’s decision. Urich and the Union answered the complaint and filed a\n\ncross-motion to confirm the arbitrator’s decision. The trial court set the matter for\n\nbriefing and ultimately denied the City’s motion to vacate and granted the Union and\n\nUrich’s motion to confirm, ordering Urich reinstated to his former position with the City\n\nand his seniority restored but without back pay.\n\n {¶12} The City now appeals, raising three assignments of error:\n\n I. The common pleas court erred to the prejudice of the City of North\n Royalton by failing to vacate the award of the arbitrator which reinstated\n Richard Urich to city employment in accordance with R.C. 2711.10(D).\n\n II. The common pleas court erred in the prejudice of the City of North\n Royalton by confirming the arbitration award which reinstated Richard\n Urich to city employment.\n\n III. The common pleas court erred to the prejudice of the City of North\n Royalton by failing to determine the arbitration award reinstating Richard\n Urich to city employment was in violation of public policy.\n\f {¶13} The Union and Urich have filed a cross-appeal, raising the following single\n\ncross-assignment of error:\n\n I. The common pleas court erred to the prejudice of the appellees by\n\n confirming the award in such terms as to suggest that the award was not\n\n effective as of its date of issuance.\n\n Standard of Review\n\n {¶14} “Judicial review of labor arbitration awards is limited and courts must afford\n\nsubstantial deference to the arbitrator’s decision.” Cuyahoga Metro. Hous. Auth. v.\n\nSEIU Local 47, 8th Dist. No. 88893, 2007-Ohio-4292, citing Painesville City Local\n\nSchools Bd. of Edn. v. Ohio Assn. of Pub. School Emps., 11th Dist. No. 2005-L-100,\n\n2006-Ohio-3645. Generally, arbitration awards are presumed valid, and a reviewing\n\ncourt may not merely substitute its judgment for that of the arbitrator. Bowden v.\n\nWeickert, 6th Dist. No. S-05-009, 2006-Ohio-471, ¶ 50, citing Findlay City School Dist.\n\nBd. of Edn. v. Findlay Edn. Assn., 49 Ohio St.3d 129, 132, 551 N.E.2d 186 (1990), rev’d\n\non other grounds, Cincinnati v. Ohio Council 8, AFSCME, 61 Ohio St.3d 658, 576\n\nN.E.2d 745 (1991).\n\n {¶15} The policy underlying the narrow standard of review and presumption of\n\nvalidity originates “from the fact that arbitration is a creature of contract,” and\n\n“[c]ontracting parties who agree to submit disputes to an arbitrator for final decision have\n\nchosen to bypass the normal litigation process.” Motor Wheel Corp. v. Goodyear Tire &\n\nRubber Co., 98 Ohio App.3d 45, 52, 647 N.E.2d 844 (8th Dist.1994). Indeed, if parties\n\fcannot rely on the arbitrator’s decision — i.e., if a court overrules that decision because it\n\nperceives factual or legal error in the decision — “the parties have lost the benefit of their\n\nbargain.” Id. Under those circumstances, the intent of arbitration would be defeated,\n\nand arbitration would merely become “a system of junior varsity trial courts offering the\n\nlosing party complete and vigorous de novo review.” Id.\n\n {¶16} R.C. 2711.10 sets forth narrow grounds upon which a trial court should\n\nvacate an arbitration award, all of which relate to the conduct of the arbitrator: (A) fraud,\n\n(B) corruption, (C) misconduct, or (D) exceeded powers. Relying on the last ground, as\n\ncontained in R.C. 2711.10(D), the City raises three arguments in support of its claim that\n\nthe “arbitrator exceeded his powers or so imperfectly executed them that mutual, finite\n\nand definite award” was not made.\n\n {¶17} When determining whether the arbitrator has exceeded his powers under\n\nR.C. 2711.10(D), the reviewing court must confirm the arbitration award if it finds that\n\nthe arbitrator’s award draws its essence from the collective bargaining agreement and it is\n\nnot unlawful, arbitrary, or capricious. Miami Twp. Bd. of Trustees v. Fraternal Order of\n\nPolice, Ohio Labor Council, Inc., 81 Ohio St.3d 269, 690 N.E.2d 1262 (1998), syllabus;\n\nFindlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn., 49 Ohio St.3d 129, 132-133,\n\n551 N.E.2d 186 (1990). “An arbitrator’s award departs from the essence of a collective\n\nbargaining agreement when: (1) the award conflicts with the express terms of the\n\nagreement, and/or (2) the award is without rational support or cannot be rationally derived\n\nfrom the terms of the agreement.” Ohio Office of Collective Bargaining v. Ohio Civ.\n\fServ. Emps. Assn., Local 11, AFSCME AFL-CIO, 59 Ohio St.3d 177, 180, 572 N.E.2d 71\n\n(1991), syllabus.\n\n {¶18} The review of an arbitration award pursuant to R.C. 2711.10(D) is not a de\n\nnovo review of the merits of the dispute. Buyer’s First Realty, Inc. v. Cleveland Area\n\nBd. of Realtors, 139 Ohio App.3d 772, 784, 745 N.E.2d 1069 (8th Dist.2000). “Also,\n\nwe do not review an arbitration award for legal or factual errors.” Cleveland v.\n\nCleveland Police Patrolmen’s Assn., 8th Dist. No. 98259, 2012-Ohio-5746, ¶ 21.\n\nAgain, our review under R.C. 2711.10(D) is limited to the question of whether the\n\narbitration award “draws its essence from the * * * agreement and is not unlawful,\n\narbitrary or capricious.” Findlay City School Dist. Bd. of Edn. at paragraph two of the\n\nsyllabus.\n\n Incomplete Award\n\n {¶19} The City first argues that the arbitration award should have been vacated\n\nbecause the arbitrator “did not make a final and definite award upon all the issues\n\nsubmitted to him.” Specifically, the City points to two administrative charges that the\n\narbitrator did not rule upon in his decision and award, namely, Rule 3.3.1, which provides\n\nthat any activity prohibited by or in violation of the Ohio Revised Code is just cause for\n\ndiscipline, and Rule 3.3.16, which prohibits immoral, unethical, or notoriously disgraceful\n\nconduct by a firefighter. We find that the City’s argument lacks merit.\n\n {¶20} The arbitrator was charged with deciding the following stipulated issue:\n\n“whether there was just cause to terminate the grievant on May 31, 2011? If not, what\n\fshould the remedy be?” The arbitrator ultimately concluded that although “significant\n\ndiscipline was warranted, the grievant’s discharge was without just cause.” Here, the\n\narbitrator properly performed his duties by answering the stipulated question that was\n\npresented to him. We find no basis to conclude that the arbitrator’s failure to\n\nspecifically discuss Rules 3.3.1 and 3.3.16 warrants vacation of the award. Indeed, to\n\nthe extent that the arbitrator did not make a specific finding with regard to these two\n\nadministrative rules, “an arbitrator is not required to enter findings of fact.” Sicor Secs.,\n\nInc. v. Albert, 2d Dist. No. 22799, 2010-Ohio-217, * 6, citing N. Ohio Sewer Contrs., Inc.\n\nv. Bradley Dev. Co., Inc., 159 Ohio App.3d 794, 2005-Ohio-1014, 825 N.E.2d 650, ¶ 19\n\n(8th Dist.).\n\n {¶21} We further note that the two administrative rules at issue are broad and\n\nencompass the same conduct that gave rise to many of the eight more specific rules cited\n\nby the City’s safety director in his decision to terminate Urich’s employment. In the\n\narbitrator’s 40-page opinion, the arbitrator discussed at length the allegations at issue and\n\nfound that the City had proven some violations but not all of the violations listed to\n\nwarrant termination of Urich’s employment. Indeed, the arbitrator found that serious\n\ndiscipline was warranted but that the City’s terminating Urich’s employment was\n\nexcessive under the facts and circumstances of this case. We therefore find no merit to\n\nthe City’s claim that the arbitrator did not make a final and definite award upon all the\n\nissues submitted to him pursuant to R.C. 2711.10(D).\n\n Burden of Proof\n\f {¶22} The City next argues that the arbitrator exceeded his powers or so\n\nimperfectly executed them when “he imposed additional burdens of proof upon the City\n\nas part of just cause not contained in the CBA.” The City contends that the arbitrator\n\ncreated a new contractual burden upon it by applying a heightened burden of proof,\n\nrequiring clear and convincing evidence to support a disciplinary action, instead of the\n\ncustomary preponderance of the evidence in administrative disciplinary proceedings.\n\n {¶23} But the CBA is silent as to the burden of proof to be applied. The\n\narbitrator’s application of a clear and convincing burden of proof, therefore, does not\n\nconflict with an express term of the CBA. The Ohio Supreme Court has recognized that\n\nan arbitrator has the inherent power “to determine the sufficiency of the cause and the\n\nreasonableness of the penalty imposed” in the absence of contract language in the CBA\n\nexpressly prohibiting such power. Miami Twp., 81 Ohio St.3d 269, 271-272, 690 N.E.2d\n\n1262. Thus, the arbitrator acted well within his authority by applying a clear and\n\nconvincing burden of proof in determining whether Urich violated the stated department\n\nrules to justify the termination of his employment. See also Cleveland v. Cleveland Assn.\n\nof Rescue Emps., 8th Dist. No. 96325, 2011-Ohio-4263; Piqua v. Fraternal Order of\n\nPolice, 185 Ohio App.3d 496, 2009-Ohio-6591, 924 N.E.2d 876 (2d Dist.) (recognizing\n\nthat arbitrator acted within his authority in applying a clear and convincing standard\n\nregarding “just cause” for disciplining a union employee).\n\n {¶24} Further, we note that the parties agreed in the CBA that the arbitration\n\n“shall be conducted pursuant to the Rules of Voluntary Arbitration of the American\n\fArbitration Association.” As recognized by the Second District in rejecting the same\n\nargument that the City is raising here, the employer “gave the arbitrator the power to set\n\nthe quantum of proof by agreeing to arbitrate under the auspices of the American\n\nArbitration Association (AAA) using its rules.” Piqua at ¶ 35.\n\n {¶25} Accordingly, we find no merit to the City’s claim that the award is void by\n\nvirtue of the arbitrator applying a clear and convincing standard regarding the just cause\n\nanalysis.\n\n Arbitrator’s Findings Regarding the “Possession”\n\n {¶26} In the City’s third argument in support of its claim that the trial court erred\n\nin denying its motion to vacate and in granting Urich and the Union’s motion to confirm,\n\nthe City attacks the arbitrator’s findings related to Urich’s alleged mishandling and\n\nremoval of the heroin. The City takes issue with the arbitrator relying on the paramedic\n\nprotocol as a basis to conclude that Urich did not improperly handle or possess the heroin\n\nat issue. (According to the arbitrator, the paramedic protocol expressly required Urich to\n\nremove the heroin from the scene and bring it to the hospital.) The City argues that the\n\narbitrator exceeded his authority by considering the protocol, and further by ignoring the\n\ntestimony of Dr. Schikowski, the physician who created the protocol and stated that “it is\n\nnot the intent of the protocol to take illegal drugs * * * the intent is to bring in\n\nprescription drugs.”\n\n {¶27} Although couched as a challenge of the arbitrator exceeding his authority,\n\nthe City is actually attacking the arbitrator’s execution of his authority. The City’s\n\fargument is rooted in its belief that the arbitrator reached the wrong decision. This,\n\nhowever, is not a viable means of seeking to vacate an arbitration decision. “When the\n\ncity and union agreed to binding arbitration of disputes, they agreed to accept the result,\n\neven if it is legally or factually wrong.” Cleveland v. Internatl. Bhd. of Elec. Workers\n\nLocal 38, 8th Dist. No. 92982, 2009-Ohio-6223, ¶ 34. Indeed, “[i]f the parties could\n\nchallenge an arbitration decision on the ground that the arbitrators erroneously decided\n\nthe legal or factual issues, no arbitration would be binding.” Huffman v. Valletto, 15 Ohio\n\nApp.3d 61, 63, 472 N.E.2d 740 (8th Dist.1980).\n\n {¶28} Here, we find that all three of the City’s arguments in support of their first\n\nand second assignments of error lack merit. First, there is no dispute that the parties\n\nagreed under the CBA to submit disciplinary disputes to an arbitrator. Second, the\n\narbitration award drew its essence from the terms of the CBA because it was based on\n\nUrich’s contractual right that any disciplinary action taken by the City shall only be for\n\njust cause. Thus, since the arbitrator’s award draws its essence from the CBA and is not\n\nunlawful, arbitrary, or capricious, the arbitrator’s factual findings and legal conclusions\n\nare therefore immaterial and not a basis for overturning the court’s refusal to vacate the\n\narbitration award. Findlay Edn. Assn., 49 Ohio St.3d 129, 132-133, 551 N.E.2d 186.\n\n {¶29} The first and second assignments of error are overruled.\n\n Public Policy\n\n {¶30} In its final assignment of error, the City argues that the arbitration award\n\nviolates public policy and therefore must be vacated. Specifically, the City contends that\n\fthe reinstatement of Urich to his employment contravenes R.C. 737.11 and violates\n\nOhio’s public policy against reinstatement of an officer who falsifies a police report.\n\n {¶31} Relying on federal authority, the Ohio Supreme Court has recognized that, if\n\nan arbitrator’s interpretation of a CBA violates public policy, the resulting award is\n\nunenforceable. S.W. Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local\n\n627, 91 Ohio St.3d 108, 742 N.E.2d 630 (2001), citing W.R. Grace & Co. v. Local Union\n\n759, Internatl. Union of the United Rubber, Cork, Linoleum & Plastic Workers of Am.,\n\n461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983). But vacating an arbitration\n\naward pursuant to public policy is “a narrow exception to the ‘hands off’ policy that\n\ncourts employ in reviewing arbitration awards and ‘does not otherwise sanction a broad\n\njudicial power to set aside arbitration awards as against public policy.’” Id., quoting\n\nUnited Paperworkers Internatl. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 43, 108\n\nS.Ct. 364, 98 L.Ed.2d 286 (1987). Therefore, the public policy “must be well[-]defined\n\nand dominant, and is to be ascertained ‘by reference to the laws and legal precedents and\n\nnot from general considerations of supposed public interests.’” Id., quoting W.R. Grace &\n\nCo. at 766.\n\n {¶32} While we recognize that at least one Ohio court has found a dominant,\n\nwell-defined public policy against the reinstatement of a police officer who falsifies a\n\npolice report, no Ohio court has reached the same conclusion with respect to a\n\nfirefighter–paramedic. See Ironton v. Rist, 4th Dist. No. 10CA10, 2010-Ohio-5292,\n\nciting Brink v. Wadsworth, 9th Dist. No. 1728, 1988 Ohio App. LEXIS 4972 (Dec. 14,\n\f1998); Cincinnati v. Queen City Lodge No. 69, Fraternal Order of Police, 1st Dist. No.\n\nC040454, 2005-Ohio-1560, ¶ 21-21; see also Jones v. Franklin Cty. Sheriff, 52 Ohio\n\nSt.3d 40, 43, 555 N.E.2d 940 (1990) (recognizing that “it is settled public policy * * *\n\nthat police officers are held to a higher standard of conduct than the general public”).\n\nThe City urges us to reach the same conclusion with respect to firefighters–paramedics\n\nbecause R.C. 737.11, titled “General Duties of Police and Fire Departments,” groups the\n\ntwo departments together under the “Public Safety” chapter. The statute states in\n\nrelevant part:\n\n The police force of a municipal corporation shall preserve the peace, protect\n persons and property, and obey and enforce all ordinances of the legislative\n authority of the municipal corporation, all criminal laws of the state and the\n United States, all court orders issued and consent agreements approved\n pursuant to sections 2919.26 and 3113.31 of the Revised Code, all\n protection orders issued pursuant to section 2903.213 or 2903.214 of the\n Revised Code, and protection orders issued by courts of another state, as\n defined in section 2919.27 of the Revised Code. The fire department shall\n protect the lives and property of the people in case of fire. Both the police\n and fire departments shall perform any other duties that are provided by\n ordinance. The police and fire departments in every city shall be maintained\n under the civil service system.\nR.C. 737.11.\n\n {¶33} In recognizing that a clear public policy existed in prohibiting the\n\nreinstatement of police officers who falsified reports, the Fourth District specifically\n\nemphasized that the statute recognizes that “the police force of a municipal corporation is\n\nobligated to ‘preserve the peace, protect persons and property, and obey and enforce * * *\n\nall criminal laws of the states and the United States.” Rist at ¶ 20, citing R.C. 737.11.\n\nThe court further recognized that “honesty is vital to the effective performance of these\n\fduties and to ensuring public trust and confidence in the police force.” Id., citing Brink,\n\nsupra, and Cincinnati, supra. These same considerations, however, do not apply to a\n\nfirefighter–paramedic nor are they delineated under the statute with respect to firefighters.\n\n\n\n {¶34} Thus, while we certainly do not condone dishonesty and recognize that it is\n\ndisfavored in the workplace, we cannot say that a dominant, well-defined public policy\n\nexists that all acts of dishonesty warrant immediate termination of a\n\nfirefighter–paramedic’s employment. We likewise cannot say that a clear public policy\n\nprecludes the reinstatement of a firefighter– paramedic who has provided inaccurate\n\nwritten reports or a false witness statement to the police. Accordingly, we find no merit\n\nto the City’s claim that the trial court erred in failing to vacate the arbitrator’s award as\n\nbeing against public policy.\n\n {¶35} The third assignment of error is overruled.\n\n Cross-Assignment of Error\n\n {¶36} In their cross-assignment of error, Urich and the Union contend that the trial\n\ncourt’s judgment is flawed in that it fails to set forth the effective date of the arbitration\n\naward. They argue that the relevant date as to when Urich should have been reinstated\n\n(and thereby now entitled to back pay) is the date of the arbitrator’s decision of February\n\n16, 2012, not the November 30, 2012 order of the trial court confirming the award. We\n\nagree. See Lundgren v. Freeman, 307 F.2d 104, 112 (9th Cir.1962) (recognizing that if\n\nthe arbitration award is upheld in a reviewing court, the rights of the parties are\n\fdetermined from the date of the award and not the date of the court’s judgment\n\nconfirming the award); see generally Hellmuth, Obata & Kassabaum v. Ratner, 21 Ohio\n\nApp.3d 104, 107, 487 N.E.2d 329 (8th Dist.1984) (applying Lundgren and awarding\n\ninterest from the date of the arbitrator’s decision).\n\n {¶37} Urich and the Union’s single cross-assignment of error is sustained.\n\n {¶38} In summary, we affirm the trial court’s decision confirming the arbitrator’s\n\naward and denying the City’s motion to vacate it. We further sustain Urich and the\n\nUnion’s cross-assignment of error, modifying the trial court’s judgment to reflect that the\n\nconfirmation of the arbitration award now entitles Urich to back pay from the date of the\n\narbitrator’s decision, February 16, 2012, until he is reinstated. See App.R. 12(A)(1).\n\n {¶39} Judgment affirmed as modified.\n\n It is ordered that appellees recover from appellant costs herein taxed.\n\n The court finds there were reasonable grounds for this appeal.\n\n It is ordered that a special mandate be sent to said court to carry this judgment into\n\nexecution.\n\n A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of\n\nthe Rules of Appellate Procedure.\n\n\n\n__________________________________________\nMARY J. BOYLE, PRESIDING JUDGE\n\nFRANK D. CELEBREZZE, JR., J., and\nSEAN C. GALLAGHER, J., CONCUR\n\f","page_count":17,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"n-royalton-v-urich"} {"attorneys":"Sadler & Sadler, Birmingham, for petitioner., Abele & Witcher, Birmingham, opposed.","case_name":"Barber Pure Milk Company v. Young","case_name_full":"BARBER PURE MILK COMPANY v. Willie YOUNG","case_name_short":"Young","citation_count":3,"citations":["81 So. 2d 328","263 Ala. 100"],"court_full_name":"Supreme Court of Alabama","court_jurisdiction":"Alabama, AL","court_short_name":"Supreme Court of Alabama","court_type":"S","date_filed":"1955-05-19","date_filed_is_approximate":false,"headmatter":"\n Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.\n
","id":277934,"judges":"Anderson, Friendly, Hays","opinions":[{"author_str":"Anderson","download_url":"http://bulk.resource.org/courts.gov/c/F2/386/386.F2d.161.64.31226.html","ocr":false,"opinion_id":277934,"opinion_text":"386 F.2d 161\n JULIEN J. STUDLEY, INC., Plaintiff-Appellant,v.GULF OIL CORPORATION, Defendant-Appellee.\n No. 64.\n Docket 31226.\n United States Court of Appeals Second Circuit.\n Argued October 3, 1967.\n Decided December 5, 1967.\n \n Alan E. Bandler, New York City (Kramer, Bandler & Labaton and Sidney Kramer, New York City, on the brief), for plaintiff-appellant.\n William M. Kufeld, New York City (Carb, Luria, Glassner & Cook of New York City, on the brief), for defendant-appellee.\n Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.\n ANDERSON, Circuit Judge:\n \n \n 1\n This is an action by Julien J. Studley, Inc., the plaintiff-appellant, a real estate broker, against Gulf Oil Corporation, the defendant-appellee, to recover the amount of a commission which, except for certain conduct on the part of Gulf, it allegedly had a reasonable expectation and opportunity to receive from Rock-Uris upon the consummation of a lease for office space in the Sperry Rand Building, between Gulf as the tenant and Rock-Uris as the landlord. At the end of the defendant's case the district court directed a verdict in favor of the defendant and entered judgment dismissing the complaint. It is from that judgment that the plaintiff appeals; we reverse and remand for a new trial.\n \n \n 2\n The plaintiff's amended complaint contains three counts. The first of these claims a breach of contract based upon the defendant's employment of the plaintiff as its agent to locate office space in New York City with the understanding that, if the plaintiff procured an acceptable lease for it, \"defendant would enter into a lease * * * and * * * plaintiff would be the broker in the transaction,\" and thereby become eligible for payment of a commission. The plaintiff charges that the defendant breached its agreement by entering into a lease with Rock-Uris for the space found by the plaintiff without designating it as the broker.\n \n \n 3\n The second count alleges malicious interference. The plaintiff asserts that Rock-Uris generally solicited brokers, including the plaintiff, to find tenants for the Sperry Rand Building for which, if successful, the broker would be paid a commission. The plaintiff complains that Gulf maliciously interfered with its reasonable expectancy and opportunity to get the commission by representing \"that plaintiff was not the broker and rendered no services in the transaction.\" The third count alleges a \"conspiracy with others to deprive plaintiff of the commission it had earned.\"\n \n \n 4\n Because this appeal comes to us as a result of the district judge's ruling that the plaintiff presented insufficient evidence to warrant submitting the case to the jury, it is necessary to refer to the evidence in some detail and, viewing it in the light most favorable to the plaintiff-appellant, to state the facts which the jury might reasonably find from it. In determining whether, as a matter of law, there is not sufficient evidence to warrant submitting a case to the jury, the trial judge must apply the measure usually stated in these terms: \"Only if reasonable men could not reach differing conclusions on the issue may the question be taken from the jury.\" Baker v. Texas & Pacific Railway Co., 359 U.S. 227, 228, 79 S. Ct. 664, 665, 3 L. Ed. 2d 756 (1959); Diapulse Corporation of America v. Birtcher Corp., 362 F.2d 736, 743 (2 Cir. 1966).\n \n \n 5\n At the time of the negotiations in dispute Walter Burkhiser was manager of the Building Services Department in Gulf's Pittsburgh office and, as Secretary, sole member of Gulf's Executive Committee for Office Standards. In 1960 Julien Studley, president of plaintiff corporation, wrote to Gulf, soliciting its interest in available office space in New York City. The president of Gulf referred the letter to Burkhiser for a reply but no action was taken at that time. Two years later, in 1962, the Executive of Gulf (composed of the chairman of the board, the president, and four executive vice presidents) requested Burkhiser to review Gulf's New York City office space situation, which then consisted of three suites of offices in widely separated locations. In compliance with that request Burkhiser made a study and submitted a report on the existing arrangements in a memorandum dated September 5, 1962. Shortly thereafter, he was sent to New York to investigate the availability of office space in the Rockefeller Center area with a view towards consolidation of the offices. Before leaving, he called Studley and told him that he wanted to talk to him about the problem Gulf was having with office space in New York but that the matter was confidential and should not even be disclosed to Gulf's representatives or employees in New York. Burkhiser requested Studley to prepare a report and made an appointment to see him in New York. They met there on September 25th and Studley gave Burkhiser the report describing fifteen different buildings in New York City, any one of which might meet Gulf's office space requirements.\n \n \n 6\n Studley testified that when he met with Burkhiser he said to him that \"we were very pleased to have been called by Gulf and to be the broker in this situation, if it were to develop * *\" After discussing the alternatives open to Gulf, Burkhiser and Studley inspected the Pan American Building and the Sperry Rand Building, which were among those described in the report. While walking from the former to the latter, Studley asked Burkhiser \"whether there was a chance of moving Gulf altogether from Pittsburgh, and * * * [Burkhiser replied] `You should be satisfied with the commission you will make on this, if we make a deal. Don't look for a bigger deal.'\" After they arrived at the Sperry Rand Building, Burkhiser told Studley that \"he wanted to make sure that he had all the information on both of these buildings\" and Studley delivered additional material the next day.1 After Burkhiser had returned to Pittsburgh, Studley called him from New York, at which time Burkhiser told Studley that he had received all the information he needed, that he was preparing a report, and that Studley should \"keep in touch and to let him know of any changes or developments in connection with any of the buildings, particularly in connection with Sperry Rand * * *.\"\n \n \n 7\n In his memorandum to the executive vice president dated September 28 and marked \"Private and Confidential,\" Burkhiser summarized Gulf's existing office arrangements in New York City and suggested that the \"best possibility\" for consolidation was in the Sperry Rand Building. Burkhiser testified that Studley was the source of \"rental rate information\" contained in that memorandum. In letters to Burkhiser dated October 1, 9, and 30, Studley informed Burkhiser of developments in connection with the Sperry Rand Building. Studley also testified to telephone conversations between Burkhiser and himself, including a call from Burkhiser to him asking him to check on the date when Gulf could take possession.\n \n \n 8\n Denys Cadman, executive representative of Gulf in New York City, had his office in Canada House and he wanted it to remain there. When he learned on or about October 22, 1962, that Gulf would not continue to lease offices in Canada House, he contacted Jacques Juncker, a real estate broker associated with the firm of Cushman & Wakefield, Inc., which was in charge of Canada House. Juncker then prepared a letter, dated October 22, to Cadman, as the representative of Gulf, presenting various buildings for the consideration of Gulf, including the Sperry Rand Building. On the same day, Cadman called Juncker and told him that Gulf was interested in the Sperry Rand Building. Cadman's office also notified Burkhiser that \"all future negotiations regarding the Sperry Rand Building were to be conducted with Cushman & Wakefield.\" Burkhiser acknowledged receipt of this message in a memorandum to Cadman stating that Studley, Inc. was the broker which had first proposed the Sperry Rand Building and had rendered services in that regard, and that \"Mr. Studley's firm would no doubt be entitled to some consideration.\" Also on October 22, Juncker wrote to Rock-Uris, claiming authorization by Gulf to offer, on its behalf, to lease one floor in the Sperry Rand Building.\n \n \n 9\n On October 30th, Burkhiser met with Bernard Friedman, then Vice President and Director of Rock-Uris and in charge of the renting of the Sperry Rand Building, and with Cadman and Juncker. During the course of the day, Burkhiser, Cadman and Juncker discussed the nature of the services provided by Studley, Inc. and the fact that Studley, Inc. would expect a commission on the consummation of the transaction. Juncker told Burkhiser that he had first shown Cadman the Sperry Rand Building but subsequently gave Rock-Uris a letter of indemnification against any claim by Studley, Inc. for a brokerage commission.\n \n \n 10\n On November 2, Friedman wrote Juncker, attaching an outline of the terms of the proposed lease which had been discussed on October 30th. The terms were essentially accepted by Gulf on November 6th2 and were eventually incorporated in the lease between Gulf and Rock-Uris. Friedman did not learn of any services on the part of Studley, Inc. until November 7th.\n \n \n 11\n On that day Burkhiser telephoned Studley and informed him that although Gulf was going into the Sperry Rand Building, it was doing it through another broker and that Gulf would appreciate it if his firm would withdraw as broker. Studley returned the call later that day and said that his firm would not withdraw. In a letter written to Burkhiser dated November 7, Studley indicated that he had spoken to Friedman and the latter gave him \"every assurance that if my position is clearly established by Gulf, our company shall be recognized for its role in this transaction. And, in the event a lease is concluded, that commissions will be paid us.\"\n \n \n 12\n Cadman had introduced Juncker to Friedman as Gulf's broker at the meeting on October 30th. He was thereafter so regarded and ultimately received the commission. Cadman testified that he had never discussed the services rendered by Studley, Inc. with Friedman, and Friedman testified to the same effect. But Cadman told Burkhiser that he had discussed the entire situation with Friedman and that Friedman did not want to discuss it with Burkhiser at all. The jury could well find that Burkhiser would have apprised Friedman of the services rendered by Studley, Inc. in the transaction, had it not been for the intentional falsehood on the part of Cadman.\n \n \n 13\n To get its case on the first or contract count to the jury for determination, the plaintiff had to offer sufficient evidence to support findings that Burkhiser had the authority to employ the plaintiff for the purpose of locating suitable and adequate office space for Gulf, that there was a promise on Gulf's part, if a lease agreement for such office space were consummated, that the plaintiff would be designated by Gulf to the lessor Rock-Uris as the broker in the transaction, and that, although the plaintiff brought about the lease of the space in the Sperry Rand Building, Gulf repudiated its promise to designate the plaintiff as the broker. See James v. Home of the Sons and Daughters of Israel, 153 N.Y.S. 169 (Sup.Ct.1915); Pease & Elliman, Inc. v. Gladwin Realty Co., Inc., et al., 216 A.D. 421, 215 N.Y.S. 346 (1st Dept. 1926). We conclude that the plaintiff put in sufficient evidence for this purpose and that the court should not have directed a verdict for the defendant.\n \n \n 14\n The trial court's conclusion that Burkhiser, as a matter of law, lacked the authority to deal with the plaintiff, was an error. It held that \"there was an overwhelming hush, equivalent to complete silence, of an express agency\" and, \"[a]s to apparent agency, the cases are overwhelming that the claim cannot survive if it is dependent solely on the proof from the agent; and that is the case here.\" But Burkhiser was sent by the highest officials of Gulf in 1962 to investigate the availability of office space in the Rockefeller Center area for Gulf's occupancy in locating all of its New York operations in one set of offices. There was no evidence even suggesting that he was to do this otherwise than by the usual and customary way of consulting with a reputable and experienced broker or that Burkhiser had exceeded his authority by consulting Studley. \"The general rule followed in New York is that `an agent employed to do an act is deemed authorized to do it in the manner in which the business intrusted to him is usually done.'\" Masuda v. Kawasaki Dockyard Company, 328 F.2d 662, 664-665 (2 Cir. 1964). The jury could infer from Gulf's behavior throughout the lease negotiations that it intended to act through a New York broker. In fact the present controversy arose because Gulf dealt with too many brokers.\n \n \n 15\n There was ample evidence from which the jury could find that Burkhiser had implied authority to make the arrangement with Studley, Inc. through which Gulf availed itself of the firm's services, Lind v. Schenley Industries Inc., 278 F.2d 79, 84 (3 Cir. 1960); Wen Kroy Realty Co. v. Public National Bank & Trust Co. of New York, 260 N.Y. 84, 89, 183 N.E. 73, 74 (1932); Restatement (Second), Agency § 7, comment c (1958); and from Studley, Inc.'s viewpoint that Burkhiser had apparent authority to engage its services and to agree to inform Rock-Uris that Studley, Inc. was the broker which brought about Gulf's lease of office space in the Sperry Rand Building. Lind v. Schenley Industries Inc., supra, 278 F.2d at 85; Restatement (Second), Agency § 8 (1958). The district court's holding that there was no apparent agency rested upon its assertion that an apparent agency cannot be established \"solely on the proof from the agent.\" While it is true that neither the existence nor the scope of an agency can be proved by the admissions, representations or acts of the agent, unless such statements and acts are shown to have been with the knowledge and acquiescence of the principal, the agent may testify on the witness stand to the fact of the agency and its extent. As the Restatement (Second), Agency § 285, comment a (1958), says: \"A person can properly testify as to the facts which it is alleged constitute his authority, and his testimony can be introduced * * against the alleged principal.\" See Mechem, Outline of the Law of Agency, § 95 (4th ed. 1952); IV Wigmore, § 1078, pp. 123-125 (3rd ed. 1940).\n \n \n 16\n The jury could also have found that Studley, Inc. should not have been expected to notify Rock-Uris of the part it played in Gulf's acquisition of space in the Sperry Rand Building because Burkhiser, on behalf of Gulf, had enjoined Studley to keep the matter in confidence, and that in compliance with its agreement and in the exercise of good faith, Gulf should have told Rock-Uris of Studley's role in the transaction and that Gulf not only failed to do so, but through Cadman's false representations prevented Rock-Uris from learning about it, and that the contract was breached.\n \n \n 17\n It was contemplated by Studley, Inc. and Gulf that once Gulf had told Rock-Uris that Studley, Inc. was the broker which had brought about the lease, it would then be up to Rock-Uris to pay any commission due to Studley, Inc. Although by its terms, the understanding therefore imposed only the obligation of good faith upon Gulf rather than a financial commitment, nevertheless, once the obligation was breached, Gulf became liable for damages, measured by the compensation the broker would have earned if Gulf had fulfilled its obligation. Westhill Exports Limited v. Pope, 12 N.Y.2d 491, 240 N.Y.S.2d 961, 191 N.E.2d 447 (1963); Parker v. Simon, 231 N.Y. 503, 508, 132 N.E. 404, 405 (1921).\n \n \n 18\n The trial court disposed of the second count, alleging malicious interference, by holding that Studley's failure to prove \"a valid contract with Sperry Rand * * * defendant's knowledge of the contract * * * [and] intent to cause the contract to be broken\" made the claim an empty one because no advantageous business relationship existed between Studley and Rock-Uris with which Gulf could have interfered.\n \n \n 19\n It disposed of the third or conspiracy count by concluding that the proof was \"so scant as to barely make its presence known and far from sufficient to warrant submitting it to a jury.\" This count calls for no separate discussion because it must be treated simply as an allegation of a tortious interference by Gulf with Studley's business opportunity through Gulf's false representation of Studley's position as broker. The allegation of conspiracy against Gulf states no new or additional cause of action. Miller v. Spitzer, et al., 224 A.D. 39, 229 N.Y.S. 526 (1st Div. 1928); Smith v. Helbraun, 38 Misc. 2d 136, 238 N.Y.S.2d 212 (1963).\n \n \n 20\n On this appeal Gulf argues that there was no evidence that Burkhiser had any authority to retain the services of Studley, Inc.; that there was no evidence that Rock-Uris employed Studley, Inc. or promised it a commission if it procured a tenant; and that Studley, Inc. could not have had a business opportunity interfered with and at the same time claim it had a right to a commission from Rock-Uris; and, to the extent that Studley, Inc. may have been connected with the acquisition of office space by Gulf, it was not at a time when negotiations between Rock-Uris and Gulf had reached a stage where it could be found that Studley, Inc. had acquired a business opportunity. We have already concluded that there was sufficient evidence to warrant the jury's finding that Burkhiser did have the necessary authority. Gulf lays a great deal of stress upon the absence of an agreement express or implied between Rock-Uris and Studley, Inc. Studley's claim, however, does not rest upon the breach of an agreement between itself and the landlord; rather it charges a breach by Gulf in not only not fulfilling its agreement to advise Rock-Uris that Studley, Inc. was the broker in the transaction, but in actively preventing the disclosure of that information. Gulf asserts that Rock-Uris actually received the information from a number of sources before the lease was formally executed in late December, 1962, but there was evidence from which the jury could find that all of the terms of the lease had been agreed upon between Rock-Uris and Gulf before November 7th, 1962, the first date on which Rock-Uris was informed that Studley, Inc. had anything to do with the matter.\n \n \n 21\n The trial court erred in failing to consider the evidence presented by the plaintiff-appellant in support of its tort claim in the second and third counts in the light of New York law. Under the substantive law of New York, \"a real estate broker is entitled to a commission if he is the procuring cause of the sale, that is, if he brings seller and buyer together and a sale consequently results * * * The right to collect the commission is not lost because the broker does not participate in the negotiations * * * or because the final terms of sale are not identical with those originally presented to the broker * * *.\" Risser v. Hirshhorn, 199 F.2d 917, 919 (2 Cir. 1952). See Wattley v. Commissioner of Internal Revenue, 275 F.2d 461 (2 Cir.), cert. denied, 364 U.S. 864, 81 S. Ct. 107, 5 L. Ed. 2d 86 (1960). In Katz v. Thompson, 19 Misc. 2d 848, 189 N.Y.S.2d 982, 985, aff'd, 9 A.D.2d 951, 196 N.Y.S.2d 578 (1959), a real estate broker brought an action to recover a commission for the sale of realty against the vendor, and to recover damages for tortious interference against the purchasers of the realty. In affirming the denial of the purchasers' motion to dismiss the complaint, the county court stated:\n \n \n 22\n \"The doctrine first announced in Lumley v. Gye * * * that interference with an executed contract of employment would result in tort liability has been extended to interference with contractual relations which would have been entered into save for the actions of the third party * * * or with economic advantage reasonably to be expected * * *.\"\n \n \n 23\n See also 1 Harper & James, Law of Torts 510 (1956). The jury would be justified in finding that Studley, Inc. reasonably expected an economic advantage to flow from persuading Gulf of the suitability of the Sperry Rand Building and to lease office space in it, and, further, that Gulf, through Burkhiser's request for confidentiality, prevented Studley, Inc. from apprising Rock-Uris of the true facts. It could also find that Cadman failed to disclose to Rock-Uris the part Studley had played in promoting the lease, even after he knew about it, and instead, affirmatively represented to Rock-Uris that Juncker of Cushman & Wakefield Inc. was the only broker in the case, and that Cadman intentionally made a false representation to Burkhiser to prevent Burkhiser from disclosing to Rock-Uris Studley, Inc.'s part in bringing about the lease. The jury could also conclude that as the result of Gulf's successful effort to keep Rock-Uris in ignorance of Studley, Inc.'s position as broker, Studley, Inc. failed to realize an economic advantage.\n \n \n 24\n In Risser v. Hirshhorn, supra, the plaintiff real estate broker sued both Hirshhorn, the seller, and Kress, the purchaser, to recover a brokerage commission. After the purchaser had inspected the property and discussed the seller's terms, the seller and purchaser met at the property and continued negotiations with each other without the broker being present. They ultimately agreed upon a sales contract which included the statement that \"there are no brokers involved in this sale.\" There was evidence that a representative of the seller knew that the broker had procured this particular purchaser but the broker had never so advised the seller. Because of this the trial court had directed a verdict for the defendant. On appeal this court held that the question of whether under the circumstances the seller had exercised reasonable care to ascertain whether or not the plaintiff-broker had been the procuring cause of the sale was one for the jury. It also held that if the jury found that the seller, Hirshhorn, was entitled to rely, without further inquiry, on the purchaser Kress' representation that there was no broker involved, then it was for the jury to determine whether, assuming the plaintiff qualified for a commission, she lost it because of the purchaser Kress' misrepresentation and that therefore the purchaser would be liable to the plaintiff.\n \n \n 25\n In Cohen v. City Bank Farmers Trust Co., 276 A.D. 195, 93 N.Y.S.2d 609 (1st Dept. 1949), a real estate broker brought an action to recover a commission upon the sale of hotel property. The trial court dismissed the complaint at the close of the plaintiff's evidence on the ground that the plaintiff-broker's failure to inform the seller of the identity of Moses, his prospective purchaser, prior to the signing of the contract of sale, was fatal to the plaintiff's action against the seller. There was evidence to show that after the plaintiff had discussed with Moses the details of the purchase of the hotel property over a considerable interval of time, Moses appeared no longer interested as a purchaser and broke off negotiations. Thereafter, however, Moses associated himself with one Clark, another broker, and purchased the property, certifying at the time that no broker, other than Clark, had participated in any dealings concerning the property. On appeal the Appellate Division held that a prima facie case was made out against the purchaser Moses \"on the theory of fact that the transaction would have been closed through plaintiff's agency * * * except for bad faith on Moses' part, in endeavoring to defeat plaintiff's commission, in ostensibly breaking the negotiations off * *.\" 276 A.D. 195, 199, 93 N.Y.S.2d 609, 612. The court continued by saying:\n \n \n 26\n \"The certification by Moses that no broker other than Clark had participated in any dealings in connection with this transaction was made to Prudence [seller's representative] but the triers of the fact could find that it was false, and intentionally so, and evidenced a willingness to deceive on Moses' part. Since such a state of mind is relevant where a defendant is charged with bad faith, a jury could have found that this evinced a deliberate purpose on Moses' part * * * to misrepresent plaintiff's part in the transaction, to prevent plaintiff from earning a commission.\" Ibid.\n \n \n 27\n The case of Goodman v. Kirkeby, 282 A.D. 86, 121 N.Y.S.2d 158, leave to appeal denied, 306 N.Y. 981, 116 N.E.2d 247 (1953), in which a directed verdict for the buyer was upheld, which is cited by Gulf, is distinguishable from Risser and Cohen because, although in that case the buyer made a misrepresentation that no broker was involved in the sale, the seller who employed the plaintiff broker knew throughout the course of the dealings that the plaintiff had brought about the sale and could not, therefore, have been deceived by the buyer's false statement.\n \n \n 28\n In the present case the jury could find that Rock-Uris reasonably relied upon Gulf's misrepresentations to deny Studley, Inc. the commission. Studley, Inc.'s two letters, stating its claim, sent to Rock-Uris after the terms of the lease had been agreed upon, would carry little persuasive force in the face of Gulf's refusal to substantiate Studley, Inc.'s claim and its representation that Juncker, with whom Rock-Uris dealt in the closing of the transaction, was the procuring cause of the lease.\n \n \n 29\n The District Court was in error in refusing to submit these factual issues to the jury and the case is therefore reversed and remanded for a new trial.\n \n \n \n Notes:\n \n \n 1\n Burkhiser requested \"maps of the areas, of any other developments in the areas, * * * and also * * * a map of the area showing the location of the oil companies with whom Gulf did business.\" The additional material delivered to Burkhiser included a brochure on the Pan American Building, a brochure on the Sperry Rand Building, and three maps\n \n \n 2\n In an inter-office memorandum dated November 6, 1962, Friedman indicated that he had received \"a confirmation this morning from Jacques Juncker on behalf of Mr. Whiteford, Chairman of the Board of Gulf, as to their leasing the 34th through 36th floors, in accordance with the aforementioned Outline\" of Terms. The lease was not actually signed by Gulf until December 17, 1962\n \n \n ","per_curiam":false,"type":"010combined"}],"other_dates":"Argued Oct. 3, 1967.","precedential_status":"Published","slug":"julien-j-studley-inc-v-gulf-oil-corporation"} {"case_name":"Ross v. United States","case_name_short":"Ross","citation_count":0,"citations":["702 F.2d 1206"],"court_full_name":"Court of Appeals for the D.C. Circuit","court_jurisdiction":"USA, Federal","court_short_name":"D.C. Circuit","court_type":"F","date_filed":"1983-02-22","date_filed_is_approximate":false,"id":415632,"opinions":[{"download_url":"http://bulk.resource.org/courts.gov/c/F2/702/702.F2d.1206.82-1742.html","ocr":false,"opinion_id":415632,"opinion_text":"702 F.2d 1206\n 227 U.S.App.D.C. 18\n Rossv.U. S.\n 82-1742\n UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT\n 2/22/83\n \n 1\n D.C.D.C.\n \n AFFIRMED\n ","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"ross-v-united-states"} {"case_name":"Lee v. State","citation_count":0,"citations":["11 So. 3d 950"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2009-06-19","date_filed_is_approximate":false,"id":1611766,"opinions":[{"ocr":false,"opinion_id":1611766,"opinion_text":"\n11 So.3d 950 (2009)\nLEE\nv.\nSTATE.\nNo. 2D09-234.\nDistrict Court of Appeal of Florida, Second District.\nJune 19, 2009.\nDecision without published opinion Affirmed.\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"lee-v-state"} {"case_name":"Thompson v. Connick","case_name_short":"Thompson","citation_count":0,"citations":["553 F.3d 836"],"court_full_name":"Court of Appeals for the Fifth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Fifth Circuit","court_type":"F","date_filed":"2009-03-13","date_filed_is_approximate":false,"id":65001,"opinions":[{"download_url":"http://www.ca5.uscourts.gov/opinions\\pub\\07/07-30443-CV1.wpd.pdf","ocr":false,"opinion_id":65001,"opinion_text":" IN THE UNITED STATES COURT OF APPEALS\n United States Court of Appeals\n FOR THE FIFTH CIRCUIT Fifth Circuit\n\n FILED\n No. 07-30443 March 11, 2009\n\n Charles R. Fulbruge III\nJOHN THOMPSON Clerk\n\n Plaintiff-Appellee\n vs.\n\n\nHARRY F. CONNICK, in his official capacity as District Attorney;\nERIC DUBELIER, in his official capacity as Assistant District\nAttorney; JAMES WILLIAMS, in his official capacity as Assistant\nDistrict Attorney; EDDIE JORDAN, in his official capacity as\nAssistant District Attorney; ORLEANS PARISH DISTRICT ATTORNEY’S\nOFFICE\n Defendants-Appellants\n - - - - -\n Appeal from the United States District Court for the\n Eastern District of Louisiana\n - - - - -\n\n ON PETITION FOR REHEARING\n AND\n PETITION FOR REHEARING EN BANC\n\n (Opinion December 19, 2008, 5 Cir., 2008, ____F.3d____)\n\n (March 11, 2009)\n\nBEFORE: JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER,\n BARKSDALE, GARZA, BENAVIDES, STEWART, CLEMENT, PRADO,\n OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges.1\n\nBY THE COURT:\n\n A member of the Court in active service having requested\n\na poll on the petition for rehearing en banc and a majority of\n\nthe judges in active service having voted in favor of granting a\n\nrehearing en banc,\n\n IT IS ORDERED that this cause shall be reheard by the\n\ncourt en banc with oral argument on a date hereafter to be fixed.\n\nThe Clerk will specify a briefing schedule for the filing of\n\nsupplemental briefs.\n\n\n 1\n Judge Dennis is recused and did not participate in this\ndecision.\n\f\f","page_count":2,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"thompson-v-connick"} {"case_name":"Paul M. Vallejo v. State","citation_count":0,"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"2001-11-15","date_filed_is_approximate":false,"id":2863461,"opinions":[{"download_url":"http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=10372&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa03%5cOpinion","ocr":false,"opinion_id":2863461,"opinion_text":" TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN\n\n\n NO. 03-00-00750-CR\n\n\n\n\n Paul M. Vallejo, Appellant\n\n v.\n\n The State of Texas, Appellee\n\n\n\n FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY\n NO. 556-269, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING\n\n\n\n\n A jury found appellant Paul M. Vallejo guilty of driving while intoxicated (DWI), for\n\nwhich the court assessed punishment at incarceration for 140 days and a $1000 fine. See Tex. Pen.\n\nCode Ann. § 49.04 (West Supp. 2001). Appellant contends the trial court erred by overruling his\n\nmotions to suppress evidence, by admitting evidence of extraneous offenses, and by refusing to\n\nsubmit the propriety of his detention and interrogation as questions of fact for the jury. We will\n\noverrule these contentions and affirm the conviction.\n\n Austin Police Officer Gary Hanna testified at the pretrial suppression hearing that he\n\nreceived a radio report of a disturbance involving an intoxicated male at a restaurant. While driving\n\nto the scene of the reported disturbance, he received a further report that the suspect had left the\n\nrestaurant in a black Camaro, driving east. Moments later, Hanna encountered a black Camaro\n\ntraveling east from the restaurant. The license plate number of this vehicle matched that reported for\n\fthe suspect vehicle except for one character. Hanna began to follow the Camaro and stopped it after\n\nhe observed it turn without signaling.\n\n Appellant was the driver and sole occupant of the Camaro. When Hanna approached\n\nthe car, he immediately noticed the odor of alcoholic beverage. Appellant’s eyes were bloodshot and\n\nhis speech was slurred. Appellant had difficulty retrieving his driver’s license and proof of insurance,\n\nfumbling and dropping the items in his wallet. Hanna, suspecting that appellant was intoxicated,\n\ncalled for a DWI-task-force officer to conduct field sobriety tests.1 For his safety and to prevent\n\nappellant from driving away, Hanna instructed appellant to step from his car. He noticed that\n\nappellant was unstable on his feet and leaned on the car for support. Hanna testified that appellant\n\nwas belligerent, and repeatedly asked for an attorney and if he were free to go.\n\n Officer Michael Guerra arrived fifteen to twenty minutes after Hanna called for a task-\n\nforce officer.2 Guerra testified that appellant was loud and argumentative, and that he refused to\n\nperform the field sobriety tests. Guerra also noted appellant’s bloodshot eyes, slurred speech, and\n\nstrong alcoholic beverage odor. Guerra arrested appellant for driving while intoxicated.\n\n Appellant does not challenge the propriety of the initial stop, but he urges that the\n\nsubsequent detention was unreasonably long and hence unlawful. Appellant contends the evidence\n\n\n\n 1\n The trial testimony was that this was a matter of procedure. Vehicles driven by DWI-task\nforce-officers are equipped with audio-video recorders for preserving the field tests. These officers\nare not only certified to conduct field sobriety tests (as was Officer Hanna), but also to administer\nintoxilyzer tests. Assigned full time to DWI cases, task-force officers complete the processing of\npersons arrested for DWI, allowing patrol officers to return to their regular duties.\n 2\n By the time Guerra arrived, Officer Michael Hightower had also arrived to serve as Hanna’s\nbackup. Hightower did not testify at the pretrial hearing, but did testify at trial. His testimony was\nrelatively brief and corroborated that of Officer Hanna.\n\n 2\n\fobtained as a result of this unlawful detention should have been suppressed. He also asserts that the\n\nstatements he made to the officers were inadmissible as the products of unlawful custodial\n\ninterrogation. In reviewing these contentions, we defer to the trial court’s factual determinations but\n\nreview de novo the court’s application of the law to the facts. See Guzman v. State, 955 S.W.2d 85,\n\n89 (Tex. Crim. App. 1997).\n\n A traffic stop is analogous to a temporary investigative detention. Berkemer v.\n\nMcCarty, 468 U.S. 420, 439 (1984). Such a detention may last no longer than is necessary to\n\neffectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983); Davis v. State, 947\n\nS.W.2d 240, 243-45 (Tex. Crim. App. 1997). Appellant argues that it was unnecessary to detain him\n\nfor twenty minutes to effectuate the purpose of the traffic stop, but in doing so he ignores the\n\nofficer’s observations following the stop. Facts that come to an officer’s attention during the course\n\nof a routine traffic stop may justify a continued detention and a broader investigation. Razo v. State,\n\n577 S.W.2d 709, 711 (Tex. Crim. App. 1979); Estrada v. State, 30 S.W.3d 599, 603 (Tex.\n\nApp.—Austin 2000, pet. ref’d). Officer Hanna articulated several facts that reasonably supported\n\ndetaining appellant for investigation of DWI: the strong odor of alcoholic beverage and appellant’s\n\nbloodshot eyes, slurred speech, and impaired motor skills. The twenty-minute delay while awaiting\n\nthe arrival of the DWI-task-force officer was not, under the circumstances, unreasonable. See United\n\nStates v. Sharpe, 470 U.S. 675, 687 n.5 (1985). Point of error one is overruled.\n\n Videotape equipment in Guerra’s patrol car recorded the encounter between appellant\n\nand the officers from the time of Guerra’s arrival at the scene of the stop through appellant’s arrest\n\nand transport to the police station. Appellant moved to suppress the audio portion of the videotape\n\n\n\n 3\n\fin its entirety, arguing that his statements to the officers were the product of custodial interrogation\n\nand that he had not been properly advised of his rights. See Miranda v. Arizona, 384 U.S. 436\n\n(1966); Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (West Supp. 2001). The trial court overruled this\n\nmotion, but did suppress certain portions of the tape. On appeal, appellant reurges his contention that\n\nthe entire audio should have been suppressed, along with any testimony by the officers regarding\n\nappellant’s statements at the scene of the stop.\n\n Persons who are detained pursuant to a routine traffic stop are not in custody for\n\npurposes of Miranda and article 38.22. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v.\n\nWaldrop, 7 S.W.3d 836, 839 (Tex. App.—Austin 1999, no pet.). Subsequent events, however, may\n\ncause a noncustodial encounter to escalate into custodial interrogation. State v. Stevenson, 958\n\nS.W.2d 824, 828 (Tex. Crim. App. 1997). Appellant argues that even before his formal arrest, his\n\ndetention had escalated into custody because he was forced to remain at the scene for twenty minutes\n\nwhile awaiting the arrival of Officer Guerra and because the presence of three officers created a\n\npolice-dominated atmosphere. See Berkemer, 468 U.S. at 437-39; Waldrop, 7 S.W.3d at 839.\n\n We have already held that appellant was justifiably detained to await the DWI-task-\n\nforce officer. The scene of the detention was a public street, and appellant was allowed to stand\n\noutside his car without any physical restraint. These circumstances are analogous to those in\n\nWaldrop, where the defendant was stopped for a traffic violation and then detained for the arrival of\n\nan officer who performed field sobriety tests. This Court concluded that the defendant was not in\n\ncustody during this detention and that the statements he made prior to his formal arrest were not the\n\nproduct of custodial interrogation. 7 S.W.3d at 839. We reach the same conclusion here. We hold\n\n\n\n 4\n\fthat during appellant’s twenty-minute roadside detention to investigate his possible DWI, he was not\n\nin a police-dominated atmosphere so as to convert his detention into custody.\n\n The county court at law correctly ruled that appellant was not in custody for the\n\npurpose of Miranda and article 38.22 until his formal arrest by Officer Guerra, and that his statements\n\nto the officers prior to his arrest were not the product of custodial interrogation. The court\n\nsuppressed all unwarned statements appellant made in response to interrogation following his arrest.\n\nAppellant does not contend that any post-arrest statement was erroneously admitted. Point of error\n\ntwo is overruled.\n\n Next, appellant contends the trial court erroneously admitted extraneous misconduct\n\ntestimony. Officer Hanna testified at trial, as he did at the pretrial hearing, that his attention was\n\ndrawn to appellant’s car because it matched the description of the vehicle being driven by a person\n\nreported to be intoxicated and to have created a disturbance at a restaurant. Appellant urges that\n\nHanna’s testimony should not have been admitted because the evidence was not sufficient to support\n\na finding beyond a reasonable doubt that he was the person who created the disturbance. See Harrell\n\nv. State, 884 S.W.2d 154, 160-61 (Tex. Crim. App. 1994).\n\n Appellant’s contention does not comport with his trial objection. 3 See Tex. R. App.\n\nP. 33.1(a). In any event, Harrell does not apply here. The officer’s testimony was offered merely\n\nto explain how he came to be at the location in question and why his attention was drawn to\n\n\n\n\n 3\n The overruling of his motion in limine did not preserve error. Harnett v. State, 38 S.W.3d 650,\n655 (Tex. App.—Austin 2000, pet. ref’d).\n\n 5\n\fappellant’s car. The relevance of this testimony did not depend on whether appellant was in fact the\n\nperson who created the reported disturbance. Point of error three is overruled.\n\n Finally, appellant contends the trial court erred by refusing to instruct the jury pursuant\n\nto article 38.23. Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 2001). That statute provides\n\nthat in any case in which the issue is raised, the jury should be instructed to disregard evidence that\n\nit believes, or has a reasonable doubt, was obtained in violation of the constitution or laws of Texas\n\nor the United States. Appellant argues that the jury should have been asked to determine the\n\npropriety of his detention, arrest, and interrogation.\n\n An article 38.23 instruction is required when there are factual disputes as to how the\n\nevidence was obtained; when the relevant facts are not in dispute, no instruction is required. Estrada,\n\n30 S.W.3d at 605. Appellant does not refer us to any evidence in the record raising a controverted\n\nissue of fact relevant to any of the issues he cites. Point of error four is overruled.\n\n The judgment of conviction is affirmed.\n\n\n\n\n __________________________________________\n\n Lee Yeakel, Justice\n\nBefore Justices Kidd, Yeakel and Patterson\n\nAffirmed\n\nFiled: November 15, 2001\n\nDo Not Publish\n\n\n\n 6\n\f","page_count":6,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"paul-m-vallejo-v-state"} {"case_name":"in the Interest of A.T.B., a Child","citation_count":0,"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"2009-03-26","date_filed_is_approximate":false,"id":2915008,"opinions":[{"download_url":"http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=2434&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa11%5cOpinion","ocr":false,"opinion_id":2915008,"opinion_text":"\r\n\r\n\r\n\r\n\r\nOpinion filed March 26, 2009 \r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n\r\n\r\n\r\n\r\nOpinion filed March 26,\r\n2009 \r\n\r\n \r\n\r\n \r\n\r\n \r\n\r\n \r\n\r\n \r\n\r\n \r\n\r\n In The\r\n\r\n \r\n\r\n Eleventh\r\nCourt of Appeals\r\n\r\n ____________\r\n\r\n \r\n\r\n No. 11-07-00166-CV\r\n\r\n __________\r\n\r\n \r\n\r\n IN THE INTEREST OF A.T.B., A CHILD\r\n\r\n \r\n\r\n\r\n\r\n \r\n\r\n On\r\nAppeal from the 50th District Court\r\n\r\n \r\n\r\n Baylor\r\nCounty, Texas\r\n\r\n \r\n\r\n Trial\r\nCourt Cause No. 10098\r\n\r\n \r\n\r\n\r\n\r\n \r\n\r\n M\r\nE M O R A N D U M O P I N I O N\r\n\r\nAppellant\r\nhas filed in this court a motion to dismiss her appeal. The motion is granted,\r\nand the appeal is dismissed.\r\n\r\n \r\n\r\nPER CURIAM\r\n\r\nMarch 26, 2009\r\n\r\nPanel consists of: Wright, C.J.,\r\n\r\nMcCall, J., and Strange, J.\r\n\r\n\r\n\r\n\r\n\r\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"in-the-interest-of-atb-a-child"} {"case_name":"Alejandro, Danny R.","citation_count":0,"court_full_name":"Court of Criminal Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Criminal Appeals of Texas","court_type":"SA","date_filed":"2010-02-17","date_filed_is_approximate":false,"id":2943894,"opinions":[{"download_url":"http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=262&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccca%5cOpinion","ocr":false,"opinion_id":2943894,"opinion_text":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\nIN THE COURT OF CRIMINAL APPEALS\r\nOF TEXAS\r\n\r\n\r\n\r\nNO. WR-44,756-06\r\n\r\n\r\n\r\n\r\nDANNY R. ALEJANDRO, Relator\r\n\r\nv.\r\n\r\nHARRIS COUNTY DISTRICT CLERK, Respondent\r\n\r\n\r\n\r\n\r\nON APPLICATION FOR A WRIT OF MANDAMUS\r\nCAUSE NO. 563930 IN THE 209th JUDICIAL DISTRICT COURT\r\nFROM HARRIS COUNTY\r\n\r\n\r\n\r\n\r\n Per curiam.\r\n\r\nO R D E R\r\n\r\n\r\n Relator has filed a motion for leave to file a writ of mandamus pursuant to the original\r\njurisdiction of this Court. In it, he contends that he filed two applications for writs of habeas corpus\r\nin the 209th Judicial District Court of Harris County, that more than 35 days have elapsed, and that\r\nthe applications have not yet been forwarded to this Court. \r\n In these circumstances, additional facts are needed. The respondent, the District Clerk of \r\nHarris County, is ordered to file a response, which may be made by: submitting the record on such\r\nhabeas corpus applications; submitting a copy of a timely filed order which designates issues to be\r\ninvestigated, see McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App. 1992); stating that the\r\nnature of the claims asserted in the applications filed by Relator is such that the claims are not\r\ncognizable under Tex. Code Crim. Proc. art 11.07, § 3; or stating that Relator has not filed an\r\napplication for habeas corpus in Harris County. This application for leave to file a writ of mandamus\r\nshall be held in abeyance until the respondent has submitted the appropriate response. Such response\r\nshall be submitted within 30 days of the date of this order.\r\n\r\n\r\nFiled: February 17, 2010\r\nDo not publish \r\n\r\n\r\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"alejandro-danny-r"} {"case_name":"Jason Latroy Leonard v. State","citation_count":0,"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"2014-05-30","date_filed_is_approximate":false,"id":3076076,"opinions":[{"download_url":"http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=2394&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa05%5cOpinion","ocr":false,"opinion_id":3076076,"opinion_text":"Affirmed and Opinion Filed May 30, 2014\n\n\n\n\n Court of Appeals\n S In The\n\n\n Fifth District of Texas at Dallas\n No. 05-12-01575-CR\n\n JASON LATROY LEONARD, Appellant\n V.\n THE STATE OF TEXAS, Appellee\n\n On Appeal from the 401st Judicial District Court\n Collin County, Texas\n Trial Court Cause No. 401-82469-2011\n\n MEMORANDUM OPINION\n Before Justices Bridges, Francis, and Lang-Miers\n Opinion by Justice Bridges\n Appellant Jason Latroy Leonard appeals from his conviction for aggravated sexual\n\nassault, enhanced by a prior sexual assault conviction, and accompanying sentence of life in\n\nprison. In two issues, appellant contends the trial court (1) erred by denying appellant’s request\n\nfor self-representation and (2) abused its discretion when it overruled appellant’s motion to\n\nsuppress evidence. We affirm.\n\n Background\n\n Avery Dole1 and appellant were introduced by a mutual acquaintance called “Kelly.”\n\nDole bought cocaine from Kelly at a bar. Dole later called Kelly to bring her more cocaine. He\n\n\n\n\n 1\n Avery Dole is the pseudonym chosen by the complainant.\n\fdid so and introduced Dole to appellant, who indicated he could supply Dole with cocaine in the\n\nfuture.\n\n On July 13, 2011, Dole asked appellant to bring her $100 worth of cocaine to her home.\n\nAppellant arrived sometime after 11:00 p.m. After providing appellant the $100, appellant and\n\nDole snorted cocaine from her kitchen counter. Appellant surreptitiously videotaped her sniffing\n\nthe cocaine with his cell phone. Appellant and Dole talked on her back porch and, around 1:00\n\na.m., Dole gave appellant her debit card to buy her cigarettes. When appellant returned, they\n\nboth sniffed more cocaine, and appellant suggested they have sex. Dole refused. Appellant then\n\nplayed the video of her sniffing cocaine and another recording of her talking about her husband\n\non the back porch. Appellant threatened to show her husband the videos if she did not have sex\n\nwith him, and Dole refused. Appellant then went to the restroom.\n\n Dole testified that, when he came out of the restroom, appellant punched her in the head\n\nand dragged her by the hair into the kitchen. Dole stated appellant put her in a chokehold and\n\nsaid, “I’m gonna leave after I get what I want and you’re what I want.” He put one of Dole’s\n\nkitchen knives to her throat and led her to the living room, where he made her perform oral sex.\n\nDole testified that appellant then pushed Dole down and the couch and raped her vaginally. After\n\nappellant ejaculated, he said he “wasn’t stupid,” so she would have to take a shower before he\n\nwould leave. As she came out of the shower, he videotaped her and took a still photo of her.\n\nDole’s five-year-old son had gotten up and expressed concern for his mother. Dole testified\n\nappellant held the knife to the back of the child’s neck while his back was turned. Dole reassured\n\nher son and coaxed him into the living room to watch cartoons.\n\n Appellant then pulled Dole into the half bathroom and closed the door. Dole testified\n\nappellant forced her up onto the pedestal sink. Appellant then penetrated her vagina again, while\n\ncovering her face and making a video recording with his cell phone. After appellant ejaculated,\n\n –2–\n\fDole ran out of the bathroom with the knife and placed it on the kitchen counter. Appellant then\n\ndressed and sat in the living room with Dole and her two sons. Once appellant was informed a\n\nhome appraiser was arriving soon, he left.\n\n Dole then called a friend, who drove her to an E-Care facility. The police arrived, and she\n\nreported she had been sexually assaulted. Detective Randy Norton was one of the officers who\n\nresponded to the call from the E-Care facility. Norton explained he observed Dole’s black eye,\n\nwhich was starting to swell, and some scratches on her back. Based on her injuries, Norton had\n\nher transported to the hospital to have a rape kit examination. Dole testified she told the police\n\nabout the videos on appellant’s phone and identified appellant in a photo lineup. Based upon the\n\ninformation and identification of appellant in the photo lineup, police executed an arrest warrant\n\nfor appellant.\n\n Sergeant Heath Peacock with the Texas Department of Public Safety was one of the\n\nofficers assigned to execute the warrant. Peacock explained that, while conducting surveillance\n\nat appellant’s home, appellant exited his residence and was in the front yard speaking on a cell\n\nphone. Because the officers were concerned appellant might flee in his nearby car, Peacock\n\nblocked appellant’s vehicle from exiting the driveway with his own car. Peacock’s lights were\n\nflashing red and blue. At that point, appellant fled on foot. One of the officers then kicked in the\n\nlocked front door of appellant’s home, and Peacock saw appellant exiting the rear of the house\n\nthrough a sliding glass door. Peacock pursued appellant, who jumped over a fence. Peacock\n\nthen lost sight of appellant, but presumed appellant had re-entered his home through an open\n\ngarage. Peacock then began searching the rooms of appellant’s home and announced “police” in\n\nan attempt to make a safe recovery of appellant. Appellant walked out of a closet with his hands\n\nup. Appellant’s cell phone was on the dresser immediately accessible from the closet, and the\n\npolice seized it as evidence. Norton testified that, after appellant was Mirandized, appellant\n\n –3–\n\finsisted he watch the video of appellant and Dole snorting cocaine. Norton then obtained a\n\nsearch warrant for the contents of the phone, including the videos and pictures. Appellant later\n\nmoved to suppress all physical evidence including appellant’s cell phone and its contents, but the\n\ntrial court denied the motion.\n\n Appellant’s first trial ended in a hung jury. Although the trial judge had admonished\n\nappellant to not make outbursts, during his second trial, appellant spoke out while the jury was in\n\nthe courtroom. As the State was offering a knife, appellant said, “That’s not the same knife,\n\nYour Honor, y’all had the last time.” Also, after appellant’s attorney had cross-examined Dole\n\nand passed the witness, appellant raised his hand and addressed the judge, stating, “Under Faretta\n\nversus California I want to go pro se, Your Honor.” The trial court admonished appellant to say\n\nnothing further. The State then finished its redirect and, in a hearing outside the presence of the\n\njury, the trial court instructed appellant he would not be allowed to question Dole further.\n\n After Dole’s examination, three State witnesses remained. In a hearing outside the\n\npresence of the jury, appellant told the court he wanted to question the defense witnesses and\n\ngive his own closing argument. The trial court asked appellant questions to ascertain his\n\neducation and familiarity with the rules of evidence and his competence to represent himself, but\n\nthe record reflects appellant frequently evaded the judge’s questions or refused to answer his\n\nquestions. Ultimately, appellant gave up, making statements, such as, “I don’t have a chance\n\nwith this” and “I give up, man.” When the trial court started explaining the dangers and\n\ndisadvantages of self-representation, appellant made statements, such as, “Let’s go home, man. .\n\n. . Forget it.” Ultimately, the trial judge indicated that, if appellant was not going to answer the\n\ncourt’s questions, he could not “make an appropriate determination as to whether or not to let\n\n[appellant] represent [him]self” or whether appellant “fully [understood] the dangers and\n\n\n\n\n –4–\n\fdisadvantages of self-representation.” Because the court could not make the determination due\n\nto appellant’s “lack of cooperation,” his request to represent himself was denied.\n\n The jury found appellant guilty and, after finding the allegation of a prior conviction\n\ntrue,2 the trial court assessed appellant’s punishment at life in prison.\n\n Analysis\n\nSelf-Representation\n\n In his first issue, appellant contends the trial court erred by denying appellant’s request\n\nfor self-representation. Federal and state law guarantee a criminal defendant the right to the\n\nassistance of counsel as well as the right to waive counsel and represent himself. See U.S.\n\nCONST. amend. VI & XIV; TEX. CONST. art. I, §10; TEX. CODE CRIM. PROC. ANN. art. 1.05\n\n(West 2005) (accused “shall have right of being heard by himself, counsel, or both”); Faretta v.\n\nCalifornia, 422 U.S. 806, 818–820 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App.\n\n2002). A defendant’s right to counsel, however, may not be manipulated to obstruct the judicial\n\nprocess, and it does not require the trial court to appoint counsel agreeable to the defendant. See\n\nThomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977); Maes v. State, 275 S.W.3d 68, 71\n\n(Tex. App.−San Antonio 2008, no pet.).\n\n In Faretta, the U.S. Supreme Court established the independent right of self-\n\nrepresentation, in addition to the previously recognized right to waive the assistance of counsel.\n\nFaretta, 422 U.S. 806. A defendant may choose to proceed pro se by exercising his right of self-\n\nrepresentation. See, e.g., TEX. CONST. art. 1, § 10 (“[an accused] shall have the right of being\n\nheard by himself”); Faretta, 422 U.S. at 818–820 (1975); Moore v. State, 999 S.W.2d 385, 396\n\n(Tex. Crim. App. 1999). When the right of self-representation was established in Faretta, the\n\nSupreme Court stated that “[a]lthough a defendant need not himself have the skill and experience\n\n 2\n Appellant was previously convicted of sexual assault of a child in 2001.\n\n\n\n –5–\n\fof a lawyer in order to competently and intelligently choose self-representation, he should be\n\nmade aware of the dangers and disadvantages of self-representation. . . .” Faretta, 422 U.S. at\n\n835; see also Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984). While it is\n\nwell settled that a defendant in a criminal case has the right to represent himself without the\n\nassistance of counsel, in order for the right of self-representation to be adequately asserted, the\n\nright must be asserted in a timely manner, namely, before the jury is impaneled. See Faulk v.\n\nState, No. 01-09-00116-CR; 2011 WL 2089644, at *3 (Tex. App.−Houston [1st Dist.] May 19,\n\n2011, pet ref’d) (citing McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997); Ex Parte\n\nWinton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992)).\n\n Here, the record reflects appellant did not assert his right to self-representation until mid-\n\nway through the examination of Dole (the State’s ninth witness). Appellant contends he\n\nexpressed his dissatisfaction with appointed counsel prior to trial. However, expressing\n\ndissatisfaction with appointed counsel is not the same as an unequivocal request for self-\n\nrepresentation. See Faretta, 422 U.S. at 835. We conclude appellant’s request for self-\n\nrepresentation, which was made after the jury was impaneled, was untimely. See Faulk, 2011\n\nWL 2089644, at *3. We overrule appellant’s first issue.\n\nMotion to Suppress\n\n In his second issue, appellant complains the trial court abused its discretion when it\n\noverruled appellant’s motion to suppress evidence. Specifically, appellant argues the seizure and\n\nsubsequent search of his cell phone were unlawful. However, before we can address the merits\n\nof the search and seizure, we must first determine whether appellant preserved error.\n\n An adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice to\n\npreserve error on appeal, and a defendant need not specifically object to the evidence when it is\n\nlater offered at trial. See Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013). But he\n\n –6–\n\fmust also take care not to affirmatively indicate he has “no objection” to the evidence that he\n\nchallenged in his pretrial motion to suppress when it is later offered at trial, for the court of\n\ncriminal appeals has held such an affirmative statement constitutes “waiver” of the right to raise\n\non appeal the error that was previously preserved. See id.; Estrada v. State, 313 S.W.3d 274, 302\n\n(Tex. Crim. App. 2010); Swain v. State, 181 S.W.3d 359, 367-68 (Tex. Crim. App. 2005)).\n\n The court of criminal appeals has recently provided additional guidance on this issue,\n\nindicating that the rule that a later statement of “no objection” will forfeit earlier-preserved error\n\nis context-dependent, and we must consider it in the context of the entirety of the record. See id.\n\nat 885. If the record as a whole plainly demonstrates that the defendant did not intend, nor did\n\nthe trial court construe, his “no objection” statement to constitute an abandonment of a claim of\n\nerror that he had earlier preserved for appeal, the appellate court should not regard the claim as\n\n“waived,” but should resolve it on the merits. See id. On the other hand, if from the record as a\n\nwhole the appellate court simply cannot tell whether an abandonment was intended or\n\nunderstood, then, consistent with prior case law, it should regard the “no objection” statement to\n\nbe a waiver of the earlier-preserved error. See id. Under the latter circumstances, the affirmative\n\n“no objection” statement will, by itself, serve as an unequivocal indication that a waiver was\n\nboth intended and understood. See id. at 885-86.\n\n Therefore, we turn to the context of the record before us. In his motion to suppress,\n\nappellant sought to suppress “all physical evidence including, but not limited to, [appellant’s]\n\ncellular phone” and “[a]ll photographs, digital still images and videotaped images taken of the\n\nphysical evidence and the places or persons searched by law enforcement officers.” Appellant’s\n\nmotion to suppress was denied by the trial court. Prior to appellant’s arraignment at the second\n\ntrial, the trial judge made the following relevant remarks:\n\n Well, I’ve already ruled on the pre-trial hearing. We’re not gonna have another\n pre-trial hearing, another Motion to Suppress. Those rulings are all the same.\n –7–\n\f Those rulings still stand. We don’t need to reinvent the wheel just because the last\n jury hung up.\n\n …\n\n I assume [defense counsel] will, at the appropriate time, the last -- like he did in\n the last trial, you know, if he makes some vague, nebulous objection to the effect\n of, you know, Your Honor, I renew my previous objections, or the objections that\n I have previously made, I will understand that, and I understand that to include\n my rulings on the Motion to Suppress, so he’s not waiving anything. And he\n doesn’t need to go into great detail in front of the jury that would have the\n potential prejudicial effect for Mr. Leonard. If he makes some general reference, I\n will understand what that is. I’ve talked with the Court of Appeals now, so they\n should understand that that’s the understanding the trial court has with the\n lawyers, so nothing is waived.\n\nWhen the State offered the phone that had been the subject of the motion to suppress, defense\n\ncounsel “reurge[d] [his] previous objections regarding seizure of the phone,” which was\n\nsufficient to preserve error. However, when the State later offered several images and videos\n\nderived from the phone at issue, including the video of the alleged sexual assault in the\n\nbathroom, appellant affirmatively stated, “no objection.” The State has referred us to the record,\n\nin which 14 images or videos from the phone at issue were offered as exhibits, and defense\n\ncounsel stated there was “no objection.” Specifically, the State refers this Court to five separate\n\ninstances in which it offered images or video from appellant’s cell phone and appellant stated,\n\n“no objection.”3 Our review of the record also shows that the remaining photo evidence from the\n\ncell phone, offered on two separate occasions (Exhibits 50, 51, 52 and 53 and then Exhibits 26\n\nand 27) were also offered with appellant’s response of “no objection.” In light of the trial\n\njudge’s comments and our review of the record as a whole, we cannot determine whether an\n\nabandonment was intended or understood. See Thomas, 408 S.W.3d at 885. Thus, under these\n\n\n 3\n The State refers us to multiple offers of exhibits in which the appellant responded, “no objection.” For example, the State offered Exhibits\n54, 55, and 56 (a photograph and 2 videos) at one time. The State later offered Exhibits 57 and 58 (a photograph and a video). The State then\noffered Exhibits 59, 60, and 61 (2 photographs and the CD containing video files from the cell phone) together. The State then offered Exhibit 28\n(a photograph). Next, the State offered Exhibit 29 (a photograph). Finally, the State offered Exhibits 30, 31, 32 and 33 (4 photographs) together.\nEach offer is followed by a statement of “no objection” by appellant.\n\n\n\n –8–\n\fcircumstances, the court of criminal appeals has instructed that the affirmative “no objection”\n\nstatements serve as an unequivocal indication that a waiver of the earlier-preserved error was\n\nboth intended and understood. See id. at 885-86. We overrule appellant’s second issue.\n\n Conclusion\n\n Having overruled appellant’s two issues, we affirm the judgment of the trial court.\n\n\n\n\nDo Not Publish\nTEX. R. APP. P. 47\n121575F.U05\n\n\n\n\n /David L. Bridges/\n DAVID L. BRIDGES\n JUSTICE\n\n\n\n\n –9–\n\f S\n Court of Appeals\n Fifth District of Texas at Dallas\n JUDGMENT\n\nJASON LATROY LEONARD, Appellant On Appeal from the 401st Judicial District\n Court, Collin County, Texas\nNo. 05-12-01575-CR V. Trial Court Cause No. 401-82469-2011.\n Opinion delivered by Justice Bridges.\nTHE STATE OF TEXAS, Appellee Justices Francis and Lang-Miers\n participating.\n\n Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.\n\n\nJudgment entered May 30, 2014\n\n\n\n\n /David L. Bridges/\n DAVID L. BRIDGES\n JUSTICE\n\n\n\n\n –10–\n\f","page_count":10,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"jason-latroy-leonard-v-state"} {"case_name":"Rey Ortiz v. Luis Manuel Singleterry","citation_count":0,"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"2014-05-16","date_filed_is_approximate":false,"id":3085027,"opinions":[{"download_url":"http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=11064&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa13%5cOpinion","ocr":false,"opinion_id":3085027,"opinion_text":" COURT OF APPEALS\n\n THIRTEENTH DISTRICT OF TEXAS\n\n CORPUS CHRISTI - EDINBURG\n\n NUMBER 13-14-00228-CV\n\nMARLA CUELLAR, Appellant,\n\n v.\n\nOMAR MALDONADO, Appellee.\n\n\n On appeal from the 206th District Court\n of Hidalgo County, Texas.\n\n\n NUMBER 13-14-00230-CV\n\nREY ORTIZ, Appellant,\n\n v.\n\nLUIS MANUEL SINGLETERRY, Appellee.\n\n\n On appeal from the 92nd District Court\n\f of Hidalgo County, Texas.\n\n\n MEMORANDUM OPINION\n Before Justices Garza, Benavides, and Perkes\n Memorandum Opinion by Justice Benavides\n In these consolidated appeals, we address an identical issue in two separate, but\n\nrelated, election contests: whether the trial court erred by granting a plea to the\n\njurisdiction in favor of each respective appellee-contestee. For the reasons stated\n\nbelow, we reverse and remand both cases.\n\n I. BACKGROUND\n\n A. Appellate Cause Number 13-14-00228-CV (Cuellar v. Maldonado)\n\n Appellant-contestant Marla Cuellar and appellee-contestee Omar Maldonado were\n\ncandidates in the 2014 Hidalgo County Court at Law No. 8 Democratic Primary Election.\n\nOf the 41,409 votes cast in this race, Maldonado garnered 21,457 votes, or 51.82 percent;\n\nCuellar received 17,353 votes, or 41.91 percent; and a third candidate, Julian Castañeda,\n\nreceived 2,599 votes, or 6.28 percent. Castañeda is not a party to this appeal. Cuellar\n\nfiled the present election contest almost two weeks after the final canvass of the primary\n\nelection.1\n\n Cuellar attached various exhibits to her petition, including: (1) a handwritten\n\nincident report filed with the Hidalgo County Election Department by voter Benito Garza\n\n\n\n\n 1A “final canvass” means the canvass from which the official result of an election is determined.\nSee TEX. ELEC. CODE ANN. § 1.005(5) (West, Westlaw through 2013 3d C.S.).\n\n\n\n 2\n\f(“the Garza incident report”), which outlines a voting irregularity that he experienced while\n\nusing Hidalgo County’s electronic voting machines;2 (2) an affidavit from Richard Alvarez,\n\nof the Hidalgo County Judge’s office, which corroborates Garza’s incident report (“the\n\nAlvarez affidavit”); and (3) letters from Cuellar and other candidates addressed to Hidalgo\n\nCounty Judge Ramon Garcia requesting a “forensic expert” to “inspect each voting\n\nmachine to ensure that they have not malfunctioned or been subjected to fraud or\n\ntampering.”\n\n After answering the instant suit, Maldonado filed a plea to the jurisdiction and\n\nasserted the trial court lacked subject matter jurisdiction over the contest because “no\n\nfacts” had been asserted by Cuellar “concerning the casting or counting of improper or\n\nillegal ballots for County Court at Law No. 8.” Specifically, Maldonado argued that the\n\n“one affidavit” and “one incident report” relied on by Cuellar involves the district attorney’s\n\nrace and not the race at issue. Prior to the hearing on the plea to the jurisdiction,\n\nMaldonado also filed a motion for directed verdict which essentially asserts that there is\n\nno evidence to support Cuellar’s contentions in this election contest.\n\n On April 11, 2014, the trial court held a hearing and granted Maldonado’s plea.\n\nAs a result, the trial court did not rule on the pending motion for directed verdict. An\n\naccelerated appeal followed, see TEX. ELEC. CODE ANN. § 232.014 (West, Westlaw\n\nthrough 2013 3d C.S.), and this Court ordered an expedited briefing schedule. See\n\n\n\n\n 2 According to Garza, he attempted to vote numerous times for the incumbent district attorney,\n\nRene Guerra, but the machine switched his vote to Guerra’s opponent. Garza’s report further states that\nhe alerted election workers who cancelled his ballot and allowed him to vote on another voting machine\nwithout issue.\n\n\n\n 3\n\fCuellar v. Maldonado, No. 13-14-00228-CV, slip op. at 2 (Tex. App.—Corpus Christi April\n\n24, 2014, no pet.) (per curiam).\n\n B. Appellate Cause Number 13-14-00230-CV (Ortiz v. Singleterry)3\n\n Appellant-contestant Rey Ortiz and appellee-contestee Luis Manuel Singleterry\n\nwere candidates in the 2014 Hidalgo County 92nd District Court Democratic Primary\n\nElection. Of the 41,738 votes cast in this race, Singleterry received 24,127 votes, or\n\n57.79 percent; Ortiz received 12,466 votes, or 29.86 percent; and a third candidate,\n\nMiguel Wise, received 5,145 votes, or 12.35 percent. Wise is not a party to this appeal.\n\nOrtiz filed the present election contest two weeks after the final canvass of votes. Ortiz\n\nattached the same exhibits that Cuellar attached to her petition, including: (1) the Garza\n\nincident report; (2) the Alvarez affidavit; and (3) correspondence from Ortiz and other\n\ncandidates addressed to Judge Garcia regarding the “numerous inconsistencies and\n\ndiscrepancies” in various races on the Democratic Primary ballot.\n\n In his answer to the contest, Singleterry included a plea to the jurisdiction and\n\nspecial exceptions. Singleterry’s answer also asserted that Ortiz could not meet his\n\nburden of proof to change the outcome of the election. Specifically, the plea asserts that\n\nOrtiz’s “pleadings and evidence” affirmatively negated the trial court’s jurisdiction.\n\nSingleterry’s plea focuses on the Garza incident report. Singleterry argued that the\n\nGarza incident report did not mention any problems with regard to the 92nd District Court\n\nDemocratic Primary. Furthermore, Singleterry argued that Ortiz presented “no\n\n\n\n 3On May 12, 2014, Singleterry filed a motion for leave to file his brief late in this appeal. We\nhereby grant Singleterry’s motion for leave and will consider his brief in our review of this case.\n\n\n\n 4\n\factionable controversy for the trial court’s review,” and even assuming that Garza’s vote\n\nwas miscast in the 92nd District Court race, it is insufficient to change the outcome of the\n\nelection.\n\n On April 11, 2014, the trial court held a hearing and granted Singleterry’s plea.\n\nAn accelerated appeal followed, see id. § 232.014, and this Court ordered an expedited\n\nbriefing schedule. See Ortiz v. Singleterry, No. 13-14-00230-CV, slip op. at 2 (Tex.\n\nApp.—Corpus Christi April 24, 2014, no pet.) (per curiam).\n\n II. STANDARD OF REVIEW\n\n A plea to the jurisdiction is a dilatory plea generally used to defeat an action\n\n“without regard to whether the claims asserted have merit.” Mission Consol. Ind. Sch.\n\nDist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (quoting Bland Ind. Sch. Dist. v. Blue,\n\n34 S.W.3d 547, 554 (Tex. 2000)). Essentially, the plea challenges the court’s power to\n\nadjudicate a case. Heckman v. Williamson County, 369 S.W.3d 137, 149 (Tex. 2012).\n\nWhether a court has subject-matter jurisdiction is a question of law that we review de\n\nnovo. See Tex. Nat. Res. Conserv. Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.\n\n2002).\n\n Typically, the plea challenges whether the plaintiff has alleged facts that\n\naffirmatively demonstrate the court’s jurisdiction to hear the case. Garcia, 372 S.W.3d\n\nat 635 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).\n\nIn this situation, we determine if the pleader has alleged facts that affirmatively\n\ndemonstrate the court's jurisdiction to hear the cause. Tex. Dep’t of Parks & Wildlife v.\n\nMiranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in favor\n\n\n\n\n 5\n\fof the plaintiffs and look to the pleaders’ intent. Id. If the pleadings do not contain\n\nsufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not\n\naffirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading\n\nsufficiency, and the plaintiffs should be afforded the opportunity to amend. Id. If the\n\npleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction\n\nmay be granted without allowing the plaintiffs an opportunity to amend. Id.\n\n A plea to the jurisdiction may also challenge the existence of jurisdictional facts.\n\nSee Garcia, 372 S.W.3d at 635. In this situation, we consider relevant evidence\n\nsubmitted by the parties when necessary to resolve the jurisdictional issues raised, as the\n\ntrial court is required to do. Miranda, 133 S.W.3d at 227 (citing Bland, 34 S.W.3d at\n\n555). This standard mirrors that of a traditional summary judgment motion. See\n\nGarcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 227. Initially, the defendant carries\n\nthe burden to meet the summary judgment proof standard for its assertion that the trial\n\ncourt lacks jurisdiction. Garcia, 372 S.W.3d at 635. If it does, the plaintiff is then\n\nrequired to show that a disputed material fact exists regarding the jurisdictional issue.\n\nId. If a fact issue exists, the trial court should deny the plea. Id. But if the relevant\n\nevidence is undisputed or the plaintiff fails to raise a fact question on the jurisdictional\n\nissue, the trial court rules on the plea as a matter of law. Id.\n\n In sum, the burden is on the plaintiff to affirmatively demonstrate the trial court’s\n\njurisdiction. Heckman, 369 S.W.3d at 150. When assessing a plea, our analysis\n\nbegins with the live pleadings. Id. We may also consider evidence submitted to negate\n\nthe existence of jurisdiction, and we must consider evidence when necessary to resolve\n\n\n\n\n 6\n\fthe jurisdictional issue. Id. When considering evidence, the court should “confine itself\n\nto the evidence relevant to the jurisdictional issue.” Blue, 34 S.W.3d at 555.\n\n III. DISCUSSION\n\n Each cause in this consolidated opinion calls upon this Court to answer the same\n\nlimited question: has the appellant-contestant affirmatively demonstrated the trial\n\ncourt’s jurisdiction?4\n\n The district court has exclusive original jurisdiction of an election contest, with a\n\nfew exceptions. See TEX. ELEC. CODE ANN. § 221.002 (West, Westlaw through 2013 3d\n\nC.S.). When hearing an election contest, the district court shall attempt to ascertain\n\nwhether the outcome of the contested election, as shown by the final canvass, is not the\n\ntrue outcome because: (1) illegal votes were counted; or (2) an election officer or other\n\nperson officially involved in the administration of the election (a) prevented eligible voters\n\nfrom voting, (b) failed to count legal votes, or (c) engaged in other fraud or illegal conduct\n\nor made a mistake. Id. § 221.003 (West, Westlaw through 2013 3d C.S.). An “illegal\n\nvote” is defined as a “vote that is not legally countable.” Id. § 221.003(b).\n\n Thus, the trial court in this case has the power to hear this election contest if the\n\ncontestant alleged in pleadings that (1) illegal votes were counted; or (2) an election\n\nofficer or other person officially involved in the administration of the election: (a)\n\nprevented eligible voters from voting; (b) failed to count legal votes; or (c) engaged in\n\nother fraud or illegal conduct or made a mistake. See id. §§ 221.002; 221.003.\n\n\n\n 4Our inquiry today is limited solely to the question of the trial court’s jurisdiction to hear the contests.\nThus, we will not address the merits of either contest.\n\n\n\n 7\n\f With this framework in mind, we now examine each cause.\n\n A. Appellate Cause Number 13-14-00228-CV (Cuellar v. Maldonado)\n\n In appellate cause number 13-14-00228-CV, Maldonado’s plea specifically asserts\n\nthat Cuellar alleged “no facts” “concerning the casting or counting of improper or illegal\n\nballots . . . which cast doubt on the validity of the primary election results of County Court\n\n[at Law] No. 8.”\n\n Cuellar asserted in her original petition that she\n\n will prove by clear and convincing evidence that a sufficient number of illegal\n votes were counted to affect the outcome of the election; that either through\n malfunction or illegal manipulation, who voted for one candidate had their\n votes re-cast for other candidates and that persons who voted for Marla\n Cuellar had their votes counted for one of the other candidates . . . ; election\n machines either malfunctioned or were illegally tampered with to affect the\n outcome of the election . . . ; election officials or other persons officially\n involved in the administration of the election witnessed that election\n machines appeared to either malfunction or were tampered with so that the\n outcome of the election was affected . . . ; many complaints were brought\n to the attention of the Hidalgo County Elections Administrator to raise\n doubts concerning the accuracy of the election results and of the function\n of the election machines . . . ; the election process failed to count legal votes,\n and/or engaged in other fraud or illegal conduct or made mistakes that\n precluded an accurate count of the vote [sic] cast.\n\n A liberal view of this pleading reveals that Cuellar alleges that “a sufficient number”\n\nof illegal votes were counted so as to affect the outcome of the Hidalgo County Court at\n\nLaw No. 8 Democratic Primary race due to the “malfunction” or “illegal manipulation” of\n\nthe electronic voting machines utilized by the Hidalgo County Elections Department.\n\nFurthermore, Cuellar alleges that complaints about the malfunctioning voting machines\n\nwere made to the Hidalgo County Elections Administrator and that the elections officials\n\n“failed to count legal votes and/or engaged in other fraud or illegal conduct or made\n\n\n\n\n 8\n\fmistakes that precluded an accurate count of the vote cast.” These allegations are\n\nwithin the statutory scope of inquiry given to district courts that hear election contests.\n\nSee TEX. ELEC. CODE ANN. §§ 221.002; 221.003.\n\n Maldonado argues, however, that because Cuellar attached only one affidavit and\n\none incident report related to election irregularities, and because that evidence did not\n\nrelate to her particular race, but instead to the race for Hidalgo County District Attorney,\n\nCuellar failed to assert facts to properly invoke the trial court’s jurisdiction. We disagree.\n\n The evidence attached to Cuellar’s petition neither negates the existence of the\n\ntrial court’s jurisdiction nor is it necessary to resolve the jurisdictional issue before us.\n\nSee Blue, 34 S.W.3d at 555. Instead, we interpret Cuellar’s offered evidence as\n\ngeneral supplemental and contextual background supporting Cuellar’s pleadings related\n\nto her specific allegations of illegal vote casting, “illegal manipulation” or “malfunctioning”\n\nof the electronic voting machines, and failure to count legal votes and/or engagement in\n\nother fraud or illegal conduct by the Hidalgo County Elections Administrator to preclude\n\nan accurate count of the votes cast. See id.\n\n Therefore, after construing Cuellar’s pleadings liberally, taking all factual\n\nassertions as true, and looking at Cuellar’s intent, see Miranda, 133 S.W.3d at 226, we\n\nconclude that Cuellar affirmatively demonstrated the trial court’s jurisdiction to hear this\n\nelection contest. See Heckman, 369 S.W.3d at 150.\n\n We sustain Cuellar’s sole issue on appeal.\n\n B. Appellate Cause Number 13-14-00230-CV (Ortiz v. Singleterry)\n\n In appellate cause number 13-14-00230-CV, Singleterry asserts in his plea that\n\n\n\n\n 9\n\fOrtiz’s pleadings and evidence affirmatively negated the trial court’s jurisdiction. We\n\ndisagree.\n\n Ortiz’s petition states that he\n\n will prove by clear and convincing evidence that a sufficient number of illegal\n votes were counted to affect the outcome of the election; that either through\n malfunction or illegal manipulation, voters who voted for one candidate had\n their votes re-cast for other candidates and that persons who voted for . . .\n Ortiz had their votes counted for one of the other candidates . . . ; election\n machines either malfunctioned or were illegally tampered with to affect the\n outcome of the election . . . ; election officials or other persons officially\n involved in the administration of the election witnessed that election\n machines appeared to either malfunction or were tampered with so that the\n outcome of the election was affected . . . ; many complaints were brought\n to the attention of the Hidalgo County Elections Administrator to raise\n doubts concerning the accuracy of the election results and of the functioning\n of the election machines . . . ; the election process failed to count legal votes,\n and/or engaged in other fraud or illegal conduct or made mistakes that\n precluded an accurate count of the vote [sic] cast.\n\n After construing this pleading liberally, we conclude that Ortiz alleges that “a\n\nsufficient number” illegal votes were counted so as to affect the outcome of the 92nd\n\nDistrict Court Democratic Primary. Ortiz further alleges that votes intended for Ortiz\n\nwere re-cast for other candidates as a result of “malfunction or illegal manipulation.”\n\nFurthermore, Ortiz alleges that complaints about the malfunctioning voting machines\n\nwere made to the Hidalgo County Elections Administrator and that the elections officials\n\n“failed to count legal votes and/or engaged in other fraud or illegal conduct or made\n\nmistakes that precluded an accurate count of the vote cast.” Such allegations are within\n\nthe statutory scope of inquiry given to district courts that hear election contests. See\n\nTEX. ELEC. CODE ANN. §§ 221.002; 221.003.\n\n Additionally, as in appellate cause number 13-14-00228-CV, the evidence\n\n\n\n\n 10\n\fattached to Ortiz’s petition neither negates the existence of the trial court’s jurisdiction nor\n\nis it necessary to resolve the jurisdictional issue before us. See Blue, 34 S.W.3d at 555.\n\nInstead, we construe this evidence as a supplement to Ortiz’s petition, designed to put\n\nOrtiz’s allegations in context and explain the intent of his election contest, even though\n\nthe Garza incident report and Alvarez affidavit relate to a race other than the 92nd District\n\nCourt Democratic Primary.\n\n Therefore, after construing Ortiz’s pleadings liberally, taking all factual assertions\n\nas true, and looking at Ortiz’s intent, see Miranda, 133 S.W.3d at 226, we conclude that\n\nOrtiz affirmatively demonstrated the trial court’s jurisdiction to hear this election contest.\n\nSee Heckman, 369 S.W.3d at 150.\n\n IV. CONCLUSION\n\n We reverse the trial court’s orders granting Maldonado’s and Singleterry’s pleas to\n\nthe jurisdiction in appellate cause numbers 13-14-00228-CV and 13-14-00230-CV,\n\nrespectively. We remand both cases for further proceedings consistent with this opinion.\n\n\n\n\n __________________________\n GINA M. BENAVIDES,\n Justice\n\n\nDelivered and filed the\n16th day of May, 2014.\n\n\n\n\n 11\n\f","page_count":11,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"rey-ortiz-v-luis-manuel-singleterry"} {"case_name":"Daniels v. Sorriso Dental Studio, LLC","case_name_short":"Daniels","citation_count":0,"citations":["178 So. 3d 111"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2015-10-28","date_filed_is_approximate":false,"id":3150194,"opinions":[{"download_url":"http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/October/October 28, 2015/2D14-2897or.pdf","ocr":false,"opinion_id":3150194,"opinion_text":" NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING\n MOTION AND, IF FILED, DETERMINED\n\n\n IN THE DISTRICT COURT OF APPEAL\n OF FLORIDA\n SECOND DISTRICT\n\n\n\nPAUL DAVID DANIELS, )\n )\n Petitioner, )\n )\nv. ) Case No. 2D14-2897\n )\nSORRISO DENTAL STUDIO, LLC, )\n )\n Respondent. )\n )\n\nOpinion filed October 28, 2015.\n\nPetition for Writ of Certiorari to the Circuit\nCourt for the Twelfth Judicial Circuit for\nManatee County; sitting in its appellate\ncapacity.\n\nPaul David Daniels, pro se.\n\nNo appearance for Respondent.\n\n\n ORDER ON PETITIONER'S MOTION TO REVIEW DENIAL\n OF PETITIONER'S MOTION FOR APPELLATE COSTS\n\n\nVILLANTI, Chief Judge.\n\n\n By motion filed pursuant to Florida Rule of Appellate Procedure 9.400(c),\n\nPaul David Daniels seeks review of the trial court's order that denied his motion for an\n\naward of appellate costs, made after this court granted Daniels' petition for writ of\n\fcertiorari, quashed the circuit court's order affirming the dismissal of Daniels'\n\ngarnishment complaint, and remanded for reconsideration in light of the correct law.\n\nWe grant the motion for review, reverse the county court's order to the extent that it\n\ndenied Daniels' motion for appellate costs, and remand to the circuit court for further\n\nproceedings.\n\n In earlier proceedings in this case, Daniels petitioned for a writ of second-\n\ntier certiorari to quash the circuit court's order that had affirmed the county court's\n\ndismissal of Daniels' garnishment action. We concluded that longstanding law dictated\n\nthat while Daniels could no longer pursue the original judgment debtor due to her\n\nbankruptcy discharge, Sorriso Dental Studio, LLC, the judgment debtor's employer, was\n\nindependently liable to Daniels for those sums that it should have garnished from the\n\njudgment debtor's wages between the time that the writ of garnishment was served and\n\nthe date the judgment debtor filed for bankruptcy. See Daniels v. Sorriso Dental Studio,\n\nLLC, 164 So. 3d 778, 781 (Fla. 2d DCA 2015). Hence, we concluded that the circuit\n\ncourt had applied the incorrect law in affirming the dismissal of Daniels' action, and we\n\nquashed the decision and remanded for reconsideration of the petition in light of the\n\ncorrect law. Id. In his petition, Daniels also sought to have us quash the circuit court's\n\nruling that affirmed the county court's order that denied his motion for judgment on the\n\npleadings. In our opinion, we noted that we could not conclude that that ruling\n\nconstituted a departure from the essential requirements of the law based on the record\n\nbefore us. Id. at 782. Our opinion issued on May 27, 2015, and mandate issued on\n\nJune 15, 2015.\n\n\n\n\n -2-\n\f On June 22, 2015, Daniels filed a timely motion for taxation of appellate\n\ncosts in the circuit court pursuant to Florida Rule of Appellate Procedure 9.400(a). That\n\nrule provides that \"[c]osts shall be taxed in favor of the prevailing party unless the court\n\norders otherwise.\" Fla. R. App. P. 9.400(a). The term \"court\" in this phrase refers to the\n\nappellate court—not the trial court. See Am. Med. Int'l, Inc. v. Scheller, 484 So. 2d 593,\n\n594 (Fla. 4th DCA 1985). Further, the costs shall be taxed \"by the lower tribunal.\"\n\nFla. R. App. P. 9.400(a). The \"lower tribunal\" is the court \"whose order is to be\n\nreviewed.\" Fla. R. App. P. 9.020(e). Hence, under rule 9.400(a), as long as the motion\n\nto tax appellate costs is timely filed in the lower tribunal, appellate costs must be taxed\n\nin favor of the party who prevailed in the appeal unless the appellate court has ordered\n\notherwise. See, e.g., Dahly v. Dep't of Children & Family Servs., 845 So. 2d 350, 351\n\n(Fla. 2d DCA 2003); Giddens v. Tlsty, 98 So. 3d 257 (Fla. 1st DCA 2012); Am. Med.\n\nInt'l, 484 So. 2d at 594. The \"lower tribunal\" does not have the discretion to refuse to\n\naward appellate costs when the appellate court has not so ordered, although the lower\n\ntribunal does have discretion in determining the amount to be allowed based on the\n\nevidence in the record. See Am. Med. Int'l, 484 So. 2d at 594.\n\n Here, Daniels' motion for an award of appellate costs was timely filed in\n\nthe circuit court, which was the \"lower tribunal\" whose decision was being reviewed by\n\nthis court. This court did not address any award of costs in its opinion and so did not\n\norder any departure from the general rule that the prevailing party is entitled to an award\n\nof appellate costs. Thus, it would initially seem that we should simply reverse the order\n\ndenying Daniels' motion for appellate costs.\n\n\n\n\n -3-\n\f However, the record before us shows a more complicated problem\n\nbecause the circuit court—which was the lower tribunal in which Daniels properly filed\n\nhis motion—did not rule on Daniels' motion. Instead, Daniels' motion was ruled upon by\n\nthe county court. This was improper. As the Fourth District has explained:\n\n For our purposes the operative word is \"court.\" Appellant\n contends that, in the present appellate rules, the term \"court\"\n refers to the tribunal in which the referenced appeal is\n pending. In applying the appellate rules to a case that is\n pending in the supreme court to review a decision of a\n district court of appeal, the \"court\" is the supreme court and\n the district court of appeal is the \"lower tribunal\" or lower\n court. If a matter is pending in the district court of appeal to\n review a decision of the circuit court, the \"court\" is the district\n court of appeal and the \"lower tribunal\" is the circuit court,\n and so on down the judicial ladder.\n\nId. (emphasis added).\n\n Because the proceeding in this court was a second-tier certiorari\n\nproceeding, this court was the \"court\" and the \"lower tribunal\" was the circuit court—not\n\nthe county court. Daniels properly filed his motion in the circuit court—not the county\n\ncourt. Nevertheless, the motion was not ruled upon by the circuit court; it was instead\n\nruled upon by the county court. The county court had no authority to rule on a motion\n\nseeking to tax appellate costs in a proceeding from circuit court to this court. Therefore,\n\nto the extent that the county court ruled on that motion, its ruling is a nullity.\n\nAccordingly, we reverse the county court's order to the extent that it purported to rule on\n\nDaniels' motion for appellate costs and remand for the circuit court to rule on this\n\nmotion.\n\n Because we are remanding for the proper court to consider the motion, we\n\naddress two arguments raised by Sorriso in the county court. First, Sorriso argued that\n\n\n\n\n -4-\n\fDaniels was not entitled to an award of his appellate costs because he did not prevail\n\non all of the issues raised in his petition. However, the question is not whether Daniels\n\nprevailed on all of the issues in the petition—it is whether he prevailed on the\n\n\"significant issues.\" See, e.g., Dahly, 845 So. 2d at 351; Lucas v. Barnett Bank of Lee\n\nCty., 732 So. 2d 405, 407 (Fla. 2d DCA 1999); Fla. Power & Light Co. v. Polackwich,\n\n705 So. 2d 23, 25 (Fla. 2d DCA 1997); Osterback v. Turner, 855 So. 2d 1237, 1238\n\n(Fla. 1st DCA 2003). Here, the significant issue in the petition was whether the circuit\n\ncourt departed from the essential requirements of the law by affirming the dismissal of\n\nDaniels' garnishment action in light of the judgment debtor's bankruptcy. This court\n\ndetermined that the circuit court had applied the incorrect law in reaching this\n\nconclusion, and therefore Daniels prevailed on this issue. While Daniels also sought to\n\nhave this court determine that the court departed from the essential requirements of the\n\nlaw by affirming the denial of his motion for entry of a judgment on the pleadings, that\n\nwas neither his primary argument nor was it a \"significant issue\" in the appeal. Hence,\n\nalthough our decision may not have been all that Daniels hoped for, he did prevail on\n\nthe significant issue in the case, i.e., the propriety of the dismissal of his action, and he\n\nwas entitled to an award of his appellate costs on that basis. Cf. Lucas, 732 So. 2d at\n\n407 (noting that while the Lucases had not obtained all of the relief they sought in their\n\nappeal, they had prevailed on the \"significant issues\" in the appeal and so were entitled\n\nto an award of appellate costs).\n\n Second, Sorriso argued that it should not be liable for an award of costs\n\nbecause it was simply an \"innocent bystander\" below and in the appeal and petition.\n\nHowever, the record shows that Sorriso refused to turn over the wages it allegedly\n\n\n\n\n -5-\n\fgarnished pursuant to the writ of garnishment, thus necessitating the action in the\n\ncounty court below.1 Further, Sorriso appeared through counsel at the hearing below\n\nand actively and strenuously argued against Daniels' position that he was entitled to the\n\ngarnished funds. This flatly contradicts the county court's finding that Sorriso \"took no\n\naction to obstruct the collection of these funds.\" Therefore, contrary to its assertions\n\nnow, Sorriso was not an \"innocent bystander\" in this action, and in light of this, an award\n\nof appellate costs may properly be entered against Sorriso.\n\n In sum, for reasons not apparent from the record, the circuit court did not\n\nrule on Daniels' motion for appellate costs even though it was the \"lower tribunal\"\n\ncharged with making this ruling. Instead, the county court ruled on the motion without\n\nthe authority to do so. Therefore, we grant Daniels' motion for review, reverse the\n\ndenial of his motion by the county court, and remand for this motion to be addressed by\n\nthe circuit court.\n\n\n\nSLEET and LUCAS, JJ., Concur.\n\n\n\n\n 1\n It appears from the underlying record that Sorriso did not, in fact, actually\ngarnish any wages from the judgment debtor. By virtue of this court's opinion and\nSorriso's failure to comply with the writ of garnishment that had been properly served on\nit, Sorriso itself will now be independently liable to Daniels for the funds it should have\ngarnished. Thus, it unquestionably has a financial interest in this litigation, making it an\ninterested—rather than an innocent—party. See Jack Eckerd Corp. v. Fla.\nUnemployment Appeals Comm'n, 525 So. 2d 468, 469 (Fla. 3d DCA 1988) (noting that\na party whose financial interest is affected by the litigation is an interested party,\nregardless of what entities are named in the style of the case).\n\n\n -6-\n\f","page_count":6,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"daniels-v-sorriso-dental-studio-llc"} {"attorneys":"Lovick P. Williams, and D.M. Martin, for appellant.\n\n J. Tom Watson, Attorney General, and Woodrow M. Melvin, \nAssistant Attorney General, for appellee.","case_name":"Mix v. State","case_name_full":"Tom Mix v. State of Florida","case_name_short":"Mix","citation_count":0,"citations":["16 So. 2d 46","153 Fla. 849"],"court_full_name":"Supreme Court of Florida","court_jurisdiction":"Florida, FL","court_short_name":"Supreme Court of Florida","court_type":"S","date_filed":"1943-12-21","date_filed_is_approximate":false,"id":3387961,"judges":"ADAMS, J.:","opinions":[{"author_id":4017,"ocr":false,"opinion_id":3379724,"opinion_text":"The appellant was convicted of murder and sentenced to be electrocuted.\nHe questions the ruling of the court upon the request to require the court reporter to include in the record certain questions relative to the fitness of one of the jurors as well as the sufficiency of the evidence.\nThe record does not reveal an abuse of discretion by the trial court in denying the request.\nWith regard to the other question we find it wholly without merit. The undisputed evidence is that appellant accosted the deceased, his estranged wife, and assaulted her. He escorted her to a lonely spot in the woods then killed her with a piece of wood. He buried the remains in a thickly wooded spot and concealed the grave. Shortly thereafter he was seen with blood on his clothes. He reported, however, having sent his wife away on a bus. A short time later a search was made resulting in a discovery of the body whereupon appellant confessed.\nWe find no error in the record and judgment, and the same is affirmed.\nBUFORD, C. J., TERRELL, CHAPMAN, THOMAS and SEBRING, JJ., concur.\nBROWN, J., not participating.","per_curiam":false,"type":"020lead"}],"posture":"An appeal from the Circuit Court for Citrus County, F.R. Hocker, Judge.","precedential_status":"Published","slug":"mix-v-state"} {"case_name":"(2004)","case_name_full":"Michael L. Pullen, Esquire County Attorney for Talbot County","case_name_short":"(2004)","citation_count":0,"citations":["89 Op. Att'y Gen. 107"],"court_full_name":"Maryland Attorney General Reports","court_jurisdiction":"Maryland, MD","court_short_name":"Maryland Attorney General Reports","court_type":"SAG","date_filed":"2004-05-13","date_filed_is_approximate":false,"id":3484345,"judges":"J. JOSEPH CURRAN, JR.","opinions":[{"ocr":false,"opinion_id":3482181,"opinion_text":"Dear Michael L. Pullen, Esquire\nOn behalf of the Talbot County Council, you have requested our opinion whether the County may establish a special taxing district for the purpose of financing improvements to County roads within the corporate boundaries of the Town of Easton. In accordance with our policy pertaining to opinion requests from local governments, you provided us with your own legal analysis and conclusion that the County may do so.\nFor the reasons explained below, we agree that the County may establish a special taxing district for the purpose of financing improvements to County roads within the Town.1 The special assessment on properties within the taxing district must be reasonably related to the benefits conferred by the improvements being financed.\n I Background\nTalbot County wishes to convey to the Town of Easton certain County roads that, as a result of annexations, now lie within the Town limits. However, the Town is unwilling to accept title to these roads unless they are first upgraded to Town standards. An upgrade would entail various types of improvements, such as curbs, gutters, street lighting, and storm water drainage. To finance road upgrades, the County is considering the creation of special taxing districts.\nThe Town has expressed its concern about the appropriate attribution of the benefits from the contemplated improvements. We understand that part of the area under consideration includes new residential subdivisions; other parts are currently undeveloped, but development is expected. In one part of the area, a County road apparently is the sole direct access between a residential development and the Town center. In another part, the County road is a connector route between two State highways and is the principal access to a large shopping center within Town limits.\n II Special Taxing Areas for Road Improvements\nA. County Authority over Roads\nTalbot County has adopted charter home rule under Article XI-A of the Maryland Constitution and therefore has the broad powers that the General Assembly has delegated to each charter county under the Express Powers Act. See Annotated Code of Maryland, Article 25A, § 5. This authority includes complete jurisdiction and control over County roads. Article 25A, § 5(K) and (T); County Council for Montgomery County v. Lee,219 Md. 209, 215, 148 A.2d 568 (1959).2 Thus, the County may upgrade County roads as it deems necessary.\nSimilarly, a municipal corporation such as Easton has authority over municipal roads within its corporate boundaries. See 75 Opinions of the Attorney General 353, 357 (1990). However, absent legislation to the contrary, a county road does not automatically become a municipal road by virtue of its location within the corporate limits of a municipality. 10A McQuillin, The Law of Municipal Corporations § 30.42 (3rd ed. rev. 1999). In Maryland, a road located in a municipality is a county road if the title or easement is in the name of the county. See Annotated Code of Maryland, Transportation Article, § 8-101(g); Opinion No. 87-046 (October 26, 1987) (unpublished).3\nB. Special Taxing Areas\nMaryland law has long recognized the use of special assessments by local governments to fund the cost of infrastructure improvements. See, e.g., Town of Hyattsville v. Smith, 105 Md. 318, 66 A. 44 (1907). A special assessment is a charge imposed by law on real property in the immediate vicinity of a local improvement to defray its expense. Montgomery County v. Schultze, 302 Md. 481, 489, 489 A.2d 16 (1985); 71 Opinions of the Attorney General 214, 218 (1986).\n1. County Authority to Create Special Taxing Area\nSubject to a limited exception not applicable here, Talbot County has authority under the Express Powers Act \"to establish, modify, amend, and abolish special taxing areas for any of the purposes enumerated in [Article 25A]. . . .\" Article 25A, § 5(O). This authority allows the County to establish special taxing areas to fund County road improvements.4\nArticle 25A, § 5(O) authorizes imposition only of a property tax. See City of Annapolis v. Anne Arundel County, 347 Md. 1, 12, 698 A.2d 523\n(1997); Waters Landing Ltd. Partnership v. Montgomery County, 337 Md. 15,38, 650 A.2d 712 (1994). Thus, a special assessment must be a property tax, unless the General Assembly grants the county separate authority to impose an alternative form of tax. The levy may take the form of an ad valorem tax, a per lot assessment, a front foot benefit assessment, or some other mechanism tied to the ownership of property.5 In other words, the assessment must be a charge on the ownership, rather than the use, of the property. See Weaver v. Prince George's County, 281 Md. 349,379 A.2d 399 (1977) (distinguishing property tax from an excise tax).\n2. Special Benefit Requirement\nTo justify imposition of a special assessment, there must be not only a public benefit, but also a special additional benefit that accrues to the properties within the special taxing area. Montgomery County v. Schultze,302 Md. 481, 489, 489 A.2d 16 (1985); Silver Spring Memorial Post No. 2562 v. Montgomery County, 207 Md. 442, 448, 115 A.2d 249 (1955). The Court of Appeals has explained the rationale for a special assessment as follows:\n A local assessment . . . is a tax levied occasionally as may be required upon a limited class of persons interested in local improvement, and who are presumed to be benefitted by the improvement over and above the ordinary benefit which the community in general derive from the expenditure of the money. In the payment of the assessment thus made, the adjacent owner is supposed to be compensated by the enhanced value of his property, arising from the improvement.\nWilliams v. Anne Arundel County, 334 Md. 109, 117, 638 A.2d 74 (1994) (emphasis added) quoting Gould v. Mayor City Council of Baltimore,59 Md. 378 (1883); see also Leonardo v. Bd. of County Comm'rs of St. Mary's County, 214 Md. 287, 307, 134 A.2d 284, cert. denied, 355 U.S. 906\n(1957).\nAssessments for road improvements are frequently limited to abutting properties. However, there is no reason that the costs could not be apportioned among property owners over a larger area, if property throughout that area is specially benefitted by the improvements. If the degree of benefit differs among different classes of property in the area, the assessment can be classified accordingly. Gardner v. Bd. of County Comm'rs of St. Mary's County, 320 Md. 63, 85 n. 8, 576 A.2d 208\n(1990).\nThe proportional benefit to the public at large — and therefore the amount of the improvement that should be financed through general taxation — must be considered in setting the special assessment. Silver Spring Memorial Post No. 2562 v. Montgomery County, 207 Md. at 448. However, the law does not require that a special assessment be precisely equal to the special benefit derived by the assessed property. Id. at 453. The law presumes that a legislative body has correctly determined those properties that derive a special benefit and the amount of that benefit. Sulzer v. Montgomery County, 60 Md. App. 637, 650, 484 A.2d 285\n(1984); see also Montgomery County v. Schultze, 302 Md. at 490 (as long as an assessment is imposed according to a definitive and just plan, it will not be disturbed by the courts absent appearance of fraud or mistake).\n III County Authority Within a Municipality\nYou have asked about the County's authority to establish a special taxing area within the Town of Easton. As a general rule, county legislation does not apply within a municipality if the legislation: (1) conflicts with legislation enacted by the municipal corporation under authority of public general law or its charter, or (2) relates to a matter that the municipality is authorized to address through legislation and, either through an ordinance or charter amendment, the municipality has opted out from specific county legislation or has exempted itself from all county legislation covering areas in which the municipality has legislative authority. Annotated Code of Maryland, Article 23A, § 2B(a)(2), (3).6\nAs outlined above, the creation of a special taxing area to finance improvement of a County road is within the County's authority. Neither the County nor the Town has identified a Town law, nor are we aware of any, that would conflict with the County's authority with respect to a County roadway within the Town.7 To be sure, a charter county generally is prohibited from enacting laws effective only within a particular municipality. Mayor and Council of Forest Heights v. Frank,291 Md. 331, 341, 435 A.2d 425 (1981).8 However, this principle does not limit a county's authority over county property simply because the property lies within the corporate limits of a municipality.9\nYour inquiry concerns the upgrading of roads within the Town that both the County and Town identify as County roads. In a 1987 opinion, this Office concluded that a county has not only a right, but also a responsibility, to maintain a county road located within a municipality. Opinion No. 87-046 (October 26, 1987) (unpublished).10 Thus, the County is currently responsible for maintaining the roads in question. If the proposed improvements are contained within existing County rights-of-way, the County has the right to initiate the upgrades under the Express Powers Act.11 The County could finance such improvements through establishment of a special taxing area under Article 25A, § 5(O), even if the Town had exempted itself from County legislation under Article 23A, § 2B. In our view, that statute was not intended to interfere with a county's management of county roadways.\nWe understand that the Town is concerned that special taxes may be levied on Town residents out of proportion to the benefits conferred by the improvements. Of course, any special assessment imposed on properties within a special taxing area within the Town must be related to a special benefit conferred on those properties by the road improvements. An Attorney General's opinion cannot resolve the extent to which a particular improvement benefits the community in general as opposed to specific properties. Nor can a legal opinion measure the value of any benefit conferred by an improvement on those properties. Those are matters to be resolved in the legislative process creating a special taxing area.\n IV Conclusion\nIn our opinion, the County may establish a special taxing area within the Town to finance the cost of upgrading County roads within the Town. The amount of the assessment on properties within the special taxing area should be proportionate to special benefits conferred on those properties by the improvements being financed.\n J. Joseph Curran, Jr. Attorney General\n William R. Varga Assistant Attorney General\n Robert N. McDonald Chief Counsel Opinions and Advice\n1 Although we reach the same conclusion, unlike your opinion, we do not rely on Annotated Code of Maryland, Article 23A, § 2B(b)(2). See note 6 below.\n2 The general police power delegated to charter counties in Article 25A, § 5(S) might also be viewed as authority to develop or upgrade roads. Cf. 75 Opinions of the Attorney General 353, 357 (1990) (police power of municipal corporation includes power to open streets). A charter county also has authority to issue general or limited obligation debt to finance road construction. Article 25A, § 5(P).\n3 In some states, annexation of property by a municipality transforms county roads in the annexed region into municipal roads by operation of law. 2A McQuillin, The Law of Municipal Corporations § 7.46.70 (3rd rev. ed. 1996).\n4 While the phrase \"special taxing area\" or \"special district\" is sometimes used to mean an independent, limited purpose governmental entity and the phrase \"assessment district\" is sometimes used to mean a designated territory, the terms are frequently used interchangeably. See O. Reynolds, Local Government Law § 99 (2d ed. 2001). Article 25A, § 5(O) encompasses both concepts. See 63 Opinions of the Attorney General 114, 119 (1978). Throughout the remainder of this opinion, we use the term \"special taxing area,\" the term employed in Article 25A, § 5(O).\nA municipal corporation also has authority to establish special taxing areas to finance road improvements; in certain respects, this municipal authority is broader than the authority granted to charter counties under the Express Powers Act. See Article 23A, § 44A.\n5 Although the assessment may be based on the value of the property, it is not subject to the uniformity requirement of Article 15 of the Maryland Declaration of Rights. Williams v. Anne Arundel County,334 Md. 109, 115-16 n. 4, 638 A.2d 74 (1994); 63 Opinions of the Attorney General 16, 19 (1978).\n6 This provision is qualified by a number of exceptions that allow for county legislation to apply within municipalities. Among those exceptions is one for \"[c]ounty revenue or tax legislation, subject to the provisions of Article 24 of the Code, the Tax-General Article, and the Tax-Property Article, or legislation adopting a county budget. . . .\" Article 23A, § 2B(b)(2). However, given that your inquiry apparently presents no conflict with municipal legislation and no other reason under § 2B(a) that would preclude the County's exercise of its normal authority with respect to County roads, we need not analyze this exception.\n7 The municipal Charter of Easton grants the Town authority only over \"town public streets or ways.\" Easton Town Charter § 17-A (emphasis added).\n8 Another holding in the Frank case — that a charter county ordinance would generally prevail over a conflicting municipal ordinance — was overturned by the enactment of § 2B. See 81 Opinions of the Attorney General 133, 134-36 (1996).\n9 This is not to say that county property within a municipal corporation is necessarily free from all municipal regulation. See, e.g., Town Comm'rs of Centreville v. County Comm'rs of Queen Anne's County, 199 Md. 652, 87 A.2d 599 (1952).\n10 A County's authority over roads within a municipality is otherwise limited. See Town of Glenarden v. Lewis, 261 Md. 1, 273 A.2d 140 (1971) (decision to accept dedication of public right-of-way rested with the county prior to municipal incorporation and with municipality after incorporation); 75 Opinions of the Attorney General 353 (1990) (county may not compel the opening of a road within a town without the town's consent).\n11 On the other hand, the expansion of a roadway beyond the existing right-of-way is more akin to the opening of a road, an action that a county may not undertake without a municipality's consent. 75 Opinions of the Attorney General 353 (1990). Thus, to the extent that the planned improvements extend beyond the existing County right-of-way, the Town's consent would be a prerequisite for the creation of a special taxing area.\nIn an analogous situation, the Legislature granted certain counties, not including Talbot, broad authority to establish special taxing areas and to issue debt supported by ad valorem or special taxes to finance infrastructure improvements, including street construction, but mandated that the county obtain a municipality's consent if a special taxing area falls entirely or in part within the boundaries of the municipality. See Annotated Code of Maryland, Article 24, § 9-1301(p). *Page 115 ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"2004"} {"attorneys":"Henry M. Hyde, for the appellant.\n\n Samuel E. Lyon, for the respondent.","case_name":"Devin v. . Patchin","case_name_full":"Devin v. . Patchin.","case_name_short":"Devin","citation_count":0,"citations":["26 N.Y. 441"],"court_full_name":"New York Court of Appeals","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Appeals","court_type":"S","date_filed":"1863-03-05","date_filed_is_approximate":false,"id":3603716,"judges":"SELDEN, J.","opinions":[{"author_id":5256,"ocr":false,"opinion_id":3585288,"opinion_text":"[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 443 \nUpon the merits, this case presents but the single question, whether the respondent was the wife of Henry C. Patchin at the time of his decease; and this depends upon the narrower question, whether said Patchin was the man, calling himself David Sparks, between whom and the respondent, the banns of matrimony were solemnized by the Rev. Wm. H. Norris, pastor of the Forsyth street M.E. church, at his dwelling house in the city of New York, in the evening of the 12th of November, 1855. The fact of such marriage of the respondent having taken place is undisputed; and after a careful examination of the testimony, I am of opinion that no serious doubt can be entertained, that the marriage was between the respondent and Henry C. Patchin. [The learned judge here proceeded to examine the evidence at large and proceeded:] *Page 444 \nFor these reasons I am of opinion that the evidence relied upon by the appellant is wholly insufficient to overcome the positive proof of the marriage of Patchin, or to account for the apparent non-existence of any other man than him to answer to the name of David Sparks, the bridegroom of the wedding established by that proof. The Supreme Court, therefore, very properly reversed the surrogate's decree.\nA further question arises upon the order of the court directing an issue to be made and tried at the circuit, to determine the question of the marriage. It is insisted, on the part of the appellant, that the Supreme Court was not authorized to award such issue, the case not being within the statute directing an issue on the reversal of a surrogate's decree. (3 R.S., 5th ed., p. 151, § 73.)\nPrior to the adoption of the Revised Statutes of 1830 it was held that the Court of Chancery had power to award feigned issues, in such cases, on the ground that the practice on appeals from the decrees of surrogates' courts was according to the course of the civil law, by which new allegations and new proofs were allowed to be introduced, in the discretion of the court, in any stage of the proceedings. (Vanderheyden v. Reid, 1 Hopk., 408; Van Wyck v. Alley, id., 552.) The same course was pursued under the Revised Statutes (1 Paige, 550; 8 id., 479), and the correctness of that practice has been, to some extent, recognized, since the reorganization of the courts, under the Constitution of 1846, and since the adoption of the Code of Procedure. (2 Bradf., 6; 9 Abb., 393.) But in the case ofCaujolle v. Ferrié (23 N.Y., 90), which was an appeal from the case in 9 Abb., 393, I am informed that this Court rejected the additional testimony taken after the appeal to the Supreme Court, holding that the decree of the surrogate could only be reviewed on the evidence produced before him. This position is stated only in the dissenting opinion in that case (p. 119), but the other members of the court are said to have concurred in that part of the opinion. That case was quite similar to the present, and must control it as to the point under consideration. If no further testimony could be received, it was improper *Page 445 \nto award an issue which could not be tried without further testimony. Even if the power to award the issue existed, it was not proper to subject the parties to the delay and expense of such trial, in the present case, though probably this court would not attempt to control the discretion of the court below in the exercise of such power. (2 Comst., 269; 11 Wend., 234.)\nThe judgment of the Supreme Court, so far as it reverses the decree of the surrogate, should be affirmed; the award of an issue to try the question whether the respondent is the widow of Henry Clay Patchin, deceased, should be reversed; and it should be declared that she is such widow, and is entitled to letters of administration upon his estate.\nBALCOM, J. No statute has been cited by the respondent's counsel that authorized the Supreme Court to direct that the question be tried by a jury at a circuit court, whether Mary Grace Patchin, or Melvin, was the lawful wife and is the widow of Henry C. Patchin, deceased, and I have not been able to find any that confers such authority. The only cases in which the Supreme Court is authorized by statute to direct that an issue be made up and tried by a jury at a circuit court, on appeals from the decisions of surrogates, are those by which wills have been admitted to probate or refused to be admitted to record or probate. (2 R.S., p. 609, § 98; 3 id., 5th ed., p. 906, § 21; Laws of 1848, p. 295.)\nPrior to the Revised Statutes the Court of Chancery proceeded on appeals from the decrees of surrogates according to the course of the civil law, and might hear new testimony and call to its aid the verdict of a jury, upon disputed questions of fact. (VanDerheyden v. Reid, 1 Hopk. Ch. R., 408; Scribner v.Williams, 1 Paige, 550.) And without noticing the change in the proceedings in surrogates' courts and on appeals therefrom, effected by the Revised Statutes, the chancellor entertained a motion in Case v. Towle (8 Paige, 479), to permit the appellant, in an appeal from a surrogate's decision, to produce further proof, but denied the application for leave to do so. And it appears that the Supreme Court in Caujolle v. *Page 446 Ferrié (9 Abb., 393), held, on an appeal from the decree of the surrogate, by which Ferrie was adjudged to be the legitimate son of the decedent, and entitled to letters of administration, that the appellate court might receive newly discovered evidence in addition to the evidence which was before the surrogate. But when the case was decided by this court, that question was not passed upon. DENIO, J., however, remarked (23 N.Y., 119,) as follows: \"I have not thought it proper to consider the evidence upon this point, contained in the additional testimony produced by the appellant to the Supreme Court, while this case was pending there upon appeal, being of opinion that it can only be reviewed upon the proofs which were before the surrogate.\"\nThe case of The New Orleans Gas Light and Banking Company v.Dudley (8 Paige, 452), is cited by the respondent's counsel to show that the Supreme Court properly directed that the question of fact in this case be tried at a circuit court. But the decision of the chancellor in that case is no authority for that made by the Supreme Court in this. That case was brought before the chancellor by an appeal from the decision of a vice-chancellor, and he dismissed the appeal, so far as it relates to Mrs. Dudley, but with liberty to her to apply to the vice-chancellor for an issue to try the question of usury set up in her answer. He acted in that case strictly as an appellate judge, and did not retain the case and direct an issue to be made up for trial at a circuit court as the Supreme Court did in this.\nI am not aware that the question was ever raised before the chancellor, whether the provisions of the Revised Statutes respecting appeals from the decrees of surrogates, had so far changed the proceedings in such cases as to make his court strictly one of review on such appeals, and divest it of all authority to try such cases de novo. But so far as my knowledge extends, the chancellor was supposed to possess only a strictly appellate jurisdiction in such cases, subsequent to the Revised Statutes, except where a different authority was conferred upon him by the legislature. *Page 447 \nThe Supreme Court possesses only the same powers and jurisdiction on appeals from the decisions of surrogates that the Court of Chancery had; and the justices of the Supreme Court possess only the powers and jurisdiction that the chancellor, vice-chancellors and circuit judges had under the State Constitution of 1821 and the laws prior to the judiciary act of 1847. (Laws of 1847, vol. 1., p. 323, § 16; id., p. 324, § 17; 3 R.S., 5th ed., p. 277, § 1; id., p. 906, § 22, c.)\nAn appeal in a case like this was never heard by a vice-chancellor; nor is such a one now heard by a justice of the Supreme Court, at a special term of that court. Such appeals are now heard at general terms of the Supreme Court, where, according to my views, only an appellate jurisdiction is possessed, except in certain cases specially provided for by statute. (Laws of 1848, chap. 185, p. 295.) That court cannot send a case brought into it by appeal from a Surrogate's Court, to a Circuit Court, for trial by a jury, unless there is a statute authorizing such a disposition of it, or unless that court proceeds in such cases according to the course of the civil law.\nI have previously said there is no statute conferring such authority on that court; and I am of the opinion proceedings in appeals from the decrees of surrogates are now so much controlled by statute and common law rules, that it cannot be said the Supreme Court proceeds on such appeals according to the course of the civil law.\nIf these conclusions are correct, the only decision the Supreme Court had jurisdiction to make in this case, was one either affirming the decision of the surrogate, or reversing it and directing him to make an order that Mary Grace Patchin was the lawful wife of Henry C. Patchin, deceased, and is his widow, or reversing it and directing him to rehear the case; and that their order directing the question, whether Mary Grace Patchin, or Melvin, was the lawful wife and is the widow of the deceased, was erroneous.\nI am of the opinion the evidence justified the Supreme Court in reversing the order made by the surrogate, declaring that Mary Grace Patchin, or Melvin, was not the wife and is not *Page 448 \nthe widow of Henry C. Patchin, deceased, and that this Court ought not to disturb the decision of the Supreme Court, so far as it reverses that order. The evidence convinces me that Mary Grace Patchin was lawfully married to the deceased, and is his widow, and if my brethren concur in this conclusion, this Court will so hold\nIt is proper that we should notice the orders of the surrogate, in regard to the costs of the proceedings before him. He directed that the administrator \"to be appointed\" should pay out of the assets of the deceased, the gross sum of $500, to one of the counsel of Mary Grace Patchin, and the further gross sum of $150 to another of her counsel; and the gross sum of $500 to one of the counsel of Maria F. Devin, and the further gross sum of $500 to another of her counsel, besides $160.75 costs of the surrogate. These sums amount to $1,810.75, and the entire value of the personal estate of the deceased, as sworn to in the petition for letters of administration thereon, was only $1,500.\nWhere the surrogate found authority for making these orders respecting costs, is an inquiry more easily made than answered. But it ought to be made, though neither party has appealed from either of them. The counsel of each party being similarly situated in respect to the question of costs, that is to say, each having an order for a large fee to be paid out of the same fund, probably did not advise that such orders should be appealed from. But a proper regard for the due administration of the laws of the land requires that this Court should not permit such orders to go unnoticed. It is true that the surrogate, in contests before him, may award costs to the party in his judgment entitled thereto, to be paid either by the other party personally, or out of the estate which shall be the subject of the controversy. (2 R.S., 223, § 10; 3 id., 5th ed., 367, § 25.) But in all cases where he is authorized to award costs, he must tax the same at the same rates allowed for similar services in the Court of Common Pleas, in the year 1837. (3 R.S., 5th ed., p. 367, § 23; Western v. Romaine, 1 Brad., 37; Willcox v.Smith, 26 Barb., 316.) He has no authority to make an arbitrary *Page 449 \nallowance to counsel in lieu thereof. (Burtis v. Dodge, 1 Barb. Ch. R., 91; 26 Barb., 316.) Previous to the Revised Statutes, surrogates had no authority to award costs in any case. (5 Cow., 719; Shultz v. Pulver, 3 Paige, 182; S.C., 11 Wend., 363.) The Code confers no such authority on surrogates or surrogates' courts. The Code is only applicable to cases arising in surrogates' courts, after appeals have been taken to the Supreme Court. (Code, § 318; id., § 471.)\nThe costs awarded in this case were directed to be paid to the counsel instead of the parties, which was erroneous (26 Barb., 316); and the sums greatly exceed (probably tenfold) any amounts that could have been awarded, if taxed as required by statute; and it is a little singular that the surrogate should have required the administrator of the estate of the deceased to pay the counsel of Mary G. Patchin, after he had decided she was an impostor, and not the widow of the deceased.\nBut I have said enough in regard to the decision of the surrogate, on the question of costs, except that neither of the counsel in the case in this Court was counsel in it before the surrogate. I hope I have shown that surrogates cannot lawfully act as almoners of the estates of deceased persons.\nMy conclusions are that that part of the order of the Supreme Court which directs that the question be tried by a jury, whether Mary Grace Melvin, or Patchin, was the wife and is the widow of Harvey C. Patchin, deceased, should be reversed, and that the order of the Supreme Court, so far as it reverses the decree of the surrogate, should be affirmed; and that Mary Grace Patchin should be declared to have been the wife, and now to be the widow, of the deceased, and entitled to letters of administration on his estate; and that the Supreme Court should be directed to alter its decision, so as to conform to these conclusions, and then remit the record and proceedings in this case to the surrogate, with directions to carry such decision into effect, and that neither party should recover costs of the other, in this Court.\nAll the judges concurring,\nOrdered accordingly. *Page 450 ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"devin-v-patchin"} {"attorneys":"Mr. Walter K. Sibbald, Mr. Sanford A. Headley and Mr. Joseph S. Graydon , for plaintiffs in error.\n\n Mr. Louis J. Schneider , prosecuting attorney, Mr. Robert N. Gorman and Mr. Richard T. Dickerson , for defendant in error.","case_name":"Roberts v. State","case_name_full":"Roberts v. State of Ohio.","case_name_short":"Roberts","citation_count":6,"citations":["185 N.E. 193","126 Ohio St. 287","126 Ohio St. (N.S.) 287"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"1933-03-15","date_filed_is_approximate":false,"id":4025515,"opinions":[{"ocr":false,"opinion_id":3782007,"opinion_text":"It is ordered and adjudged that said petition in error be, and the same is hereby, dismissed for the reason no debatable constitutional question is involved in said cause.\nPetition in error dismissed.\nWEYGANDT, C.J., DAY, ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.\nKINKADE, J., not participating.","per_curiam":false,"type":"020lead"}],"posture":"ERROR to the Court of Appeals of Hamilton county.","precedential_status":"Published","slug":"roberts-v-state"} {"case_name":"State v. Wilson","case_name_full":"The State of Washington v. Andre Terrell Wilson","case_name_short":"Wilson","citation_count":0,"citations":["146 Wash. App. 1054"],"court_full_name":"Court of Appeals of Washington","court_jurisdiction":"Washington, WA","court_short_name":"Court of Appeals of Washington","court_type":"SA","date_filed":"2008-09-15","date_filed_is_approximate":false,"id":4945177,"judges":"Agid, Becker, Leach","opinions":[{"author_str":"Becker","ocr":true,"opinion_id":4753105,"opinion_text":"\nAppeal from a judgment of the Superior Court for King County, No. 06-1-09316-6, Linda Lau, J., entered May 22, 2007. Affirmed by unpublished opinion per\nBecker, J.,\nconcurred in by Agid and Leach, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-wilson"} {"attorneys":"Hatcher, Meyerson, Oxford & Irvin, Stanley P. Meyer son, Zachary, Hunter, Zachary & Bowden, John C. Hunter, Julius R. Lunsford, for appellant., Thibodeau & Smith, Richard A. Thibadeau, Ernest Woodie Smith, for appellee.","case_name":"Multiple Listing Service, Inc. v. Metropolitan Multi-List, Inc.","case_name_full":"MULTIPLE LISTING SERVICE, INC. v. METROPOLITAN MULTI-LIST, INC.","citation_count":0,"citations":["225 Ga. 129"],"court_full_name":"Supreme Court of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Supreme Court of Georgia","court_type":"S","date_filed":"1969-01-23","date_filed_is_approximate":false,"id":5742892,"judges":"Aumand","opinions":[{"author_str":"Aumand","ocr":true,"opinion_id":5594567,"opinion_text":"\nAumand, Presiding Justice.\nMultiple Listing Service, Inc. in its complaint against Metropolitan Multi-List, Inc., asserting its right to the exclusive use of the name, “Multiple Listing Service,” and the letters, “MLS” in the metropolitan area of Atlanta, and in Fulton and DeKalb Counties, prayed that the defendant be temporarily and permanently enjoined from using the above name and letters in the operation of its business. Both corporations are composed of stockholders and members who are engaged in the business of real estate brokerage.\nThe alleged right to the exclusive use of such name and symbol was based on two grounds: (1) that it had registered such trade names in September, 1957 in Fulton County, and (2) that, in the language of the complaint, “the names, ‘MLS’ and, ‘Multiple Listing Service’ have each acquired by long use in connection with the plaintiff’s business a secondary meaning which is understood by the public as designating the services and business of the plaintiff and the public has come to associate the trade name, ‘MLS’ and ‘Multiple Listing Service’ and the distinctive emblem combining both of said names as identifying exclusively the business and service of the plaintiff, and the use thereof by the defendant of the identical trade names will directly injure the business reputation of the plaintiff and will dilute the distinctive quality of the plaintiff’s trade names and forms of advertising.” (For a fuller statement of the complaint see the report of the case on its former appearance in this court, 223 Ga. 837).\nOn presentation of the complaint, an ex parte restraining order was granted. On the hearing of the prayer for an interlocutory injunction, the court, at the conclusion of the plaintiff’s evidence, sustained the defendant’s motion to dissolve the ex parte restraining order and deny the interlocutory order.\nOn appeal to this court, it appeared from the record that the defendant had not filed any response to the complaint or offered *131any evidence. We held, “Under these facts and circumstances, the court erred in dissolving the temporary restraining order and in refusing to grant an interlocutory injunction pending a final trial.”' Multiple Listing Service v. Metropolitan Multi-List, 223 Ga. 837 (159 SE2d 52).\nOn the trial of the plaintiff’s prayer for a permanent injunction, before a court and jury, a verdict was returned in favor of the defendant, and a decree entered thereon.. An appeal from that decree brings the case here. The errors enumerated are that the verdict and judgment are contrary to the law and the evidence and that the evidence demanded a verdict in favor of the plaintiff.\nIt is insisted by the appellant that in view of the prior decision by this court that the evidence before the trial judge in.the hearing for an interlocutory injunction demanded the grant of such relief, a new trial is demanded as a matter of law since the evidence presented by the plaintiff at both proceedings was the same. -In our prior decision, we called attention to the fact that the case was heard solely on the pleadings and evidence of the plaintiff, and that the court abused its discretion not as a matter of law, but as a matter of evidence, in denying .the interlocutory injunction. An interlocutory judgment of a trial judge refusing or granting an injunction, which is affirmed by this court, is not res judicata unless it was based solely upon a question of law. Where it is based upon both law and evidence, it is not binding at the final trial unless the proof is substantially the same as it was at the interlocutory hearing. Collins v. Carr, 116 Ga. 39 (42 SE 373).\nThough the evidence on behalf of the appellant on the trial of the case was substantially the same as upon the interlocutory hearing, there is now also before us the evidence introduced by the appellee at the trial of the case before the court and the jury. The main and controlling issue as submitted by the trial court to the jury was: had the appellant by its prior use of the words, “Multiple Listing Service” and “MLS” acquired the exclusive right to use such trade names by reason of their secondary meaning insofar as the business of the appellant was concerned?\n*132The instant case in many respects is similar to the case of Atlanta Paper Co. v. Jacksonville Paper Co., 184 Ga. 205 (190 SE 777). There, the Atlanta Paper Co. sought to enjoin the defendant from trading under the name of “Atlantic Paper Co.” Both companies were engaged in the business of selling paper products in the same territory. It was contended by the plaintiff that its corporate name had acquired a secondary meaning denoting that the products sold under that name were the products of the plaintiff. A temporary injunction was granted. On the trial before the court and jury, one of the special questions submitted to the jury was whether the trade name of the plaintiff had acquired a secondary meaning as to its products. The jury, on questions submitted, found in favor of the defendant. Notwithstanding the verdict, the plaintiff asked the court to grant an injunction. It was held that the evidence supported the verdict and that there was no error in the refusal to grant an injunction or to deny a new trial. It was there said that Code § 37-712 which provides, “Any attempt to encroach upon the business of a trader, or other person, by the use of similar trademarks, names, or devices, with the intention of deceiving and misleading the public, is a fraud for which equity will grant relief,” must be borne in mind.\nIn the opinion, it was said: “It is also necessary to remember, in dealing with this case, that the general purpose of the law controlling trade names and unfair competition is the prevention of fraudulent interference with rights of the lawful holder of a trade name and protection of the public from imposition. Relief against unfair competition by the use of trade names really rests on the deceit or fraud which the later comer into the field is practicing upon the earlier comer and on the public. The principle on which courts of equity proceed in restraining the simulation of names is not that there is property acquired by one party in the name, but to prevent fraud and deception in dealing with the party charged with the simulation of a name used by another in a similar business or manufacture. Unfair competition is a form of unlawful business injury. It consists in passing off or attempting to pass off on the public the goods or business of one person as and for the goods or business of *133another. It consists essentially in the conduct of a trade or business in such a manner that there is either an express or implied representation to that effect. In fact, it may be stated broadly that any conduct the nature and probable tendency and effect of which is to deceive the public so as to pass off the goods or business of one person as and for the goods or business of of another constitutes actionable unfair competition. The essence thereof consists in the sale of the goods of one manufacturer or vendor for those of another. It is the palming off by one of his goods as the goods of another, and nothing less than conduct tending to pass off one man’s goods or business as the goods or business of another will constitute unfair competition. The basic principle of the law of unfair competition is that no one has a right to dress up his goods or business or otherwise represent the same in such manner as to deceive an intending purchaser and induce him to believe he is buying the goods of another, and that no one has a right to avail himself of another’s favorable reputation in order to sell his own goods. The present tendency is to decide every case on the ground of unfair competition, by making the decision turn on whether or not the effect of what was done is to pass off the goods or business of one man as the goods or business of another. Unless it appears that there is or will probably be a deception of ordinary buyers and the general public into thinking that the goods or business of one is the business or goods of another, and thus bring about the sale of one man’s goods as the goods of the other, the case is damnum absque injuria, for which no action lies.” Atlanta Paper Co. v. Jacksonville Paper Co., 184 Ga. 205, 212, supra.\nIn the instant case, there was conflicting testimony by witnesses for both parties as to whether the words, “Multiple Listing Service” and “MLS” had or had not acquired a secondary meaning. There was evidence that a majority of the real estate brokers who were members of either the appellant’s or the appellee’s listing service were members of the National Association of Real Estate Boards. It was further shown that said board, in 1945, designed a multiple listing emblem to be used nationally by all members of the board, and the design was in the form of a house with “MLS” and “Multiple Listing Service” thereon, *134and that when the emblem was registered with the United States Patent Office in 1966, beside its registered emblem appeared the words “Multiple Listing Service — MLS.” There was also evidence on behalf of the appellee that prior to the adoption of the emblem by the National Board, that realtors in the United States had been using Multiple Listing Service for 20-30 years, and that Multiple Listing Service Corporation had existed for several years in Columbus, Savannah and Macon, Ga. Multiple listing service was defined as being a group of real estate brokers who pool their listings for the purpose of being more efficient in selling houses. There was no evidence that anyone who transacted business with a real estate broker who was a member of the appellees, and who used the words “Multiple Listing Service” or “MLS” did' so in the belief that he was dealing with a broker who was a member of the appellant’s listing service, by reason of the use of said words.\nThere being a conflict in the evidence as to whether the words “Multiple Listing Service — MLS” had acquired a secondary meaning as would give the appellant the exclusive right to use them in the sale of real estate by the brokers who were members of appellant’s association, it cannot be said that the evidence demanded a verdict in favor of the appellant. • The verdict and decree were authorized by the evidence.\n\nJudgment affirmed.\n\n\nAll the Justices concur, except Duck-worth, C. J., who dissents.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued December 10, 1968, Rehearing denied February 6 and February 20, 1969.","precedential_status":"Published","slug":"multiple-listing-service-inc-v-metropolitan-multi-list-inc"} {"case_name":"Suffolk & Nassau Amusement Co. v. Wurlitzer Co.","case_name_full":"Suffolk & Nassau Amusement Co., Inc. v. Wurlitzer Company","citation_count":0,"citations":["24 A.D.2d 893"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1965-11-22","date_filed_is_approximate":false,"id":5899067,"opinions":[{"ocr":true,"opinion_id":5756192,"opinion_text":"\nIn an action to recover damages for fraud and deceit *894etc., the plaintiff appeals from an order of the Supreme Court, Nassau County, entered March 30, 1965, which denied plaintiff’s “ motion for leave to reargue ” defendant’s motion to vacate the service of the summons, previously decided in defendant’s favor (see 22 A D 2d 1018). Order affirmed, with $10 costs and disbursements. In our opinion, the plaintiff’s motion, denominated as a \" motion for leave to reargue ” was, in fact, a motion for leave to renew, the denial of which is appealable (Drinkwater v. Grady, 285 App. Div. 1176). It is our further opinion, however, that the motion was properly denied on the ground that the alleged newly discovered evidence would not, in any event, have produced a different result. Brennan, Acting P. J., Hill, Babin, Hopkins and Benjamin, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"suffolk-nassau-amusement-co-v-wurlitzer-co"} {"case_name":"Rivera v. Alaimo","case_name_full":"Luis E. Rivera, Sr. v. Vincent Alaimo","case_name_short":"Rivera","citation_count":0,"citations":["54 A.D.3d 325","863 N.Y.S.2d 452"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2008-08-05","date_filed_is_approximate":false,"id":5901246,"opinions":[{"ocr":true,"opinion_id":5758462,"opinion_text":"\nIn an action, inter alia, to recover a deposit made in contemplation of a purported lease, the defendants appeal from (1) an order of the Supreme Court, Orange County (Owen, J.), dated March 14, 2007, which, among other things, granted that branch of the plaintiffs motion which was for summary judgment on the cause of action to recover a deposit made in contemplation of a purported lease, and (2) a judgment of the same court dated July 3, 2007, which, upon the order, is in favor of the plaintiff and against them in the principal sum of $12,000, and dismissed their answer and counterclaim.\nOrdered that the appeal from the order is dismissed; and it is further,\nOrdered that the judgment is affirmed; and it is further,\nOrdered that one bill of costs is awarded to the plaintiff.\nThe appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CFLR 5501 [a] [1]).\n*326A handwritten agreement signed by the plaintiff and the defendant Vincent Alaimo provided that certain payments and other material terms of a purported lease and contract to sell fixtures were dependent upon the preparation and execution of a “final lease agreement.” Moreover, the handwritten agreement did not state who the landlord and tenant were, and failed to describe the premises to be leased. Thus, the handwritten agreement constituted a mere agreement to agree, which is unenforceable (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109 [1981]; 410 BPR Corp. v Chmelecki Asset Mgt., Inc., 51 AD3d 715 [2008]; Breuer v Feder, 27 AD3d 509 [2006]; Frankel v Ford Leasing Dev. Co., 7 AD3d 757 [2004]; Venture Mfg. [Singapore] v Matco Group, 6 AD3d 850 [2004]; Lupoli v West Hills Neighborhood Assoc., 140 AD2d 312, 313 [1988]; cf. Harlow Apparel v Pik Intl., 106 AD2d 345 [1984]).\nIt is undisputed that no lease or contract was ever signed by the parties. Thus, the parties never reached an agreement for the lease of the subject premises or contracted for the sale of fixtures (see General Obligations Law § 5-703). Accordingly, the plaintiff, by tendering the unsigned documents and the handwritten agreement on his motion, established his entitlement to judgment as a matter of law on the cause of action to recover a deposit made in contemplation of a purported lease (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; 410 BPR Corp. v Chmelecki Asset Mgt. Inc., 51 AD3d 715 [2008]). Thus, the Supreme Court correctly granted summary judgment to the plaintiff on that cause of action.\nThe parties’ remaining contentions are without merit. Prudenti, P.J., Ritter, Florio and McCarthy, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"rivera-v-alaimo"} {"case_name":"Claim of Bogert v. September 23 Rally Committee","case_name_full":"In the Matter of the Claim of Arthur Bogert v. September 23 Rally Committee, Workers' Compensation Board","citation_count":0,"citations":["93 A.D.2d 927"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1983-04-21","date_filed_is_approximate":false,"id":5999875,"opinions":[{"ocr":true,"opinion_id":5861224,"opinion_text":"\n— Appeal from a decision of the Workers’ Compensation Board, filed May 20,1982, which held that an employer-employee relationship existed and awarded benefits. Decision affirmed, with costs to the Workers’ Compensation Board (Matter of Miller v Chautauqua County Agrie. Corp., 279 App Div 1126, mot for lv to app den 304 NY 988; cf. Matter of Glamrn v City of Amsterdam, Amsterdam Fire Dept., 54 AD2d 996, affd 42 NY2d 1026). Mahoney, P. J., Sweeney, Kane, Casey and Levine, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"claim-of-bogert-v-september-23-rally-committee"} {"case_name":"People v. Brown","case_name_full":"The People of the State of New York v. Leroy Brown","case_name_short":"Brown","citation_count":0,"citations":["199 A.D.2d 962","608 N.Y.S.2d 927"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1993-12-29","date_filed_is_approximate":false,"id":6104867,"opinions":[{"ocr":true,"opinion_id":5969545,"opinion_text":"\nJudgment unanimously affirmed. Memorandum: We reject the contention of defendant that reversal is required because the suppression court denied his request for a copy of a confidential informant’s deposition during his probable cause hearing. The evidence adduced, apart from any information from the confidential informant, established that probable cause existed to arrest defendant (see, People v Liberatore, 79 NY2d 208, 215-216; People v White, 16 NY2d 270, cert denied 386 US 1008; People v Johnson, 129 AD2d 815). (Appeal from Judgment of Monroe County Court, Marks, J.—Robbery, 1st Degree.) Present—Denman, P. J., Callahan, Lawton and Davis, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-brown"} {"case_name":"Kirkaldy v. Hertz Corporation","case_name_full":"Wilfred Kirkaldy v. Hertz Corporation, Appellants-Respondents, Marjon, Inc., , (Action No. 1.) Lawrence Pollard v. Hertz Corporation, Appellants-Respondents, and Marjon, Inc., (Action No. 2.)","case_name_short":"Kirkaldy","citation_count":0,"citations":["221 A.D.2d 599","634 N.Y.S.2d 177"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1995-11-27","date_filed_is_approximate":false,"id":6130308,"opinions":[{"ocr":true,"opinion_id":5995509,"opinion_text":"\n—In two related actions to recover damages for personal injuries, (1) the defendant Hertz Corpora*600tion appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (I. Aronin, J.), entered May 24, 1994, as (a) denied the branches of its motion which were to dismiss the respective complaints insofar as asserted against it for failure to state a cause of action or to dismiss the complaints on the ground that New York is an inconvenient forum, and (b) granted the plaintiffs’ motion to amend their complaints to add a cause of action against Hertz Corporation for fraud, (2) the defendant Ford Motor Company appeals from so much of the same order as denied its separate motion to dismiss the complaints on the ground that New York is an inconvenient forum, and (3) the plaintiffs separately cross-appeal from so much of the same order as granted the branch of the motion of the defendant Marjon, Inc., which was to dismiss the complaints insofar as asserted against it for lack of personal jurisdiction, and denied their separate cross motions for additional discovery on the issue of personal jurisdiction.\nOrdered that the cross appeal of the plaintiff in Action No. 2, Lawrence Pollard, is dismissed, without costs or disbursements, for failure to perfect the cross appeal in accordance with the rules of this Court (see, 22 NYCRR 670.8 [c], [e]); and it is further,\nOrdered that the order is affirmed insofar as reviewed, without costs or disbursements.\nThis action was commenced to recover damages for personal injuries sustained by Wilfred Kirkaldy, the plaintiff in Action No. 1, as a result of a one-car accident during which the Mercury Tracer, manufactured by the Ford Motor Company and rented from the defendant Marjon, Inc., a licensee of the Hertz Corporation, and driven by Lawrence Pollard, the defendant in Action No. 1 and the plaintiff in Action No. 2, swerved off the road, hitting a stone embankment and causing serious physical injury to Wilfred Kirkaldy.\nContrary to the plaintiff’s assertions, the complaints are properly dismissed insofar as asserted against Marjon, Inc., there being no basis for in personam jurisdiction over that entity, as it does no business in New York, having its corporate headquarters in Maryland and rental offices in Maryland and West Virginia (see, Milliken v Holst, 205 AD2d 508; Success Mktg. Elees, v Titan Sec., 204 AD2d 711). As such, the Supreme Court’s refusal to grant additional discovery with regard to jurisdiction was proper.\nAdditionally, the motion of Hertz Corporation for summary judgment to dismiss the complaints for failure to state a cause of action, was properly denied. There is a triable issue of fact *601as to whether the Hertz Corporation, by allowing Mar j on to use its name, logo, and advertise itself as a Hertz establishment clothed the car rental agency with apparent authority (see, Fogel v Hertz Inti., 141 AD2d 375; Baldassarre v Morwil Supermarket, 203 AD2d 221).\nMoreover, upon our review of the relevant factors in this case, we find that the Supreme Court did not improvidently exercise its discretion in denying the motions of the defendants’ Hertz Corporation and Ford Motor Company to dismiss the complaints on the ground of forum non conveniens (see, CPLR 327; Barocas v Gorenstein, 189 AD2d 847; Premier Prods, v Marjam Supply Co., 209 AD2d 498; see also generally, Islamic Rep. of Iran v Pahlavi, 62 NY2d 474, 478-479, cert denied 469 US 1108; cf, Sarfaty v Rainbow Helicopters, 221 AD2d 618 [decided herewith]).\nFinally, we find that the amended complaints sets forth with sufficient specificity all of the elements of a cause of action to recover damages for fraud, pursuant to CPLR 3016 (a), and that no claim of surprise or prejudice properly stems therefrom. Accordingly, leave to amend the complaints was properly granted pursuant to CPLR 3025 (b). Balletta, J. P., Ritter, Copertino and Friedmann, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"kirkaldy-v-hertz-corporation"} {"case_name":"Bellocchio v. 783 Beck Street Housing Development Fund Corp.","case_name_full":"Angelo Bellocchio v. 783 Beck Street Housing Development Fund Corporation","case_name_short":"Bellocchio","citation_count":0,"citations":["305 A.D.2d 253","760 N.Y.S.2d 144"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2003-05-20","date_filed_is_approximate":false,"id":6228819,"opinions":[{"ocr":true,"opinion_id":6095575,"opinion_text":"\nOrder, Supreme Court, Bronx County (Gerald Esposito, J.), entered September 27, 2001, which, to the extent appealed from as limited by the brief, granted defendants-respondents’ motion and cross motion for summary judgment dismissing the complaint as against them, affirmed, without costs.\nPlaintiff allegedly was injured while fending off an attack by two dogs in the basement of a building owned by defendant 783 Beck Street and managed by defendant Banana Kelly Management. The owner of the dogs, defendant Angel Nieves, was the building superintendent. Insofar as the complaint sought imposition of absolute liability on these defendants for the dogs’ behavior, it was properly dismissed since plaintiff, in response to defendants’ prima facie showing that they neither had nor should have had prior notice that the dogs possessed vicious propensities, failed to come forward with evidence sufficient to raise a triable issue (see Carter v Metro N. Assoc., 255 AD2d 251 [1998]). Also properly dismissed was plaintiff’s claim sounding in negligence, since the circumstances of record do not warrant imposition of the “distinct, enhanced duty” necessary to sustain recovery on such a theory for harm attributable to animal behavior (cf. Schwartz v Armand Erpf Estate, 255 AD2d 35, 38 [1999], lv dismissed 94 NY2d 796 [1999]). Concur — Sullivan, Williams and Gonzalez, JJ.\nTom, J.P., and Mazzarelli, J., dissent in a memorandum by Tom, J.P., as follows: Although I agree that there is an insufficient basis to impose strict liability arising from the dogs’ alleged vicious propensities, nevertheless a prima facie case of negligence is established and the evidence creates factual questions regarding whether the conduct of defendants and their employee was negligent with respect to the dogs and whether such conduct was a proximate cause of plaintiff’s injuries. Hence, although I concur in the dismissal of the third cause of action, sounding in strict liability, I would modify to the extent of reinstating the negligence claim in the first cause of action and the regulatory claim in the second cause of action. This latter claim arises out of a regulation that requires an owner to maintain premises in a safe condition under the Multiple Dwelling Law.\nPlaintiff is a telephone service technician. Defendants-respondents include the owners and operators of the apartment building at 783 Beck Street, and defendant-respondent Nieves was the superintendent of the building and owner of the dogs.\nOn September 13, 1999, plaintiff and his assistant, Rafael *255Roman, worked for Bell Atlantic. At about 11:00 a.m. on that date, they responded to a building resident who requested the installation of telephone service. Plaintiff at this time had been a service technician for about 10 years. As a service technician, he installs and repairs telephone lines. As part of that job, he routinely enters people’s homes, climbs poles and, as is presently relevant, enters basements to make the necessary connections. Plaintiff had never been in this building before. After responding to the customer, plaintiff and his assistant went to the basement to locate the telephone wires and make the appropriate installation so that the customer would receive a dial tone. They entered the basement by elevator. No key was required to operate the elevator. Upon exiting the elevator at the basement level, they went to look for the feeder box which, plaintiff explained in deposition testimony, is usually found by following telephone Unes. However, he could not locate the telephone lines, and they turned left down a hallway toward a door. However, he never made the door, and only proceeded about five feet when they heard dogs around a corner to the right of the elevator. Plaintiff estimated the distance as about 10 feet away. At this point, the dogs would have been behind them, insofar as they had turned left upon exiting the elevator. Plaintiff testified that he had not known there were dogs on the premises and, if he had known, he would not have entered the basement. As soon as they heard the dogs, they ran for the elevator. Although the elevator was still stationed in the basement, the door to this old elevator, which had to be manually opened by swinging the door into the hallway, was closed. Plaintiff’s assistant managed to get back into the elevator. However, before plaintiff could get inside the elevator, the dogs were right on plaintiff. He described them as large pit bulls, one weighing about 60 or 70 pounds and the other weighing about 40 or 50 pounds. There did not appear to be anyone else in the basement at this time. Plaintiff managed to kick a nearby bucket at the dogs and to grab a mop with which he tried to fend them off. At this point, the dogs were in front of the elevator’s entrance, which prevented plaintiff’s escape. One dog snapped the mop handle, taking the mop head right off the stick, and the other dog lunged at him and seized his pant leg. At this point, plaintiff thought that they were trying to “maul [him] to death,” and that it was “an all out fight for my life with these two dogs.” With the remnant of the mop handle, he hit the dogs several times until the stick broke, but they knocked him down, and kept knocking him down each time he tried to get up. Although they grabbed hold of his clothing, tearing his shirt, pants and tool belt, he managed to keep *256them from biting his flesh. As he fell, he knocked over a refrigerator and garbage cans. As plaintiff was being backed against the door at the end of the hallway, his assistant was trying to distract the dogs by throwing tools at them. After falling several times, and trying his best to keep the dogs from getting around him, plaintiff managed to push them back far enough so that he could jump into the elevator, where he collapsed. The assistant called police and an ambulance by cell phone.\nLater, plaintiff went back to the building to take pictures. The superintendent was not available. The building porter escorted plaintiff back to the basement, though the porter first ensured that the dogs were locked up. The porter indicated that Con Edison’s union representatives had been there recently, to ensure building safety for union members, as a consequence of plaintiff having been attacked by the dogs.\nVictor Rivera, a property manager for defendant Banana Kelly, who had been responsible for supervising the superintendent, also testified. Rivera remembered that he had received complaints about superintendent Nieves’ dogs’ noise and feces in the back alley leading to the basement and told Nieves, a few days before this incident, that the dogs had to be removed. Rivera had been in that location once, and could hear the dogs barking behind a door. Nieves eventually was fired because of the dogs.\nNieves testified that he personally trained these American bulldogs using information from books. He testified that they were not pit bulls, insofar as pit bulls are trained to fight and are “meaner” than bulldogs. He was unaware of the history of one, and got the other as a puppy. Nieves claimed that the basement could not be accessed by elevator unless the key to the elevator was obtained from him, and that no one was allowed into the basement unless accompanied by him. However, he also testified that he occasionally left the key switch in an on position to allow the building’s contractors easy access to the basement. Before the date of the incident, he had never been asked to assist telephone service personnel to gain access to the basement. Typically, if utility personnel or contractors are in the building, he is told by the manager’s office. His own office, which is to the right of the elevator as one exits into the basement, also has a door going to the courtyard outside of the building, and he can be notified by ringing the bell on this outside door. However, during the day he may be in various locations throughout the building. Tenants usually contact him by knocking on his 6th floor apartment door. Nieves described *257the basement as large, consisting of about 12 rooms. The boiler room, other machinery and company supplies were kept there. However, there was no laundry room, and no reason why tenants would want to access the basement, so that he did not consider it to be a public access location. He kept the dogs in a complex of rooms to the left of the elevator (contrary to plaintiffs testimony that their unfettered attack came from the right). The service box for telephone lines was positioned right in front of the elevator as one exited there on the basement level. The main passage from the lobby entrance of the building to the elevator did not have any signs warning of dogs. However, as the elevator door opened on the basement level, the outer door had a sign, indicating the presence of dogs. There was also a sign indicating dogs on the outside of the basement door leading outside to the courtyard. Around the time of the incident, painters were working in the area and would have taken down signs for that purpose, but Nieves did not recall that such was the case on the day of the incident. No one ever told him that he was not allowed to keep pets in the building, and he had received permission to do so from a prior supervisor, Frederico Nunez, when Nieves was hired. He initially kept them in his apartment, but brought them to the basement as a deterrent to theft; thieves often broke into the back door during the tenure of the prior superintendent, and Nunez even remarked favorably on the dogs’ presence in this regard. Since he had had the dogs in the basement, there were no attempted break-ins or other thefts. Nunez had been fired by the time of this incident. The replacement supervisor, Bill Rodriguez, knew that Nieves had dogs. Nieves described the dogs as playful; they played with children, had never bitten anyone before the present incident, and never growled, though they occasionally barked. On the morning of the incident, Nieves had let the dogs out from their padlocked room into their larger inner room at about 8:00 a.m., as was usual, and put them back into the padlocked room when he finished work at about 4:00 p.m. He regularly saw the dogs during the daytime, insofar as his office was nearby. This incident was on a Friday; no one had told him about it until Monday.\nEven if proof of vicious propensities, for purposes of strict liability in tort, is not sufficiently established to survive summary judgment, that does not thereby preclude a negligence theory. Negligence arising from incidents with animals presents a different analytical framework and requires a different quantum of proof. Rather, if a dog bite and damages inflicted are reasonably foreseeable consequences of the conduct forming the gravamen of the complaint, the plaintiff retains a basis *258to sue in negligence (Colarusso v Dunne, 286 AD2d 37, 39 [2001]). Although the bite itself cannot prove negligence, cumulative factors may suffice. The principle has been long established (cf. Hyland v Cobb, 252 NY 325 [1929] [negligence relying on violation of ordinance regarding care of dogs in public places inapplicable in private park]). For negligence, there may not even be any record proof that the dog was vicious (Colarusso, supra). Rather, the plaintiff is required to show a duty of care owed to him by the defendants and a breach of that duty by failing to take reasonable measures to prevent injury arising from particular conduct, whether that breach proximately caused the injuries and whether the injuries are a reasonably foreseeable consequence thereof. Thus, the focus is on whether the plaintiffs action and the dogs’ response were sufficiently foreseeable to put the defendants on notice that such an encounter might, be anticipated (Colarusso at 40).\nThe evidence established thus far creates unresolved factual issues underpinning the negligence claim. The negligence theory is predicated on the superintendent’s conduct, and the manager’s and owner’s alleged acquiescence in or approval of such conduct, whereby Nieves kept these particular bulldogs on residential premises, as well as the manner in which they were maintained and restrained so as not to attack business invitees. Arguably, if there were no signs or other warnings, a jury might find the existence of a latent danger on the premises. Nieves’ testimony sharply conflicts with plaintiff’s evidence regarding the accessibility of the basement, the location of the dogs and their segregation behind a closed door, and the existence and location of warning signs. The evidence is also inconsistent regarding the dogs’ propensities. Even if not rising to viciousness as a matter of law for purposes of this motion, they nevertheless possess different personalities depending on whether plaintiff’s or Nieves’ testimony is credited. Nieves’ averment of the docile nature of these dogs is belied by the animals’ immediate and ferocious attack on plaintiff and the fact that they were used as guard dogs. One may surmise that bulldogs maintained as guard dogs are not going to act playfully when a stranger enters their domain. These dogs were placed there to guard against intruders. If Nieves had knowledge of the unfriendly nature of these animals, then adequate steps should have been taken to keep them away from the general public. This, though, is the very sort of factual issue to be evaluated at trial along with conclusions to be derived therefrom (cf. e.g. Panzer v Harding, 118 AD2d 842 [1986] [undisputed trial testimony demonstrated dog was consistently gentle]). Nieves’ testimony regarding his daily routine also *259seems inconsistent with plaintiffs evidence regarding that day’s sequence of events. Nor does it explain why he never found out about a noon time attack until the following Monday, if he maintained regular control over the dogs.\nNieves’ testimony also conflicts with that of the building management company regarding whether he was allowed to keep dogs in the basement, and, if so, for what purpose. There also are unresolved issues regarding the procedures, if any, to be taken by business invitees when they enter the premises and before they enter the basement. Although Nieves testified that he did not consider the basement to be a common area, his own impression is by no means dispositive and the ease with which the service technicians entered the basement — the location where they could expect to locate the necessary telephone wires — seems to belie Nieves’ impression. It appears that the basement level was accessible to anyone, at the time of this incident, by mere use of the elevator. In any event, these are matters that require resolution at trial. If plaintiffs evidence were taken as true, then the question arises why guard dogs were allowed to roam this common area where, by Nieves’ own testimony, contractors regularly entered, and why the dogs were apparently unrestrained and unsupervised (at least on the occasion of the incident). Hence, I conclude that a prima facie case of negligence is established, and that plaintiff is entitled to a trial.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"bellocchio-v-783-beck-street-housing-development-fund-corp"} {"case_name":"Commonwealth v. Holmes","case_name_full":"COMMONWEALTH of Pennsylvania v. Randi HOLMES","case_name_short":"Commonwealth","citation_count":0,"citations":["199 A.3d 880"],"court_full_name":"Supreme Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Supreme Court of Pennsylvania","court_type":"S","date_filed":"2018-12-28","date_filed_is_approximate":false,"id":6486779,"opinions":[{"ocr":true,"opinion_id":6358969,"opinion_text":"\nPER CURIAM.\nAND NOW, this 28th day of December, 2018, the Petition for Allowance of Appeal is DENIED.\nJustice Wecht did not participate in the consideration or decision of this matter.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"commonwealth-v-holmes"} {"attorneys":"J. F. Pickering J. W. Pickering, for the petitioner., J. O. Teele, for the receiver.","case_name":"In re Whittemore","case_name_full":"In re Timothy C. Whittemore","case_name_short":"In re Whittemore","citation_count":0,"citations":["157 Mass. 46"],"court_full_name":"Massachusetts Supreme Judicial Court","court_jurisdiction":"Massachusetts, MA","court_short_name":"Massachusetts Supreme Judicial Court","court_type":"S","date_filed":"1892-06-24","date_filed_is_approximate":false,"headnotes":"Equity—Volunteer — Statute of Limitations — Laches.
A petition in equity, for an allowance out of funds in the hands of the receiver of a corporation, as compensation for services alleged to have been rendered to former receivers of the corporation from July, 1870, to some point of time prior to January, 1877, was referred to a master, who found that the petitioner rendered services which were availed of by at least one of the counsel for the receivers, and were useful to the receivers in certain litigation then pending, and which contributed more or less to the recovery of a decree which the receivers obtained; that these services were not rendered in pursuance of any contract, express or implied, but the petitioner had an expectation that, if the receivers succeeded in their litigation, a reasonable allowance would be made to him; and that, when the receivers needed his services, they made a contract with him, both before and after the time embraced in the petition. It also appeared that the petitioner presented a bill to the receivers for his present claim in 1877; and that his petition was not filed until nearly ten years afterwards. Held, that, upon the facts found by the master, the petitioner was a mere volunteer during the period covered by his claim, and could not maintain his petition. Held, also, that, aside from the question of the statute of limitations, the petitioner had been guilty of such loches as to preclude him from any relief in equity.
","id":6550545,"judges":"Lathrop","opinions":[{"author_str":"Lathrop","ocr":true,"opinion_id":6424280,"opinion_text":"\nLathrop, J.\nOn the facts found by the master in this case, we fail to see any ground on which the petitioner is entitled to prevail. He seeks to have the court order the receiver to pay, out of the funds in his hands belonging to the trust estate, compensation for services alleged to have been rendered to the former receivers from July 28, 1870, to some point of time prior to January 1,1877. Although the master finds that the petitioner *47rendered services which were availed of by at least one of the counsel for the receivers, and were' useful to the receivers in certain litigation then pending, and which contributed more or less to the recovery of a decree which the receivers obtained, yet the master also finds that these services were not rendered in pursuance of any contract, express or implied. The fact that the petitioner had an expectation that, if the receivers succeeded in their litigation, a reasonable allowance would be made him, is not enough. So far as appears, the petitioner was a mere volunteer during this period. When the receivers needed his services they made a contract with him, as they did before and after the time embraced in his present claim.\nThere is also another ground on which we find it necessary to dismiss the petition. The petitioner presented a bill to the receivers for his present claim in December, 1877. His original petition was not filed until September 21,1887, nearly ten years afterwards. Aside from the question of the statute of limitations, we are of opinion that the petitioner has been guilty of such loches that this court ought not to afford him any relief.\nThese considerations render it unnecessary to determine whether, if the receivers had employed the petitioner and had refused to pay him for his work, he could have sought relief in the manner he seeks it in this case, or whether he should not have applied to the court for leave to bring an action at law against the receivers. Petition dismissed.\n","per_curiam":false,"type":"020lead"}],"other_dates":"March 1, 1892.","precedential_status":"Published","slug":"in-re-whittemore","summary":"Petition, as amended, filed on March 81, 1888, by Timothy C. Whittemore, for an allowance out of funds in the hands of the receiver of the defendant corporation, as compensation for services alleged to have been rendered to the former receivers of said corporation. The case was heard by Knowlton, J., who at the request of the parties reserved it for the consideration of the full court. The material facts appear in the opinion."} {"case_name":"Randall v. Rational Software Corp.","case_name_full":"Tom RANDALL Mark Archibald Mohanad Atassi Craig Bailey Charles Benedict Glen Billman Shawn Chako Wuihan Cheah Ching-Cheng Chen Jennifer Cheney Jeff Childers Carey Cooley Philip Dinets Charles Elking Doug Farmen Justin Fernandez Laura Figahs Barry Fitzgerald Rio Garcia Janel Garvin Sukhu George T. Giridharan Robert Godau John Gray Peter Grenyo David Hamilton Nolen Harter Larry Hatch Simon He Ray Hendrickson Nalin Jain Dylan Jones Darryl Larson Bin Liu James Loe Robert Long Don Lozir John Lundy Joel McCarter Keith Medici Chris Mellon Alison Mizraji Leon Modorsky Ruby Mosher Ahmad Naghsh-Nilchi Andy Nguyen Steve Paolucci Todd Parks Greg Pauletti Dennis Payne Helen Pugmire Jerry Robinson Patrick Roling Avery Rose Steve Ruzzier Afshin Sadeghi Anthony Sanborn Brent Smith Allen Sproul Clem Stein St. Pierre Mark Szen Ronald Taylor Fikaejs Trading Luan Tran Jim Wallace Christopher Wendell Slade Winchester Svetlana Yarmitsky Ronald Yong Shenhong Zhu, Plaintiffs—Appellants v. RATIONAL SOFTWARE CORPORATION and Paul D. Levy Cowen & Company Inc Paul D. Levy Robert T. Bond Wessels, national securities brokerage firm Cowen, national securities brokerage firm Dain Rauscher Wessels, Defendants—Appellees","case_name_short":"Randall","citation_count":0,"citations":["34 F. App'x 301"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","date_filed":"2002-03-13","date_filed_is_approximate":false,"id":7257844,"opinions":[{"ocr":true,"opinion_id":7171849,"opinion_text":"\nMEMORANDUM *\nTom Randall and other investors who purchased stock in Rational Software Corporation (Rational) appeal the district court’s dismissal with prejudice of their insider trading class action brought under §§ 10(b) and 20A of the Securities Exchange Act of 1934, 15 U.S.C. § 78j, et. seq. We have jurisdiction under 28 U.S.C. § 1291, and, after de novo review, we affirm.\nThe district court did not err in dismissing Randall’s second amended complaint for failure to plead facts sufficient to meet the two-part test for tippee liability set forth in Dirks v. SEC, 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983). Randall’s complaint alleged that Paul Levy, Rational’s CEO, “tipped” material negative nonpublic information to Dain Rauscher Wessels (Wessels), a professional market analyst. Wessels then passed this information to its clients, who sold Rational stock.\nRandall’s complaint did not allege facts which showed any special relationship between Levy and Wessels. The complaint also did not allege facts showing that Levy received a personal benefit from tipping Wessels or that Wessels knew or should have known that Levy’s disclosure was in breach of his fiduciary duty. Thus, the district court properly dismissed Randall’s second amended complaint with prejudice.\nAFFIRMED\n\n This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued and Submitted March 13, 2002.","precedential_status":"Published","slug":"randall-v-rational-software-corp"} {"case_name":"Bandel v. Friedrich","case_name_full":"WILLIAM F. BANDEL, JR., ETC., AND CHRISTINE A. BANDEL, ETC. v. CHARLES FRIEDRICH, M.D.","case_name_short":"Bandel","citation_count":0,"citations":["118 N.J. 196","570 A.2d 960"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1989-10-17","date_filed_is_approximate":false,"id":7395608,"opinions":[{"ocr":true,"opinion_id":7314589,"opinion_text":"\nPetition for certification granted. (See 235 N.J.Super. 384, 562 A.2d 813)\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"bandel-v-friedrich"} {"case_name":"Richmond v. Wainwright","case_name_full":"RICHMOND v. WAINWRIGHT","case_name_short":"Wainwright","citation_count":0,"citations":["174 So. 2d 36"],"court_full_name":"Supreme Court of Florida","court_jurisdiction":"Florida, FL","court_short_name":"Supreme Court of Florida","court_type":"S","date_filed":"1965-03-15","date_filed_is_approximate":true,"id":7491788,"opinions":[{"ocr":true,"opinion_id":7414196,"opinion_text":"\nHabeas corpus denied without opinion.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"richmond-v-wainwright"} {"attorneys":"Michael S. Evers, Dothan, for appellant., Joel M. Nomberg of Nomberg & McCabe, Dothan, for appellee.","case_name":"Adams v. Adams","case_name_full":"William Franklin ADAMS v. Juanita G. ADAMS","case_name_short":"Adams","citation_count":0,"citations":["460 So. 2d 1357"],"court_full_name":"Court of Civil Appeals of Alabama","court_jurisdiction":"Alabama, AL","court_short_name":"Court of Civil Appeals of Alabama","court_type":"SA","date_filed":"1984-12-05","date_filed_is_approximate":false,"id":7607851,"judges":"Parker","opinions":[{"author_str":"Parker","ocr":true,"opinion_id":7538316,"opinion_text":"\nROBERT M. PARKER, Retired Circuit Judge.\nThis is an appeal from the denial of a motion to modify alimony payments.\nAfter twenty-seven years of marriage, these parties were divorced on July 1,1980, with written agreement as to alimony and other matters, which was incorporated in the divorce judgment. Appellant filed a motion to modify the alimony provisions of the judgment, and appellee filed a counter-motion to increase her benefits to include military privileges and a rule nisi for ar-rearage. The trial court denied both motions and awarded a judgment to appellee in the amount of $700 for arrearage, plus an attorney's fee.\nAppellant’s sole issue on appeal is whether the trial court abused its discretion in refusing to reduce the amount of alimony. Appellant alleges as change of circumstances that he has remarried, he is unemployed, he has had heart surgery, and that his future employment, if any, is limited to light duty or work, and that he owes some $7,000 in medical bills.\nThe appellant had worked as a convenience store clerk at times prior to the divorce and at intervals after the divorce until his heart surgery. At the time the divorce was granted, appellant’s sole income was his military retirement pay, and at the time of the hearing on his motion, his sole income was his military retirement pay, which had increased over $100 per month since 1980. The appellee has varicose veins and works part time as a sitter for children or the elderly, making $75-$100 per month.\nThe burden of proving a change in the financial circumstances of a party as a basis for modifying an alimony award is on the party seeking such change. Meyer v. Meyer, 375 So.2d 799 (Ala.Civ.App.1979). “Where a decree of divorce has adopted an agreement with respect to alimony and maintenance, the court will not modify such agreed decree except on proof of changed conditions which justify the modification and only to the extent of such *1359changed conditions.” Block v. Block, 281 Ala. 214, 216, 201 So.2d 51, 53 (1967).\nOur well-established rule on appeal is that the trial court’s judgment will be presumed correct where it hears the evidence ore terms. Roberts v. Roberts, 395 So.2d 1035 (Ala.Civ.App.1981). The modification of a prior judgment for alimony, based upon changed circumstances of the parties, is a matter largely within the sound discretion of the trial court, and the exercise of that discretion will be disturbed on appeal only if, after reviewing the evidence, this court finds such an abuse thereof as to make the judgment plainly and palpably wrong. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979). We have carefully reviewed the evidence reported in the record, and although there was evidence that appellant’s ability to pay has been hindered by his remarriage and medical bills incurred, he has had an increase in his ine.ome. We find no palpable abuse of discretion in the trial court’s refusal to modify the alimony provision.\nAppellee is awarded $250 as attorney’s fee on this appeal.\nThe foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.\nAFFIRMED.\nAll the Judges concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"adams-v-adams"} {"attorneys":"Raymond A. Doumar of Allsworth, Dou-mar, Cazel & Curtis, Fort Lauderdale, for appellant., Louisa E. Hargrett, Staff Atty., Dept, of Business Regulation, Tallahassee, for ap-pellee.","case_name":"Village Zoo, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco","case_name_full":"VILLAGE ZOO, INC. v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO","citation_count":0,"citations":["462 So. 2d 839"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1985-01-09","date_filed_is_approximate":false,"id":7608477,"judges":"Anstead, Dell, Letts","opinions":[{"ocr":true,"opinion_id":7538998,"opinion_text":"\nPER CURIAM.\nAffirmed. Although we agree with appellant that the penalty imposed upon it by the appellee seems severe, we are nevertheless compelled to affirm because of the legislature’s broad grant of discretionary authority to the agency as to the appropriate penalty to be imposed. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978) and Lash v. State of Florida, Dept. of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982). We reject appellant’s contention that the agency added any findings of fact inconsistent with the hearing officer’s findings.\nANSTEAD, C.J., and LETTS and DELL, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Rehearing Denied Feb. 22, 1985.","precedential_status":"Published","slug":"village-zoo-inc-v-department-of-business-regulation-division-of"} {"attorneys":"Quarles, for the complainants., Cullom, for the defendants.","case_name":"Hinklin v. Hamilton","case_name_full":"Hinklin v. Hamilton and Hinklins v. Hinklin","case_name_short":"Hinklin","citation_count":0,"citations":["22 Tenn. 569"],"court_full_name":"Tennessee Supreme Court","court_jurisdiction":"Tennessee, TN","court_short_name":"Tennessee Supreme Court","court_type":"S","date_filed":"1842-12-15","date_filed_is_approximate":true,"headnotes":"1. It is well settled, that the State, as abody politic, has the right to regulate the manner in which manumission shall be made, the extent of rights to be acquired under it, or to prohibit it altogether.
% To secure the manumission of a slave under the laws of Tennessee, two things are necessary, the consent of the owner expressed, and the assent of the State given in the manner prescribed by law.
S. If the executor of a will giving the consent of the testator to the emancipation of slaves, fail or refuse to apply to the county court to obtain the consent of the State, a court of chancery will, upon well settled principles, compel the executor to execute the trust, and in case of his death, will appoint another to act in his stead.
4. The assent of the executor to the emaucipation is not necessary, (he being a naked trustee without interest,) unless, perhaps, in case of a deficiency of assets: and, therefore, where the testator gave his assent to the emancipation by will, and the executor failing to apply to the county court, the slaves, by their next friend, applied to the county court, and upon their petition, the said court ordered them to be j emancipated; it was determined by. the court, that the order was valid, and that a court of chancery should declare their right to freedom, and award an injunction against all interference with them by the executor, by suit or otherwise.
","id":7723183,"judges":"Tttrley","opinions":[{"author_str":"Tttrley","ocr":true,"opinion_id":7658861,"opinion_text":"\nTttRLeY, J.\ndelivered the opinion of the court.\nThe questions presented for consideration in this case arise upon the following statement of facts. On the 13th day of October, 1821, Hugh Hinklin executed his last will and testament, by which he devised to negro man Will and negro woman Suky, his wife, their freedom at his death, and bequeathed them the use of a part of the land on which he resided, during their lives. This will was duly proven at the February term, 1822, of the county court of Jackson, and letters testamentary regularly granted to the executors, Thomas Hinklin and Avery Hinklin. No steps were taken by the executors under the will to procure an order of emancipation from the county court. Avery Hinklin, one of the executors, left the State shortly after the death of testator, and was absent for many years, leav*570ing Thomas Hinldin, the other' executor, to superintend the execution of the will, which he did; bringing the same to a final settlement in all things connected therewith, saving the emancipation of said negroes, and died several years since.\nThe negroes were regarded and treated by every body as free, from the date of the probate of the will. They continued to live upon the land bequeathed to them, till some time in the month of May, 1840, when Suky, having become nearly blind and unable to support herself, came to the residence of Adam C. Hamilton, the defendant to the original bill, where she remained till some time in October, 1840, when she died. After the death of Hugh Hinklin, the testator, said negro woman, Suky, had two children, Almira and Turner, the complainants in the cross-bill. At the April term, 1840, the negro woman, Suky, and her two children, Almira and Turner, by their next friend the said Adam G_ Hamilton, filed their petition in the county court of Jackson, setting forth, the foregoing facts, and asking to be emancipated according to law, which was ordered, upon the bond of James Nevins and Zaddock Mayfield executed as required by statute. The children, Almira and Turner, are in the possession of defendant Hamilton, they having been bound as apprentices to him by the county court of Jackson.\nOn the 9th day of September, 1840, the complainant, Avery M. Hinldin, filed his bill of complaint, asking that said negroes be delivered up to him as slaves, to be distributed to those who may be entitled to them; and that Hamilton account for their hire during the time-they have been in his possession. The cross-bill is filed to resist this application, and have a declaration of the freedom of the complainants therein under the order of the county court of Jackson, made as aforesaid, at the April term, 1840, and that the complainant in the original bill be enjoined from prosecuting any action of detinue at law for the recovery of their persons, which has been, or is threatened to be commenced.\nIn the consideration of the questions arising in this case, it is not deemed necessary to enter into a minute investigation of the relation of master and slave, the power of emancipation, the mode *571of exercising it-, oí the fights acquired under it; they have been often the subject of much consideration by our courts, and have been perhaps sufficiently adjudicated upon. It will suffice for the present to observe, that it is well settled, and upon correct principles, that the State, as a body politic, has a deep interest in the subject, and possesses the undeniable right to regulate the manner in which manumission shall be made, the extent of rights to be acquired under it, orto prohibit it altogether. The question then for direct determination in the present case, is whether the complainants in the cross-bill, stand in such an attitude as to enable this court to decree their freedom, and protect them in the enjoyment of it, under the municipal regulations of the State upon the subject of emancipation. It is contended for the original complainant, that they do not;. that they are yet slaves; that the-order of the county court of Jackson emancipating them is void, for want of power to make it, and that this court has no jurisdiction to decree their freedom under the will.\nTo secure the emancipation of. a slave under our law, two things are absolutely necessary; the consent of the owner expressed, and the assent of the State, given in the manner pre^ scribed by law. Several statutes have been enacted on this subject, none of which it is deemed necessary to examine, except those of 1829, ch. 29, and of 1831, ch. 101, which it is believed are alone applicable to the case under consideration.\nThe act of 1829, provides, “That where any person by his last will and testament, shall have directed any slave or slaves to be set free, it shall be the duty of the executor or administrator, with the will annexed, to petition the county court accord-Iingly; and if the executor or administrator shall fail or refuse to do so, it shall be lawful for such slave or slaves to file a bill in equity by their next friend; and upon its being made satisfactorily to appear to the court, that said slave or slaves ought of right to be set fi-ee, it shall be so ordered by the court, upon bond,” &c.\nThe act of 1831, provides, that the act of 1829 “shall in no case be so construed, so as to extend to -any case where any person may by their -last will and testament have directed any *572slave or slaves to be set free before the passage of the before recited act, which this is intended to amend, but in all such cases, where any suit shall have been instituted in the district chancery court under the provisions of the act which this is intendedto amend, it shall be the duty of the chancellor at the first term of said court after the passage of this act, to have the same stricken from the docket;” and it is made the duty of the clerk to transmit the same to the county court for trial.\nIt is thus seen, that the act of 1829, makes it the duty of an executor or administrator, with the will annexed, in all cases of emancipation under the will, to apply to the county court for the assent of the State to the emancipation, and if he neglect to do so, the slave or slaves may by their next friend file a bill in the chancery court for that jrarpose, which may be decreed by the court. The act of 1831, limits this exercise of power by the chancery courts to cases of wills made after the passage of the act of 1829.\nThen as the law now stands, in all cases of emancipation by will executed since the passage of the act of 1829, if the executor or administrator fail or refuse to apply in behalf of the slave to the county court, for the assent of the State to the manumission, a bill may be filed in the chancery court for that purpose, but in all cases of such devise, by will made and executed before the passage of the act, the power of the chancery court to act, by decreeing the freedom, is taken away; but it is still the duty of'the executor or administrator, under the express provisions of the act of 1829, to apply to the county court for that purpose; and if he refuse without good and legal reason therefor, he is guilty of a gross abuse of a high trust.\nThe will in the case now under investigation having been made before the passage of the act of 1829, viz, in 1821, the court has no power to act by a direct decree of freedom. The executor refuses to comply with the directions of the act; and is not only seeking to abuse his trust himself, hut has the impudence to ask this court to aid him therein; and it has been seriously argued, that it is our duty to do so.\nThe simple statement of the case is sufficient to show, that the complainant in the original bill has no right in a court of *573chancery, and that he would be repelled therefrom without hesitation. But there is a question of more importance, involving the claims of the complainants in this cross-bill, which is worthy of great consideration; and that is, whether they are hot in such a position as to ask this court, not to decree their freedom under the act of 1829, but to declare it as having been already decreed by the county court of Jackson, at their April term, 1840. We have seen that the act of 1829, has made it the express duty of the executor to apply to the county court of Jackson, for their emancipation. This has not been done; but the county court of Jackson, upon their application by their next friend, has given the assent of the State, and in due form declared them free. If the executor refuse or neglect to execute the trust reposed in him by the will, is the slave remediless, and shall he lose his freedom and remain in bondage? Surely not. The trust is a naked one, unaccompanied by any interest; the devise of freedom and the assent of the State consummate the right. The executor is the mere instrument through which the assent of the State is to be obtained, and if he perversely refuse to act, a court of chancery, when necessary, would compel him, and in case of his death, would appoint another trustee to act in his stead. That this is so upon every principle of equity touching the subject, we do not think admits of controversy. But is it necessary in this case, to resort to this power in order to effectuate justice between the parties? We think not.\nIn the first place, we think it by no means certain under a fair construction of the acts of 1829, 1831, that where in cases of a devise of freedom by will before the act of 1829, in which the executor or administrator fail or refuse to apply to the county court for a confirmation of the freedom given by the will, the slave may not petition the county court by his next friend for that purpose. The act of 1829 authorized him to file a bill in the chancery court; and that of 1831 does nothing more than cut off the jurisdiction of the chancery court in such cases, upon wills made before the passage of the act of 1829, and directs a transfer of the causes pending in the chancery court, upon the subject for adjudication to the county court. It may *574be well argued, if it were the intention of the legislature to give the county court jurisdiction of cases pending in the chancery court, where the executor or administrator had failed or refused to execute his trust; that it was their intention to give it jurisdiction of all cases which might arise thereafter of a similar character; in other words, the act of 1829 was passed for the relief of slaves emancipated by will. It in the first place makes it the duty of the executor or administrator, with the will annexed, to apply to the county court by petition on behalf of the slaves, if he fail or refuse so to do. In the second place, it authorizes a bill to be filed in the chancery court by the next friend of the slaves.\nThe act of 1831, is not designed to deprive the slave of any right, acquired under the will, but to change the tribunal in a specified class of cases. It takes away the jurisdiction of the chancery court in cases of wills made before 1829, and by express words, transfers such cases pending to the county court. If they give the jurisdiction of cases pending, is it not fair argument to say that they intended to give jurisdiction of like cases which might arise? Otherwise a class of cases would be unprovided for, which we can hardly suppose was designed.\nThe chancery court has full power upon all cases of wills, made after the passage of the act of 1829; the county court upon all cases preceding the passage of the act of 1831; but in the case of a will made before the act of 1829, in which no bill had been filed previous to the act of 1831, if the executor or administrator fail or refuse to do his duty, there is no tribunal to act upon the petition of the next friend, unless it be the county court under a fair construction of the act of 1831.\nIf the county court have the power to act upon the petition of the next friend of the slave, in the case supposed, this cause is at an end, for this has been done by the county court of Jackson, at its April term, 1840. But suppose that such is not the fair construction of the act of 1831, yet in the second place we hold that the action of the county court, in the order of emancipation in this case, is not void. The devise of emancipation in the will, or the act under which the right of freedom arises, it is true, is not perfected until the assent *575of tlie State thereto is given. The power to give this assent has been lodged in the county court, and it has been given by this agent upon a full statement of all the facts attending it.\nWho has been injured? who has the right to complain? The owner? there is no owner. The devisee was the owner; he ceased to be so upon his death, and having devised the freedom of the slaves, they descend to no one. The executor? he has no claim to them, unless perhaps he could show, that the creditors of the estate were i nterested in the question, there being a deficiency of assets; but this is not pretended; having no claim, his assent is not necessary to their freedom, though the assent of the owner is in all cases; being a mere agent appointed to apply for the assent of the State, if the State give it without his application, upon what principle shall it be held bad? It is the substance of things, and not forms, which must control us in cases of this kind. We have said that we have the power to compel the executor to execute his trust; if it has been executed, and properly executed without him, why should we set it aside and at his request without adequate cause, permit him to interfere with persons enjoying rights acquired under it, no persons claiming an interest being dissatisfied?\nWe will not do so, but declare that the right of freedom, given to the complainants Almira Hinklin and Turner Hinklin, children of the negro woman Suky, by the will of Hugh Hink-lin and the order of the county codrt of Jackson, made at its April term, 1840, is perfect and complete and enjoin the complainant, Avery Hinklin, the surviving executor of said last will and testament, from hindering and molesting them in the enjoyment thereof, by any suit at law, now pending or to be brought hereafter,., or in any other manner under any pretended right as executor aforesaid. Decree accordingly with cost.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"hinklin-v-hamilton"} {"attorneys":"Woods & Knapp and Bert Fester, for appellant., John Jenswotd, Jr., for respondent.-","case_name":"Mitchell v. Village of Chisholm","case_name_full":"HENRY MITCHELL v. VILLAGE OF CHISHOLM","citation_count":0,"citations":["116 Minn. 323"],"court_full_name":"Supreme Court of Minnesota","court_jurisdiction":"Minnesota, MN","court_short_name":"Supreme Court of Minnesota","court_type":"S","date_filed":"1911-12-29","date_filed_is_approximate":false,"disposition":"Reversed.","headnotes":"Statutory notice of personal injury — complaint defective.
The plaintiff, while lawfully on private property, was injured hy being struck by a piece of rock hurled by the blasting, in a negligent manner, of rocks and boulders by the defendant in one of its streets. He brought this action to recover damages for his injuries,, but did not give the notice provided for by section 768, R. L. 1905. Held, that the action is within the statute, and that the complaint does not state a cause qf action.
","id":8020543,"judges":"Start","opinions":[{"author_str":"Start","ocr":true,"opinion_id":7976059,"opinion_text":"\nStart, C. J.\nThis is an appeal in a personal injury action from an order of the district court of the county of St. Louis overruling a general demurrer to the complaint.\nSo far as here material, the allegations of the complaint are to the effect following: On June 18, 1909, the defendant was engaged in blasting rocks and boulders in a public street of the village, without taking any precaution to guard against pieces thereof being hurled beyond the limits of the street, thereby exposing numerous persons to imminent danger and constituting a public nuisance; and on the day named the plaintiff, while lawfully standing on private *324property within the corporate limits, was, without warning or notice, struck and injured by a part of a rock hurled by a blast with such force and at such distance as to hit him.\nThe complaint failed to allege notice to the village of the time, place, and circumstances of his injuries, as provided by section 768, R. L. 1905. The provision is as follows:\n“Every person who claims damages from any city, village, or borough, for loss or injury sustained by reason of any defect in a street, road, bridge, or other public place, or by reason of the negligence of its officers, agents or servants, shall cause to be presented to its council or other governing body, within thirty days after the alleged loss or injury, a written notice. * * * No action therefor shall be maintained unless such notice has been given, or if commenced, * * * more than one year after the occurrence of the loss or injury.”\nThis action was commenced June 11, 1911, and more than one year after the accident whereby plaintiff was injured. The sole question for our decision is whether the statute applies to this action.\nThe original of section 768 was Laws 1897,- p. 459, c. 248. In construing the original act, we held in effect that the clause therein, “or by reason of the negligence of its officers, agents or servants,” was not germane to the title to the act; hence no effect was given to it prior to the revision of 1905. Winters v. City of Duluth, 82 Minn. 127, 84 N. W. 788; Megins v. City of Duluth, 97 Minn. 23, 106 N. W. 89. This clause, however, as it appears in section 768 of the revision, is valid. Therefore full effect must be given to it, for it can no more be eliminated by construction than the other provisions of the section. The section is a part of the revision, which became effective March 1, 1906, and was duly passed under an appropriate general title; hence the whole section is valid from that date. State v. Barnes, 108 Minn. 230, 122 N. W. 11.\nIt is clear from the allegations of the complaint that the plaintiff’s injury resulted from the negligence of some of the officers, agents, or servants of the village. In blasting the rock in the street the municipality was of necessity acting by such agents or servants, who were negligent in not taking the necessary precautions to prevent *325pieces of the rock being thrown beyond the limits of the street. The gist of the action is snch negligence, and it is not a common-law action for maintaining a nuisance, as claimed by the plaintiff; for the complaint cannot be fairly so construed. The trial court was of the opinion that this action was not within the statute, because the village itself was engaged in doing the blasting, and was as fully informed as any other employer would be under like circumstances.\nThe cases of Kelly v. City of Faribault, 95 Minn. 293, 104 N. W. 231, and Pesek v. City of New Prague, 97 Minn. 171, 106 N. W. 305, holding that the statute does not apply to the case of a laborer injured while in the services of the municipality by its negligence in not providing a safe place in which to work, are cited in this connection. Each of these cases arose prior to the time when the revision became effective, and neither is here controlling.\nIt follows that we must give some effect to the clause in question; for it is valid, and cannot be eliminated by construction, even if the court were unable to see any good reason for its enactment. The statute being within the. power of the legislature, it was the exclusive judge of the necessity and reason for its enactment. The reason for it, however, is manifest. A municipality, unlike a personal employer, can only be present and act in the execution of municipal work by its agents or servants, who are constantly changing. It is therefore important that it be informed within a reasonable time of the circumstances of an accident occurring in the execution of its work and resulting in injury to a claimant, so that it may be able intelligently to investigate the merits of the claim before the employees who were in charge of the work leave its employment. We hold that this action is within the statute and that the complaint does not state a cause of action.\nOrder reversed.\n\n[Note] Notice of claim and cause of injury as condition of municipal liability for defect in highway, generally, see note in 20 L.R.A.(N.S.) 757.\nLiability for injury to person or property from concussion caused by blasting, see notes in 12 L.R.A.(N.S.) 389; 27 L.R.A.(N.S.) 425.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mitchell-v-village-of-chisholm","summary":"Action in the district court for St. Louis county to recover $15,000 for personal injury. From an order, Dancer, J., overruling defendant’s demurrer to the complaint, it appealed."} {"attorneys":"Stevens, Stevens $ Cook, for appellant., Tally & Mayson, for appellee.","case_name":"McLeod v. Clark","case_name_full":"McLeod v. Clark","case_name_short":"McLeod","citation_count":0,"citations":["110 Miss. 861","71 So. 11"],"court_full_name":"Mississippi Supreme Court","court_jurisdiction":"Mississippi, MS","court_short_name":"Mississippi Supreme Court","court_type":"S","date_filed":"1916-03-15","date_filed_is_approximate":true,"id":8036072,"judges":"Sykes","opinions":[{"author_str":"Sykes","ocr":true,"opinion_id":7992299,"opinion_text":"\nSykes, J.,\ndelivered the opinion of the court.\nThe appellant, John A. McLeod, was the owner of a lot in the business portion of the town of Hattiesburg. This lot fronted fifty feet on Pine street and was one hundred and fifty feet deep; on which lot was situated a one-story frame storehouse building about thirty feet wide and one *862hundred feet long. This storehouse stood on pillars; some-being brick, and some brick and wood. Appellant sold twenty front feet of this lot to one William Moffett, Jr., on April 3, 1907. Nine feet of the storehouse building-was located on the part of the lot' sold to Moffett. A number of the brick pillars and brick and wooden pillars were-also on Moffett’s land. There was also a side door opening on the Moffett side of the lot. The appellant gave Moffett a warranty deed to said twenty feet, but attempted to reserve, orally, title to the storehouse above mentioned. Shortly thereafter, Moffett sold the land to one M. D. King, giving King notice of the oral reservation of title to the house in McLeod. On May 7, 1907, for a cash consideration of three thousand, six hundred dollars, King sold the said lot by warranty deed to Louis B. Clark, the appellee in this case. Clark was not informed of the oral agreement reserving to McLeod the title to the house. The testimony in the case shows that, at the time of purchase by Clark of the lot, the storehouse was rented by the appellant to a tenant who was paying the rent to the appellant. The appellee Clark, however, did not know to whom the rents were being paid at the time of his purchase, neither did he know of the claim of McLeod to-the entire house. Shortly after purchasing the lot, theappellee took the question of rents of the house up with the appellant, requesting that he pay him his part of the rent. This appellant declined to do, and told Clark that he claimed title to the entire house under the oral reservation above set forth. The appellee then, through his. agent, notified Mr. McLeod in writing that he claimed his portion of the rents, and also that the appellant must not move or interfere with the house. Appellant subsequently removed the house from the land of the appellee, and appellee filed this suit in trespass for conversion and damages against appellant; which trial resulted in a, verdict and judgment for the appellee for about three hundred and twenty-five, dollars from which appellant prosecutes this appeal.\n*863Before the sale of the twenty feet of the lot by McLeod to Moffett, he (McLeod) had placed the said storehouse, or rather about nine feet of it, upon the lot sold to Moffett. When this was done, this fixture immediately became a part of the realty; consequently, any agreement or oral reservation of title as to the storehouse is absolutely null and void because contrary to the statute of frauds. It is an attempt, in effect, to convert real property into personal property by an oral agreement. After once becoming a part of the realty, the fixtures must always be dealt with as real property. This is quite different from an agreement made between parties that fixtures, may be erected upon the land but are to remain personal property, because when the agreement is made the property is personal property and because of the agreement it never becomes real property. It needs no citation of authorities on our part to the effect that a house when built becomes a part of the real property; and, when it once becomes a part of the realty, any oral agreement as to its title is absolutely void.\n“It is generally held in America that a parol sale of fixtures, part of the realty, by the owner of the fixture, is within the statute and void, and that to be valid it must be with the formalities prescribed for the sale of real estate. If by deed land is sold on which there is a fixture part thereof, a parol exception of the fixture is invalid. To be effective the exception must be according to the form requisite for the exception of other real estate.” 19 Cyc. 1072.\n\nAffirmed. ■\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mcleod-v-clark","summary":"Appeal from the circuit court of Forest county. Hon. P. B. Johnson, Judge. Suit by Louis B. Clark against Jolm A. McLeod. From .a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.","syllabus":"1. Vendor and Purchaser. Bona fide purchaser, notice of parol reservation. Fixtures. What constitutes. Statute of frauds.
\"Where the owner sold a lot a portion of which was occupied by a store house extending a distance of nine feet over the lot with a parol reservation of the right to remove the house, a subsequent purchaser of the lot without notice of the reservation could maintain an action for trespass against the original owner for oremoving the house over his protest.
2. Fixtures. What constitutes.
A store house standing on pillars, of brick and wood is a fixture and goes with the land on the sale thereof and the vendor has no right to remove the same as against an innocent purchaser from his vendee.
:3. Statute of Frauds. Parol reservation of interest in land.
On the sale of land a parol reservation by the vendor of the right to remove a fixture thereon, was void under the statute of frauds, as to an innocent purchaser from the vendee thereof.
"} {"case_name":"State v. Bottenhagen","case_name_full":"STATE OF MONTANA, -vs- ROBERT ERIC BOTTENHAGEN","case_name_short":"Bottenhagen","citation_count":0,"citations":["377 Mont. 116"],"court_full_name":"Montana Supreme Court","court_jurisdiction":"Montana, MT","court_short_name":"Montana Supreme Court","court_type":"S","date_filed":"2014-11-24","date_filed_is_approximate":false,"id":8072276,"judges":"Chairperson, Gilbert, Hon, Newman, Seeley","opinions":[{"ocr":true,"opinion_id":8030921,"opinion_text":"\nOn July 10, 2014, the defendant was sentenced to: Count I: Negligent Homicide, a felony - Fifteen (15) years in the Montana State Prison; Count II: Negligent Homicide, a felony - Fifteen (15) years in the Montana State Prison: Count HI: Negligent Homicide, a felony - Fifteen (15) years in the Montana State Prison; and Count IV: Negligent Homicide, a felony - Fifteen (15) years in the Montana State Prison. Counts I - IV shall run consecutively. It is further ordered that Defendant will receive credit for time spent in pre-trial incarceration form April 18,2013 to July 1,2014. Count V was dismissed by the Court.\nOn November 7,2014, the Defendant’s Application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court (hereafter “the Division”).\nThe Defendant was present and was represented by Ed Sheehy, Jr., Montana Office of Public Defender. The State was not present at the hearing due to the hearing being held at an earlier time than scheduled.\nBefore hearing the Application, the Defendant was advised that the Division has the authority not only to reduce the sentence or affirm it, but also increase it. The Defendant was further advised that there is no appeal from a decision of the Division. The Defendant acknowledged that he understood this and stated that he wished to proceed.\n*117DATED this 24th day of November, 2014.\nRule 12, Rules of the Sentence Review Division of the Supreme Court of Montana, provides that, “The sentence imposed by the District Court is presumed correct. The sentence shall not be reduced or increased unless it is clearly inadequate or clearly excessive.” (Section 46-18-904(3), MCA).\nThe Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is clearly inadequate or clearly excessive.\nTherefore, it is the unanimous decision of the Division that the sentence shall be AFFIRMED.\nDone in open Court this 7th day of November, 2014.\nChairperson, Hon. Brad Newman, Member Hon. Kathy Seeley and Member Hon. Brenda Gilbert.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-bottenhagen"} {"attorneys":"Messrs. Wm. Marshall Bullitt and J. A. Newman for respondent.-","case_name":"Helvering v. Independent Life Insurance","case_name_full":"Helvering, Commissioner of Internal Revenue v. Independent Life Insurance Co.","case_name_short":"Helvering","citation_count":0,"citations":["291 U.S. 655"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1934-02-05","date_filed_is_approximate":false,"id":8188305,"opinions":[{"ocr":true,"opinion_id":8150236,"opinion_text":"\nPetition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Solicitor General Biggs for petitioner.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"helvering-v-independent-life-insurance"} {"attorneys":"Wrii. A. Kinnerh, for appellant, filed brief on merits., Robert G. Powell, for respondent, filed brief on merits.","case_name":"Davies v. Boyers","case_name_full":"IVOR DAVIES v. JOHN A. BOYERS","case_name_short":"Davies","citation_count":0,"citations":["140 Mo. App. 593"],"court_full_name":"Missouri Court of Appeals","court_jurisdiction":"Missouri, MO","court_short_name":"Missouri Court of Appeals","court_type":"SA","date_filed":"1909-06-22","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"1. APPELLATE PRACTICE: Abstract: Sufficiency of Evidence. Where the sufficiency of the evidence to support the verdict is questioned, appellant must print the entire evidence. The opinion of counsel as to what was proved or disproved is not sufficient.
2. -: -: -. Where the appeal is on the short form and the evidence is not fully printed, the only point relied upon by appellant being the question of the sufficiency of the evidence to support the verdict, the judgment will he affirmed.
","id":8298684,"judges":"Goode, Nortoni, Reynolds","opinions":[{"author_str":"Nortoni","ocr":true,"opinion_id":8265218,"opinion_text":"\nNORTONI, J.\nThis is a suit on account for labor performed and materials furnished in papering a residence for the defendant. Plaintiff recovered and the defendant appeals. The appeal is on the short form provided for by our statute (R. S. 1899, sec. 813.) There *594is no transcript of the evidence before ns whatever. If the testimony was preserved in the bill of exceptions, that document is on file in the office of the trial court, as it should be, when the appeal is prosecuted on the short form, and is not here. We are -therefore precluded from ascertaining what it contains, if we were disposed to look into it to discover. Plaintiff has wholly failed to abstract the evidence or print it in full for our perusal. There is but one point raised in appellant’s brief, and that is in the following language: “On the uncontroverted evidence in the case, the verdict and judgment should have been given ■ for the defendant Boyers.” It appears from this that we are called upon to review the sufficiency of the testimony to support the verdict. As said, that testimony is not before us, and we are therefore unable to review it. From the very meagre statement found in appellant’s abstract and brief, it appears to have been conceded that the plaintiff performed the labor and furnished the materials at the price mentioned, and that he did' this at the instance and request of defendant. The only question in the case relates to whether or not the matter of account had been adjusted in a settlement between the parties, including a number of other transactions. On this question the evidence was conflicting and there is substantial proof on either side of it. From the. very meagre showing in appellant’s statement and brief, there is sufficient to support the finding and verdict for the plaintiff. The credibility of the witnesses and the weight and value to be given to their testimony, is a question exclusively within the province of the trial court. This court will not review the action of the trial court in that behalf, and if there appears substantial evidence to support the finding, its judgment will be affirmed.\nHowever all of this may be, it is sufficient to say in this case that the defendant has not printed and produced here the entire testimony, as he should have done if he desires its sufficiency reviewed, for we are certain*595ly not able to give judgment upon the sufficiency of the testimony which we are not permitted to read. The rule is that where the sufficiency of the testimony to support the verdict is called into question, it devolves upon appellant to print the entire evidence in the case, to the end that the reviewing court may see and understand the matter precisely as it was presented to the trial court. It is not sufficient for counsel to give his opinion in the abstract of what the testimony proved or did not prove. When the testimony is not fully printed, as in this case and the only point relied upon is its sufficiency to support the vedict, the judgment should be affirmed for failure to present the matter to the reviewing court in a manner to be reviewed. [Jackson v. Wabash R. R. Co., 85 Mo. App. 443; Wentzville, etc., R. R. Co. v. Walker, 123 Mo. 662.]\nThe judgment is therefore affirmed. , It is so ordered.\nReynolds, P. J., and Goode, J., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"davies-v-boyers","summary":"Appeal from St. Louis City Circuit Court. — Ron. Dcm’l D. Fisher, Judge."} {"attorneys":"Lisa E. Bhatia-Gautier, U.S. Attorney’s Office District of P.R., Civil Division, Hato Rey, for defendant represented by Bhatia-Gautier., Nector Robles-Abraham, Fajardo, for plaintiff represented by Robles-Abraham.","case_name":"Velázquez Sánchez v. United States","case_name_full":"Carmen VELÁZQUEZ SÁNCHEZ v. United States","citation_count":0,"citations":["134 F. Supp. 2d 211"],"court_full_name":"District Court, D. Puerto Rico","court_jurisdiction":"Puerto Rico, PR","court_short_name":"D. Puerto Rico","court_type":"FD","date_filed":"2001-01-31","date_filed_is_approximate":false,"id":8704415,"judges":"Dominguez","opinions":[{"author_str":"Dominguez","ocr":true,"opinion_id":8687598,"opinion_text":"\n\nOPINION AND ORDER\n\nDOMINGUEZ, District Judge.\nPending before the Court is defendant, United States’ Motion for Summary Judgment. (Docket No. 26). Plaintiffs filed this action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671, for personal injuries sustained by plaintiff, Carmen Velázquez Sánchez (“Ve-lázquez”), on or around November 10, 1994, at the Mini Market of the United States Naval Base, located at Roosevelt Roads, Ceiba, Puerto Rico. (Docket No. 1). The alleged cause of the injury was an exposed cement edge that was protruding from the floor of the parkway outside the premises of the Mini Market at the Naval Base. (Docket No. 1). As stated in the complaint, Velázquez has been diagnosed with a central disc hernia. (Docket No. 1).\nIn order to mail the statutorily required administrative claim, plaintiffs’ counsel’s secretary telephoned the Naval Base Legal Department to inquire about the Navy’s Legal Department address. (Trans, p. 5). After the secretary was provided the information, she transferred the call to plaintiffs’ counsel. (Trans, p. 5). Sometime before November 7, 1996, plaintiffs sent the administrative claim, together with a letter dated October 31, 1996, to the Navy Station Legal Department via certified mail, which was returned to sender due to wrong recipient. (Docket No. 26, Docket No. 14; Exh. A; Trans, p. 8). Because of the return of plaintiffs’ documents to sender, counsel telephoned the Navy Legal Office and was allegedly provided the correct address. (Trans, p. 8). The only part of the address different from the address previously informed was the zip code, which was corrected from 00735 to 00742. (Trans, p. 8).\nThe administrative claim was then sent again to the Navy Station Legal Department on November 8, 1996, two days before the two-year statute of limitations expired. (Trans, p. 17). The Post Office corrected the address to receiver placing an FPO. (Trans, p. 37). The Navy Legal Examiner claims that plaintiffs’ complaint was received on November 14, 1996, four days after the two-year statute of limitations period ended. (Trans, p. 51, Docket No. 26). However, the person who received the mailed documents at the Legal Department omitted placing the date on the pertinent box in the return receipt requested. (Trans, p. 47). Therefore, there is a dispute as to whether plaintiffs’ administrative claim was timely filed. Plaintiffs further allege that this case is not time barred due to equitable tolling. (Docket No. 22). Defendant counters plaintiffs’ arguments averring that the case is time barred and that the doctrine of equitable tolling is inapplicable to the instant case. (Docket No. 26).\nOn February 10, 1999, the Court issued an Order which in pertinent part states:\n“Pending before the court is defendant United States of America’s Motion to Dismiss (Docket No. 9). Plaintiffs filed an opposition to said motion on October 28,1999. (Docket No. 13). Both parties *214attached documents to their submissions. On December 14, 1999, the court scheduled an evidentiary hearing regarding defendant’s motion for January 21, 1999. (Docket No. 16). On January 13, 1999, plaintiffs filed a Motion Requesting Continuance of ninety (90) days to perform discovery in order to oppose the motion to dismiss at the hearing. (Docket No. 17). The court granted said request on January 14, 1999, and continued the hearing until April 16, 1999. (Marginal Order Docket No. 17). Because the parties filed additional documents with the motion to dismiss and opposition thereto, in addition to the time for discovery, and to resolve the motion the court will have to consider such submissions, defendant’s motion is no longer considered a motion to dismiss but a motion for summary judgment. Garita Hotel Limited Partnership v. Ponce Federal Bank, 958 F.2d 15, 18-19 (1st Cir.1992) (It is the court who determines if a motion to dismiss is to be converted to a motion for summary judgment; the conversion is functional rather than mechanical.). Since the court will definitely have to consider material outside the pleadings including the results of the requested discovery and other evidence that may be presented at the hearing to be held on April 16, 1999, the court DISMISSES WITHOUT PREJUDICE defendant’s motion to dismiss. Defendant may re-file the motion in summary judgment fashion complying with Local Rule 311.12 once said hearing on this matter is held.”\nDocket No. 18.\nThe evidentiary hearing was eventually held on August 12, 1999. (Docket No.'20). At the evidentiary hearing the Court informed the parties that there was a potential equitable tolling issue and granted plaintiffs until August 20, 1999, to file a brief in support of plaintiffs’ equitable tolling position and granted defendant until August 25, 1999, to file a reply. (Docket No. 21). On August 20, 1999, plaintiffs filed a brief in support of equitable tolling and a statement of uncontested facts. (Docket No. 22). Then, on September 17, 1999, defendant replied to plaintiffs’ motion by filing a Motion for Summary Judgment and a statement of uncontested facts. (Docket No. 26).1 Although the Court erroneously induced the parties to submit motions for summary judgment, the Court will decide the issues presented by the parties pursuant to the evidence presented by both parties at the evidentiary hearing that was held, as the Court is the sole trier of fact. The instant case is after all a bench trial and hence, the Court may perform credibility findings and weighting of the evidence. For the following reasons, the Court finds that plaintiffs’ administrative claim was untimely filed and that the doctrine of equitable tolling does not save plaintiffs. Therefore, plaintiffs’ claims against defendant ‘must be DISMISSED.\nI. DISCUSSION\nA. Timeliness of the FTCA Claim\nA claim against the United States under the FTCA is time barred unless it is received by the proper agency within two years of its accrual. See 28 *215U.S.C. § 2401(b).2 A claim against the United States government under the FTCA must be presented before the pertinent federal agency by filing “an executed Standard Form 95 or other written notification of an incident accompanied by a claim for money damages in sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.” 28 C.F.R. § 14.2(a). “It is well settled law that an action brought against the United States under the FTCA must be dismissed if a plaintiff has failed to file a timely administrative claim with the appropriate federal agency.” Attallah v. United States, 955 F.2d 776, 779 (1st Cir.1992).\n“The filing of a timely administrative claim is a jurisdictional requirement that cannot be waived” and if plaintiff “fails to comply with this requirement, [her] claim is ‘forever barred.’ ” 28 U.S.C. § 2401(b). Mailing of the claim alone is insufficient to meet the requirement that the claim be timely presented. See Drazan v. United States, 762 F.2d 56, 58 (7th Cir.1985) (“Mailing is not presenting; there must be receipt”). See also Bailey v. United States, 642 F.2d 344 (9th Cir.1981) (“Nor do we accept appellants’ invitation to rewrite the Act and in effect repeal the regulation by holding that mailing alone is sufficient to meet the requirement that a claim be “presented.” ”).\nIn the case at bar, plaintiffs unquestionably have the burden of proving that the claim was timely filed. See Lotrionte v. United States, 560 F.Supp. 41 (S.D.N.Y.), Affd mem., 742 F.2d 1436 (2d Cir.1983); Drazan v. United States, 762 F.2d 56 (7th Cir.1985); DeWitt v. United States, 593 F.2d 276 (7th Cir.1979). Based on the exhibits presented, the testimony of witnesses, including an assessment of the credibility of that testimony, the Court finds that plaintiffs have failed to meet the required burden.\nFirst, the address to receiver in the second letter enclosing the Standard Form 95 mailed on November 8, 1996, was incorrect and had to be corrected by the postal service by placing an FPO number. (Trans, pp. 11, 20 & 28). Second, and perhaps most convincing, Eric G. Balam, Postal Clerk for the United States Navy, testified that when the Postal Office receives a letter that is “scratched out and the FPO number [is] written in,” a Form 383 is filled out and subsequently the letter is delivered. (Trans, p. 37). The Form 383 in this case is date stamped November 14, 1996. (Exh. A). Thus, the Court must conclude that since the Form 383 in this case was filled out on November 14, 1996, then plaintiffs’ administrative claim was not received prior to November 14, 1996.\nThird, Postmaster Susana Gomez stated that 1) “the postal service has a commitment .. to process mail on a daily basis;” 2) that the mail service is approximately “92 percent” accurate; and 3) that if the letter “was mailed on the 8th [of November], pursuant to the Postal Service’s commitment “it had to have been in her office by the ninth,” however, Mrs. Gomez testified that she did not know the exact date that the letter was received.” (Trans, pp. 16-17 & 26). Finally, Ms. Flores Isabel Cruz, Claim Examiner at the Navy Legal Office testified that she could not specifically state when the claim was received by the Navy Post Office. However, she stat*216ed without hesitation that the Navy Legal Department received the claim on November 14, 1996. (Trans, p. 52). Furthermore, defendant provided as Exhibit C, a memorandum prepared by Ms. Cruz on November 15, 1996 as to the timeliness of plaintiffs’ claim. The memorandum was drafted by Ms. Cruz when she noticed that the claim received was untimely filed. Hence, to avoid any misunderstanding as to any possible issue arising out of the untimeliness of the filing the matter was memorialized. The memorandum states that the claim “was signed by LN1 Santiago, NLSO Det, Roosevelt Roads as being delivered on 14 November 1996.” (Exhibit C). Further, plaintiffs’ Administrative claim is stamped as received on November 14, 1996. (Exhibit B). Therefore, based on the aforementioned evidence, the Court finds that plaintiffs failed to prove that the administrative claim was timely filed.\nB. Equitable Tolling\nThe Court now examines if equitable tolling saves the day for plaintiffs. “Equitable tolling is an exception [to the statute of limitations] and the burden for such relief rests on the party seeking it.” Hernandez Arce v. Bacardi Corp., 37 F.Supp.2d 112, 114 (D.P.R.1999) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Crown, Cork & Seal, Co. v. Parker, 462 U.S. 345, 349, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983)). Accordingly, it also plaintiffs’ burden to persuade the Court as to entitlement to the equitable tolling exception.\nAs to the issue of equitable tolling, the Supreme Court has stated that\n“[federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.”\nIrwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990) (citations omitted). “In a nutshell, equitable tolling is reserved for exceptional cases.”3 Id. “Some courts permit tolling of the statute of limitations if the plaintiff knew of a harm but not of its discriminatory basis.” (citation omitted). *217See Thomas v. Eastman Kodak Co., 183 F.3d 38, 53 (1st Cir.1999) (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 185 (1st Cir.1989) (noting that the First Circuit’s “narrow view” of equitable tolling reaches only “active deception”); Jensen v. Frank, 912 F.2d 517, 521 (1st Cir.1990)).\nFurther, “[ejquitable tolling ... is ‘appropriate only when the circumstances that cause a plaintiff to miss a filing deadline are out of his [or her] hands.’ ” Kelley v. NLRB, 79 F.3d 1238, 1248 (1st Cir.1996) (quoting Heideman v. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991)). “Courts weigh five factors in assessing claims of equitable tolling: (1) the lack of actual notice of the filing requirement; (2) the lack of constructive notice of the filing requirement; (3) the diligence in pursuing one’s rights; (4) the absence of prejudice to the defendant; and (5) the plaintiffs reasonableness in remaining ignorant of the filing requirement.” Benitez-Pons v. Commonwealth of Puerto Rico, 136 F.3d 54, 61 (1st Cir.1998) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752 (1st Cir.1988)); Kelley v. NLRB, 79 F.3d at 1248; see also Kale, 861 F.2d at 753 (absence of prejudice factor is not an independent basis for invoking equitable tolling, but should apply only after another factor is identified that might justify tolling.) (quoting Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984) (per curiam)).\nAs previously stated, plaintiffs injury occurred on November 10, 1994. (Docket No. 1). Therefore, the two year statute of limitations expired on November 10, 1996. However, the Navy Legal Department claims to have received the claim on November 14, 1996, four days after the statute of limitations expired. (Docket No. 26). Plaintiffs aver that equitable tolling is applicable to the case at hand, thus, precluding the claim from being time barred. (Docket No. 22). The Court applies the standard set forth above to the facts of the case.\nPlaintiffs have not “been tricked by the adversary’s misconduct into allowing a deadline to pass” or have diligently pursued their rights. See Irwin, 498 U.S. at 96, 111 S.Ct. 453. First, although plaintiffs’ attorney and secretary claim to have been provided the wrong postal address by a Navy employee, in order to forward the administrative claim, nothing in the record evidences that plaintiffs were “actively” misled or tricked by the government when the addresses were provided. In addition, Luz A. Pedrosa, the secretary of plaintiffs’ attorney, did not provide any information on the record as to the identity of the person she had contacted at the Naval base for information about the Legal Department’s address. Although the Court harbors some doubts as to the identity of the person who provided plaintiffs the allegedly wrong address as being a Navy or Navy Legal Department employee, notwithstanding, there is absolutely no proof that there was “active deception” on the part of the Navy.\nSecond, even if there was “active deception” by the Navy in providing a wrong address, plaintiffs were not diligent in pursuing their administrative claim. Pursuant to relevant law, “[ejquitable tolling is unavailable where a party fails to exercise reasonable diligence.” Benitez-Pons, 136 F.3d at 61. Thereafter, even if the allegations of fraudulent concealment were established by plaintiffs, “allegations of fraudulent concealment do not modify the requirement that plaintiffs must have exercised reasonable diligence.” Salois v. Dime Savings Bank of New York, FSB, 128 F.3d 20, 26 (1st Cir.1997). Plaintiffs, *218on November 8, 1996, sent the claim for a second time via mail, only two days before the statute of limitations was set to expire. (Docket No. 22). The Court agrees with defendant that “[a]t this late time, due diligence would require at least personal service of the administrative claim, more[ ] so when plaintiff had her counsel ... in the same or neighboring town to where the agency is located.” ■ (Plaintiffs’ counsel has offices in Fajardo and the Naval base is in Ceiba, less than half an hour away via automobile.). (Docket No. 26). Is clear then, that the circumstances that caused plaintiffs to miss the filing deadline of November 10, 1996 were “not outside [their] hands.” Kelley, 79 F.3d at 1248. Furthermore, “if a claimant waits until the eleventh hour to file,” a constructive filing will not be allowed by equitable tolling. Hart v. Department of Labor Ex Rel. U.S., 116 F.3d 1338, 1341 (10th Cir.1997). “The law administers to the vigilant, not to those who sleep upon perceptible rights.” Wilson v. United States Government, 23 F.3d 559 (1st Cir.1994). Therefore, the Court finds that equitable tolling is not appropriate in this case.\nII. CONCLUSION\nUnder the circumstances presented herein, the Court finds that plaintiffs’ claim is time barred and that equitable tolling is inapplicable to the above captioned case. “We believe this holding preserves and promotes the premise that “[c]ourts are not free to construe section 2401(b) so as to defeat that section’s purpose of encouraging prompt presentation of claims against the federal government.” ” Hart, 116 F.3d at 1341 (citing Pipkin v. United States Postal Service, 951 F.2d 272, 275 (10th Cir.1991)). Therefore, plaintiffs’ claim against defendant must be DISMISSED WITH PREJUDICE. ,\nIT IS SO ORDERED.\n\n. Pending before the Court is also plaintiffs’ motion filed on March 27, 2000, requesting denial of further extensions of time for defendant to reply to the motion filed on August 20, 1999 and' for the Court to grant plaintiffs’ position as to equitable tolling. (Docket No. 28). The motion is MOOT in part as to the request for denial of extensions of time and DENIED in part as to plaintiffs' request for the Court to grant plaintiffs’ motion regarding equitable tolling.\n\n\n. 28 U.S.C. § 2401(b) states: \"[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of denial of the claim by the agency to which it was presented.”\n\n\n. See Thomas v. Eastman Kodak Co., 183 F.3d 38, 53 (1st Cir.1999) (equitable tolling simply inapplicable because no allegation that employer actively attempted to mislead employee.) American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 124 (1st Cir.1998) (Employees had actual knowledge of their ADEA rights — tolling denied.); Kelley v. NLRB, 79 F.3d 1238, 1249-50 (1st Cir.1996) (Error committed did not rise to level required to trigger equitable tolling.); Nunnally v. MacCausland, 996 F.2d 1, 6-7 (1st Cir.1993) (equitable tolling may be available for mental incompetence and record raises genuine issue of material fact thereto — remanded.); Soto v. U.S. Postal Serv., 905 F.2d 537, 540-41 (1st Cir.1990) (\"alleged lack of clarity in EEOC's letter did not require the district court to equitably toll the thirty-day statute of limitations.”); Rys v. U.S. Postal Serv., 886 F.2d 443, 447 (1st Cir.1989) (EEOC letter may be unclear but equities do not favor tolling); Mack v. Great Atl. and Pac. Tea Co., 871 F.2d 179, 185 (1st Cir.1989) (not posting job openings or failure to notify of promotional opportunities not \"concealment”— no tolling available); Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 752 (1st Cir.1988) (equitable tolling for \"excusable ignorance” inapposite where employee has notice or retains attorney); Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir.1987) (tolling inappropriate on insanity grounds where claimant represented by counsel during illness who pursued claim before EEOC).\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"velazquez-sanchez-v-united-states"} {"attorneys":"J. B. & J. L. Oakleaf and Searle & Marshall, for appellant., J. T. & S. R. Kenworthy, for appellee.","case_name":"Whitley v. Wright Carriage Body Co.","case_name_full":"Jesse Whitley v. Wright Carriage Body Company","case_name_short":"Whitley","citation_count":0,"citations":["186 Ill. App. 300"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1914-04-15","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"1. Master and servant, § 540*—sufficiency of declaration. In an action by an employe for personal injuries, counts in the declaration held not defective in not sufficiently alleging that the defect was not open and obvious and that the plaintiff did not have equal means with the master of knowing of the defect.
2. Master and servant, § 611*—when admission of testimony as to guarding of machinery not prejudicial. In an action to recover for personal injuries sustained by an employe of defendant while operating a “sanding machine” alleged to have been caused by an unguarded disc, permitting plaintiff to testify that the unguarded space could have been protected by placing boards over it, held not prejudicial • error for the reason such testimony was equivalent to an expression of opinion that the machine was unsafe and that it could be made safe.
3. Master and servant, § 784*—sufficiency of instructions. In an action by a servant for personal injuries while operating an unguarded machine, instructions given for plaintiff held not open to the criticism that they take from the jury the questions whether the omission to maintain guards was negligence or that they leave out of consideration the element of open and obvious danger and do not impose on plaintiff the duty of exercising due care, or that they are vicious on the question of assumed risk.
4. Appeai. and error, § 1466*—when prejudicial error in admission of evidence must he pointed out. Admission in evidence of an inaccurate model of a machine cannot be held prejudicial error where it is not pointed out in what respect it was prejudicial.
5. Appeal and error, § 1491*—when exclusion of evidence not prejudicial error. In an action for personal injuries sustained by an employe while operating a machine, sustaining an objection to questions asked by defendant as to the customary and usual ways of doing work in its factory, field not prejudicial error where the record does not show what was expected to be proved by the witnesses and whether their answers would have been beneficial to defendant.
6. Appeal and error, § 1507*—when exclusion of questions on cross-examination not prejudicial. In a suit for personal injuries, sustaining an objection to questions asked of plaintiff on cross-examination whether he had received injuries subsequent to the one in question, held not prejudicial error where the court of review is not advised what answer was expected and there was no offered proof by the witness or any other witness that he had received such injuries.
7. Damages, § 122*—when recovery for injury to leg not excessive. A verdict of six thousand, five hundred dollars for. injury to leg held not excessive where the ligaments were torn from the ankle and plaintiff was confined to his home for four or five months, the injury being permanent so that he will never fully regain the use of his leg and will always be hindered in his business by the infirmity.
","id":8834514,"judges":"Carnes","opinions":[{"author_str":"Carnes","ocr":true,"opinion_id":8819529,"opinion_text":" Mr. Justice Carnes delivered the opinion of the court. Appellee, Jesse Whitley, a wood worker thirty-three years old, was injured while employed by appellant, Wright Carriage Body Company, in its factory at Mo-line, April 8,1910. He had been employed there about two months and had operated a bandsaw and worked with a boring machine prior to this injury, and on a few occasions had operated for a short time the ‘ ‘ sanding machine” on which he was injured. It was a combination machine and had both a revolving cylinder and a disc covered with sandpaper, against which wood was held to he finished. The disc was forty-two and three-fourths inches in diameter, and the cylinder was twenty-four inches long and seventeen and one-half inches in diameter. They both revolved on the same horizontal shaft turned by means of a belt running from a line shaft below the floor. The disc was inclosed by boxing, except at the lower portion near the floor for a space of six or eight inches. The face of the disc opposite the cylinder was covered with sandpaper fastened by an iron ring bolted to the disc with twenty-six bolts. About half of the bolts were fastened with wing nuts about an inch high, of the ordinary type made to be turned by the thumb and finger, and the other half with ordinary nuts screwed on. The boxing of the disc protected and concealed these wing nuts except in this exposed space of six or eight inches; they would not be noticed there when the disc was in motion and one of them might or not be visible when it was at rest, depending on where it stopped. Appellee while working on the cylinder smoothing pieces of wood caught the bottom of his overalls on one of these wing nuts and was drawn into the machinery, where his leg was badly mangled. He says he did not know of these wing nuts, and it might be reasonably found from the evidence that he would not in the exercise of ordinary care know of them. This suit was brought in September, 1911, to recover for that injury. The declaration, counting entirely on common-law negligence, was of three counts, the first charging negligence in permitting’ the machine to be operated without any guard or barrier about said thumb screws; the second, failure to warn the plaintiff of danger; the third, negligence in keeping the machine in a dark place where the thumb screws could not be seen by the operator. It is agreed by counsel that there is no evidence sustaining either the second or third count. There is no suggestion that either count states a cause of action under the Act of June 4, 1909, to “Provide for Health, Safety and Comfort. of Employees.” A jury trial resulted in a verdict and judgment for six thousand, five hundred dollars, from which the defendant appeals, and assigns error in admitting and refusing evidence, giving and refusing instructions, and that the verdict and judgment are excessive and contrary to the law and the evidence. Plaintiff was permitted to testify over defendant’s objection that guards could have been placed along the lower edge of the disc to cover up these thumb screws by nailing a couple of boards about three feet long across from one hood to the other, and that it would not interfere with the operation of the machine. This is urged as prejudicial error, and said to be opinion evidence equivalent to expressing the opinion of the witness that the machine was unsafe as it was and how it could be made safe, and several cases cited holding that such opinions are not competent. We do not think the gist of the testimony was that in the opinion of the witness the machine was unsafe in the one condition and could be made safe in the other. It is true that it is almost self-evident that such is the fact, but the substance of the testimony was that this space could be protected by placing boards over it; and appellant developed in its testimony, in offering photographs in evidence, that there were boards so placed immediately after appellee was injured. It seems so obvious that the disc could be so covered, that this testimony, even if it might be considered incompetent, should not be deemed prejudicial error. It is objected that the court admitted in evidence a model of the machine, offered by appellee, that was not accurate and was not claimed to be accurate, and that this must have prejudiced appellant’s case. But it is not pointed out in what respect it prejudiced the case. It may have been error to admit this model in evidence, but without any knowledge of the model or how it might have misled the jury we cannot hold it prejudicial error. There were photographs of the machine introduced by appellant, and we presume the jury from all the evidence were fairly informed of the shape, size and character of the machine. The court sustained objections to questions asked by appellant as to the customary and usual ways of doing work in its factory, as to standing or sitting at the work and as to shutting off the machine when through working it, and the propriety of the court’s action in so doing is discussed by the respective counsel with citations of authority. But the record does not advise us what was expected to be proved by these witnesses; their answers if they had been permitted to answer, might or might not have been beneficial to appellant. We cannot hold refusal of proffered evidence prejudicial error without knowing what the evidence was. Johnson v. Peoria Ry. Co. 179 Ill. App. 304, and authorities there cited. The court sustained objections to questions asked appellee on cross-examination, whether he had received injuries subsequent to the one in question, as not proper cross-examination. This may have been error, but we are not advised what answer appellant expected. There was no offered proof by this or any other witness that he had received such injuries, therefore within the principles above announced we cannot say there was prejudicial error. Complaint is made of plaintiff’s given instructions. In the first, the jury were told if plaintiff had made a case as laid in any count of his declaration he was entitled to recover; and it is said each count of the declaration was defective in not sufficiently alleging that the defect was not open and obvious, and that the plaintiff did not have equal means with the master of knowing of the defect. We do not think the counts are open to this objection. It was averred in the first count that the plaintiff did not know of the defect, and in the exercise of reasonable care could not have known it; in the second, that the operator of the machine could not see the thumbscrews and that plaintiff did not know of the danger and conld not know of it in the exercise of ordinary care; and the third count contains substantially the same averment. There are also averments that the defendant knew of the danger, and we assume the owner of machinery like this is presumed to know of such a feature of the machine as is here complained of. Plaintiff’s fourth and fifth instructions were as follows: “The Court instructs the jury that, if you believe from the evidence, that the plaintiff, Whitley, was employed by the defendant, and, as a part of his work he was to work with or upon said sanding machine, then it was the duty of said defendant to exercise reasonable care to maintain said machine and the surroundings thereof in reasonable safe condition, and in the maintaining suitable guards around any dangerous portion of said machine, and if the jury believe from the evidence, that the defendant did not exercise reasonable care in maintaining said sanding machine, but negligently and carelessly omitted to erect and maintain a guard or guards around the thumb screws on said machine, if the evidence so shows, and that the plaintiff did not know that the said machine was not reasonably safe, if the evidence shows it was not reasonably safe, and did not have equal means with the master of ascertaining that it was not reasonably safe, and would not have ascertained it unsafe, by the exercise of reasonable care, and that in consequence of said condition of said machine the plaintiff was injured while he was in the exercise of reasonable care on his part for his own safety, then you shall find the defendant guilty.” “The Court instructs the jury that if you believe from the evidence that the defendant carelessly and negligently failed to guard the thumb screws or wing nuts on the sanding machine in question in manner and form as charged in the declaration or any count thereof, and if you further believe from the evidence that the plaintiff did not know of such unguarded condition of said machine, if it was unguarded, and had no knowledge of the danger of the projecting thumb screws thereon, if any, and did not have equal means with the defendant of ascertaining that the said thumb screws were dangerous and unguarded, if it was so, and would not have ascertained of such dangerous and unguarded condition by the exercise of such care as a reasonably prudent and careful person would exercise under the same or similar circumstances, then the plaintiff did not in law assume the risk of such projecting and unguarded thumb screws, if any there was.” It is argued that these instructions take from the jury the questions whether the omission to maintain guards was negligence and impose an absolute duty on the defendant to do so; that the pivotal question is whether the defendant, under its duty to exercise reasonable care to provide reasonably safe machinery, was bound to provide guards. These instructions do not seem to us open to that criticism. The jury were told that the duty of defendant was to exercise reasonable care, etc., and that if it did not, but negligently and carelessly omitted, etc., this was not telling the jury that it was the duty of defendant to cover that part of the disc, which it clearly was under the statute, and may well have been so held without regard to the statute. It is said both of these instructions leave entirely out of consideration the element of open and obvious danger and do not impose on the plaintiff the duty of exercising due care in and about his work. We do not so read the instructions. It is argued that they are vicious on the question of assumed risk. If the duty neglected was one imposed by the statute there was no question of assumed risk. Streeter v. Western Wheeled Scraper Co., 254 Ill. 244; but independent of the statute we do not regard the instructions bad in that regard. He did not assume the risk if in the exercise of ordinary care he did not know and would not have known of the danger, and the jury were instructed that his right to recover depended upon proof of that fact. There is little conflict in the testimony as to the extent of the injury. It appears from appellee’s testimony as a witness in his own behalf that he was injured on April 8, 1910, and did not go to work again until March, 1911, during which time it seems he was paid his wages; that the ligaments were torn from his ankle and he was confined to the house for four or five months; that the leg is stiff, the cord in the back of the leg shortened so that when standing on his bare feet he cannot get his heel to the floor; that he has to use a shoe with a higher heel on that foot; that he cannot do heavy work and that he suffers pain. The only physician called was one in the employ of appellant. He treated appellee and says the action of the ankle is not normal but has improved in the last few months and will continue to improve but will not get back to normal. In short it is a serious, permanent injury, and considering the pain and long sickness induced by the injury and the fact that appellee will never fully regain the use of his leg and will' always, to some extent, be hindered in his business by that infirmity, we do not feel warranted in reversing the case on the ground of excessive damages. It seems to us a clear ease of liability of appellant, and finding no reversible error in the record the judgment is therefore affirmed. Affirmed. ","per_curiam":false,"type":"020lead"}],"other_dates":"Heard in this court at the October term, 1913.","precedential_status":"Published","slug":"whitley-v-wright-carriage-body-co","summary":"Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding."} {"case_name":"Cox v. Cook","case_name_full":"Cox, Former Assistant Director for Treatment, Virginia Division of Corrections v. Cook","case_name_short":"Cox","citation_count":0,"citations":["421 U.S. 955"],"court_full_name":"District Court, W.D. Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"W.D. Pennsylvania","court_type":"FD","date_filed":"1975-04-28","date_filed_is_approximate":false,"id":9003054,"opinions":[{"ocr":true,"opinion_id":8995661,"opinion_text":"\n420 U. S. 734;\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cox-v-cook"} {"case_name":"Corning Natural Gas Corp. v. North Penn Gas Co.","case_name_full":"Corning Natural Gas Corp. v. North Penn Gas Co.","citation_count":0,"citations":["498 U.S. 847"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1990-10-01","date_filed_is_approximate":false,"id":9100819,"opinions":[{"ocr":true,"opinion_id":9095166,"opinion_text":"\nC. A, 3d Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"corning-natural-gas-corp-v-north-penn-gas-co"} {"attorneys":"Counsel, Heily, Blase, Ellison & Wellcome, Heily, Blase & Ellison, David R. Ellison and Richard C. Gilman for Plaintiff and Appellant., Leonard Sacks, Harvey R. Levine, Edward I. Pollock, Robert E. Cartwright, William M. Shernoff, Stephen I. Zetterberg, Sanford M. Gage, Arne Werchick, Ian Herzog, Glen T. Bashore, Wylie Aitken and Victoria J. De Goff as Amici Curiae on behalf of Plaintiff and Appellant., McCutchen, Black, Verleger & Shea, Winchester Cooley III, Benton, Orr, Duval & Buckingham and Edwin Duval for Defendants and Respondents.","case_name":"Finn v. G. D. Searle & Co.","case_name_full":"MICHAEL FINN, a Minor, Etc., Plaintiff and Appellant, v. G. D. SEARLE & COMPANY Et Al., Defendants and Respondents","case_name_short":"Finn","citation_count":47,"citations":["677 P.2d 1147","35 Cal. 3d 691","200 Cal. Rptr. 870"],"court_full_name":"California Supreme Court","court_jurisdiction":"California, CA","court_short_name":"California Supreme Court","court_type":"S","date_filed":"1984-03-29","date_filed_is_approximate":false,"headmatter":"\n Circuit judge, sitting on the Court of Appeals by assignment.\n
\nSheriff — Service of Process — Judgment.
A sheriff or his deputy has no power to serve civil process out of his county and when he does so his return is not proof of service.
Judgment.
A judgment entered without the service of process, where there is no appearance by the defendant to the action, is void.
","id":7241991,"judges":"Pryor","opinions":[{"author_str":"Pryor","ocr":true,"opinion_id":7154442,"opinion_text":"\nOpinion by\nJudge Pryor :\nThe deputy sheriff of Daviess county had no power to serve the *771summons in McLean county. His return is “executed on Reuben Gill in McLean county, April 29, 1875, by delivering him a true copy1 of the within, which I accept,” signed Reuben Gill. The deputy signed his name in his official capacity at the place on the paper where it is usual to attest such papers.\nG. W. Ray, for appellant. Owen & Ellis, for appellee.\nThe Code requires that service may be acknowledged by the defendant by an. endorsement on the summons, signed and dated by him and attested by a return. The affidavit of the witness should be proof of service, etc. There is no proof of the service or acknowledgment in this case, nor is there any attestation to the act of the defendant in signing it. In New York, under a similar provision, where the sheriff served the summons out of the county, it is said, “The proof of service must be by affidavit; his certificate of service is of no avail.” There is no proof of service whatever in this case, and the judgment was therefore void. If the last judgment had been proper, we see no reason why the commissioner should not sell to satisfy both judgments, as the cases were consolidated. The judgment is reversed and cause remanded for further proceedings consistent with this opinion.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"gill-v-farmer","summary":"APPEAL FROM DAVIESS CIRCUIT COURT."} {"case_name":"McCaskill v. Koslow Trust","case_name_full":"Kella MCCASKILL Appellant/Petitioner(s) v. The KOSLOW TRUST Appellee/Respondent(s).","case_name_short":"McCaskill","citation_count":0,"citations":["274 So. 3d 359"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2019-06-20","date_filed_is_approximate":false,"id":7713344,"opinions":[{"ocr":true,"opinion_id":7648855,"opinion_text":"\nAppeal is dismissed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mccaskill-v-koslow-trust"} {"attorneys":"Joel P. Loeffelholz, New Orleans, LA, Attorney for Appellant Herbert E. Mills., Heller, Draper, Hayden, Patrick & Horn, LLC., Warren Horn, Drew R. Balli-na, Jamie D. Dodds, New Orleans, LA, Attorney for Appellee Benson Motor Company of New Orleans, Inc.","case_name":"Mills v. Benson Motor Co. of New Orleans","case_name_full":"Herbert E. MILLS v. BENSON MOTOR COMPANY OF NEW ORLEANS, INC.","case_name_short":"Mills","citation_count":0,"citations":["798 So. 2d 283"],"court_full_name":"Louisiana Court of Appeal","court_jurisdiction":"Louisiana, LA","court_short_name":"Louisiana Court of Appeal","court_type":"SA","date_filed":"2001-09-25","date_filed_is_approximate":false,"id":7804463,"judges":"Cannella, Daley, McManus","opinions":[{"author_str":"Cannella","ocr":true,"opinion_id":7745120,"opinion_text":"\n2JAMES L. CANNELLA, Judge.\nPlaintiff, Herbert E. Mills (Mills), appeals from the trial court judgment, which grants the exception of prescription filed by the Defendant, Benson Motor Company of New Orleans (Benson). For the reasons which follow, we affirm.\nOn November 29, 1993, Mills filed a Petition for Money Owed and for Damages against Benson. The petition requested money allegedly owed to Mills by Benson under a verbal contract between the parties entered into in mid 1987. The case proceeded with some discovery. However, after March 25, 1995, no steps were taken in the furtherance of the prosecution or the defense of the action. Consequently, on October 9, 1998, based on abandonment, Benson filed an ex parte motion to dismiss under La. C.C.P. art. 561. On October 14, 1998, the trial court granted Benson’s motion to dismiss. On December 30, 1998, Mills filed a rule to set aside judgment of dismissal. Benson opposed the rule. On February 5, 1999, the trial court upheld the dismissal of the action, but specified that the dismissal was without prejudice.\n13Less than two week later, on February 18, 1999, Mills filed a second Petition for Money Owed and for Damages, alleging the same operative facts. In response, Benson filed a Peremptory Exception of Prescription and a memorandum in support of the exception. Benson argued that the second suit was prescribed because, as provided in La. C.C. art 3463, a suit that is abandoned does not interrupt prescription. On November 14, 2000, following a hear*284ing, the trial court sustained Benson’s prescription exception and dismissed Mills’ suit with prejudice. It is from this judgment that Mills appeals.\nOn appeal, Mills argues that the trial court erred in finding that his case was prescribed. He argues that the filing of his first suit did interrupt the prescription period and thus his second suit was timely. In so arguing, Mills bases his argument on the fact that the first dismissal was “without prejudice” and cites jurisprudence, Batson v. Cherokee Beach and Campgrounds, 530 So.2d 1128 (La.1988), which holds that a suit dismissed “without prejudice” does serve to interrupt prescription.\nHowever, Benson in brief to this court points out that the distinguishing fact omitted by Mills is that his case was not simply dismissed “without prejudice”, but was dismissed as abandoned.\nLa. C.C. art. 3463 expressly provides:\nAn interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the suit at the trial.1\n14Thus, Benson argues that, regardless of whether the case was dismissed with or without prejudice, it was dismissed as abandoned and, under La. C.C. art. 3463, the interruption of prescription is considered never to have occurred. We agree.\nWhile Mills relies on Batson in support of his position on appeal, a close reading of Batson supports Benson’s position rather than Mills’. In Batson, the plaintiffs case was dismissed on an exception of no cause of action, without prejudice. Suit was thereafter re-filed and the court, as quoted by Mills herein, held that where prescription has been interrupted by the filing of suit and is subsequently dismissed without prejudice, the prescriptive period begins to run anew. However, that broad pronouncement was qualified in Batson when the court noted that the same result would not obtain under La. C.C. art. 3463, had the case been abandoned.\nIn the case before us herein, Mills’ original suit, although timely filed, was deemed abandoned and was expressly dismissed without prejudice under La. C.C.P. art. 561. La. C.C. art. 3463 is clear, on point, and expressly provides that the interruption of prescription resulting from the filing of suit in a competent court and in the proper venue is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the suit. Thus, the trial court did not commit error in sustaining Benson’s exception of prescription, upon finding that Mills’ second suit was filed outside of the prescriptive period, since that period had not been interrupted by the initial suit, which was dismissed as abandoned.\n| .¡Accordingly, the judgment of the trial court, granting the exception of prescription filed by Benson, is affirmed. Costs of appeal are assessed against Mills.\nAFFIRMED.\n\n. La. C.C. art. 3463 was amended effective January 1, 2000, adding in the second sentence \"the action at any time either before the defendant has made any appearance of record or thereafter” following \"voluntarily dismisses.\"\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mills-v-benson-motor-co-of-new-orleans"} {"attorneys":"A. Harlan, for plaintiff in error., J. M. Williams, contra,","case_name":"Wright v. Munger","case_name_full":"Aaron Wright, Jr. v. Harvey Munger, Paymaster","case_name_short":"Wright","citation_count":0,"citations":["5 Ohio 441"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"1832-12-15","date_filed_is_approximate":true,"headnotes":"In suits before justices to recover militia fines, appeal lies to the court of common pleas.
","id":8119342,"judges":"Wright","opinions":[{"author_str":"Wright","ocr":true,"opinion_id":8080360,"opinion_text":"\nWright, J.,\ndelivered the opinion of the court:\n*The plaintiff in error insists that the common pleas erred: 1. In receiving evidence out of the justice’s transcript to show what the cause of action was. 2. In quashing the appeal. We limit our inquiries to the last error assigned. The act of assembly of March 14, 1831, 29 Ohio L. 171, 189, defining the powers .and duties of justices, etc., gives them cognizance of actions for “any sum not exceeding one hundred dollars,” except actions of trespass involving the title to real estate, actions of assault and •battery, malicious prosecution, ejectment, replevin, slander, libel, upon real contracts, and against officers for miseondct in office. The act allows an appeal from the final judgment of the justice, except judgments rendered by confession. 29 Ohio L. 178.\nThe militia law of 1831 provides, page 36, for the organization of a regimental court of inquiry in each regiment, to be composed of the major and commandants of companies, for the assessment of fines. Section 37 gives to the person aggrieved by the decisions of the court of inquiry a right of appeal to the court of appeals, a military tribunal composed of the field officers of the regiment and the senior captains, or any two of them. When the fine remained unpaid after notice by the paymaster, section 39 requires of the paymaster to lodge the list of fines with a justice, who is to proceed against the delinquent, making the paymaster plaintiff, “ as in other cases of debt,” to judgment and execution for the unpaid fine and costs, unless the delinquent can satisfy said justice that he was not liable to be fined, or that the fine against him ought to have been remitted by the court of appeals.\nThe counsel for the defendant in error has discussed the several questions raised in this cause with great ingenuity and ability, and insists that the appellative jurisdiction of the court of common pleas from justices’ judgment extends only to civil cases; and he denies their jurisdiction in this ease, because it is not civil; neither arising ex contractu nor ex delicto, but being, in his own language, “peculiarly like nothing else but itself, a militia case.” The general clause, allowing appeals from justices, has been uniformly construed to embrace all cases in form civil, where no express prohibition is interposed to the contrary by the legislature. *404It has been held to ^include. penal actions, and in Bittle v: Hay, 5 Ohio, 269, was held by this court to embrace a ease brought for a penalty in obstructing a highway. Counsel insist that this construction is unsound, and cites a variety of statutes providing for summary proceedings before justices, where appeals are allowed in express terms, and thence, and from the silence of the-legislature in the militia law, deduces that no appeal was intended in this class of cases. We do not perceive how the allowance of appeals, by express provision in special cases, can be understood' as expressing the intention of the legislature to restrict the usual and fair operation of the general clause allowing appeals.\nThe action is debt. It is brought upon the judgment of-a military court of competent jurisdiction, to determine the subject.. Debt upon judgments of foreign courts upon penal statutes of foreign countries, have been sustained in our courts, upon the-principle that after judgment the ti-ansaetion no longer retained its penal character. Indiana v. John, 5 Ohio, 219; 1 Ohio, 259. It does not change the situation of the case, that the legislature has allowed the jurisdiction to look behind the proceedings of the court of inquiry. The law holds the decision of the court of inquiry only prima fade evidence. It is not bur province to inquire-why the legislature took from these military tribunals the right of executing their own sentences by the ordinary means of military courts, or omitted to authorize them to issue execution, and to levy and sell as upon executions from the common law courts. Nor is it material to inquire why.it was thought necessary to have a suit and judgment for fines before a justice of the peace, after the decision of a proper military court, or why, after that again, an-appeal should be allowed, and another trial had before the common-pleas. If such are the provisions of the law, and we think so, it is our business to apply them to cases as they arise. We think an appeal in this case within the provisions of the law, and that the-court of common pleas erred in quashing it. For that cause the-order of the common pleas quashing the appeal must be reversed, and the cause remanded, with instructions to reinstate the appeal,, and proceed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"wright-v-munger","summary":"This is a certiorari to the common pleas of Warren county, and was reserved in that county for decision in bank. The transcript returned shows that an action of debt was commenced by-Munger, paymaster of a militia regiment, against Wright, before a justice, on which judgment was rendered against Wright for debt and costs. Wright appealed this judgment to the common pleas and entered bail regularly, and docketed the appeal. The transcript filed, described the action before the justice in general terms as debt, but did not show how the cause of action arose, except what could be doduced from the description of the plaintiff as paymaster, etc. Munger moved the common pleas to quash the appeal, because the suit was for a fine assessed by a court of inquiry under the militia laws of the state, from which no appeal is provided. In support of this motion, an affidavit was received by the court to show that the action before the justice was to collect a militia fine which was excepted to. The appeal was quashed, .and to reverse the order for quashing this certiorari is brought."} {"attorneys":"Daniel J. Murray, for R. I. Bar Ass’n. Aram K. Berberian, pro se.","case_name":"Petition of the Rhode Island Bar Ass'n","case_name_full":"Petition of the Rhode Island Bar Association","citation_count":0,"citations":["115 R.I. 939"],"court_full_name":"Supreme Court of Rhode Island","court_jurisdiction":"Rhode Island, RI","court_short_name":"Supreme Court of Rhode Island","court_type":"S","date_filed":"1975-10-30","date_filed_is_approximate":false,"id":8318755,"judges":"Roberts","opinions":[{"ocr":true,"opinion_id":8286001,"opinion_text":"\nIt has come to the attention of court that Aram K. Berberian has paid the required dues to the Rhode Island Bar Association. Therefore, the order of court appointing Joseph B. Carty as a master to hear and determine all questions of fact relating to the claim of Aram K. Berberian that he is indigent and unable to pay his dues is hereby vacated.\nRoberts, C. J. not participating.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"petition-of-the-rhode-island-bar-assn"} {"attorneys":"Maria Angelica Atrixco Moctezuma, Santa Maria, CA, pro se., CAC — District Counsel, Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, DOJ — U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.","case_name":"Moctezuma v. Gonzales","case_name_full":"Maria Angelica Atrixco MOCTEZUMA v. Alberto R. GONZALES, Attorney General","case_name_short":"Moctezuma","citation_count":0,"citations":["158 F. App'x 841"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","date_filed":"2005-12-13","date_filed_is_approximate":false,"id":8468607,"judges":"Fisher, Goodwin, Tashima","opinions":[{"ocr":true,"opinion_id":8440479,"opinion_text":"\nMEMORANDUM**\nMaria Angelica Atrixco Moctezuma, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ summary affirmance of an immigration judge’s denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review constitutional issues de novo. See Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.\nMoctezuma’s sole contention to this Court is that she was denied equal protection because she was not allowed to apply for suspension of deportation. This contention is without merit. Congress comported with equal protection when it repealed suspension of deportation for aliens, such as Moctezuma, who were placed in removal proceedings on or after April 1, 1997, while permitting aliens placed in deportation before that date to maintain their applications for suspension of deportation. See Vasquez-Zavala v. Ashcroft, *842324 F.3d 1105, 1108 (9th Cir.2003); Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-65 (9th Cir.2002).\nThe voluntary departure period was stayed, and that stay will expire upon issuance of the mandate. See Desta v. Ashcroft, 365 F.3d 741, 750 (9th Cir.2004).\nPETITION FOR REVIEW DENIED.\n\n This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted Dec. 5, 2005.*","precedential_status":"Published","slug":"moctezuma-v-gonzales"} {"attorneys":"Roy A. Klein, Melville, NY, for Appellant., Matthew H. Solomson, Joan M. Stenti-ford, Department of Justice, Washington, DC, for Appellee.","case_name":"L-3 Communications Corp. v. Donley","case_name_full":"L-3 COMMUNICATIONS CORPORATION, Link Simulation & Training Division v. Michael B. DONLEY, Secretary of the Air Force","case_name_short":"Donley","citation_count":0,"citations":["345 F. App'x 535"],"court_full_name":"Court of Appeals for the Federal Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Federal Circuit","court_type":"F","date_filed":"2009-02-06","date_filed_is_approximate":false,"id":8499343,"judges":"Gajarsa, Linn, Prost","opinions":[{"ocr":true,"opinion_id":8471632,"opinion_text":"\nON MOTION\nPER CURIAM.\n\nORDER\n\nThe Secretary of the Air Force moves to dismiss L-3 Communications Corporation, Link Simulation & Training Division’s (L-3) appeal as untimely. L-3 opposes. The Secretary replies.*\nThe Secretary argues that L-3 did not file its notice of appeal in this ease until 121 days after its receipt of the Armed Services Board of Contract Appeals’ (ASBCA) May 5, 2008, 2008 WL 2154902, decision and that the appeal is thus untimely. The United States Postal Service certified return receipt card indicates that L-3 received the ASBCA’s decision on May 12, 2008. L-3 filed its notice of appeal on September 10, 2008. In order to be timely, the Secretary asserts that L-3 had to file its notice of appeal on September 9, 2008.\nAn ASBCA decision is final unless a contractor appeals to this court within 120 days after receipt of the ASBCA’s decision. 41 U.S.C. § 607(g)(1)(A). This filing period is mandatory and jurisdictional. Placeway Const. Corp. v. United States, 713 F.2d 726, 728 (Fed.Cir.1983).\nCounsel for L-3 concedes that the certified return receipt identified by the Secretary indicates receipt by someone on May 12. However, counsel asserts (1) that he does not recognize the signature on the certified return receipt indicating receipt on May 12, (2) that he actually received the decision in a separate mailing received by him on May 14, 2008, or (3) that regardless of when his office received the decision, he did not personally receive the decision until May 14, 2008.\nConcerning counsel’s first assertion, although counsel may not recognize the signature, that does not necessarily mean that the document was not received on May 12, 2008. Counsel does not assert that he never received the decision, and the only envelope that is asserted to have contained the decision at issue in this case had a certified return receipt that indicates receipt on May 12.\nConcerning counsel’s second assertion, counsel states in a declaration:\nI specifically recall receiving the Freeman Decision no earlier than on the afternoon of Wednesday, May 14, 2008 (or, perhaps, on May 15). When I first saw it, it was either inside or paper-clipped to an envelope (the “Envelope”) (Exhibit A hereto) post-marked 5/12/08, and bearing a stamp saying “DELIVERY ATTEMPTED ON MAY 14, 2008.” I kept the envelope to document the fact that — for purposes of calculating the commencement of the 120-day time period for filing a notice of appeal — I had received the decision on May 14.\nThe court is not convinced by the inexactness of the declaration and L-3 has not established that the certified return receipt indicating receipt on May 12 is incorrect. It is not clear how one can “specifically recall” receipt but then not recall whether it was on May 14 or May 15. In any event, the “Envelope” included with counsel’s declaration is an envelope that *537indicates it contained a different Board document, as counsel for L-3 later concedes in his declaration.\nCounsel’s third assertion, that regardless of when his office received the decision at issue, he personally did not receive the decision until May 14, 2008, is irrelevant. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 93, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (where action was required to be filed within 30 days of receipt of notice, time to file begins on date of receipt by the attorney’s office and not the date that the attorney received notice). Thus, this court must dismiss L-3’s appeal as untimely.\nAccordingly,\nIT IS ORDERED THAT:\n(1) The Secretary’s motion to dismiss is granted.\n(2) Each side shall bear its own costs.\n\n We grant the Secretary's motion for an extension of lime to file its reply.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"l-3-communications-corp-v-donley"} {"attorneys":"Francisco A. Padilla, abogado de la parte recurrente; Francisco Aponte Pérez, abogado de la parte recurrida.","case_name":"Esquilín Aponte v. Aponte de la Torre","case_name_full":"Ángel L. Esquilín Apontes., recurrentes v. José Aponte de la Torre, en su capacidad de Alcalde del Municipio de Carolina, Compañía Aseguradora A, B, y C, Ángel R. Martínez, Director del Departamento de Obras Públicas, Delia Muñiz Calderón, Directora del Programa de Salubridad, y Luis Díaz Cuevas, Director de la Oficina de Recursos Humanos, recurridos","citation_count":0,"citations":["150 P.R. Dec. 204"],"court_full_name":"Supreme Court of Puerto Rico","court_jurisdiction":"Puerto Rico, PR","court_short_name":"Supreme Court of Puerto Rico","court_type":"TS","date_filed":"2000-02-08","date_filed_is_approximate":false,"id":8589693,"judges":"Aso, Con, Escrita, López","opinions":[{"author_str":"Per Curiam","ocr":true,"opinion_id":8565258,"opinion_text":"\nper curiam:\nEl Sr. Angel L. Esquilín Aponte (en adelante el peticionario), presentó un recurso de apelación ante el Tribunal de Circuito de Apelaciones el 16 de agosto de 1999, en el cual solicitó que se dejara sin efecto una sen-tencia sumaria dictada el 2 de julio del mismo año por el Tribunal de Primera Instancia, Sala Superior de Carolina.(1) El foro apelativo emitió sentencia el 30 de sep-tiembre de 1999, en la que concluyó que la apelación pre-sentada ante ese foro carecía de un apéndice completo, ya que no contenía la notificación del archivo en autos de la sentencia apelada. Desestimó la apelación por falta de jurisdicción.\nOportunamente, el peticionario presentó una moción de reconsideración para aducir que la notificación del archivo en autos de la sentencia sumaria dictada por el tribunal de instancia se encontraba en la página 53 del Apéndice. El tribunal apelativo, no obstante, emitió una resolución el 27 dé octubre de 1999, copia de la cual fue archivada en autos el 9 de noviembre del mismo año, para declarar no ha lu-gar la reconsideración.\nInconforme, el peticionario compareció ante nos me-diante un recurso de certiorari, en el que solicita que revo-quemos la sentencia del tribunal apelativo; señala que ese foro erró al resolver que el recurso presentado no contenía copia alguna de la notificación de la sentencia de instancia. Incluyó como apéndice el legajo en apelación que presentó ante el Tribunal de Circuito de Apelaciones.\nUna vez examinado el recurso ante nos, así como su apéndice, expedimos el auto y procedemos a resolver sin *206trámite ulterior con la autoridad que nos confiere la Regla 50 del Reglamento de este Tribunal, 4 L.P.R.A. Ap. XXII-A.\nHH\nLa Regla 54.4 de Procedimiento Civil, 32 L.P.R.A. Ap. III, según enmendada, dispone, en lo pertinente, que:\n(a) Todo escrito de apelación y toda solicitud de certiorari incluirá un apéndice. Ese apéndice, junto al apéndice del ale-gato de la parte apelada o recurrida, será el legajo en apelación o certiorari ante el Tribunal de Circuito de Apelaciones, salvo que el tribunal ordene que se prescinda de éste y se eleve el expediente original.\nPor otro lado, la Regla 16(E)(1)(a)\" del Reglamento del Tribunal de Circuito de Apelaciones, según enmendado, 4 L.P.R.A. Ap. XXII—A, impone la obligación de incluir en el apéndice del escrito de apelación una copia literal de la sentencia del Tribunal de Primera Instancia, cuya revisión se solicita, y la notificación del archivo en autos de una copia de ésta. Este requisito es de carácter jurisdiccional, ya que la notificación del archivo en autos es necesaria para determinar si la parte presentó dentro del término jurisdiccional de treinta (30) días su escrito de apelación. Regla 53.1 de Procedimiento Civil, 32 L.P.R.A. Ap. III. En ausencia de este importante documento, el Tribunal de Circuito de Apelaciones carece de jurisdicción para atender la apelación en los méritos.\nhH hH\nEn el caso de autos, el peticionario, mediante una mo-ción de reconsideración oportunamente presentada ante el tribunal apelativo, destacó que la notificación de la senten-cia se encontraba en la página 53 del Apéndice, y que así lo indicaba su índice. Le solicitó al foro a quo que reconside-rara la desestimación de la apelación, ya que se habían *207incluido en el apéndice todos los documentos que acredita-ban fehacientemente la jurisdicción de ese tribunal. No obstante, el Tribunal de Circuito de Apelaciones se negó a reconsiderar.\nEn el recurso ante nos, el peticionario nos incluye el legajo en apelación en el cual se encuentra —en la página 53 del Apéndice— la notificación del archivo en autos de la copia de la sentencia del Tribunal de Primera Instancia. Siendo ese el caso, el tribunal apelativo estaba obligado a reconsiderar. Al no hacerlo, incurrió en un error craso.\nEs entendible que el Tribunal de Circuito de Apelaciones, por el cúmulo de trabajo que tiene ante sí, pueda errar en alguna de sus determinaciones. Sin embargo, lo que no podemos entender ni mucho menos justificar, es que si oportunamente se le presentan a dicho foro los fundamentos por los cuales se entiende ha errado, y siendo tan patente y obvio el error, dicho tribunal se obstine y mantenga su determinación original. El Tribunal de Circuito de Apelaciones está obligado, si se cumplen todos los requisitos que confieren jurisdicción a ese tribunal, a atender una apelación y resolverla en los méritos y de forma fundamentada. Feliberty v. Soc. de Gananciales, 147 D.P.R. 834 (1999); Soc. de Gananciales v. García Robles, 142 D.P.R. 241 (1997).\nPor los fundamentos expuestos con anterioridad, resol-vemos que ciertamente, el peticionario cumplió a cabalidad con las Reglas de Procedimiento Civil y con el Reglamento del Tribunal de Circuito de Apelaciones. Por lo tanto, el tribunal apelativo adquirió jurisdicción sobre la apelación presentada. En consecuencia, se revoca la sentencia emi-tida por el Tribunal de Circuito de Apelaciones el 30 de septiembre de 1999 y se devuelve el caso al foro apelativo para que resuelva en los méritos la apelación presentada por el peticionario.\n\nSe dictará la sentencia correspondiente.\n\n*208El Juez Asociado Señor Rebollo López y la Juez Aso-ciada Señora Naveira de Rodón concurrieron con el resul-tado sin opinión escrita.\n\n La sentencia del Tribunal de Primera Instancia fue archivada en autos el 16 de julio de 1999.\n\n","per_curiam":true,"type":"020lead"}],"precedential_status":"Published","slug":"esquilin-aponte-v-aponte-de-la-torre"} {"attorneys":"Bliss & Webster, for plaintiffs., Welsh & Prescott, for defendant","case_name":"Haven v. Holland","case_name_full":"HAVEN v. HOLLAND","case_name_short":"Haven","citation_count":0,"citations":["11 F. Cas. 846","2 Mason C.C. 230"],"court_full_name":"U.S. Circuit Court for the District of Massachusetts","court_jurisdiction":"Massachusetts, MA","court_short_name":"U.S. Circuit Court for the District of Massachusetts","court_type":"FA","date_filed":"1820-05-15","date_filed_is_approximate":true,"headnotes":"Case Mo. 6,¿29.
Marine Insurance — Letter® op Marque — Powers op — Powers op Master — Deviation.
1. A vessel armed as a letter of marque, and insured as such, has no right to cruise at large for prizes, but she may chase and capture hostile vessels coming in sight, in the course of her voyage, without its being a deviation; and there is no difference in the law, if the’ vessel be not described in the policy as a letter of marque, provided that fact be made known to the underwriter before underwriting the policy.
2. Every vessel, whether armed or not, has a right of self-defence against hostile attacks; and the master has a large discretion on this subject. He is not bound to attempt an escape in the first instance, and only to repel an attack when made. He is, on the other hand, at liberty to lay to, or attack the enemy ship, or chose her, if he deems that the best means of self-de-fence, and not wait until a direct attack is made on his own vessel, for self-defence may be then fruitless, by his being crippled.
3. If a vessel capture an hostile vessel in self-defence, she has a consequent right to take possession and man out the prize, for she has a right to make her victory effectual, and it will be no deviation, if thereby her own crew be not injuriously weakened.
","id":8652381,"judges":"Story","opinions":[{"author_str":"Story","ocr":true,"opinion_id":8632208,"opinion_text":"\nSTORY, Circuit Justice\n(after summing up the facts to the jury). It does not appear to me, that there is any serious difficulty in the law applicable to this case. It is clear from the authorities, that a vessel insured as a letter of marque, has no right to cruise at large for prizes; but she has, in my opinion, a right to chase and capture hostile vessels, which are met with and are in sight in the course of the voyage.2 Here, however, the vessel was not insured as a letter of marque, although it was well known to the underwriters, at the time of the insurance, that she possessed such a commission. And the argument is, that knowledge of the fact, does not aid this defect of description in the policy. I do not profess to feel any doubt on this point. It appears to me, that it is wholly immaterial, whether the vessel be described in the policy *847as a letter of marque or not, provided the fact of her sailing under such a commission, be known to the underwriters. The description of the fact, does not make the construction of the policy more broad, but it repels any de-fence founded upon the concealment of a fact, material to the risk. There are many cases, in which this doctrine is applied. Although this is my opinion, yet as the principal question in this case turns upon another point, I am disposed to reserve this point, and to direct the jury to find a verdict for the defendant, unless the capture was made in necessary self defence.\nWhether a vessel be commissioned or not, she has a right to repel any attack of an enemy, and to protect and defend herself by all reasonable precautions, against a meditated hostile attack. If a vessel, supposed to be an enemy cruiser, be in sight, and apparently intend an attack upon a merchant vessel, the master of the latter is bound to exercise his best skill and judgment as to the time and mode of his defence, and if he act honestly and fairly, he will be justified, whatever may be the event He is not bound to endeavour to make his escape, in the first instance, and on failure of this, to meet the enemy; nor is he bound to lay by or fly until an attack is commenced upon him, and he has received injury, and then, and not before, to exert his right of self-defence. The law vests him with a large discretion for the benefit of all concerned. He is to consult the safety of the persons and property on, board, in the best manner he can. He may lay to, or \"chase the enemy ship, if he deem that the most effectual means of securing his object. It may be his best course to begin the attack, and • to attempt to cripple the enemy, or to encourage his own crew by commencing a chase, or to intimidate the enemy by laying to, and shewing a determination to resist any attack.3 These are considerations, which are confided to his discretion, and he is to judge, under all circumstances, what is the most promising mode of defence. To deprive him of this right of choice, would be to subvert the great object of his appointment, and to sacrifice to ignorance and mistake, all the advantages of skill and management. The only question in cases of this nature is, whether what is done, is fairly attributable to a mere intention of self-defence, or to motives of another nature, such as the desire of profit. If the former, then the act is justifiable; if the latter, then it is a deviation. Apply these principles to the present case. If, when the. Volant wore round to attack the Criterion, it was for the purpose of self defence, to intimidate the enemy, and to repel a meditated attack, before the Volant should herself be disabled, then it is clear, that the act was not a deviation. But if this was wholly unnecessary, and was done by the master without any view to self-defence, and for the mere purpose of making a prize, then it was a deviation.\nBut it is contended, that if the capture was made solely in self-defence, still the master had no right to take possession of, and man out the prize, but was bound to proceed on his voyage without this delay. I am of a different opinion. If the capture was made in self-defence, the master had a right to take possession of his prize, and if without injuriously weakening his own crew, he could man the prize, he had a right so to do; and the delay for these purposes was not a deviation. He had a right to make the capture effectual, to prevent the enemy from re-commencing the attack, or giving information to other cruisers. The right of capture drew after it all the other incidents. It would be most mischievous to the interests of trade, to discourage a crew from making a gallant defence by the knowledge, that in no event could they reap a reward from the victory. I know of no authority in the law, that compels me to such a doctrine, and I cannot perceive that it stands on any solid principle of justice or reason, or public convenience. •\nVerdict for plaintiffs.\nA motion was afterwards made for a new trial, upon the ground that there was error in the law as laid down by the court; but the motion was overruled, and judgment passed for the plaintiff.\n\n See Jolly v. Walker, Marsh. Ins. 195; Parr v. Anderson, 6 East, 202: Park, Ins. (6th Ed.) 399; Hooe v. Mason, 1 Wash. [Va.] 207, 211.\n\n\n See Parr v. Anderson, 6 East, 202, Lord Ellenborough’s remarks at the trial at nisi prius.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"haven-v-holland","summary":"Assumpsit upon a policy of insurance upon merchandise on board of the ship Volant, from her port of lading in France, to her port of discharge in the United States. The policy was in the usual form, and the subscription of the defendant was for 1,000 dollars. The declaration contained two counts, in one of which the plaintiffs [Nathaniel Haven and another] aver a loss by capture, and in the other ask for a return of the premium. The facts were these. The Volant was captured on her homeward voyage by the British, carried to Halifax, and there, with her cargo, libelled and condemned as prize; war then existing between the United States and Great Britain. Before the ship sailed from Bayonne, where she had been a long time detained, from the difficulty of obtaining permission to unlade her outward, and take on board her homeward cargo, the master applied for, and obtained from the American minister, a commission and letter of marque, and increased his armament from four to fourteen guns, and his crew from twenty-five or thirty to seventy men. The ship and outward cargo were addressed to the house of Morton & Bussell, merchants in Bordeaux, and they were consulted by the master and a Mr. Bartlett, who went out as joint supercargo of the Volant, (but was not the agent or consignee of the plaintiffs) as to all important proceedings concerning the ship or voyage; and particularly as to the propriety and expediency of taking the com'mission aforesaid. Their advice was to take the commission, it being understood, that the commission was to be taken, and the armament increased, for the purpose of defence only. There were, however, no ’ written directions, tending to restrict the use of the commission: there being no other orders than those which were given at the commencement of the outward voyage; which were to proceed from France on the return voyage, as expeditiously as possible. After being out three or four days from France, a vessel was descried, which was supposed to be standing for the Volant; and attempts were made to avoid her, but the two vessels having approached so near to. each other as to enable the master of the Voiant, to ascertain that the supposed enemy was of little force, he wore ship and demanded a surrender, which was made, and possession of the vessel, which proved to be the American brig Criterion, lately captured by the British, was taken by the master of the Volant; who took her crew on board of his ship, manned the prize, and ordered her for France, where she arrived and was condemned. The time consumed in taking and manning the brig, was between two and three hours. There was no cruising and no chase, other than what is above stated. Evidence was introduced on the part of the plaintiffs to show, that the defendant [John Holland], at the time of underwriting the policy, knew that the Volant was armed, and had a commission and letter of marque. The defence was, that the stopping to capture the Criterion, and the actual capturing of her, with the consequent delay caused thereby, was a deviation, which discharged the underwriter."} {"attorneys":"Miles N. Pike, U. S. Atty., Reno, Nev., for plaintiff., Thomas Foley (of Foley & Foley), Las Vegas, Nev., for defendant.","case_name":"United States v. Binion","case_name_full":"UNITED STATES v. BINION","case_name_short":"Binion","citation_count":0,"citations":["107 F. Supp. 680"],"court_full_name":"District Court, D. Nevada","court_jurisdiction":"Nevada, NV","court_short_name":"D. Nevada","court_type":"FD","date_filed":"1952-08-22","date_filed_is_approximate":false,"id":8733458,"judges":"Murphy","opinions":[{"author_str":"Murphy","ocr":true,"opinion_id":8716667,"opinion_text":"\nMURPHY, District Judge.\nThis is a motion for an order directing the Clerk of the Court for the District of Nevada to return the file in the above-entitled case to the Clerk of the United States District Court for the Northern District of Texas, Dallas, Texas. It had been transferred from the latter Court to the former pursuant to the provisions of Rule 20, Federal Rules of Criminal Procedure, 18 U.S.C.A. The material facts are as follows:\nOn the 2d of May, 1952, a Federal Grand Jury for the Northern District of Texas returned an indictment against the defendant, L. B. ' Binion, alias Benny Binion, charging him in two counts with attempted evasion of his 1949 income tax. Section 145(B), Internal Revenue Code, 26 U.S.C. A. § 145(b). Defendant was arrested in Nevada.\nOn July 17, 1952, upon the written statement of the defendant that he desired to enter a plea of guilty or nolo contendere to the charge in the District of Nevada and requesting a transfer of the case to this district, and upon the written consent of the United States Attorneys for the two Districts, the papers in the proceeding were duly transmitted by the Clerk of the Federal Court for the Northern District of Texas to the Clerk of this Court.\nOn July 21, 1952, the original indictment was filed here. It was assigned a number and was duly docketed. The written request for transfer signed by Binion and bearing the written consent of the two United States Attorneys was also filed by the Clerk on the same date.\nThereafter, on August 5, 1952, and, due to the Court’s recess, before any plea was entered by the defendant, each of the United States Attorneys filed a written withdrawal of his consent to the transfer. This motion was filed at the same time.\nThis Court does not propose to worry the bone of constitutionality as to Rule 20. Thousands of cases have been transferred in reliance upon it since the Rule’s promulgation. It is true that one District Judge has held the Rule unconstitutional. See U. S. v. Bink, D.C.Or.1947, 74 F.Supp. 603. However, at least two Circuit Courts, the 3rd and the 8th, have upheld its validity, U. S. v. Gallagher, 3 Cir., 183 F.2d 342; Levine v. U. S., 8 Cir., 182 F.2d 556, and our own Circuit has inferentially sustained its constitutionality in dealing with the transfer provisions of Rule 21(a). Shockley v. U. S., 9 Cir., 166 F.2d 704. See also, “The Constitutionality of Federal Criminal Rule 20”, Cornell L.Q. 34:129.\nThe basic contention of the Government in this case, is that unless there is subsisting consent by both the United States Attorneys at the time that defendant enters his plea, there is no effective transfer under the provisions of Rule 20, and the *682transferee Court has no authority to proceed with the prosecution. Thus where, as 'here, approval has been given and then withdrawn, the case should be re-transferred to the District in which the indictment or information was returned against the defendant.\nNo authority has been cited in support of the Government’s position and, insofar.. as we have been able to determine, no prior decision has dealt with this question. We are constrained, therefore, to determine the answer upon the wording of the Rule itself, and upon settled legal principles.\nDefendant has a constitutional right to be tried in the District in which the offense has been committed. Constitution, Art. Ill, Sec. 2, par. 3; Amendment VI. Under Rule 20, however, venue will attach to a District where the defendant is arrested, other than that in which the indictment or information is pending, providing: (1) That defendant states in writing, after receiving a copy of the indictment or information, that he wishes to plead guilty or nolo contendere, to waive trial in the District in which the indictment or information is pending and to consent to disposition of the case in the District in which he was arrested; and (2) the United States Attorney for each District concerned assents. Both these conditions obtained in this case.\nUpon receipt of the statement and approval it is mandatory that the Clerk of the Court in which the indictment or information is pending transmit the papers or certified copies thereof to the Clerk of the Court for the District in which the defendant is held. This also was done, and the matter duly filed and docketed.\nThe Rule then provides that: “ * * * the prosecution shall continue in that district.” In the nature of things, at some point prior to the time the Court is competent to proceed with the prosecution jurisdiction must attach. It is a general principle of law that in transferring a cause, the Court in which the action was originally commenced loses jurisdiction, and the Court to which the proceeding is transferred has and exercises over the matter the same jurisdiction as if it had been originally commenced in the District. There is a division of authority in the State Courts as to whether jurisdiction shifts immediately upon the order or not until the physical transfer of the cause is perfected. See Corpus Juris, Venue, § 350 et seq. For our problem it is immaterial whether jurisdiction attached to the Nevada Court when each condition precedent was met (i. e. request and consent) and the Clerk of the transferor Court was under a duty to transfer the papers, or not until the transfer was effected and the cause docketed. Both of these events preceded by some two weeks the attempted revocation of consent.\nFocused from this perspective, the contention of the Government is more clearly defined. In essence, it is argued that although the transferee Court is empowered to proceed with the prosecution if a plea has not yet been entered a withdrawal of consent will strip the Court of its jurisdiction. With this I cannot agree. Just as a transferor Court no longer has jurisdiction to revoke its order changing venue, by the same measure no action of the United States Attorneys can affect the transfer. Once exercised, their power of approval or disapproval is functus officio.\nThe only divesting condition subsequent provided by the Rule is a switch of plea by the defendant to one of not guilty. The rule provides :\n“If after the proceeding has been transferred the defendant pleads not guilty, the clerk (district to which transferred) shall return the papers to the court in which the prosecution was commenced and the proceeding shall be restored to the docket of that court.”\nAs recognized in Singleton v. Clemmer, 83 U.S.App.D.C. 107, 166 F.2d 963, this is the only eventuality as to pleas which would oust the jurisdiction of the Court. Nowhere, in the Rule itself or in the notes of the Advisory Committee, does there appear any contemplation of jurisdiction flipping about at the whim of the United States Attorneys. It would seem that such a singular change in traditional concepts of venue *683if intended would have been spelled out clearly.\nThis construction of the Rule imposes upon the United States Attorneys no stricter duty to ascertain the facts before they act than is imposed upon the Courts under Rule 21, and under familiar State procedures.\nIt may be that in this case some laudatory although belated purpose of the Attorney General (not communicated to the Court) will be frustrated. I hope not. Better that, however, than that a precedent should be set enlarging the area of uncertainty and delay in judicial procedure.\nThe motion to retransfer is hereby denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"united-states-v-binion"} {"attorneys":"West & Eckhart, for plaintiff in error., Rosenthal, Hamill & Wormser, for‘defendant in error.","case_name":"West Disinfecting Co. v. Tretow","case_name_full":"West Disinfecting Company, in error v. Arthur C. Tretow, in error","case_name_short":"Tretow","citation_count":0,"citations":["216 Ill. App. 648"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1920-01-30","date_filed_is_approximate":false,"disposition":"Affirmed on authority of West Disinfecting Co. v. Koppelman, ante, p. 438.","id":8847955,"judges":"Gridley","opinions":[{"author_str":"Gridley","ocr":true,"opinion_id":8833270,"opinion_text":" Mr. Justice Gridley delivered the opinion of the court. ","per_curiam":false,"type":"020lead"}],"other_dates":"Rehearing denied February 10, 1920.","precedential_status":"Published","slug":"west-disinfecting-co-v-tretow","summary":"Error to the Circuit Court of Cook county; the Hon. Kickham Scanlan. Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919."} {"case_name":"United States v. Ravara","case_name_full":"UNITED STATES v. RAVARA","case_name_short":"Ravara","citation_count":0,"citations":["27 F. Cas. 714","2 Dall. 299"],"court_full_name":"U.S. Circuit Court for the District of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"U.S. Circuit Court for the District of Pennsylvania","court_type":"FA","date_filed":"1794-04-15","date_filed_is_approximate":true,"headnotes":"Case No. 16,122a.
International Law — Offences bt Consuls — Thkeatenino Letters—Jurisdiction of Federal Courts.
[A foreign consul, notwithstanding his official character, is indictable in this country, and triable in the federal courts, for the common-law offence of sending anonymous and threatening letters with intent to extort money.]
","id":9305559,"judges":"Jay, Peters","opinions":[{"ocr":true,"opinion_id":9300664,"opinion_text":"\nTHE COURT\nwere of opinion in the charge, that the offence was indictable, and that the defendant was not privileged from prosecution in virtue of his consular appointment. The jury, after a short consultation, pronounced the defendant guilty; but he was after-wards pardoned, on condition (as I have heard) that he surrendered his commission and exe-quatur.\nAs to the question of jurisdiction, see U. S. v. Worral [Case No. 16,766].\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"united-states-v-ravara","summary":"[This was an indictment against the consul from Genoa, for a misdemeanor in sending anonymous and threatening letters to various persons named, with a view to extort money. A motion to quash the indictment was heretofore overruled. Case No. 16,122. [The defendant was defended on the following points:] (1) That the matter charged in the indictment was not a crime by the-common law, nor is it made such by any positive law of the United States. In England it was once treason; it is now felony; but in both instances it was the effect of' positive law. It can only, therefore, be considered as a bare menace of bodily hurt; and, without a consequent inconvenience, it is no injury public or private. 4 Bl. Comm. 5; 8-Hen. VI. c. 6; 9 Geo. I. c. 22; 4 Bl. Comm. 144; 3 Bl. Comm. 120. (2) That considering the official character of the defendant, such a proceeding ought not to be sustained, nor such a punishment inflicted. The law of nations is a part of the law of the United States; and the law of nations seems to require, that a consul should be independent of the ordinary criminal justice of the place where he resides. Vatt. Law Nat bk. 2, c. 2, § 34. (3) But that, exclusive of the legal exceptions, the prosecution had not been maintained in point of evidence; for, it was all circumstantial and presumptive, and that too, in so slight a degree, as ought not to weigh with a jury on so important an issue. 2 Hale, P. C. 289; 4 Smol. Hist. Eng. p. 382, in note. Mr. Rawle, in reply, insisted that the offence-was indictable at common law; that the consular character of the defendant gave jurisdiction to the circuit court, and did not entitle him to an exemption from prosecution agreeably to the law of nations; and that the proof was as strong as the nature of the case allowed, or the rules of evidence required. In support of his argument he cited the following authorities: 4 Bl. Comm. 142,144; lLev. 140; 1 Keb. 809; 4 Bl. Comm. 180; Strange, 193; 4 Bl. Comm. 242; Crown Cir. Comp. 376; Fost. 128; Leach, 204; [Respubliea v.Teiseher] 1 Dali. [1 U. S.] 33S; 1 Sid. 108; Comb. 304; Leach, 39; Ld. Raym. 1461; [Respubliea v. Sweers] 1 Dali. [1 U. S.] 45."} {"case_name":"State v. Woods","case_name_short":"Woods","citation_count":7,"citations":["600 So. 2d 425"],"court_full_name":"Court of Criminal Appeals of Alabama","court_jurisdiction":"Alabama, AL","court_short_name":"Court of Criminal Appeals of Alabama","court_type":"SA","date_filed":"1992-02-28","date_filed_is_approximate":false,"id":1147495,"judges":"Montiel","opinions":[{"ocr":false,"opinion_id":1147495,"opinion_text":"\n600 So. 2d 425 (1992)\nSTATE of Alabama\nv.\nKenneth Billy WOODS.\nCR-90-1022.\nCourt of Criminal Appeals of Alabama.\nFebruary 28, 1992.\nRehearing Denied March 27, 1992.\nCertiorari Denied June 19, 1992.\n*426 Bruce A. Gardner, Huntsville, for appellant.\nJames H. Evans, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for appellee.\nAlabama Supreme Court 1911043.\nMONTIEL, Judge.\nThe State appeals from the trial court's dismissal of a second degree assault charge against Kenneth Billy Woods. The State contends that the trial court erroneously dismissed the charge on the grounds that Woods was denied a speedy trial.\nThe record indicates that there was no hearing held on the defendant's motion to dismiss. The trial court's order indicates that the parties agreed to submit the defendant's motion for a ruling without a hearing. The trial court's order also indicates that the State presented no evidence in opposition to the motion.\nFour affidavits are also included in the record on appeal. The affidavit of the defendant's attorney states that the motion to dismiss was filed in open court on April 2, 1991. The affidavit further states that the prosecutor told the court that the State did not dispute any of the facts alleged in the motion. The remaining affidavits, which were submitted by three assistant district attorneys, shed little, if any, light on what occurred upon submission of the motion. One of the affidavits states, however, that at a district attorneys' meeting held a few days before the trial, the attorney who had been handling the case mentioned that a speedy trial issue might arise in the case and that \"it appeared that the police may have been derelict in their duty in arresting this defendant on the warrant.\" (R. 9.) It appears from the record that the motion to dismiss on speedy trial grounds was submitted without objection by the State. The State did not dispute any of the facts stated in the motion or offer any evidence in opposition to these facts. Thus, these facts will be considered a correct statement of the events which led up the dismissal of the case.\nThe incident that was the basis of the underlying assault charge allegedly occurred at a Huntsville nightclub on August 8, 1987. The defendant was arrested on that date and charged with disorderly conduct. A warrant charging the defendant with second degree assault was issued on August 20, 1987. The defendant's parole was revoked as a result of the alleged August 8 incident. The defendant was on parole on an Alabama sentence. The defendant's parole was revoked in October 1987 and he was returned to state prison until September 1988 when he completed his sentence. Upon his release, the defendant returned to Madison County to live and to work. After his release, the defendant was stopped by police officers on routine traffic matters. He believes that record checks were done on those occasions and that no warrants were found.\nThe defendant was arrested on December 19, 1990, and was indicted on January 11, 1991. The defendant first learned of the existence of the warrant at the time of his arrest. The warrant, which is contained in the record, indicates that there was no attempt at service prior to December 19, 1990. The defendant asserted in motion that he was prejudiced by the delay between the issuance of the arrest warrant *427 on August 20, 1987, and the April 2, 1991, trial date because he could no longer recall the names of the witnesses to the incident and had no way of locating them. He also asserted that he was prejudiced because he lost any chance of having a sentence on the assault charge run concurrently with his prior sentence.\nIn order to determine whether an accused's constitutional right to a speedy trial has been violated, this court must look at the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) any prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Applying these factors, we find that the defendant was denied his right to a speedy trial.\nThe record reveals that the arrest warrant was issued on August 20, 1987. This court has recently held that an accused's right to a speedy trial is triggered when the warrant of arrest is issued. Goodson v. State, 588 So. 2d 509 (Ala.Crim.App. 1991); Steeley v. City of Gadsden, 533 So. 2d 671 (Ala.Crim.App.1988) (adopting J. Bowen's dissent in Watson v. State, 389 So. 2d 961 (Ala.Crim.App.1980)). We find that the three-year and-seven-month delay between the issuance of the warrant and the defendant's trial date was presumptively prejudicial. See, e.g., Steele v. State, 542 So. 2d 1309 (Ala.Crim.App.1988), overruled on other grounds, Turner v. State, 584 So. 2d 925 (Ala.Cr.App.1991), (three-year-and-nine-month delay was presumptively prejudicial). Thus, we must consider the remaining Barker factors.\nThe State presented no evidence to the trial court, and thus, offered no explanation for the lengthy delay. The record indicates that the defendant was incarcerated for almost a year following the incident and that he was then returned to Madison County. The record reveals no legitimate reason for the delay. The State argues in brief that the Madison County authorities had no knowledge of the defendant's location. The State bases this argument on the fact that there were no detainers filed on the defendant while he was incarcerated. This argument has no merit.\n\"The State has a constitutional duty to make a diligent, good-faith effort to gain custody of the accused and bring him to trial.\" Watson v. State, 389 So. 2d 961, 967 (Ala.Crim.App.1980) (Bowen, J. dissenting). There is no evidence that any such diligent, good-faith effort was made to locate the defendant. We can find no reason to justify the State's delay in locating the defendant. Thus, this factor must be weighed in the appellant's favor.\nThe record indicates that the appellant asserted his right approximately three months after he was indicted. Although in this particular case, he could have asserted it earlier during that three-month period, we do not consider this factor to weigh heavily against the defendant.\nLike the first two Barker factors, we find that the final factor also weighs in the defendant's favor. \"Although ordinarily a mere assertion of a loss of memory is not enough of a showing of prejudice to support a finding that a defendant has been denied due process, where the delay is excessive and is the result of unexcused inaction by the State, the delay is prima facie prejudicial.\" Ex parte Carrell, 565 So. 2d 104, 108 (Ala.1990). See also Taylor v. State, 429 So. 2d 1172 (Ala.Crim.App.1983), cert. denied, 464 U.S. 950, 104 S. Ct. 366, 78 L. Ed. 2d 326 (1983). Furthermore, the defendant showed more than impaired memory. A significant prejudice suffered by the defendant was the loss of the opportunity to have his sentence on the assault charge, if any, served concurrently with the time he served after the parole revocation. Steele v. State, 542 So. 2d 1309 (Ala.Crim. App.1988), overruled on other grounds, Turner v. State, 584 So. 2d 925 (Ala.Cr. App.1991); Taylor.\nBased on the foregoing, we find that the defendant's right to a speedy trial was violated and the judgment of the trial court dismissing the case is due to be affirmed.\nAFFIRMED.\nAll the Judges concur.\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"state-v-woods"} {"attorneys":"John P. Messina, argued, Des Moines, IA, for appellant., Michael M. Hobart, argued, Asst. U.S. Atty., Sioux City, IA (C.J. William, Asst. U.S. Atty., Cedar Rapids, IA, on the brief), for appellee.","case_name":"United States v. Mingo Flores","case_name_full":"UNITED STATES of America, Plaintiff—Appellee, v. Mingo FLORES, Defendant—Appellant","citation_count":29,"citations":["336 F.3d 760"],"court_full_name":"Court of Appeals for the Eighth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Eighth Circuit","court_type":"F","cross_reference":"See also 223 F.Supp.2d 1016.","date_filed":"2003-08-25","date_filed_is_approximate":false,"headmatter":"\n September Term, 1982.]\n
\n The cause was argued before Murphy, C. J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.\n
Mechanics Lien Act. — Section i of the Mechanics Lien Act provides for a lien ¿n favor of two classes of persons only, viz.: Those “who shall perform any labor upon, and those “who shall furnish any material for” the construction of any-building- — and no distinction can be made among those provided for by the Statute.
Filing Notice of Lien. — No distinction is made among the lien holders, whether laborers or material men, as to the time within which the notice of lien shall be filed.
Interpretation of Statutes. — A distinctive effect should not always be given to all the words of a Statute, but the true rule in this regard is that the Statute shall be so expounded, if practicable, as to give effect to every part of it, and when this cannot be done consistently with the language and intent of the Act, we are to give effect to what was manifestly the intention of the Legislature.
Material Man Must File Lien, When. — One-.who furnishes materials for th§ : construction of a building is entitled to file the notice of lien at any time within three months after the completion of building. — (Boreman, J., dissenting.)
","id":6688112,"judges":"Boreman, Emerson, Lowe","opinions":[{"author_str":"Lowe","ocr":true,"opinion_id":6567693,"opinion_text":"\nLowe, C. J.,\ndelivered the opinion of the Court.\nThe action was brought to recover compensation for materials furnished in constructing a building, and to enforce a Mechanics Lien upon the premises for the amount due. It appears from the complaint that the notice of Lien was filed in the Recorders Office more than three months after the materials were furnished, but within three months after the completion of the building.\nThe Defendants demurred, the demurrer was sustained, and the Defendants had judgment, from which the Plaintiff appeals.\nBy the first section of the Mechanics Lien Law (Acts of 1869, p. 8), it is provided “that any person who shall hereafter, by virtue of any contract with the owner (or his agent) of any building, or other improvement, perform any labor upon, or furnish any materials for, the construction or repairing of such building, or other improvement, shall upon filing the notice prescribed in the next section, have Lien, &c.”\n*254The second section provides that “any person may avail himself of the provisions of this Act, whether his claims be due or not, by filing in the Recorders Office of the county in which such building or other improvement is situated, at any time within three months after the labor performed or material furnished, or after the completion of such building, or other improvement, a notice of his inténtion to hold a Lien upon such building, &c.”\nIt is insisted by the Defendants that a proper construction of this Act requires “that the Lien must be filed, in case of labor, within three months after performing the labor; in case of material, within three months after the time when the material was furnished; in case of building, or improvement by contract, within three months after the completion of the building or improvement.”\nI cannot concur in this view of the Act. The first section of the Statute provides for a lien in favor of two classes of persons, who are described as those persons “who shall perform any labor upon, or furnish any materials for,” the construction, &c., of any building. All persons, therefore, who come within this description, are entitled to a Lien, and none others.\nThe Statute provides for no third class, and no distinction can be made among those provided for by the Statute, which the Statute does not itself make.\nThe Statute does not in terms provide for the contractor of the entire improvement as such, and does not provide for such as a distinctive class. Doubtless a general contractor for the entire job, or the person who contracts for the last work and completion of the improvement, may have the Lien, but this is because he is embraced within the language of the Act as performing labor and furnishing material, but he is embraced within it by no other designation a nd in no other sense than he who furnishes but a portion of the labor or material. The Lien is given to those who “perform any labor” or “furnish any materials,” and the lien may be secured by filing in the Recorders Office, “at any time within three *255months after the labor performed or material furnished, or after the completion of such building, a notice, &c.” No distinction whatever is made among the Lien holders as to the time within which the Lien shall be filed.\nThe Statute says : “Any person may avail himself of the provisions of this Act, * * by filing in the Recorders Office, * * * at any time within three months after the labor performed or material furnished, or after the completion of such building,” a notice, &c. It seems to me plain that one rule as to time is made for all. I think “any person” means “any person” entitled to the Lien, and he may file within three months from furnishing the labor or material, or in three months from the completion of the building. The alternative is expressly stated as to all, and hence the option is given to all. There is no third class to be provided for, or as to whom a distinction can be made.\nBut it is urged, that if this construction of the Statute be adopted, that part of the second section which provides that the notice may be filed within three months from the time the labor is performed or the material furnished, becomes imperative, as that is necessarily embraced in the subsequent clause, giving three months from the completion of the building, and that in obedience to the rule of construction that some operative effect should be given to all the words of a Statute, the interr pretation contended for by the Defendants should be adopted. The rule that a distinctive effect should be given to all the words of a Statute is not imperative. It is not a very strange occurrence in Statutes to find cumulative or superfluous words. The true rule in this regard I take to be this, that the Statute shall be so expounded, if practicable, as to give effect to every part of it, but when this cannot be done consistently with the language and intent of the Act, we are to give effect to what was manifestly the intention of the Legislature. Sedgwick on Statutory and Constitutional Law,' p. 238.\nThere is also another rule of interpretation which should not be overlooked, and that is that Statutes are *256to be read according to tlie obvious and natural import of their language, and the construction I have given seems to be within this rule.\nBut the construction of the second section contended for, that the three months’ limitation of notice applies to those who perform labor and furnish material, to. the exclusion of the right to file within three months after completion of the building, would be equally obnoxious to the rule that effect should be given to all the words of a Statute; for upon such construction the words giving three months after the completion of the building become inoperative and superfluous. In the case supposed of a contractor for the entire work, he is entitled to a Lien only because he is embraced within the description of persons who perform labor and furnish material, and as such he must file his notice within three months from the time of performing the labor and' furnishing the material, and hence as to him the three months would be three months from the completion of the building, and the express words of three months from the completion of the building become uséless and inoperative. So that by the Defendants interpretation nothing is gained in reconciliation to the suggested rule of construction.\nThe language of the second section seems not to have been very well guarded and selected, but I am clearly of the opinion that the object and intent was to give to all parties entitled to a Lien under the Act, privilege of filing the notice at any time' within three months after the completion of the building. Some support, I think, is derived to this view, if it were necessary, from the fourth section, which requires that in a suit for enforcing the Lien the time of completing the building should be averred. This could be of no possible avail if the notice was’ to be filed in all cases within three months from the furnishing of labor or material.\nA question i$- made in argument as to the effect of a conveyance . of' the. premises after the furnishing of the material; and before the filing, of the Lien, but as no such question is made by the Record,. X .forbear to, comment upon it.\n*257The judgment should he reversed and the cause remanded for further proceedings.\nEmerson, J., concurred.\n","per_curiam":false,"type":"020lead"},{"author_str":"Boreman","ocr":true,"opinion_id":6567694,"opinion_text":"\nBoreman, J.,\ndelivered the following dissenting opinion:\nI cannot concur in the views expressed in the opinion just rendered. The only point in the case has reference to the proper construction of section 2 of the Mechanics Lien Law. Laws of Utah, 1869, p.. 8, Ch. 12, section 2.\nThe Mechanics Lien Law is in derogation of the Common Law, and must be strictly construed. 2 Cal. 90; 29 Cal. 286; 13 Gray 132. Andit is a well established rule of construction that every part of a Statute should have effect given to it, if it be reasonable, and not inconsistent with the plain purpose of the Law.\nThe second section of the Lien Law referred to, says, that any person may avail himself of the provisions of the Act by filing in the RecorderV Office, “at any time within three months after the' labor- performed or the material furnished, or after the completion of such building or other, improvement, a notice of 'his intention to hold a Lien.”\nWe can only give effect to every part of this provision by saying, that it was intended that every man should have three months after his contract was finished. in which-to file his Lien. In other words, the laborer was to have three months after he had finished his work; the material man was to have three months after he had finished his work of delivering material, and that those having charge of erecting the building, and who furnished both material and labor, and whose contract was to end with the completion of the building, or other improvement, were to have three months after their work was completed.\nBy this construction every part of the section -has effect given to it, and the construction does not seem to be unreasonable, every one being required under it to *258proceed to secure himself by Lien within three months after he was through with his contract.\nIf we say that all had until three months after the completion of the building, we render useless those words “after labor performed or material furnished.” And I conceive that we have no right to do this, especially when there seems to be no necessity therefor. Men who depend upon such construction would be led to often rest easy in regard to their Liens, until the three months after “labor performed” or after “material furnished” had expired, intending to claim their Lien within that time, after the completion of the building, and the building is never completed. Is it not more reasonable to hold out no such inducement, but let every man understand that he must file his Lien within the three months after he is done with his work ?\nAttention of the Court is again called to Section 4 of the Lien Law, and especially that part of it which requires the complaint to state “the time when the building 01- other improvement was completed, if it be completed.” I cannot see that that affects the interpretation given to Section two. The inference which is supposed to be drawn, is, that thereby the construction given by the Court on the former hearing was incorrect, and that “three months after the completion of the building or other improvement,” was the time given to all claiming Liens.\nSuch an inference is vague, but might.be drawn from the language, if there were no other sections to dissipate the inference. In Section 3, the Statute of Limitation-is fixed at “one year after the completion of the building or other improvement!” By concluding that the language of Section 4 referred to the same words in Section 3, we give effect to the whole' Statute, and there is nothing unreasonable in such construction.\nPlaintiffs'claim that the construction here given to the Statute, would in some instances destroy the Lien the Statute was given to secure, and instances the case of an entire contract to furnish materials, so much per month, and claims that by such construction the party loses his *259Then for all material furnished after the end of the first three months. Such an inference cannot possibly he drawn from the construction given. But one Lien would attach in such a case, and it would be for all of the material furnished under the contract, and must be filed within three months after the last material is furnished. 47 Cal. 87, Cox v. Western Pacific R. R. Co.; 14 Cal. 18, Same v. Same; Stone v. Austin, 9 Mo. 554; Viti v. Dixon, 12 Mo. 479; Squires v. Fathian, 27 Mo. 134.\nThe Appellant lays much, stress upon the fact that but one point was argued in the Court below, and that it had reference to a sale of the property upon which the Lien was demanded, and says that it supposed, and well might suppose, that this point “would be the 'point upon which the Superior Court would determine the case as far as the Lien was concerned.”\n.This Court held at the former hearing that the complaint did not show a sale or transfer of the property, and this statement is very earnestly objected to. The Court could not find otherwise. The complaint does not show any sale or transfer, and the Appellant took occasion in its briefs at the former hearing to three times remind the Court of this fact. Hence it was not a matter to which the attention of the Court had not been called. But aside from this fact, it was the duty of the Court to notice so glaring a defect of statement, upon the well settled practice that an appellate tribunal will notice any material defects which are apparent, even though neither party ask the Court so to do. This is the practice in the United States Supreme Court, and of appellate Courts generally.\n","per_curiam":false,"type":"040dissent"}],"precedential_status":"Published","slug":"eclipse-steam-manufacturing-co-v-nichols","summary":"A.ppeal from the Third District Court. Action to foreclose a Mechanics Lien. At the preceding Term of the Court the judgment of the Lower Court was reversed; but upon the main point, as to the time within which a material man must file his Notice of Lien, the opinion then rendered affirmed the action of the Court below. Upon petition, a rehearing' ivas granted, and after argument the following . opinion was rendered by a majority of the Court. made the following points •: . That material furnished.,/or a building, although not actually used in its construction,. constitutes a lien, if there is no fraud or collusion on the part of the material used. Herschman- v.- Graham, -2 S. & R. 170'; Harker v. Conrad, 12 S. & R. 303; O. E. Hall v. Mánn, 12 Harris 507. Machinery subjects of a lien. Wademan v. Thorp, 5 Wen. 115. Lien relates back from tire filing, to date of commencement of the work, and has priority to intermediate conveyance. In re Coulter, 2 Sawyer 42, and cases cited. Keller v. Desmond, 68 Penn. 449 ; U. S. Digest, New Series, vol. 3-444, Secs. 16 and 18; Fleming v. Baum-garner, 29 Ind. 425 ; U. S. Digest, vol. 29, p. 424, Sec. 17; U. S. Digest, 27 p. 409, Sec. 21; Sec. 7'Mechanics Lien Law, p. 8 ;■ McCrea v. Craig, 23 Cal. 525 ; Soule, &c., v. Daws, 7 Cal. 576 ; Weaver v. Sells, 10 Kans. 619. Workman, contractor and material man, have each and all of them the right to file their Lien at any time within three months after building is completed. See argument on rehearing.- No Brief on file."} {"attorneys":"S. C. Mize, of Gulfport, Miss. (Mize & Mize & Thompson, of Gulfport, Miss., and Carl Marshall, of Bay St. Louis, Miss., on the brief), for plaintiffs in error., John L. Heiss, of Gulfport, Miss., and W. L. Guiee, of Biloxi, Miss., for defendant in error.","case_name":"Myer v. Hale","case_name_full":"Miss Helen MYER and Mrs. Emma Robin, in Error v. Miss Irma A. HALE, in Error","case_name_short":"Myer","citation_count":0,"citations":["18 F.2d 1019"],"court_full_name":"Court of Appeals for the Fifth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Fifth Circuit","court_type":"F","date_filed":"1927-04-18","date_filed_is_approximate":false,"id":6938142,"judges":"Bryan, Foster, Walker","opinions":[{"ocr":true,"opinion_id":6834940,"opinion_text":"\nPER CURIAM.\nThe judgment is affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"myer-v-hale"} {"attorneys":"Mr. James K. Edsall, for the plaintiffs in error., Mr. George P. Goodmak, for the defendants in error.","case_name":"Brill v. Stiles","case_name_full":"Henry Brill v. Elias B. Stiles","case_name_short":"Brill","citation_count":0,"citations":["35 Ill. 305"],"court_full_name":"Illinois Supreme Court","court_jurisdiction":"Illinois, IL","court_short_name":"Illinois Supreme Court","court_type":"S","date_filed":"1864-04-15","date_filed_is_approximate":true,"id":7048004,"judges":"Walker","opinions":[{"author_str":"Walker","ocr":true,"opinion_id":6951316,"opinion_text":" Mr. Chief Justice Walker delivered the opinion of the Court: This was a bill in chancery, filed to establish a prior entry of a tract of land, from the United States government, and to enjoin a suit in ejectment, instituted for a recovery, under the junior entry. The bill alleges, and the answer admits, that Bockafeller entered the premises in controversy, at the proper land office, on the 17th day of December, 1853, and received a certificate of purchase for the same. That being entered with a military land warrant, the sale was subject to be defeated by a preemption being proved at any time within thirty days after the sale. The bill alleges that no such preemption was proved, within thirty days after the entry of Bockafeller. That complainant purchased the land of him, on the 16th day of September, 1854, and went into the actual possession of the same, and had so continued till the time he filed the bill. It likewise appears from the bill and answer, that Soule entered the land, at the same office, on the 16th day of June, 1855. Upon this latter entry a patent was issued, dated on the first day of ¡¡November, 1855, and that Soule conveyed to Stiles on the 18th day of July, 1856. It also appears that no patent ever issued on the first entry made by Bockafeller. The answer admits all of the material charges in the bill, but seeks to avoid their operation by the allegation that the first entry, for some cause unknown to defendant, was void and the commissioner of the general land office so decided, and vacated the entry. A replication was filed to the answer. Afterwards defendant moved the court to dismiss the bill for want of equity, which motion was allowed and a decree entered accordingly, to reverse which, this cause is brought to this court. A purchaser of land by agreement, acquires an equitable title, when he has completed his part of the contract, by paying the purchase-money, and receiving written evidence of the agreement of the vendor to convey the premises. Such a title may always be asserted in a court of equity, against the holder of the legal title, whether in the vendor or his vendee, with notice. But at law such a title is not regarded, and is unavailing for a recovery or defense against the legal title. Such a purchase of the government, when made in pursuance of law, confers upon the purchaser the equitable title to the premises, to the same extent as a sale by an individual owning the fee. Rogers v. Brent, 5 Gilm. 573. In determining upon the validity of a title derived from the government, the same rules apply as from an individual. In the case of Isaacs v. Steel, 3 Scam. 97, it was held that in equity, a junior patent or register’s certificate of entry, will prevail over the elder one, if the right on which it is based is prior, in point of time, to that upon which the elder patent or certificate is founded. And in the case of Bruner v. Manlove, id. 339, the same rule is announced and adhered to. It then follows from these authorities, that the register’s certificate of purchase, to Bockafeller, being prior in point of time, to the patent issued to Soule, it conferred an equitable title, until that purchase was legally vacated. The certificate itself provided that it might be done upon proof being made, within thirty days, of a right to a preemption. But there is no pretense that there was any such proof made. Nor does it appear that the first entry was illegally made. It is true that the answer alleges the entry was void and had been canceled by the commissioner of the general land office. But no reason is given, or facts shown, why that entry was void. The mere fact that it was so declared by the commissioner of the general land office, did not have the effect of vacating the entry. He is not a judicial officer, and has no power to decree the rescission of contracts. His determination in reference to the validity of that sale, concluded no one in his rights. Rogers v. Brent, 5 Gilm. 573, and authorities there cited. The power to adjudge and determine upon the validity of a contract, and to hold them void, devolves alone upon the judiciary. The cancellation of the entry by the commissioner, was not, therefore, evidence that the first entry was illegal, but that should have been shown by other and legitimate evidence. And until proved to be void, it was binding upon the government, and its subsequent grantees. Nor could the agents of the government, by any act of theirs, prejudice the rights of those claiming under Bockafeller. If the entry was authorized by law, the title passed to him, subject only to be defeated by proof of a right of preemption, and if unauthorized, he acquired no title. But until it is shown to have been illegally made, or to have been defeated by proof of a preemption, the certificate of purchase was evidence of an equitable title. According to the uniform practice in courts of chancery, the equity of a bill can only be questioned on demurrer or on the hearing. Whether a bill shows a right to relief cannot be determined upon motion. In this case the cause should have been set down for hearing upon bill, answer, replication and proofs. The defendant, by interposing his answer to the bill, waived the right to demur, and this motion can be considered nothing else but an oral demurrer. He could not both demur to and answer the same allegations at one time. After answer, it is too late to demur unless the answer is first withdrawn. The court below having erred in dismissing the bill, the decree must be reversed, and the cause remanded. Decree reversed. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"brill-v-stiles","summary":"Writ of Error to the Circuit Court of Lee county; the Hon. John Y. Eustace, Judge, presiding. This was a suit in chancery instituted in the court below by Henry Brill and Agesilaus RockafeHer against Elias B. Stiles and Frederick A. Soule. The facts of the case sufficiently appear in the opinion of the court. After an answer to the bill and replication thereto, the defendants entered their motion to dismiss the bid for want of equity upon ¡its face; this motion the Circuit Court sustained, and entered ¡ a decree dismissing the bill. The complainants thereupon sued out this writ of error. ' The .principal questions arising upon the record, are as to the character of title acquired by a purchaser of land from the government, who receives simply a certificate of purchase thereof; whether the title thus acquired can prevail against a patent for the same land, based upon a subsequent entry, the prior entry having been declared vacated by the commissioner of the general land office; and herein of the power of such commissioner to declare a purchase of land from the government to be void.","syllabus":"1. Equitable title—what constitutes. A purchaser of land by agreement, acquires an equitable title, when he has completed his part of the contract, by paying the purchase-money, and receiving written evidence of the agreement of the vendor to convey the premises.
2. Same—may he asserted in equity. Such a title may always he asserted in a court of equity against the holder of the legal title, whether in the vendor or his vendee, with notice.
3. Same—not availing at law. But at law, a merely equitable title is not regarded, and is unavailing for a recovery or defense against the legal title.
4. Same—acquired hy purchase from the government. When a party purchases land from the government, by entry in the proper office, in pursuance of law, and receives a certificate of purchase therefor, he acquires the equitable title to the premises to the same extent that he would by a purchase from an individual owning the fee.
6. Construction of title derived from the government. In determining upon the validity of a title derived from the government, the same rules apply as when derived from an individual
6. Priority as between afumar amd elder patent or certificate of entry, how determined. In equity, a junior patent from the government, or a register’s certificate of entry, will prevail over the elder one, if the right on which it is based is prior in point of time, to that upon which the elder patent or certificate is founded.
1. So a certificate of entry will prevail, in equity, over a patent based upon a subsequent entry, unless the prior entry has been legally vacated.
8. Vacating an entry—powerof the commissioner of the general land office. The mere fact that an entry has been declared void by the commissioner of the general land office does not have the effect of vacating the entry. He is not a judicial officer, and has no power to decree the rescission of contracts. His determination in reference to the validity of a sale of the public lands concludes no one in his rights.
9. Practice in chancery — an answer waives the right to demur. A defendant in chancery cannot demnr to, and answer the same allegations in the bill at the same time. And after answer, it is too late to demur, unless the answer is first withdrawn.
10. Same—of a motion to dismiss the hill for want of equity—and herein of ike office of a demurrer. A motion to dismiss a bill in chancery for the want of equity on the face of the bill, is nothing more than an oral demurrer. But whether a bill shows a right to relief cannot be determined upon motion. The equity of a bill can be questioned only by demurrer, or on the hearing.
"} {"attorneys":"Nancy A. Daniels, Public Defender; Carl C. McGinnes, Assistant Public Defender, Tallahassee, for Appellant., Robert A. Butterworth, Attorney General; Jean-Jacques A. Darius, Attorney General, Tallahassee, for Appellee.","case_name":"Pierce v. State","case_name_full":"Raiford PIERCE v. STATE of Florida","case_name_short":"Pierce","citation_count":0,"citations":["676 So. 2d 69"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1996-07-09","date_filed_is_approximate":false,"id":7760745,"judges":"Lawrence, Mickle, Webster","opinions":[{"ocr":true,"opinion_id":7698416,"opinion_text":"\nPER CURIAM.\nRaiford Pierce (Pierce) appeals the judgment and sentence imposed upon him after he violated his probation. We affirm in part, and reverse in part.\nPierce pleaded no contest to four criminal offenses: burglary of Walker’s dwelling, committed on November 22, 1993; trafficking in stolen property, on November 22, 1993; burglary of Jones’s dwelling, on November 19, 1993; and burglary of Murphy’s dwelling, on November 19, 1993. The trial judge sentenced Pierce to one year in jail, followed by two years’ probation, and restitution.\nThe trial judge found that Pierce violated probation by resisting arrest without violence, committed on February 13, 1995, and *70by failing to make ordered restitution. The judge’s finding that Pierce violated probation is supported by competent substantial evidence. We thus affirm the revocation of Pierce’s probation.\nThe judge orally sentenced Pierce to forty-two months in prison, with credit for time “in custody on the original charge and on the arrest for violation of probation.” The record reveals that Pierce spent at least 238 days in confinement.1 The judge’s written order however awards Pierce only 180 days’ credit. The oral pronouncement of sentence controls. Harrelson v. State, 620 So.2d 1131 (Fla. 1st DCA 1993).\nWe therefore affirm the revocation of Pierce’s probation, and affirm his forty-two-month prison sentence. We however reverse his sentence insofar as it awards only 180 days’ credit for time served, and remand for a determination of the correct amount of time to be credited, and for the correction of Pierce’s sentence accordingly.\nWEBSTER, MICKLE and LAWRENCE, JJ., concur.\n\n. Pierce, at the imposition of his sentence on May 17, 1994, was credited with 52 days. The record in addition contains testimony that Pierce was released from jail on November 19, 1994; the time from May 17 to November 19 is 186 days.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"pierce-v-state"} {"attorneys":"Buc\\, McCoo\\ Kenyon, of Hartford, for the Plaintiff., Edward M. Rosenthal and Danaher & Dandher, both of Meriden, for the Defendants.","case_name":"Burgey v. Bochinski","case_name_full":"Ruth A. Burgey v. Stephen Bochinski","case_name_short":"Burgey","citation_count":0,"citations":["16 Conn. Supp. 427"],"court_full_name":"Pennsylvania Court of Common Pleas","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Pennsylvania Court of Common Pleas","court_type":"ST","date_filed":"1950-02-20","date_filed_is_approximate":false,"id":7916361,"judges":"Fitzgerald","opinions":[{"author_str":"Fitzgerald","ocr":true,"opinion_id":7865529,"opinion_text":"\nFITZGERALD, J.\nThis is an action to foreclose a judgment lien. The action was originally instituted by writ, summons and complaint served on September 22, 1948, and returned to court on the first Tuesday of the following month. At the outset Stephen Bochinski was the sole party defendant. By his answer filed on November 1, 1948, this defendant denied that he is the sole owner of the premises described in the plaintiff’s complaint, alleging that by his deed to his brother, W. B. Bochinski, on July 9, 1936, he gave the latter an undivided one-half interest in the premises. Thereafter the plaintiff moved to cite in as additional defendants W. B; Bochinski, Antoinette C. Bancroft and Fred R. Bancroft, which motion was granted by the court. On November 29, 1948, the plaintiff’s amended complaint was filed. Issues have been joined by the defendants Stephen Bochinski and W. B. Bochinski. The defendants Bancroft suffered a default on March 4, 1949, for failure to appear. In this form the case came before the court for adjudication on January 31 last.\nThe contesting defendants conceded at the trial that the material allegations of the amended complaint insofar as they are concerned are correct, with the exception of the allegation of paragraph 1 therein relating to the sole ownership of the defendant Stephen Bochinski. Hence the question for decision *428is what status should, be accorded the defendant W. B. Bochinski under the quitclaim deed from his brother on July 9, 1936, which was not recorded; until September 28, 1948..\nIt is to be specifically noted that on September 12, 1945, the . plaintiff’s attachment for $50,000 was recorded; that on April 5, 1948, a judgment lien thereon in the amount of $38,119.94 was recorded; and that the quitclaim from the defendant Stephen Bochinski to the defendant W. B. Bochinski of a one-half interest in the premises, while dated July 9, 1936, was not recorded until September 28, 1948.\nThe following situation admittedly appears of record regarding the quitclaim deed: (1) it was recorded twelve years and some months after its execution; (2) it was recorded three years and some weeks after the recording of the plaintiff’s attachment; (3) it was recorded five months and some weeks after the recording of the plaintiff’s judgment lien; and (4) it was recorded six days after the initial commencement of this action.\nSection 7091 of the General Statutes, which goes back a vast number of years to earlier revisions of the statutes, reads so far as is here material: “No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies.” In many jurisdictions judgment creditors are not accorded protection under statutes similar in phraseology to the Connecticut statute. See 45 Am. Jur. 513. But this is not the rule which obtains in Connecticut. “Though differing from the rule in some of our States, it is the law of Connecticut that the lien acquired by the attachment of a creditor of the grantor of a deed not recorded within a reasonable time, is superior to the title of the grantee of such deed, in the absence of notice to the attaching creditor of the existence of such deed.” Newtown Savings Bank v. Lawrence, 71 Conn. 358, 364.\nIt is found that the quitclaim deed was not recorded within a reasonable time after its execution; that the plaintiff had no knowledge of its existence until after this action was instituted; and that the. explanation of the delay in recording the deed (testified to as forgetfulness) should not be permitted to inure to the benefit of the contesting defendants. Newtown Savings Bank v. Lawrence, supra; Newman v. Gaul, 102 Conn. 425, 433; Apstein v. Sprow, 91 Conn. 421, 423; Rosenbluth v. Deforest & Hotchkiss Co., 85 Conn. 40, 46; and see Waterman v. Buckingham, 79 Conn. 286, 292, for the basis of the decision *429in the Newtown Savings Bank case and the controlling importance of the statute regarding unrecorded deeds as distinguished from the enforcement of equitable rights apart therefrom.\nThe conclusion reached is that the defendant W. B. Bochinski has no standing in this action under his quitclaim deed of July 9, 1936, which was not recorded until September 28, 1948. Cases cited on his behalf are deemed not to be pertinent to the question at issue. The controlling principles are considered to be those contained in the cases here cited, and are held to support the conclusion stated.\nJudgment of foreclosure may enter. Principal indebtedness is found to be $38,119.34 with interest thereon of $4382.75 making a total debt of $42,502.09. The market value of the property does not exceed $15,000 and there are incumbrances antedating the plaintiff’s attachment and lien. Law day is set for the defendant Stephen Bochinski on March 20, 1950, and the following day for the defendants Bancroft. Judgment file to be submitted by plaintiff’s counsel within two weeks for approval as to form and signature of the court.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"burgey-v-bochinski"} {"attorneys":"S. H. Hudson and J. C. Haynes, for appellant., Edward E. Webster and Marshall A. Spooner, for respondent.","case_name":"Wilcox v. Leominster National Bank","case_name_full":"Estelle W. Wilcox v. Leominster National Bank","case_name_short":"Wilcox","citation_count":0,"citations":["43 Minn. 541"],"court_full_name":"Supreme Court of Minnesota","court_jurisdiction":"Minnesota, MN","court_short_name":"Supreme Court of Minnesota","court_type":"S","date_filed":"1890-06-23","date_filed_is_approximate":false,"headnotes":"Docketed Judgment — Priority over Equity to Reform Deed. — A docketed judgment takes precedence not only of an unrecorded deed by the judgment debtor in whom the title to real estate appears of record, but of an equity against him, — such, for instance, as an equity to have a recorded deed reformed so as to include the real estate, — of which the judgment creditor has no notice.
Tenant in Common — Possession—Hotice.—A tenant in common of real estate in possession is presumed to be in under his own title, and not in right of his cotenant; and the possession is therefore, of itself, notice only of his own title.
","id":8011660,"judges":"Gilfillan","opinions":[{"author_str":"Gilfillan","ocr":true,"opinion_id":7966568,"opinion_text":"\nGilfillan, C. J.\nThe action is under the statute to determine adverse claims to real estate. On and prior to February 23, 1886, A. G. and W. F. Wilcox each owned an undivided half of a tract of land of 640 acres, constituting one farm, including the land in controversy; and on that day said A. G. and this plaintiff, his wife, executed a deed which was intended to convey the entire farm to one Thornburgh, and he executed a deed of conveyance to plaintiff, the purpose of the two deeds being to vest in her title to the undivided half theretofore owned by A. G. By mistake of the scrivener who drew the deeds, the description of the land in controversy was omitted. The deeds were recorded February 26, 1886. On discovering the mistake, on December 31, 1887, A. G. and the plaintiff executed a conveyance to Thornburgh, and he executed one to plaintiff, both cor*542rectly describing the 640-acre tract. These deeds were recorded February 28, 1888. But meantime, and just prior to recording them, a judgment in favor of this defendant against A. Gf. Wilcox was docketed in the county. Neither plaintiff nor A. G. Wilcox was ever in personal possession of the land. Up to the execution of the first deed, W. F. Wilcox was in possession, raising and breeding stock for himself and A. G. At the execution of said deed, A. G. transferred his interest in the stock and business to plaintiff, and W. F. continued the business and management of the farm, and to reside upon it as formerly, till the trial. The defendant had no notice of the transactions, unless it might be charged with it from the possession of W. F. The facts with reference to the business were not known to it till after the docketing of its judgment.\nThe statute giving effect to registration of deeds (Gen. St. 1878, c. 40, § 21) places a docketed judgment upon the same footing as a recorded conveyance, and gives to it precedence over an unrecorded deed, unless the judgment creditor have other notice of the unrecorded conveyance. Lamberton v. Merchants’ Nat. Bank, 24 Minn. 281; Dutton v. McReynolds, 31 Minn. 66, (16 N. W. Rep. 468.) In the absence of notice to the defendant, this would dispose of the case, unless, as plaintiff seems to claim, her mere equity to have the deed reformed makes her position superior to what it would be with a perfect but unrecorded deed. This cannot be. The purpose of the statute is to protect purchasers, and attachment and judgment creditors, against claims to the real estate of which they have no notice by the record or otherwise. This would be as effectually defeated by allowing a mere equity, of which the judgment creditor has no notice, to displace the lien of his judgment, as by allowing a legal unrecorded title to have that effect. The record, as it stood when the judgment was docketed, contained no notice of any right in plaintiff, legal or equitable, except to the land described in her deed.\nW. F. Wilcox was a tenant in common of the land. As such, he had a right to the exclusive possession as against all the world but his cotenant. His possession was notice of his own title, but it could not be notice of change of title on the part of his cotenant. He would be presumed to be in of his own right; by virtue of his own *543title, and not under his cotenant’s title. Notice that he was also holding under his cotenant would undoubtedly be notice also of his cotenant’s title. But his mere possession would not be notice that he was in under any one but himself. So that his possession alone was not notice of any equity that had arisen between his original co-tenant and the plaintiff.\nJudgment affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"wilcox-v-leominster-national-bank","summary":"Appeal by plaintiff from a judgment of the district court for Swift county, where the action was tried by Baxter, J."} {"attorneys":"W. J. Quinn, for appellant., C. D. Gould, J. T. O’Donnell and T. Kilbride, for respondent.","case_name":"State v. Woods","case_name_full":"STATE v. ED. WOODS","case_name_short":"Woods","citation_count":0,"citations":["137 Minn. 347"],"court_full_name":"Supreme Court of Minnesota","court_jurisdiction":"Minnesota, MN","court_short_name":"Supreme Court of Minnesota","court_type":"S","date_filed":"1917-06-29","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"Municipal corporation — violation of ordinance — evidence.
Defendant was convicted of violation of the so-called vagrancy ordinance of the city of Minneapolis. The evidence is sufficient to sustain the verdict.
","id":8023062,"judges":"Hallam","opinions":[{"author_str":"Hallam","ocr":true,"opinion_id":7978642,"opinion_text":"\nHallam, J.\nDefendant was convicted in the municipal court of the city of Minneapolis of violation of the so-called vagrancy ordinance and was sentenced to serve 90 days in the workhouse. Defendant appeals.\nThe charge, stripped of legal verbiage, is that on February 5, 1917, *348defendant (1) was without any visible means of support; (3) that he lived idly without lawful employment, and (3) wandered about the streets of the city; (4) not having any known place of residence; (5) that he was found traveling about the city begging; (6) was loitering about saloons, gambling resorts and houses of ill fame, without giving a good account of himself, contrary to an ordinance of the city. The ordinance makes each of such acts a misdemeanor. No objection is raised to the validity of the ordinance. The objection made on this appeal is that the evidence does not sustain a conviction on any one of the charges made.\nA witness named London testified as follows: He saw defendant at about 5:20 p. m. February 5 at the busy corner of Sixth street and Hennepin avenue in Minneapolis. Defendant had a companion with him. A street car stopped to take on passengers. A large crowd, probably 35 people, were waiting to board the car, and when the car stopped they did do so. Others were alighting from the car. Defendant and his companion were within the safety zone, that is, within the ropes that protect passengers boarding and alighting. Defendant crowded against the passengers who were boarding the car, and put his hand under the coats of some of them. He did not attempt to board the car and after the gates were closed he moved back. As he did so, he said to his companion: “Did you get anything yourself” and as they waited by the safety ropes he further said: “Wait and we will get another one.” A police officer approached and defendant and his companion walked away and separated. The officer followed defendant and he walked briskly away. Police officers testified that, when arrested, defendant claimed to be employed in St. Paul. He gave conflicting stories as to his employment. To one police officer he said he had worked in a hotel for a year but did not know the name of the proprietor; said he was in Minneapolis alone; later admitted he was not working; said “you know what my racket is;” said he was in Minneapolis with two certain noted pickpockets. He had on his person $70, distributed in four pockets. Pie claimed on the stand he had saved this out of a salary of $13 a week. On the stand he further testified that he *349came from St. Paul to Minneapolis; that he was going to a cleaning establishment near Tenth street and Hennepin avenue to see about an overcoat he had left there last fall and had been unable to get back; that he had been in communication with the establishment right along, but did not know the name of the proprietor or of any one connected with it; that he came from St. Paul to Minneapolis alone and saw no one while in Minneapolis; that he got off his car at Fifth and Hennepin, walked down Hennepin to Washington avenue looking in all the shop windows on his way; that he stoppped 20 or 25 minutes on Washington avenue, walked back as far as Seventh street and then concluded it was too late to go to Tenth and Hennepin for his overcoat, yet he was not due in St. Paul until 7 o’clock, and he could make the trip in • half the intervening time.\nDefendant was not guilty of-all the charges made against him, but it seems reasonably clear that the evidence is sufficient to sustain a finding that defendant was living idly without lawful employment, and was wandering about the streets of the city, not having any known place of residence or abode, without giving a good account of his conduct.\nThe judgment of the municipal court should be affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-woods","summary":"Defendant was charged under the city ordinance of Minneapolis with the crime of vagrancy, tried in the municipal court of Minneapolis before Montgomery, J., and convicted. From the judgment entered pursuant to the order for judgment, defendant appealed."} {"case_name":"ABM Indus. Inc. v. Castro","case_name_full":"ABM INDUSTRIES INCORPORATED v. Marley CASTRO","case_name_short":"Castro","citation_count":0,"citations":["137 S. Ct. 82","196 L. Ed. 2d 36"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2016-10-03","date_filed_is_approximate":false,"id":8426709,"opinions":[{"ocr":true,"opinion_id":8397065,"opinion_text":"Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"abm-indus-inc-v-castro"} {"attorneys":"Samuel Park, for libelant., Stewart & Macklin, for defendant.","case_name":"Thames Towboat Co. v. Central R. of New Jersey","case_name_full":"THAMES TOWBOAT CO. v. CENTRAL R. CO. OF NEW JERSEY","citation_count":0,"citations":["61 F. 117"],"court_full_name":"District Court, D. Connecticut","court_jurisdiction":"Connecticut, CT","court_short_name":"D. Connecticut","court_type":"FD","date_filed":"1894-04-07","date_filed_is_approximate":false,"headnotes":"Collision—Tugs on Grossing Courses.
Tugs on crossing courses at night saw each other a, quarter o£ a mile apart. Each whistled, and shortly afterwards ported her helm. About a minute later, danger signals were exchanged, and each reversed until collision. The one having the other on her starboard hand was incumbered by two car floats. Held, that it was her plain duty, on discovering the oilier, to immediately reverse in order to keep out of the way (rules 19 and 21, § 4233, Rev. St.), and that the special circumstance rule (No. 24) had no application. The Emma Kate Ross, 41 Eed. 826, and 46 Fed. 872, applied.
","id":8863921,"judges":"Townsend","opinions":[{"author_str":"Townsend","ocr":true,"opinion_id":8849474,"opinion_text":"\nTOWNSEND, District Judge.\nOn the evening of December 5, 1892, at about 7:40 o’clock, the libelant’s steam tug Nathan Hale, 135 feet long, 750 horse power, left Brown’s dock, Jersey City, to go down the North river to Jersey fiats for a tow, taking a south and west course, parallel to the Jersey shore, and about a quarter- of a mile out therefrom. On the same evening the respondent’s steam tug Red Ash, 95 feet long, started from Thirty-Second street, East river, to go to respondent’s pier No. 6, at Communipaw, N. J. She rounded the Battery at a distance of about 600 feet, and took a westerly course across the river towards said pier. She had a loaded car float lashed on either side, the heavier float being on her starboard side. So far as is material to this case, each boat carried regulation lights, had a sufficient; lookout, and was properly officered and manned. It was a moonlight night, the tide was flood, and there were no vessels near to interfere with the navigation of the tugs.\nThe captain of the Nathan Hale saw the Red Ash when she was about; a quarter of a mile distant, and about five points on bis port bow, and gave a signal of one whistle, which was immediately answered by one whistle from the Red Ash. In about a minute the *118captain of the Red Ash gave an alarm whistle, which was answered by an alarm whistle, followed by three short whistles, from the Hale. Four witnesses from \"each vessel swear that, immediately after the first whistle, each tug ported her wheel, and, after the alarm whistle, each stopped and backed full speed, and continued so to back until they collided, the port bow of the Nathan Hale striking the starboard side of the starboard float. There is no testimony in the case other than that of the aforesaid witnesses, except as to the angle of collision. The time between the first whistle from the Hale and the collision was probably about two or three minutes.\nThe libelant claims the Red Ash was in fault in that, having the Nathan Hale on her starboard side, she failed to obey rule 19, § 4233, Rev. St. U. S., and keep out of the way of the Nathan Hale. The testimony of the Red Ash witnesses shows that the course of the Red Ash was not changed. The reason alleged by them is that the boat was backed immediately after the wheel was put to port, and, owing to the heavier float being on the starboard side, she backed nearly straight. The respondent claims that while, ordinarily, under said statutory rule 19, it would have been the duty of the Red Ash to keep out of the way of the Hale, yet, under the circumstances of this case, rule 24 is applicable. Said rule provides that “in construing and obeying these rules due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case rendering a departure from them necessary in order to avoid any immediate danger.” In support of this claim, respondent alleges certain faults on the part of the Hale. These will be considered later. But, assuming the truth of the statements of the witnesses for the Red Ash, they do not justify her failure to stop and back as soon as she heard the whistle, from the Hale, and saw that she was close to her, and on her starboard side. No “special circumstances” either rendered a departure from this manifest duty necessary or justified a disobedience of the nineteenth rule. As it is not claimed that to hold her course tended to avoid the danger, whichever proper course the Hale should take, rule 24 did not apply. The most that can be said is that the captain of the Red Ash may have thought that the Hale would pass across his bow, and that, therefore, obedience to said rule was not necessary. In this it appears he was mistaken, and the presumption applied in such cases, that the accident was caused by his negligence, must be applied here. It is the settLed rule that, where a vessel has committed a positive breach of statute, she must not only show that probably her fault did not contribute to the disaster, but that it could not have done so. Belden v. Chase, 150 U. S. 674, 699, 14 Sup. Ct. 264; The Pennsylvania, 19 Wall. 125; Richelien & O. Nav. Co. v. Boston Marine Ins. Co., 136 U. S. 408, 432, 10 Sup. Ct. 934; The Bolivia, 1 C. C. A. 221, 49 Fed. 169.\nThe deck hand on the Red Ash saw the Hale a few seconds before she whistled, but failed to report the fact. The master of the Red Ash saw her a quarter of a mile off, on his starboard bow. He was in fault for not having seen her sooner. She was then so near *119as to involve risk of collision. It was Ms duty to keep out of her way, under said rule 19, and, if necessary, to stop and reverse, under rule 21. It was the rigM and duty of the Hale to “keep her course, subject to the qualifications of rule 24.” Rule 23, § 4233, Rev. St. But, in defiance of these rules, the master of the Red Ash, although he clearly saw the lights and hull of the Hale, and thought she was going eight or ten miles an hour, specula ted on his chances, and first slowed, then ported partially, although, going 5 or 6 miles an hour by land, and with such a tow, he knew that “for a few minutes the boat will keep the same motion, but gradually she will slow down;” and, during a period which he testified might be 30 seconds, he continued on his coarse with the headway she had on. She held her way for a considerable distance, or “a little over 200 feet,” and then he blew an alarm whistle, and backed full speed, over a minute after the time he first heard the Hale’s whistle, when it was too late to avoid the collision; and the Hale struck the float, which was lashed stern end ahead, only 25 or 30 feet from the stern. Under these circumstances, it seems to me that the Red Ash is solely responsible for the collision. The two vessels being upon crossing or interfering courses, the vessel whose duty it is to keep out of the way is liable for the damage, provided she fails to allow a sufficient margin for the contingencies of navigation. The Laura V. Rose, 28 Fed. 104; Wells v. Armstrong, 29 Fed. 216; The Helena v. O’Neil, 26 Fed. 463.\nThe respondent alleges that the Hale was in fault because she did not port her wheel after having given the signal of one whistle. This claim is supported only by evidence from the Red Ash witnesses that they saw no change of course. Her captain says he could not see what was done on the Hale, and that “you only tell from the churning of the water whether the wheel was ported.” The Hale’s witnesses swear she ported her helm immediately after her first whistle. The relative value of the testimony of those on board the Hale as to her movements is greater than of the witnesses on the Red Ash, especially in view of the indefini te and uncertain character of their testimony. The Hope, 4 Fed. 89; The Wiman, 20 Fed. 248, 249; The Avon, 22 Fed. 905; The Alberta, 23 Fed. 810; The Columbia, 29 Fed. 718; The Alexander Folsom, 3 C. C. A. 165, 52 Fed. 411; The Havana, 54 Fed. 413. The respondent further alleges that the Hale did not seasonably stop and back, and keep out of the way of the Red Ash. But it is not denied that she was reversing her wheel at the time of the collision, and the evidence of the Hale’s witnesses shows that she began to stop and back a few seconds after the first whistle,-—as soon as the Red Ash sounded her alarm, whistle. The claim that “the Hale knew, or ought to have known, that the tow she saw was a Central Railroad tow, bound for the New Jersey Central slip,” is not supported by the evidence. The conclusions already reached dispose of the claim that, as the Hale was running against the tide, she was bound to port her helm. As to the angle of the blow, the Hale’s witnesses claim she was heading towards (he Jersey shore, and struck the float a glancing blow; the Red Ash witnesses claim the float was struck at right *120angles. The' evidence as to the bow of the Hale after the accident shows it was twisted to starboard, bnt does not show how she struck. The dent in the float indicates a blow at right angles.\nI conclude, upon all the evidence, that the Hale was probably going at a somewhat faster rate than was testified to by her witnesses; that the captain ported his wheel as alleged, but that the time was so short between the answering whistle from the Bed Ash and her alarm whistle that the course of the Hale was not materially changed before he reversed and began to back water, and that for these reasons she was practically “dead in the water” when the collision occurred. In that event she would have struck the float at nearly right angles. I find no evidence sufficient to support the claim of negligence on the part of the Hale. It is unnecessary to consider the inspector’s rules, which, by stipulation, are to be considered in evidence. The case of The Emma Kate Boss, 41 Fed. 826, affirmed 46 Fed. 872, presents the same questions raised in this case, and supports the conclusions herein reached.\nLet a decree be entered for the libelant, with the usual reference to a commissioner.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"thames-towboat-co-v-central-r-of-new-jersey","summary":"This was a libel by the Thames Towboat Company against the Central Railroad Company of New Jersey to recover damages for a collision.,"} {"attorneys":"David L. McGee, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee., Philip J. Padovano, Tallahassee, Fla. (Court-appointed), for Cuerro., Roger D. Patterson, Panama City, Fla. (Court-appointed), for Bello., L. Sanford Selvey, II, Tallahassee, Fla. (Court-appointed), for Gutierez., Baya Harrison, III, Tallahassee, Fla. (Court-appointed), for Paredes., William F. Wager, Jr., Panama City, Fla. (Court-appointed), for Quinones., Robert J. Vossler, Asst. Federal Public Defender, Tallahassee, Fla. (Court-appointed), for Payne., Thomas S. Keith, Asst. Federal Public Defender, Pensacola, Fla. (Court-appointed), for appellant Bent., Roy L. Glass, Tampa, Fla. (Court-appointed), for Steele.","case_name":"United States v. Bent","case_name_full":"United States v. Eusebio Whittaker BENT, Jose Compaz Cuerro, Ramon Antonio Pena Bello, Jose Gutierez, Victor Paredes, Victor Quinones, Robert P. Ybarra, Milton Brinkley Payne, Defendants-Appellantsl UNITED STATES of America v. Jason Newball STEELE","case_name_short":"Bent","citation_count":0,"citations":["707 F.2d 1190"],"court_full_name":"Court of Appeals for the Eleventh Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Eleventh Circuit","court_type":"F","date_filed":"1983-06-20","date_filed_is_approximate":false,"id":8927184,"judges":"Henderson, Hill, Kravitch","opinions":[{"author_str":"Per Curiam","ocr":true,"opinion_id":8917026,"opinion_text":"\nPER CURIAM:\nAs part of a continuing undercover operation, several Drug Enforcement Administration (DEA) agents posed as a marijuana off-load crew available for hire. Sam and Dwight Ward, Darrell Prows, and Daniel McGuiness hired the crew to unload a shipment of marijuana that was to be brought by boat from South America. The details of the off-load operation were discussed at several meetings held during October 1980 to January 1981.\nOriginally, the shipment was scheduled to reach Panama City in late November, but the boat encountered mechanical difficulties, drifted into Colombian waters, and was seized by Colombian authorities. The crewmen — identified to the agents by Sam Ward as Robert Ybarra, the captain; “Topper,” a nickname for Milton Payne; and a Mexican whose name was not divulged — were jailed in Colombia.\nOn December 31,1980, the Ward brothers informed the agents that Prows had flown to Colombia and had bribed a Colombian official with $150,000.00 to secure the crew’s release. The boat sailed on December 25th, according to the Wards, with an additional crew of six Colombians. These six crewmen, the Wards promised, would take the boat back to Colombia, thus establishing “a continuing Mother ship operation between Colombia and the United States.”\nTwo days later, McGuiness provided the agents with loran charts and pointed to the coordinates 46800/14000 as the location for the rendezvous between the boat and the off-load crew. Prows returned from Colombia on January 3rd, and stated that the boat would arrive at the prearranged location the next day. The DEA agents forwarded this information, along with a description of the suspect vessel, to the Coast Guard.\nOn January 4th, the Coast Guard spotted a boat matching the description of the suspect vessel in the vicinity of loran coordinates 46800/14000. The Coast Guard stopped and boarded the boat, later identified as the “Tiny Smith,” to make a safety and documentation inspection pursuant to 14 U.S.C. § 89(a). While preparing to make the inspection, the officers discovered the bales of marijuana in the main fish hold. The nine appellants were then arrested. A subsequent search of the pilot house revealed a piece of stationery from a Co*1193lombian hotel bearing the numbers 46800 and 14000.\nThe appellants were charged with (1) possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 955; (2) conspiracy to possess marijuana in excess of 1,000 pounds with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846; and (3) attempted importation of marijuana, in violation of 21 U.S.C. §§ 952 and 963. Appellants Ybarra, Payne, Gutierez, Bello, Steele, and Paredes were found guilty of all three counts. Appellants Bent, Cuerro, and Quinones were found guilty only of the first count.\nAll nine appellants challenge their convictions on a multitude of grounds. Finding no errors, we affirm the convictions.\nAppellants first contend that the trial court erred in denying their motion to suppress the evidence seized aboard the “Tiny Smith” where probable cause to search and ample time to obtain a search warrant were coupled with the complete absence of exigent circumstances. The trial court found that the appellants did not have a reasonable expectation of privacy in the hold of the ship and therefore, that they did not have standing to assert a fourth amendment challenge. The court also ruled that under 14 U.S.C. § 89(a) the search was permissible.\nThe former Fifth Circuit has held on numerous occasions that:\nneither captain nor crew has a legitimate expectation of privacy protected by the fourth amendment in an area which is subject to the common access of those legitimately aboard the vessel. The ice hold or fish hold, where the Coast Guard has statutory and regulatory authority to search, is such an area.\nUnited States v. Freeman, 660 F.2d 1030, 1034 (5th Cir.1981) (Unit B) (citing United States v. Willis, 639 F.2d 1335, 1337 (5th Cir.1981); United States v. DeWeese, 632 F.2d 1267, 1270-71 (5th Cir.1980), cert. denied, 454 U.S. 358, 102 S.Ct. 358, 70 L.Ed.2d 188 (1981)); see also 16 U.S.C. § 971(f) (Coast Guard may search fish hold). We are bound by decisions of the former Fifth Circuit rendered prior to October 1, 1981, Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), and by decisions of Unit B of the former Fifth Circuit rendered after that date. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982). Thus, the district court properly ruled that appellants failed to demonstrate a reasonable expectation of privacy in the hold of the shrimper.\nThe trial court’s alternative holding — that 14 U.S.C. § 89(a) provided statutory authority for the search — is also correct. In United States v. Warren, 578 F.2d 1058 (5th Cir.1978) (en banc), the court held that the Coast Guard may stop and board a United States vessel in international waters and conduct a safety and documentation inspection without any suspicion of wrongdoing. See 14 U.S.C. § 89(a). The district court properly denied the motion to suppress the evidence seized.\nAppellants Ybarra, Gutierez, Quinones, Steele, and Cuerro argue that the trial judge impermissibly admitted statements of their alleged co-conspirators in violation of United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Although the court did not hold a separate James hearing on the admissibility of the alleged co-conspirators’ statements, it did require that the statements be linked to independent evidence of the existence of the conspiracy. The failure to conduct a James hearing is not, without more, grounds for reversal. United States v. Miller, 664 F.2d 826, 827-28 (11th Cir.1981). We cannot reverse the district court’s decision to admit the evidence unless that decision was clearly erroneous. United States v. Bulman, 667 F.2d 1374, 1379 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). Here, the decision was not clearly erroneous. There was substantial independent evidence of the existence of the conspiracy; hence the court’s, initial determination to admit the evidence was correct. Furthermore, appellants failed to move at the close of the evidence *1194for reconsideration of that tentative decision, as is their responsibility under James.\nThe district court denied several of the appellants’ motions for severance and/or mistrial. Bent, Cuerro, Quinones, and Ybarra claim they were prejudiced by what they term the “spill-over” effect of the extrinsic offense evidence that was admitted against several of their co-defendants. The grant or denial of a motion for severance is committed to the sound discretion of the trial judge and will not be reversed except upon a showing of clear abuse of discretion. United States v. Nickerson, 669 F.2d 1016, 1022 (5th Cir.1982) (Unit B). No such showing has been made here. At several points in the trial the district judge gave cautionary instructions on the permissible uses of the extrinsic offense evidence. No such evidence was offered against Bent, Cuerro, and Quinones, who were acquitted of Counts II and III. The government did offer extrinsic offense evidence against Paredes, Steele, and Bello, who were convicted on all three counts. Thus, it is apparent that the jury was able to distinguish varying degrees of proof among the co-defendants. These appellants were not prejudiced as a result of the introduction of extrinsic evidence against their co-defendants.\nAppellant Steele challenges the admission of extrinsic evidence that was offered as proof of his unlawful intent. The Government introduced evidence of Steele’s prior involvement in the importation of marijuana. Steele contends that this was highly prejudicial, thus depriving him of his due process right to a fair trial. We disagree. In United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), the Fifth Circuit set forth a two-pronged test to determine the admissibility of extrinsic offense evidence. First, the evidence must be relevant to an issue other than the defendant’s character. Second, the probative value of the evidence must not be substantially outweighed by its inherent prejudicial nature, and the other requirements of Fed.R.Evid. 403 must be met. See United States v. Tuasil, 672 F.2d 879 (11th Cir.), cert. denied, - U.S. -, 103 S.Ct. 110, 74 L.Ed.2d 98 (1982); United States v. Dothard, 666 F.2d 498 (11th Cir.1982).\nRelevancy in this context, according to the Beechum court, is a function of the similarity of the two offenses. Here, the two offenses were the same; intent was certainly at issue in both. Thus, the evidence of Steele's prior offense was relevant to the issue of intent here.\nThe balancing of the probative value of the evidence against its prejudicial effects is left to the sound discretion of the trial judge. United States v. Thevis, 665 F.2d 616, 633-34 (5th Cir.) (Unit B), cert. denied, 456 U.S. 1008, -, 102 S.Ct. 2300, 3489, 73 L.Ed.2d 1303, 1370 (1982). There was no abuse of discretion in the decision to admit the evidence. The four factors cited by the Beechum court weighed in favor of allowing the evidence, and the district judge gave cautionary instructions limiting consideration of the extrinsic offense evidence to the question of Steele’s intent. There was no reversible error.\nAppellant Quinones testified in his own defense, and objected when, on cross-examination, the prosecutor asked him about his alleged involvement in a 1979 drug smuggling scheme. Quinones argues this was clearly beyond the scope of cross-examination, but we disagree. Portions of Quinones’ direct testimony concerned his previous voyages to the United States and implied that they were for legitimate reasons. This opened the door to impeachment on cross-examination. The Government’s questions on cross-examination were within the scope of direct examination, and the trial court did not commit error by allowing the questions. See United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir.) (trial court has broad discretion under Fed.R. Evid. 611(b) to determine permissible scope of cross-examination and will not be reversed except for clear abuse of that discretion), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982).\n*1195All appellants assert as error the judge’s supplemental jury instruction given in response to the jury’s question concerning the possession count. After retiring for deliberations, the jury posed the following question to the trial judge:\nCould a defendant be considered guilty of possession if he found out about the controlled substance aboard the boat only after the boat had departed Colombia, but had no knowledge of same prior to sailing?\nRecord at 850-51. The judge conferred with counsel in his chambers and formulated this response:\nNow, the answer to the question that the jury has, as stated, is no. But if you were to find thereafter, or if you thereafter find, beyond a reasonable doubt that the person knowingly and intentionally decided to join the alleged conspiracy or aid and abet the other alleged crimes, the answer is yes. So it’s two-fold. It’s a yes and no proposition. It’s not a question that can be answered yes or no. It’s got to be qualified.\nRecord at 860. Appellants argue that the response should have been confined to answering in the negative. The response as given, they claim, was overbroad and therefore confusing. The standard of review that must be applied in this situation is whether, viewing the original and supplemental instructions as a whole, the combined instructions accurately represented the law. United States v. Nickerson, 669 F.2d 1016, 1021 (5th Cir.1982) (Unit B). In this instance, the trial judge properly qualified his answers to the jury. A conspirator may be held liable for the substantive crimes committed by his co-conspirators in furtherance of the conspiracy. See United States v. Raffone, 693 F.2d 1343, 1346 (11th Cir.1982). Thus, if the individual who originally knew nothing of the conspiracy subsequently joined and voluntarily participated in the unlawful scheme, and he or his co-conspirators possessed the contraband with the intent to distribute, he could be properly found guilty of the possession count. The judge’s response was correct.\nAppellants direct their main challenge to the sufficiency of the evidence against them, contending that the Government showed nothing more than mere presence aboard the “Tiny Smith.” In United States v. Bell, 678 F.2d 547 (5th Cir.) (Unit B en banc), aff’d on other grounds, - U.S. -, 103 S.Ct. 2398, - L.Ed.2d - (1982), the standard governing sufficiency of the evidence was set forth as follows:\nIt .is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.\nId. at 549 (footnote omitted). Viewing the evidence in the light most favorable to the Government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we believe that a reasonable jury could have found that the evidence in this case established guilt beyond a reasonable doubt.\nThe DEA agents testified that the Wards informed them that the six Colombian crewmen were going to establish a continuing link to the source of the drugs by taking the boat back to Colombia. The agents were privy to almost every detail of the off-load operation, including the number of crewmen, and the exact time and location of the boat’s arrival off the coast of Panama City. At least two of the appellants were identified by name in the co-conspirators’ discussions with the agents. Evidence of extrinsic offense evidence was admitted against some of the appellants. From this, the jury could conclude that, as to these appellants, the requisite unlawful intent was present.\nThe jury could have reasonably concluded that the evidence established the appellants’ guilt beyond a reasonable doubt. The verdicts returned demonstrate that the jury was quite able to discriminate between offenses and appellants. Under the Bell stan*1196-1208dard, the evidence in this case was sufficient to support the convictions.\nWe have reviewed appellants’ other contentions and find them without merit. Their convictions are AFFIRMED.\n","per_curiam":true,"type":"020lead"}],"other_dates":"Rehearing and Rehearing En Banc Denied Aug. 12,1983.","precedential_status":"Published","slug":"united-states-v-bent"} {"case_name":"Boyden v. United States","case_name_full":"Boyden v. United States","case_name_short":"Boyden","citation_count":0,"citations":["404 U.S. 859"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1971-10-12","date_filed_is_approximate":false,"id":8985327,"opinions":[{"ocr":true,"opinion_id":8977346,"opinion_text":"\nC. A. 9th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"boyden-v-united-states"} {"attorneys":"Jonathan H. Fussner, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General., Tom Ryan argued the cause and filed the brief for respondent.","case_name":"State v. Lebeck","case_name_full":"STATE OF OREGON, Appellant, v. NICHOLAS EINARDI LEBECK, Respondent","case_name_short":"Lebeck","citation_count":2,"citations":["17 P.3d 504","171 Or. App. 581"],"court_full_name":"Court of Appeals of Oregon","court_jurisdiction":"Oregon, OR","court_short_name":"Court of Appeals of Oregon","court_type":"SA","date_filed":"2000-12-27","date_filed_is_approximate":false,"headmatter":"\n Wollheim, J.,\n \n vice\n \n Warren, S. J.\n
\n\n December 2008 Term.\n
\n Non-Argument Calendar.\n
\n Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.\n
","id":273721,"judges":"Craven, Haynsworth, Per Curiam, Winter","opinions":[{"author_str":"Per Curiam","download_url":"http://bulk.resource.org/courts.gov/c/F2/368/368.F2d.783.10488.html","ocr":false,"opinion_id":273721,"opinion_text":"368 F.2d 783\n Angel Luis CRUZ, Appellant,v.UNITED STATES of America, Appellee.\n No. 10488.\n United States Court of Appeals Fourth Circuit.\n Argued Oct. 3, 1966.Decided Oct. 31, 1966.\n \n William L. Pope, Columbia, S.C. (Court-assigned counsel), for appellant.\n Thomas P. Simpson, Asst. U.S. Atty. (Terrell L. Glenn, U.S. Atty., on brief), for appellee.\n Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.\n PER CURIAM:\n \n \n 1\n Having served his sentence and been released, Angel Cruz, nevertheless, seeks a new trial pursuant to 28 U.S.C. Section 2255 because of his apprehension that unless his conviction and sentence are vacated he will not be able to resume employment as a merchant seaman.1 At the time he filed his petition, he was in custody. Query: Being now free, is he under a sufficient detriment to be entitled to the statutory relief authorized by 28 U.S.C. Section 2255? See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960); United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954).\n \n \n 2\n It is unnecessary to decide this procedural and jurisdictional question,2 for, on the merits, he is plainly entitled to no relief.\n \n \n 3\n The record supports the district judge's conclusion that Cruz had, at time of trial, a rational understanding and a factual grasp of the proceedings against him. See Dusky v. United States, 362 U.S. 402, 80 SCt. 788, 4 L.Ed.2d 824 (1960). We think, with the district court, that the petitioner intelligently waived his right to counsel when arraigned and had the requisite mental capacity to do so and to plead guilty.\n \n \n 4\n There was ample compliance with Rule 11. Petitioner's contentions to the contrary were carefully and patiently considered at a plenary hearing wherein all the facts were fully developed. See Cruz v. United States, 247 F.Supp. 835 (D.S.C. 1965). Petitioner's absence at the hearing was with the consent of his counsel. Section 2255 specifically provides that a 'court may entertain and determine such motion without requiring the production of the prisoner at the hearing.'\n \n \n 5\n The findings contained in the memorandum of decision of the district court are supported by the record, and none of them are clearly erroneous. See Rakes v. United States, 352 F.2d 518 (4th Cir. 1965). The petitioner has not sustained his 'burden of showing that he did not understand his constitutional rights.' Starks v. United States, 264 F.2d 797, 799 (4th Cir. 1959).\n \n \n 6\n Affirmed.\n \n \n \n 1\n It is represented to us by counsel that the United States Coast Guard will not consider reissuing seaman's papers to Cruz until three years after the date of his plea of guilty on September 15, 1964\n \n \n 2\n Theoreticians may insist we have decided jurisdiction willy-nilly. See Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960)\n \n \n ","per_curiam":false,"type":"010combined"}],"other_dates":"Argued Oct. 3, 1966.","precedential_status":"Published","slug":"angel-luis-cruz-v-united-states"} {"attorneys":"Karen M. Rye, Richmond, for appellant., Mary G. Commander, Norfolk (Goldblatt, Lipkin & Cohen, on brief), for appellee Jerabek, Inc., t/a Monastery Restaurant., No brief or argument for appellee Uninsured Employer’s Fund.","case_name":"Radmila Pavlicek v. Jerabek, Inc., etc.","case_name_full":"Radmila PAVLICEK v. JERABEK, INC., T/A Monastery Restaurant, Et Al.","citation_count":0,"citations":["21 Va. App. 50","461 S.E.2d 424"],"court_full_name":"Court of Appeals of Virginia","court_jurisdiction":"Virginia, VA","court_short_name":"Court of Appeals of Virginia","court_type":"SA","date_filed":"1995-09-12","date_filed_is_approximate":false,"headmatter":"\n Present: COLEMAN, WILLIS and BRAY, JJ.\n
","id":1068258,"judges":"Bray, Coleman, Willis","opinions":[{"author_str":"Bray","download_url":"http://www.courts.state.va.us/opinions/opncavwp/2420941.pdf","ocr":false,"opinion_id":1068258,"opinion_text":" COURT OF APPEALS OF VIRGINIA\n\nPresent: Judges Coleman, Willis and Bray\nArgued at Norfolk, Virginia\n\nRADMILA PAVLICEK\n\nv. Record No. 2420-94-1 OPINION BY\n JUDGE RICHARD S. BRAY\nJERABEK, INC., SEPTEMBER 12, 1995\n t/a MONASTERY RESTAURANT, ET AL.\n\n FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION\n\n Karen M. Rye for appellant.\n\n Mary G. Commander (Goldblatt, Lipkin & Cohen, on\n brief), for appellee Jerabek, Inc., t/a Monastery\n Restaurant.\n No brief or argument for appellee Uninsured\n Employer's Fund.\n\n\n\n Incidental to an award of benefits to Radmila Pavlicek\n\n(claimant) under the Virginia Workers' Compensation Act (Act),\n\nclaimant's counsel (counsel) petitioned the Workers' Compensation\n\nCommission (commission) for attorney's fees payable from that\n\nportion of the recovery \"which benefits the . . . health care\n 1\nprovider[s],\" pursuant to Code § 65.2-714. The commission denied\n\nthe relief, concluding that it did not relate to a \"contested\n\nclaim,\" and claimant appeals. Jerabek, Inc. (employer) urges that\n\nwe dismiss the appeal, contending that the health care providers\n\nwere indispensable, though excluded, parties. Employer also\n\nconcurs in the commission's finding that the underlying claim was\n\nnot contested. For the reasons that follow, we reverse the\n\ndecision.\n\n\n 1\n Although not applicable to these proceedings, Code § 65.2-714\nwas amended during the 1995 session of the General Assembly.\n\f The pertinent facts are substantially uncontroverted. On\n\nFebruary 19, 1994, claimant was accidentally injured incidental to\n\nher employment. She subsequently retained counsel to pursue\n\nbenefits under the Act, and a claim was lodged with the commission\n\non March 11, 1994, accompanied by interrogatories and a request for\n\nproduction directed to employer. Employer received notice of the\n\nfiling on March 12, 1994, and immediately retained counsel, Ms.\n\nMary G. Commander, who \"thereafter began [an] investigation into\n\nthe facts of the injury, wages, insurance coverage, etc.\"\n On March 30, 1994, the commission noticed employer and\n\nLumbermen's Mutual Casualty Co. (Lumbermen's), then identified as\n\nemployer's \"carrier,\" of the pending claim, together with a request\n\nfor related documentation. This correspondence was followed on\n\nApril 1, 1994, by an order of the commission directing the\n\n\"carrier\" to complete and return attached form \"Order(s)\" reporting\n\nthe status of the claim. In response, the commission received the\n\n\"Employer's First Report Of Accident\" from Ms. Commander on April\n\n14, 1994, accompanied by a letter which expressed her\n\n\"understanding that Kemper 2 will be assuming the handling, and\n\ndefense, if any, of this claim.\" On that same date, however,\n\nKemper notified the commission that it had declined coverage to\n\nemployer.\n\n Counsel acknowledged receipt of Ms. Commander's letter to the\n\ncommission \"regarding [the] insurance coverage issue\" and requested\n\n 2\n Lumbermen's is related to the Kemper National Insurance\nCompanies.\n\n\n\n\n - 2 -\n\fimmediate clarification due to claimant's \"financial hardship.\" In\n\nlater correspondence to Ms. Commander, dated April 22, 1994,\n\ncounsel noted that \"present information\" indicated employer was\n\n\"uninsured\" and, again, requested a \"timely\" resolution of this\n\nissue. On April 23, 1994, Ms. Commander answered:\n In response to your concern, the Commission has\n never been advised that there is coverage so I\n assume that they have been treating this (or\n should have been, in any event) as a case which\n should be handled through the Uninsured Fund.\n That has been my assumption throughout. You\n may want to confirm this directly.\n\n In the interim, counsel moved the commission, on April 4,\n\n1994, to compel employer's response to the pending discovery.\n\nThereafter, on April 20, 1994, employer answered claimant's\n\ninterrogatories, declaring its intention to assert the defense that\n\n\"[c]laimant was a casual worker,\" not committed to \"working on a\n\nregular basis,\" with a \"full-time job elsewhere.\" 3 Employer also\n\nreported claimant's wage at $12.00 per week, plus tips. These\n\nresponses prompted counsel to propound supplemental interrogatories\n\nto employer, \"narrowly tailored\" to the \"casual worker\" defense and\n\nwage issues. By letter to counsel dated April 23, 1994, Ms.\n\nCommander then advised that she did \"not believe that there is a\n\ndefense to the claim\" and denied the existence of \"any records\" of\n\nclaimant's wages.\n\n Pursuing the wage issue, counsel noticed employer to take the\n\ndepositions of its employee, Anna Jerabek. However, Ms. Commander\n 3\n Employer further noted that \"[n]o other defenses are known at\nthis time.\"\n\n\n\n\n - 3 -\n\fmoved to quash, arguing that employer had \"no idea whatsoever as to\n\nclaimant's average weekly wage\" and that the scheduled time and\n\ndate conflicted with a prior commitment. The commission thereafter\n\nquashed the notice, \"for good cause shown,\" and \"encourage[d] the\n\nparties to discuss the issue of the average weekly wage and attempt\n\nto reach an agreement\" before again pursuing depositions. When\n\nsubsequent settlement negotiations proved unsuccessful, the wage\n\nissue was submitted for determination by the commission.\n\n Following a hearing, the deputy, by opinion dated September 7,\n\n1994, awarded temporary total disability and medical benefits to\n\nclaimant, a fee to counsel and imposed a fine upon employer for\n\nfailure to maintain the requisite insurance. 4 Counsel thereafter\n\nmoved the commission to allow additional attorney's fees from those\n\nmonies payable from the award to claimant's health care providers\n\npursuant to Code § 65.2-714, mailing notice of this claim to the\n\nseveral providers in accordance with Rule 18 of the Workers'\n\nCompensation Commission Rules. Counsel also submitted to the\n\ncommission numerous proposed orders, each of which was agreed to\n\nand endorsed by a named health care provider and allotted a\n\nspecific fee to counsel from the award to such provider.\n\n Before the commission acted on counsel's request, Ms.\n\nCommander objected, contending that the underlying claim was not\n\ncontested and had not required \"the services of an attorney\" from\n\n 4\n At the request of counsel, the award was ordered payable from\nthe Uninsured Employer's Fund on October 3, 1994. No benefits were\nreceived by claimant from employer, voluntary or otherwise, from\nthe date of the accident until payment from the uninsured fund.\n\n\n\n - 4 -\n\f\"which the health care providers benefited.\" Counsel disagreed\n\nand, following much correspondence between counsel, Ms. Commander,\n\nand the commission, a deputy determined that the original claim\n\n\"was not 'contested'\" and \"[t]he Commission does not have\n\njurisdiction to award attorney's fees, pursuant to Code § 65.2-714,\n\nin uncontested cases.\" On review, the commission concurred and\n\ncounsel now appeals to this Court.\n THE MOTION TO DISMISS\n\n As a threshold issue, employer urges us to dismiss the appeal\n\n\"for failure of the appellant/claimant to join all indispensable\n\nparties.\" A single health care provider among the many that served\n\nclaimant, Sentara Health System, Sentara Norfolk General Hospital\n\n(Sentara), filed a like motion through employer's attorney, Ms.\n\nCommander, despite its earlier endorsement, \"Seen and Approved,\" of\n\na proposed order submitted to the commission which specifically\n\nawarded attorney's fees to counsel.\n\n Code § 65.2-714(A) provides, in pertinent part, that:\n\n Fees of attorneys and physicians and charges of\n\n hospitals for services, whether employed by\n\n employer, employee or insurance carrier under\n\n this title, shall be subject to the approval\n\n and award of the Commission.\n\nId. Further,\n\n [i]f a contested claim is held to be\n compensable under this title and, after a\n hearing on the claim on its merits or after\n abandonment of a defense by the employer or\n insurance carrier, benefits for medical\n\n\n\n - 5 -\n\f services are awarded and inure to the benefit\n of a third party insurance carrier or health\n care provider, the Commission shall award to\n the employee's attorney a reasonable fee and\n other reasonable pro rata costs as are\n appropriate from the sum which benefits the\n third party insurance carrier or health care\n provider.\n\nCode § 65.2-714(B) (emphasis added).\n\n\n Rule 18 of the Workers' Compensation Commission Rules\n\naddresses consideration of those attorney's fees authorized by Code\n\n§ 65.2-714.\n An attorney's fee shall be awarded from sums\n recovered for the benefit of a third-party\n insurance carrier or a health care provider\n pursuant to § 65.2-714, Code of Virginia, only\n upon (1) evidence that such insurance carrier\n or health care provider was given reasonable\n notice that a motion for an award of such fee\n would be made and (2) evidence of the sum due\n such carrier or health care provider.\n\n Employer does not dispute this well-established authority of\n\n\nthe commission to control the \"fees\" and \"charges\" of both\n\nattorneys and health care providers or the sufficiency of notice\n\nattending counsel's claim in this instance. Rather, employer\n\ncontends that the claim, related proceedings, and disposition\n\nnecessitated a joinder of the health care providers as parties to\n\nthis appeal. Employer reasons that the \"health care providers are\n\nthe ones from whom a substantial amount of money is sought\" and,\n\ntherefore, each must be \"named . . . appellees\" and \"provided with\n\na copy of the Notice of Appeal.\"\n\n This argument ignores the procedural history of the claim.\n\nDespite notice, the record discloses that no health care provider\n\n\n\n\n - 6 -\n\fsought party status at any time during the proceedings before the\n\ncommission. Providers, including Sentara, appear in the record\n\nbefore the commission only to concur in the claim, joining in\n\nproposed orders awarding fees to counsel from the funds payable to\n\neach. Sentara's challenge and assertion of a right to party status\n\nis first raised before this Court in a motion to dismiss the\n\nappeal. Employer likewise first argued on appeal that the health\n\ncare providers were indispensable parties.\n However, the question of party status to a health care\n\nprovider in proceedings before the commission incidental to Code\n\n§ 65.2-714 claims is a matter for determination by the commission\n\nin the context of applicable statutes and rules of procedure. See\n\nDep't of Game and Inland Fisheries v. Joyce, 147 Va. 89, 93-94, 136\n\nS.E. 651, 653 (1927). Moreover, it is well established that this\n\nCourt will not entertain issues first raised on appeal. Green v.\n\nWarwick Plumbing & Heating Corp., 5 Va. App. 409, 412-13, 364\n\nS.E.2d 4, 6 (1988) (citing Rule 5A:18). Review of the posture of\n\nemployer, Sentara, and the remaining health care providers on the\n\nrecord before the commission illustrates the wisdom of this rule.\n\nWe, therefore, decline to now entertain the procedural complaints\n\nof employer and Sentara and overrule the motions.\n THE CLAIM\n\n In denying counsel's prayer for attorney's fees pursuant to\n\nCode § 65.2-714(B), the commission determined that the underlying\n\nclaim was not \"contested\" as contemplated by the statute. It is\n\nwell established that \"[f]actual findings by the commission that\n\n\n\n - 7 -\n\fare supported by credible evidence are conclusive and binding upon\n\nthis Court on appeal.\" Southern Iron Works, Inc. v. Wallace, 16\n\nVa. App. 131, 134, 428 S.E.2d 32, 34 (1993) (citing Code\n\n§ 65.2-706). However, when the facts are undisputed, as here,\n\ntheir interpretation becomes a matter of law. Wells v.\n\nCommonwealth, Dep't of Transp., 15 Va. App. 561, 563, 425 S.E.2d\n\n536, 537 (1993). \"We are required to construe the law as it is\n\nwritten\" and \"'[a]n erroneous construction by those charged with\n\nits administration cannot be permitted to override the clear\n\nmandates of a statute.'\" Commonwealth v. May Bros., Inc., 11 Va.\n\nApp. 115, 119, 396 S.E.2d 695, 697 (1990) (citation omitted). The\n\n\"clear and unambiguous\" words of a statute must be accorded \"their\n\nplain meaning.\" Diggs v. Commonwealth, 6 Va. App. 300, 302, 369\n\nS.E.2d 199, 200 (1988).\n\n Here, we find that the words, \"contested claim\" in Code\n\n§ 65.2-714 simply reflect the legislative requirement that the\n\n\"dispute, contention, or litigation,\" Webster's Ninth New\nCollegiate Dictionary 283 (1989) (defining \"contest\"), combine with\n\nother specified circumstances attending a \"claim . . . held . . .\n\ncompensable,\" before attorney's fees \"shall [be] award[ed]\"\n\nincidental to \"benefits for medical services\" arising from the\n\nclaim which \"inure to . . . a third party.\" Code § 65.2-714(B).\n\nThe record reflects considerable dispute and contention from the\n\ninception of the underlying claim and the related litigation is\n\nmanifest. Employer immediately retained counsel, expressly\n\nasserted (only to later abandon) a \"casual worker\" defense,\n\n\n\n - 8 -\n\fmistakenly claimed insurance coverage, and obfuscated evidence of\n\nclaimant's earnings. Clearly, confusion and delay attributable to\n\nemployer needlessly complicated and protracted the proceedings,\n\nleaving claimant without benefits for months while counsel pursued\n\nclarification, discovery, and negotiation with employer. Finally,\n\nthe wage issue remained unresolved and required determination by\n\nthe commission.\n\n Under such circumstances, we find that the claim was\n\ncontested, as a matter of law, by a recalcitrant employer,\n\nnecessitating the assistance of counsel to successfully obtain\n\nbenefits both to claimant and the health care providers.\n\nAccordingly, we reverse the decision of the commission and remand\n\nfor a determination of reasonable and appropriate attorney's fees\n\nto counsel pursuant to Code § 65.2-714(B).\n\n Reversed and remanded.\n\n\n\n\n - 9 -\n\f","page_count":9,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"radmila-pavlicek-v-jerabek-inc-etc"} {"attorneys":"Steve Frank, United States Department of Justice, \"with whom Frank W. Hunger, Assistant Attorney General, Donald K. Stern, United States Attorney, and William Kanter, United States Department of Justice were on brief, for appellant., Sandra L. Smales, with whom Raymond Cebula was on brief, for appellee.","case_name":"Anthony Parisi, Ii, a Minor, by His Parent and Natural Guardian, Lorralee Cooney v. Shirley S. Chater, Commissioner of Social Security","case_name_full":"Anthony PARISI, II, a Minor, by His Parent and Natural Guardian, Lorralee COONEY, Plaintiff, Appellee, v. Shirley S. CHATER, Commissioner of Social Security, Defendant, Appellant","citation_count":14,"citations":["69 F.3d 614"],"court_full_name":"Court of Appeals for the First Circuit","court_jurisdiction":"USA, Federal","court_short_name":"First Circuit","court_type":"F","date_filed":"1995-11-08","date_filed_is_approximate":false,"headmatter":"\n Summary Calendar.\n
1. Malicious Mischief.—Article 714 of the Penal (Jode (Pase. Dig., Art. 2345) was enacted to prevent cruelty to certain animals, whether by the-owner or another person.
2. Indictment—Ownership.—It is not necessary to allege the ownership of\" the animal, nor to negative the idea that it is the property of the accused. The State v. Smith, 21 Texas, 748, overruled; The State v. Broeker, 32 Texas, 611, approved.
3. Indictment—Description of Animal.—It is sufficient to describe the animal as “a certain horse, a dumb animal under the statute.” It is not necessary to allege the color of the animal; but, if alleged, it cannot be treated as surplusage, and must be proved as laid.
"} {"attorneys":"C. Allen High, Oliver B. Dickins, Jr., Nashville, for appellant-plaintiff., Ward DeWitt, Jr., John W. Wade, Jr., Trabue, Minick, Sturdivant & Harbison, Nashville, for appellees-defendants.","case_name":"Cates v. T.I.M.E., DC, Inc.","case_name_full":"Richard L. CATES, Appellant-Plaintiff v. T.I.M.E., DC, INC., and Liberty Mutual Insurance Company","case_name_short":"Cates","citation_count":1,"citations":["513 S.W.2d 508"],"court_full_name":"Tennessee Supreme Court","court_jurisdiction":"Tennessee, TN","court_short_name":"Tennessee Supreme Court","court_type":"S","date_filed":"1974-08-19","date_filed_is_approximate":true,"id":5219129,"judges":"Chattin, Dyer, Fones, Leech, McCanless","opinions":[{"author_str":"Dyer","ocr":true,"opinion_id":5043239,"opinion_text":"\nOPINION\nDYER, Chief Justice.\nThis is a workmen’s compensation case heard by this Court following the grant of a discretionary appeal by the chancellor. This appeal, therefore, is limited to the chancellor’s order dismissing that part of the appellant’s complaint which sought compensation based on the rate established by legislative action in 1971 rather than the rate existing at the time of appellant’s injury in 1969.\nThe appeal in this cause was granted pursuant to T.C.A. § 27-305, which allows “any party to appeal from a judgment or decree which settles the rights of the parties, although the amount of damages or compensation has not been determined.” Inasmuch as the chancellor’s order concluded all respects of this cause (the right to compensation being undisputed), except the amount of compensation, which will be determined by the extent of the employee’s disability, under the terms of the above-quoted section, the cause can be heard in this manner. Potter v. Sanderson, 199 Tenn. 337, 286 S.W.2d 873 (1956).\nThe appellant has assigned as error the chancellor’s holding that the applicable compensation rate was the rate in effect in 1969, the date of the injury, rather than the rate in effect at the time this action was filed, the rate schedule having been changed by an amendment to T.C.A. § 50-1007, enacted in 1971. It is the position of the appellant that when the Legislature amended T.C.A. § 50-1007 (which sets out the schedule of compensation to be allowed employees), by inserting “$55.00” instead of “$47.00” as the maximum weekly rate allowable, the Legislature changed the amounts to be awarded employees already receiving compensation as well as those to be awarded initial benefits subsequent to the effective date of the statute. The ap-pellees’ position, sustained by the chancellor, is that the Legislature changed the rate only for employees who became initially entitled to a compensation award after the 1971 effective date.\nThe parties have addressed themselves to three major subject areas of dispute: (1) whether the Legislature made such a change as the appellant argues; (2) whether interpretations of statutes in other jurisdictions are in accord with either proposed interpretation and whether such interpretations are of significant value in interpreting the Tennessee statute; and (3) whether the Legislature could constitutionally make the change as is argued to have been made in the appellant’s brief.\nThe starting point of statutory interpretation must, of course, be the statute itself and in this case the statutory terms are straightforward and the 1971 changes quite limited. T.C.A. § 50-1007, as amended in 1971, stated in part:\nThe following is the schedule of compensation to be allowed employees . (a) Temporary Total Disability. For injury producing temporary total disability, sixty-five percent (65%) of the average weekly wages as defined in this chapter, subject to a maximum of fifty-five dollars ($55.00) per week ....\n*510Prior to the 1971 amendment, the term “$47.00” was in the statute rather than “$55.00” as above, and elsewhere in the statute. The amendment, therefore, did not change the payment level itself, that level remaining 65% of average weekly wages, but merely increased the range of allowable awards from $47.00 to $55.00. Many employees are, of course, entitled to the maximum amount per week, as is apparently the appellant.\nIn determining whether this change was meant to govern compensation beneficiaries of awards made before 1971, this Court, first, takes note that the Legislature’s language is hardly such language as would put the public on notice of such a broad change as the appellant suggests. Statutory benefit increases for persons injured subsequent to the effective date of the increase have been made periodically by the General Assembly. Increases relating back to pre-existing awards would be quite unusual. Manifestly, it would strain this Court’s interpretative role to determine that a particular mode of amendment commonly used to set future awards has been adopted in this case to change pre-ex-isting awards. Such a change would, it is anticipated, be accompanied by a somewhat more distinct legislative directive.\nLikewise, in a related manner, this Court is aware of the general principle that in the absence of contrary legislative intent, statutes are presumed to operate prospectively and not retroactively. Indeed, this principle has been cited in considering earlier amendments to this statute. Franklin v. Travelers Insurance Co., 155 F.Supp. 746 (E.D.Tenn.1957); Mitchell v. United States Fidelity and Guaranty Co., 206 F.Supp. 489 (E.D.Tenn.1962). The appellant suggests that increased future benefits for previous beneficiaries would not be retroactivity. Without determining the precise applicability of the term, it is evident that the terms of the 1971 amendment, being mere word substitutions, fail to evidence a legislative intent to make the increased rate relate back to earlier beneficiaries.\nIn addition to reasons set out above for the Court’s determination of the scope of the 1971 amendment, there are two other sections of the Workmen’s Compensation Statute which may be inconsistent with an interpretation such as the appellant suggests. First, periodic statutory modifications might reopen settlements made final by T.C.A. § 50-1024 and § 50-1025, and would implicitly require the creation of a new method of modification of awards in addition to those allowed in T.C.A. § 50-1025. Secondly, the rate in T.C.A. § 50-1007(a) is 65% of “the average weekly wages as defined in this chapter,” such wages being defined in T.C.A. § 50-902 as \"the earnings of the injured employee in the employment in which he was working at the time of the injury.” Statutory reference to the time of the injury as determining the applicable rate and, implicitly, its maximum range, appears inconsistent with the interpretation proposed by appellant. Because it is the opinion of this Court that the amendment did not affect pre-1971 injuries, it is, however, unnecessary for this discussion to thorougly consider the interrelationships of existing statutory sections and the construction suggested by appellant.\nThis Court has carefully considered the extensive brief of the appellant arguing that the Legislature intended coverage of pre-1971 injuries by the 1971 amendment. In the references to inflation and the needs of disabled workmen, the appellant’s brief presents strong arguments, but arguments perhaps more suitable for the legislative than the judicial branch. Without determining the weight to be given such statements, the conclusion is inescapable that the quotations from the members of the General Assembly are, at best, ambiguous and equivocal on the precise issue before the Court. In sum, none of the appellant’s external guides to legislative intent are sufficient to override the construction of the statute’s language set out above.\nEach party has cited cases from other jurisdictions in support of his interpretation. Each party appears, however, to ac*511knowledge the limited value of such authority in view of the variety of workmen’s compensation statutes among jurisdictions. This Court has surveyed the authority presented by each party and has given it careful consideration. For the reasons set out above, however, it is this Court’s opinion that the Legislature did not extend the coverage of the 1971 amendment to pre-1971 injuries and references to other jurisdictions have little value on this precise issue.\nFinally, the parties have briefed the issue of the constitutionality of an amendment relating back to beneficiaries injured prior to the effective date of the amendment. Attention has been focused primarily, but not exclusively, on the possible impairment of obligations of contracts in violation of the federal and state constitutions. For the reasons discussed above, it is not necessary to reach this question.\nThe decision of the chancellor is affirmed and the cause remanded.\nCHATTIN, McCANLESS, and FONES, JJ., and LEECH, Special Justice, concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cates-v-time-dc-inc"} {"attorneys":"Georqe P. Pecker, for the appellant., Charles Van Voorhis, for the respondent.","case_name":"Felts v. Martin","case_name_full":"Mary A. Felts v. Annie Martin, Individually, and as Guardian of Harriet B. Martin, an Infant","case_name_short":"Felts","citation_count":0,"citations":["20 A.D. 60","46 N.Y.S. 741"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1897-07-15","date_filed_is_approximate":true,"headnotes":"Foreclosure —• surplus moneys, distributed to the widow and heir without notice to a general creditor of. the mortgagor — action to compel a return of the money.
Surplus moneys, arising from the foreclosure of a mortgage given hy a decedent, are, by the provisions of section 2798 of the Code of Civil Procedure, real, property applicable to the payment of his debts in case of a deficiency in his personal estate, and where his administratrix, who is also his widow, without notice to a general creditor of the decedent, procures an order from the Supreme\" Court directing such a surplus, in the hands of a county treasurer, to be distributed to herself as widow and as guardian of the infant heir of the decedent, such general creditor, herself the purchaser at the sale in foreclosure, but not a party to that action, may, upon allegations that the personalty of the decedent is insufficient to pay his debt's, maintain an action to compel the administratrix to return to the county treasurer the moneys wrongfully diverted by her, to the end that the pldintiff’s debt be paid.Semble, that within three years from the time that the letters of administration were issued,, the creditor may, under section 2750 of the Code of Civil Procedure, . proceed, by petition in the Surrogate’s Court, to enforce her lien upon the surplus moneys, returned to the hands of the county treasurer, in which proceed- ■ ing the dower of the widow in the surplus may be admeasured.
","id":5349554,"judges":"Hardin","opinions":[{"author_str":"Hardin","ocr":true,"opinion_id":5182750,"opinion_text":"\nHardin, P. J.:\nOn the 10th of March, 1895, Joseph Martin died intestate in the-town of Hamlin, and in the same month proceedings were duly had in the Surrogate’s Court of that county, which resulted, in letters of administration upon his estate being issued to Annie Martin, as. administratrix, who qualified and entered upon the discharge of her duties as such. The intestate was seized of a parcel of land situated in said town, which is described in the complaint, and which was subject to a lien of a mortgage given to secure the sum of $2,500 by the said Joseph Martin to the Rochester Savings Bank,, executed on the 10th of May, 1893. After a default in the payment of the mortgage an action was brought to foreclose the same, in January, 1896, against the administratrix and Harriet B. Martin,, who was the only heir of the intestate, and the proceedings resulted, in a decree made on the 3d day of February, 1896, directing a sale-of the mortgaged premises, which were, by the referee appointed in the decree, sold on the 14th day of April, 1896, and they were, bid off by this plaintiff for $3,350, and after payment of the mortgage and the costs and expenses of the foreclosure there remained a surplus in the sum of $544.41, and, according to the directions of the decree, the referee, on the 27th of April, 1896, paid the same to the treasurer of the county of Monroe.\nJoseph Martin was indebted at the time of his death “ in an . amount largely in excess of the amount of his estate, and that his-debts, unsecured by mortgage, exceed the sum of $5,000, and that-the total assets, as shown by the account heretofore made and filed with the Surrogate of Monroe county ” by the defendant, as administratrix, amounted to the sum of $1,582.71; and it was averred in. the complaint that the amount of the assets of said estate which will be applicable for distribution among the creditors of said estate- “ will be insufficient to pay in full the debts owing by said decedent.”\nIt is alleged that the plaintiff is a creditor of said estate and holds demands against the same in an amount of about $4,000, on which demands no payments Whatever have been made by the administratrix; and it is averred that the plaintiff has no security *62for payment “ outside of the assets and property of the said decedent.”\n■ It is further alleged in the complaint, viz.: “ That immediately after the deposit of said surplus with the said county treasurer this defendant, well knowing of the insolvency of the said estate, and, without the knowledge of this plaintiff, contrived to get said surplus moneys into her own hands, and caused notices of claim thereto to be filed in the clerk’s office of Monroe county in behalf of herself and said infant, and by proceedings duly had in the Surrogate’s .Court of Monroe county, letters of temporary guardianship of the person and property of said Harriet B. Martin, an infant of about ■the age of two years, were issued to this defendant out of said Surrogate’s Court on May 19th, 1896, limited until the said infant arrived at the age of fourteen years, and the said defendant qualified- and has since acted as .such guardian. That on May 5th, 1896, this defendant, on application to ’ this court, procured an order of reference to H. C. Mitchell to report to the court the liens against said surplus fund, without any notice to other interested parties, ■after which a report was made to this court on the 9th day of May, 1896, reporting that this defendant, as the widow of decedent, was .entitled to the sum of $117.96 thereof, and the said infant to the sum of $426.48 thereof, and thereafter, and on May 19th, 1896, this; defendant, on application of* this court, procured an order confirming the said report and directing the said county treasurer to pay out of' said fund, for herself and in her own right, the sum of -$117.96, and to herself, as general guardian of said infant, the sum •of $426.48; and thereupon she applied to the. said county treasurer Und obtained from him payment of the said sums, which she has ■since held.”\n. The plaintiff further alleges that, as a creditor of said insolvent estate, she “ claims,- and has a lien, upon the said surplus moneys for the payment of such part of her claims against said estate .as. shall remain after the application thereon, through the Surrogate’s Court, of the said assets in the hands of said administratrix, and that the right and .security of this plaintiff for the enforcement of her said' rights against, said'.fund is greatly impaired and imperiled, by reason of said withdrawal' thereof - from the hands of said county treasurer *63by this defendant, which said withdrawal was accomplished without any notice to this plaintiff and without her consent and against her will.”\nIt is further alleged in the complaint “ that the withdrawal of said funds from the said county treasurer by this defendant was unlawful, and that the said proceedings in this court, instituted and taken by this defendant for the purpose of getting said moneys into her own hands, were without jurisdiction on the part of this court and were and are void.”\nIt is further alleged that, prior to the commencement of this action, the plaintiff demanded of the defendant “ that she return to, and deposit with the said county treasurer, the said surplus moneys so obtained by her, but which the defendant has refused and neglected -to do.”\nThe plaintiff, in her complaint, asks for a ■ decree directing the defendant to return to the county treasurer of Monroe county the said surplus moneys so withdrawn, there to remain until disposed of according to law.\nThe answers of the defendants admitted nearly all of the material allegations of the complaint, and alleged that claims were hied by ■ the defendants and proceedings instituted for the disposition of the surplus moneys, and that an order of reference was made “ to report to the court the liens against the said fund, and that subsequently a a report was duly made by the said IT. G. Mitchell, to which • report and all the proceedings had in such surplus proceeding these defendants refer.” They also allege that an order was granted confirming the report, and the moneys were paid over,'$117.96 to-the defendant as widow, and $426.48 to her as general guardian of Harriet B. Martin.\nThe answers also contain some denials of some of the allegations ■ of the complaint.\nInasmuch as. it was held that the complaint did not state facts sufficient to constitute a cause of action, the allegations of the com-] ' plaint must be regarded-as admitted for the purposes of considering the question of whether the decision was correct.\n- In . considering whether-the complaint states facts sufficient to constitute' a cause of action, it must be “ deemed to allege what can be implied .from, the allegations therein, by.reasonable ,and. fair *64intendment, and facts impliedly averred are traversable in the same manner as though directly averred.” (Marie v. Garrison, 83 N. Y. 14; S. C. approved and followed in Sanders v. Soutter, 126 id. 196.)\nAfter the sale of the decedent’s real estate, upon the mortgage, the surplus money remaining is to be treated as real estate and is . subject to the lien of the creditors of the decedent, and liable to have such debts of the decedent enforced therefrom as remain after exhausting 'the personal assets of the decedent. From the allegations of the complaint it is apparent that the personal assets \\ are insufficient to pay the debts, and that the plaintiff is a creditor, and, therefore, has a lien upon the surplus money, in common with other creditors, and is entitled to follow the surplus money and . enforce the lien through appropriate proceedings to be instituted for that purpose.\nIn Platt v. Platt (105 N. Y. 489) it was held that during three years after the death “ the real estate left * ■ * * cannot ¡be so aliened by heirs or devisees as to defeat the claims of creditors thereon. (2 R. S. 100 ; Code Civ. Proc. § 2749.) ”\nIn Rosseau v. Bleau (131 N. Y. 182) that case was cited with, approval and the doctrine thereof reasserted in the following language: “ The rights of creditors against the real estate of deceased persons attaches to the land as a statutory lien immediately upon the death of the owner, and, of course, their rights cannot be impaired by airy conveyance which is delivered or takes effect subsequently.”\nThe debts of the decedent that remained after the application of. the personal assets are in “ the nature of charges upon the real estate of the intestate debtor, and attached in the same manner to the surplus when it was realized in the action prosecuted for the foreclosure of the mortgage. This resulted from the statutory enactments existing upon this subject, providing for the application of the real estate for the payment of the debts of the intestate, when the personalty has been found to be insufficient for that purpose. It is only the residue remaining after payment of the debts which can be divided between the heirs or devisees of the deceased debtor.” (German Savings Bank v. Sharer, 25 Hun, 411.) In that case it was said that the provisions of the statute creating the liens *65controlled, and that an opportunity should have been afforded to all the creditors “to present and substantiate their claims. And ordinarily the course prescribed by the statute for executors and administrators is the only one which can be either safely or properly adopted.” In that case one of the creditors had not appeared in the\" action, and no notice was given to him as to the distribution of the surplus money, and in the opinion it was said: “This violated a fundamental right in the enjoyment of which he was entitled to be protected. He had done nothing whatever for which he could be lawfully deprived of this right, and as he had received no information of the proceeding he could not properly be charged with neglect because he had omitted to present his claim at an earlier period of time than he did. The fact that the other creditors have received the money which was probably payable to him cannot change the legal, aspect of the case.' That a wrong has been done to him through their agency or participation is no reason whatever why it should be rendered still further effectual by denying him all opportunity for redress.”\nThe duty of a party conducting proceedings \"as to surplus money to give notice to all persons who have liens by record or otherwise, is recognized in Kingsland v. Chetwood (39 Hun, 610). It was there said, in referring to rule.64, “ And that this was not intended to be restricted to liens appearing by the records is evident from\" the further requirement contained in the rule that the party ' moving for the reference shall show by affidavit what unsatisfied liens appear by such official searches, and whether any and what other unsatisfied liens were known to him to exist.’ ” ; ■\nIn this case the facts stated in the complaint clearly evince that the defendant knew of the death; knew of the debts, and, therefore, knew of the existence-of the statutory lien in favor of the creditors of the deceased at the time the proceedings were instituted by her to. reach the surplus money.\n• Section 2798 of the Code of Civil Procedure provides, viz.: “ Where real property, or an interest in real projierty, liable to be • disposed of as prescribed in this title, is sold,' in an action ór a special proceeding, specified in the last section, to satisfy ainortgage or other lien thereupon, which accrued during' the decedent’s life*66time, and letters testamentary or letters of administration.upon the ■decedent’s estate were, within four years before the sale, issued from a Surrogate’s Court of the State having jurisdiction to grant them, the surplus money must be paid into the Surrogate’s Court \"from which the letters issued pursuant to the provisions of section 2537 of this Code, and the receipt of the county treasurer shall be a sufficient discharge. * * . * ” The title to which the section refers relates to disposition of decedent’s real property for the payment of debts and funeral expenses.\nThe adult, defendant was appointed administratrix within the time mentioned within the section., The surplus money arising upon the sale was, therefore, properly payable into the Surrogate’s Court.\nSection 2537 of the Code of Civil Procedure provides that, where the statute requires the payment of money into the Surrogate’s Court, “ the same .'must be paid to or deposited with , the county treasurer of the county to the credit of the fund or of the estate,, or of the special proceeding.”\nThe validity of the legislation providing for the deposit of the surplus money arising in' foreclosure actions with the Surrogate’s Court was .approved in Matter of Stilwell (139 N. Y. 337), and in the opinion in that case it was said : “ The Code deals only with a fund arising from the execution of the foreclosure judgment, not •disposed of by the decree, and commits that fund to the custody .and control of a court which, at thé time the Constitution was .adopted, had extensive jurisdiction over the estates of deceased persons, and this jurisdiction was recognized by that instrument in various provisions for its future oi’ganization and existence.” In that case the validity of sections 2798 and 2799 of the Code of ■Civil Procedure was asserted.\nThe object of the legislation seems to have been to guard the ¡surplus money arising under foreclosure actions like the one referred to in the complaint in this action, and to place the fund so arising where the same may be subject to the action of the Surrogate’s ■Court having jurisdiction of the estate of the decedent..\nThe withdrawal of the money from the Surrogate’s Court, or from the custody of. the county treasurer, interfered with the right •of the\" plaintiff to enforce the statutory lien given to her as a ■creditor of the deceased; and as that withdrawal was accomplished *67without any notice to the plaintiff, and-without any consent on her part and against her will, and insisted upon against a demand made by her to restore it to the treasurer, it seems that she had a right to have the same returned to' the Surrogate’s Court to the end that her ■statutory lien might be enforced and satisfied according to the provisions of law in such' case made and provided.\nThe plaintiff’s complaint expressly averred that she had and has “a lien upon the said surplus moneys for the payment of such part of her claims against said estate as shall remain after the application thereon, through the Surrogate’s Court, of the said assets in the hand of said administratrix.”\nThe plaintiff was not a party to the foreclosure action, nor was she made a party, by notice or otherwise, of the proceedings instituted in respect to the surplus moneys arising after the foreclosure of the mortgage.\nUpon the facts and circumstances detailed in the complaint, it is difficult to conclude that the defendant acted in good faith in causing the money to be withdrawn from the Surrogate’s Court without notice to the creditors having a statutory lien upon the same.\n■ Again, so far as the proceedings attempt to deal with her dower, there was no notice to the parties beneficially interested in the fund, or having a lien thereon, and it is reasonable to suppose that the ■order made by the Supreme Court in relation to the withdrawal of the fund was through inadvertence, mistake or by reason of some fraudulent practice with which the defendant is chargeable.\nIt seems that the tribunal that was thus induced, irregularly and without jurisdiction over the parties having a lien upon the fund or interested therein, to divert the money, was the proper tribunal to order a restoration thereof, and it is no defense to such a proceeding to assert that the Surrogate’s Court might have allowed proceedings to be instituted for .the return of the money.\nIt is within the equitable jurisdiction of the court to declare void an order or decree obtained by overreaching the court, or by a fraud practiced thereupon, or to restore a fund taken from the court without notice to the parties having statutory lien or otherwise thereon. ( Wright v. Miller, 8 N. Y. 9 ; Hackley v. Draper, 60 id. 88; Whittlesey v. Delaney, 73 id. 571; Leet v. Leet, 12 App. Div. 11.)\nFrom the facts disclosed in the complaint, it does not appear that *68the plaintiff has committed any wrong or omitted anything which she should have performed to avoid the situation under which she now complains. It is without her fault that the fund has been withdrawn .and her' lien imperiled, and it is but just and equitable- that, the fund should be restored, to the end that, her lien may be administered, after -due notice, in proceedings instituted for the, distribution of it among the creditors'of the decedent justly entitled thereto. .\nIf it be assumed that the. surplus money is a trust fund for the. payment of the debts of the decedent who have a statutory lien thereon, then it -may be said the defendant, has, by the withdrawal thereof, become ex maleficio a trustee, and that the creditors of the decedent having a lien thereon are entitled to compel her to restore, the money to the Surrogate’s' Court, to the end that the same may be administered according to the provisions of law.\n•As the testator died on the 10th of .March, 1895, and letters of administration were issued in that month, the three years mentioned, in section 2750 of the Code of Civil Procedure, in which any creditor of a decedent may present a petition for a decree directing the-disposition of the decedent’s real property, or interest in real property, had not expired, - and has not yet expired, and,, therefore, the-creditor mentioned in the complaint may yet pursue the remedy, by\" petition mentioned in that section, if the surplus money shall be- ■ returned to the Surrogate’s Court, or to the hands of the county-treasurer as its officer.\nIt is asserted by the learned counsel for the respondent that the- ’ plaintiff was\" a purchaser at the foreclosure sale and furnished the. money which paid the mortgage, and also created the surplus,, which was deposited by the officer making the sale with -the county treasurer,- and it is, therefore, contended that the plaintiff is estopped.. It. was. alleged, however, in the complaint that the “ withdrawal was-accomplished without any notice to this plaintiff, and without her consent and against her will.” Under-those circumstances,, inasmuch, as the plaintiff was not a party to the proceedings relating to the-surplus money, we think she was not bound by them. Mot having-been a party to the action nor to the proceedings, she ought not' to-be bound by them. The surplus is to be regarded as realty belonging to the intestate.\n*69In Fliess v. Buckley (22 Hun, 554) it was said : There is no difference in principle between such suiplus and a parcel of the realty remaining unsold, after a sale of enough to satisfy the judgment of foreclosure.” And in Dunning v. Ocean National Bank (61 N. Y. 506) it was said, viz.: “ The terms of the statute show that the surplus is regarded as real estate. The most careful precautions are taken to prevent the heirs from being deprived of it, except in the same manner and to the same extent that would be permitted in case the land had remained unsold.”\nIn Fliess v. Buckley (90 N. Y. 291) it appeared that William M. Fliess was a party to the foreclosure action, and it was there .said : “ His remedy, therefore, was to enforce his claim in the court by whose directions the foreclosure had taken place. He requires no other action, nor has he any interest in the relief sought by the other plaintiffs.” We see nothing in that case which aids the contention of the respondents.\nIn Breevort v. M’Jimsey (1 Edw. Ch. 554) it was said that, after a sale fairly made in a mortgage foreclosure, the surplus is to be regarded as “ a substitute for the sale which the administrator might have procured.” And it was further said that the equitable rights of the creditors to the surplus attached at once to such proceeds of the sale as remain after satisfying the mortgage debt, and stand “ instead of the land,” and the money is to be applied in the same equitable manner as it would be were lands sold by direction of the surrogate.\nDoubtless the widow is entitled to dower in the surplus as she was in the land before the sale. (Matthews v. Duryee, 45 Barb. 69; Elmendorf v. Lockwood, 4 Lans. 396.) It is not necessary, however, on this appeal to determine the extent of her dower in the surplus. Suffice it to say that,, before it is actually admeasured, the parties who are interested in the surplus fund are entitled to be heard.\n' Inasmuch as the plaintiff was not a party to the foreclosure action, nor was she a party to the proceedings instituted by the defendant in respect to the surplus money, she occupies the position of a stranger to the record, and may. insist that the order made- in the surplus proceedings, which were without notice to her, be held inefficient as to her. (Freem. Judg. [3d ed.] § 337 ; Vose v. Morton, 4 Cush. 27.)\nIt may be that when the facts mentioned in the complaint are *70fully developed at the trial they will indicate more clearly, ¡than 'expressly alleged, that the conduct -of the defendant has been fraudulent, and, therefore, that she should not be,.'in any sense, protected by the proceedings alleged- to have taken place in respect to the surplus money rightly belonging to- the custody'of the county treasurer. ' ; -\nThe foregoing views . lead to the conclusion that .the decision at the Special Term was erroneous.\nJudgment reversed and - a new trial ordéred, with costs to abide the event,. , '.; . .\nAll concurred,, except Follett, J,, not voting.\n■ Judgment reversed -and a new trial' ordered, with costs to abide, the event.\n\n\n Sic.\n\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"felts-v-martin","summary":"Appeal by the plaintiff, Mary A. Felts, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 23d day of March, 1897, upon the decision of the court rendered after a trial at the Monroe Special Term dismissing her complaint, with costs, upon the ground that it did not state facts sufficient to constitute a cause of action."} {"case_name":"People v. Vieterson","case_name_full":"The People of the State of New York v. Rebecca Vieterson","case_name_short":"Vieterson","citation_count":0,"citations":["136 A.D. 899","120 N.Y.S. 1141"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1909-12-15","date_filed_is_approximate":true,"id":5378502,"opinions":[{"ocr":true,"opinion_id":5214374,"opinion_text":"\nJudgment of conviction of the Court of Special Sessions affirmed. Mo opinion. Hirschberg, P. J., Woodward, Jenks, Burr and Miller, JJ., concurred.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-vieterson"} {"case_name":"People v. Rosnowsky","case_name_full":"The People of the State of New York v. Tony Rosnowsky","case_name_short":"Rosnowsky","citation_count":0,"citations":["188 A.D. 964"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1919-06-15","date_filed_is_approximate":true,"id":5417164,"opinions":[{"ocr":true,"opinion_id":5254806,"opinion_text":"\nJudgment affirmed. No opinion. Present — Clarke, P. J., Dowling, Smith, Page and Philbin, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-rosnowsky"} {"case_name":"People v. Drohan","case_name_full":"The People of the State of New York v. John J. Drohan","case_name_short":"Drohan","citation_count":0,"citations":["237 A.D. 865"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1932-12-15","date_filed_is_approximate":true,"id":5488621,"opinions":[{"ocr":true,"opinion_id":5328066,"opinion_text":"\nJudgment of the County Court of Rensselaer county and the order of the Special Term, Supreme Court, denying writ of habeas corpus, unanimously affirmed. Present — Van Kirk, P. J., Hill, Rhodes, McNamee and Crapser, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-drohan"} {"attorneys":"E. S. & G. D. Griffith, for plaintiff in error.","case_name":"Whitton v. Reid","case_name_full":"WHITTON v. REID","case_name_short":"Whitton","citation_count":0,"citations":["109 Ga. 174"],"court_full_name":"Supreme Court of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Supreme Court of Georgia","court_type":"S","date_filed":"1899-11-01","date_filed_is_approximate":false,"headnotes":"Though an order setting a motion for a new trial for a hearing in vacation and directing that “the brief of evidence be presented for approval on or before the date aforesaid, or in default thereof the motion will be dismissed,” may confer upon the judge authority to approve the brief at the hearing; and though in case of such approval this action of the judge may be treated as the equivalent of filing the brief in the clerk’s office, yet where the judge distinctly declines to approve the brief at the hearing and dismisses the motion on the ground that the brief of evidence was not duly filed in the clerk’s office,.the judgment will not be reversed.
","id":5719380,"judges":"Cobb","opinions":[{"author_str":"Cobb","ocr":true,"opinion_id":5569494,"opinion_text":"\nCobb, J.\nThe case of Reid v. Whitton was tried at a term which lasted longer than thirty days. During the term and within thirty days from the trial a motion for a new trial was filed by the losing party, and an order was passed of which the following is a copy: “ Ordered that the plaintiff show cause before me at such time and place as the court may fix, after notice of ten days to each party or their attorneys, why the foregoing motion should not be granted. Let the brief of evidence be presented for approval on or before the date aforesaid, or in default thereof the motion will be dismissed.” The .motion came on for a hearing on a day more than thirty days from the date of the trial. A brief of evidence was presented for. approval on that day, but, the same not having been filed within thirty days from the date of the verdict, the judge declined to approve it, and upon motion dismissed the motion for a new trial on this ground. To this ruling the movant excepted.\nThere being nothing in the order passed by the judge in regard to the hearing of the motion for a new trial which allowed *175the movant more than thirty days in which to file the brief of evidence in order to perfect the motion for a new trial, it was essential that the brief should be filed within thirty days. When thus filed it was in a condition to be presented for approval under the terms of the order. Until it was actually filed in the clerk’s office or some action taken by the judge which would be equivalent to a filing, the brief of evidence was not ready to be presented for approval, and when presented in this condition the judge was not required to approve the saíne or to pass any order concerning it. It is true that in the cases of Hightower v. George, 102 Ga. 549, and Malsby v. Young, 104 Ga. 205, it was held that if the judge approved the brief and passed an order directing it to be filed, this was the equivalent of a filing. In the present case the judge did not approve the brief or pass, any order directing it to be filed, but declined to do either. The brief when presented not having been filed, and the judge having taken no action which would, under the rulings above referred to, dispense with the actual filing in the clerk’s office, there was no error in dismissing the motion for a new trial forthe wantof abrief of evidence filed according to law.\n\nJudgment affirmed.\n\n\nAll the Justices concurring.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued October 9,","precedential_status":"Published","slug":"whitton-v-reid","summary":"Motion for new trial. Before Judge Janes. Haralson superior court. February 11, 1899."} {"attorneys":"Simon W. Hitch, for plaintiff., J. L. Sweat, Wilson, Bennett <£ Lamb din, for defendants.","case_name":"John Holland Gold Pen Co. v. Williams & Co.","case_name_full":"JOHN HOLLAND GOLD PEN CO. v. WILLIAMS & CO.","citation_count":0,"citations":["7 Ga. App. 173"],"court_full_name":"Court of Appeals of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Court of Appeals of Georgia","court_type":"SA","date_filed":"1909-12-10","date_filed_is_approximate":false,"headnotes":"1. Where a petition prays process against an individual and also against a partnership, and the process issues only as to the individual, and he alone is served, and there is no pleading, appearance, or waiver by the defendant, and judgment by default is taken against both the individual and the partnership, the judgment is void as to the latter.
2. Where an execution is issued against an individual and also against a partnership of which' he is a member, and it appears that the judgment is valid as to the individual, but void as to the partnership, and the execution is levied upon the partnership property, an affidavit of illegality on behalf of the partnership will lie.
","id":5751734,"judges":"Powell","opinions":[{"author_str":"Powell","ocr":true,"opinion_id":5603987,"opinion_text":"\nPowell, J.\nThe John Holland Gold Pen Company brought suit in the city court of Waycross, alleging that “L. Y. Williams, doing business under the name and style of Williams & Company, of said county,” was indebted to them in a certain sum. In another part of the petition it was alleged that said L. Y. Williams and Williams & Company had not 'paid the debt. The petition concluded with the prayer: “Wherefore petitioner prays that process may issue requiring the said L. Y. Williams and Williams & Company to appear,” etc. The process stated the case as “The Holland Gold Pen Co. v. L. Y. Williams, doing business under the name and style of Williams & Company.” In the body the process ran: “The defendant L. Y. Williams is hereby required, personally or by attorney, to be and appear,” etc. Service was made upon the defendant L. Y. Williams personally. The suit was undefended, and the court entered up judgment against “L. Y. Williams and the firm of Williams & Co.” for the sum sued for. On this judgment execution was issued against “L. Y. Williams and Williams & Co.” The sheriff levied this execution upon certain property of Williams & Company. To this levy one J. E. Whitman filed an affidavit reciting that he was a member of the firm of Williams & Company, and was a member at the date -of the suit mentioned above, and that the firm was composed of L. Y. Williams and J. E. Whitman, and the execution mentioned above had been levied on the property of the firm, but had issued and was proceeding file-*174gaily for the following reasons: that the firm of Williams & Company had never had its day in court, was never sued, was never served with any process, and did not waive process or service, and did not appear or plead or otherwise defend, nor was it a party to the suit upon which the execution was based; further, that the suit was brought against L. Y. Williams alone, and not against the firm of Williams & Company, that process was issued only against L. Y. Williams, and that he alone was served, while the judgment and execution issued upon said suit was against the firm of Williams- & Company; that neither the partnership nor Whitman individually was bound by the judgment, neither having had any knowledge or notice of the pendency of the suit until execution; that execution against Williams individually could not be levied upon the partnership’s propeidy, the remedy to reach individual partner’s interest in the partnership property being garnishment, and not levy. The ease was heard by the judge on an agreed statement of facts, substantially verifying the allegations of the illegality. The judge sustained the illegality, and the plaintiff excepts.\n1. The question as to who are parties to an action is generally to be determined by inspection of the whole record, including the petition, prayer for process, the 'process, the return of the sheriff, etc. To hind a party by the judgment in a suit,-irrespective of what other portions of the record may show, it must appear that he has been served with process directed to him, or else that he has, by some express or implied waiver, dispensed with the necessity of process. In the present case, if the firm of Williams & Company had been sued and process had been directed against it (and it is conceded that the language found in the prayer for process did indicate an intention on the part of the plaintiff to sue the firm, Williams & Company, as well as L. Y. Williams), the service upon L. Y. Williams would have been as good as service upon the firm, and would have bound not only the property of Williams individually, but also the partnership assets. Conceding that the petition was so framed as to make a joint suit against L. Y. Williams individually and the firm of Williams & Company, the process did not include both, and, therefore, only the defendant named in the process, Williams, individually, was bound by the judgment, there being no waiver, appearance, or pleading to effectuate a different result; for “there is no reason why the process might not be valid *175as to one defendant and void as to the other, even though the'defendants may have been sued jointly.” Neal-Millard Co. v. Owens, 115 Ga. 959, 962 (42 S. E. 266). “Where no process is attached to the petition, and process is not waived by the defendant, service of the petition upon him does not give the court jurisdiction to render a judgment against him. . . A void process is equivalent to no process, and the same result would follow from attaching a void process as from a failure to attach any process whatever. . ; If in order to give the court jurisdiction' of a proceeding brought against a defendant he must either have been served with a mandate from the court to appear and answer the plaintiff’s demand, or must have waived such mandate, it would seem to follow, as a necessary corollary from this, that the service upon a defendant of a process commanding some one else to appear in court would be no process at all as to the defendant, and he would have a right to utterly disregard the same.” Neal-Millard Co. v. Owens, supra. We conclude, therefore, that the partnership’s property was not bound by the judgment.\n2. By the Civil Code, §2661, “the interest of a partner in the partnership assets may be reached by a judgment creditor by process of garnishment served on the firm, and shall not be subject to levy and sale.” Therefore, the execution which was valid only as against L. Y. Williams, individually, could not be levied upon the partnership assets. However, since the partnership Williams & Company was named as a party defendant in the judgment and in the execution, and since the execution was in fact levied upon the partnership property, it was permissible for one of the partners, in the partnership’s name, to file an affidavit of illegality. Illegality, and not claim, was the appropriate remedy. If the execution had issued against the individual Williams alone, the point that claim was the appropriate remedy would have been well taken.\n\nJudgment affirmed.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted November 18,","precedential_status":"Published","slug":"john-holland-gold-pen-co-v-williams-co","summary":"Affidavit of illegality; from city court of Waycross — Judge Myers. July 8, 1909."} {"attorneys":"John A. Dickerson, for appellants., Douglas McDonald, for appellee.","case_name":"Meece v. McCroskey","case_name_full":"MEECE v. McCROSKEY","case_name_short":"Meece","citation_count":0,"citations":["151 Ga. App. 369"],"court_full_name":"Court of Appeals of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Court of Appeals of Georgia","court_type":"SA","date_filed":"1979-09-04","date_filed_is_approximate":false,"id":5782956,"judges":"Underwood","opinions":[{"author_str":"Underwood","ocr":true,"opinion_id":5637060,"opinion_text":"\nUnderwood, Judge.\nAfter the jurors in this personal injury litigation had reached a verdict, but before they had returned to the courtroom, plaintiffs lawyer stated for the record that defendants had made an offer of settlement of $20,000 and that \"I now announce in [plaintiffs] presence that it’s my recommendation that he accept the offer of $20,000.00 *370and if I am incorrect in that I wish that he would correct me and now is the time for him to say whatever he wishes.”\nThe client said nothing, and then colloquy between the court and counsel ensued as to what to do about the jury verdict, the court stating \"I tell you what let’s do, let’s just bring them in and they just give me the verdict and I won’t say anything to anybody.”\nBut defense counsel insisted that an order be placed on the record before it could be learned what verdict the jurors had reached, the court, however, thinking that unnecessary. The colloquy continued: \"Mr. McDonald [plaintiffs counsel]: Judge, I just like to give Harold [plaintiff] a chance to say anything he . . The Court: Harold, say whatever you want, now . . Mr. McDonald: With the understanding . . . The Court: Speak now or forever hold your peace. May have a hundred thousand dollars out there or it might be 5 or 4 or 50. Mr. Dickerson [defendants’ counsel]: It’s my understanding the offer has been accepted. Mr. McDonald: . . . Judge, if there’s any hesitancy on his part I don’t, you know . . The Court: All right, now I’ll tell you what, now this has been going on here for quite some time, let’s make a decision, if you need two minutes or three minutes, whatever. Mr. McDonald: He needs a minute Judge. The Court: All right . . Mr. McDonald: To talk to someone. The Court: We’ll give him a minute or two. Mr. McDonald: He needs to call somebody. (Short break in the discussion) Mr. McDonald: I withdraw the offer of settlement, he wishes to see what the jury verdict is, and I concede to that because he is the ruler of his case and I have no control over his decision... The Court: Mr. Dickerson says you can’t do that, he says you accepted it in Open Court. Mr. McDonald: Well, the record will speak for itself, Judge. I cannot undo what the record has already done and been said on it. I submit to the Court that what I said was subject to the approval of the client as you will recall, in fact I turned to him and asked him, the Court to make sure that it was satisfactory, he said that it is not and I submit that when I made the proffer that it was subject to his approval and the Court’s feeling that it was his decision not mine alone. He says now that it is not his decision and that he has talked with *371his Brother about it, who is here his older brother and that he feels like it is not enough. The Court: All right, gentlemen, this is going to be the ruling of the Court. I realize what has transpired here, I do not believe that the matter would be out of the breast of the Court... until the Court had affirmed the offer and affirming the acception-affirming the acceptance, and I did give the man a couple more minutes. So, I believe it’s within my discretion and I don’t recall that the Court’s final order that that would conclude the matter. We were in a ssort of a conversation posture and I’m going to rule that we will bring the jury in. Now, McCroskey you can’t go back and get your $20,000.00 whatever this jury says that is final. Bring them in. (The jury returned to The Court) The Court: Mr. Foreman the Bailiff tells us that the jury has a verdict? Foreman: Yes, Your Honor. The Court: Would you be kind enough to read that verdict for us. Foreman: We find for the Plaintiff in the amount of $50,000.00.”\nIn their appeal defendants contend that there was an offer of settlement by defense counsel and an acceptance by plaintiffs counsel which resulted in a contract binding the plaintiff himself, and that it was therefore error thereafter to receive the verdict and enter judgment. However, we disagree with defendants’ postulation of the dynamics of the issue as simply one of offer by counsel for defendants and acceptance by counsel for plaintiff. Rather, it appears that the latter was concerned about suits by clients against their lawyers claiming that the lawyer had not had authority to settle, and we think the trial court was authorized to conclude as he did that while plaintiffs counsel recommended that the offer be accepted, no acceptance on his part was to be effective unless plaintiff himself did, in fact, approve. The trial court, as the arbiter, determined that the plaintiff had not given his approval of the settlement although called upon to do so by counsel and the court, plaintiffs only spoken words being that he wished to call someone, after which his counsel stated the plaintiff did not approve the settlement and wished to see what the verdict was.\nIn these circumstances we are unable to hold that the court’s resolution of the matter is not supported by the record of the colloquy, as supplemented by the significant *372moments of silence and meaningful exchanges of glances referred to in the transcript of the hearing on the motion to set aside. Consequently we do not overturn the verdict and judgment.\nArgued July 11, 1979\nDecided September 4, 1979\nRehearing denied September 18, 1979.\nJohn A. Dickerson, for appellants.\nDouglas McDonald, for appellee.\n\nJudgment affirmed.\n\n\nMcMurray, P. J. and Banke, J., concur.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued July 11, 1979, Rehearing denied September 18, 1979.","precedential_status":"Published","slug":"meece-v-mccroskey"} {"case_name":"Claim of Abelowitz v. Sterling Tool Co.","case_name_full":"In the Matter of the Claim of Samuel Abelowitz v. Sterling Tool Co., Inc., and Special Fund for Reopened Cases, Workmen's Compensation Board","citation_count":0,"citations":["26 A.D.2d 875"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1966-10-21","date_filed_is_approximate":false,"id":5902787,"judges":"Reynolds","opinions":[{"author_str":"Reynolds","ocr":true,"opinion_id":5760052,"opinion_text":"\nReynolds, J,\nAppeal by the employer and its carrier from a decision of the Workmen’s Compensation Board holding appellants liable for an award for claimant’s loss of hearing rather than the Special Fund for Reopened Cases (Workmen’s Compensation Law, § 25-a). The award to claimant is not disputed; the sole issue raised here being who is responsible for the payment of such award. On *876October 20, 1952 claimant applied for compensation for an occupational loss of hearing and a physician’s report dated November 10, 1952 supported such a claim. On November 5, 1953 a Referee ruled in favor of claimant and continued the case. Nothing of import ensued until June of 1959 when a Referee determined that since section 49-bb of the Workmen’s Compensation Law provides that compensation for occupational loss of hearing is only payable six months after separation from employment the claim was premature and “ closed ” the case “ on all previous findings.” In February, 1961 claimant ceased employment and in November sought to reassert his claim, and this was permitted and an award eventually rendered. In denying appellants’ contention that the award be made against the Special Fund the board has found that the case had never in fact been closed since further proceedings were contemplated. Appellants, however, urge that the Referee’s 1959 disposition closed the ease as to the 1952 application and that therefore since more than seven years from the date of the injury had passed and since an award had not previously been rendered the Special Fund should bear the liability by virtue of subdivision 1 of section 25-a. In Matter of Casey v. Hinkle Iron Works (299 N. Y 382) the Court of Appeals, after pointing out that liability is assessable against the Special Fund only when the ease is closed and subsequently reopened by fresh application, stated (p. 385): “ For the purpose of section 25-a, a case is closed when it has been referred to the abeyance file because no further proceedings were foreseen. Such a ease is to be distinguishd from one held in abeyance pending the completion of a defective application for compensation, when hearings are to be held”. Here it is readily evident that the board could conclude that no award was made because the application was defective for failure to comply with section 49-bb and that further proceedings were contemplated when this defect was cured. Furthermore, this conclusion is not necessarily negated by the use of the word “ closed ” in the Referee’s oral decision or by the characterization of new hearings as “ reopening ” (Matter of Diskin v. 99 Wall St. Corp., 279 App. Div. 1103, mot. for lv. to app. den. 304 N. Y. 986). We pass on no other issues raised. Decision affirmed, with one bill of costs to respondents filing briefs. Gibson, P. J., Herlihy and Staley, Jr., JJ., concur; Taylor, J., not voting.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"claim-of-abelowitz-v-sterling-tool-co"} {"case_name":"Cummings v. Fischer","case_name_full":"In the Matter of Harold Cummings v. Brian Fischer, as Commissioner of Correctional Services","case_name_short":"Fischer","citation_count":0,"citations":["78 A.D.3d 1391","910 N.Y.S.2d 700"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2010-11-18","date_filed_is_approximate":false,"id":5951061,"opinions":[{"ocr":true,"opinion_id":5809780,"opinion_text":"\nProceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.\nFollowing an investigation, petitioner, a prison inmate, received a misbehavior report charging him with assaulting an inmate and violent conduct based on an altercation with a laundry porter. A tier III disciplinary hearing was held, after which petitioner was found guilty of violent conduct, but not *1392guilty of assaulting an inmate. That determination was affirmed on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.\nWe confirm. The misbehavior report and the testimony from both the authoring correction officer and the confidential informant provide substantial evidence to support the determination of guilt (see Matter of Monroe v Fischer, 73 AD3d 1304 [2010]; Matter of Sanders v Haggett, 72 AD3d 1372, 1372-1373 [2010]). Petitioner’s contention that he could not have been in the area of the incident at the time it was alleged to have occurred raised an issue of credibility to be resolved by the Hearing Officer (see Matter of Williams v Fischer, 75 AD3d 706 [2010], lv granted 15 NY3d 891 [2010]; Matter of Mitchell v Bezio, 69 AD3d 1281, 1281-1282 [2010]).\nPetitioner’s remaining contentions have been examined and found to be either unpreserved or without merit.\nPeters, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cummings-v-fischer"} {"attorneys":"APPEARANCES OF COUNSEL, Migdal, Pollack, Rosenkrantz & Sherman, New York City (Lester C. Migdal and David Migdal of counsel), for plaintiffs. Rosenberg & Estis, P. C., New York City (Lawrence M. Furtzaig and Karen L. Weiss of counsel), for defendant.","case_name":"Chemical Bank v. 635 Park Avenue Corp.","case_name_full":"Chemical Bank v. 635 Park Avenue Corp.","citation_count":0,"citations":["155 Misc. 2d 433"],"court_full_name":"New York Supreme Court","court_jurisdiction":"New York, NY","court_short_name":"New York Supreme Court","court_type":"ST","date_filed":"1992-09-11","date_filed_is_approximate":false,"id":6341112,"judges":"Cahn","opinions":[{"author_str":"Cahn","ocr":true,"opinion_id":6209720,"opinion_text":"\n*434OPINION OF THE COURT\nHerman Cahn, J.\nPlaintiffs move, pursuant to CPLR 6301, for a preliminary injunction enjoining the defendant, 635 Park Avenue Corp., a cooperative apartment corporation (Co-op), from: (1) considering, voting on or adopting a motion amending its proprietary leases to require persons engaged in litigation or administrative proceedings with the Co-op to settle their actions or claims prior to selling their apartments; and from (2) interfering with, delaying, resisting, impeding or withholding its approval of contracts to sell the shares of the apartment belonging to the estate of Jane Pickens Hoving or delaying or denying approval of potential buyers.\nPlaintiffs are the executors of the estate of Jane Pickens Hoving (Mrs. Hoving), a shareholder-tenant of the Co-op since 1979. She purchased four shares of stock of the corporation, and entered into a proprietary lease with the Co-op for the twelfth floor of the building. Mrs. Hoving died on February 22, 1992.\nThis is an action for a permanent injunction to enjoin the Co-op from passing a proposed amendment to the proprietary leases, which plaintiffs allege would have the effect of preventing Mrs. Hoving’s estate from selling the apartment while continuing separate litigation against the Co-op.\nOn June 4, 1992, by means of a proxy solicitation, the Co-op gave notice of an annual meeting of the shareholders to be held on June 25, 1992, where votes would be taken on the proposed amendments to the proprietary leases, including one requiring persons involved in litigation or administrative proceedings with the Co-op to settle those proceedings prior to selling their shares in the Co-op. Mrs. Hoving’s proprietary lease presently contains no provision restricting the sale of the apartment during the pendency of litigation of claims between a tenant and the Co-op. The proposed amendment appears to be directed at plaintiffs and is designed to prevent the Co-op from becoming further indebted thereby allowing the Co-op to resolve its current financial problems by forcing persons bringing actions against the Co-op, to settle or discontinue those actions as a condition of selling their shares.\nIn 1991, Mrs. Hoving commenced an action against the Coop alleging breaches of her proprietary lease due to damage to her property resulting from leaks from the roof. Mrs. Hoving’s suit also seeks permanent injunctive relief prohibiting the Co*435op from constructing an apartment above her apartment without the written consent of Mrs. Hoving or her heirs and assigns. Mrs. Hoving’s estate is now seeking to sell Mrs. Hoving’s apartment.\nCooperative corporations are sui generis in nature. A cooperative is generally a stock corporation formed pursuant to the Business Corporation Law. The corporation is the owner or long-term lessee of the building and related property. Owners of shares in the corporation, through the device of a proprietary lease, receive the right to occupy space in the premises to which their shares are allocated. The proprietary lease defines the relationship between the cooperative corporation and the shareholder-tenant with regard to their mutual rights and obligations. (See generally, All Seasons Resorts v Abrams, 68 NY2d 81; 4 Goldsmith and Leeds, New York Practice Guide, Real Estate § 37.02 [1].) Accordingly, for various purposes cooperatives are viewed as corporations or as real property. However, neither the corporate nor the leasehold or real property aspects of the relationship can be viewed in isolation from one another. (See, Fe Bland v Two Trees Mgt. Co., 66 NY2d 556; Matter of Carmer, 71 NY2d 781.)\nThis court recognizes that many individuals purchase cooperatives as equity investments for the future. (330 W. End Apt. Corp. v Kelly, 124 Misc 2d 870, affd 108 AD2d 1107, affd as mod 66 NY2d 556.) The imposition of restrictions on the sale of a cooperative unit and its representative shares cannot be studied in a vacuum without turning to the realities of the marketplace and the purposes and nature of ownership of cooperatives. While a cooperative represents to many owners the purchase of a place to live, it also represents an investment with hopes for profits upon resale. Accordingly, any restraint on alienation must be scrutinized carefully to insure that it does not offend public policy concerning the nature of cooperative ownership.\nThe proprietary leases of Co-op shareholder-tenants often contain restrictions on the transfer of the lease and stock, by requiring consent of the board of directors or a right of first refusal. Such consent provisions have consistently been upheld against the contention that they constitute unlawful restraints upon alienation.\nIn Penthouse Props, v 1158 Fifth Ave. (256 App Div 685 [1st Dept 1939]), the Court noted that the Co-op board’s power to grant or withhold consent may be a restraint upon alienation *436of the stock shares, but is reasonable and appropriate to the lawful purposes to be attained. The Court identified the special nature of ownership in cooperative buildings by tenant owners who reside on the premises as the basis for this exclusion from the general rule against a restraint on the sale of stock in a corporation organized for profit. (Supra, at 692.) The Court also recognized that the stock ownership was merely incidental to the primary interest in the long-term proprietary lease, the alienation of which the corporation had the power to restrain, and if there was restraint upon the transfer of stock it was reasonable and appropriate. (See, Goldstone v Constable, 84 AD2d 519; Weisner v 791 Park Ave. Corp., 7 AD2d 75, 83 [Frank, J., dissenting] [1958], revd on other grounds 6 NY2d 426; Murphy v 253 Garth Tenants Corp., 579 F Supp 1150 [SD NY 1983].)\nIn Weisner (supra) the Court in its discussion of the Penthouse Props, holding stated that it did not embrace in its entirety the rule that the owners (of a Co-op apartment building) under any and all circumstances may arbitrarily refuse consent to a proprietary lessee to the sale of the lease and stock. Shareholder-tenants stock, therefore, seems to still be subject to the rule that there be no unreasonable restraint on alienation. (See, Allen v Biltmore Tissue Corp., 2 NY2d 534, 540 [1957]; Driscoll v West Bradley & Cary Mfg. Co., 59 NY 96; 2 White, New York Corporations ]f[j 601.02, 601.04 [13th ed].)\nThe instant case raises a matter of first impression in regard to whether a restriction on the transfer of a proprietary lease and stock in a Co-op pending the settling or discontinuance of litigation or claims against the cooperative is such an unreasonable restraint upon alienation.\nWhile certain restrictions on the transfer of Co-op proprietary leases and stock are considered reasonable restraints on alienation and are therefore legal, as discussed above, others are completely unjustifiable and invalid. (See, General Obligations Law § 5-331; Bachman v State Div. of Human Rights, 104 AD2d 111.)\nAdditionally, cooperatives must act in good faith in dealing with their shareholder-tenants with regard to facilitating the transfer of shares. (See, Matter of Folic, 139 AD2d 456; Boisson v 4 E. Hous. Corp., 129 AD2d 523; Bernheim v 136 E. 64th St. Corp., 128 AD2d 434.) Furthermore, cooperative corporations and their boards of directors have a fiduciary duty to the shareholder-tenants and have a duty to act in an appropriate *437and reasonable manner. (Demos v 325 W End Ave. Corp., 127 AD2d 476; Vinnik v 795 Fifth Ave. Corp., 94 AD2d 685, affd 62 NY2d 698.)\nThe court is aware that cooperative corporations may impose upon the shareholder-tenant a myriad of restrictions including a right of first refusal (Badowski v Roosevelt Terrace Coop., 148 AD2d 406), waiver of option fees (Amer v Bay Terrace Coop. Section II, 142 AD2d 704), requirement of board approval (Aronson v Crane, 145 AD2d 455) and flip taxes (Business Corporation Law § 501 [c]). However, such restrictions must be reasonable and not deprive a shareholder-tenant of the opportunity to take advantage of the free market in selling the shares to a particular unit. (524 E. Tenants Corp. v Preheim, NYLJ, Dec. 4, 1991, at 22, col 2 [Sup Ct, NY County, Baer, J]; see also, 4 Goldsmith and Leeds, New York Practice Guide, Real Estate § 36.09B [6] [b] [iii]; [c].)\nIt is clear that the proposed amendment to the proprietary lease constitutes an unreasonable restraint on alienation and diminishment of the property rights of the estate (Smukler v 12 Lofts Realty, 178 AD2d 125). Although the proposed amendment is not an absolute prohibition against the transfer of shares, it is an effective prohibition against such transfer and is unreasonable (see, Allen v Biltmore Tissue Corp., 2 NY2d 534, supra; Matter of Gusman, 178 AD2d 597). The fact that the board of directors of a cooperative is governed by the business judgment rule (see, Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530) is no defense on this motion as plaintiffs have convincingly alleged that defendant has acted in bad faith (see, Smukler v 12 Lofts Realty, 178 AD2d 125, supra).\nFurthermore, while the proposed amendment does not specifically exempt the defendant from liability for its own negligence, it creates a situation where plaintiffs and others in plaintiffs’ position may be forced to withdraw claims or settle at a substantially reduced value in order to sell the rights in the stock and lease. The court notes that such rights to the apartment are extremely valuable, and may well be a major part of the assets of the seller.\nSuch a result additionally is clearly violative of the spirit, if not the letter, of General Obligations Law § 5-321 which provides: \"Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to *438person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.”\nThere is no reasonable justification for requiring a shareholder-tenant to settle or drop his/her claims against the Coop prior to being permitted to sell the apartment. If such restrictions are permitted, any shareholder-tenant with a valid claim against a Co-op is prevented from selling the apartment and will be required to continue to pay monthly maintenance charges when they may no longer be able or desire to live there. The tenant’s only alternative would be to withdraw the claim thus compromising his or her right to legal redress, a result effectively denying the shareholder-tenant the opportunity to obtain legal redress. Such a result is contrary to the public policy of the State, which is to make the courts available to all for the resolution of disputes.\nIn the instant case, the board of directors’ desire for Mrs. Hoving’s estate to settle its litigation with the Co-op is an insufficient and unreasonable justification for such a restraint on alienation. The proposed restriction is therefore against public policy which favors facilitating the free transfer of property, and its purpose does not justify its exclusion from attack as an unreasonable restraint upon alienation.\nPlaintiffs’ motion for a preliminary injunction should be granted. The standard requirements for such relief are satisfied in this case. (Grant Co. v Srogi, 52 NY2d 496 [1981].) Specifically, since the proposed amendment with regard to its provision concerning the settlement of claims is an unreasonable restraint on alienation and is therefore unlawful, a balancing of the equities and the likelihood of success on the merits are both in the plaintiffs’ favor. Furthermore, irreparable injury will be incurred by the plaintiffs if the vote is permitted and the proposed amendment is adopted. The plaintiffs will be forced to withdraw their lawsuit against the Co-op or settle their claims in an artificially created state of unequal bargaining power in exchange for permission to sell the apartment at the earliest possible date or they must hold on to the uninhabited apartment while pursuing both their earlier separate action and this action to have the restriction declared invalid. Both available options prejudice the plaintiffs’ legal rights and will cause them damages which are *439indeterminable due to the current depressed and unpredictable nature of the real estate market.\nAccordingly, the motion for preliminary injunction is granted. The parties are to confer with the court on the amount of the undertaking.\nThe temporary restraining order is to continue until an order is entered.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"chemical-bank-v-635-park-avenue-corp"} {"attorneys":"W. F. Evans, Alfred Hazlett and Fulton Jack, for plaintiff in error., Leonard W. Golby, contra.","case_name":"Chicago, Rock Island & Pacific Railway Co. v. Colby","case_name_full":"Chicago, Rock Island & Pacific Railway Company v. David R. Colby","case_name_short":"Colby","citation_count":0,"citations":["69 Neb. 572"],"court_full_name":"Nebraska Supreme Court","court_jurisdiction":"Nebraska, NE","court_short_name":"Nebraska Supreme Court","court_type":"S","date_filed":"1903-07-03","date_filed_is_approximate":false,"disposition":"\nReversed.\n","headnotes":"1. Common Carrier: Freight Regulation. A railroad company, as a common carrier, may make reasonable rules and regulations for the reception, carriage and delivery of freights, including the classification and suitable preparation of articles for shipment; and such rules and regulations shippers are to conform to.
2. Reasonableness, Question of Law. The reasonableness of such rules, regulations and classification is a question of law for the court; and it is reversible error to submit that question to the jury.
","id":6772408,"judges":"Albert, Barnes, Glanville","opinions":[{"author_str":"Barnes","ocr":true,"opinion_id":6655381,"opinion_text":"\nBarnes, C.\nIn this action David R. Colby, the defendant in error, sought to recover the possession of a certain wagon described in his petition, from the Chicago, Rock Island & Pacific Railway Company. Such proceedings were had that the case finally reached the district court for Gage county; where, on a trial to a jury, a verdict was returned in his favor for the possession of the property, and for the sum of $13.80, damages. Judgment was rendered on the verdict, and the railway company prosecuted error.\nIt appears that one F. A. Matthis delivered a peddler’s wagon to the Chicago & Great Western Railway Company, at Pearl City, Illinois, to be shipped to the defendant in error, at Beatrice, Nebraska; that it was transported by the initial carrier as far as its line of road* extended, and whs there delivered to the plaintiff in error, and was carried by it to the place of destination; that *573when the defendant called for the wagon a dispute arose over the freight charges. The amount claimed by the plaintiff was $13.80, while the defendant insisted that he should be required to pay the sum of $6.62, only. Efforts were made to adjust the matter in dispute, which were unsuccessful, and, thereupon, the defendant replevied the wagon, alleging that he had tendered the plaintiff an amount sufficient to pay the proper 'freight charges. The record discloses that he introduced some evidence tending to show that he had made an inquiry of some one in charge of the plaintiff’s office in .Beatrice, to ascertain the probable cost of transporting the wagon from Pearl City, Illinois, to that place, and had been told that it would be about $6.62; that thereupon he wrote to Matthis to ship it to him. It appears that when the wagon was delivered by Matthis to the Great Western Railway Company, it was not crated or prepared for shipment in the manner required by the company’s rules, and, therefore, the charge for its transportation was greater than the rate contended for by the defendant. No rate was fixed by the contract of shipment, and when the- plaintiff’s freight inspector saw the wagon and ascertained its condition he fixed the rate thereon which is provided for by what is called the western classification, and which it appears ajjplied to all roads west of the Mississippi river, the plaintiff included, and. directed the- agent of the road at Beatrice to collect that rate from the defendant. It also appears from the evidence that if the wagon had been crated according to the regulations set forth in the western classification of freights, which classification, together with the rates prescribed thereby, appears to «have been posted in the depots of all said roads, the cost of the shipment would have been $6.62, but for lack of proper crating the rate was $13.80, the amount claimed by the plaintiff. There is no conflict of evidence on these questions. The plaintiff claimed the right to hold the property until its lien for the freight charges was paid, while the defendant demanded its delivery on the *574payment of the lesser rate. This was the real question in dispute, and on the trial the court submitted the question of the reasonableness of the regulations, classification and freight charges to the jury, by the following'instructions :\n“2. You are instructed that every common carrier in this state is entitled to a lien upon the property transported by it for the proper and reasonable freight charges thereupon, and that, unless you believe from the evidence that the plaintiff has tendered to the defendant the reasonable and proper freight charges for the shipment of said goods, the defendant will be entitled to a verdict at your hands. If, on the other hand, you find that the amount which Avas tendered to the defendant is the reasonable, proper and usual freight charges under the rules and regulations which have been introduced in evidence before you, adopted by various railway companies adopting such classifications, and that such regulations are fair and reasonable, then you should find for the plaintiff.\n“3. You are instructed that it is competent for companies engaged in the business of common carriers to adopt rules of classification and tariffs of freight charges for the carriage of goods, and that if said classifications and tariffs are fair and reasonable, they are lawful and proper and must be recognized by persons transacting business with such common carriers.\n“And in this case if you believe from the evidence that such regulations are fair and reasonable and that the goods in controversy were, by the terms and conditions of the western classification which has been introduced in evidence, entitled to be shipped at one and one-half times the first class rate, at actual Aveights, then you should find for the plaintiff. But if, on the other hand, you find that the goods in controversy were under the rules of the western classification entitled to be rated as first class, minimum weight fifteen hundred pounds, then you should find for the defendant.”\nThat a common carrier has a lien for its proper freight *575charges' on property transported over its lines of road and may hold possession of such property until its lien is paid, is the settled law of this state. It is equally well settled that on tendering the amount of freight charges actually due the carrier, the owner may replevy his goods, and it is unnecessary to again refer to' these questions.\nThe plaintiff’s first contention is, that the court erred in giving the instructions above quoted. A common carrier may make reasonable rules as to the reception, carriage and delivery of freights; such rules and regulations shippers are to conform to. Their reasonableness is a question of laAV for the court to decide. Rorer, Railroads, 227; Illinois Central R. Co. v. Whittemore, 43 Ill. 420; Vedder v. Fellows, 20 N. Y. 126; Tracey v. New York & Harlem R. Co., 9 Bosw. (N. Y.) 396. In Illinois Central R. Co. v. Whittemore, supra, the court said:\n“The circuit court left it to the jury to say whether the rule was reasonable. This was error. It Avas proper to admit testimony, as was done, but, either Avith or Avithout this testimony, it was for the court to say whether the regulation was reasonable, and, therefore, obligatory upon the passengers. The necessity of holding this to be a question of law, and, therefore, within the province of the court to settle, is apparent from the consideration, that it is only by so holding, that fixed and permanent regulations can be established. If this question is to be left to juries, one rule Avould be applied by them today and another tomorroAV. In one trial a railway company would be held liable, and in another, presenting the same question, not liable. Neither the companies nor passengers Avould knoAV their rights or their obligations. A fixed system for the control of the vast interests connected Avith railways would be impossible, while such a system is essential equally to the roads and to the public.”\nIn the case at bar, there was no conflict of evidence on the question as to Avhat the regulations were Avhich had been fixed by the western classification as to the manner of preparing the Avagon in question for shipment. Neither *576was there any dispute as to the rate fixed for its transportation, when prepared for shipment according to said rules and regulations. Therefore, it was the duty of the court to determine, as a matter of law,- whether the regulations contained in the classification, which was introduced in evidence, were reasonable or not; and whether the sum charged for transportation thereunder was the proper amount. If these questions are left to the determination of juries, freight rates will soon reach a condition of chaos. What one jury might think was reasonable and just another jury might reject. And so it would soon be impossible for common carriers to conduct their business with any degree of fairness or uniformity towards their customers.\nAg..i i,-it is well known and understood that railroad companies act only through their agents; that it is necessary for them to adopt rules and regulations for the guidance of such agents, and it is generally understood that persons dealing with such corporations are to be governed by these rules and regulations, if fair and reasonable. It, therefore, becomes necessary for the courts, as a matter of law, to determine the question of the reasonableness thereof in case, of a disagreement between the railroads and their customers, because such rules are a part of the contract.\nFor these reasons, we hold that the court erred in giving the instructions complained of.\nWe deem it unnecessary to consider any of the other assignments of error. For the giving of the instructions above quoted, we recommend that the judgment of the district court be reversed and the cause remanded for a new trial.\nAlbert and Glanville, GO., concur.\nBy the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial.\nReversed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"chicago-rock-island-pacific-railway-co-v-colby","summary":"Error to the district court for Gage county: Charles B. Letton, District Judge."} {"attorneys":"Owsley fy Goodloe for plaintiff: Turner for defendants.","case_name":"Portwood v. Qutton's Adm'r","case_name_full":"Portwood v. Qutton's Adm'r.","case_name_short":"Portwood","citation_count":0,"citations":["42 Ky. 247"],"court_full_name":"Court of Appeals of Kentucky","court_jurisdiction":"Kentucky, KY","court_short_name":"Court of Appeals of Kentucky","court_type":"SA","date_filed":"1842-10-26","date_filed_is_approximate":false,"headnotes":"\nMortgages. Contracts. Liens. Exhibits.\n
Decree of the CircuitUourt.
The ‘lien of -one ■who is no party to a proceeding and decree, un*. der which prop** erty is directed to be sold, is not affected by such decree — nor can a purchaser under such decree thereby acquire the absolute title.
It is not the duty of the Court to look beyond the papéis filed by the parties to the suit, to ascertain whether there was or not a lis pendens that might operate on the rights in litigation — norupon the coming in ofa new party, after the rights of the Erevious parties adbeen settled, to look into the records and exhibits filed by such new party, and on such evidence change the rights as settledby interlocutory decree between the original parties.
—Tho’ the Court might, for good cause, on motion of one of the original parties, have set aside the interlocutory decree, and reheard the case, but it would not have beentheduty of the Court, if the evidence power of the pargile“exhibit!
rents“if he have mísls^the pre” A subsequent incumbrancer purchasing at a sale under adecree in behalf of a prior incumbrancer, has a right in equity to be substituted to the extent of the am’t ofthemoneypaid. under such purchase, subject to - — for
Á m'origage of land without a seal or scroll is not constructive notice — tho’ it create an equity between the parties, and is good against a subsequent incrabrancer with notice.-
Á creditor consenting to a provision' made for ih'e wife and children of his debt- or, cannot after-wards disturb it.
","id":7216301,"judges":"Ewing","opinions":[{"author_str":"Ewing","ocr":true,"opinion_id":7128286,"opinion_text":"\nJudge Ewing\ndelivered, the opinion of the Court.\nIn 1827, Levvis mortgaged to Charles W. Byrd, a tract of land in Jessamine, and a ferry on the Kentucky river, called the upper ferry, with the lands appurtenant, to secure the payment of $5000. In 1828, Lewis sold the ferry and lands adjoining, to Grimes and Matson, for $15,000, and took their notes for the consideration, some of which notes Lewis afterwards assigned to Outton, who sued Grimes and Matson for the amounts, who set up a defence, and after an angry contest for some time,1 Lewis, Matson, Grimes and Outton, in 1833, compromised, and entered into articles of agreement, by which the contract of sale was cancelled, and Lewis, to secure the payment of the notes which had been assigned to Outton, or rather the advances secured by the assignments, covenanted to make to him a mortgage upon the upper ferry,. and lands appurtenant, and on the tract of land in Jessamine. Lewis had, prior to this compromise, executed to Portwood a mortgage of. the tract of land in Jessamine, and of various articles of personal property, to secure him in the payment of $1200, acknowledged to be owing. This mortgage was duly recorded, but there is no *248seal or scroll attached to the name of Lewis. A lower ferry on the Kentucky river, which belonged to Grimes, was by the compromise, to be surrendered up to' Lewis, upon terms agreed on, and afterwards, by the consent or acquiescence of all parties and their attorneys, the lower ferry was to be secured to the benefit of Mrs. Lewis and her children, and a conveyance was accordingly made to ' Portwood as trustee, for their use. Lewis having failed to execute a mortgage to Outton, upon the upper ferry and tract of land, according to his covenant, Outton filed .his bill against Lewis, Portwood, and Byrd’s devisees, he having died, charging fraud in the mortgage to Port-wood, and in the conveyance to him in trust for the use of Mrs. Lewis and children, &c. &c. and praying that the upper ferry and land agreed to be mortgaged to him, might be treated as executed, and the ferry and land sold to satisfy his demand. Lewis and Portwood answered, denying fraud, and Portwood made bis answer a cross bill, praying for a foreclosure of his mortgage. Outton having died, and the suit being revived in the name of his administratrix, Portwood filed an amended answer and cross bill, in 1836, in which he alledges that the upper ferry and land adjoining, had been sold by a commissioner, since the last term, under a decree of the Mercer Circuit Court, obtained by two of the devisees of Byrd, in part satisfaction of their prior lien upon it, and he had become the purchaser for $1400, and had obtained the commissioner’s deed for the saqae, wdiich he exhibits; he also exhibits the decree of the Mercer Circuit Court, which appears to have been rendered at the July term, 1835. In a subsequent aprended answer and cross bill, in which he sets up the same matter, and claims protection to his purchase, he says he will in due time produce the record and proceedings of the Mercer Circuit Court. There being no other parts of the record filed, b.ut the decree and commissioner’s deed aforesaid.\nDecree of the CircuitUourt.\nAt the February term, 1839, the cause was submitted to the Court for hearing, and an interlocutory decree rendered, determining that Portwood did not acquire by his purchase, a fee-simple in the upper ferry, as Outton was not party to the suit in Mercer, but that Byrd’s lien being *249prior, he was entitled to be substituted in the place of the devisees, to their lien on the ferry, for the amount which he paid in the purchase; and subject to a deduction for rents, that sum should be first paid to him. His prior lien upon the tract of land and personal estate for $1200 and interest, was sustained. Outton’s demands were also settled, and a lien allowed him upon the upper ferry and tract of land, subject to Portwood’s prior lien; a commissioner appointed to assess rents, and make report, and the cause continued as to the claim set up by Outton, as a general creditor, to subject the lower ferry to sale in satisfaction of his demands.\nThe ‘lien of -one ■who is no party to a proceeding and decree, un*. der which prop** erty is directed to be sold, is not affected by such decree — nor can a purchaser under such decree thereby acquire the absolute title.\n*249In March, after this decree was rendered, one Ballard, claiming to have purchased the tract of land in Jessamine, under the Mercer decree in favor of Byrd’s devisees, petitioned the Court to be admitted a defendant, and an order was made requiring Outton’s administrator to make him a defendant, which was done, and at the June term he filed his answer, exhibiting a full copy of the record from Mercer, in which it appears that the suit was instituted in 1830, by Byrd’s devisees, against Lewis, Matson and Grimes, and they were all served with process and had answered before the compromise, by which the sale to Grimes and Matson was cancelled, and Lewis stipulated to mortgage the tract of land and upper ferry to Out-ton, and was at that time in vigorous prosecution. The commissioner appointed in February before, also made his report at the same time, At the September term, no motion having been made to set aside the interlocutory •decree, or to grant a re-hearing, the Court gave a final decree, carrying out the principles he had before settled with respect to the upper ferry, and dismissed Outton’s bill as to the lower ferry, and continued the cause for further preparation as to the tract of land, and the claim of Ballard upon it. Portwood has brought the case-to this Court, and Outton has assigned various cross errors.\nThe decree of Mercer, rendered in 1835, in favor of Byrd’s devisees, two years after the insti tution of Outton’s suit and to which decree he was no party, cannot affect Outton’s rights; nor can Portwood’s purchase under it ■invest him with the absolute title. He purchased while *250Outton’s suit was pending for the ferry, and can hold it only subject to the decree that might be rendered. The decree in Mercer, which was the only part of the record that was exhibited before Outton’s suit was submitted for hearing, does not show that the suit in Mercer was instituted or was pending at the time of the compromise, by which Outton acquired his equity, nor that it was even instituted before the commencement of Outton’s suit. Of course Outton’s rights could not be overreached or affected by that proceeding.\nIt is not the duty of the Court to look beyond the papéis filed by the parties to the suit, to ascertain whether there was or not a lis pendens that might operate on the rights in litigation — norupon the coming in ofa new party, after the rights of the Erevious parties adbeen settled, to look into the records and exhibits filed by such new party, and on such evidence change the rights as settledby interlocutory decree between the original parties.\n—Tho’ the Court might, for good cause, on motion of one of the original parties, have set aside the interlocutory decree, and reheard the case, but it would not have beentheduty of the Court, if the evidence power of the pargile“exhibit!\n*250But it is contended, that it was the duty of the Court, before rendering a final decree, to look into the complete record filed by Ballard, in his branch of the case, and with a view to the protection of the tract of land purchased by him, and finding by this inspection, that the suit bad been instituted and was pending when Outton acquired his equity, and that he being a pendente lite purchaser, held subject to that decree, that the interlocutor should have been set aside, and a decree rendered protecting Portwood’s purchase. We think otherwise. The cause had been submitted to the Court, upon a full hearing, upon the records, papers and proofs then on file; the Court had decided it upon these proofs, and settled the rights of the parties, and could not be required to open the decree and grant a re-hearing, upon evidence after-wards exhibited by Ballard, for the protection of his claim to the land. It was proper for him to be heard on that branch of the case, as he had not yet been made a party, or heard as to his rights before. But it was otherwise with Portwood, he had submitted the cause to the Court upon the proofs on file, and the case had been fully heard as to his rights to the ferry.\nHad he move,d the Court to set aside the interlocutor, and grant a re-hearing, the Court would not have been bound to do so, as a matter of course, in order to admit other evidence of any kind, and ought not to have done so, unless for good cause shown. And if the new evidence offered was within the power of thepaty, and by sheer negligence had not been filed before the hearing, it would certainly not have been the duty of the Court to grant the indulgence. But no motion was made, and *251surely without such motion and cause shown, Portwood could not be indulged in thrusting into the papers new evidence, record or parol, and requiring the Court to look into it and change and modify his decree accordingly, it Portwood could not file new matter, and require the Court to look into and regulate his decree by it, without a motion for a re-hearing, much less could he require the Court, without such motion and re-hearing granted, to look into the record exhibited by Ballard, in another branch of the case and for his own benefit, and the protection of another tract of land than the ferry purchased by Port-wood.\nrents“if he have mísls^the pre” A subsequent incumbrancer purchasing at a sale under adecree in behalf of a prior incumbrancer, has a right in equity to be substituted to the extent of the am’t ofthemoneypaid. under such purchase, subject to - — for\nWe perceive, therefore, no error in the decree, to the prejudice of Portwood.\nNor are any of the cross errors assigned by,Outton, in our opinion, sustainable.\n1. Though the decree in favor of Byrd’s devisees, from the facts exibited on the hearing, cannot be made to overreach the decree in this case, yet it is clear that the devisees lien upon the upper ferry, purchased by Port-wood, is prior to the lien of Outton. Its priority and validity is acknowledged in the article of compromise, and Outton agreed to yield to its priority, in case the mortgage was executed to him by Lewis, and seeking to enforce his lien upon the property, to the same extent as if the motgage had been executed, he can obtain it upon no other terms than those to which he agreed to submit, in case the mortgage had been executed Besides, there are other facts in the record, satisfactorily evidencing the priority of Byrd’s lien, which we will not stop to enumerate. The devisees lien being elder and superior to Outton’s, Portwood, to ihe extent of the money that he paid upon his purchase, in discharge of their debt, has an equitable right to be substituted to their prior lien, and to require that the money so paid and interest, may be first made out of the sale of the ferry, subject however to a deduction for rents and profits received by him from the same, which Byrd’s devisees, had they received them, would have been required to account for in satisfaction of so much of their lien.\nOwsley fy Goodloe for plaintiff: Turner for defendants.\nÁ m'origage of land without a seal or scroll is not constructive notice — tho’ it create an equity between the parties, and is good against a subsequent incrabrancer with notice.-\nÁ creditor consenting to a provision' made for ih'e wife and children of his debt- or, cannot after-wards disturb it.\n2. The debt of Byrd’s devisees, secured by their lien, was in fact never paid, and the shuffling and changing of notes between Lewis, the administrator and debtor, and Grimes and Matson, -with a view to its postponement, cannot have the effect to extinguish their equitable lien. Lewis,- the debtor,, stood in a double fiducial relation to them, and will not be permitted, in a Court of Chancery, by arrangements with others, with respect to his own debt, to lessen the security for its ultimate payment.\n3: Though Portwood’s mortgage upon the farm and other property had no seal or scroll, and was not a recordable instrumet witin the statute, and consequently the placing it on record was not constructive notice to subsequent purchasers and creditors, yet it transferred to Port-wood an equity, and that equity is prior in time to the equity of Outton, which consists in a mere covenant to mortgage, and between mere equities, the elder must prevail, with or without notice. Outton had no more right to require notice of Portwood’s equity than Portwood had a right to require notice of his. Moreover, we are satisfied, from the proof in the cause, that Outton had notice of Portwood’s equity before his own was created.\n4. By the agreement or acquiescence of all parties, including their attorneys, the lower ferry, which was to be surrendered and transferred by Grimes, as a part of the compromise, was to be secured for thé benefit of Mrs. Lewis and her children, as a pittance out of the wrecked estate of her husband, and the ample fortune which she had brought to him on their marriage; and the conveyance was accordingly made to Portwood for their use. Outton tacitly consented to, and acquiesced in this arrangement, and was content to receive and look to the provision which was made for him. Under these circumstances, a Court of. Chancery will not aid him in disturbing this just and equitable provision made for a destitute wife and children.\nThe decree is therefore affirmed, as well upon’ the errors assigned by Portwood, as on those assigned by Out-ton’s administrator.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"portwood-v-quttons-admr","summary":"Error to. the Madison Circuit-. Chancery, Case 70. The ease stated."} {"attorneys":"For the prosecutor, Milberg & Milberg (Samuel Tartalsky, of counsel)., For the defendants, Peter Bentley (Herbert Clark Gilson, of counsel).","case_name":"Seidman v. John Craven & Sons Co.","case_name_full":"DAVID SEIDMAN, PROSECUTOR v. JOHN CRAVEN & SONS COMPANY, ALBERT T. SUMMERFIELD AND WILLIAM H. BROWN","case_name_short":"Seidman","citation_count":0,"citations":["6 N.J. Misc. 1062"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1928-11-24","date_filed_is_approximate":false,"id":7367072,"opinions":[{"ocr":true,"opinion_id":7285886,"opinion_text":"\nPer Curiam.\nThe action of the prosecutor was instituted under section 96 of the District Court act (3 Comp. Slat., p. 1895), which section provides as follows: \"If any person shall enter upon or into any lands, tenements or other possessions, and detain or hold the same with force or strong hand, or with weapons, or breaking open the doors, windows or other part of a house, *1063whether any person be in it or not, or by any kind of violence whatsoever, or by threatening to kill, maim or beat the party in possession, or by such words, circumstanuces or actions as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors, or carrying away the goods of the party in possession, or by entering peaceably and then turning by force or frightening by threats, or by other circumstances of terror, the party-out of possession; in any such ease' evey person so offending shall be guilty of a forcible entry and detainer within the meaning of this act.”\nSection 97 provides: “No person who shall lawfully or peaceably enter upon or into any lands, tenements or other possessions, shall hold or keep the same unlawfully and with force, or strong hand, or weapons, or violence, or menaces, or terrifying words, circumstances or actions aforesaid; and it is hereby declared that whatever words or circumstances, conduct or actions will make an entry forcible under this act shall also make a detainer forcible.”\nSection 98 provides: “The three next preceding sections of this act shall extend to and comprehend terms for years, and all estates, whether freehold or less than freehold.”\nThe record before us for review, by writ of certiorari, discloses that the posecutor was nonsuited in the Second District Court of Jersey City. The trial judge, sitting with a jury, nonsuited the plaintiff, upon the ground that the cause of action was coram non judice, and was controlled by the decision of this court in Miller v. Kutchinski, 92 N. J. L. 97.\nAs section 96 of the District Court act, supra, expressly confers jurisdiction of this class of cases on the District Court, and as the case sub judice was brought under that section it cannot properly be said that the action was coram non judice.\nThe cause of action dealt with by the Supreme Court in Miller v. Kutchinski, supra, was founded on the Eorcible Entry and Detainer act (2 Comp. Stat., p. 2598), but this is not the case here. This may be of slight importance, since the facts developed in the instant case are very dissimilar. This leaves the question whether or not there was any proof of either forcible entry or unlawful detainer.\n*1064The facts, disclosed at the trial, are as follows: About the middle of June, 1926, in a conversation had between the defendant Brown, who was the treasurer of the John Craven & Sons Company, and the prosecutor, something was said by the former to the latter concerning the leasing of the premises in question to him. From that conversation it is gleaned that the prosecutor was willing to pay $100 per month rent for the premises, whereupon Brown undertook to find out what rent the owner of the premises, Summerfieíd, wanted for the premises. In that latter part of June, 1926, Brown wrote to the prosecutor the following: “Mr. Summerfield, owner of the store, 73 Railroad avenue, states he will not rent the store for a cent less than $125 per month.”\nThe testimony then is to the effect that on the 30th day of June the prosecutor gave his check for $125 to Brown, for which the former received a receipt, which was dated July 15th, 1927, and recites the following: “Received from Mr. Seidman $125 in payment for rent due in advance, for house No. 73 R. R. avenue, Jersey City, for the month ending August 15th, 1926.”\nThis receipt, on its face, has printed under it the word “agent,” but without signature, and at the bottom appears the following: “John Craven & Sons Co. paid L. June 30th, 1926.”\nThere was also testimony to the effect that Brown handed to the prosecutor a key for the premises. But on July 2d, 1926, Brown returned the money to the prosecutor. The prosecutor testified that in the conversation alluded to, he was told that if he wanted the premises for $125 a month there would have to be a lease for three years. Of course, an oral agreement, if made for such a term, was void, as being within the statute of frauds.\nIt was not until the 16th day of September, 1926, when the defendants were served by the prosecutor with the following notice: “I hereby demand of you to forthwith deliver to me possession of premises and store, situate and known as No. 73 Railroad avenue, in the city of Jersey City, county of Hudson, and State of New Jersey, which said possession *1065I am entitled to, and that in default of compliance with the said demand, you will forthwith be proceeded against, as guilty of forcible entry and unlawful detainer.”\nThe defendant Summerfield testified that he owned the premises, and that John Craven & Sons Company, nor anyone else, had any authority to sign his name to any lease without his express authority. He further testified he had never given the Craven company any permission to let the premises to the prosecutor; that he never signed any lease for the premises, and as far as he knew, the Craven company had never signed any lease or leases for him, but had acted for him in the collection of rent.\nThe undisputed fact in the case is, that the right of entry of the prosecutor, if he had any, did not commence before July 15th, 1926.\nIt was essential in order for the prosecutor to recover on the theory of forcible entry, to show that he was legally in actual possession at the time he alleges there was a forcible entry, and secondly, if he was forcibly ousted, and is legally entitled to possession, in order for him to succeed on the theory that there was and is an unlawful detainer, it was incumbent upon him to establish that he was legally entitled to actual possession.\nIt was practically conceded, by counsel of prosecutor, at the trial, that there was no testimony establishing either forcible entry or unlawful detainer, by either Summerfield or the Craven company. The insistence being that a nonsuit ought not to have prevailed in favor of Brown, the treasurer of the company.\nAt the time the motion for nonsuit was made, the posture of the case was, that it appeared that the prosecutor had at no time been in the actual possession of the premises, which was an essential factor, in order to entitle him to a verdict of restitution, since, if there was a letting, it was for only one month, so that the prosecutor’s right of possession expired on the 15th day of August, 1926.\nThe prosecutor gave the statutory notice for possession of the premises to the defendants nearly a month after the monthly term of the letting had expired.\n*1066The verdict in a case of unlawful detainer is restitution of the premises to the person entitled to possession.\nAs Brown had .no estate in the premises and was not in either actual or constructive possession, it is quite clear that under the provisions of the statute upon which the prosecutor’s action is based, Brown could not be properly held to answer, and therefore the nonsuit granted in his favor was proper judicial action.\nJudgment is affirmed, with costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"seidman-v-john-craven-sons-co"} {"attorneys":"John B. Files, Shreveport, for appellant., Booth, Loclcard & Jack, Shreveport, for appellee.","case_name":"Weeks v. Consolidated Underwriters","case_name_full":"WEEKS v. CONSOLIDATED UNDERWRITERS","case_name_short":"Weeks","citation_count":0,"citations":["58 So. 2d 289"],"court_full_name":"Louisiana Court of Appeal","court_jurisdiction":"Louisiana, LA","court_short_name":"Louisiana Court of Appeal","court_type":"SA","date_filed":"1952-03-28","date_filed_is_approximate":false,"id":7482673,"judges":"Hoc, Kennon, McInnis","opinions":[{"author_str":"McInnishoc","ocr":true,"opinion_id":7404519,"opinion_text":"\nMcINNIS, Judge ad hoc.\nThis workmen’s compensation suit against Consolidated Underwriter’s, the insurer of James A. Pace, for compensation at the rate of $26 per week, not exceeding four hundred weeks, less compensation paid, results from an accident to plaintiff on February 7, 1951, while working for Pace at his sawmill in Logansport, Louisiana, as a saw filer and performing some work as a millwright.\nThere is no dispute as to the happening of the accident and the wages being paid to plaintiff, but it is forcefully urged by defendant that his injury was minor and that he was fully recovered prior to the date of the trial.\nAfter trial on the merits, there was judgment in the lower court in favor of the plaintiff for $26 per week during the period of his disability, not to exceed four hundred weeks, less compensation paid.\n. The undisputed facts are that on February 7, 1951, plaintiff had gone up a flight of steps into the mill to relieve the sawyer and had started down the steps to resume his saw filing. The steps were steel and had ice on them, and plaintiff lost his footing and slipped down the steps on his back and suffered some injury by the fall. A Negro named Prince Jackson was following him down the steps and went down to pick him up and asked if he was hurt, but he made no answer, so Jackson called Mr. C. H. Farris, sawyer and mill foreman, who came down to see about him and founa him sitting either on the ground or on the bottom step, stooped over with his head in his hands. Farris asked him if he was hurt and he said he didn’t think he was hurt bad and thought he would be all right. However, Mr. Farris sent him to the doctor by another employee. He was carried to see Dr. W. J. Garland at Logansport for treatment.\nMr. Farris says plaintiff was a good worker, and, so far as he knows, never had any trouble with his back while working at the mill, and a neighbor, N. P. Eaves, testified as to his apparent disability since the accident. Albert D. Downer, director of a Veterans’ electrical school at Center, Texas, which plaintiff was attending at the time of the accident and since, testified that prior to the accident plaintiff was apparently not suffering from any disability but since that time, he has not been able to do very much in the school and he had to put him on what he called “book work.”\nThree doctors, D. F. Overdyke, S. W. Boyce and R. A. Paine, testified on behalf of plaintiff, but did not treat him, except that Dr. Overdyke recommended a Williams brace for his back, which plaintiff was wearing at the time of the trial. These doctors had the benefit of the X-rays of plaintiff’s back and found evidence of arthritis and some hyperthesia on the left thigh and foot, and they all concluded that he was, at the time of their examinations, totally disabled to perform the work he was doing when injured, or work of a similar character, but they could not be so sure whether or not it would be permanent. They said he might get better and he might not.\nDefendant offered as witnesses Doctors W. J. Garland and J. R. Brown. Dr. Garland saw plaintiff on February 7, 8, 10, 12, 14, 17, 19, 22, 24, 27 and 28, and March 3, 6, 10,14, 21, 28, and April 4, 10, 19, 25, 1951. He says that his impression was that Mr. *291Weeks had received a moderately severe strain of his lower back, and it was his opinion that he should have recovered in six to eight weeks, and when he last saw him on April 25th, he was of the opinion that he was not permanently and totally disabled. He did not see him after that date. However, Dr. Garland sent him to Dr. J. R. Brown for X-rays.\nPlaintiff has had several accidents prior to this one. When he was about fifteen years old, he had a neck injury from which he apparently fully recovered. Later he was inducted into the Army, where he served sixteen months. While home on furlough, he sustained another injury to his head and neck by jumping into a shallow pond of water and was later given a medical discharge from the Army. April 20, 1944, while working as a roughneck, he sustained a back strain and was disabled for a short time and paid $150 in settlement of that claim. On June 4, 1945, while working in the shipyard at Beaumont, Texas, he fell and sustained a rather serious back injury, for which he filed suit claiming total and permanent disability, but this case was settled for $900. And of course the injury for which he now claims compensation, making in all five injuries, and Dr. Brown is of the opinion that the changes in his back, shown by the X-rays, result from these old injuries sustained by plaintiff. Dr. Brown could not say whether or not he is totally and permanently disabled, but he did say that he would not pass him for industrial work in the condition he found him.\nDefendant urges that plaintiff is bound by the allegations of his petition filed in the District Court of Jefferson County, Texas, wherein it is alleged that he was then totally and permanently disabled, and contends that a man can be totally disabled only one time, and that he is barred from making a claim of total and permanent disability in this case. However, he was not totally and permanently disabled because he apparently performed his work without difficulty prior to his injury on February 7, 1951; in fact, the record discloses that he worked fairly regularly, though for different people, for several years after his injury in the shipyard.\nIn our opinion, plaintiff has carried the burden of showing by a preponderance of the evidence that he is totally disabled and there is no assurance that he will recover sufficiently to do the same work or similar work he was doing when injured.\nIn this court, defendant-appellant has filed a motion to reverse the judgment of the lower court and in the alternative, to remand the case to the lower court for the purpose of taking further testimony to show that plaintiff is not now disabled. Annexed to this motion is an affidavit signed by James A. Pace stating that plaintiff returned to work for him on January 10 and worked to January 23, 1952, which was after the date of the judgment in the District Court, and that he did the same work of saw filer and millwright, without any trouble.\nPlaintiff has filed an affidavit in which he says that he did file the saws but that he did not work as a millwright and that his back hurt him all the time he was working and he had to quit on that account. He also filed an affidavit by Babe Fleming, filling station operator, that plaintiff worked part time for him and was not able to work regularly; and an affidavit by Howard Farris stating that he is mill foreman and sawyer for Pace and that plaintiff came back to work in January, 1952, and had to quit at the end of two weeks because he was not able to do the work.\nThere is ample authority for remand of cases such as this whenever a remand appears to be in the interest of justice. The latest of these cases is Cockrell v. Penrod Drilling Company, 214 La. 951, 39 So.2d 429, where other cases are cited. The motion to remand in the cited case alleged that the plaintiff had been employed since July, 1948 as a well driller and it is believed he had been employed from November, 1947, and because of the apparent long period of time that Cockrell had been working, the Supreme Court remanded the case for the taking of evidence on that point.\nIn this case the affidavit shows that the plaintiff worked only two weeks, and there *292is evidence on the part of plaintiff that he had to quit because of his disability.\nWe do not believe that a sufficient showing has been made to justify the remand of this case for further trial at this time. Defendant has a remedy under LSA-R.S. 23:1331, which gives either party the right after six months from the date of the judgment in the trial court to move to have the judgment modified.\nFor all of the reasons assigned above, the judgment appealed from is affirmed, at the cost of defendant-appellant in both courts.\nKENNON, J., not participating.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Rehearing Denied April 30, 1952.","precedential_status":"Published","slug":"weeks-v-consolidated-underwriters"} {"case_name":"State ex rel. Scott v. Criminal District Court, Parish of Orleans","case_name_full":"STATE ex rel. Frank SCOTT, Jr. v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS","citation_count":0,"citations":["512 So. 2d 859"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1987-10-02","date_filed_is_approximate":false,"id":7628487,"opinions":[{"ocr":true,"opinion_id":7560445,"opinion_text":"\nIn re Scott, Frank Jr.; applying for writ of mandamus; Parish of Orleans, Criminal District Court, Div. “B”, No. 283-069.\nDenied. It is clear from the full record that the trial court denied relator’s motion for a new trial and that defense counsel accordingly proceeded with the appeal in State v. Scott, 446 So.2d 448 (La.App. 4th Cir.1984), cert. denied 450 So.2d 358 (La.1984).\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-ex-rel-scott-v-criminal-district-court-parish-of-orleans"} {"attorneys":"Mr. John W. Metzger, Attorney General, Mr. Allen Moore, Deputy, Mr. Frank A. Wachob, Assistant, Mr. Robert Bugdanowitz, Mr. Vincent Cristiano, Assistant, for relator., Mr. John W. Elwell, Mr. Matt J. Kikel, for respondent.","case_name":"People ex rel. Zimmerman v. Flanders","case_name_full":"People ex rel. Zimmerman v. Flanders","case_name_short":"Flanders","citation_count":0,"citations":["121 Colo. 25","212 P.2d 502"],"court_full_name":"Supreme Court of Colorado","court_jurisdiction":"Colorado, CO","court_short_name":"Supreme Court of Colorado","court_type":"S","date_filed":"1949-11-28","date_filed_is_approximate":false,"id":7881483,"opinions":[{"ocr":true,"opinion_id":7827999,"opinion_text":"\nPer Curiam.\nOn March 8, 1949, the Attorney General invoked the original jurisdiction of this court by filing a complaint alleging that the respondent, Milo J. Flanders, is not, and never has been, an attorney at law admitted to practice in Colorado; that the said respondent, upon divers and sundry occasions, visited inmates committed to the Colorado State Hospital; that he counseled and advised them and represented to them that for a fee he could obtain their telease from said institution; that by direct statement or by suggestion, he conveyed the impression to said inmates that he was a lawyer duly qualified to represent them.\nThe complaint specifically alleges that as a result of such representations the respondent was' employed as an attorney to effect the release of John Scheneman, John L. Latch and William Igoe, and that he received a fee from each of said persons for the legal services which he is alleged to have agreed to render. It further is alleged that respondent solicited the payment of a fee for legal services to be rendered by him in securing the release of one Earnest E. Francis from the said hospital, Francis being an inmate or patient therein.\nCitation issued upon the filing of the complaint, commanding respondent to show cause why he should not be punished for contempt of court in holding himself out as an attorney at law. The respondent filed his answer in which he specifically denied that, “He ever *27represented to any one at any time or place that he was a lawyer or attorney at law or that he ever solicited or receives fees from anyone upon the pretence that he was an attorney at law.”\nBy action of this court, O. Otto Moore, one of the justices, was appointed master for the purpose of hearing evidence upon the issues thus tendered. Evidence was taken, a transcript of which was prepared and is on file with the clerk of this court together with briefs which were submitted by counsel representing the parties. The master found that the evidence submitted sustained the allegations of the complaint.\nThe question for determination is: Does the record disclose a violation by the respondent of section 21, chapter 14, ’35 C.S.A.? This section provides: “Any person who shall, without having a license from the supreme court of this state so to do, advertise, represent or hold himself out in any manner as an attorney, attorney at law, or counselor at law, or who shall appear in any court of record in this state to conduct a suit, action, proceeding, or cause for another person, shall be deemed guilty of contempt of the supreme court of this state and of the court in which said person shall so appear and shall be punished therefor according to law; * * *”\nWithout attempting to relate in particular the evidence which sustains the findings of the master, much of which is set forth in detail in his report, it is sufficient here to state that a considerable portion of respondent’s time has been devoted to consulting with inmates of Colorado State Hospital, investigations of the legal proceedings resulting in their commitment to the institution, and advice and activities designed to bring about a release of the patients from further detention at the said hospital. The inherent character of the admitted conduct of respondent and all the attendant circumstances, unquestionably involve the practice of law, and show the doing, as a practice or business, of acts which *28when performed by a lawyer constitute practicing his profession.\nIn People ex rel. v. Denver Banks, 99 Colo. 50, 59 P. (2d) 468, it is said: “We think the drawing of wills, as a practice, is the practice of law.” (Italics supplied)\nIn People ex rel. v. Jersin, 101 Colo. 406, 74 P. (2d) 668, the respondent was absolved from contempt of court where he admitted that on one occasion he had drawn deeds and a will at the request of an intimate friend who was ill. We there stated:\n“There is a twilight zone, and of necessity must be, where the question of whether acts done are a contempt of the court as involving a practice of law are to be judged by the surrounding circumstances and not by the inherent character of the acts themselves.”\n* ❖ ❖\n“It does not follow from the foregoing0 that the court has ho power to punish a layman who assumes to exercise the function and privileges of a duly licensed lawyer. The court is intrusted with the duty of passing upon the qualifications and fitness of men to practice as attorneys at law, and is empowered to license those who apply and are found to possess the necessary qualifications, and to deny a license to those who are found wanting in this respect. One who' would practice law owes a duty to \"the court to apply for the privilege and to submit evidence of his fitness and qualifications. If he makes a practice or business of exercising the privileges conferred upon attorneys by license without the required application and without due authorization by the court, such conduct is evidence of his disregard of, and contempt for, the court’s authority to administer the law and admit persons to the practice of the profession.” '\nThe language above quoted is applicable to this case.\nIt is accordingly adjudged\" that the respondent is guilty of contempt of this court, and it is ordered that he pay the costs of this proceeding; that he be confined *29in the county jail of Pueblo county for sixty days, or, in the alternative, that he pay into the registry of this court a fine of $500.00, and that mittimus issue accordingly.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-ex-rel-zimmerman-v-flanders"} {"attorneys":"Gardner & Hood, for appellant., 8. L. Kilbourne, for appellee.","case_name":"Wilson v. Bray","case_name_full":"WILSON v. BRAY","case_name_short":"Wilson","citation_count":0,"citations":["171 Mich. 685"],"court_full_name":"Michigan Supreme Court","court_jurisdiction":"Michigan, MI","court_short_name":"Michigan Supreme Court","court_type":"S","date_filed":"1912-10-01","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"1. Fraud — Sales—Deceit—Trial—Charge.
Plaintiff and appellant, in an action for fraud and deceit employed to induce plaintiff to becdme the joint purchaser with others of a stallion, was not prejudiced by the failure of the trial court to instruct the jury what representations, if made, were important and controlling, or to charge them that one material representation, if made and relied upon, might be sufficient to warrant a verdict for plaintiff, whose claim as to the falsity of the statements-and the mating of fraudulent representations the court assumed to have been proved, not submitting either issue to the jury.
2. Same — Evidence—Value.
Evidence that the animal had, subsequently to the time of the transfer, shown his quality to be as represented, was admissible in connection with testimony tending to show that only by such experience and trial could his value be shown.
","id":7993569,"judges":"Bird, Brooke, McAlvay, Moore, Osteandee, Steere, Stone","opinions":[{"author_str":"Osteandee","ocr":true,"opinion_id":7947132,"opinion_text":"\nOsteandee, J.\nAn association was formed for the purpose of buying and exploiting a Percheron stallion, three years old; each member of the association acquiring a one-twelfth interest therein and in the> horse. Plaintiff and defendant were members of the association. The purchase price of the horse was $2,400, and notes were given for this amount, executed by the members individually, later sued upon, and the judgment recovered paid. The horse was bought in March, 1903, and this action was begun in August, 1908, and tried in December 1910, resulting in a verdict and judgment for defendant. It is an action for damages for fraud and deceit, alleged to have been practiced by defendant in inducing plaintiff to become a member of the said association and one of the purchasers of the horse. The horse was sold to the association with a guaranty that he was a sure foal-getter and, with proper care and handling, a producer of good stock. It was. agreed by the vendor that if the horse was not as represented he would return the notes given for his purchase price, or replace him with another horse of the same breed. In joining the said association and becoming bound for the purchase price of the horse, plaintiff claims to have been wholly influenced by, and to have relied upon, certain representations made by defendant. These representations were that the stallion was a valuable animal for breeding purposes, a sure foal-getter, and well worth $2,400, and that a share in him and in the enterprise was a good investment; that he (defendant) was *687purchasing a one-twelfth interest in the horse, would sign the notes and be liable thereon as the other signers were. It is alleged that defendant, at the time he made the representations, knew that the horse was not worth to exceed $300, was not a good breeder or a sure foal-getter, but, having been employed and paid by the vendor to make the representations and to accomplish the intended deceit, he falsely appeared to be himself one of the purchasers of the horse, and to pay one-twelfth of the purchase price. The sum he paid, viz., $»00, had theretofore been paid to him by the vendor, with an understanding that he should be no further liable.\nDefendant denied the making of any of the alleged representations. He admits having given his opinion, and insists, and produced testimony to prove, that his opinion was sound. That is to say., he contended at the trial that the horse was a good horse and a sure foal-getter, and that, with proper management, the investment would have- been profitable to the purchasers. He testified that he stated to plaintiff that he was employed by the owner and vendor of the horse to aid in disposing of him.\nUsually,in a case of this character, it is the province of the jury to determine, first, whether the alleged representations were made, and, if made, then, second, whether they were false or true, and, if false, then, third, whether they were calculated to and did in fact influence the plaintiff to his injury. Curiously enough, what defendant said and the truth of whatever he said about the horse and the venture do not appear to have been questions submitted to the jury. The initial questions whether defendant made any material false statement about the horse or the venture are not suggested in the instructions to the jury. The nearest approach to it is in the following language:\n“ In this case, to entitle plaintiff to a verdict, you must not only believe from the evidence that the false and fraudulent representations were made, but also that they were *688made under circumstances calculated to deceive a person acting with reasonable prudence and caution.”\nOn the other hand, the jury was told—\net That in forming a company or corporation every subscriber has a direct interest in the subscriptions, because all are contributing to a common object. The fact that one person binds himself to place a certain sum of money in the enterprise, taking the ordinary risks incidental to such a business venture, is an inducement to others to venture in a like manner. Any secret agreement between the company, or those organizing the company, and a subscriber, which changes the condition of his subscription is a fraud upon the other subscribers. If Mr. Bray entered into a secret agreement with Mr. Comstock which would change the terms of Bray’s subscription, and then Bray, without disclosing this secret agreement, induced Wilson to become a subscriber, and Wilson, relying on Bray being a bona fide subscriber, did actually become a subscriber, then Bray is liable for any loss or damage which Wilson may have sustained, and you must find him guilty.”\nThe errors assigned by plaintiff are based upon exceptions to rulings upon the admission of testimony, upon portions of the charge given, and the refusal to instruct the jury as requested. The brief for appellant contains a critical examination of portions of the charge which are singled out; some of the objections being generally well founded. But it must be admitted that the charge as a whole was favorable to the plaintiff. The language employed by the court assumes, in substance and effect, that the representations claimed to have been made were made, and were not true. The points to which the attention of the jury was directed were (1) whéther they were of such a character and made under such circumstances that a reasonably prudent person should have relied upon them, and (2), as to the alleged secret agreement, whether plaintiff, relying upon the terms of Bray’s subscription and his apparent equal interest and responsibility, was induced to join the association and pledge his credit.\nA careful reading of the record, including the charge, has convinced me that plaintiff’s objections to the charge *689are met by the apparent assumptions indulged by the court, and by the very pointed instruction relating to defendant’s liability if a secret agreement existed between defendant and the vendor. It is true, as appellant contends, that the court did not state or point out what representations about the horse were, if made, important and controlling, and did not instruct that one material false representation, if made and relied upon, was, or might be, sufficient to justify a verdict. But, as has been said, the charge assumes that all of the alleged representations were made and were false — an assumption which was wholly unwarranted if the jury believed the testimony of defendant and his witnesses. In my opinion, the verdict should not be disturbed for any error in the charge, nor at all if improper testimony was not admitted.\nWith respect to the alleged objectionable testimony, it is-said that the issue was what was this stallion worth in March, 1903, and that testimony of his subsequent history and of the number and value of his foals was improperly admitted. The testimony, so far as it is contained in the record, is conclusive and quite agreeable with reason that the real value of a young breeding horse is a fact to be determined by his performances, and that his apparent value is determined by his individual excellence, his breeding, and promise. It is claimed that defendant represented as a fact within his own knowledge that the horse was a sure foal-getter. It does not appear how defendant could have had any such knowledge; but, aside from this, defendant undertook to prove .that, whether what he said was mere opinion, or was a statement of fact, the statement was in fact true. In view of plaintiff’s allegations and position, he had the right to prove it if he could. How ? Necessarily by proving that he got foals, and as many, the number of attempts considered, as other good horses. further, that the foals lived, were strong, and came to maturity, and were of such excellence that there was a market for them, in which they were sold at good *690prices. It is evident that time alone will demonstrate the value of such an animal for the purposes for which he was sold, and that it was not error to receive the testimony which tended to prove that this horse showed by performance that he was a sure foal-getter and good breeder. The testimony tended to prove, also, that the venture was one calculated to be, and which might have been made, profitable to the adventurers.\nThe judgment, upon the whole record, ought not to be disturbed, and is affirmed.\nMoore, C. J., and Steere, McAlvay, Brooke, and Stone, JJ., concurred. Bird, J., did not sit.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted April 10, 1912.","precedential_status":"Published","slug":"wilson-v-bray","summary":"Error to Ingham; Collingwood, J. Case by William O. Wilson against Mahlon A. Bray for fraud and deceit. Judgment for defendant. Plaintiff brings error."} {"case_name":"Commonwealth v. Hill, L.","case_name_short":"Commonwealth","citation_count":0,"court_full_name":"Supreme Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Supreme Court of Pennsylvania","court_type":"S","date_filed":"2022-10-18","date_filed_is_approximate":false,"id":8403812,"judges":"Per Curiam","opinions":[{"download_url":"https://www.pacourts.us/assets/opinions/Supreme/out/267MAL2022 - 105310031201235042.pdf","ocr":false,"opinion_id":8374155,"opinion_text":" IN THE SUPREME COURT OF PENNSYLVANIA\n MIDDLE DISTRICT\n\n\nCOMMONWEALTH OF PENNSYLVANIA, : No. 267 MAL 2022\n :\n Respondent :\n : Petition for Allowance of Appeal\n : from the Order of the Superior Court\n v. :\n :\n :\nLOUIS HILL, :\n :\n Petitioner :\n\n\n ORDER\n\n\n\nPER CURIAM\n\n AND NOW, this 18th day of October, 2022, the Petition for Allowance of Appeal is\n\nDENIED.\n\f","page_count":1,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"commonwealth-v-hill-l"} {"case_name":"Davis v. United States","case_name_full":"Quartavius DAVIS v. UNITED STATES.","case_name_short":"Davis","citation_count":0,"citations":["136 S. Ct. 479","193 L. Ed. 2d 349"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2015-11-09","date_filed_is_approximate":false,"id":8421230,"opinions":[{"ocr":true,"opinion_id":8391578,"opinion_text":"*480Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"davis-v-united-states"} {"attorneys":"Klaus P. Richter, Esq., Office of the U.S. Attorney, Billings, MT, for PlaintiffAppellee., David F. Ness, Esq., Federal Defenders, Great Falls, MT, for Defendant-Appellant.","case_name":"United States v. Granbois","case_name_full":"UNITED STATES of America, Plaintiff—Appellee v. Bryan GRANBOIS, Defendant—Appellant","case_name_short":"Granbois","citation_count":0,"citations":["119 F. App'x 35"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","cross_reference":"See also 376 F.3d 993.","date_filed":"2004-07-22","date_filed_is_approximate":false,"id":8458974,"opinions":[{"ocr":true,"opinion_id":8430726,"opinion_text":"\nMEMORANDUM *\nBryan Granbois appeals his conviction for aggravated sexual abuse of a minor in violation of 18 U.S.C. §§ 1153 and 2241(c). He contends the district court erred in (1) allowing the government to present evidence of other sex crimes he committed against minors, (2) improperly limiting the scope of his expert witness’s testimony, (3) providing the jury with an elements instruction referring to the minor as a “victim,” and (4) denying his motions for aequittal under Fed.R.Crim.P. 29 and motion for a new trial under Fed.R.Crim.P. 33. We affirm.1\nA. Other Crimes Evidence\nThe evidence of Granbois’s prior convictions for abusive sexual contact was properly admitted under Federal Rules of Evidence 413 and 414. The district court evaluated the pertinent factors set forth in United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir.2001), and did not abuse its discretion in determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.\nBoth of the prior acts were similar to the charged conduct in that they involved abusive sexual conduct towards minors. In combination with the present offense, the prior acts show a pattern of conduct involving sexual abuse of minors with increasing boldness and depravity on the part of Granbois: the first incident involved a teenager and “consensual” acts; the second incident involved a younger girl and non-consensual touching over the clothing; in this case, the victim was even younger and the alleged abuse was more serious.\nThe prior acts were close enough in time to the conduct charged in this case to retain their probative value, and there were no intervening circumstances that would have any bearing on the balancing analysis. As in LeMay, the evidence of Granbois’s prior acts was “necessary” because the prosecution’s case rested on the testimony of a young victim whose credibility was attacked by the defense.\n*38Also weighing in favor of admitting the evidence of Granbois’s prior convictions was the fact that the evidence was highly reliable because Granbois had pleaded guilty to the charges. See LeMay, 260 F.3d at 1029. Furthermore, there was little prejudice beyond the probative nature of the evidence. To the extent that Granbois’s “relationship” with the fourteen-year-old girl was a mitigating circumstance, the jury learned of these facts through Boyd’s testimony. The evidence of the prior acts was not introduced through emotional and highly charged testimony of a victim or a victim’s relative, but, rather, was conveyed through the testimony of a criminal investigator. The district court also informed the jury that the defendant was not on trial for any conduct or offense not charged in the indictment.\nGranbois makes the additional arguments that Rules 413 and 414 violate his due process and equal protection rights. These arguments are foreclosed by Le-May.\nB. Expert Testimony\nThe district court did not abuse its discretion in limiting the scope of Dr. Waterman’s testimony.\nThe district court properly refused to allow Dr. Waterman to testify regarding the qualifications a person should have before interviewing a potential victim of child sex abuse because the defense never made a showing that Dr. Waterman had specialized knowledge regarding this topic. The defense proffered Dr. Waterman as an expert on proper interviewing techniques, not an expert on the qualifications interviewers should possess.\nAlthough Dr. Waterman was qualified to answer questions regarding specific evidence discovered by researchers, which testimony would have supported a conclusion that multiple interviews and improper questions can taint a child’s memory, the district court did not err in refusing to allow Dr. Waterman to testify regarding these matters. Dr. Waterman’s testimony as a whole adequately conveyed that research has determined that children can be misled and confused by improper interviewing techniques and that the guidelines for interviewing children should be followed to prevent false memory.\nThe district court did not abuse its discretion by excluding Dr. Waterman’s testimony regarding the specific interview techniques used in this case; moreover, any error was harmless. Defense counsel could, and did, apply the general concepts described by Dr. Waterman in his argument to the jury. During closing argument, defense counsel detailed how KF.’s interviewers utilized improper techniques and argued that these suggestive interviews polluted KF.’s testimony.\nC. Jury Instructions\nWe reject Granbois’s contention that the district court’s use of the word “victim” in the elements instruction severely undermined the presumption of innocence.\nThe relevant inquiry in reviewing jury instructions is whether the instructions as a whole are misleading or inadequate to guide the jury’s deliberation. United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir.2000). “A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Id.\nLooking at the jury instructions as a whole, the jury could not have been misled into thinking that the elements instruction’s use of the term “victim” indicated that Granbois was guilty. The court instructed the jury, “You must not read into these instructions or into anything the *39court may have said or done any suggestions as to what verdict you should return. That is a matter entirely up to you.” The court made it clear that “the government must prove each of the following elements beyond a reasonable doubt.”\nD. Motions for Acquittal and New Trial\nGranbois argues that he was entitled to an acquittal, or, in the alternative, a new trial, because K.F.’s out-of-court statements and in-court testimony were unreliable as a result of suggestive interview techniques and such evidence should have been excluded.\nGranbois’s argument is unpersuasive. Even if we assume that K.F’s statements and testimony could have been excluded, the interviewing techniques used on her were not so coercive as to render her statements and testimony unreliable. She spontaneously and voluntarily reported the sexual abuse to her mother. Although the details of the sexual abuse varied from account to account, K.F. consistently stood by her story that Granbois touched her in a sexual way.\nAFFIRMED.\n\n 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.\n\n\n. In an opinion filed concurrently with this memorandum disposition, we affirm Granbois's sentence as a \"career offender” under U.S.S.G. § 4B1.1.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued and Submitted June 9, 2004.","precedential_status":"Published","slug":"united-states-v-granbois"} {"attorneys":"I. T. Greenacre, for appellants., Frederick A. Brown and William B. T. Ewen, Jr., for appellee.","case_name":"Bickel v. Richter","case_name_full":"John W. Bickel v. Emil G. Richter","case_name_short":"Bickel","citation_count":0,"citations":["148 Ill. App. 533"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1909-06-04","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"Vebdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.
","id":8822773,"judges":"Chytraus","opinions":[{"author_str":"Chytraus","ocr":true,"opinion_id":8807486,"opinion_text":" Mr. Justice Chytraus delivered the opinion of the court. On July 18, 1907, appellee, plaintiff below, filed his declaration in assumpsit against appellants, defendants below, wherein the ad damnum was laid at $1150. The defendants, at the same time, by Lawrence P. Conover, their attorney, filed their cognovit actionem whereby they admitted and said they could not deny the plaintiff’s action, nor that the plaintiff had sustained damages on account of their non-performance of their undertakings and promises to the amount of $1111.25. Defendants, by the cognovit, also released all errors and agreed that no writ of error or appeal should be prosecuted. Upon this admission by the defendants the court, on the same day, rendered judgment for the amount confessed. Defendant came into court again, on July 25, 1907, and moved to set aside and vacate the judgment entered. On October 25, 1907, leave was given defendants to plead, instanter, to the declaration, but it was ordered that the judgment stand as security. In accordance with this leave given the defendants filed a plea of non-assumpsit and, by agreement, the cause was submitted for trial to the court without a jury. The court then, on December 14, 1907, found the issues for plaintiff and ordered that the judgment of July 18, 1907, stand in full force and virtue. The original judgment appears to have been entered by authority of a warrant of attorney attached to a note signed by defendants. The - note is for $1000, dated July 10, 1905, is payable to the order of Mrs. I. C. Haas two years after date and bears interest at the rate of six per cent, per annum until paid. Mrs. Haas subsequently became Mrs. Bickel, the wife of plaintiff, and died before the trial. She assigned the note to plaintiff, her husband, by an assignment somewhat out of the ordinary; but the question raised in this respect becomes immaterial in view of the disposition we make of the case upon the merits. At the trial below the defendants contended that, although it was not endorsed upon the note, $503 had been paid to Mrs. Haas, on August 4, 1905. It is not made clear when the note was assigned to Bickel and therefore the law presumes the assignment to have been made on the day of its date. It seems to be assumed that Mrs. Haas married Mr. Bickel on August 3, 1905. The payment is claimed to have been made on August 4, 1905. No actual notice to Bickel, of the payment, is claimed. Mr. Bichter testified that a day or so before August 4, 1905, that is, about three weeks after she had loaned him the money, Mrs. Bickel asked him if he could not give her $500 upon the note. He then arranged to meet her at the office of a lawyer, John Stirlen, 608 Monadnock Block, on August 4,1905, when he would pay her that amount. At the appointed time and place they met and defendant’s son, Charles B. Bichter, and John Stirlen were also there. Mr. Bichter testified: “I asked her for the note and she said she did not have it. She said she had put. it away. I said, ‘You ought to have the note;’ she said, ‘I have no note.’ She said she would write a receipt; she said she would endorse it on the back of the note as soon as she got it.” Thereupon, Mr. Bichter testified, he gave Mrs. Bickel $503 and she signed and gave bim a receipt, then written by him with his fountain pen, as follows: “August 4th, 1905. Beceived of E. G-. Bichter five hundred & Three dollars on account of note drawn July 10, 1905, and due July 10, 1907, for (1000.00) $503.00 I. C. Bickel.” Mr. Bichter also testified that the $3.00 in excess of $500 were to be paid back by Mrs. Bickel, and that August 14, 1906, he paid Mrs. Bickel $60 interest. At the time he paid the interest Bichter says he paid Mrs. Bickel sixty dollars, thirty dollars of which was in cash, and, as he says: “I do not know if she was at the hospital sick in bed, or whether she was at her home—that I paid her. I went there to pay her one year’s interest, which amounted to thirty dollars. When I paid her that she said she needed more money, and asked me for the interest on her note. I said, ‘I will give you a check for the balance.’ So she said 'All right,’ and I gave her a check for the balance.” The check then given was introduced in evidence and the face thereof is as follows: \"Chicago, III, 8/14, 1906. No.— Live Stock Trust & Savings Bank 5425 South Halsted street. Pay to the order of Mrs. I. E. Bickel $30.00 Thirty dollars, interest in full on note due July 10, 1907. E. GK Bichter.” Charles B. Bichter corroborated his father, as did also John Stirlen, as to the payment of the $503. Mr. Stirlen also testified that the receipt was written by Mr. Bichter in his, Stirlen’s office, at the time of the payment of the $503. The payment of $500, on August 4, 1905, upon a $1000 loan made on July 10, 1905, for a period of two years, is a transaction somewhat out of the ordinary. The payment of $503, by a man whose business is of such extent that he keeps a bank account, without having it endorsed upon the note, because the note is absent, and this where an appointment for the purpose of making the payment has been made, is also out of the ordinary course of business. The payment of thirty dollars in cash, in August, 1906, without any receipt for that sum seems a little peculiar. The payment of $60 for interest, at that point of time, if but $500 was then owing, does not appear quite regular and the less so as no showing is made that Mrs. Bickel’s circumstances were such that she was in need of cash. From what little on that subject the record shows she does not appear to have been in need of money. The slight discrepancies or inconsistencies in connection with the $3 of the $503 and the point of time, between July 10, 1905, and August 4, 1905, for which period interest is not accounted for, should not be entirely overlooked. But it is clear beyond room for discussion that the paper defendants offered in evidence purporting to be a receipt for $503 is an altered instrument and that, the alteration was made subsequent to the time of the original writing thereof. Indeed the experts for both sides agree upon the one fact that the instrument has been altered. This undisputed and indisputable fact seriously affects the testimony of Richter and his witnesses. Not only does it discredit Richter but it also discredits his position in the case as to having made that payment in August, 1905. There is no attempt at explanation of the changes and alterations in the supposed receipt. The original paper is here with the record and discloses clearly that the year of the date thereof has been changed from 1906 to 1905. It is not at' all likely that Richter made that alteration in writing the receipt, in 1905. A printed blank was used and upon one line appears “five hundred & Three Dollars.” The word “dollars” is in print at the extreme right end of the line. To the left of that word ample space remained for writing five hundred and three. Yet “Three” is about in the middle of that space, a little to the left, and that “Three” was evidently some other word, probably “Thirty,” altered into “Three.” The “five hundred &” is so crowded into the space to the left of the “Three” as to leave little or no doubt but that it was inserted after that word had been written at about the center of the space. It also appears as if the figure “5” in “503” had been altered from a “3” into a five and, if so, the other “3” was added. There are also other indications of alterations. Possibly a receipt for thirty dollars given in August, 1906, was changed into this receipt for $503. We find no reason, upon this record, for interfering with the conclusions of fact arrived at by the learned trial judge. The judgment of the court below will be affirmed. Affirmed. ","per_curiam":false,"type":"020lead"}],"other_dates":"Heard in the Branch Appellate Court at the March term, 1908.","precedential_status":"Published","slug":"bickel-v-richter","summary":"Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding."} {"case_name":"Reaves v. Florida","case_name_full":"Reaves v. Florida","case_name_short":"Reaves","citation_count":0,"citations":["513 U.S. 990"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1994-11-07","date_filed_is_approximate":false,"id":9148230,"opinions":[{"ocr":true,"opinion_id":9142918,"opinion_text":"\nSup. Ct. Fla. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"reaves-v-florida"} {"case_name":"Banks v. State","case_name_short":"Banks","citation_count":0,"citations":["13 So. 3d 67"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2008-11-14","date_filed_is_approximate":false,"id":1621389,"judges":"Per Curiam","opinions":[{"ocr":false,"opinion_id":1621389,"opinion_text":"\n13 So. 3d 67 (2009)\nDonald BANKS, Petitioner,\nv.\nSTATE of Florida, Respondent.\nNo. 1D08-5214.\nDistrict Court of Appeal of Florida, First District.\nNovember 14, 2008.\nRehearing Denied July 24, 2009.\nDonald Banks, pro se, Petitioner.\nBill McCollum, Attorney General, Tallahassee, for Respondent.\nPER CURIAM.\nDENIED. See Fla. R.App. P. 9.141(c)(4)(B) and 9.141(c)(5)(C).\nLEWIS and THOMAS, JJ., and LAWRENCE, JR., L. ARTHUR, Senior Judge, concur.\n","per_curiam":true,"type":"010combined"}],"precedential_status":"Published","slug":"banks-v-state"} {"case_name":"Scott A. Walker And Fred Wagner, V Scott Serven","citation_count":0,"court_full_name":"Court of Appeals of Washington","court_jurisdiction":"Washington, WA","court_short_name":"Court of Appeals of Washington","court_type":"SA","date_filed":"2014-03-19","date_filed_is_approximate":false,"id":2715198,"opinions":[{"download_url":"http://www.courts.wa.gov/opinions/pdf/D2 44063-6-II Unpublished Opinion.pdf","ocr":false,"opinion_id":2715198,"opinion_text":" d #_ ED\n\n t r •,. if'', 1i\n\n 19 r' 8: 48\n\n i,\n\n a\n\n\n\n\n IN THE COURT OF APPEALS OF THE STATE OF WASHING\n\n DIVISION II\n\nSCOTT A. WALKER and FRED WAGNER,\n\n\n Appellants, 06 A U 1: 1Cf' tl\n\n\n V.\n\n\n\nSCOTT SERVEN, a single man, UNPUBLISHED OPINION\n\n\n Respondent.\n\n\n\n\n MAXA, J. Scott Walker and Fred Wagner appeal the trial court' s summary judgment '\n\ndismissal of their claims against Scott Serven for money due on loans, securities fraud, and\n\ncommon law fraud arising from their investment in a project to renovate and operate a hotel in\n\nMexico. We hold that summary judgment was appropriate because Walker and Wagner failed to\n\nshow that there were genuine issues of material fact that ( 1) the parties entered into a loan\n\n\nagreement or any other agreement that would require Severn to refund the money Walker and\n\nWagner invested, (2) Serven made a misrepresentation or engaged in fraudulent or deceitful\n\nconduct upon which Walker and Wagner reasonably relied sufficient to trigger liability for\n\nsecurities fraud, and ( 3) Serven knowingly made a false statement of material fact as required to\n\nrecover for common law fraud. Accordingly, we affirm.\n\fNo. 44063- 6- 11\n\n\n\n\n FACTS\n\n\n In 2005, Serven, Scott Griffin, Rick Seddon, and Chris Johnston decided to purchase and\n\nrenovate a dilapidated hotel in Loreto, Mexico. The four investors made the following capital\n\ncontributions to the project: Serven: 55 percent; Griffin: 25 percent; Seddon: 10 percent; and\n\nJohnston: 10 percent. Serven and Griffin formed a Mexican corporation to own the hotel\n\n\nproperty. The investors all agreed to contribute additional capital to the project in proportion to\n\ntheir initial investments. They also agreed that once the project was completed, they would\n\nreceive shares in the Mexican corporation in proportion to their total contributions.\n\n\n Both Johnston and Seddon initially contributed $ 120, 000 to the project. The document\n\n\ngoverning Johnston' s interest provided:\n\n On the day of May 3, 2006 Chris and Alicia Johnston are hereby granted the right\n to purchase 10% of the Loreto Hotel Mission stock.\n The purchase price is base[ d] on the final cost to purchase and remodel /build the\n Hotel. Receipt is hereby acknowledged for payment to date of $120, 000. 00.\n The balance is payable as the expenses occur. The purchase[ r] hereby agrees to\n pay the share of expenses equal to their respective ownership within five business\n days] of notice. After payment for this stock is received in fall, the purchaser\n shall be at their own expense officially added to the Mexican corporation \" Loreto\n Hotel Mission[ \"].\n Profit and los[ s] es shall be distributed to each member of the corporation based on\n their pro -rat[ a] interest in the corporation.\n\n\nClerk' s Papers ( CP) at 474. Seddon signed' an identical agreement.\n\n\n Soon thereafter, Johnston and Seddon decided to withdraw from the project. In 2006,\n\nWalker and Wagner became involved. The parties dispute whether Walker and Wagner\n\npurchased Johnston and Seddon' s interests or whether their investments were made under a\n\n\n\n\n1 There are no signed copies of either agreement in the record. But Serven stated in a declaration\nthat he at one time had documents bearing Johnston' s and Seddon' s signatures. And Walker and\nWagner do not dispute that these agreements were signed.\n 2\n\fNo. 44063 -6 -II\n\n\nseparate agreement. Serven testified that Wagner acquired Seddon' s interest in the corporation\n\nand that Walker acquired Johnston' s interest. Seddon testified that Walker bought Johnston' s\n\ninterest and that Wagner purchased his interest. By contrast, Walker asserts that he made all\n\npayments to Serven' s bank accounts. In his deposition, Serven testified that Walker had\n\npurchased his interest from Johnston. However, he acknowledged that there was a document\n\nstating that Walker had paid $ 120, 000 to the entity, not Johnston'2 The parties do not dispute\nthat Wagner made an initial $ 120, 000 payment directly to Seddon.\n\n Walker and Wagner made a series of payments to the Mexican corporation between\n\n\nDecember 2005 and February 2010. Both Walker and Wagner stated that these payments went\n\nto an account controlled by Serven and in his name. The parties disputed the nature of these\n\npayments. Serven stated that, except for a $ 180, 000 payment Wagner made in 2008 to cover\n\n\nGriffin' s shortfall when he could no longer make capital contributions to the hotel, all of the\n\npayments were capital contributions. Walker and Wagner asserted that all of the payments were\n\n\nloans.\n\n\n The parties had ongoing discussions about issuing stock to Wa er an agner or their\n -\n\n\n\ncontributions to the corporation. Beginning in 2007, the parties began discussing the option of\n\ncreating a United States entity to hold shares in the Mexican corporation. In a May 2007 e -mail\n\nto Walker and Wagner, Serven stated:\n\n\n Currently the most significant action we are taking is to form a Washington\n corporation that will hold all of the shares of stock in the Loreto Mission Hotel\n corporation in Mexico. All of the shares in the [ M] exican corporation will be\n\n\n\n2 Serven appears to challenge the authenticity of this. document. He stated that he \" discovered\nthat the Walkers created this document, signed my name to it and had the hotel buy [ Johnston]' s\ninterest back and then bought their interest from the hotel.\" CP at 343. When asked if it was\ntrue that the Walkers bought a 10 percent interest from the entity itself, Serven responded,\n That' s the way it' s documented.\" CP at 343 -44.\n 3\n\fNo. 44063 -6 -II\n\n\n transfer[ r] ed to the Washington corporation and we will all individually own\n shares in the Washington corp[ oration] in accordance with our capit[ a] l account.\n\nCP at 181. The parties then engaged in ongoing discussions with attorneys and accountants to\n\naddress the potential benefits to or consequences of having the shares held by a United States\n\nentity.\n\n\n In September 2010, Wagner told Serven that he wanted to have all of the Mexican\n\ncorporation' s stock transferred to a United States corporation \" as we all previously agreed to.\"\n\nCP at 206. Serven responded that Wagner could hold his stock in a United States corporation if\n\nhe chose to do so, even if Serven chose to hold his in the Mexican corporation. In December\n\n\n2010, Wagner wrote to Serven stating that he was \" perplexed by your unilateral decision to\n\nchange the process you, Walker, and I had agreed upon to facilitate the stock transfer.\" CP at\n\n\n249. Serven responded that there were no beneficial reasons to hold the stock in a United States\n\n\ncorporation and that his decision not to do that did not affect Walker and Wagner' s ownership\n\ninterest.\n\n\n In October 2011, Walker and Wagner filed a complaint against Serven for money due on\n\nloans and for violation of the Securities. Act of Washington ( WSSA), chapter 21. 20 RCW. They\n\nclaimed that they had agreed to make advances with the understanding that the advances would\n\nbecome loans if the parties could not agree on the terms of ownership in the hotel. Walker and\n\nWagner also made claims under the WSSA for the sale of unregistered securities and for\n\nsecurities fraud and a claim for common law fraud.\n\n\n Serven filed a motion for partial summary judgment, asking that the trial court dismiss\n\nthe money due on loans claim. He argued that Walker and Wagner failed to show any facts\n\nsupporting the existence of a contract for a loan. In opposition to Serven' s motion, Walker stated\n\n n\n\fNo. 44063 -6 -II\n\n\n\nthat he and Wagner made a series of advances to Serven with the understanding that he and\n\nWagner would become shareholders in a United States entity. When he and Wagner made the\n\nadvances, he claimed that there was \" a specific understanding and an agreement that these\n\nadvances would not be for an investment in a Mexican entity.\" CP at 34. He further stated that\n\n\n t]here was also a clear understanding that if the parties could not reach agreement on the terms\n\nof the final entity that the advances would be returned to us.\" CP at 34. The trial court granted\n\n\nthe motion and dismissed Walker' s and Wagner' s claims for money due on loans, concluding\n\nthat Walker and Wagner had failed to show any factual basis for the existence of a loan.\n\n Serven again moved for partial summary judgment, seeking dismissal of Walker' s and\n\nWagner' s claims for sale of unregistered securities, securities fraud, and common law fraud. He\n\nargued that Walker' s and Wagner' s interests in the corporation in this case were not \" securities\"\n\n\n\n\nunder the WSSA because they purchased their interests in one -on -one transactions with Johnston\n\nand Seddon, respectively; because the corporate shares were never publicly offered; and because\n\nthere was no effort to solicit the sale of Johnston' s or Seddon' s interests to the public. Serven\n\n\nalso claimed that there was nofraud because it was only - fter Walker and Wagner invested In the _\n a\n\nhotel that the parties began discussing the option of holding the shares in a United States entity.\n\nHe further argued that the WSSA and common law fraud claims were barred by the three -year\n\nstatute of limitations because Walker and Wagner should have reasonably discovered the alleged\n\nfraud when they purchased shares in 2006 and, at the very least, they should have discovered the\n\nalleged fraud in 2007 when Walker began working for Serven and took over the property' s\n\nfinancial records.\n\n\n Walker and Wagner responded that Serven had acted fraudulently because ( 1) he had\n\ninitially agreed to create a United States entity to hold the property in Mexico, ( 2) he refused to\n\n\n 5\n\fNo. 44063 -6 -II\n\n\ndocument the parties' transactions as the parties had agreed, ( 3) he unilaterally expanded the\n\nscope of the project by adding to the hotel' s construction, ( 4) he asked the parties to sign false\n\n\ndocuments, and ( 5) he failed to provide the parties with meaningful financial information.\n\n\nRegarding the statute of limitations issue, Walker and Wagner argued that between 2005 and\n\n2010, Serven repeatedly represented to them that he would create a United States entity.\n\nTherefore, they did not discover that he had failed to follow through on the promise until 2010 at\n\nthe earliest.\n\n\n\n Regarding the creation of a United States entity, Walker stated that it was Wagner' s and\n\nhis understanding that they would become shareholders in a United States entity in exchange for\n\nthe advances they had made to the corporation. He stated that there was a clear understanding\n\nthat the advances were made for the formation of a United States corporation, not a Mexican\n\ncorporation, and that if the parties could not reach agreement on the terms of the final entity, the\n\nadvances would be refunded. He stated that on June 1, 2011, it became clear to Walker and\n\n\nWagner that Serven had refused to create a United States entity or to document the transactions\n\nas loans. -Walker further stated that he received his interest in the corporation from Serven and\n\nno other investor, and that all of the money he paid on the project went into an account in\n\nServen' s name. Wagner submitted a similar declaration, but stated that he acquired all of his\n\ninterest from Serven except for the first $ 120, 000 that he paid to Seddon.\n\n\n The trial court granted Serven' s motion, stating in its oral ruling that Walker' s and\n\nWagner' s investments were not securities, Serven did not sell any securities, and there was no\n\nsecurities fraud or common law fraud. The trial court further ruled, \" If we get to the issue of the\n\n\nstatute of limitations, [ the claims] would be barred by the statute of limitations.\" Report of\n\n\nProceedings ( Aug. 31, 2012) at 21.\n\n C\n\fNo. 44063 -6 -II\n\n\n\n Walker and Wagner appeal the trial court' s dismissal of all of their claims for money due\n 3\non loans, securities fraud, and common law fraud .\n\n\n ANALYSIS\n\n\nA. STANDARD OF REVIEW\n\n\n We review a trial court' s order granting summary judgment de novo. Loeffelholz v. Univ.\n\nof Wash., 175 Wash. 2d 264, 271, 285 P.3d 854 ( 2012). Summary judgment is appropriate where,\n\nviewing the evidence in the light most favorable to the nonmoving party, there is no genuine\n\nissue of material fact and the moving party is entitled to judgment as a matter of law.\n\nLoeffelholz, 175 Wash. 2d at 271. \" A genuine issue of material fact exists where reasonable minds\n\n\ncould differ on the facts controlling the outcome of the litigation.\" Ranger Ins. Co. v. Pierce\n\n\nCounty, 164 Wash. 2d 545, 552, 192 P.3d 886 ( 2008). If reasonable minds can reach only one\n\nconclusion on an issue of fact, that issue may be determined on summary judgment. M.\n A.\n\nMortenson Co. v. Timberline Software Corp., 140 Wash. 2d 568, 579, 998 P.2d 305 ( 2000).\n\n The moving party bears the initial burden of showing that there is no genuine issue of\n\nmaterial fact. Young v. Key Pharins:,7nc., 112- Wn.2d 216; 225 -;770 - :2-\n P 2 .- - moving\n\ndefendant can meet this burden by showing that there is an absence of evidence to support the\n\nplaintiff s case. Howell v. Spokane & Inland Empire Blood Bank, 117 Wash. 2d 619, 624, 818 P.2d\n\n\n1056 ( 1991). The burden then shifts to the plaintiff to come forward with sufficient evidence to\n\nestablish the existence of each essential element of the plaintiff s case. Howell, 117 Wash. 2d at\n\n\n625. If the plaintiff does not submit such evidence, summary judgment is appropriate. Howell,\n\n 117 Wash. 2d at 625.\n\n\n\n3 Walker and Wagner do not contest the trial court' s dismissal of their claim for sale of an\nunregistered security.\n\n\n 7\n\fNo. 44063 -6 -II\n\n\n\n A nonmoving party must present more than \" mere possibility or speculation\" to\n\nsuccessfully oppose summary judgment. Doe v. Dep' t of Transp., 85 Wash. App. 143, 147, 931\n\nP.2d 196 ( 1997). \"[ A] non -\n moving parry may not rely on speculation or on argumentative\n\nassertions that unresolved factual issues remain.\" White v. State, 131 Wash. 2d 1, 9, 929 P.2d 396\n\n\n 1997).\n\n\nB. MONEY DUE ON LOANS CLAIM\n\n\n Walker and Wagner argue that there are genuine issues of material fact regarding whether\n\nthe contributions they made to the corporation were loans. We disagree.4\n A loan is defined as follows:\n\n\n The word loan imports an advancement of money or other personal property to a\n person, under a contract or stipulation, express or implied, whereby the person to\n whom the advancement is made binds himself to repay it at some future time,\n together with such other sum as may be agreed upon for the use of the money or\n thing advanced.\"\n\nPort ofLongview v. Taxpayers ofPort ofLongview, 85 Wash. 2d 216, 225, 527 P.2d 263 ( 1974)\n\n internal quotation marks omitted) ( quoting State ex rel. O' Connell v. PUD I ofKlickitat County,\n\n79 Wash. 2d 237, 2415 484 P.2d 393 ( 197 1)).- A borrower' s promise to repay loaned-funds is an\n\nessential element of a loan agreement. Nat' l Bank of Commerce ofSeattle v. Preston, 16 Wn.\n\nApp. 678, 680, 558 P.2d 1372 ( 1977).\n\n\n\n\n4 As a preliminary matter, the portion of Walker' s and Wagner' s brief devoted to their loan claim\npredominantly raises arguments and theories not argued in the trial court. They appear to argue\nthat there was an issue of fact as to whether the parties merely had an \" agreement to agree\" and\nthat they were entitled to restitution damages because the parties did not reach agreement and\nbecause Serven was unjustly enriched by their contributions to the hotel project. Br. of\nAppellant at 14. But below, Walker and Wagner argued only that they were entitled to a\nrepayment of loans made to Serven and the hotel. They did not argue the theories of unjust\nenrichment and restitution that they now argue on appeal. Accordingly, we decline to address\nthese arguments. RAP 2. 5( a); Karlberg v. Otten, 167 Wash. App. 522, 531, 280 P.3d 1123 ( 2012).\n 8\n\fNo. 44063 -6 -II\n\n\n\n Here, in a declaration in opposition to Serven' s summary judgment motion on the loan\n\nclaim, Walker described the nature of the payments as follows:\n\n 3. The advances were made with the understanding that Fred Wagner and I\n would become shareholders in a [ United States] based entity in exchange for the\n advances. Scott Serven continued to indicate that he would cause the formation\n of such an entity. However, in spite of his promises to do so he eventually\n refused to do so.\n\n\n 5. There was also a clear understanding that if the parties could not reach\n agreement on the terms of the final entity that the advances would be returned to\n US.\n\n 6. Thus far, Serven has failed and refused to document such transactions as a\n purchase of securities in a [ United States] entity or as a loan, in accordance with\n the agreement of the parties.\n 7. On or about June 1, 2011, it became clear to [ Walker and Wagner] that\n Serven] would continue to refuse to either sell an equity interest in a [ United\n States] based entity, or to document the transactions as loans.\n\nCP at 375. Wagner submitted a nearly identical declaration.\n\n Even when viewing these declarations in the light most favorable to Walker and Wagner,\n\nno reasonable minds could differ on the absence of any fact supporting the existence of a loan.\n\nWalker and Wagner clearly stated that they made advances to the project in exchange for shares\n\nin a corporation.- According to their testimony, their advances would - e refunded - ri y if n0\n b o\n\nagreement could be reached on the form of the final entity. As a result, the evidence shows that\n\nWalker and Wagner were making conditional investments in a corporation, not loans.\n\n Further, Walker and Wagner presented no evidence that Serven agreed to a loan\n\n\ntransaction. There was no evidence regarding independent written or oral loan agreements,\n\nwhether and in what amount interest was to be charged on the loans, or the terms of repayment.\n\n\nAnd Walker and Wagner did not present any other evidence that a loan agreement had been\n\nmade. In fact, Walker and Wagner expressly alleged that Serven refused to document the\n\ntransaction as a loan.\n\n\n 9\n\fNo. 44063 -6 -II\n\n\n\n We hold that Walker and Wagner failed to come forward with sufficient evidence to\n\n\ncreate a genuine issue of material fact regarding the existence of loans made to Serven.\n\nAccordingly, the trial court did not err when it granted Serven' s motion to dismiss claims based\n\non that theory.\n\nC. SECURITIES FRAUD CLAIM\n\n\n Walker and Wagner argue that the trial court erred when it dismissed their securities\n\nfraud claims because, as a matter of law, their investments were securities and Serven was a\n\n\nseller of those securities and because there were genuine issues of material fact regarding\n\nwhether Serven made misrepresentations regarding the formation of a United States entity. Even\n\nassuming, without deciding, that Serven was a seller of securities to Walker and Wagner, there is\n\nno evidence supporting Walker' s and Wagner' s claim that Serven made any misrepresentations\n\nor engaged in fraudulent or deceitful conduct upon which Walker and Wagner reasonably relied.\n\nTherefore, we hold that Walker' s and Wagner' s securities fraud claims fail.\n\n 1. Securities Act of Washington\n\n\n The primary purpose of the WSSA is to protect investors from the speculative or\n\nfraudulent schemes of promoters. Cellular Eng' g, Ltd. v. O' Neill, 118 Wn.2d' 16, 23, 820 P.2d\n941 ( 1991). \" To accomplish this purpose, the [ WSSA] is interpreted broadly.\" Kinney v. Cook,\n\n159 Wash. 2d 837, 844, 154 P.3d 206 ( 2007).\n\n\n RCW 21. 20. 010 provides a cause of action for securities fraud:\n\n\n It is unlawful for any person, in connection with the offer, sale or purchase of any\n security, directly or indirectly:\n 1) To employ any device, scheme, or artifice to defraud;\n 2) To make any untrue statement of a material fact or to omit to state a\n material fact necessary in order to make the statements made, in the light of the\n circumstances under which they are made, not misleading; or\n\n\n\n 10\n\fNo. 44063 -6 -II\n\n\n\n To engage in any act, practice, or course of business which operates or\n 3)\n would operate as a fraud or deceit upon any person.\n\nUnder the statute, a defendant is subject to liability if ( the transaction constitutes a \" security \",\n 1)\n\n 2) the defendant offers or sells the security, and ( 3) the defendant commits a fraudulent or\n\ndeceitful act in connection with the offer or sale. See Kinney, 159 Wash. 2d at 842. We assume\n\nwithout deciding that Walker and Wagner provided sufficient evidence to establish the first two\n\nelements and address only the third element.\n\n 2. Misrepresentation or Fraudulent /Deceitful Act\n\n\n Walker and Wagner argue that the trial court erred when it granted Serven' s motion to\n\n\ndismiss their securities fraud claims because there was a genuine issue of fact regarding whether\n\nServen engaged in a fraudulent or deceitful act in representing to them that a United States\n\ncorporation would be formed. We disagree.\n\n\n In order to recover for securities fraud under RCW 21. 20. 010, \" the purchaser of a\n\n\nsecurity must prove that the seller and /or others made material misrepresentations or omissions\n\nabout the security, and the purchaser relied on those misrepresentations or omissions.\" Stewart\n\n\nv. Estate of Steiner, 122 Wn. App. 258, 264, 93 P.3d 919 ( 2004). The purchaser need not show\n\n\nan intent to defraud. Go2Net, Inc. v. FreeYellow. com, Inc., 126 Wash. App. 769, 775, 109 P.3d\n\n875 ( 2005), aff'd, 158 Wash. 2d 247, 143 P.3d 590 ( 2006). A material fact is one to which a\n\n\nreasonable person would attach importance in determining his or her choice of action in the\n\ntransaction in question. Aspelund v. Olerich, 56 Wash. App. 477, 481 -82, 784 P.2d 179 ( 1990).\n\nThe purchaser' s reliance must be reasonable under the circumstances. FutureSelect Portfolio\n\n\nMgmt., Inc. v. Tremont Grp. Holdings, Inc., 175 Wash. App. 840, 868, 309 P.3d 555 ( 2013),\n\nreview granted, 316 P.3d 495 ( 2014).\n\n\n\n 11\n\fNo. 44063 -6 -II\n\n\n\n Here, Walker and Wagner argue that Serven represented that their investments would\n\nresult in the issuance of stock in a United States corporation. Walker and Wagner cite an e- mail\n\nfrom Serven in 2007, in which he stated:\n\n\n Currently the most significant action we are taking is to form a Washington\n corporation that will hold all of the shares of stock in the Loreto Mission Hotel\n corporation in Mexico. All of the shares in the [ M] exican corporation will be\n transfer[ r] ed to the Washington corporation and we will all individually own\n shares in the Washington corp[ oration] in accordance with our capit[ a] l account.\n\nCP at 181. There also was evidence that Serven' s lawyer had created a certificate of formation\n\n\nand operating agreement for a Washington limited liability company.\n\n Walker and Wagner also point to ongoing e -mail discussions in 2010 between the\n\ninvestors and their lawyer and accountant regarding the feasibility and practicality' of creating a\n\nUnited States corporation. •The 2010 e =mails do not include any statements by Serven that a\n\nUnited States entity would be formed, but they raise an inference that the parties believed that\n\nsuch an entity might be formed. Walker and Wagner argue that Serven' s representations\n\nregarding a United States corporation constituted securities fraud because he ultimately decided\n\nnot to form a United States corporation. -_\n They - lso state ill declarations that they relied on -\n a -\n\nServen' s representation that he would create a United States entity when they made payments to\n\n\n\n\n 12\n\fNo. 44063 -6 -II\n\n\n 5\nhim.\n\n\n However, Walker and Wagner provided no evidence that Serven made any\n\nmisrepresentation regarding formation of a United States corporation. A misrepresentation\n\nrequires a false statement regarding an existing fact, not a statement of a future intention. See\n\nHavens v. C &D Plastics, Inc., 124 Wash. 2d 158, 182, 876 P. 2d.435 ( 1994) ( negligent\n\n\nmisrepresentation claim). Walker and Wagner have produced no evidence suggesting that\n\nServen never intended to create a United Stated corporation. Even viewing the evidence in a\n\nlight most favorable to Walker and Wagner, the record shows no more than that Severn initially\n\nmay have intended to create a United States corporation but later decided against that course of\n\naction after consulting with lawyers and accountants.\n\n Further, the evidence does not reflect that Serven engaged in any deceitful or fraudulent\n\nconduct. At best, the parties had an agreement that they would attempt to agree on the structure\n\nof the corporation that would own the hotel. The fact that Walker and Wagner wanted to form a\n\nUnited States corporation does not somehow convert Serven' s business decision not pursue that\n\n\noption into a fraudulent act. Theevidence shows only that sophisticated businessmen Who had\n\npreviously worked together evaluated a number of options and then disagreed as to the\n\n\n\n\n5 Walker and Wagner cite additional material in the record that does not support their position.\nFirst, they cite two unsigned documents titled \"Agreement Among Investors\" that would have\nincreased Serven' s ownership interest in the Mexican corporation after he made additional\ncapital contributions when Griffin was unable to pay his portion in 2008. CP at 160 =\n 64, 166 -71.\nBut these documents make no reference to the formation of a United States entity. Second,\nWalker and Wagner cite to a diagram of the entities controlling the hotel and a written document\nto the same effect, both of which include a United States entity that, they argue, controlled the\nproject. However, the United States corporation, which Serven ultimately formed in 2008 in\nWyoming, was for the sole purpose of loaning funds to the Mexicadcorporation, not for holding\ntitle to or managing the property.\n 13\n\fNo. 44063- 6- 11\n\n\n\nappropriate course of action. These facts are insufficient to avoid summary judgment on the\n\nWSSA claim.\n\n\n Finally, the evidence shows that Walker and Wagner could not reasonably have relied on\n\nServen' s statements or conduct when making contributions to the project. Again, the parties had\n\nno more than an oral agreement to agree regarding the corporate structure, and all the parties\n\nwere exploring whether forming a United States corporation was advisable. And the evidence\n\nindicated that Griffin, the other investor, did not approve of forming a United States corporation.\n\nUnder these circumstances, it was unreasonable for Walker and Wagner to rely on such a vague\n\nunderstanding between the parties.6\n We hold that there were no genuine issues of material fact regarding whether Serven\n\nmade misrepresentations or engaged in any deceitful or fraudulent conduct regarding creation of\n\na United States entity to hold the shares in the Mexican corporation and whether Walker and\n\n\n\n\n6\n We note that a violation of RCW 21. 20. 010 requires \" proof of the seller' s material, preclosing\nmisrepresentation or omission.\" Go2Net, 158 Wash. 2d at 253 ( emphasis added).. The earliest\n\nalleged misrepresentation Serven made regarding the Washington corporation. was in 2007, two\nyears after Walker and Wagner made their first payments. We need not decide whether conduct\nafter Walker and Wagner began contributing to the project could support a. WS SA claim.\n\n 14\n\fNo. 44063 -6 -II\n\n\n\nWagner reasonably relied on those representations in making their contributions to the project.\n\nAccordingly, the trial court did not err in granting summary judgment on the securities fraud\n\nclaim.8\n\nD. COMMON LAW FRAUD CLAIM\n\n\n Walker and Wagner argue that the trial court erred when it dismissed their common law\n\nfraud claim because there was a genuine issue of material fact as to whether Serven' s acts were\n\nfraudulent. We disagree.\n\n\n The standard for common law fraud is more stringent than for securities fraud. For\n\ninstance, for common law fraud the plaintiff must prove an actual intent to deceive. Go2Net, 126\n\n\nWash. App. at 775. To support a claim for common law fraud, the plaintiff must prove by clear,\n\ncogent and convincing evidence:\n\n\n 1) representation of an existing fact; ( 2) materiality; ( 3) falsity; ( 4) the speaker' s\n knowledge of falsity; ( 5) intent of the speaker that it should be acted upon by\n its\n the plaintiff, (6) ignorance of its falsity; ( 7) plaintiff' s reliance on the\n plaintiff' s\n\n truth of the representation; ( 8) plaintiff' s right to rely upon it; and ( 9) damages\n\n suffered by the plaintiff.\n\nStiley v Block, 130 Wn:2d 486, 505, 925 P.-2d 194 ( 1996):\n\n\n\n\n7\n Walker and Wagner also argue that Serven violated the WSSA because he failed to disclose his\ndecision to expand the project' s scope and that \" Serven asked [ Walker and Wagner] to sign and\nbackdate proxies with regard to the Mexican corporation that were materially false and\ndeceptive.\" Br. of Appellants at 23 -24. But Walker and Wagner do not attempt to show any\nalleged misrepresentation or omission was material or deceitful and they do not attempt to show\nthat they relied on the misrepresentations or omissions. They also argue that Serven violated the\nWSSA because he failed to record their capital transfers and failed to provide them with\nfinancial information, but fail to cite any evidence in the record supporting the alleged material\nissues of fact. Accordingly, we decline to address these arguments further.\n\n8 Because we hold that the trial court properly dismissed Walker' s and Wagner' s securities fraud\nclaims, we need not address whether the statute of limitations barred these claims.\n 15\n\fNo. 44063 -6 -II\n\n\n\n When reviewing a claim on summary judgment for which the burden of proof is clear,\n\ncogent, and convincing evidence, \" we must determine whether, viewing the evidence in the light\n\nmost favorable to the nonmoving party, a rational trier of fact could find that the nonmoving\n\nparty supported his or her claim with clear, cogent, and convincing evidence.\" Woody v. Stapp,\n\n146 Wn. App. 16, 22, 189 P.3d 807 ( 2008). In other words, \" the challenging party must offer\n\nevidence establishing a prima facie case supporting the claim or defense.\" Woody, 146 Wn.\n\nApp. at 22.\n\n We hold that the evidence Walker and Wagner presented at summary judgment does not\n\nwithstand the heightened burden for common law fraud. First, Walker and Wagner did not\n\nallege that Serven made a representation of an existing fact. Instead, they alleged that he\n\nmisrepresented his intention to create a United States entity in the future. Second, nothing in the\n\nrecord established that the representations were false when made or that Serven knew that the\n\n\nrepresentations were false. When he made the representations, Serven may well have intended to\n\ncreate a United States entity. Third, Walker and Wagner did not show that they had a right to\n\nrely onwhat essentially was an \" agreement -o-agree\" with regard to the-issuance of stoc - m a\n t\n\nUnited States corporation.\n\n\n Walker and Wagner failed to submit evidence sufficient to create a question of fact\n\n\nregarding common law fraud, particularly under the clear, cogent and convincing standard.\n\nAccordingly, we hold that the trial court properly granted summary judgment on Walker' s and\n\nWagner' s claim for common law fraud.\n\n\n\n\n 16\n\fNo. 44063 -6 -II\n\n\n We affirm.\n\n\n A majority of the panel having determined that this opinion will not be printed in the\n\nWashington Appellate Reports, but will be filed for public record in accordance with RCW\n\n2. 06. 040, it is so ordered.\n\n\n\n\n J.\n MAXA, J.\n\n\n\n\n 17\n\f","page_count":17,"per_curiam":false,"type":"010combined"}],"precedential_status":"Unpublished","slug":"scott-a-walker-and-fred-wagner-v-scott-serven"} {"attorneys":"\n\nPetree Stockton, L.L.P., by R. Rand Tucker and B. Gordon Watkins, III, for plaintiff-appellee/cross-appellant.\n, \nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Mack Sperling, for defendant-appellee/cross-appellee Doug Davis and defendant-appellant John F. Woods.\n","case_name":"Better Business Forms, Inc. v. Davis","case_name_full":"BETTER BUSINESS FORMS, INC., D/B/A WESLEY BUSINESS FORMS, Plaintiff v. DOUG DAVIS and JOHN F. WOODS, Defendants","case_name_short":"Davis","citation_count":22,"citations":["462 S.E.2d 832","120 N.C. App. 498"],"court_full_name":"Court of Appeals of North Carolina","court_jurisdiction":"North Carolina, NC","court_short_name":"Court of Appeals of North Carolina","court_type":"SA","date_filed":"1995-10-17","date_filed_is_approximate":false,"headmatter":"[1.] Generally, tlie county of a person’s residence is the one in which to locale a suit against him in Equity. Where, however, there are several defendants, and substantial reli if is prayed against all of them, the suit maybe brought w iere any one of them re-ides. Thus, where a bill charges a trustee with making a fraudulent sale o land-*, and both the vend *e and the tenant of the vendee a, re sued with him, relief being prayed against them all, the Court n the county of the ten tnt’s residence has jurisdiction of the whole cause» and o all the parties.
[2.] Equity will cinc *1 an illegal deed that forms a cloud upon the true title.
[3.] The bill, in this cas *, was not multifarious. All the defendants were proper parties, and there was but a single subject matter.
","id":5704966,"judges":"Harris, Lumpkin, Parties, Preside, Related","opinions":[{"author_str":"Harris","ocr":true,"opinion_id":5554670,"opinion_text":"\nHarris, J.\n[1.] The chief question made by the bill of exceptions is, *212whether the Superior Court of Oglethorpe county had rightful jurisdiction over Glenn Wynne, of Coweta county, one of the defendants.\nAs a general rule, a defendant has a constitutional right to he sued in the county of his residence, and not to be dragged to answer at a remote tribunal at the pleasure or will of a complainant. A most valuable privilege, which we will be careful not to endanger. Glenn Wynne is charged by the bill of complainants with conspiring and colluding with John G. Crane, of South Carolina, to defeat the interest of complainants in land sold to said Crane by him as administrator, such sale being unauthorized by the will of John Wynne or the laws of the State; as also in the misapplication of the assets of the testator’s estate, and that Crane purchased with notice, and that Glenn Wynne illegally made to him a deed for the land, &e. These facts are admitted by the demurrer. Perteet, the tenant of Crane, residing in Oglethorpe, is a party defendant, and, as relief is sought from him, complainants were enabled to institute their suit properly in that county. If Glenn Wynne did make, as alleged, an illegal conveyance of land in which complainants were interested, to Crane, and that conveyance stood in the way of the complete assertion of their rights under the will of John Wynne, it is difficult to perceive how full relief could have been obtained any where without acting on Glenn Wynne. His connexion with Crane and tenant was of such a kind in law as to make him a necessary party ; and if the jurisdiction of the Superior Court of Oglethorpe over Perteet, as tentant of Crane, was rightful, we are not able to perceive why it was not rightful also over Glenn O. Wynne.\n[2.] We apprehend that is the office and duty of a Court of Equity to cause-the deed made by Glenn O. Wynne to Crane, if illegal, or unauthorized, or if in any way it clouds or obstructs the title of complainants to the land under the will of John Wynne, to be cancelled.\n[3.] Nor are we enabled to consider the bill in this case, in any proper sense, as multifarious ; the transactions all *213grow out of the sale of the laud, and all the parties are intimately connected with, or concerned in them, and are consequently proper parties in reference to a proper subject matter.\nWe therefore affirm the judgment overruling the demurrer.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"wynne-v-lumpkin","summary":"In Equity. In Oglethorpe Superior Court. Demurrer. Decided by Judge Hook. April Term, 1866. By the will of John Wynne, dated in 1856, certain property, including a tract of land in Oglethorpe county, was left to his wife for life, “ and after her death, such as may be then in her possession, and not previously sold or disposed of by her, to be divided” among his sons Thomas, Glenn, and George, his granddaughter Susannah Stevens, and the two children of his deceased son William, the last to take per stirpes. The sh ire of Thomas was to vest in the said Glenn in trust, for the support and maintenance of Thomas and his children, free from the contracts, liabilities and control of Thomas, and at his death to be equally divided among his children then living, and the representatives of any that might be deceased, such representatives to take per stirpes. The will was admitted to probate; the executors qualified, and afterwards obtained letters of dismission. The testator’s son George died without issue. Subsequently, the tenant for life died, leaving the tract of land undisposed of. Letters of administration de bonis non, with the will annexed, were granted to the testator’s son Glenn, who is a resident of Coweta county. In 1864, Patrick M. Stevens, (the father of Susannah, the testator’s granddaughter,) SarahE. Wynne, (the mother of the two children of the testator’s deceased son William,) and Thomas Wynne, the testator’s son, all residents of Oglethorpe county, combining to aid and abet the said administrator in illegally selling said land, obligated themselves in a bond to hold him harmless, should he make such sale without proper authority from the proper Court. The administrator then, without said authority, sold and conveyed the land, for spurious money, which soon after-wards became utterly worthless, to John G. Crane, then and now of the State of South Carolina, who purchased with notice that the sale was unauthorized by the will of the testator or the laws of Georgia, and who was in collusion with the administrator and the parties to the aforesaid bond, to misapply the assets of the testator’s estate, and defeat the interest of Thomas Wynne’s children, William Wynne’s children, and the said Susannah Stevens, therein. Under the said deed of conveyance to him, and with the consent, and by the procurement, of the administrator and the other three confederates, the said Crane went into possession of the land, and placed thereon, as tenant under him, one William R. Perteet, who still resides thereon, and who, by his engagement with Crane, his landlord, will pay the rents and profits to him, and they will thus pass beyond the limits of this State. A daughter of Thomas Wynne intermarried with Robert BE. Lumpkin. The other children of Thomas, as well as the two children of William Wynne, deceased, and also the testator’s granddaughter, Susannah Stevens, are all minors. The present bill was filed by Lumpkin and wife, and by Lumpkin as the next friend of all of said minors, against Glenn Wynne. Thomas Wynne, Patrick M. Stevens, Sarah P. Wynne, John G. Crane, and William R. Perteet, alleging the foregoing facts; and, moreover, that the complainants know not whether those of the defendants residing in Georgia are solvent, but believe that the late emancipation of slaves has so damaged the estate of each that by reason of their many outstanding liabilities, the complainants will be benefitted by no decree except such as may be enforced upon the said land, and the rents and profits thereof, three-fourths of which the complainants claim as their property. The bill prayed: 1. That Perteet, the tenant, be enjoined from paying over to Crane the rents and profits; that a receiver be appointed to take and hold the same, and to rent out the land, collect the rents, &e., until a final decree. 2. That the sale to Crane be rescinded and declared null and void, and the deed to him be cancelled; or, if good to convey the interest of Glenn and Thomas Wynne in said land, and its total cancellation would be injurious to Crane, that then the deed be declared null as to complainants’ interest, and Crane be perpetually enjoined from claiming such interest under the same. 3. That the defendants account for the rents and profits accruing since the saie. 4. That the land be partitioned into four parts, and one of them assigned to Thomas Wynne and his children, subject to the provisions of the will, one to the two children of William Wynne, deceased, and one to Susannah Stevens. 5. That should other relief- be denied, then that the defendants (except Perteet, the tenant,) be decreed to account for the true value of the land, with damages for withholding it. 6. For general relief. 7. For discovery from Perteet, the tenant, all discovery from the other defendants being expressly waived. The defendant Glenn Wynne, alone, demurred to the bill on divers grounds: 1. (As to any relief sought against him as trustee for Thomas Wynne and his children) for want oí jurisdiction in the Court, he, the defendant, being a resident of Coweta county. 2. For multifariousness. 3. For want of title in the complainants Lumpkin and wife and the children of Thomas Wynne, to the subject matter of the bill. 4. For want of such title in any of the complainants, and because, as to the minors, the bill should have been brought by their guardians. 5. For want of title in Lumpkin and wife to the rents and profits. 6. Because there is an adequate remedy at law. 7. For want of equity in the bill. The demurrer was overruled by the Court; and this is complained of as error."} {"case_name":"Stewart v. Metropolitan Life Insurance","case_name_full":"Viola Stewart v. Metropolitan Life Insurance Company, and Third-Party Plaintiff-Respondent. National Cleaning Contractors, Now Known as ISS Cleaning Service Group, Inc., Third-Party","case_name_short":"Stewart","citation_count":0,"citations":["258 A.D.2d 543","684 N.Y.S.2d 538"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1999-01-28","date_filed_is_approximate":false,"id":6168209,"opinions":[{"ocr":true,"opinion_id":6034006,"opinion_text":"\n—Orders, Supreme Court, New York County (Lorraine Miller, J.), entered on or about June 25, 1998 and July 31, 1998, respectively, which, inter alia, denied the motions of defendant Metropolitan Life Insurance Company and third-party defendant ISS Cleaning Service Group, Inc. for summary judgment dismissing the complaint and third-party complaint, unanimously affirmed, without costs.\nThe proof presented by plaintiff in response to defendant’s summary judgment motion, including her own testimony and the affidavit of her expert, was sufficient to raise a triable issue as to whether the alleged deficiencies in the cobblestoned area upon which she claims to have tripped and injured herself constituted a hazard (see, Hecker v New York City Hous. Auth., 245 AD2d 131; cf., Trincere v County of Suffolk, 90 NY2d 976), and as to whether such hazard as there was existed for a sufficient length of time to justify the imputation of constructive knowledge of its existence to defendant landlord (see, Farrar v Teicholz, 173 AD2d 674). Contrary to third-party defendant’s argument, the third-party complaint sounding in contractual indemnification was not otherwise dismissible absent evidence controverting the allegations of the third-party complaint (see, Porter v Uniroyal Goodrich Tire Co., 224 AD2d 674). Concur— Rosenberger, J. P., Williams, Lerner and Rubin, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"stewart-v-metropolitan-life-insurance"} {"attorneys":"Lev. McQuistion, with him F. J. Forquer, for appellant, John M. Greer, with him John B. Greer and Thomas H. Greer, for appellee.","case_name":"Wilkes v. Buffalo","case_name_full":"Wilkes v. Buffalo, Rochester & Pittsburg Railway Company","case_name_short":"Wilkes","citation_count":0,"citations":["216 Pa. 355"],"court_full_name":"Supreme Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Supreme Court of Pennsylvania","court_type":"S","date_filed":"1907-01-07","date_filed_is_approximate":false,"disposition":"Affirmed.","id":6379674,"judges":"Brown, Elkin, Fell, Mestrezat, Mitchell, Potter, Stewart","opinions":[{"ocr":true,"opinion_id":6248707,"opinion_text":"\nPer Curiam,\nJudgment affirmed on the opinion of the court below.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued Oct. 17, 1906.","precedential_status":"Published","slug":"wilkes-v-buffalo","summary":"Appeal, No. 146, Oct. T., 1906, by defendant, from judgment .of C. P. Butler Co., June T., 1905, No. 74, on verdict for plaintiff in case of Annie Wilkes v. Buffalo, Rochester & Pittsburg Railway Company. Trespass to recover damages for death of plaintiff’s husband. • Verdict and judgment for $10,286-67. Defendant appealed. ' On a motion for a new trial and for judgment non obstante veredicto Galbiíeath, P. J., filed the following opinion: This suit is brought and sought to be maintained by plaintiff on the theory that the deceased, at the time of his death, was a passenger on the defendant company’s train. It was tried on the theory that whether or not he was a passenger was a question of fact for the jury, rather than one of law for the court. In submitting this question the jury was instructed that if the deceased, at the time he met his death, was in the actual service of the company or engaged in that which was reasonably or necessarily an incident of such service, there could be no recovery, as he would, in that event, be an employee of the company, and no recovery could be had for his death resulting from the negligence of a fellow servant. The jury was further instructed that if the deceased were not, at the time he met his death, an employee of the defendant company, then, necessarily, he was a passenger, as it was not contended that he was on the train as a trespasser, but that, even if he were there as a trespasser, yet there could be no recovery, without proof on part of the plaintiff that the deceased met death through the negligence of the defendant company, the burden of proving which, under the facts of the ease, rested on plaintiff. The plaintiff’s proof showed, inter alia, that the deceased had been for a number of years in the employ of the defendant company as a locomotive engineer, on various portions of its line, and that a short time prior to his death he had been employed in that capacity on the Clearfield branch of the defendant’s road, but that during the month of February, 1905, he had made a number of trips over the Pittsburg division, for the purpose of learning the road, with a view to employment on that division by assignment thereto in -the very near future, and that while making these trips he was in the pay of the defendant company; that on their completion he took the required examination' before the proper official in a satisfactory manner, and was thus qualified for his expected employment on said division of defendant’s road; that having learned that some change had been made in the signals near the Bakerstown tunnel, some seventeen miles south of Butler, on said division, after lie had made his trips over it “ learning the road,” the deceased concluded that it would be well to acquaint himself with the change at that point before assuming’ his duties as engineer on said division. Having previously passed his examination and qualified for his expected new duties, it was not required of him b}'- the defendant company that he should further prepare himself. His undertaking to do so was his own voluntary act, and it does not appear that either he or the defendant company contemplated that he should receive compensation for the performance of this self-imposed duty. At the time of his decease, March 11, 1905, Wilkes was in possession of an employee’s quarterly pass, good until March 31, 1905. In addition to this he had obtained from the master mechanic of defendant company at DuBois, which was the head of the Pittsburg division and the place of his residence, a special permit authorizing all Pittsburg division freight and passenger engineers to allow him to ride on their engines for the purpose of learning the Pittsburg division. This was dated March 10, 1905, was good until March 20, 1905, and was obtained, as the testimony shows, by Wilkes for the express purpose of making the trip to Bakerstown tunnel for the purpose of learning the change in signals at that point. Leaving DuBois, he rode in the passenger coach until he reached Butler Junction, a short distance north of Butler, at which place he entered the engineer's cab. The engine was in the charge of engineer Logan, who continued in charge of it up to the time of the accident, except that as the train slackened its speed in approaching the Butler station, Logan left the locomotive in charge of Wilkes, while he, Logan, went into the office to register, the train being slightly behind time at that point. Having registered, Logan again assumed charge of the engine, and, presumably in order to make up lost time, the train soon attained a quite high rate of speed, so that on reaching a certain curve about three miles south of Butler, the engine left •the track, causing the death of Wilkes. The evidence tended to show, and the jury must have found, that the train was being run at an excessive rate of speed at the time of the accident and that this was the cause of death. The plaintiff claims that her deceased husband, riding in the cab of the engine', at that time, and under the circumstances, was a passenger and not an employee; that his objective point was the Bakers-town tunnel and the trip a voluntary one on his part for which no compensation was contemplated or paid, and that the defendant company owed him the duty of safe conduct. On the other hand, the defendant contends that the deceased at the time he met his death, was an employee, and that this is evidenced by the fact of his employee’s pass, his special permit for the purpose of learning the road, and his presence in the engineer’s cab at the time of the accident. Neither of these positions, however, seemed to be necessarily conclusive of the case. It does not necessarily follow, we think, from the fact that the deceased was in possession of an employee’s pass at the time he met his death, that he was therefore in the defendant company’s actual service at that time, and not a passenger on its train. An employee’s pass might well be used by its possessor in pursuit of pleasure or other purpose wholly foreign to the service of the company. In fact it would not be usual for an employee in actual train service to be required to have a .pass. The nature of his duties would be his passport. It comes to a question, therefore, whether, at the time of the accident, the deceased was in the actual service of the company, performing the duties of an employee. If so, what were his duties and what was his employment? By whom had his service been assigned and to whom was he responsible for the manner of its performance ? It cannot, we think, be contended that he was at the time in the actual service of the company.. Service, too, implies compensation, but compensation for the trip in question does not seem to have been in the mind of either party. But if not in actual service of the company at the time, was he engaged in that which was a necessary incident to his employment, either present or prospective ? It is not disputed that Wilkes had fully qualified himself for the new employment to which he was looking forward. He was making the trip in question entirely of his own volition. We do not think the case is in this respect different from what it would have been had the deceased in any other respect sought to better equip himself for his new duties in point of the garb he should wear, or otherwise, and a trip was being made to the city of Pittsburg for that purpose. In neither case would the added equipment be required of him at the hands of his prospective employer, but he himself deemed it prudent to have it and set about to obtain it. This involved a trip over defendant’s railroad. His employee’s pass afforded him the opportunity of making the trip without cost to himself, which would be true in either of the above supposed cases. .Defendant’s counsel, on the argument of the question involved, admitted that if the accident had occurred while Wilkes was in the passenger coach on his way from DuBois to Butler Junction, the defendant would have been liable to him as a passenger, although traveling on an employee’s pass, and in this we think they were correct. But if he was a passenger during the first stage of his journey, notwithstanding his employee’s pass, would he not remain a passenger during the remainder of his trip, so far as the question of his pass was concerned ? Some new element would necessarily enter in to change his relation to the defendant company to that of employee. And it is at this point that the counsel for the defense contend that a new element did enter. They say that when Wilkes, at Butler Junction, left the passenger coach and entered the engineer’s cab, that by doing so he took himself out of the usual place where passengers travel and made himself an employee, and thereby deprived himself of the protection and care due a passenger. While the question thus presented is not free from doubt, yet it is not at all clear that the alleged result would follow his change of place. It is beyond doubt that the general rule requires passengers to ride in the places prepared for them. But this general rule is subject to modification by the supreme authority of the company. In .the present case the defendant, in the person of its master mechanic, gave Wilkes authority to ride on the engines of the Pittsburg division. It does not follow from this, we think, that it by its own act granting the deceased permission, thereby divested itself of the responsibility and consequent liability which existed and continued up to that point. He was no more in the service of the company while riding in the cab of the engine, we think, than when riding in the passenger coach. His purpose was the same all tbe while. The same degree of care would seem to be due him in the one case as in the other. He rode where he did at the various stages of the journey by authority of the defendant company. His employee’s pass permitted him to travel in the passenger coach, while the express authority of the company gave him a place in the cab of the engineer. When the company gave him permission to ride in that place, we think it assumed the duty of carrying him safely there, and was answerable for neglect in this respect. None of our own cases seems to. rule the case in hand in all its circumstances. Neither, in fact, does any other which has been cited to us. In their essential features the cases of State v. West Md. R. R. Co., 63 Md. 433, and Phila. & Reading R. R. Co. v. Derby, 55 U. S. 468, cited by plaintiff’s counsel, seem to more nearly resemble the case in hand. We are not convinced that there was error in submitting the question involved in this case to a jury, under the instructions given, including the instruction that, in order to recover, the plaintiff must prove negligence, which could not be presumed, even though Wilkes were a passenger, by reason of the stipulation indorsed on his employee’s pass: Rowdin v. Penna. R. R. Co., 208 Pa. 623. For the reasons herein given the motion for a new trial is refused. Also motion that judgment be.entered for the defendant, non obstante veredicto, is refused this July 9, 1906.","syllabus":"Negligence — Railroads—Passenger—Locomotive engineer — Master and servant.
In an action against a railroad company to recover damages for the death of plaintiff’s husband, it appeared that the deceased prior to his death had successfully passed an examination for the position of locomotive engineer on the defendant’s railroad. Wishing to inform himself more particularly about a section of the road where the signals had been changed, he secured an employee’s pass, and written permission from the company to ride on any of the locomotives of the division. He took the trip voluntarily, and without any compensation. In the course of the journey he first rode in one of the cars, and later on took his place in the locomotive cab. While riding there, the train left the tracks owing to the negligence of the engineer in charge, and the deceased was killed. Reid, (1) that the question whether the deceased was or was not a passenger was for the jury, and (2) that a verdict and judgment for plaintiff should be sustained.
"} {"attorneys":"Robert A. Rosin, for appellant., John G. Jenemann, with him Joseph R. Thompson and James N. Diefenderfer, for appellees.","case_name":"Workmen's Compensation Appeal Board v. Hamilton","case_name_full":"Workmen's Compensation Appeal Board, N.V.F. Company and Liberty Mutual Insurance Company, Insurance Carrier v. Mrs. Ethel Hamilton","case_name_short":"Hamilton","citation_count":0,"citations":["21 Pa. Commw. 425"],"court_full_name":"Commonwealth Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Commonwealth Court of Pennsylvania","court_type":"SA","date_filed":"1975-10-27","date_filed_is_approximate":false,"id":6490172,"judges":"Crumlish, Rogers, Wilkinson","opinions":[{"author_str":"Crumlish","ocr":true,"opinion_id":6362667,"opinion_text":"\nOpinion by\nJudge Crumlish, Jr.,\nThis is an appeal by Ethel Hamilton (Claimant) from an opinion and order of the Workmen’s Compensation Appeal Board (Board) affirming the referee’s denial of workmen’s compensation benefits and dismissing her claim petition.\nClaimant was employed by the N.V.F. Company (Employer) in April 1969. From December, 1969 until Jan*427uary, 1971 Claimant’s duties consisted of operating a plastic molding machine. The work required repeated overhead striking of a wooden mallet against the machine in order to loosen the finished product by knocking side plates from the top of a press. On January 20, 1971, Claimant experienced pain in her elbow. The examination by Claimant’s orthopedic physician disclosed a condition known as “epicondylitis” of the right arm. He testified that the condition was work-related and the result of a gradual process caused by the repeated movement of the mallet. He further testified that there were no preexisting degenerative diseases which caused Claimant’s condition.\nThe referee found as a fact that the Claimant’s epicondylitis was a result of the repetitive overhead striking of the mallet in the course of her normal duties. He concluded, however, that the facts did not constitute an “accident” within the meaning of that term in The Pennsylvania Workmen’s Compensation Act.1\nThe Board affirmed the referee’s findings of fact and conclusions of law and Claimant filed this appeal. We reverse.\nThe question presented on appeal is whether the referee erred as a matter of law in his determination that Claimant did not sustain a compensable “accident.” For the reasons outlined below, we answer this question in the affirmative.\nWhere, as here, the Board has affirmed the findings of fact and conclusions of law of the referee and has found against the party having the burden of proof, review by this Court is to determine whether the findings are consistent with each other and with the conclusions of law and the Board’s order can be sustained without a capricious disregard of competent evidence. Verabish *428v. Workmen’s Compensation Appeal Board, 17 Pa. Commonwealth Ct. 5, 330 A. 2d 542 (1975). Since the determination of whether or not there is a compensable “accident” is a question of law, Holland v. Workmen’s Compensation Appeal Board, 16 Pa. Commonwealth Ct. 367, 332 A. 2d 834 (1975), we are within our authorized scope of review.\nClaimant contends that she has sustained her permanent disability as a result of an industrial accident under the unusual pathological result doctrine. Under that doctrine, a claimant establishes an accident by proving the occurrence of an unexpected injury caused by a definable event or series of events while performing his usual work and the occurrence of a break or change in the physical structure or body tissues. Dunlap v. Workmen’s Compensation Appeal Board, 17 Pa. Commonwealth Ct. 19, 330 A. 2d 555 (1975).\nThe Employer and its insurance carrier contend that our holding in Hinkle v. H. J. Heinz Co., 7 Pa. Commonwealth Ct. 216, 298 A. 2d 632 (1972) supports the conclusions of the referee since, in Hinkle, we held that normal expected results are not compensable under the unusual pathological result doctrine. They contend further that Claimant is not entitled to recover since she failed to show a sudden occurrence of the injury. Although the Employer has correctly cited us in Hinkle, supra, both the Employer and this Court are bound by the pronouncements of the Pennsylvania Supreme Court2 in the same case.\nIn Hinkle, an employee claimed workmen’s compensation benefits for a partial loss of hearing resulting from his exposure to noisy machinery during his years of employment. The Supreme Court rejected the employer’s argument that the claimant was estopped from claiming that his hearing loss was unforeseen and unexpected. The Court’s reasoning was that the employer, *429in arguing that the Claimant had full knowledge of the working conditions and had thereby voluntarily exposed himself to the risk, was, in reality, posing an assumption-of-risk argument. The Court then noted that this defense was expressly eliminated by the Workmen’s Compensation Act.3\nAppellee further contends that Claimant may not recover for the reason that she failed to show a “sudden” occurrence. In answering a similar argument in Hinkle, the Supreme Court stated:\n“Manifestly, each outburst of noise contributed to the hearing loss, with each particular effect being sudden. Viewing, as we do, each outburst of noise as a miniature accident operating to break down the claimant’s physical structure, we rule that loss of hearing resulting from protracted exposure to noise during the course of employment may constitute a compensable accident within the meaning of the Act.” Pa. , 337 A. 2d at 910.\nWe view the Claimant’s repeated overhead hammering activity in the instant case as being analogous to the repeated outburst of noise present in Hinkle. Accordingly, we reverse the conclusion of the referee and the Board that Claimant sustained no “accident” within the meaning of the Workmen’s Compensation Act and enter the following\nOrder\nAnd Now, this 27th day of October 1975, the Order of the Workmen’s Compensation Appeal Board is vacated and the record is remanded to the Workmen’s Compensation Appeal Board with a direction to make a finding as to the amount of compensation to which Claimant is entitled and to award benefits to Claimant consistent with this opinion.\n\n. Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §411. Although the 1972 amendments dispense with the need for proof of an “accident,” the events alleged to have occurred in the instant case took place prior to the effective date of the 1972 Amendments.\n\n\n. Hinkle v. H. J. Heinz Co. Pa. ,337 A.2d 907 (1975).\n\n\n. Pa. at , 337 A.2d at 911 citing Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §41 (b).\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued September 12, 1975,","precedential_status":"Published","slug":"workmens-compensation-appeal-board-v-hamilton"} {"attorneys":"J. J. Mayfield, and Thos. L. Beatty,' for appellant., W. L. Martin, Attorney-General, for the State.","case_name":"Poe v. State","case_name_full":"Poe v. State","case_name_short":"Poe","citation_count":0,"citations":["87 Ala. 65"],"court_full_name":"Supreme Court of Alabama","court_jurisdiction":"Alabama, AL","court_short_name":"Supreme Court of Alabama","court_type":"S","date_filed":"1888-12-15","date_filed_is_approximate":true,"headnotes":"\nIndictment for Murder.\n
1. To what witness may testify. — On a prosecution for murder, a witness for the defense can not be allowed to testify that the defendant “was afraid” to work in the field alone, or to go out about his premises after dark, on account of threats made against him by the deceased; such testimony being merely the opinion of the witness, based on the conduct or declarations of the defendant himself, or unsupported by any fact at all.
2. Self-defense; charge as to duty to retreat; explanatory charge. — In a case of homicide, a charge instructing the jury that, “if the deceased was the assailant, the party assailed must retreat, unless retreat will endanger his safety, and must refrain from taking life, if there is any other reasonable mode of escape,” states the rule in the ordinary language of the decisions; and if it be objectionable, as requiring the party assailed to act on the actual (and not an apparent) necessity, this qualifying principle should be invoked by an explanatory charge. (The 7th head-note to the case of Tesney v. The State, 77 Ala. 33, in stating that the charge therein set out “is erroneous,” instead of “too narrow and restricted,” is “not justified by the opinion of the court” in that case.l
3. Same; charge ignoring duty to retreat. — A charge requested, instructing the jury that, “if they believed the deceased was trying to draw a deadly weapon, or that he acted in such a manner as to convey to the defendant the impression that he was trying to draw a deadly weapon, for the purpose of attacking the defendant,” who was armed with a shot-gun, “and thereby put defendant in fear of great bodily harm, he was justified in doing whatever was necessary to preserve his own life;” and a charge asserting that, if the deceased came towards the defendant, using angry and insulting language, “and placed his hand in his pocket in such a manner as to indicate to a reasonable mind that his purpose was to draw and fire, then the defendant was authorized to draw and fire first,” each is erroneous, in excluding from the jury all consideration of the inquiry as to any duty to retreat.
4. Charge as to threats, with overt act, excusing retreat. — No threats, or overt acts, which do not, actually or apparently, justify a reasonable apprehension of danger to life, or of great bodily harm, will justify the party assailed in killing his adversary, without resorting to retreat; and a charge requested which ignores the duty to retreat, without regard to the character of the threats, is properly refused.
5. Misleading charge assuming facts to he true. — A charge requested, which assumes as true certain tacts which arp controverted, instead of referring to the jury the sufficiency of the evidence relating to them, is properly refused.
","id":6636896,"judges":"Somerville","opinions":[{"author_str":"Somerville","ocr":true,"opinion_id":6513474,"opinion_text":"\nSOMERVILLE, J.\nThe statement of the witness Olines, that the defendant “was afraid” to work in the field alone, or to go out about his premises after dark, on account of threats made against him by the deceased, for whose homicide he stands indicted, was, at most, but the opinion of the witness, based either on the conduct or declarations of the defendant himself, or else unsupported by fact at all; and it was properly excluded by the court. Such evidence would open the way for easy manufacture of testimony by defendants. The fears of a man, moreover, may be no proper evidence of the danger even apparently confronting him.\n“The right of self-defense,” as the rule is sometimes stated, “can not be carried to the last resort of taking human life, until the defendant has availed himself of all proper means in his power to decline combat by retreat, provided there is open to him a safe mode of escape — that is, when he can safely and conveniently retreat, without putting himself at a disadvantage by increasing his own peril in the combat.”—Carter v. State, 82 Ala. 13, and cases there cited; Brown v. State, 74 Ala. 478; Rogers v. State, 62 Ala. 170.\nThe charge given by the court, at the request of the solicitor, asserted that “ if the deceased was the assailant, the party assailed must retreat, unless retreat will endanger his safety, and must refrain from taking life, if there is any other reasonable mode of escape.” This instruction states *70the rule in the ordinary language of our decisions, and of the books. The main objection taken to it is, that it requires the party assailed to act only on the actual, and not the apparent necessity. Such is not the construction generally imputed to charges in this form, which purport only to assert a rule of law in general terms. The defendant, in estimating the peril which surrounds him — in its bearing both on the necessity of taking life, as well as of retreat — may certainly act on reasonable appearances, where this phase of fact enters into the evidence. This qualifying principle should be invoked by an explanatory charge. An instruction given by the court, which ignores it, may be misleading, as too narrow and limited, but it is not erroneous, the giving of a misleading charge not always being ground of reversible error. The case of Tesney v. State, 77 Ala. 33, does not go further than this, the seventh head-note not being justified by the opinion of the court.\nThe second and sixth charges requested by the defendant were erroneous, in excluding from the consideration of the jury all inquiry as to any duty of retreat'. The mere fact that the alleged attack by the deceased on the defendant was with a pistol, the defendant himself being armed with a shot-gun, did not warrant the withdrawal of this inquiry from the jury, and its decision as matter of law by the court.- — Storey's ease, 71 Ala. 329, 337.\nThe seventh charge is predicated upon the idea, that the making of threats and using of abusive language, without regard to the character of such threats, if accompanied by an overt act to carry them into effect, would justify the party assailed in killing his adversary, without resorting to retreat. This is not -the law. No threats or overt acts, which do not, actually or apparently, justify a reasonable apprehension of danger to life, or great bodily harm, will avail as an excuse of taking human life. There was no error in refusing this charge. — Eiland v. State, 52 Ala. 322; Storey's case, supra; State v. Benham, 92 Amer. Dec. 417.\nThe eighth and, ninth charges are misleading, in assuming as true certain facts, without referring the sufficiency of the evidence bearing on them to the jury. The former assumes that in this case a retreat by the defendant, on the uncontroverted facts, would have left the danger confronting him still impending, and perhaps increased. The latter charge assumes as true the testimony o± the defendant rendered on the trial, to the effect that the deceased had “put his hand in *71Ms pocket as if to draw a pistol,” which, was controverted; to say nothing of its failure to refer to the jury the credibility of other testimony tending to support other facts hypothesized in the charge.\nThis disposes of all the exceptions taken to the rulings of the court. We discover no error in the record, and the judgment must be affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"poe-v-state","summary":"From the Circuit Court of Tuskaloosa. Tried before the Hon. S. H. Sprott. The defendant in this case, Jasper Poe, was indicted for the murder of 'Wallace Cooper, by shooting him with a gun; was convicted of murder in the first degree, and sentenced to the penitentiary for life. The parties were both freedmen, and it seems that they had married sisters, the daughters of Tom and Mary Hailey. The homicide was committed one morning in July, 1888, when the defendant, passing through Hailey’s yard, and having his shot-gun on his shoulder, encountered the deceased, and shot him. The wound made by the shot was “about the size of a dollar,” and the deceased died within fifteen minutes. Mary Hailey, who seems to have been the only eye-witness of the killing, testified on the part of the State, that the defendant, having his gun thrown across his shoulders, with one hand on each end of it, came up near her as she was sitting in the door of her house, “and asked where they all were;” that she told him they were all gone, and h.e turned off to leave; “that he had gone about seven steps when he met Cooper, and asked him ‘if he was going down yonder to-day’; that Cooper said, ‘he did not know’; that defendant then walked on about seven steps, turned and fired, striking Cooper in the back, and killing him.” The wife of the deceased also testified, on behalf of the State, that she saw the fatal shot fired, and that the defendant then presented his gun, and threatened to shoot her; but, on cross-examination, she said that she did not see the gun fired, and that the house was between her and the parties at the time, though she saw her husband fall. The defendant, testifying in his own behalf, said that he had been out turkey-hunting that morning, passed Hailey’s house on his road home, had some few words with Mary Hailey as he passed her, and then started to go home; and he then proceeded: “I had taken four or five steps, when Cooper came around the corner of the house, meeting me. I tried to pass him, when he pressed towards me, with the remark, ‘ There is the damned son of a bitch noto, and I am going on him.’’ I had my gun on my shoulder, and was eight or ten feet from him. He put his hand in his pocket, and attempted to draw his pistol. I presented my gun while he was still attempting to get out his pistol, and he had succeeded in getting it out far enough for me to see the but-end, though the barrel was still in his pocket. When I saw what he was going to do, I fired, and he fell. I am certain his side was towards me when I fired, and he flirted around just as I fired.” The prosecution adduced evidence, also, that the defendant and the deceased had had a personal difficulty, in January, or February, 1888, in which the deceased was shot in the arm; and that the defendant declared, as one witness testified, “in cotton-planting time,” that he would kill Cooper. On the other hand, evidence was adduced by the defense, of repeated declarations by the deceased, to different persons, and at different times, that he would kill the defendant if it took him ten years to do it; that these threats had been communicated to the defendant before the killing; that the deceased, at the time of the difficulty between them, in January or February, 1888, had waylaid the defendant, and attempted to shoot him from ambush; and that the deceased was a quarrelsome, turbulent, and dangerous man. Andrew Clines, in whose employment the parties were at the time, thus testified in behalf of the defendant: “Defendant and Cooper were not on good terms, and Tom Hailey and defendant were at outs. I saw Cooper after he was shot. He was shot over the right hip. The load seemed to range straight through, and the wound could have been covered with a dollar. Cooper was a dangerous man. When I got to him he was dead, and I saw no pistol on or near him.” During the examination of said Clines as a witness, “defendant offered to prove by him that, previous to the killing, and after defendant had heard of the threats made by Cooper, defendant was afraid to work in his field by himself, and was afraid to go after dark to the spring, or to the horse-lot”; and he excepted to the exclusion of this evidence, on objection by the State. The court charged the jury, on request of the solicitor in writing, as follows: “If the deceased was the assailant, the party assailed must retreat, unless retreat will endanger his safety, and must refrain from taking life, if there is any other reasonable mode of escape.” To this charge the defendant excepted, and he also excepted to the refusal of each of the following charges, which were asked by him in writing: (2.) “If the jury believe from the evidence that the deceased was trying to draw a deadly weapon, or that he acted in such a manner as to convey to the defendant the impression that he was trying to draw a deadly weapon, for the purpose of attacking the defendant, and thereby put him in fear of great bodily harm, the defendant was justified in doing whatever was necessary to preserve his own life.” (5.) “If the jury believe the evidence given by the defendant, they will find him not guilty.” (6.) “If the jury believe that the defendant did not provoke, or bring on the difficulty, but met tbe deceased in a peaceable aud orderly manner; that the deceased used angry and insulting language to bim, and came towards bim, and placed bis band in his pocket in such a manner as to indicate to a reasonable mind that bis purpose was to draw and fire; then tbe defendant was authorized to draw and fire first; and tbe rule would not be varied, if it should afterwards turn out that tbe deceased was in fact unarmed.” (7.) “If tbe jury believe that tbe deceased bad previously waylaid tbe defendant to kill bim, and bad afterwards repeatedly threatened to kill bim; and that these threats were communicated to tbe defendant; and that tbe deceased was a dangerous man, and tbe defendant knew tbe fact; and that they casually met; and that tbe deceased made threats, and used abusive language, and made any overt act to carry these threats into effect; under these circumstances, tbe defendant is not required to retreat, or flee, but may kill tbe deceased, if be honestly believes it is necessary to preserve bis life.” (8.) “Tbe party once assailed by an enemy who has threatened to kill bim, is not bound to run, and thereby escape that assault, leaving tbe danger still impending, and perhaps increased by tbe act of running.” (9.) “When a man has been threatened with death, by a vindictive, reckless, and determined man, and has once escaped assassination at bis bands; and bis enemy has lain in wait to kill bim; and they meet accidentally; and bis enemy reiterates bis purpose to kill bim, at tbe same time putting bis band in bis pocket, as if to draw a pistol; and be thereupon shoots and kills bis enemy, and it afterwards turns out that be bad no pistol at tbe time, that fact does not render bim culpable.” (1.) Tbe testimony of Clines was admissible, (1) as tending to prove tbe character of tbe defendant, which is always permissible; (2) as tending to show that be apprehended danger at the bands of tbe deceased, at tbe time of tbe killing; and (3) to rebut tbe idea of malice, arising from tbe use of a deadly weapon. — Armor v. State, 63 Ala. 173; Kilgore v. State, 74 Ala. 1; Fields v. State, 47 Ala. 603; Burr. Ciiv Ev. 509-10, 520-24; 5 Geo. Rep. 85; 2 Halst. 226; 6 Blackf. 299. (2.) Tbe charge given by tbe court, at tbe instance of tbe State, was erroneous, (1) because it ignored tbe murderous intent and character of tbe assault; (2) because it required tbe party to act on the real (instead of the apparent) necessity; and (3) because it was not warranted by the evidence. — Hor. & Th. Oases of Self-defense, 30, 31, 34, 137; 1 Bish. Orim. Law, § 850; 26 Amer. Bep. 52; 71 Ala. 351, 329; 92 Amer. Dec. 417; 80 A. 481; 61 16. 49; 95 Mo. 322: 5 Amer. St. Bep. 882; 17 Ala. 587; 83 Ala. 33; 66 Ala. 548; 67 Ala. 87. (3.) The charges asked and refused correctly stated the law of self-defense. Neither law nor reason requires a man to flee, or even offer to retreat, when he is without fault in bringing on the difficulty, and the assault is felonious in its purpose, fierce in its character, and deadly in its agency. 1 Bish. Orim. Law, §§ 850, 865; 2 Wharf. Orim Law, § 1019; -Foster’s Crown Law, 273; 2 Stark. Ev. 721; Hor. & Th. Oases, 30, 31, 92, 109; 8 Amer. Bep. 474; 77 Ala. 18; 75 Amer. Dec. 52; 80 J6. 398; 2 Orim. L. Magazine, 119; 51 Ala. 1."} {"attorneys":"Jack & Holly Martin & Associates, P.A., by: Ed Tarvin, for appellants., No response.","case_name":"Bier v. Mills","case_name_full":"David BIER and Marcia Bier v. Norma MILLS","case_name_short":"Bier","citation_count":0,"citations":["95 Ark. App. 336","237 S.W.3d 111"],"court_full_name":"Court of Appeals of Arkansas","court_jurisdiction":"Arkansas, AR","court_short_name":"Court of Appeals of Arkansas","court_type":"SA","date_filed":"2006-06-14","date_filed_is_approximate":false,"id":6674875,"judges":"Agree, Bird, Gladwin, Robbins","opinions":[{"author_str":"Gladwin","ocr":true,"opinion_id":6553811,"opinion_text":" Robert J. Gladwin, Judge. This is a one-brief appeal from an order entered by the Washington County Circuit Court denying appellants David and Marcia Bier visitation with respect to their paternal grandson,1 T.T. (DOB 3/25/96), who is in the custody of his maternal grandmother, appellee Norma Mills. Appellants challenge the sufficiency of the evidence and allege that the trial court’s decision that they have no contact with their grandson was an abuse of discretion. We affirm. T.T.’s mother is deceased, and after various problems with his father, the trial court placed temporary custody of T.T. with appellants in December 2003. Sometime later in 2004, appellants, who live in Iowa, sent T.T. to live with his father in Eureka Springs, Arkansas, against the orders of the trial court. Upon learning of the situation, the trial court removed T.T. from his father and temporarily placed legal and physical custody of the child with appellee in November 2004. On December 14, 2004, the trial court ordered custody to remain with appellee and further determined that T.T. was to have no contact with his father and only telephone visitation with appellants to be supervised by his counselor Ross Kelly. Visitation was sporadic, with appellants only talking to T.T. four times prior to his admission to Vista Health Services, where he received inpatient treatment from May 31, 2005, through August 26, 2005. He was diagnosed and treated for mood disorder not otherwise specified, intermittent-explosive disorder, oppositional-defiant disorder, attention-deficit-hyperactivity disorder, asthma, methicillin-resistant-staphylococcus-aureus infection, tooth abscess, problems with primary support group, problems relating to social environment, educational problems, and problems related to interaction with the legal system. He was discharged back into the custody of appellee with medication management consisting of Trileptal and Ritalin, as well as follow-up care from Dr. Richard Lloyd, his attending physician and psychiatrist, and outpatient counseling with Mr. Banyon Patterson. Appellants filed a petition to establish grandparent visitation with respect to T.T. on March 9, 2005. Appellee was named as the respondent in the petition, and she filed a response to the petition on March 31, 2005. On April 25, 2005, the case was transferred from Circuit Judge Mark Lindsay to Circuit Judge Stacey Zimmerman, who had presided over the two previous juvenile cases involving T.T.’s custodial placement. A hearing was held on the petition on September 16, 2005. Appellants and appellee testified, along with Judith Harvey, the director of social services at Vista Health Services. At the close of the hearing, the trial court denied the petition for visitation and further ordered that appellants have no contact with T.T. The trial court issued a hand-written order at the conclusion of the hearing, and the same order was filed of record on September 20, 2005. Appellants filed a notice of appeal on October 10, 2005. We review traditional equity cases de novo on the record and will not reverse a finding of fact by the trial judge unless it is clearly against the preponderance of the evidence. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003). In reviewing the trial judge’s findings, we give due deference to the judge’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). The Arkansas Legislature passed Act 652 of 2003, § 2, effective March 25, 2003, now codified at Ark. Code Ann. § 9-13-107, which addresses the visitation rights of grandparents when a child is not in the custody of a parent as follows: (a)For purposes of this section: (1) “Child” means a minor under the age of eighteen (18) who is: (A) The grandchild of the petitioner; or (B) The great-grandchild of the petitioner; and (2) “Petitioner” means any individual who may petition for visitation rights under this section. (b) A grandparent or great-grandparent may petition the circuit court that granted the guardianship or custody of a child for reasonable visitation rights with respect to his or her grandchild or grandchildren or great-grandchild or great-grandchildren under this section if the child is in the custody or under the guardianship of a person other than one (1) or both of his or her natural or adoptive parents. (c) Visitation with the child may be granted only if the court determines that visitation with the petitioner is in the best interest and welfare of the child. (d)(1) An order granting or denying visitation rights to grandparents and great-grandparents under this section shall be in writing and shall state any and all factors considered by the court in its decision to grant or deny visitation. (2) (A) If the court grants visitation to the petitioner under this section, then the visitation shall be exercised in a manner consistent with all orders regarding custody of or visitation with the child unless the court makes a specific finding otherwise. (B) If the court finds that the petitioner’s visitation should be restricted or limited in any way, then the court shall include the restrictions or limitations in the order granting visitation. (3) An order granting or denying visitation rights under this section is a final order for purposes of appeal. (4) After an order granting or denying visitation has been entered under this section, a party may petition the court for the following: (A) Contempt proceedings if one (1) party to the order fails to comply with the order; (B) To address the issue of visitation based on a change in circumstances; or (C) To address the need to add or modify restrictions or limitations to visitation previously awarded under this section. (Emphasis added.) As a rule, when the setting of visitation is at issue, we will not reverse the court absent an abuse of discretion. Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004). Abuse of discretion is discretion applied thoughtlessly, without due consideration, or improvidendy. Carlew v. Wright, 356 Ark. 208, 148 S.W.3d 237 (2004). However, a circuit court’s conclusion of law is given no deference on appeal. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). Appellants contend that the evidence presented in this matter does not support the decision of the trial court. Each of the appellants testified that they had maintained significant contact with T.T. throughout his life, including two extended summer visits with them at their home in Iowa. They also pointed out that they had temporary custody of T.T. from December 2003 through November 2004 and that T.T. was active in school, church, and sports activities while under their primary care. Appellants explained that, at some point during October or November 2004, they allowed T.T. to move in with his father in Eureka Springs, Arkansas, despite the fact that the trial court previously had removed custody from him and placed temporary custody with them. Appellant David Bier admitted that they “sent everything we had accumulated for [T.T.] with him,” in response to the trial judge’s question to whether it was a “visit” rather than placing him with his father on a more permanent basis. When asked why they made such a decision, appellant David Bier stated that, “[T.T.] is a type of person that you can — and there’s been too much of it ■ — • you can tell him and tell him and tell him, but until he actually, physically sees the type of situation that he wanted to go to, it’s not going to do any good.” This decision occurred without appellants seeking permission from the trial court and ultimately cost them custody of T.T. Both appellants testified at the hearing as to their bad judgment call in allowing T.T. to move in with his father, took responsibility for the poor decision, professed an understanding of how crucial compliance with a court order is, and agreed to abide by whatever restrictions and limitations were placed on their visitation time with T.T. Appellee appeared pro se in the matter, and her participation in the proceeding was limited, especially with respect to questioning other witnesses. Appellee had refused to consent to a meeting between T.T.’s counselors and appellants just prior to the hearing. She testified that she was trying to direct T.T. and that he was at an age that, if not stabilized within the next two years, he would be lost “to the streets.” She stated that T.T. did not need any more confusion in his life and that it was going to take T.T. the rest of his life to be able to function properly due to being raised with “[n]o restrictions, R-rated movies, sex, openly.” She clarified that she meant that negative behavior occurred during the time he was living with his parents rather than during the time that he was in the custody of appellants. Appellee also testified that she knew T.T. and appellants loved each other and that she would not have a problem with contact between them, as long as it was approved and supervised by his physicians and counselors. She even went so far as to say that she believed T.T. needs contact with appellants at the appropriate time and in an appropriate manner and requested that appellants might allow six more months of letting T.T. stabilize a little bit more. The only other concern she expressed at the hearing was that appellants might dredge up the past with the child, which could be problematic for his continued progress and recovery. Although not in evidence in this matter, appellee’s response to appellants’ petition for visitation rights detailed her inability “to locate the child in Iowa [in November 2004] and [the fact that she] searched for him for days.” The response also stated that permanent custody was given to her because T.T.’s father is a known “meth” user and in prison for the second time on felony charges, awaiting sentencing related to drug, hot checks, and numerous other charges. The pleading also described an incident on November 2, 2004, after the last hearing in juvenile court, where she unsuccessfully tried to contact appellants at their motel room and on their cell phone for two days to obtain T.T.’s Ritalin and Trileptal medication. She also stated that the no-contact order issued on November 2, 2004, against appellants, with the exception of telephone visits supervised by T.T.’s counselor, came about after appellants began calling her home three to five times per day. She asserted that T.T. had been traumatized after speaking to appellant Marcia Bier and often had trouble sleeping, even with his medication. Finally, she stated in her response that T.T. was doing very well at his current school, after being there only five weeks, whereas he had been failing while in school in Iowa and Eureka Springs. None of these issues were developed through the testimony at trial, where appellee chose to testify but not to question the other witnesses. Her testimony suggested that she was far less adamant about keeping appellants from T.T. by the time the hearing occurred than she was at the time her initial response had been filed. Judith Harvey testified as to T.T.’s admission, diagnosis, inpatient treatment, condition upon discharge from Vista Health Services, and recommendations for follow-up treatment. She explained that his overall diagnosis upon admission and discharge was the same, except for the methicillin-resistant-staphylococcus-aureus infection, which had been addressed with a twenty-eight day program of antibiotic treatment. She testified that by the time he was discharged, T.T. was able to function outside the inpatient status and had reached his maximum benefit of treatment during his three-month stay. T.T.’s discharge summary from Vista Health Services was admitted into the record without objection. The discharge summary also included a psychiatric summary that detailed: a history of aggression; defiant behavior; verbal and physical threats to his grandmother (appellee) and peers; physical abuse toward appellee, peers, and animals. The prognosis “for ongoing control of presenting symptoms [was listed as] fair ... in part dependent upon [T.T.’s] willingness and ability to participate in treatment, to comply with treatment recommendations, and take medication as prescribed ... [as well as] the willingness and ability of [T.T.’s] family to participate in treatment and to comply with treatment recommendations.” The trial judge questioned the witnesses, and while she explored the issue of appellants allowing T.T. to move in with his father to some extent, it is clear that she relied heavily on what had occurred in the other two proceedings related to T.T.’s custody (case numbers J2003-885 and J2005-390) in making her decision regarding visitation for appellants. The trial judge even referred back to specific testimony from appellant Marcia Bier from the November 2, 2004 hearing regarding disparaging remarks made by T.T. toward her. The applicable statute, Ark. Code Ann. § 9-13-107(c), is extremely discretionary in its language, stating that visitation with the child may be granted only if the court determines that visitation with the petitioner is in the best interest and welfare of the child. That said, the trial judge interjected a great deal during the hearing and relied on evidence outside the record in this matter, referring back to very specific details and testimony from the previous two cases that are not part of the record in this case. Our supreme court has stated that “judicial notice may not be taken of the record in a separate case,” see Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991), and the trial judge has most certainly done that in this case. However, the trial judge also indicated that there may come a time when T.T.’s condition stabilizes and that he might need to see appellants, leaving the door open for them to seek visitation in the future. Based upon our de novo review of the record in this matter, we cannot say that it was clearly erroneous or an abuse of discretion for the trial court to determine that visitation between appellants and T.T., at that point in time, was not in the best interest and welfare of the child. Accordingly, we affirm. Affirmed. Robbins and Bird, JJ., agree. Marcia Bier is the child’s biological paternal grandmother, who married David in ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"bier-v-mills"} {"case_name":"Johnson v. State","case_name_full":"James S. JOHNSON v. STATE of Florida","citation_count":0,"citations":["315 So. 2d 250"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1975-07-09","date_filed_is_approximate":false,"id":7546823,"opinions":[{"ocr":true,"opinion_id":7472215,"opinion_text":"\nAppeal dismissed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"johnson-v-state"} {"attorneys":"Stephen C. McAliley of Brennan, McAli-ley, Hayskar & McAliley, P.A., West Palm Beach, for appellants., Montgomery, Lytal, Reiter, Denney & Searcy, P. A., and Edna L. Caruso, West Palm Beach, for appellees.","case_name":"Bracey v. Reynolds","case_name_full":"E. D. BRACEY, M.D., W. C. Heaton, M.D., Palm Beach Ear, Nose & Throat Association v. Thomas G. REYNOLDS and Margaret B. Reynolds, his wife","case_name_short":"Bracey","citation_count":0,"citations":["414 So. 2d 1081"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1982-04-14","date_filed_is_approximate":false,"id":7589348,"judges":"Beranek, Hersey, Letts","opinions":[{"author_str":"Beranek","ocr":true,"opinion_id":7518477,"opinion_text":"\nBERANEK, Judge.\nThis appeal follows a jury verdict in favor of the plaintiffs/appellees in a medical malpractice suit. We affirm. On September 5,1979, plaintiffs filed a medical liability mediation claim against the defendants/appellants pursuant to Section 768.44, Florida Statutes (1979). The mediation statute was declared unconstitutional in Aldana v. Holub, 381 So.2d 231 (Fla.1980), but constitutionality is not in issue here. Plaintiffs presented no evidence at the mediation hearing and the mediation panel issued a finding for the doctors of “no actionable negligence.” On February 28, 1980, plaintiffs filed an action against defendants in circuit court for medical malpractice. The alleged theory was that defendants were negligent in failing to secure informed consent to the surgery.\nImmediately prior to trial, defendants sought a ruling in limine that, upon introduction into evidence of the favorable mediation finding, plaintiffs be precluded from showing that they presented no evidence at the mediation hearing. The trial court ruled that if defendants made reference to the favorable mediation finding or introduced it into evidence, plaintiffs could then show that they introduced no evidence at the hearing. At the beginning of trial defense counsel advised the court that he would not mention the panel’s findings at all if plaintiffs would be allowed to show that no evidence was presented. An extensive trial was held and the jury awarded Thomas Reynolds and his wife, $225,000. No mention of the mediation finding occurred.\nDefendants’ sole point concerns their contention that the trial court erred in ruling that plaintiffs could inform the jury that no evidence was presented at the mediation hearing. The case of Herrera v. Doctors’ Hospital, 360 So.2d 1092 (Fla.3d DCA 1978), aff'd. 367 So.2d 204 (Fla.1978), held that neither party could comment on or give reasons for the conclusion reached by the mediation panel. While we agree with defendants that the trial court’s ruling may have been erroneous in the abstract, we find that the issue is not appropriate for appellate review because prejudice never actually resulted directly from the erroneous ruling. This was not a situation where a party was prohibited prior to trial from introducing evidence, thus making a proffer unavailing and unnecessary in order to demonstrate error. See General Portland Land Development v. Stevens, 291 So.2d 250 (Fla. 4th DCA 1974). Here, the court ruled defendants could put the panel’s findings into evidence; however, plaintiffs would then have the option of advising the jury that no evidence was presented at the mediation hearing. Defendants chose not to introduce their evidence and thereby avoided the entire issue.\nOn appeal, we can only speculate as to what would have happened had defendants introduced their evidence of the panel’s finding. Based on the posture of the trial and how well things were going, plaintiffs might have decided not to make any comment. We do not base this decision solely on the fact that plaintiff’s strategy might have changed. However, the ruling complained of was not prejudicial until the plaintiffs attempted to introduce the improper evidence of what occurred before the mediation panel. This simply never happened. The decision not to offer the panel decision was a tactical one on defendant’s part and any prejudice was the result of that decision. In a recent decision, Swan v. Florida Farm Bureau Insurance Company, 404 So.2d 802 (Fla. 5th DCA 1981), the Fifth District held that a judgment will not *1083be reversed based on an overruled motion in limine unless the evidence was in fact offered. Although not directly on point this decision supports the conclusion we reach in the present case. Appellant cannot rely on the prejudice that would have occurred because it never actually occurred by virtue of counsel’s decision to simply avoid the whole topic. As in all civil cases, appellant has the burden of demonstrating both error and prejudice and clearly the latter has not been shown. The judgment below is affirmed.\nAFFIRMED.\nHERSEY, J., concurs.\nLETTS, C. J., concurs specially with opinion.\n","per_curiam":false,"type":"020lead"},{"author_str":"Letts","ocr":true,"opinion_id":7518478,"opinion_text":"\nLETTS, Chief Judge,\nconcurring specialty-\nThe judge’s anticipatory ruling was clearly in error and the appellants urge upon us that had they put into evidence the favorable mediation finding, they would have been sandbagged by the erroneous introduction of the fact that no evidence was presented at the hearing.\nMaybe so, but that is only speculation. Yet, since the appellant so speculates, the more relaxed vehicle of a special concurrence allows me to do the same. My speculation is that the plaintiff’s counsel would have made no mention of the fact that no evidence was received at the hearing. To do so would have provided an open and shut reversal on appeal.\n","per_curiam":false,"type":"030concurrence"}],"other_dates":"Rehearing Denied June 25, 1982.","precedential_status":"Published","slug":"bracey-v-reynolds"} {"attorneys":"G-eorge Brown, for complainants., Johk Baxter & Jas. R. Cocee, for respondents.","case_name":"Mabry v. Churchwell","case_name_full":"Joseph A. Mabry & Wife v. Churchwell & Armstrong","case_name_short":"Mabry","citation_count":0,"citations":["42 Tenn. 63"],"court_full_name":"Tennessee Supreme Court","court_jurisdiction":"Tennessee, TN","court_short_name":"Tennessee Supreme Court","court_type":"S","date_filed":"1865-09-15","date_filed_is_approximate":true,"headnotes":"1, Redemption. Tender. Practice in Chancery. Complainants filed their bill to redeem real estate, and alleging a tender and an offer to pay the redemption money, into Court. Upon the return of process, and without answer, the defendant appeared in Court, and on his motion, the complainants were ordered to pay the money in Court in four days, which they refused to do, and their bill was dismissed. Held, that there appearing other grounds of equities in the bill, aside from the tender alleged, the complainants were entitled to an answer and an investigation'of the facts.
","id":7716238,"judges":"Shackelford","opinions":[{"author_str":"Shackelford","ocr":true,"opinion_id":7651771,"opinion_text":"\nShackelford, J.,\ndelivered the opinion of the Court.\nThis is a bill filed by the complainant as the administrator of G. W. Churchwell and his wife, as the lieirs-at-law of said Churchwell, to redeem the real estate purchased by the defendants. In their bill, with other charges, they state they tendered the redemption money' for the lands, and offered, in their bill, to pay it into Court. On the return of the process, without answer, *64the defendants appeared in. Court, and, upon motion, the Chancellor directed the money be paid into Court, within the four days of the Term, or their cause would stand dismissed; thereupon, the complainants, in open Court, refused to pay the money, as directed, and the Chancellor dismissed the cause, and the complainants appealed to this Court. Upon an examination of the bill, we find there are grounds of equity jurisdiction stated in the bill, aside from the tender alledged to have been made. The complainants were entitled to an answer, and an investigation of the facts charged in the bill.\nThe decree of the Chancellor in dismissing the bill was erroneous, and will be reversed, and the cause remanded for further proceedings.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mabry-v-churchwell","summary":"PROM KNOX. This cause was heard by Chancellor Seth J. W. Luckey, at the April Term, 1865, when the bill of complainants was dismissed; from which they appealed,"} {"case_name":"Brace v. Bath & Hammondsport Railroad","case_name_full":"Orwell A. BRACE, as Administrator, etc. v. BATH & HAMMONDSPORT RAILROAD COMPANY","case_name_short":"Brace","citation_count":0,"citations":["160 N.Y.S. 1124"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","cross_reference":"See, also, 166 App. Div. 961, 154 N. Y. Supp. 93Í.","date_filed":"1915-12-15","date_filed_is_approximate":true,"id":8315066,"opinions":[{"ocr":true,"opinion_id":8282263,"opinion_text":"\nAll concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"brace-v-bath-hammondsport-railroad","summary":"Order affirmed, with costs."} {"attorneys":"McCombs & Curtis and M. R. Dickey, for plaintiff in error., T. J. Kenney, for defendant in error.","case_name":"McCrea v. Martien","case_name_full":"McCrea v. Martien","case_name_short":"McCrea","citation_count":0,"citations":["32 Ohio St. (N.S.) 38"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"1876-12-15","date_filed_is_approximate":true,"headnotes":"Where the grantee of land holds the purchase-money in his hands after it becomes due by agreement with the grantor, to indemnify himself from loss by reason of an incumbrance on the land, and enjoyment of the rents and profits thereof until the incumbrance is removed, ho holds the amount due to the grantor as his trustee, and if he uses the money for his own benefit, ho is chargeable with interest on the money from the time it becomes due until paid.
","id":8371386,"judges":"Day","opinions":[{"author_str":"Day","ocr":true,"opinion_id":8340508,"opinion_text":"\nDay, Chief Judge.\nThe question to be determined is, whether the court erred in holding that the plaintiff was not entitled to recover interest on the notes until after the incumbrance contemplated therein was removed.\nThe statute then in force declared, “that all creditors shall be entitled to receive interest on all money, after the same shall become due, either on bond, bill, prommissory note, or other instrument of writing, or contract for money or property.” S. & C. 742.\nWas the money secured by the notes or contracts in question due, within the meaning of thé statute, before the incumbrance was removed ? The answer to this question depends upon the true meaning and legal effect of the instruments. From the language used therein, it is apparent that the maker understood them to be “.notes” payable by a specified time; at which they were regarded as becoming due. Nor is there any doubt but that, if the title to the land for which they were given had been cleared of the contemplated incumbrance, they would have become due on the first day of April, of the year therein named. Are they changed in this respect, by the clauses relating to the supposed incumbrance, though it was not then removed ? So far as .relates to the question of interest, we think not. In regard to that, the notes become due, in any event, at the time respectively stated therein; but if the incumbrance was not then removed, the maker, had the right to hold the money due on the notes as indemnity from loss by reason of the incumbrance. We think this is the true meaning and effect of the instruments in question. Though the money could not' be recovered by action from the maker until the ineumbra-nce was removed, he was to *42hold it, in the meantime, for the purpose specified, as money duo to the payee.\nOne note became due April 1,1862, and the other a year later. On the 28th of May, 1863, the defendant tendered to the plaintiff $1,040, being the principal and interest- due at that time ; but he can take nothing from the tender, for it was coupled with a condition with which he knew the plaintiff could not then comply. Nor was it intended that he should receive the money; but the offer was made by the defendant to evince his willingness to pay the notes, and, peradventure, thereby stop the running of interest which he supposed would otherwise accrue against him. Moreover, he did not attempt to keep the tender good which was then made. He borrowed the money to make the tender, and used it the same day to pay the debt thus incurred by him. lie admits that he never withdrew any money from his business to apply on the notes, until the 29th of May, 1869, when he paid $400 on the notes, and the balance, all but the interest, was tendered in payment of the notes, and, after this suit was brought, deposited with the clerk of the court. But this tender was insufficient if the plaintiff was entitled to interest on the notes respectively from April 1, 1862 and 1863 ; and, according to our construction of the notes, he was entitled to such interest.\nThe view we take of the case is sustained by the principles of equity applicable to the case, and it is to be borne in mind that the plaintiff invoked the equitable aid of the court.\nThe plaintiff had conveyed the land for which the notes were given, to the defendant, who mortgaged the same back to the plaintiff, to secure the purchase-money. The money due on the notes belonged, in equity, to the plaintiff; and though the defendant might hold it for his own indemnity, he so held it as the trustee of the plaintiff. Instead of holding it without use, he put it into, his business, and used it as his own, or as if it were borrowed money; and, failing to account for the profits, should, upon *43equitable principles, be held liable for the use of the money.\nIt is well settled by the authorities that, in all such cases, the trustee is chargeable with interest. Powell v. Martin, 8 Ves. 146; Selden v. James, 6 Rand. 464; People v. Gasherie, 9 Johns. 71; Kirkman v. Vanlier, 7 Ala. 217, 230, ahd cases cited.\nMoreover, it would be most inequitable to permit the defendant to enjoy the rents and profits of the land, for more than six years, for nothing, or, while he receives the rents and profits of the land, to permit him to use the plaintiff’s money, for the same period, for nothing. The case of Brockenbrough v. Blythe, 3 Leigh, 619, was much like this on the point in question. Blythe conveyed a tract of land to Broekenbrough, of which he owned a moiety, and a minor the other moiety. Payments were to be made at specified times, but “ it was covenanted that none of the defeiTed payments should be demanded by Blythe, until he should make a good conveyance ” of the minor’s moiety, on her arriving at full age. The court said:\n“ Then, how does the question stand as.to interest? The record presents the case of a vendor, who has delivered possession of the premises to the purchaser, which he has continued to enjoy without molestation ; of a vendor, who has also faithfully complied with his engagement that a good title should be made upon the happening of a particular event, until which event he has left the purchase-money in the hands of the vendee, as his security, and that vendee has thus, for more than eighteen years, by himself, or his vendee, received the rents and profits, and held the purchase-money also. Is there any principle of law or equity which can justify us in saying he shall keep both ? Shall the purchaser, for so long a period, receive the profits while he is enjoying the interest of the purchase-money ? Eor it -would be willful blindness to the ordinary course of transactions»to suppose that this has lain idle. If raised at all, it has been put to interest, beyond question; if not *44raised, tbe interest has been saved to the party, which amounts to the same thing; for, in either event, he would have enjoyed the vendor’s estate, for eighteen years, for nothing. The injustice of such a proceeding has long since given rise to the rule that, as to interest and profits, the vendor is to be considered the owner of the money, and entitled to the interest, while the vendee is regarded as the owner of the land, and entitled to the profits, but he can not have both.”\nTo the same effect are the cases of Breckenridge v. Hoke, 4 Bibb, 272, and Boyce v. Pritchett, 6 Dana, 231.\nRollmun v. Baker, 5 Humph. 406, is also a case in point. The point in the case is stated in the opinion of the court, as follows:\n“As to interest, the note was made payable, by its terms, one day after date, and the subjoined agreement that suit shall not be brought upon it, while the payee believed the maker to be safe, can not be construed, either in point of intention or legal effect, so as to prevent the computation of interest upon the note, due by its terms and the contract of the parties.”\n\"We are, then, upon both principle and authority, constrained to hold that the plaintiff was entitled to interest on the notes from the time they were made payable.\nThe judgments of the courts below must, therefore, be reversed, and the cause remanded to the court of common pleas for further proceedings, according to law.\n\nJudgment accordingly.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mccrea-v-martien","summary":"Error, to the District Court of Ashland county. The original action was brought in the Court of Common Pleas of Ashland county, by the plaintiff, to recover of the defendant the amount due on two notes, and to foreclose a mortgage given to secure the payment of the notes. The notes were alike, except that one was payable a year later than the other. The following is a copy of the note first payable: “ April 6,1860. “ On or before the first day of April, 1862, I promise to pay to James McCrea, or order, the sum of five hundred dollars, for value received; and whereas trouble and dispute have existed in regard to the title to the premises for which the above note is given in part payment, in consequence of debts claimed against the estate of Samuel Erie, deceased; now, therefore, the said James McCrea agrees that the said notes shall not be collected until this dispute and difficulty shall be settled, or put beyond dispute, or any other difficulty or trouble about said premises ; and in case said title to any of said land should fail, the said notes shall be held as indemnity until the same shall be adjusted and settled, and all costs, damages, and expenses which the said Martien shall be put to in consequence of any suit, or suits, or claims against said land shall be paid out of said notes. Gilbert Martien.” The defendant, in his answer,, admits the execution and delivery of the notes and mortgage, and avers that, afterward, one Eachel Urie brought suit against the plaintiff1 and defendant in this case, to recover an interest in the land for which the notes were given; that she recovered against them in the common pleas; that McCrea appealed to the district court; that while the case was pending in that court, McCrea, on the 29th of May, 1869, settled the controversy with Eachel Urie, by agreeing to pay her $400; that defendant then paid the plaintiff that sum on the note, which amount was paid to said Urie in satisfaction of her claim; that the notes, by their terms, did not become cine until May 29, 1869, when the Urie claim was settled; and that the defendant then tendered to the plaintiff' $620, the amount then due on the notes. The defendant also sets up, in his answer,atender of $1,040 to the plaintiff', May 28,1863. The plaintiff, in his reply, denies the averments in the answer, except as to the payment of $400 on the notes, and the settlement of the Urie claim. On the trial, it was proved that the notes were given for a tract of impi’oved land, deeded by plaintiff to defendant, at the date of the notes; that the defendant then went into and. remained in possession thereof; that'on May 28, 1863, the defendant offered to pay the plaintiff' $1,040 in satisfaction of the notes, if he would then clear the title to the land; that plaintiff replied to the defendant, that he well knew his inability to comply with the condition on which the tender was made; that the defendant borrowed the money to make the tender, and returned it the same clay; that he did not keep the sum on hand, nor withdraw it from his business ; that when the plaintiff called on him for the money, after the Urie settlement, ho borrowed the $400 then paid, and requested the plaintiff to wait a few days for the balance ; that June 4, 1869, he tendered $620, in payment of the notes, which was refused ; and that, on the bringing of this suit, the defendant deposited that sum with the clerk of the court, for the benefit of the plaintiff'. The court found the issues for the defendant, and held, as matter of law, that the plaintiff’ was not entitled to interest on the notes until after the settlement and dismissal of the Urie ease against the plaintiff and defendant, and rendered judgment in favor of the defendant. To the holding and judgment of the court the plaintiff excepted. He filed a motion for a new trial, on the ground that the finding and judgment of the court was contrary to the law and evidence. A bill of exceptions was taken, embodying all the evidence, and showing that the motion was overruled, and exceptions duly taken. The district court, on error, affirmed the judgment of the common pleas ; and this petition in error is prosecuted to reverse the judgments of the courts below."} {"attorneys":"Alexander N. Lopez, Esq., Law Office of Alexander N. Lopez, John C. Lemacks, II, Law Offices of Alexander Nassif Lopez, Gina C. Lo, Glendale, CA, for Petitioner., Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, John C. Cunningham, Esq., Terri J. Scadron, Esq., DOJ-U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.","case_name":"Zavala Archila v. Gonzales","case_name_full":"Hector Estuardo ZAVALA ARCHILA v. Alberto R. GONZALES, Attorney General","citation_count":0,"citations":["134 F. App'x 168"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","date_filed":"2005-06-13","date_filed_is_approximate":false,"id":8462123,"judges":"Hall, Reinhardt, Wardlaw","opinions":[{"ocr":true,"opinion_id":8433921,"opinion_text":"\n*169MEMORANDUM ***\nHector Estuardo Zavala Archila (“Zavala”) is a native and citizen of Guatemala. Zavala appeals the Board of Immigration Appeals’ (“BIA”) denial of his application for suspension of deportation. While we lack jurisdiction over the BIA’s discretionary determinations, we have jurisdiction over Zavala’s due process challenge to the BIA’s failure to fully and properly consider the evidence supporting a finding of extreme hardship. See Torres-Aguilar v. INS, 246 F.3d 1267, 1270-71 (9th Cir.2001) (recognizing that the IIRIRA strips the court of jurisdiction over the Attorney General’s discretionary “extreme hardship” determination, but retaining jurisdiction over constitutional due process claims).1 We grant the petition and remand to the BIA for reopening of Zavala’s suspension proceedings.\nOn February 16, 1999, the Immigration Judge (“IJ”) determined that Zavala did not face extreme hardship to himself or his United States citizen daughter if he were returned to Guatemala and therefore did not qualify for suspension of deportation. See 8 U.S.C. § 1254(a)(1) (1995). Zavala filed a notice of appeal on March 5, 1999. He supplemented his appeal in April and July of 2002 with new information, including declarations from Zavala and his wife explaining the hardships they and their United States citizen daughters would encounter in Guatemala, a marriage license, birth certificates for his daughters and himself, his wife’s driver’s license, an updated Country Report on Human Rights Practices in Guatemala, as well as evidence of home and car ownership, six years of church involvement, and superior job performance in the United States. The BIA refused to consider the new evidence, except for the birth of Zavala’s second child, and denied Zavala relief on January 30, 2003.\nWe review due process challenges to immigration decisions de novo. Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 869 (9th Cir.2003) (en banc). The BIA erred in refusing to consider\" the new evidence Zavala provided regarding his life and family that had developed over the four years that it took the BIA to decide Zavala’s appeal. See id. at 872 (“[W]hen [the BIA] is charged with the determination of facts as they exist at the time the case is finally decided, it may not categorically refuse to consider any tendered supplemental evidence at all.”).2 The supplemental evidence Zavala provided was substantial and “potentially affected the outcome of the proceedings;” thus Zavala has demonstrated that he was prejudiced by the BIA’s rejection of the supplemental evidence. Id. at 875.\nThe BIA did not err in not allowing Zavala to respond to the IJ’s decision that there was a lack of corroborating evidence of his daughter’s existence because the IJ *170explicitly ruled in the alternative, concluding that Zavala’s deportation would not result in extreme hardship to his daughter.\nThe petition is GRANTED and the case is REMANDED to the BIA for reopening of Zavala’s suspension proceedings.\n\n 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.\n\n\n. We lack jurisdiction, however, over Zavala’s claim that the IJ applied the wrong standard for suspension of deportation because the claim was never presented to the BIA and, therefore, was unexhausted. In any event, the claim is without merit because, although the IJ did misstate the suspension of deportation standard once, he stated the proper standard several times, corrected his misstatement after completing his oral decision, and used the proper standard in his final analysis.\n\n\n. Because Zavala filed his appeal to the BIA before September 25, 2002, like the petitioner in Ramirez-Alejandre, his appeal is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted on briefs Dec. 9, 2004.**","precedential_status":"Published","slug":"zavala-archila-v-gonzales"} {"case_name":"Atlantic & Pacific Telegraph Co. v. Baltimore & Ohio Railroad","case_name_full":"The Atlantic and Pacific Telegraph Company v. The Baltimore & Ohio Railroad Company and American Union Telegraph Company","citation_count":0,"citations":["2 Ill. Cir. Ct. 84"],"court_full_name":"Illinois Circuit Court","court_jurisdiction":"Illinois, IL","court_short_name":"Illinois Circuit Court","court_type":"ST","date_filed":"1880-03-30","date_filed_is_approximate":false,"headnotes":"1. Contracts — Performance by One Party — Estoppel as to Terms. Where parties are in negotiation in reference to a joint adventure and one party notifies the other that he will proceed to expend monies and change his own status under the terms proposed to the other party and such other party stands silent and leads the first party to suppose that his terms are agreed to, such other party will he held to be equitably estopped from denying such proposed terms to be the terms of such joint adventure. Not having spoken when he should, he will not be heard to speak when he should be silent.
2. Same — Performance By One Party of Imperfect Contract. If one party acts under an imperfect contract and the other party has the right to fix the term's, of the contract subsequently, such party will not be allowed to fix other than “equitable terms.”
3. Equity Practice — Amendments—Liberally Allowed. The objection that the proof and the allegations do not agree is well nigh obsolete in a court of equity. The statute provides that any amendments may be allowed in the discretion of the court. If the proof shows that a party is entitled to relief the court will permit the amendment of the hill so as to conform to the proof.
4. Adequate Remedy at Law. Where the damages which a party will suffer are uncertain there is not an adequate remedy at law.
5. Injunction — Affirmative Relief — Continuing Injury. Affirmative relief by injunction will seldom be granted, yet the court will not only restrain a party from wrongdoing but will also restrain him from continuing to do wrong, even if thereby the wronged party does obtain affirmative relief. The remedy by injunction is almost co-extensive with the remedy by specific performance.
6. Injunction — When Issued. The injunction writ should be issued with great caution by every chancellor, but courts of equity have never placed any defined limits to the exercise of the power.
7. Contracts — Construction—Unusual Contract. Where the terms of a contract are in dispute and the agreement contended for by one party is extraordinary in its nature and one-sided the court will require the clearest evidence to establish the contract.
8. Same — Dispute as to Terms. Where a verbal contract for the erection of a line of telegraph along the right of way of a railroad is entered into between a railroad and a telegraph company and the railroad company claims the right to take possession óf the poles upon accounting for their cost and it is contended by the telegraph company that possession could not be taken unless payment of the cost of the poles was first made, the court will construe the contract to require payment of such cost as a condition precedent to the taking possession of such poles.
9. Same — Legal Rights Under — Must be Exercised in Good Faith. Even though an absolute and arbitrary power exists under a contract to do a particular act the court will not permit the exercise of such power, unless it is done in good faith. Good faith is of the essence of all contracts. The court presupposes in every contract a basis of good faith upon which all the stipulations contained in the contract must rest.
10. Same — Right of Railroad Company to Take Possession of Poles of Telegraph Company Under Contract — Good Faith. Where under a contract a railroad company has the right to take possession of the poles and lines of the telegraph company erected along the right of way of the railroad company this right cannot be exercised in bad faith and for the benefit of a rival telegraph company.
11. Public Policy — Courts Not Affected by. The courts cannot be influenced by the argument that it would be against public policy to grant the relief prayed for. “Public policy is an unruly horse, which, if a judge unwarily mounts, ten to one, he is run away with.”
12. Equity — Injunction to Prevent Doing of Act Which Defendant Has Right to Perform Even if Injunction Issued. The court will issue an injunction to restrain a defendant from terminating an agreement which it is sought to terminate in bad faith, even though such party can thereafter terminate the agreement at its pleasure..
","id":8631267,"judges":"Tuley","opinions":[{"author_str":"Tuley","ocr":true,"opinion_id":8610737,"opinion_text":" Tuley, J.:— The facts of this controversy I find to be substantially as follows : It appears that in September, or early in October, 1873, negotiations commenced between Thos. T. Eckert, then president of the Atlantic and Pacific Telegraph Company, the complainant, and John W. Garrett, president of the defendant, the Baltimore & Ohio Railroad Company, for the putting into operation a joint telegraph system for the two companies on the line of that portion of defendant’s Baltimore & Ohio Railroad, known as the Central Ohio Division, and which might be extended over the entire lines of road of the Baltimore & Ohio Company, with such modifications as might be' agreed upon. A proposition was submitted by President Eckert to President Garrett, apparently in compliance with the latter’s request, by which the Atlantic and Pacific Company proposed to erect a line of poles at its own cost on line of defendant’s road between \"Wheeling and Columbus; the wires of the railroad company to be transferred to the new line of poles, and the railroad company to have the right to put on additional wires, as it desired; the Atlantic & Pacific Company to have the right to put on a through wire for its exclusive use, and the railroad company to put an additional wire for the joint use of the two companies. The telegraph company was to furnish main battery power for operating all the wires, and to pay one-half the compensation of operators at the principal railroad stations. Other details as to the use of office room, and the division of the receipts were included in the proposition. This proposition was made October 9, 1875, and appears to have been made after the parties had arrived at an agreement to act together, and was made for the purpose of arranging its details. In the letter containing the proposition referred to, President Eckert writes that the poles for the work are “being loaded today,” and asks to be informed by telegraph whether the work could proceed; also that President Garrett have a formal contract drawn and forwarded. On October 15, 1875, Eckert again writes Garrett, enclosing copy of contract covering the Central Ohio Division, which he states comprises the various modifications and additional points elicited during “our conference,” referring evidently to some conference held between the 9th and 15th of October. Eckert refers to the fact that he finds the word “free” erased, and offers reasons why it should remain in, and states that he having executed the enclosed copy, requests Mr. Garrett to have another copy made and duly executed and forwarded to him, Eckert. On the 16th of October, 1875, Eckert informs Garrett that upon receipt of notice that poles, wires and insulators proposed to be shipped to Chicago Junction, near Chicago, the telegraph company will put them up to the office of the railroad company in Chicago, and, if necessary, place them in the telegraph company’s right of way. On the same day Eckert writes Garrett that “agreeably to our conversation I have respectfully to present for your consideration the following plan for operation of the telegraph lines of the Baltimore & Ohio Railroad Company,” and submits a long detailed plan of operation and statements as to how the earnings of the line are to be divided, and notifies Garrett of the amount of territory covered by the Atlantic & Pacific telegraph wires. He says: “If this arrangement is agreeable to you, as I hope it may be, this letter and yours in reply signifying that fact will form all the agreement that need be entered into between the two companies, at least for the present. If, upon a trial of this plan, modifications should be made desirable in any feature thereof, we shall cheerfully meet yo'u in so framing them as to render the arrangement entirely agreeable; or it may be terminable entirely at your pleasure on giving such reasonable notice as will prevent inconvenience to the public ‘and ourselves. ’ ’ On the 19th of October Eckert, by letter to Robt. Stewart, superintendent of telegraph for the Baltimore & Ohio Railroad, requests him to meet Mr. Bates at Wheeling by Thursday morning, to arrange the details of carrying on the work of construction of the. new joint lines on the Central Ohio Division, and that Mr. Garrett gave him to understand that he might proceed with the work on that division, but, he, Eckert, has waited for the formal execution of contract before, actually beginning work. Upon the same day he writes to Garrett that he has the poles and men ready, and requests that he inform him if he can proceed with the work. It appears by a letter of Bates, superintendent of Atlantic & Pacific Company, to Stewart, that the connection of the Central Ohio Railroad would be completed- December 15th, at which time he says “we will have wire connection with your lines at the following places: Wheeling, Newark, Columbus, Sandusky and Tiffin.” Early in 1876, certain correspondence appears between the parties relative to certain tolls and proportions of tolls at certain points, and also as to additional wires between Tiffin and Chicago to be placed by the Atlantic & Pacific Company, but subject to agreement to be made with Garrett. In October, 1876, Eckert, in a letter to Garrett, says that he is authorized by his executive committee to proceed at once to erect a wire from Washington or Baltimore to Cincinnati, on the poles along the Baltimore & Ohio Railroad, and that he will,, unless he, Garrett, sends instructions to the contrary, proceed with the work “on our own account.” This wire “may be considered to be subject to such of our propositions now before you as you may in future accept, ‘or if you desire to own it subject to the general arrangement, you may have the •option of doing so at cost on one year’s notice fio us, and this letter will be our agreement to that effect. ’ ’ November 25, 1876, Mr. Eckert again writes to Mr. Garrett that he, having permitted the Atlantic & Pacific Telegraph Company to connect with telegraph lines on his Chicago, Lake Erie, Metropolitan and Valley divisions, he, Eckert, has again renewed his request for like actions as to the Marietta & Cincinnati Railroad, March 1, 1877, Stewart writes to Eckert that there is nothing to prevent his company putting up an additional wire desired on the Central' Ohio and Chicago Division and Hempfield roads, and the division between Columbus and Newark, the agreement to be made with him, Garrett, as to the terms on which these wires are to be used. This is substantially all the written evidence that is found bearing on the question as to what was the contract between the telegraph and the railroad company. I think it clearly appears that there were repeated conversations between the presidents of the two companies in which the terms of this .joint arrangement were discussed. It is from the affidavits which disclose what occurred at these conversations and those which relate to the conduct of the parties subsequent to the making of the joint arrangement — taken together with the evidence as to the contract contained in the letters referred to — that we are to determine what was the agreement between the telegraph and the -railroad company, for it is admitted by both sides, that there was an agreement of some kind — they disagree, however, as to the terms of that agreement. The complainant contends that the contract, or agreement, was in substance as set out In the letters referred to, while the railroad company replies, that the letters contain only propositions and terms made by the telegraph company and not accepted by the railroad company, and that propositions coming from one side only can not be held to constitute an agreement; in other words, that it takes two to make a bargain. It is true that no replies appear to have been made by the railroad company to these propositions and requests of the telegraph company. If the telegraph company had received them it is to be assumed they would' have been presented in evidence, if they were of a nature that indicated an assent to the terms of the agree.ment proposed by the telegraph company, and, on the other hand, if the railroad company did reply to these letters containing propositions upon which the telegraph company pro-, posed to enter into this joint system of telegraph lines, and such replies indicated a dissent, it is to be assumed the railroad company would have produced copies thereof. The' fact is, that the telegraph company appears to have been extremely anxious to have the terms definitely settled and a written contract executed, and the railroad company equally as anxious to leave the terms of the joint arrangement as. indefinite as possible, and to avoid the execution of a written agreement. It is, I think, apparent that the latter company desired to get the telegraph company to expend its moneys in the erection of new poles, wires, etc., and making connections with defendant’s wries to as large an extent as possible —to get it so far involved in the new arrangement that it could not recede without great loss, — and this without the railroad company having definitely committed itself as to the terms of the joint arrangement, either in writing or otherwise. This course may have been perfectly justifiable in a business point of view, but it can scarcely expect to find commendation in a court of equity. It is admitted that the complainant did proceed to erect new telegraph poles on what is called the Central Ohio Division, from Wheeling over the Bellaire Bridge, and thence to Columbus, Ohio, — that the wires of the defendant railroad were transferred to the new poles, and new wires were placed thereon as proposed by complainant in letter of October 9, 1875. That complainant also, in pursuance of the negotiations before referred to, did place a wire between Tiffin, Ohio, and Chicago, and did erect poles and string wires upon what is known as the Hempfield Branch, between Washington, Pennsylvania, and Wheeling, and that all, or substantially all, of the various lines of railroad owned or operated by the Baltimore and Ohio Company, were jointly operated by the complainant and the railroad company; the complainant erecting poles and wires upon some of the lines, and upon others placing new wires on the poles owned by the railroad company. Among the last was a wire erected from Washington or Baltimore to Cincinnati, in accordance with the proposition which is found in the letter of October 16th, 1876, a date more than one year after the commencement of the first negotiations. Independent of the evidence found in the affidavit for the defendants filed in this cause, I apprehend that upon the principle that where parties being in negotiations for, and having agreed to go into a joint arrangement or adventure— one notifies the other that he will proceed to expend moneys, and change his own status upon the proposition as to the terms theretofore made to such other party, and such other party stands silent, and leads the first named party to suppose that his terms are agreed to, such other party will be held to be equitably estopped from denying such proposed terms to be the terms of such joint adventure or arrangement. Not having spoken when he should have spoken, he will not be heard to speak when he should be silent. So that, except so far as the affidavits on the part of the defendants show a change of the proposed terms, I remark, that upon this principle I must conclude that the terms of the arrangement were as contained in the letters — the evidence showing that the telegraph company did act and did expend large amounts of money after submitting such proposed terms. In any event, if complainant acted, leaving Mr. Garrett the right to fix the terms subsequently, he would not be allowed to fix other than “equitable terms.” As to the important question (as to which the defense claims the railroad company did speak out) i. e., as to the length of time this joint arrangement was to continue, it was prima facie the case made by the complainant, to be terminable entirely at the pleasure of the railroad company upon giving such reasonable notices as would prevent inconvenience to the public and to the telegraph company. This is the provision contained in the plan of operation and basis of agreement proposed in President Eckert’s letter to President Garrett of date the 16th of October, 1875, which I have before referred to as being one of the letters that demanded some sort of answer on the part of the Baltimore & Ohio Railroad Company. This letter, and one written more than one year after, to wit: Oct. 16, 1876, are the only ones which contain propositions in which the length of time the joint arrangement is to continue, is in any way referred to. The last one referred to is in reference to the erection of a wire from Baltimore to Cincinnati, in which President Eckert says he will proceed with the work, unless he, President Garrett, sends instructions to the contrary; also that “this wire may be considered subject to such of our propositions now before you, as you may in future accept, or if you desire to own it, subject to the general arrangement, you may have the option of doing so at cost on one year’s notice to us, and this letter will be our agreement to this effect.” The general arrangement referred to, I take it, must mean the general arrangement contained in the letter of the 16th of October, 1875, in which it is proposed (among other things) that receipts for telegraphing between points reached only by the Baltimore & Ohio line .were to accrue entirely to that company, but where both companies had wires, the receipts were to be divided as in that letter specified; that is, the proposition was that the Baltimore & Ohio Company might appropriate the whole receipts after having paid the cost of the wire, having given one year’s prior notice of their desire to do so. It appears to be a singular proposition for President Eckert to make, if he understood, at that time, that the Baltimore & Ohio Railroad Company had the right to terminate the agreement as to all the other lines at its pleasure, without notice, and without paying therefor, before taking possession. This letter was not replied to, but the wire was erected, and I must, from the case as made by the complainant, conclude that the defendant railroad company had the right to treat it as subject to the general arrangement, which I understand from the letters, to be that the Baltimore & Ohio Railroad Company was, in the event of the termination of the joint arrangement, to have the possession of all the property jointly used upon the payment therefor, and to have, as before stated, the right to terminate the arrangement at its pleasure, giving such reasonable notice as aforesaid. This is the ease as made-by the complainant. But it is said that this is not the case as made by the bill, but as the allegata, and probata do not agree, that complainant can have no relief. I shall dispose of, this objection, 'by remarking that our statute of 1872 having provided that at any time before final judgment in a civil suit any amendments may be allowed in the discretion oí the court, that this objection has well nigh become obsolete in a court of equity, certainly as to proceedings therein prior to final decree. Even independent of the statute, I know no reason, upon an application of this kind, if the complainant’s case or the defendant’s ease as presented, or a part of each, show such a state of facts as calls for relief, and will justify the use of the. writ of injunction, why this court should not permit the complainant to amend his bill so as to entitle him to the writ. Another objection is, that the damages are not irreparable, and may be compensated in an action at law. I do not think so. The defendant has taken from the complainant the possession of wires which form part of a circuit or of various currents; wires which the complainant was obliged to use, not only for communication to points along the lines of the wires, but also to other points and cities which are connected by other wires at various points on the lines of the wires taken possession of. How much business will fail to come to the-complainant by reason of the public knowledge that it no-longer has the control of these wires, must be left to the-imagination; and the offer of the defendants to send its mes-ages at usual rates, as between telegraph companies, cannot, be held to give us a criterion by which we can measure the. damages of the complainant. Another objection urged is that complainant is, in fact, asking affirmative relief: a restorative injunction; that the office of the writ is preventive only, and, therefore, inasmuch as the defendant has already taken complete possession, the writ cannot, or should not, issue. It is an ungracious defense, to say the least, for the defendant to set up, even if it were one which is sustainable. While it is true that affirmative relief as such will seldom be granted, yet the court will not only restrain a party from doing wrong but will also restrain him from continuing to do wrong, even if thereby the wronged party does obtain affirmative relief. Jeremy defines an injunction to be “a writ framed according to the circumstances of the case commanding an act which a court of -equity regards as essential to justice or restraining an act which it esteems contrary to equity and good conscience.” The object of the writ is generally preventive and protective rather than restorative; although it is by no means confined to the former; it seeks to prevent a meditated wrong more ■often than to redress an injury already done. With reference to injunctions to enforce contracts or to forbid a violation of its terms, says Snell in his Principles of Equity: “The jurisdiction of equity may almost be said to be co-extensive with its power to compel specific performance. Whatever duty a court of equity will compel a party to perform, it will generally, on the other hand, restrain him from violating in many cases. Therefore, it will be seen that the court in exercising its jurisdiction to restrain a party from doing an act is in effect compelling a specific performance of that act;” and that it will not suffer parties to depart from their contract at their pleasure, leaving the party with whom they have contracted to the mere chance of any -damage which a jury may give. '■ In this case the injunction to restrain the defendants from applying the telegraph wires, etc., to other purposes than that contemplated by the joint arrangement existing between the parties, would be within the province of a court of equity, although it might operate as a decree for the specific performance of the agreement for the time being. But this injury is in the nature of a continued injury, a continued trespass— as it continues day by day to prevent the defendant from carrying on its business of telegraphing in the various circuits with which these lines are connected. As I suggested on the hearing, if a party took possession of a small section of a railroad track which act prevented the working of the entire line, there could be no doubt of the power of this court to enjoin him from continuing to interrupt the railroad travel until the rights of the parties could be determined. Courts of equity have never placed any defined limits to the exercise of this power, and as new species of property are being created, new rights evolved by the progress of commerce and civilization, the necessity for its use cannot be foreseen or predetermined. It is a writ that should be used with great caution by every chancellor, but there is no writ in these days, — when corporations as powerful as the government itself exist, — that can be used more beneficially, particularly in controlling such corporations, and at the same time protecting the public against injuries arising from these wars carried on upon the principle that “might makes right.” Having disposed of these technical objections, which, with due deference to defendants’ solicitors, are in fact mere cobwebs to be brushed aside in arriving at the true equities of a case of this kind, let us consider how far the case as made by the complainant’s bill, affidavits, and the admitted acts of the parties has been overcome by the defendants. It will be observed that neither the bill nor answer are sworn to by parties who had any personal knowledge of the negotiations which resulted in the agreement between the Atlantic & Pacific Telegraph Company and the Baltimore & Ohio Bailroad Company, and their value as affidavits is much lessened by that fact. The case as made by the defendants rests substantially upon the affidavits of Garrett, president of the Baltimore & Ohio Bailroad company; of Eckert, then president of the Atlantic & Pacific Telegraph company, and one Bates, who was superintendent of the Atlantic division' of the Atlantic & Pacific Telegraph lines, all of whom are now in the service of the- defendant corporation, the Baltimore & Ohio Bailroad company. It is admitted that the negotiations and the settlement of the terms of the agreement were all done and conducted by the president of the two companies. Mr. Bates says he was present at six or seven interviews between the two presidents; and in another part of his affidavit, that he was present at all the interviews — and undertakes to tell the result of the several interviews. It will be noticed that the affidavits of these three parties do not profess to give us the terms and the agreement between the two companies, except in these two particulars, to wit, as to the right of the Baltimore & Ohio Railroad Company to terminate the agreement and take possession of the property and as to the payment therefor. President Garrett testifies upon these points in substance, that there was no written agreement, that he gave a verbal license to put wires on the railroad poles on a part of the lines, and on other parts, to put up both poles and wires, and to operate the same, but with the understanding that the railroad company might at any time revoke the license, and, if it should so elect, take possession of the complainant’s property put on its various lines of road under this arrangement or licence. That President Eckert, when the matter was first under consideration, desired to have some fixed period of notice when this should be done, but that Mr. Garrett at all times positively declined to grant such a stipulation. He, as to the final agreement as to notice and time of termination of the agreement, says: “I could not tell at what moment the changed relations between theAtlantic & Pacific and Western Union Telegraph companies,, and the necessities of the Baltimore & Ohio company might require me to have full and prompt possession of the Baltimore & Ohio Road, and its connections. Therefore, in the final interview, at which the matter was arranged, which took place at my house in the city of Baltimore, between General Eckert and myself, Mr. D. H. Bates, then superintendent of telegraph of General Eckert’s company, being, as I think, present, it was conceded by General Eckert, and distinctly agreed upon between us, as an essential part of the arrangement made, that I was to be at liberty any time I pleased, to revoke the license I was giving to the Atlantic & Pacific Telegraph Company, on the part of the Baltimore & Ohio Railroad Company, to use and operate telegraph lines along it and its connections, and at the same time to take possession, if I so pleased, of all the poles that might be erected along the line of the Baltimore & Ohio Road, its branches, divisions, and its connections by the telegraph company, accounting for them at their original cost.” President Eckert says: “It was a part of the arrangement between the two companies that the Baltimore & Ohio Railroad Company should be at liberty to take the poles and wires that should be constructed or used by us in maintaining the lines of telegraph wires on the Baltimore & Ohio Railroad; that the last named company should be at liberty to take the same at any time, paying therefor to the Atlantic & Pacific Telegraph Company the cost price thereof. “During the negotiations under which this arrangement was made, I tried, in behalf of the company I represented, to get Mr. Garrett to agree that the Baltimore & Ohio Railroad Company should give one year’s notice before taking possession of the poles and wires, under the arrangement I have spoken of as having been made with that company. Mr. Garrett expressly declined to make any. such arrangement, and stated that he must be left at liberty to take these wires and poles at any such time as he might see fit, without giving notice, to which I agreed, and so the matter was left, and so remained during the time that I was president of the Atlantic & Pacific Telegraph Company, without any understanding between the two companies that any notice should be given, as required on the part of the Baltimore & Ohio Railroad Company, whenever it should desire to take possession of the poles and wires already referred to.” Mr. Bates says: “That at the various interviews during the years 1875, 1876 and 1877, the said John W. Garrett, as president of the said railroad company, in each and all of the interviews aforesaid, declined to accept or approve of any written ■ contract between the said telegraph company and the said railroad company, and would not make, as agent, any written agreement on the subject, but simply gave his verbal consent and temporary license to the said Thomas T. Eckert, president of said telegraph company, for the construction of various lines of telegraph between Washington, Pennsylvania, and Wheeling, West Virginia, and Columbus, Ohio; between Tiffin, Ohio, and Chicago, Illinois; between Washington, D. C., and Cincinnati, Ohio, and between Washington, D. C., and Alexandria, Virginia; said lines to be built at the cost of said telegraph company; to be at all times and ah,any time subject to their being taken possession of by said railroad company, when he, the said president, John W. Garrett, might so elect. The reason given by the said John W. Garrett, during and at the various interviews aforesaid, for declining to make any written or formal agreement with said telegraph company was, that he proposed and desired to protect the interests of his railroad company against the prejudicial effects of any sale, amalgamation, or other arrangements on the part of the said Atlantic & Pacific Telegraph Company, or any other company.” The affidavit of Mr. Bates might be justly criticised. It is very broad and comprehensive; indeed, too much so. Mr. Eckert’s statement, and Mr. Garrett’s, as to the payment for the properly of the Atlantic & Pacific Telegraph Company, do not agree. Mr. Garrett says he was to have the right, at his election to take it. Mr. Garrett seems to consider the agreement as giving him; the right to terminate it any time, and that he might, at “his election,” “if he so pleased,” take possession of all the wires and poles that might be erected along the lines of the Baltimore &' Ohio Railroad Company, payment of course to be made therefor. As to taking possession and paying for the property, there was nothing obligatory on the railroad company, even if they should terminate the agreement, is what is to be understood from Mr. Garrett’s affidavit. The affidavit of Mr. Eckert is to the effect that Mr. Garrett was to be at liberty to take these wires and poles at any time he should see fit. Both affiants aver that Garrett had the right to. terminate the agreement at his pleasure, but as to taking possession of complainant’s property and paying therefor, Garrett’s affidavit makes the doing so optional with Garrett, while Mr. Eckert’s affidavit makes it obligatory to do so on terminating the agreement. Mr. Garrett says if he so pleased he was to take possession of the wires and poles, accounting for them at their original cost, while Mr. Eckert says that Mr. Garrett was to be at liberty to take the same at any time, paying therefor to the Atlantic & Pacific Company the cost price thereof. Mr. Bates says nothing as to any payment to be made for the wires, etc. A contract giving the right to take possession of another’s property at any time Mr. Garrett pleased, accounting therefor at the cost price, and a contract giving the right to take possession of another’s property at any time Mr. Garrett pleased, paying therefor the original cost are two very different contracts. In the one payment is a condition subsequent, in the other, payment, or tender of payment at least, is a condition precedent. The title passes in the one case without payment, and the debt remains, in the other the title passes by payment. If Mr. Garrett and Mr. Eckert each understood the agreement on this point, as stated in their respective affidavits, the minds of the contracting parties failed to meet on a vital point, as to the condition upon which the Baltimore & Ohio Railroad Company had the right to take possession of the property of the complainant. The most reasonable agreement, the one that would have been most reasonable under the circumstances, was that payment should precede, or at least, be co-incident with the taking of possession. The agreement contended for on the part of Mr. Garrett is one of so extraordinary a nature, to my mind, as to require the clearest evidence that a contract so one-sided was entered into between the presidents of these two corporations. I think the fact is, that payment was to be made upon taking possession, and it was to be a payment of the original cost and not a balancing or settlement of accounts. The complainant has failed to sustain the allegation as to. one year’s prior notice to be given of intention to terminate the agreement as to a line, or portion of a line, of the Baltimore & Ohio Railroad Company, and as to the averment as to “reasonable notice” while there is much in the case as presented to show that complainant had the right to insist on “reasonable notice” of the intention to terminate the agreement— yet the ease as now presented (whatever may be the result upon final hearing) does show that the Bailtimore & Ohio Railroad Company was not bound to give any prior notice. In the view, however, that I take of this case as .now presented, it is not material for the purpose of this motion whether the notice was to be a reasonable one, or whether there was to be no notice. But, assuming that the Baltimore & Ohio Company had the right reserved by the verbal agreement to at any time terminate this joint arrangement or agreement, and take possession of the lines paying therefor, yet this was a right to be exercised with the proviso which underlies every right in every contract in a court of equity— to wit, that it be exercised in good faith. It is argued by the defendants, that these parties were able to contract; that they are presumed to have had in view all the consequences, and that it is no matter if complainant is damaged or ruined — if it was a right, this court cannot consider the consequences. This is true as a legal proposition. But a court of equity will scan, as with an eagle’s eye, the circumstances attending the exercise of that legal right, to discover, if possible, whether the right has been exercised in good faith, or whether the virus of mala fides has destroyed the vitality of the act. This arrangement between these companies was in the nature of a copartnership, or joint adventure; the property of each was used to make money for both, and was used as joint property for the common benefit. By the joint arrangement the property of the parties became to some extent so intermingled that it was necessary on its termination that the railroad company should own all the property, and for the railroad company’s own security it was necessary that this power to terminate the joint arrangement and take possession should exist. As before stated, if the power had been exercised for the purpose it was given, and in good faith, it must be sustained. . The principles laid down in the case of Blisset v. Daniel 10 Hare, 483, applied to the facts upon this part of the case, are, to my mind, decisive of the question whether or not this power has been exercised in good faith. In that case an arbitrary power was given to two-thirds of the members of the copartnership to expel any partner from the firm. It-could be done without cause, without a convention of the partners, without notice, simply by signing a notice of expulsion and delivering the same to the partner, or at his place of residence. Under this power, one of the parties was served with notice of his expulsion and payment of his share tendered to him. He filed a bill to declare the notice of expulsion void, •for an accounting and a dissolution of the copartnership, and distribution of the assets in the way usual to courts of chancery. The Vice-Chancellor Wood, in a remarkably able opinion after observing that this power of expulsion was the exercise of a strict legal right, and that the construction to be given to the words of the power should be of the strictest character, and that in a court of equity everything would be considered strictly against the parties exercising the power of expulsion, reviews the various clauses of the articles of copartnership, and holds that the defendants were competent to give a notice to dissolve without assigning any reason, without holding any meeting or- convention of the parties, but he says (p. 522): “The power must be exercised bona fide, Good faith is unquestionably of the essence of all contracts. Sir Fitzroy Kelly (one of the solicitors) has said that I could not introduce any new words into this contract. The court does not do so, but the court presupposes in every contract, and if there can be a difference, more especially in every contract of partnership, a basis of good faith, upon which all the stipulations contained in the deed must rest. This power would never be allowed to be exercised by this court in a' manner against what I may call the truth and honor of these articles. ... It is quite clear that this power was never intended to be exercised by any two-thirds of the partners, merely and solely for their own exclusive benefit. If cause be shown, of course it removes all difficulty with reference to fraud, using that word according to the sense in which the court uses it; but if cause be not shown and proved, then it must be very clearly made out that the éxercise of-the power has been, in good faith.” He then supposes certain tests to show that the liberal construction of the articles could not be enforced, although, in fact, the parties were not obliged to assign any particular cause for the act of expulsion. It appears that there had been trouble between a Mr. Vaughan, one of the partners, and the one sought to be expelled, and that Mr. Vaughan had obtained the assent of the remaining partners to Mr. Blisset’s expulsion. Upon the ground that the power was not really used for the benefit of all the two-thirds, but only for that of the one with whom the quarrel was had, he decides that in that respect the power was not exercised in good faith. He holds that the notice of dissolution is void, upon the ground that it was clandestinely obtained by one partner, and at his instance alone (without notice to Blisset), and that it, the power, was not bona -fide exercised on the judgment of all the partners. “I am obliged,” he says (p. 535), “to hold it to fee so, and that in this court, whatever notions may be entertained elsewhere, is held to be, as regards that partner, a fraud upon him, and on that account to be void.” He then adds (p. 536) in words that I wish might be, — as to the standard of morals there laid down — burned into the memory of all solicitors of this court, the following: “As has been well observed during the course of the argument, the view taken by this court with regard to morality of conduct amongst all parties — most especially amongst those who are bound by the ties of partnership —is one of the highest degree. The standard by which parties are tried here, either as trustees or as copartners, or in various other relations which may be suggested, is a standard, I am thankful to say so, far higher than the standard of the world; and, tried by that standard, I hold it to be impossible to sanction the removal of this gentleman under these circumstances. ’ ’ Tried, then, by this statement, which is far higher than the standard of the world, was this power exercised in good faith? In the first place, the primary object of this power being reserved to the railroad company, was for its own protection. It was not to enable the railroad company to obtain any unfair advantage over the telegraph company and obtain its property at an undervalue, or to enable it to wantonly or oppressively injure or destroy the telegraph company; nor to enable the railroad company to speculate upon the property it might acquire by terminating the agreement, but it was solely to be used for its, the railroad company’s, own protection and benefit. No cause of complaint appears to exist against the telegraph company; it does not appear that it has not carried out its contract in good faith, nor does it appear that it was necessary for the protection of the railroad company that the agreement should be terminated. The same day it was terminated, an arrangement was made by the Baltimore & Ohio Company with a rival telegraph company. Was it good faith to terminate the agreement to benefit a rival in business of the telegraph company’s? Was it bona ■fide exercise of this power to terminate this agreement for the joint benefit of the railroad company and the American Union Telegraph Company ? Tried by the standard of morality that prevails in this court, both these questions must be answered in the negative. Would the exercise of this right in order that the railroad company might have an advantage in the settlement of accounts, be an exercise of the power in good faith? Most clearly not. The defendant railroad company does not by its answer state that it offered to pay for the property, or that it is now willing to pay for the same. The only offer it made on taking possession, or now makes, is to adjust accounts. Does good faith resort to deceit and fraud to enable it to exercise a clear, legal right, as by giving notice, on the 28th of February, .that possession would be taken on March the 1st, and then taking. possession clandestinely within five hours after the notice is given? This may be justifiable by a standard of good faith that exists elsewhere, but cannot be justified by the standard that exists in a court of conscience. I do not overlook the fact that the railroad company claims to have given notice in September, and on the 14th of February last, of its intention to terminate this agreement, but the fact of such notice being given is disputed. It was a verbal notice, — the railroad company appears to dislike written communications — and was of such character that the parties to whom it was claimed to have been given deny that the verbal communications were notices as alleged. In conclusion, I find this power to terminate the agreement at any time the railroad company desired, did exist, but that the power has not been exercised, the attempted exercise of it being in bad faith was a nullity, and the parties stand as to their rights under the agreement, just where they stood before that attempt was made. As to the point made, that the recent' act of congress permitting railroads to do a telegraph business, is void, and therefore that the railroad company had no power to carry on a commercial telegraph system, it is sufficient to say, that if the railroad company is exercising franchises that it has no right to exercise, the representatives of the people must inquire into that by the proper proceedings. As to the argument that it is against public policy to sustain the telegraph monopoly, counsel could scarcely have expected me to be influenced by it. This is a court of rights, not of public policy. I try to bear in mind the remark made by Mr, Justice Burrough,' — “Public policy is an unruly horse, which, if a judge unwarily mounts, ten to one, he is run away with.” But, it may be asked, if the railroad company can terminate the agreement at its pleasure cui bono; what end will be accomplished by an injunction which will permit the old relations or connections to be restored? In Blisset v. Daniel, supra, I have no. doubt the same argument was made, yet the vice-chancellor did not decline to take jurisdiction, but, having obtained jurisdiction, he proceeded to take an account and to dissolve the copartnership, not according to the articles, but in accordance with the practice of the court of chancery and principles of equity. This court having obtained jurisdiction to afford the complainant relief by injunction, will control the further proceedings of the parties, not in opposition to their agreement, but having ascertained by the light which a cross-examination of the witness and a final hearing will let in upon the facts, all the information necessary to determine the rights of the parties, it will proceed to settle them according to the practice of a court of chancery and the principles of equity that prevail in that court. The complainant is, therefore, entitled to an injunction restraining the defendant from further interfering with the complainant in the use and control of the poles, wires and property (described in the bill), in the same manner and to the same extent as it, the complainant, had, and was exercising the use and control thereof on and prior to the 28th of February last. The complainant may make amendments, if the solicitors deem it necessary to make any amendments, and prepare an order for an injunction. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"atlantic-pacific-telegraph-co-v-baltimore-ohio-railroad","summary":"Motion, for injunction. Heard before Judge Murray P. Tuley."} {"case_name":"Vorhauer v. Nix","case_name_full":"Vorhauer v. Nix","case_name_short":"Vorhauer","citation_count":0,"citations":["503 U.S. 910"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1992-03-02","date_filed_is_approximate":false,"id":9118595,"opinions":[{"ocr":true,"opinion_id":9113128,"opinion_text":"\nC. A. 3d Cir. Cer-tiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"vorhauer-v-nix"} {"case_name":"Martinez v. Giurbino","case_name_full":"Martinez v. Giurbino, Warden","case_name_short":"Martinez","citation_count":0,"citations":["546 U.S. 850"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2005-10-03","date_filed_is_approximate":false,"id":9253355,"opinions":[{"ocr":true,"opinion_id":9248171,"opinion_text":"\nC. A. 9th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"martinez-v-giurbino"} {"attorneys":"Samuel Teeter, for Commonwealth., Walton V. Davis, for defendant.","case_name":"Commonwealth v. Welsh","case_name_full":"Commonwealth v. Welsh","case_name_short":"Commonwealth","citation_count":0,"citations":["15 Pa. D. & C.3d 471"],"court_full_name":"Pennsylvania Court of Common Pleas, Adams County","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Adams County Court of Common Pleas","court_type":"ST","date_filed":"1980-09-02","date_filed_is_approximate":false,"id":9321324,"judges":"Spicer","opinions":[{"author_str":"Spicer","ocr":true,"opinion_id":9316631,"opinion_text":"\nSPICER, P.J.,\n— Defendant, while driving an automobile west of Abbottstown was clocked by Chief Powers of Oxford Township, directed to stop, and refused to do so. Thereafter a high speed chase occurred. The chase continued through Abbottstown and toward East Berlin. Chief Powers by radio ascertained the identity of defendant from Chief Williams, requested assis-, tance and thereafter broke off pursuit. He said he did this to minimize danger and because he was leaving further action in the hands of the East Berlin police.\nChief Williams stationed himself outside his police cruiser a short distance to the South of East Berlin borough line. When defendant approached, *472Chief Powers directed him to stop and defendant failed to do so.\nDefendant was charged with various offenses including violation of section 3733 of the Vehicle Code, 75 Pa.C.S.A. §3733, for fading to stop for Chief Powers early in the pursuit and for thereafter failing to stop for Chief Williams.\nFollowing a hearing, defendant was found guilty of violating section 3733 with respect to the signals of Chief Powers but at the request of defendant the matter relating to Chief Williams was taken under advisement and briefs were submitted.\nIt was undisputed that Chief Williams was outside the borough line when he signalled defendant and was in a township with which East Berlin had no mutual aid agreement.\nIssues, as the court sees them, are (1) Was Chief Williams authorized to act a short distance outside the borough line for this type offense? (2) Does the section apply only when there is a police vehicle in pursuit? (3) Can Chief Williams’ actions be authorized under a theory of deputization or agency?\nIn a case repealed by provisions of 42 Pa.C.S.A. §8901, the Superior Court invalidated an arrest effectuated after fresh pursuit into a township where the officer had no authority: Com. v. Troutman, 223 Pa. Superior Ct. 509, 302 A. 2d 430 (1973). Section 8901 now authorizes fresh pursuit.\nThe Troutman case is still authority that a municipal police officer has no authority to arrest outside the confines of that municipality without express statutory authority.\nHowever, the court does not interpret Troutman as invalidating every act by a police officer conducted outside his municipal limits. We think such *473actions are proper when the results of those actions can reasonably be expected to. cause a stop within the proper municipality. In this case, if the stop would have occurred within the borough, the action by Chief Williams would have been official.\nHowever, the Commonwealth concedes in its brief that Chief Williams was attempting to stop defendant before he entered, the borough. Therefore, we hold that the Troutman case does apply and that the chief’s actions were not authorized by fact of his being an East Berlin policeman.\nThe question then becomes whether Chief Williams was authorized by any other theory.\nChief Powers certainly had the right to pursue and stop defendant. This being so, defendant violated section 3733 when he failed to stop for Chief Powers.\nIt is clear that Chief Powers could have continued the pursuit. He chose not to dq so because of safety considerations and instead relied upon the aid of Chief Williams. The court is of the opinion it would be very bad policy to render a decision in this case which would require such continued pursuit. We think that police officers should be able to request assistance and to rely upon that assistance in such a way as to minimize hazards.\nThe speed at which defendant operated his vehicle was very excessive. Roads were narrow and anything but smooth and straight in places. The pursuit constituted great danger to the officer and to others.\nChief Powers had three alternatives in this case: (1) to continue the pursuit, (2) to break it off and allow defendant to escape, or (3) to request assistance.'If we hold that the third alternative is not authorized, we are telling the police they must *474either continue a chase or allow the violator to escape.\nThe court cannot accept this position.\nTherefore, we hold that Chief Williams was authorized to act as agent for Chief Powers.\nWe then arrive at the third consideration of this case and that is whether the signal must have been given by a pursuing police vehicle.\nThe Vehicle Code contains two provisions relating to signals of police. Section 3102 requires all persons, drivers and pedestrians, to obey signals of uniformed officers authorized to direct traffic. Section 3733 applies only to drivers and carries more substantial penalties. It would also seem to apply only to situations in which the driver is being pursued by a police officer. It does not require, however, that the signal be given by an occupant'of that vehicle.\nFor reasons expressed in this opinion the court finds defendant guilty. The sentence of the court is that defendant pay a fine in the sum of $200 and the costs of this prosecution.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"commonwealth-v-welsh"} {"case_name":"Mullins v. Astrue","case_name_full":"Ralph MULLINS, Jr. v. Michael J. ASTRUE, Commissioner of Social Security.","case_name_short":"Mullins","citation_count":0,"citations":["569 U.S. 931","185 L. Ed. 2d 836","133 S. Ct. 1824"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2013-04-15","date_filed_is_approximate":false,"id":9348034,"opinions":[{"ocr":true,"opinion_id":9343490,"opinion_text":"Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit denied.","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mullins-v-astrue"} {"case_name":"People of Michigan v. Rayshawn Wilcox","citation_count":0,"court_full_name":"Michigan Supreme Court","court_jurisdiction":"Michigan, MI","court_short_name":"Michigan Supreme Court","court_type":"S","date_filed":"2014-07-29","date_filed_is_approximate":false,"id":2709978,"opinions":[{"download_url":"http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20140729_S149010_43_01_149010_2014-07-29_or.pdf","ocr":false,"opinion_id":2709978,"opinion_text":"Order Michigan Supreme Court\n Lansing, Michigan\n\n July 29, 2014 Robert P. Young, Jr.,\n Chief Justice\n\n 149010 Michael F. Cavanagh\n Stephen J. Markman\n Mary Beth Kelly\n Brian K. Zahra\n Bridget M. McCormack\n PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,\n Plaintiff-Appellee, Justices\n\n v SC: 149010\n COA: 313547\n Wayne CC: 12-006125-FH\n RAYSHAWN WILCOX,\n Defendant-Appellant.\n\n _____________________________________/\n\n On order of the Court, the application for leave to appeal the March 13, 2014\n judgment of the Court of Appeals is considered, and it is DENIED, because we are not\n persuaded that the questions presented should be reviewed by this Court.\n\n\n\n\n I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the\n foregoing is a true and complete copy of the order entered at the direction of the Court.\n July 29, 2014\n h0721\n Clerk\n\f","page_count":1,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"people-of-michigan-v-rayshawn-wilcox"} {"case_name":"Thum v. MRO Services Co., Inc.","case_name_short":"Thum","citation_count":3,"citations":["430 So. 2d 1298"],"court_full_name":"Louisiana Court of Appeal","court_jurisdiction":"Louisiana, LA","court_short_name":"Louisiana Court of Appeal","court_type":"SA","date_filed":"1983-04-05","date_filed_is_approximate":false,"id":1089600,"judges":"Edwards, Watkins and Shortess","opinions":[{"ocr":false,"opinion_id":1089600,"opinion_text":"\n430 So.2d 1298 (1983)\nMichael C. THUM\nv.\nMRO SERVICES COMPANY, INC., et al.\nNo. 82 CA 0875.\nCourt of Appeal of Louisiana, First Circuit.\nApril 5, 1983.\nWrit Denied June 17, 1983.\n*1299 Keith Jones, Baton Rouge, for plaintiff.\nR. Michael Caldwell, Baton Rouge, for defendants.\nBefore EDWARDS, WATKINS and SHORTESS, JJ.\nSHORTESS, Judge.\nPlaintiff, Michael C. Thum, filed suit against defendant, MRO Services Company, Inc.[1], seeking workmen's compensation benefits for total and permanent disability resulting from exposure to phosgene gas. The trial court found that plaintiff was totally and permanently disabled as a consequence of his exposure to phosgene gas while in the course and scope of his employment.\nIn October of 1980, plaintiff and a coworker, Foster Qualls, were installing a phosgene alarm system at the BASF Wyandotte plant in Geismar, Louisiana, when a phosgene leak occurred. The men became aware of the leak when Earl Laird, the foreman, and Bob McDonald began to honk the horn and signal to them from a truck. They were unable to breathe properly for some period of time and remember coughing while they were staggering to the truck. Immediately, Earl Laird took the men to the first aid station where they *1300 removed the docimeters from their hard hats. The docimeters were worn for the purpose of detecting phosgene gas exposure and had significantly changed color from white to bright orange. The nurse noted that they had been exposed to phosgene gas but stated that their exposure had not been enough to worry about and released them.\nBarbara Ann Thum, plaintiff's wife, testified that plaintiff came home from work on the date of the phosgene incident coughing, nervous and experiencing pains in his chest. Although these symptoms continued, plaintiff did not immediately see a doctor because neither he nor his wife knew the effects of phosgene gas or whether or not they should be concerned. They finally consulted a doctor in January of 1981.[2] Mrs. Thum testified that since the phosgene incident, she had noticed an almost total change in plaintiff. Prior to the incident, he was a very hard worker, conscientious, and a \"go-getter.\" Since the incident, he found it difficult to get through one day at a time.\nPlaintiff testified that immediately after the accident, he began coughing up a black substance. Although plaintiff had a physical three months prior to the accident which indicated that he was in good health, he stated that since the phosgene exposure he had experienced a number of physical and psychological problems. In addition to coughing up black phlegm, plaintiff has had fever, skin rashes, insomnia, prostate and kidney problems, lost forty pounds, and has had \"anxiety attacks\" characterized by total unreality, sweaty palms, heart palpitations, sharp pains in the lower back, and the feeling that death was imminent. Despite these problems, plaintiff continued to work until May of 1981, when he had a total collapse at work and was taken to the emergency room in Donaldsonville. Plaintiff stated that he has seen a number of doctors for the various problems that he has experienced but that none of them wanted to discuss the phosgene exposure. Plaintiff had not had an accident prior to the phosgene exposure nor has he had one since. Yet, he continues to experience these problems.\nDr. Henry Ehrlich, plaintiff's psychiatrist, diagnosed plaintiff as experiencing a stress disorder secondary to organic factors and a traumatic incident. He testified that the main stress was the physical injury, i.e., the coughing, the insomnia, the lower back problems, and the weight loss, which were directly related to the phosgene exposure. In Dr. Ehrlich's opinion, plaintiff is presently disabled and unable to work due to lack of concentration, nervousness, irritability, and inability to think. He expects the disability to continue for a period of time but is not sure how long said disability will last. Dr. Ehrlich thinks that plaintiff's symptoms are real, not feigned. He stated:\n\"I feel that the present symptoms are definitely associated to the accident.\"\nBoth Foster Qualls and Earl Laird testified that prior to the phosgene incident, plaintiff was a good employee and had a good attendance record; but after the accident, he became nervous, lost weight, and progressively became sick. Foster Qualls additionally testified that as a result of his own phosgene exposure, he had experienced back trouble and insomnia, which he and the others thought was related to the phosgene.\nThe deposition of Dr. Thomas M. DeBlanc, a urologist, was entered into the record. Dr. DeBlanc first saw plaintiff in June of 1981 and conducted a battery of tests. Basically, all of the test results were normal except for one liver function test which was slightly elevated. Plaintiff's prostrate was enlarged and inflamed. Dr. DeBlanc stated that he did not know anything about phosgene.\nDr. James Robertson, a neurologist, saw plaintiff in November of 1981. He did a *1301 complete neurological examination, and his findings were that plaintiff was essentially normal except for the fact that he had extremely active reflexes and a great deal of anxiety. In his deposition, Dr. Robertson referred to the phosgene exposure and stated:\n\"But this is something that I have really never run into before. I am not sure if Dr. Epstein had ever run into it before. I think it's something that's not even covered in our textbooks. I have every major textbook of neurology, and phosgene isn't even listed in the index. And a review of some of the most current literature isvery little is known about it. As you know, it wasI guess for many yearsusedthought to be a part of chemical warfare, my understanding was; but my experience, and as far as I know, most neurologists would have a limited expertise in this specific area of phosgene poisoning.\"\nDefendant's sole specification of error is that the trial court erred in finding that plaintiff proved that his alleged disability was causally related to his exposure to phosgene gas.\nIt is well established in the jurisprudence of this State that a plaintiff in a workmen's compensation case may recover for disability resulting from a mental condition. Gibson v. New Orleans Public Sch. Bd., 352 So.2d 732 (La.App. 4th Cir.1977); Victoriana v. Orleans Parish Sch. Bd., 346 So.2d 271 (La.App. 4th Cir.1977).\nAs in any other civil suit, the plaintiff in a workmen's compensation action has the burden of establishing his disability and the causal connection between said disability and the accident by a preponderance of the evidence. Lindsey v. H.A. Lott, Inc., 387 So.2d 1091 (La.1980). However, plaintiff need not establish with expert testimony the exact cause of his disability in order for him to recover. Hammond v. Fidelity & Cas. Co. of New York, 419 So.2d 829 (La.1982). Medical testimony \"must be weighed in the light of other credible evidence of a nonmedical character, such as a sequence of symptoms or events in order to judicially determine probability.\" Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982).\nA plaintiff's disability will be presumed to have resulted from an employment accident, if the plaintiff was in good health before the accident, but commencing with the accident the symptoms of the disabling condition appear and manifest themselves continuously afterwards, providing that a reasonable possibility of a causal connection between the accident and the disabling condition exists. Lindsey v. H.A. Lott, Inc., 387 So.2d 1091 (La.1980). In the instant case, plaintiff was in good health prior to his phosgene exposure, as evidenced by the fact that he had a physical examination three months prior to the accident which indicated he was in good health. In addition, the lay testimony from plaintiff's wife, Earl Laird, and Foster Qualls reveals that plaintiff was a healthy, prompt and conscientious employee prior to the accident, but that after the phosgene exposure, his health progressively deteriorated. Plaintiff's symptoms, i.e., his coughing and chest pains, etc., commenced with the accident and continued thereafter.\nIn order to recover workmen's compensation benefits, \"(t)he mental disease or derangement must naturally result from and be causally related to injury by violence to the physical structure of the body, and not from other causes.\" Franklin v. Complete Auto Transit Co., 397 So.2d 60 (La.App. 2nd Cir.1981) at 62. Plaintiff suffered injury by violence to the physical structure of his body as a result of his exposure to phosgene gas.[3]\nIn order to recover, plaintiff must establish a causal connection between his *1302 disability and the accident. However, \"(c)ausation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.\" Haughton v. Fireman's Fund Am. Ins. Companies, 355 So.2d 927 (La.1978) at 928. As in Haughton, the instant record reveals no separate or intervening cause of plaintiff's disability, as no prior or subsequent accident is apparent. When an accident and resulting disability occur without any intervening cause, the accident is presumed to have caused the disability. Said presumption can be rebutted, but its effect is to shift the burden of proof to the defendant. Haughton v. Fireman's Fund Am. Ins. Companies, supra. Defendant offered no expert testimony to negate the possibility of a causal relationship between the accident and the disability. Dr. Ehrlich stated that he felt that plaintiff's symptoms were definitely associated to the accident.[4] In addition, Dr. Robertson's testimony reveals that very little is known about the effects of phosgene gas.\nThe trial judge noted Dr. Robertson's testimony and stated:\n\"between the time of the exposure to the phosgene and March of 1981 his psychological condition deteriorated to such an extent that he was unable to be the same prompt, conscientious, sturdy, steady employee as he was prior to the event in 1980.\"\nThe trial judge found that plaintiff had proven that he was totally and permanently disabled as a result of his exposure to phosgene gas. As stated in Haughton v. Fireman's Fund Am. Ins. Companies, supra, causation is a question of ultimate fact. Although compensation claims predicated upon mental disorders must be carefully scrutinized in order to protect the employer against unwarranted claims, the danger of denying recovery to a deserving claimant must be guarded against with equal enthusiasm. Royer v. Cantrelle, 267 So.2d 601 (La.App. 3rd Cir.1972), writ denied, 268 So.2d 680 (La.1972). We cannot say that the trial judge was manifestly erroneous in his determination. Canter v. Koehring Company, 283 So.2d 716 (La.1973).\nWe affirm the decision of the trial court. All costs are taxed to defendant, MRO Services Company, Inc.\nAFFIRMED.\nNOTES\n[1] Plaintiff also filed suit against BASF Wyandotte Corporation; however, said corporation was dismissed from the suit on plaintiff's own motion.\n[2] While Mrs. Thum also consulted a doctor in January for flu-type symptoms, plaintiff's symptoms were different and consisted of lower back and chest pains.\n[3] Although the depositions of Drs. DeBlanc and Robertson reveal that plaintiff is no longer experiencing any significant physical problems, this alone does not defeat plaintiff's claim. The critical fact is that plaintiff at one time experienced compensable physical injuries. A physical disability need not exist for a plaintiff to recover compensation benefits for a mental disability caused by an employment injury. Muse v. Sentry Insurance Company, 269 So.2d 609 (La.App. 3rd Cir.1972), writ denied, 270 So.2d 120 (La.1972).\n[4] Defendant contends that the testimony of Dr. Ehrlich was insufficient to carry plaintiff's burden of proving a causal relationship between the accident and his disability, because said testimony was based on an inaccurate or incomplete history given by plaintiff to Dr. Ehrlich. Defendant cites Davenport v. McCullough Services Baroid Div., 388 So.2d 453 (La. App. 2nd Cir.1980), writ denied, 394 So.2d 616 (La.1980); Gibson v. New Orleans Public Sch. Bd., 352 So.2d 732 (La.App. 4th Cir.1977); and Jennings v. Halliburton Co., 346 So.2d 268 (La. App. 4th Cir.1977), writ denied, 349 So.2d 884 (La.1977), as support for this proposition. We find that the facts in the instant case distinguish it from the above cited cases and that the Delahoussaye v. Allen Action Agency, Inc., 300 So.2d 575 (La.App. 3rd Cir.1974), case is applicable. In Delahoussaye, the appellate court upheld the trial court's award of compensation benefits although the plaintiff had given some false statements to the doctors that testified at trial. The court stated that the plaintiff was confused but not untruthful. We find that the plaintiff in the instant case was similarly confused. Although plaintiff confused the chronology of events and got certain dates mixed up, said confusion only supports his claim for mental disorder and does not negate Dr. Ehrlich's testimony. Dr. Ehrlich stated at trial that his diagnosis of stress disorder and depression would remain the same even if certain dates were different. In addition, plaintiff is aided in his burden of proof by the presumption of a causal relationship.\n\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"thum-v-mro-services-co-inc"} {"attorneys":"Bruce H. Greene, Sandpoint, argued for appellant., Larry EchoHawk, Atty. Gen. and Michael A. Henderson, Deputy Atty. Gen., Boise, argued for respondent.","case_name":"State v. Lindsay","case_name_full":"STATE of Idaho, Plaintiff-Respondent, v. Walter John LINDSAY, Defendant-Appellant","case_name_short":"Lindsay","citation_count":5,"citations":["864 P.2d 663","124 Idaho 825"],"court_full_name":"Idaho Court of Appeals","court_jurisdiction":"Idaho, ID","court_short_name":"Idaho Court of Appeals","court_type":"SA","date_filed":"1993-11-26","date_filed_is_approximate":false,"headmatter":"\n The Honorable Robert J. Timlin, United States District Judge for the Central District of Cali\n \n *1193\n \n fornia, sitting by designation.\n
\nCarriers (122, 123) — Passengers—Loss ok Baggage — Liability. An auto stage, receiving baggage of a passenger, is liable for its loss, notwithstanding no check was issued for it and no extra compensation paid for its carriage.
"} {"case_name":"State ex rel. Lay v. State","case_name_full":"STATE ex rel. Richard LAY v. STATE of Louisiana","citation_count":0,"citations":["10 So. 3d 734"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"2009-06-19","date_filed_is_approximate":true,"id":4986071,"judges":"Weimer","opinions":[{"ocr":true,"opinion_id":4795845,"opinion_text":"\nIn re Lay, Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 383759; to the Court of Appeal, First Circuit, No. 2008 KW1704.\nDenied.\nWEIMER, J., recused.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-ex-rel-lay-v-state"} {"attorneys":"Scott A. Trimble, appellant, pro se., Cory J. Snook, District Attorney, Miff-lintown, for Commonwealth, appellee.","case_name":"Commonwealth v. Trimble","case_name_full":"COMMONWEALTH of Pennsylvania v. Scott Allen TRIMBLE","case_name_short":"Commonwealth","citation_count":1,"citations":["75 A.3d 518"],"court_full_name":"Superior Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Superior Court of Pennsylvania","court_type":"SA","date_filed":"2013-09-03","date_filed_is_approximate":true,"id":5147090,"judges":"Colville, Donohue, Wecht","opinions":[{"author_str":"Colville","ocr":true,"opinion_id":4967839,"opinion_text":"\nOPINION BY\nCOLVILLE, J.:\nThis is a pro se appeal from the order which denied Appellant’s Motion to Expunge Criminal Record. Appellant seeks reversal of the order, arguing, inter alia, that the Commonwealth failed to carry its burden in the proceedings. We agree.\nAppellant sought expunction of his criminal arrest records for charges of rape, simple assault and terroristic threats, all of which had been dismissed by a magisterial district judge in a criminal proceeding which ultimately resulted in Appellant’s guilty plea to one count of kidnapping. The Commonwealth notified the court that it was not filing a response to Appellant’s motion. The trial court denied the motion. This appeal followed.\nOur Supreme Court has explained the relevant law in this area as follows:\nThere is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is an adjunct of due process. Carlacci v. Mazaleski, 568 Pa. 471, 798 A.2d 186, 188 (Pa.2002). The decision to grant or deny a petition to expunge rests with the sound discretion of the trial court, and we review that court’s decision for abuse of discretion. Commonwealth v. Waughtel, 2010 PA Super 125, 999 A.2d 623, 624-25 (Pa.Super.2010); Commonwealth v. A.M.R., 2005 PA Super 398, 887 A.2d 1266, 1268 (Pa.Super.2005).\nJudicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner. When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 603 Pa. 156, 983 A.2d 627, 633 (Pa.2009). When a petitioner has been tried and acquitted of the offenses charged, we have held that the petitioner is “automatically entitled to the expungement of his arrest record.” Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770, 772-73 (Pa.1997). When a prosecution has been terminated without conviction or acquittal, for reasons such as nolle prosse of the charges or the defendant’s successful completion of an accelerated rehabilitative disposition program (“ARD”), then this Court has required the trial court to “balance *520the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877, 879 (Pa.1981); D.M., supra at 772 (“We reiterate the authority of Wexler and the balancing test approved therein as the means of deciding petitions to expunge the records of all arrests which are terminated without convictions except in cases of acquittals.”).\nTo aid courts in applying the balancing test for expungement, we also adopted in Wexler the following non-exhaustive list of factors that the court should consider:\nThese factors include [1] the strength of the Commonwealth’s case against the petitioner, [2] the reasons the Commonwealth gives for wishing to retain the records, [3] the petitioner’s age, criminal record, and employment history, [4] the length of time that has elapsed between the arrest and the petition to expunge, and [5] the specific adverse consequences the petitioner may endure should expunction be denied.\nWexler, supra at 879 (citation omitted). We have emphasized that in applying the balancing test and considering the above factors, the court must analyze the particular, specific facts of the case before it. Id. at 880-81. The mere assertion by the Commonwealth of a general interest in maintaining accurate records of those accused of a crime does not outweigh an individual’s specific, substantial interest in clearing his or her record. Id. at 881-82.\nIn addition, Wexler explicitly placed the burden of proof on the Commonwealth. The case against the Wexler appellants had been nolle prossed after the Commonwealth had admitted that it would be unable to sustain its burden of proof at trial. Wexler, supra at 880. Nonetheless, the trial court denied the appellants’ petition to expunge their arrest records, and the Superior Court affirmed. This Court reversed and ordered expungement, concluding that the Commonwealth had not proffered “compelling evidence” to justify the retention of the appellants’ arrest records. Id. at 881. Importantly, in general terms, we held that when the Commonwealth admits that it is unable to bear its burden of proof beyond a reasonable doubt at trial, then “the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” Id. at 880.\nCommonwealth v. Moto, 611 Pa. 95, 23 A.3d 989, 993-94 (2011) (emphasis added).\nIn this case, the Commonwealth undeniably failed to meet its burden where it elected not to oppose, in any way, Appellant’s petition. Thus, the trial court abused its discretion in finding that, “when balancing [Appellant’s] right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records, in this particular case, greater weight must be afforded to the Commonwealth’s interest in preserving such records,” Trial Court Opinion, 11/28/12, where the Commonwealth simply did not advance an interest in preserving Appellant’s records.\nAccordingly, we reverse the order denying Appellant’s petition. Appellant’s criminal arrest records for the relevant charges of rape, simple assault and terroristic threats shall be expunged.\nOrder reversed. Jurisdiction relinquished.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted June 24, 2013.","precedential_status":"Published","slug":"commonwealth-v-trimble"} {"attorneys":"Bruce Simon, Kansas City, for appellant., Jeremiah W. (Jay) Nixon, Atty. Gen., Breek K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.","case_name":"State v. Walton","case_name_full":"STATE of Missouri v. Robert WALTON","case_name_short":"Walton","citation_count":0,"citations":["920 S.W.2d 585"],"court_full_name":"Missouri Court of Appeals","court_jurisdiction":"Missouri, MO","court_short_name":"Missouri Court of Appeals","court_type":"SA","date_filed":"1996-03-12","date_filed_is_approximate":true,"id":5263122,"judges":"Berrey, Spinden, Stith","opinions":[{"author_str":"Spinden","ocr":true,"opinion_id":5090260,"opinion_text":"\nSPINDEN, Presiding Judge.\nRobert Walton appeals the circuit court’s judgment convicting him of stealing more than $150 by deceit. He complains that the state did not establish that Clay County was the proper venue or present sufficient evidence to convict him. He also complains that the state was permitted to present irrelevant evidence tending to show that he committed other crimes with which he was not charged, and he asserts that the prosecutor’s closing argument was improper. We have reviewed these matters and find no merit in the claims. We, therefore, affirm.\nA jury convicted Walton of stealing more than $150 by deceit by making false reports of robberies to two different insurers. He reported to Metropolitan Insurance Company that two men armed with a revolver took his billfold, watch and two diamond rings while he was near Chicago on October 7, 1988. He later reported to Government Employees Insurance Company (GEICO) that on June 21, 1989, while he was in Omaha, someone pried open his car trunk and stole a watch, two rings, a golden chain, his suitcase full of clothing, and a camcorder.\nMetropolitan gave Walton a cheek for $17,-225 payable to Whitten’s Jewelry as reimbursement for his loss. Walton convinced John Whitten, owner of Whitten’s Jewelry, to accept $3000 from Walton for endorsing the check and returning it to Walton. GEICO paid Walton $22,900 for the jewelry he reported stolen and $2565.28 for the other items.\nIn the first of the three points Walton raises in appealing his conviction, he asserts that the circuit court erroneously overruled his motions for a judgment of acquittal. He argues that the state did not establish Clay County as the proper venue, so the circuit court did not have jurisdiction. He also argues that the state did not prove that Walton made a false claim to Metropolitan. We disagree.\nAs to venue, the circuit court correctly ruled that the Missouri courts had jurisdiction to convict Walton. Section 541.191.1, RSMo 1994, says:\nThis state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which such person is legally accountable if:\n(1) Conduct constituting any element of the offense or a result of such conduct occurs within this state; or\n(2) The conduct outside this state constitutes an attempt or conspiracy to commit an offense within this state and an act in furtherance of the attempt or conspiracy occurs within this state; or\n(3) The conduct within this state constitutes an attempt, solicitation, conspiracy or facilitation to commit or establishes criminal accountability for the commission of an offense in another jurisdiction that is also an offense under the law of this state[.]\nSection 570.030.1, RSMo 1994, sets out the elements for stealing: “A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion.”\nBecause venue is not an essential element, the state is not obligated to prove it beyond a reasonable doubt. It may be inferred from all of the evidence. State v. Harper, 855 S.W.2d 474, 480 (Mo.App.1993). “The standard by which venue must be' established is whether it could be reasonably inferred by the facts and circumstances that the charged crime occurred within the trial court’s jurisdiction.” Id.\nWalton lived in Liberty when he made his claims to Metropolitan and GEICO. He called Metropolitan to report his loss. He sent Metropolitan materials outlining his loss in an envelope with his Liberty home address listed as the return address. He notarized a claim of loss statement in Clay County and submitted it to GEICO. The jury could have reasonably inferred that Walton prepared documents deceitfully in Clay County. We affirm the circuit court’s conclusion that it had jurisdiction of Walton’s case.\nAs to the sufficiency of the evidence of stealing from Metropolitan, Walton asserts *587that the state did not prove that he submitted a fraudulent proof of claim to Metropolitan. Walton contends that the company paid without a proof of loss. The state established a submissible case.\nThe state presented evidence that Walton made telephone calls to Metropolitan in which he reported that he had lost insured property in a robbery. He submitted materials detailing his loss, 'accepted reimbursement for the loss and never offered to return any of the money. His details of the robbery were vague and contradictory. The jury had a sufficient basis for concluding that the robbery never occurred.\nIn his second point, Walton asserts that the circuit court erroneously overruled his objection to the prosecutor’s closing argument. Walton complains of the prosecutor’s argument: “... I’m not really too hurt that insurance company is losing .money. But I am hurt about the fact that when my homeowner’s insurance gets that, my insurance goes up to cover that.” Walton contends that the circuit court should have sustained his objection because the prosecutor intended for the argument to excite or inflame the jury against him by causing them to believe that their insurance rates would increase because of Walton’s conduct. He also complains that the argument was outside the scope of the evidence and pleadings.\nThe circuit court has much discretion in deciding what arguments to allow during summations. State v. Hampton, 653 S.W.2d 191, 195 (Mo. banc 1983). “This court will not reverse the trial court’s ruling on the propriety of counsel’s argument unless there has been a clear abuse of discretion” and “only if the complained of comments decisively affected the jury’s determination or where the argument was plainly unwarranted.” State v. Benton, 812 S.W.2d 736, 741 (Mo.App,1991)(emphasis added). Even assuming the argument to be improper, we find no indication that it decisively affected the jury’s determination. We do not discern an abuse of discretion in this case.\nIn his third point, Walton complains that the circuit court permitted an investigator, Clyde Pace, to testify that, during his investigation, he talked to individuals at insurance companies other than Metropolitan and GEI-CO. During his second redirect examination of Pace, the prosecutor asked:\nQ. Counsel [for Walton] asked you who you did — who you didn’t talk to. I want to know who you did talk to in this investigation.\nA. I’ll need to refer to my notes, sir.\nA. Okay, do that. Well, let me just ask you this way. He asked you who you didn’t talk to. How many insurance companies did you talk to?\n[WALTON’S ATTORNEY]: Your Hon- or, may we approach?\n[PROSECUTOR]: He opened it.\nTHE COURT: Is that what your objection is on?\n[WALTON’S ATTORNEY]: Yes, Your Honor.\nTHE COURT: His question? It’s overruled.\n[WALTON’S ATTORNEY]: Very well.\nQ. What insurance companies did you talk to about Mr. Walton?\nA. Do you need the—\nQ. I want to know what people and what insurance companies did you talk to about him.\nA. What people and what insurance companies?\nQ. Yes, if — give me the names of some people in these insurance companies that you talked to.\nA. You want just insurance companies, sir?\nQ. Yeah. How about Hartford? Who did you talk to over at Hartford Insurance about Mr. Walton?\n[WALTON’S ATTORNEY]: Your Hon- or, may we approach again?\nTHE COURT: Yes.\n(Counsel approached the bench:)\n[WALTON’S ATTORNEY]: I’m going to renew my objection as to materiality. I simply asked him who he talked to, what insurance companies issued these particular policies. That’s the Metropolitan policy and the G[EICO] policy. Counsel has sug*588gested that somehow the door was opened up for a broader cross examination— broader redirect examination. I’m sorry, I don’t see that. And the implication is that the — the implication counsel is trying to make is that there were other claims of like nature, which are not the subject matter of this indictment, and therefore are immaterial.\nTHE COURT: You asked who he didn’t talk to—\n[WALTON’S ATTORNEY]: Yes.\nTHE COURT: But you didn’t specify as to a certain area. I will allow him to ask who he did talk to.... But I will not allow him to get into what he talked to them about.\nWalton argues on appeal that the prosecutor’s question asked for information which was immaterial and irrelevant. He contends that he was prejudiced by Pace’s answers because they suggested that he had made false claims to other insurance companies.\nEvidence is relevant if it tends to prove a fact in issue or to corroborate relevant evidence which bears on a principal issue. Because determining relevancy often is subjective, we extend the circuit court’s determination of relevancy “substantial discretion,” and we will not disturb its determination on appeal unless we discern “an abuse of discretion.” Danneman v. Pickett, 819 S.W.2d 770, 772 (Mo.App.1991).\nWe do not discern an abuse of discretion in this case. Walton made the scope and thoroughness of Pace’s investigation an issue. The circuit court properly concluded that the prosecutor had a right to present evidence bearing on that issue. The prosecutor did not ask what the individuals at the other insurance companies said — only the identity of the persons questioned.\nAll concur.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 1996.","precedential_status":"Published","slug":"state-v-walton"} {"attorneys":"A. Page Smith, for the appellant., Nathaniel Niles, for the respondent.","case_name":"Leonard v. Harris","case_name_full":"Jesse H. Leonard v. Caroline Harris","case_name_short":"Leonard","citation_count":0,"citations":["147 A.D. 458","131 N.Y.S. 909"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1911-11-15","date_filed_is_approximate":false,"headnotes":"Conditional sale —vendor obliged to comply with Lien Law of 1897 to ' protect himself against a pledgee — piano purchased under a conditional .contract left with a boarding-house keeper by the husband of the contract vendee — pledge.
Assuming that a vendor of a piano sold under a contract of conditional sale was not obliged under chapter 315 of the Laws of 1884, as amended, to file a copy of the contract or deliver a duplicate thereof to the purchaser in order to protect his title as against a pledgee of the property, the Lien Law (Laws of 1897, chap. 418) made it necessary for him to do so in order to protect his title to property sold under such a contract prior to its passage as against a pledgee whose pledge was acquired after the passage of the statute of 1897.
Where a person boarding with his wife and children leaves with the boarding-house keeper a piano which, his wife had purchased under a contract of qonditional sale, and in which he had no interest, together with other furniture, telling the hoarding-house keeper that the piano and furniture should remain with her until his debt for board was paid, and the wife never questions the transaction, it is a necessary implication in the absence of evidence to the contrary that the piano is pledged with the consent of the wife, or that the husband had such an interest in the property that he had the right to pledge it. Hence, as. between the boarding-house keeper and the conditional vendor, the former is -a pledgee of the piano within the meaning of the General Lien Law of •1897.',
Smith, P. J,, dissented, with opinion.
","id":5386000,"judges":"Kellogg, Smith","opinions":[{"author_str":"Kellogg","ocr":true,"opinion_id":5222292,"opinion_text":"\nKellogg, J.:\nAt the time the piano was sold the transaction was governed by chapter 315 of the Laws, of 1884, as amended by chapter 488 of the Laws of 1885 and chapter 420 of the Laws of 1894, which substantially provided that a conditional sale of property should be void as against subsequent purchasers and mortgagees in good faith unless the contract or a copy of it was filed in the office of the town or county clerk, but that such requirement should not apply to household goods, pianos and other specified articles, provided the contract was executed in duplicate, and one duplicate was delivered to the purchaser.\nThe contract was not filed, and a duplicate was not delivered to the purchaser, but it is assumed by counsel that a pledgee of the property is not within the protection of the statute accorded to purchasers or mortgagees. The Lien Law *460(Laws of 1897, chap. 418) consolidated the various' statutes relating to conditional sales, mortgages and other liens on chattels, making no change necessary to mention, except pledgees are given the same protection as purchasers and mortgagees..\nIf we assume that a pledgee of the piano was not entitled to the benefit of the former statute, clearly the law of 1897 requiring (§ 112 et seq., as amd.) the vendor to file the contract of conditional sale or to furnish a duplicate to the purchaser applies and the plaintiff was then required to comply with the provisions of- the.statute in order to hold the property against subsequent purchasers, pledgees or mortgagees in good faith.. (Stevenson Brewing Co. v. Eastern Co., 22 App. Div. 523; affd., 165 N. Y. 634; Vincinguerra v. Fagan, 57 Misc. Rep. 224.)\nI think the evidence clearly shows that Mrs. Davis was a pledgee .in good faith of the piano. The fact that it was brought to her place by the husband, ostensibly as his own, that the wife and husband removed from the premises leaving the piano there and that the husband pledged it for the board bill of himself, Wife and child, and that the wife has. never questioned the transaction or claimed the piano, carries with it a necessary Duplication, in the absence of evidence to the contrary, that it was pledged with the consent of the wife or that the husband had such an interest in the property that he had the right to.pledge it. Therefore, as between the plaintiff and Mrs. Davis the condition attached to the sale. reserving title in the plaintiff was void, and if Mrs. Davis could retain the possession of the piano against him, the defendant may avail herself of the same defense.\n• Mrs. Davis, under section 71 of the Lien Law (Laws of 1897, chap. 418), acquired a lien upon the piano for the hoard which she was furnishing from day to day to Mrs. Mann, her husband and son. (Waters & Co. v. Gerard, 189 N. Y. 302.) The alleged pledge was in fact a mere recognition of the hen and perhaps affected somewhat the manner in which it might he enforced. With the piano were many articles of furniture. These articles and the piano were left for many years with Mrs. Davisand many of them were practically used *461up, and the conduct of the parties indicates an abandonment of the property to her for the bill and an apparent understanding that she was the owner; the manner hi which the lien or pledge should be enforced was, therefore, unimportant. It cannot, therefore, be questioned that whatever interest Mrs. Davis had in the piano was acquired for a present consideration moving from her, and she was in a position of a bona ficle pledgee of the property,\nThe judgment of the City Court and of the County Court are, therefore, reversed upon the law and the facts, with costs to the defendant in all the courts.'\nAll concurred, except Smith, P. J., dissenting in opinion.\n","per_curiam":false,"type":"020lead"},{"author_str":"Smith","ocr":true,"opinion_id":5222293,"opinion_text":"\nSmith, P. J. (dissenting):\nAssuming for the argument that chapter 418 of the Laws of 1891 was retroactive, so as to require the filing of a conditional contract of sale in order to protect the conditional vendor from a subsequent pledge of a piano in good faith, the-difficulty with defendant’s position is that neither she nor the pledgee, from whom she derived title, was a purchaser or pledgee in good faith. It is conceded that the defendant got her right by gift from her mother-in-law, Mrs. Davis. Mrs. Davis took the piano under pledge for an antecedent debt, and, therefore, is not protected by the statute. (Harder v. Plass, 57 Hun, 541; Russell v. St. Mart, 83 App. Div. 545.) The plaintiff, therefore, has not lost his right by failing to file his contract of sale. The only other objection that can be urged against the plaintiff’s right is his delay in taking possession of the piano. . There certainly can be no claim of title to the piano by the right of adverse possession, and the vendee having forfeited her rights thereunder by failure to pay according to the terms of the contract, the plaintiff had the clear right to replevin the piano, and the judgment should be affirnied, with costs.\nJudgment of the City Court and County Court reversed- on law and facts, with costs to defendant in all courts.\n","per_curiam":false,"type":"040dissent"}],"precedential_status":"Published","slug":"leonard-v-harris","summary":"Appeal by the defendant, Caroline Harris, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of said county on the 28th day of June, 1911, affirming a judgment of the City-Court of the city of Albany in favor of the^ plaintiff entered in the office of. the clerk of said City Court on the 16th day of December, 1910. , f • ' The action was brought to recover a piano sold by the plañir tiff to Mrs. Mann. The sale took place April' 30, 1895. The parties traded pianos and •- Mrs. Mann gave a note- for the difference in value, $225, which note recited that it was given for a Crown piano No. 609.0, which is to remain the property of. the plaintiff until the note is paid. The note was renewed November 23, 1906, for $180, the balance unpaid, with a like provision as to the title of the piano. Arthur J. Mann, Mrs. Mann, his wife, and their son became boarders at the boarding house of Mrs. Jane Davis in Albany and he brought with him the piano and furniture for his rooms. At the time he removed from her premises, June,- 1898, he owed her for board of himself, wife and son, $445, which he was unable to pay and he told her that the piano and furniture should remain with her until the' debt was paid. No part of the debt was ever paid and the property remained with Mrs. Davis, no claim being made by any person upon her for it. About the year 1905 Mrs. Davis gave the piano to the defendant, who was her daughter-in-law, and the daughter-in-law removed it to her premises. About a year later she returned with the piano to the boarding house of Mrs. Davis and is now living there. The plaintiff demanded the piano of her, and she refused to deliver it. He thereupon brought an action of replevin, and by the judgment appealed from has been awarded the possession, with costs."} {"case_name":"Schaefer v. State","case_name_full":"Harold Charles Schaefer, by His Guardian ad Litem, Charles Schaefer v. The State of New York","case_name_short":"Schaefer","citation_count":0,"citations":["247 A.D. 833"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1936-03-15","date_filed_is_approximate":true,"id":5504756,"opinions":[{"ocr":true,"opinion_id":5344579,"opinion_text":"\nAppeal from judgment of Court of Claims dismissing the claim upon the merits. Charles Schaefer was injured while riding in the night time on the rear seat of a motorcycle when it ran into a barrier at a dead end in a State highway. Two hundred feet from the end of the highway another State highway branched off to the right. The proof warranted the court below in finding that 500 feet from the barrier and 300 feet from the intersection there were two signs, one marked “ slow ” and the other, six feet by eight feet in size, painted black and white, marked “ End of present construction, Turn right 300 feet ahead,” and that there were also two glass reflector signs about two feet by three feet in size located upon the barrier which reflected the words “ Full Stop ” in eight-inch letters when the lights of motor vehicles show upon them. The headlight upon the motorcycle was adjusted so that the operator could see with it about fifteen or twenty feet ahead on the highway. Judgment unanimously affirmed. Present — Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"schaefer-v-state"} {"attorneys":"Max Spann, for appellant., Ely Rosenberg and Elias Feinsod, for respondent.","case_name":"Queck-Berner v. Spann","case_name_full":"C. A. Joseph Queck-Berner v. Max Spann","case_name_short":"Queck-Berner","citation_count":0,"citations":["97 Misc. 423"],"court_full_name":"Appellate Terms of the Supreme Court of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Terms of the Supreme Court of New York","court_type":"SA","date_filed":"1916-11-15","date_filed_is_approximate":true,"headnotes":"Removal of cause — Municipal Court — parties — when motion for order transferring cause to district in which defendant resides granted—■ Municipal Court Code, § 17.
Where neither of the parties to a Municipal Court action resides in the district in which it was brought, the court in that district under section 17 of the Municipal Court Code must grant defendant’s motion for an order transferring the cause to the district in which he resides.
That defendant upon the denial of his motion to transfer the cause proceeded to trial without further objection was not a waiver of his right to have the cause removed, nor did it preclude a review of the order denying his motion.
","id":5574018,"opinions":[{"ocr":true,"opinion_id":5415948,"opinion_text":"\n\nPer Curiam.\n\nThe notice of appeal herein brings up for review an order denying the defendant’s motion to transfer the trial of the action from the first district, borough of Manhattan, to the sixth district, borough of Brooklyn. At the joinder of issue the defendant filed a demand and a statement of the facts under oath in accordance with the provisions of section 17 of the Municipal Court Code, and asked for the transfer of the action. The' affidavit of the defendant was undisputed, and-showed that the plaintiff resided in Brooklyn, and that the defendant resided in the sixth district in Brooklyn. Notwithstanding this, the court below denied his motion for a transfer of the action. Section 17 of the Municipal Court Code provides that an action ‘ ‘ must be brought in a district in which either the plaintiff or the defendant resides or one of the plaintiffs or one of the defendants resides unless all the plaintiffs and all the defendants reside out of the city of New York.” The undisputed fact that neither party resided in the first district, borough *425of Manhattan, and that the defendant resided in the sixth district, borough of Brooklyn, required the court to transfer the action to the latter district. The refusal to do so upon the proper and timely motion was error. The fact that the defendant subsequently proceeded to the trial of the action without further objection was' not a waiver of his right to have the case removed or to prevent a review of the order denying his motion therefor. Stephens v. Molloy, 50 Misc. Rep. 518, and cases there cited.\nIf the Municipal Court Code permitted an appeal from an order “ where it affects a substantial right,” as provided in section 1347 of the Code of Civil Procedure, instead of limiting a review of such an order as this to an appeal from the judgment (Mun. Ct. Code, § 154), the necessity and expense of a new trial might have been avoided.\nJudgment and order reversed and a new trial ordered in the sixth district, borough of Brooklyn, with thirty dollars costs to appellant to abide the event.\nPresent: Guy, Bijur and Shearn, JJ.\nJudgment and order reversed, and new trial ordered, with costs to appellant to abide event.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"queck-berner-v-spann","summary":"Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of plaintiff and bringing up in the notice of appeal for review an order denying the defendant’s motion to transfer the action to the sixth district, borough of Brooklyn."} {"attorneys":"Joseph J. Buderwitz, Jr., for appellant., Elliott Golden, Acting District Attorney (William I. Siegel of counsel), for respondent.","case_name":"People v. Kane","case_name_full":"The People of the State of New York v. Michael Kane","case_name_short":"Kane","citation_count":0,"citations":["23 N.Y.2d 878"],"court_full_name":"New York Court of Appeals","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Appeals","court_type":"S","date_filed":"1969-01-15","date_filed_is_approximate":false,"id":5676925,"opinions":[{"ocr":true,"opinion_id":5524721,"opinion_text":"\nJudgment affirmed; no opinion.\nConcur: Chief Judge Fuld and Judges Burke, Soileppi, Bergan, Keating, Breitel and Jasen.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued November 14, 1968;","precedential_status":"Published","slug":"people-v-kane"} {"case_name":"Fewer v. GFI Group Inc.","case_name_full":"Donald P. Fewer v. GFI Group Inc.","case_name_short":"Fewer","citation_count":0,"citations":["59 A.D.3d 271","873 N.Y.S.2d 580"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2009-02-19","date_filed_is_approximate":false,"id":5910051,"opinions":[{"ocr":true,"opinion_id":5767532,"opinion_text":"\nOrder, Supreme Court, New York County (Richard B. Lowe, III, J.), entered July 29, 2008, which, insofar as appealed from, granted plaintiffs motion pursuant to CPLR 2201 for a stay of the action pending resolution of a related arbitration proceeding, unanimously reversed, on the law and the facts, with costs, the motion denied, and the stay vacated.\nPlaintiff former employee executive commenced this action for constructive discharge based on an employment agreement, and defendants asserted counterclaims for, inter alia, damages arising from alleged conversion of confidential information and the “raiding” of defendants’ personnel. In granting that branch of plaintiffs motion to stay the instant action (Fewer action) pending the outcome of an arbitration proceeding commenced by his former employer (employer arbitration), the motion court exercised its discretion in an improvident manner.\nAlthough certain of the parties in the Fewer action and the employer arbitration are closely related, the issues and claims that underlay the two matters are not inextricably interwoven such that the arbitration determination could resolve the issues in the Fewer action (see Somoza v Pechnik, 3 AD3d 394 [2004]; compare Belopolsky v Renew Data Corp., 41 AD3d 322 [2007]). An award in the employer arbitration finding there to be a conspiracy to take the employer’s assets (i.e., confidential information, clients and employees) would not necessarily be made as to plaintiff, who is not a party to that proceeding and may not have a full and fair opportunity to contest such issues. Furthermore, the counterclaims in the Fewer action, unlike the employer’s claims in the employer arbitration, do not assert a *272formal conspiracy claim and, as such, plaintiffs alleged liability under the counterclaims does not rely upon evidence of conspirácy potentially to be determined in the employer arbitration.\nEven with the rendering of an award in the employer arbitration that would resolve the issues raised therein, the material issues raised in the Fewer action would still remain unresolved, namely, whether plaintiff had been constructively discharged and whether he breached his employment agreement. Under these circumstances, continuing the stay of the Fewer action would neither serve to aid judicial efficiency nor avert inconsistent holdings (see e.g. Mt. McKinley Ins. Co. v Corning Inc., 33 AD3d 51, 58-59 [2006]; Corbetta Constr. Co. v Driscoll Co., 17 AD2d 176, 179 [1962]). Concur—Mazzarelli, J.P., Friedman, Gonzalez, Catterson and Renwick, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"fewer-v-gfi-group-inc"} {"case_name":"Stanton v. Price Chopper Operating Co.","case_name_full":"Gay Stanton v. Price Chopper Operating Company, Inc.","citation_count":0,"citations":["243 A.D.2d 934","663 N.Y.S.2d 390"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1997-10-23","date_filed_is_approximate":false,"id":6152778,"judges":"Mercure","opinions":[{"author_str":"Mercure","ocr":true,"opinion_id":6018343,"opinion_text":"\nMercure, J.\nAppeals (1) from a judgment of the Supreme Court (Caruso, J.), entered April 17, 1996 in Schenectady County, upon a verdict rendered in favor of plaintiff, and (2) from an order of said court, entered March 20, 1996 in Schenectady County, which denied plaintiffs motion to set aside the verdict.\nPlaintiff commenced this action to recover for injuries she sustained at defendant’s supermarket in May 1993 when she was struck in the back by some shopping carts that were being moved by defendant’s employee. Following the trial of the action, the jury awarded plaintiff damages totaling only $930 for past medical expenses and pain and suffering. Plaintiff appeals both the damage component of the judgment and the order denying her posttrial motion to set aside the damage award.\n*935We affirm. Initially, we are not persuaded that Supreme Court was required to grant a mistrial because of the alleged reference in defendant’s opening statement to plaintiffs prior lawsuits. We first note that plaintiff has failed to provide us with any record of the actual words that are alleged to have been uttered by defendant’s counsel. The parties’ opening statements were not recorded and plaintiffs trial objection merely characterized the utterance as “intimation]” or “impli[cation]” in which defendant’s counsel “just about told [the jury]” that plaintiff had brought previous lawsuits. We are not inclined to grant the extreme relief sought by plaintiff solely on the basis of her counsel’s characterization of the tenor of defense counsel’s statement. In any event, even crediting plaintiffs present representation as to the precise words uttered, we are not persuaded that a statement that plaintiff “has been here before” was sufficiently egregious to “permeate [] the trial and create [ ] a climate of hostility that effectively destroyed [plaintiffs] ability to obtain a fair trial” (DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 198, cert denied sub nom. Poole v Consolidated Rail Corp., 510 US 816). Rather, we conclude that, having heard the entire opening statements, Supreme Court was in the best position to judge the context of defense counsel’s remark and to gauge its effect on the jury (see, Murphy v Town of Schodack, 98 AD2d 911, 912; Reilly v Wright, 55 AD2d 544, 545).\nWe are also unpersuaded that the verdict was against the weight of the evidence. A jury verdict can be successfully challenged as against the weight of the evidence only when the evidence so preponderates in favor of the challenging party that the verdict could not have been reached on any fair interpretation of the evidence (see, Lolik v Big V Supermarkets, 86 NY2d 744, 746; Adler v Londner, 228 AD2d 1003; Burns v Gooshaw, 225 AD2d 980, 981). Where there exists a sharp factual dispute concerning the nature and extent of the injuries suffered, a reviewing court is reluctant to substitute its judgment for that of the jury absent a showing that the jury’s assessment of damages lacked a factual basis or is palpably wrong (see, Adler v Londner, supra; Nelson v Town of Glenville, 220 AD2d 955, 957, lv denied 87 NY2d 807). On the evidence presented at trial, the jury could have concluded that there was only minimal contact between the shopping carts and plaintiff, that plaintiffs injuries were slight and that substantially all of her physical ailments were the result of her preexisting and deteriorating spinal condition.\nPlaintiffs remaining contentions have not been preserved for *936our consideration and are in any event found to be lacking in merit.\nCardona, P. J., Mikoll, Casey and Peters, JJ., concur. Ordered that the judgment and order are affirmed, with costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"stanton-v-price-chopper-operating-co"} {"case_name":"Mohuk v. New York Central & Hudson River Railroad","case_name_full":"Frederick Mohuk v. The New York Central and Hudson River Railroad Company","case_name_short":"Mohuk","citation_count":0,"citations":["68 N.Y. Sup. Ct. 623"],"court_full_name":"New York Supreme Court","court_jurisdiction":"New York, NY","court_short_name":"New York Supreme Court","court_type":"ST","date_filed":"1891-10-15","date_filed_is_approximate":true,"id":6350311,"opinions":[{"ocr":true,"opinion_id":6219004,"opinion_text":"\nJudgment and order appealed from affirmed on authority of Glushing v. Sharp, Receiver, etc. (96 N. Y, 676); Palmer v. New York Ventral and Hudson River Railroad Company (112 id., 234); Oldenburg v. Same (36 N. Y. St. Rep., 402). Lewis, J., not sitting.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mohuk-v-new-york-central-hudson-river-railroad"} {"attorneys":"Harold S. Lee, of Chicago, for appellants., Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.","case_name":"People v. Spooner","case_name_full":"The People of the State of Illinois v. Morris Spooner","case_name_short":"Spooner","citation_count":0,"citations":["22 Ill. App. 3d 685"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1974-09-11","date_filed_is_approximate":false,"id":7108371,"judges":"Burman","opinions":[{"author_str":"Burman","ocr":true,"opinion_id":7014425,"opinion_text":" Mr. JUSTICE BURMAN delivered the opinion of the court: The defendants, Morris Spooner and George Galanis, were arrested on January 12, 1972, by the sheriff’s police of Cook County upon complaints charging them with knowingly, wilfully and unlawfully keeping in a place of public resort, to wit: their respective restaurants located in unincorporated areas of Cook County, Illinois, certain pinball machines, in violation of chapter 21.1, section 1 of the Ordinances and Resolutions of Cook County (now chapter 24, section 1), which prohibits same. The pinball machines and their contents of United States currency were seized by the sheriff at the time of arrest. Prior to trial a motion was made on behalf of both defendants to quash the complaints and for a dismissal based upon the contention that the Cook County ordinance which the defendants allegedly violated was unconstitutional for various reasons. The motion stated: “(a) That the Cook County ordinance alleged to have been violated by the defendants violates the Fourteenth Amendment of the Constitution of the U.S. in that it violates the equal protection clause of the Fourteenth Amendment. (b) That the Cook County Ordinance Chap. 21.1 Sec. 1 is in conflict with Chapter 38 Sec. 28 — 2(1) [of the Illinois Revised Statutes 1971], (c) That the Cook County Ordinance Chap. 21.1 Sec. 1 Ordinances and Resolutions of the County of Cook, State of Ill. is discriminatory and violates the Due Process provisions of the U.S. Constitution and State of IU. Constitution.” The motion was denied. The record further shows that on July 18, 1973, the cause was heard without a jury and, after hearing testimony and the arguments of counsel, the court found both defendants guilty as charged. Each was fined $20 and assessed $5 in costs. On appeal the defendants’ sole argument is premised on the claim that section 25.22 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1961, ch. 34, par. 429.4), as amended is in contravention of the 1870 Illinois Constitution. Section 25.22 empowers county boards “[t]o license, tax, regulate, or prohibit pinball games or machines” and similar devices. The defendants argue that this statute contravenes article IV, section 13, of the 1870 Constitution of the State of Illinois, which prohibited any legislative enactment from embracing more than one subject and required that one subject to be expressed in the title, and therefore that Cook County Ordinances and Resolutions, chapter 21.1, section 1, enacted under the authority of section 25.22, is invalid and the convictions should be reversed. Since the defendants have not included the report of proceedings in their record on appeal we are confined to the common-law record submitted, and it may not be supplemented or expanded by statements, arguments or contentions dehors the record. (People v. Rogers, 26 Ill.2d 599, 188 N.E.2d 22; People v. Brown, 3 Ill.2d 623, 122 N.E.2d 153.) It is apparent from our review of this record, including the motion to quash the complaints set out above, that neither the issue of the constitutionality of section 25.22 of the above-mentioned Act (Ill. Rev. Stat. 1961, ch. 34, par. 429.4), nor of the Cook County Ordinance as it turns upon that statute, were raised in the trial court. It is firmly established that for sound policy reasons, theories of defense not raised in the trial court cannot be raised for the first time on appeal (People v. Brown, 11 Ill.App.3d 67, 296 N.E.2d 77), and this principle of waiver encompasses constitutional questions (People v. Black, 52 Ill.2d 544, 288 N.E.2d 376). In People v. Amerman, 50 Ill.2d 196, 197, 279 N.E.2d 353, 354, the Illinois Supreme Court reiterated: “Tt.is fundamental that the question of the constitutionality of a statute cannot be properly raised for the first time in a court of review, but must have been presented to the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such ruling. [Citations.]’.” We acknowledge the additional questions raised by the State in support of its position on the merits, including whether the 1870 Illinois Constitution even applies to the statute attacked, and if not, whether the new 1970 Constitution would in any way affect its validity. But we need not proceed to a determination of those issues. We hold that the defendants’ argument that section 22.25 of the Act (Ill. Rev. Stat. 1961, ch. 34, par. 429.4), as amended, is unconstitutional has been waived, since it is presented for the first time in this appeal. We therefore affirm the conviction and fines. Affirmed. ADESKO, P. J., and DIERINGER, J., concur. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-spooner"} {"attorneys":"Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant., Richard L. Broch, State’s Attorney, of Tuscola (Kenneth R. Boyle, Robert J. Biderman, and Michael K. Blazicek, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.","case_name":"People v. Burrows","case_name_full":"THE PEOPLE OF THE STATE OF ILLINOIS v. CARLOS M. BURROWS, JR.","case_name_short":"Burrows","citation_count":0,"citations":["183 Ill. App. 3d 949"],"court_full_name":"Appellate Court of Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"Appellate Court of Illinois","court_type":"SA","date_filed":"1989-05-25","date_filed_is_approximate":false,"id":7116342,"judges":"Knecht","opinions":[{"author_str":"Knecht","ocr":true,"opinion_id":7023226,"opinion_text":" JUSTICE KNECHT delivered the opinion of the court: On November 23, 1987, a criminal information was filed in the circuit court for Douglas County against the defendant Carlos M. Burrows. After a jury trial, the defendant was found guilty on January 29, 1988. The trial court denied the defendant’s post-trial motions and ordered the defendant’s bond to be applied to reimbursing the county for legal services furnished by the public defender. The defendant was sentenced on June 22, 1988. Defendant argues on appeal the State failed to prove the defendant guilty beyond a reasonable doubt and erred in ordering reimbursement to the county for legal services. We disagree and affirm the circuit court. The testimony at trial showed Melba Johnson and Vera Long were the caretakers of their mother’s unoccupied home while she resided at a local nursing home. Johnson testified she checked the residence on the morning of October 28, 1987, and found nothing unusual. When Long arrived on October 31, 1987, however, she found the house in disarray and many items missing. Johnson and Long identified items recovered from the defendant’s family home as some of those missing items. These included sewing items, antique dolls, and a suitcase. Rick Hossler, husband of a separately tried codefendant, Patti Hossler, testified for the prosecution. He stated he returned home from work on the morning of October 29, 1987. Present in the home were Patti, the defendant, the defendant’s brother Bill Burrows, and Bill’s girlfriend, Sherry. The Hossler home was located only two doors away from the burglarized house. On a couch in the living room were several cardboard boxes containing a suitcase, a tool box, a clock, and other items. Rick Hossler went to bed and, when he awoke several hours later, the boxes were gone and only the suitcase, the tool box, and the clock remained. On November 3, Patti Hossler left her husband and went to reside with the defendant. On that date, Rick Hossler took the items that had been left and disposed of them in a rural area outside of town. He contacted the police on November 7, indicating he had information on the burglary. Sergeant Lou Ann Reed, of the Villa Grove police department, testified Mr. Hossler contacted her for the second time on November 20 and stated he knew of a residence where items connected with the burglary could be located. He also referred to the items he had disposed of outside of town. On November 21, the police obtained a search warrant for defendant’s residence, his parents’ home. Sergeant Reed testified she located some sewing items, sewing machine drawers, a suitcase, and several antique dolls at the home during the search. Defendant’s mother testified her son had spent the evening of October 28 with her and family friends. She also stated Rick Hossler had brought her the dolls, suitcase, and sewing items the day after Halloween. Defendant’s father testified that on November 1, Rick Hossler had brought over the items in question and gave them to his wife. Amy Strunk, the 15-year-old daughter of Rick and Patti Hossler, testified that on the evening of October 28 or early morning of October 29, she was sleeping on a couch in the living room of the family home. At one point she woke up and noticed boxes in the kitchen. She stated her mother, the defendant, Bill Burrows, and Sherry were in the kitchen at the time. She could not identify the boxes or their contents. The defendant testified on his own behalf and denied any knowledge of the crime. He claimed Rick Hossler brought the stolen items to his parents’ home. The defendant stated he thought at the time Rick’s actions were unusual because the men had quarreled as a result of Patti leaving Rick and moving in with the defendant. On January 29, 1988, the jury returned a guilty verdict against the defendant for burglary. On March 2, 1988, the court heard post-trial motions, and Price, a public defender, tendered a motion to withdraw as counsel for the defense. The court granted the motion, and Lerner, a privately retained attorney, entered his appearance for the defendant. On April 4, 1988, the court held a hearing to determine reimbursement to the county for the services rendered by the public defender. The public defender testified as to the time spent in preparation and at trial in the defendant’s case. The State requested the court to take judicial notice defendant had posted a $1,000 cash bond and had obtained private counsel. No evidence was presented as to the source of the money for the bond or attorney fees. At the conclusion of the hearing, the court ordered the defendant to reimburse the county in the amount of $1,178.50 and applied the defendant’s cash bond for this purpose. The court held a sentencing hearing on June 22, 1988, and the defendant was sentenced to five years in the Department of Corrections with credit for time served. On his own motion, the defendant was found indigent for the purposes of this appeal, and the office of the State Appellate Defender was appointed to represent him. A notice of appeal was filed on June 24,1988. Defendant initially argues there was no evidence to directly connect him with the crime and his conviction came about through the improper use of a legal presumption. The legal presumption in question here is contained in Illinois Pattern Jury Instructions, Criminal, No. 13.21 (2d ed. 1981) (IPI Criminal 2d). This instruction provides when a defendant has exclusive possession of recently stolen property and there is no reasonable explanation of his possession, the jury may infer the defendant obtained the property by burglary. The application of this presumption is governed by People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160. In that case, the Illinois Supreme Court held the employment of a permissive presumption was allowed where (1) there was a rational connection between the recent possession of property stolen in the burglary and the defendant’s participation in the burglary; (2) his guilt of burglary is more likely than not to flow from his recent unexplained and exclusive possession of burglary proceeds; and (3) there is evidence corroborating the defendant’s guilt. It is necessary therefore to consider each of these three requirements in regard to facts of the case before us. As in Housby, there is no direct evidence to connect the defendant here with the actual burglary. According to the testimony of Amy Strunk, on the afternoon of October 28 she had a conversation with her mother concerning the house two doors away from her own, the house burglarized by the defendant. She stated that later that night, as a card game between her mother, the defendant, Bill Burrows, and Sherry took place, she heard discussion about whether the house was empty. Later yet, she entered the kitchen, where she found the same people and a number of cardboard boxes. When she awoke on the morning of the 29th, after her father had returned home, some of the items remained in the house, but others had been taken away. Rick Hossler testified the boxes were around the house in the early morning of the 29th when he returned home. He specifically recalled seeing a suitcase, the tool box, and a clock. These items were later identified as having been stolen from the house in question. This testimony provides a sufficient basis to fulfill the first prong of the Housby test. There is a rational connection between the fruits of a recent burglary and the defendant’s participation in it. Here, there is a showing during the time frame when the crime took place, the defendant and others, while located only two doors away from the house in question, discussed the fact the house was empty. Only a few hours later at the Hossler home, boxes of items, some of which are later identified as having been taken from the burglarized home, appear. Defendant’s close proximity to the scene of the crime during the time when the crime was known to have occurred, the discussion concerning the burglarized house in his presence, and the appearance of items identified as having come from the house provide a sufficient rational basis to show the connection between the crime and defendant’s participation. The next prong of the Housby test requires the defendant’s guilt to be more likely than not to flow from his recent unexplained and exclusive possession of burglary proceeds. Joint possession with others can be exclusive possession for purposes of determining whether defendant’s unexplained and exclusive possession of recently stolen property was the result of a burglary. (People v. Ross (1981), 103 Ill. App. 3d 883, 431 N.E.2d 1288.) The fruits of the burglary here appeared in defendant’s possession late on October 28 or early October 29. While the exact hour of the crime cannot be fixed, it was a matter of hours from the occurrence to the appearance of the stolen goods in defendant’s possession. Defendant argues Ross held the lapse of nine hours as too great to allow presumption that the defendant was involved in the burglary. In Ross, the court found this passage of time was too great where the only connection of the defendant to the burglary was possession of the stolen goods. Here, the evidence shows that after 6 p.m. on October 28, there was conversation about the unoccupied house two doors away. When Amy Strunk woke up after midnight and entered the kitchen where defendant was, there were boxes of items she had not seen earlier. The focus of Ross was not establishing a bright-line rule concerning the lapse of time between a crime and the discovery of stolen goods in the possession of the defendant, but on the factors which would make it unlikely the defendant was an innocent victim of circumstance. In Ross, there was nothing to connect the defendant to the crime save possession of the stolen goods. There, the court was unwilling to accept a presumption where there was the possibility of a substantial amount of time having passed between the crime and the arrest because this greatly increased the possibility the defendant could have acquired the goods by a means other than burglary. Also, in Ross, the defendant had presented an explanation which, while not entirely plausible, was supported by some evidence. In this case, there is also the possibility several hours passed between the crime and the time when Strunk saw the defendant with the stolen goods. Here, however, defendant’s only explanation concerning his possession of the goods was to deny he was present at the Hossler home on the night of the burglary, a position flatly contradicted by the State’s witnesses. In regard to how the stolen items came to be at his parents’ home, where the defendant resided, the defendant presented the testimony of his parents that the items were a gift from Rick Hossler. Defendant’s explanation, however, did not account for the appearance of the stolen goods in his possession with others in the Hossler home on the evening of the 28th or morning of the 29th. Hossler testified he was working at this time, and the witness Amy Strunk did not testify he was present in the home at the time. It is therefore more likely than not the defendant’s guilt flows from his connection with the possession of the stolen goods. The final prong of the Housby test is corroborating evidence. Defendant contends there is no substantial corroborating evidence in this case. However, there is defendant’s presence near the site of the crime during the time when it occurred, his presence in the Hossler home when the situation of the house two doors away was discussed at a time close to when the stolen goods appeared, his possession of the goods and their disappearance with his departure, and his possession of them three weeks later at his parents’ home. Although defendant is correct that the testimony of some of the witnesses is directly contradictory, it is for the jury to resolve the contradictions in the evidence and to assess the veracity of the witnesses. (People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182.) We find the jury had before it sufficient evidence to support a presumption of guilt based on the defendant’s possession of the stolen items. The defendant also objects to the recoupment order of the court, arguing it did not consider his ability to pay. On April 4, 1988, the court held a hearing on reimbursement to the county for legal services rendered to the defendant by the public defender. The defendant and defense counsel were both present on March 2, 1988, when the court set the hearing date but both defendant and his attorney failed to appear at the hearing. At the hearing, the State introduced evidence of the number of hours spent in and out of court on the defendant’s case, the normal rates of reimbursement, and the actual hourly cost to the county of representation. The State also asked the court to take notice of the defendant’s $1,000 bond. The court then entered an order requiring the defendant to reimburse the county in the amount of $1,178.50. On August 24, 1988, a hearing was held on the State’s motion to apply defendant’s bond to the reimbursement order. Neither the State nor the defense presented any evidence. Defense counsel stated the defendant’s bond money had been provided by his parents. No objections were made to the order of recoupment, however, and defense counsel acknowledged the matter was at the discretion of the court. The court found no evidence had been submitted on the issue of the source of defendant’s bond. The court then ordered the money due the county for costs and the order of recoupment be taken from the defendant’s bond. On appeal, the defendant questions the failure of the trial court to consider his ability to pay the costs of his defense. This court has previously held that when making an order of recoupment, the court must consider all the relevant factors: the affidavit and financial circumstances of the defendant, the time spent representing the defendant, the expenses reasonably incurred, the nature of the services provided, and the statutory limitations. (Ill. Rev. Stat. 1985, ch. 38, par. 113 — 3.1.) The court must create a complete record that it considered the relevant factors. People v. Terry (1988), 170 Ill. App. 3d 484, 524 N.E.2d 685. We have, on occasion, declined to apply the waiver rule to cases involving recoupment orders under section 113 — 3.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 113— 3.1). (E.g., People v. Brady (1988), 172 Ill. App. 3d 1079, 527 N.E.2d 590.) We did so to remedy what we perceived as confusion at the trial level concerning the rights of defendants, to emphasize and clarify the standards of recoupment orders, and to deal with the number of appeals raising this issue. This court has sufficiently set forth the requirements of a proper recoupment order, particularly in Brady and Terry. A careful reading of previous opinions makes clear that in declining to apply the waiver rule, this court was exercising its discretion, not creating a blanket rule involving all cases where recoupment is an issue. This court has not hesitated to apply the waiver rule where appropriate in reviewing recoupment orders. (See People v. Van Ostran (1988), 168 Ill. App. 3d 517, 522 N.E.2d 851.) It is solely within the discretion of the reviewing court to consider alleged errors not raised or presented at trial, even if such errors affect substantial rights. (People v. McCullum (1977), 66 Ill. 2d 306, 362 N.E.2d 307.) A nonjurisdictional issue, even one of a constitutional character, which has not been properly preserved for review will not be considered on appeal. People v. Pettigrew (1984), 123 Ill. App. 3d 649, 462 N.E.2d 1273. The defendant here had two hearings at which he had the opportunity to object to the order of recoupment or to present any additional evidence to the court. Both defendant and defense counsel failed to appear at the first hearing. They essentially did nothing at the second hearing. Adequate notice of the hearing and its subject matter was given in both cases. It is an inappropriate use of judicial resources to permit a defendant who has been provided ample opportunity to present objections and evidence to the trial court to sit silently, do nothing, and then be allowed to raise matters on appeal which should have been presented to the trial court at the first recoupment hearing. For this reason, the defendant has waived any error in the recoupment order by not raising any objections in the trial court. While we recognize the trial court here did not create a record indicating it had considered all relevant factors, we also note the defendant raised no objections to the order at the hearing. The defendant’s arguments concerning the recoupment order are waived and we affirm the decision of the circuit court. Affirmed. McCULLOUGH, Ed., and SPITZ, J., concur. ","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-burrows"} {"attorneys":"Perry McCart, for appellant., Charles W. Miller, Attorney-General, W. C. Geake, C. C. Hadley and Henry M. Dowling, for the State.","case_name":"Heard v. State","case_name_full":"Heard v. State","case_name_short":"Heard","citation_count":0,"citations":["38 Ind. App. 511"],"court_full_name":"Indiana Court of Appeals","court_jurisdiction":"Indiana, IN","court_short_name":"Indiana Court of Appeals","court_type":"SA","date_filed":"1906-06-29","date_filed_is_approximate":false,"disposition":"\nAffirmed.\n","headnotes":"1. Attempts. — Provoke. — Assault. — Intent.—Evidence.—Intent is an essential element of the offense of attempting to provoke an assault, and may be proved either by positive or circumstantial evidence, p. 512.
2. Same. — Intent. — Evidence. — Where language used by the defendant, together with his conduct, was capable of an inference that defendant, who had the present ability, was threatening the prosecuting witness with personal violence, a conviction for attempt to provoke an assault is justifiable, p. 512.
3. Appeal and Eeeoe. — Weighing Evidence. — The Appellate Court will not weigh conflicting oral evidence, p. 513.
","id":7155305,"judges":"Comstock","opinions":[{"author_str":"Comstock","ocr":true,"opinion_id":7064395,"opinion_text":"\nComstock, P. J.\nThe appellant was charged and convicted in the court below of an attempt to provoke another to commit an assault. Erom that judgment he appeals, and *512under the assignment of errors he insists that the evidence does not sustain the judgment of the court, in that it does not show an intent upon the part of the defendant.\n1. Intent is an essential element of the offense charged in the case. It may he proved like any other material fact, by positive or circumstantial evidence. Courts and juries are permitted to draw reasonable inferences from the facts proved. The question of intent was one of fact to be determined by the court, and the only question before us is: Was there any evidence submitted to the trial court upon the question of appellant’s intent to commit the offense with which he was charged and convicted ? If there was evidence, positive or circumstantial, from which the trial court could infer such intent, then this court will not be justified in disturbing the judgment. Felton v. State (1894), 139 Ind. 531; Deal v. State (1895), 140 Ind. 354.\n2. John Hollingsworth, a- witness for the State, testified that he saw the appellant and the prosecuting witness, Mr. Lambdin, on August 26, 1904, in front of a livery barn in Paoli, Orange county, Indiana; that they were about six or eight feet apart, with nothing between them; that he heard the appellant say to the prosecuting witness: “You have been tending to my business lately and now I am going to tend to yours, and I do not know how you are going to help yourself. If you are, get at it, or if you have any friends here to help you, let them get at it;” that Lambdin at the time was reading a temperance article, and that defendant’s manner was angry and insulting.\nSamuel R. Lambdin, a witness for the State, testified that he was sitting in front of a livery barn in Paoli, Orange county, Indiana, reading aloud some articles on temperance, in the presence of some other persons; that appellant came up, listened to the reading, and said to one of the persons present: “Here is Bob Lambdin. He came from Crawford county and is reading a temperance lecture;” *513that Lambdin told him to go on, that he was not bothering him; that appellant further said: “If you have any way to help yourself I would like to know how you are going to do it, and if you have any friends to help you I would like to know how they are going to do it.”\nThere is some conflict in the evidence as to what was said by and between the parties to the controversy, and also whether appellant’s manner was angry and insulting. We cannot say that the language used as above set out can reasonably be understood in any other light than that of an invitation to engage in a physical encounter, and cannot say that there was no evidence to sustain the judgment.\n3. The record presents only questions of fact passed upon by the trial court, and, as we cannot say that there was no evidence to warrant the conclusion of the court, and cannot weigh the evidence, we cannot disturb the judgment.\nJudgment affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"heard-v-state","summary":"Erom Orange Circuit Court; Thomas B. BusTcirlc, Judge. Prosecution by the State of Indiana against Charles W. Heard. Erom a judgment of conviction, defendant appeals."} {"attorneys":"HUMPHREY, HINES & HUMPHREY for appellants., CHAS. F. TAYLOR and MATT O’DOHERTY for appellee.","case_name":"Jones v. Fowler Drug Co.","case_name_full":"Jones, &c. v. Fowler Drug Company","case_name_short":"Jones","citation_count":0,"citations":["120 Ky. 157"],"court_full_name":"Court of Appeals of Kentucky","court_jurisdiction":"Kentucky, KY","court_short_name":"Court of Appeals of Kentucky","court_type":"SA","date_filed":"1905-03-17","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"Lease — Term of Years — Damage by Fire — Remodeling—Agreement to Re-occupy — Tenable Condition — Where premises are leased for a drug store for five years, under a contract providing “that in the event the owner should desire to remodel the building so far as it would necessitate the tenant removing from the building, he is to receive a certain reduction of the. rent, with, the right to re-occupy the premises after the building is remodeled at the same rental until expiration of the lease,” such tenant is entitled to hold the premises where they have been damaged by fire without his fault, where the damage is not such as to render them untenable, and such lessee may elect to retain them unless the lessor will agree that he shall re-occupy them after they are remodeled as specified in the written contract.
","id":7223598,"judges":"Nunn","opinions":[{"author_str":"Nunn","ocr":true,"opinion_id":7135857,"opinion_text":"\nOpinion by\nJudge Nunn\nAffirming.\nBy lease dated July .1, 1901, appellants rented to-C. J. Rosenham & Co., for use as retail drug store, that part of the Masonic Temple building, on the ground floor, which is at the northeast corner of the building, fronting on Jefferson street 20 feet and 6 inches. In the lease the parties attempted to. give the metes and bounds of the room leased. The lease extended from July 1,1901, to January 1,1905, at an- annual rental of $4,500, payable in monthly installments. On May 13, 1903, Rosenham & Co. assigned the benefit of their lease to the appellee for a consideration of $8,000 for the good will of the establishment, and $10,600 for the stock of drugs then in the store. Appellants consented to this transfer, and on the same day made an extended lease with the appellee for the same premises; carrying the term from January 1, 1905, to January 1,1910, at an annual rental of $5,500, payable in monthly installments. The appellee took possession of the store in May, 1903, after putting improvements thereon costing $12,000, and opened the store to the public about the middle of July, 1903. The Masonic Temple building, in which this drug store was located, consisted of a large four-story building, fronting 75 feet on Jefferson street, and extending back 210 feet to Green street. Besides the Fowler *161drug store, there were five other storerooms fronting on Fourth street, and two others fronting on Jefferson street. The second story of the \"building consisted of several offices fronting on Jefferson street, a large billiard room fronting on Green street in the rear, and the Masonic Temple Theater, which occupied the central portion of the second and third stories of the building; the third and fourth stories except that part occupied by the theater, consisting of lodgerooms and other similar rooms. On November 20, 1903, a part of the building was destroyed by fire, without the fault or neglect of either party to this suit. The fire originated either in the lodgerooms in the third story, or in the theater proper, adjacent thereto. The result of the fire was a total destruction of the theater portion of the building above the second story, the destruction of some of the lodgerooms, and considerable damage to the rooms in the second story by reason of water thrown in the building, by the firemen. The drug store of the appellee w'as not damaged any by the fire, and but little by the water. It had a steel ceiling, over which there was the floor of the second story, and over this the floor of the third story was intact. The floor of the theater was not damaged by fire, and, being a slanting floor, it carried away the water from that portion of the building occupied by the drug store. The lease provides that the Fowler Drug Company ! ‘ shall take good care of the premises and return the same at the expiration of the term in as good order as received, ordinary wear and tear and natural decay, excepted, unless the improvements should be destroyed by lightning or other natural causes, or fire not caused by their default. If destruction as aforesaid, total or partial, ensues so as to malm the premises untenantable for the purposes desired, the lessee may surrender and cancel this lease. ’ ’ The *162twelfth clause of the lease provides as follows: “In the event that the owners of the property should desire to remodel the building so far' that it would necessitate the tenant removing from the premises, the tenants are to receive, should they move within twelve months from date of lease, $5,000, within two years $4,000, within three years $3,000, within four years $2,000, and at shorter period previous to the expiration of their lease $1,000, the tenant to have the right to re-occupy the premises after the building is remodeled at same rental and continuing occupancy until expiration of lease.”\nOn December' 26, 1903, the appellee brought this suit, alleging that there was a mistake in the description of the store rented, in that the third call had been omitted, and that appellants were contending that appellee’s lease had been terminated by the fire, and that they were about to compel or force the appellee to remove from the premises, without recognizing the provisions of the lease. It asks that the error in the description be corrected; that appellants be enjoined and restrained from remodeling the Masonic Temple building in a manner that would require the appellee to remove from the leased premises, unless they would recognize appellee’s right to re-enter under the terms of the lease; that the cloud upon appellee’s title to the leased premises caused by the alleged wrongful and illegal statements and declarations of appellants be removed; and, that the lease be adjudged to be in force. The answer consists, first, of a traverse of the material allegations of the petition, and of a second paragraph which pleads, in substance, that appellee took no interest in the land underlying the storeroom rented to it, and that the Masonic Temple building was completely destroyed by fire, which resulted in the dissolution ancl revocation of the lease,\n*163Sec. 2997 of the Ky. Stats, of 1903 provides as follows: \"Unless the contrary be expressly provided for in the writing, no agreement of a lessee that he will repair, or leave the premises in repair, shall have the effect of binding him to erect similar buildings, if without his fault or neglect the same may be destroyed by fire or other casualties; nor shall a tenant, unless he otherwise contracts, be liable for the rent for the remainder of his term of any building leased by him., and destroyed during the term by fire or other casualties without his fault or neglect.” The appeL lants rely upon the alleged total destruction of the Masonic Temple building by fire as having worked, in law, a dissolution of the lease between the parties. This might be correct if there had been a total destruction of the building. But the proof shows that the room leased by the appellee was not injured, and appellee has continued to occupy it for the purposes for which it was leased from that time to the present. In the case of Smith v. McLean, 123 Ill., 219, 14 N. E., 51, the court said: \"The contention, it will be observed, requires that the part of the building or the rooms or the apartments demised shall be destroyed; and this must mean not merely damaged or 'injured, but annihilated, for, if they remain in but a damaged condition, the tenant may still occupy them, repair the damage, and restore them to their former condition., if he will.” The facts in the case of Nonotuck Silk Co. v. Shay, 37 Ill. App., 544, were similar to those in the case at bar, except the injuries to the leased premises in that case were greater, and the court there said : \"The evidence shows very clearly that the premises were not destroyed. They were damaged, but capable of repair. The walls were standing, and the floor substantial, though covered with debris and ice, and in the ceiling a small hole had been burned or broken *164through. It is said that it should have been left to the jury to say whether there was in fact a destruction of appellant’s portion of the building. There was no dispute as to the actual condition of the premises, and a finding that they were destroyed could not stand. , If it be admitted that the question was one for the jury, still the fact must have been found, as the court, in his instruction, assumed it to be, that there was no destruction of, but only a damage to, the premises.” In 18 Am. & Eng. Enc. of Law (2d Ed.), 308, we find the following language: “Thus, when apartments in a building are leased without carrying any interest in the land, the destruction of the apartments or building releases the tenant from liability for further rents. It is necessary, however, that they should have been totally destroyed, so that nothing remains upon which the demisees may continue to operate. It is not enough that, by reason of fire or other casualities, they are rendered untenantable, provided the apartments, as such, still exist.” The author cites many authorities to sustain this view, and cites one case (Helburn & Co. v. Mofford, &c., 7 Bush, 169) as contra. The opinion in the case last mentioned was written before the enactmenl of the statute above quoted, which statute enlarged the powers of the lessee by giving him the power to elect to declare the lease at an end when there is a destruction of the leased premises. The trend of the authori • ties is to the effect that unless the premises demised to the tenant, whatever they be, are destroyed, the lease is not dissolved, and the rights of the parties, lessor and lessee, remain unaffected.\nWe are of the opinion that the appellee is entitled to hold under its lease, unless the appellants choose to exercise their right by requiring it to remove under the twelfth clause thereof, and to have a correction *165of the clerical error in the description of the leased premises which is conceded by the pleadings.\nWe have been aided to a great extent in the preparation of this opinion by the able opinion of the lower court.\nJudgment affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"jones-v-fowler-drug-co","summary":"Case 21. — ACTION BY THE J. W. FOWLER DRUG COMPANY AGAINST SAUNDERS P. JONES AND OTHERS, TO RESTRAIN THE DEFENDANTS FROM REMOVING PLAINTIFFS FROM THEIR LEASED PREMISES. Appeal from Jefferson Circuit Court, Chancery Branch (1st Division). Shackelford Miller, Judge. Judgment for plaintiff. Defendants appeal. POINTS AND AUTHORITIES. 1. A lease of an apartment in a building carries with it no right to the soil, and the destruction of the building terminates the lease. (Helburn v. Miofford, 7 Bush, 170; Ky. Stats., sec. 2297; Sun Insurance Company v. Varble, Receiver, 103 Ky., 764; Winton v. Cornish, 5 Ohio, 303; Stockwell v. Hunter, 11 Metcalfe [Mass.], 448; 45 A. D., 220; Alexander v. Dorsey, 12 Ga., 12; 56 A. D., 443; Kerr v. Merchants Exchange Company, 3 Edwards Chancery, 333; McMillan v. Solomon, 42 Ala., 356; 94 A. D., 654; Harrington v. Watson, 11 Oregon, 143; 50 Am. Rep., 465.) 2. A building is destroyed by fire when it is so far injured by a fire that a restoration would make a substantially new building. (Winton v. Cornish, 5 Ohio, 303; Corbett v. Spring Garden Insurance Co., 155 N. Y., 389; 41 L. R. A., 318; Doe on the demise of Freeland v. Burt, 1 T. R., 701; Kerr v. Merchants Exchange Company, 3 Edwards Chancery, 340.) 3. The building inspector had the right to require the walls of the Masonic Temple Building to be pulled down, and Jones only complied with his duty to the public in obeying this direction. (Ordinance, City of Louisville, 130 Fifth Biennial Compilation of General Ordinances; C., St. L. & N. O. R. R. Co. v. L. & N. R. R. Co., 22 Ky. Law Rep., 660.) We contend: First. That the premises leased to appellee were not damaged, much less destroyed, by the fire of November 20, 1903. No fire in fact, and no damage from fire, occurred in that portion of the Masonic Temple block, and appellee’s rights under its lease remained wholly unaffected by the fire which damaged other parts of the block. Second. That even if the premises leased to appellee, one of the stores on the ground floor of the Masonic Temple block, had been so far damaged by fire as to render it untenantable for the purposes for which it was leased, the appellee had, by the express terms of clause A. of the lease, vested in it, and not in the appellants, the option in such event to hold or cancel the lease. Third. That the Masonic Temple block was not destroyed by the fire of Nov. 20, 1903, and was damaged at most less than fifty per cent, of its value. The fire would not have canceled appellee’s lease if it had covered the entire block. The appellee’s lease, however, was not of the entire block, but of one of a number of stores, separated from each other by substantial brick walls, having separate entrances and exits, holding no right or easement in common, distinct in every respect as any buildings can be, with nothing in common but the roof which covered the entire block from Jefferson street to Green street. Fourth. There is no clause in appellee’s lease providing for its cancellation in the event of damage, or destruction by fire of any store or apartment in the block other than that leased to appellee. The parties could by their- contract have covered such contingency. Even if the failure to make such provision in the lease worked a hardship upon appellants (and it does not) the circumstance would not, it is well settled, authorize the court to import such provision into the lease and thus make a new contract for the parties. Much less will the court import a clause into the lease which would operate to entail a loss of thousands of dollars upon appellee. Fifth. The conduct of appellants in denying appellee’s right under the provisions of clause 12 of the lease, to compensation for vacating the premises while the work of reconstructing or remodeling the building shall be in progress, and in assailing appellee’s title to and beneficial enjoyment of its leasehold, by notifying appellee to vacate, and denying at the same time appellee’s right to return and re-occupy, for the term of its lease, the premises when the work of reconstruction should be completed, was inequitable and grossly oppressive. Sixth. The law of Kentucky recognizes no difference between the rights or liabilities of the lessee of an entire building or block and those of the lessee of a part only of a block or build: ing. Seventh. The rule everywhere recognized is that a fire by which leased premises are damaged merely, but not destroyed, does not cancel the lease; a fortiori a fire which merely damages other parts of the block or building but does no damage to the leased premises, does not cancel the lease. We earnestly and confidently ask for an affirmance of the judgment appealed from. AUTHORITIES CITED. Helburn v. Mofford, 7 Bush, 169; Ward v. Adams, 8 Ky. Law Rep., 769; Ky. Stats., sec. 2297; Walcott v. Ashenfelter, 22 L. R. A., 613; Lawson’s Rights, Remedies and Practice, vol. 6, pp. 4603-4604; Graves v. Berdan, 26 N. Y., 500; Winton v. Cornish, 5 Ohio, 303; Stockwell v. Hunter, 11 Met. (Mass.), 448; Alexander v. Dorsey, 12 Ga., 12; McMillan v. Soloman, 42 Ala., 364; Harrington v. Watson, 11 Ore., 143; Smith v. McLean, 22 111. App., 453; Smith v. McLean, 123 111., 218-219; Nonotuck Silk Co. v. Shay, 37 111. App., 544; Wood on Landlord and Tenant, vol. 1, p. 814; Am. & Eng. Ency. of Law (2d Ed.), vol. 18, pp. 308 and 309."} {"attorneys":"E. ILowwrd MoOaleb for Plaintiffs and’Appellants :, Zuohwrie & Hoiuard for Defendants and Appellees :","case_name":"Barrow v. Wilson","case_name_full":"R. R. Barrow v. Mrs. M. Wilson","case_name_short":"Barrow","citation_count":0,"citations":["39 La. Ann. 403"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1887-04-15","date_filed_is_approximate":true,"headnotes":"Emancipation by marriage does not terminate the suspension oi'prescription as to minors, which continues until the actual majority of such minor. Plea of prescription of ten years overruled.
As to the property purchased at tax sale, the prescription of three years is pleaded under section 5 of Act 105 of 1874, which declares: “Any action to invalidate the titles to any property purchased at tax sale under and by virtue of any law of this State, shall be prescribed by the lapse of three years from the date of such sale. ”
This statute has never been repealed. Being a statute of prescription it is legitimately retrospective, and operates on tax sales made prior to its passage, at least from the date of the law.
Section 62 of Act 42 of 1861, under which this sale was made, providing lor obtaining an Auditor’s deed of sale, does not impair the effectiveness of the tax collector’s deed as a title.
The section 5 of the Act 105 of 1874 is distinctly a prescription of an action. It does not purport to cure defects in titles; nor does it concern itself with lhe rights of parties. It simply says, whatever be the rights, they must be asserted within three years or else the action is barred. 1
The power of the legislature to pass such laws is undisputed aud the courts are bound to enforce them.
In this case, defendants have a title derived from a tax sale made under a law o± the State, under which they have held open, public and notorious possession for thirteen years and for more than three years since plaintiffs reached the age of majority, before this action to invalidate their title was instituted.
The statute is a harto the action. The question fully considered under numerous authorities:
Lague vs.Boagni, 32 Ann. 912, distinguished from the case at bar. Person vs. O’Neal, 32 Ann. 237, overruled.
","id":7277829,"judges":"Fenner","opinions":[{"author_str":"Fenner","ocr":true,"opinion_id":7194307,"opinion_text":"\nThe opinion of the Court was delivered by\nFenner, J.\nThis case was before us in 1886, when we rendered the opiuion and decree reported in 88 Ann. 213.\nWe then remanded the case for further evidence on the question whether the prescription of ten years pleaded by defendant was defeated by suspension resulting from the minority of plaintiffs.\nTlie record now returns to ns wifhinll proof that plaintiff, R. R. Barrow, was fully emancipated in 1876 and became 21 years of age in 1879, and that Mrs. Slatter, the other plaintiff, only attained the age of majority in 1875, though emancipated by marriage in 1871.\nThis action was instituted in 1884. It follows that ten years bad not elapsed from tlie majority of either plaintiff, unless the marriage of Mrs. Slatter terminated the suspension of prescription as to her. The question as to whether the emancipation of a minor by marriage euds the suspension of prescription resulting from minority, does not appear to bave been directly decided by this Court.\nBut the French authorities, under a like provision in the French Code, are quite unanimous in holding that prescription against a minor emancipated by marriage remains suspended until actual majority. 32 Laurent, No. 46; 2 Troplong, Prés., No. 74; Marcadé, Prés., Art. 2252, C. N.\nIn a recent case, discussing the nature and effect of emancipation by marriage* we said: “Marriage did not relieve her from the disabilities which attach to minors, and did not vest her with the power and right *406of doing and performing all acts as validly as if she had attained the age of twenty-one yeais. She could not mortgage or alienate real estate without the consent of a family meeting and the authority of the judge. Her powers are of administration only.” Succ. Mitchell, 33 Ann. 356.\nThese limitations on the effects of emancipation by marriage are the foundations of the French doctrine that it does not end the suspension of prescription. That doctrine seems to us to be sound and applicable under our law, and we therefore approve and adopt it.\nI.\nThis terminates the controversy as to the tract of land held by defendants under the State patent, as to which there was no defense having the slightest merit, except the prescription of ten years, which is now overruled.\nII.\nThe other tract of land is held by defendants under a tax sale made to their author in 1871. Against the attack in this sale, defendants pleaded the prescription of five and three years, both of which had fully run, after the majority of plaintiffs, before the suit was brought. Art. 3543 C. C., provides: “ All informalities connected with or growing out of any public sale made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale, after the lapse of five years from the time of making it, whether against minors, married women or interdicted persons.”\nSection 5 of Act 105 of 1874 declares : “ Any action to invalidate the titles to auy propertyr purchased at tax sale under and by virtue of any law of this State, shall be prescribed by the lapse of three years from the date of such sale.”\nWe have thus placed the two provisions side by side, in order to exhibit the broader and more sweeping effect of the latter law. While the article of the Code covers informalities only, the act of 1874 creates a positive bar against “any action to invalidate” a tax title.\nFearful that in the labyrinth of laws and decisions, on the subject of taxes and tax titles, there might be some law or decision repealing or modifying the effect of this statute, we took' occasion to call the attention of the able and distinguished counsel engaged in this case to the subject, and to invite further argument thereon.\nThe statute has never been repealed. The only subsequent enactments pointed to as having such effect are Sec. 57 of Act 96 of 1877 and Sec. 6 of Act 9 of 1878; but, taken in connection with the limited repealing clauses in those acts, it is too clear to require further notice ; *407that the sections quoted are not inconsistent with the statute, and, therefore, do not operate its repeal.\nTt is claimed, however, that under Section 62 of Act 42 of 1871, uifeer which this sale was made, the deed of sale from the tax collector could not operate as a basis of prescription, but was a mere inchoate title until perfected by a deed of sale issued by the Auditor of Public Accounts as therein provided. The mere reading of the section makes it obvious that the procuring of the Auditor’s deed is a’matter purely optional with the purchaser, conferring, perhaps, some additional rights, but the omission of which, in no manner, invalidates the tax collector’s deed as a muniment of title. We, therefore, find that the statute continues in force.\nThere is no question of the legislative power to pass such a statute, and, being a statute of prescription, it is legitimately retrospective and operates on the title of defendants, at least from the date of the law. DeArmas vs. DeArmas, 3 Ann. 526; 3 Municipality vs. Ursuline Nuns, 2 Ann. 611; Municipality vs. Wheeler, 10 Ann. 745.\nIt now becomes our duty to ascertain the effect of such a statute upon the rights of parties under such sales. This is distinctly a statute of prescription. It operates not upon the rights of the parties. It does not purport to validate a title which, otherwise, would be invalid. It simply limits the time within which the owner of the original title shall be allowed to assert his rights against the purchaser at a tax sale.\nMr. Blackwell well says: “ There must be a period fixed by positive law, within which a right shall be prosecuted in courts of justice. Public policy demands the enactment of such laws, and they are universally sanctioned by the practice of nations and the consent of mankind. Such laws have been emphatically and justly denominated statutes of repose. The best interests of society require that causes of action should not be deferred an unreasonable length of time. This remark is peculiarly applicable to land titles.” Blackwell Tax Titles, p. 643.\nCooley says : “ The statutes limiting a short time within which the owner of the original title shall contest the tax claim are supposed to be enacted in pursuance of a sovereign authority vested in the Legislature to fix a reasonable time within which a party shall be allowed to assert his rights by suit, or be debarred. The policy of such laws is unquestionable, and the power to enact them is undisputed;” Cooley on Tax, p. 376.\nThe Supreme Court of the United States has said; “Prescription is *408a tiling of poliojr, growing out of the experience of its necessity; and the time after which suits or actions shall be barred, has been, from a remote antiquity, fixed by every nation, in virtue of that sovereignty by which it exercises its legislation over all persons and property within its jurisdiction.” McElmoyle vs. Cohen, 13 Peters, 312.\nA statute of the State of Arkansas provided that: “All actions against the purchaser, his heirs or assigns, for the recovery of lands sold by any collector of the revenue for the non-payment of taxes, shall be brought within five years after the date of such sale, and not after.”\nIn passing on the effect of this statute, the Supreme Court of the United States said: “In order to entitle the defendant to set up the bar of this statute, after five years’ adverse possession, he had only to show that he and those under whom he claimed, held under a deed from a collector of the revenue of lands sold for the non-payment of taxes. He was not bound to know that all the requisitions of the law had been complied with, in order to make the deed a valid and indefeasible conveyance of the title. If the Court should require such proof, before a defendant could have the benefit of this law, it would require him to show that he had no need of the protection of the statute, before he could be entitled to it. Such a construction would annul the act altogether, which was evidently intended to save the defendant from the difficulty, after such a length of time, of showing the validity of his tax title.” Pillow vs. Roberts, 13 How. 472.\nA Wisconsin statute provided that any suit or proceeding for the recovery of land sold for taxes, except in cases where the taxes have been paid or the lands redeemed, as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter. Under this statute, the Supreme Court of that State held that if the tax purchaser’s possession had been actual and open, the statute would protect him, even if his tax deed was void upon its face.” Lindsay vs. Fay, 25 Wis., 460.\nA Pennsylvania statute provided that no action for the recovery of lands sold under the act should lie unless brought within five years after the sale. The Supreme Court of the State refused to apply the statute literally, and held that it began to run, not from the sale, but from the time of possession under it, for the reason that the owner was not allowed to bring ejectment against one not in possession. But a 'subsequent statute having been passed, authorizing ejectment in such case, it was held that the limitation was perfect after the lapse of five years from the delivery of the deed to the purchaser.” Stewart vs. *409Trever, 56 Penn. St. 385; Rogers vs. Johnston, 67 id. 48; Johnston vs. Jackson, 70 id. 164.\nNow, in the case before us, the defendants have held since 1871, under tax title, perfectly valid on its face, reciting that the tax collector, in making- it, acted “by virtue of the authority vested in him by Act 42 of 1871, after having fulfilled and complied with all the previous legal requisites.” The land, when sold, was unimproved; and the purchasers have not only had possession of it, but have cleared and cultivated and converted it into a plantation. And now, thirteen years after the sale, and more than three years after the plaintiffs had been freed from all the disabilities of minority, the latter brings this action to invalidate their title. The defendants simply say: “We hold a title to this property, purchased at a tax sale under a law of the State, and, in the language of the statute, your “ action to invalidate ” it is “prescribed by the lapse of three years from the date of such sale.” The statute does not concern itself with the strength of one title or the weakness of the other. The plaintiffs had a right which could only be enforced by an action. The law maker had the power to fix a reasonable time within which such action should be brought, under penalty of its being thereafter barred by prescription. That power has been exercised, and when the time fixed has expired the courts are bound to enforce the limitation, and to deny the action.\nUnder the authorities which we have quoted, the foregoing conclusion seems sufficiently clear.\nIn the case of Lague vs. Boagni, 32 Ann. 912, we refused to apply this prescription to the particular case therein mentioned, which was one where the property of Lague had been assessed in the name of Nunes, where Lague’s title was spread on the public records of the parish, and where the purchasers were shown to have known of these defects. No such radical defect exist in the assessment in the instant case. The property had belonged to II. L. Hunley, a nonresident of the parish, and the parish records exhibited no translation of his title. The assessment was made in the name of H. L. Handley, which variance is cured by the principle of idem sonans, as being a mistake not liable to mislead. Burroughs Tax. p. 203; 37 N. H. 307; 39 Barb. 479; 40 N. J. Law 269; Desty on Tax. 613.\nMoreover, it does not appear, in the case of Lague vs. Boagni, that the purchaser had' actual and open possession for the requisite period. When such possession is shown, it puts the original owner under notice of the necessity of bringing his action, and if he fail to bring it within the time prescribed, the bar of the statue applies.\n*410We are also referred to the case of Person vs. O’Neal, 32 Ann. 237, where the Court said, in commenting on this statute: “ Whatever defects in a tax-sale may be cured by the lapse of three years, the want of personal notice to the owner, or his agent or curator, cannot be, because such notice is a condition precedent to the seizure, without which there could be no sale.” We are compelled to overrule this decision.\nIt is in direct conflict with a former decision, which held that even under Art. 3543 C. C., want of such notice was a relative nullity cured by the lapse of live years. Allen vs. Couret, 24 Ann. 24; Mulholland vs. Scott, 33 Ann. 1045.\nIt is a mistake to treat this statute as one intended to cure defeats in tax titles. It is a statute of prescription, barring an action, regardless of the merits or demerits of either title.\nWe are sensible that this Court has hitherto exhibited hesitation in applying these statutes of prescription in favor of tax titles according to the trenchant principles by which they should be governed; .but it is time that such hesitation should cease, and that the clearly expressed legislative will, in the exercise of undoubted legislative power, should be firmly enforced by the courts.\nWe are, therefore, bound to hold that, as applied to the facts of this case, the prescription of three years bars the plaintiffs’ action for the land covered by the tax title.\nIIT.\nIt only remains to adjust the claims of the parties for rents and improvements in reference to the tracts of land held by defendants, Geo. T. Wilson and Mrs. Margaret Wilson, and which are awarded to the plaintiff.\nThe former opinion of this Court (38 Ann. 213) held that these defendants were possessors in good faith. Hence it follows: 1st, that they are not responsible for the revenues except from the date of the institution of the suit; and 2d, that they are -entitled to recover the amount expended for their improvements, or a sum equal to the enhanced value of the soil resulting therefrom. C. C. art. 508.\nThese defendants have called their author, John Burton, in warranty, and liave prayed for judgment condemning him as warrantor with a reservation of their right to claim from him the purchase price with damages in a, separate action.\nBurton has appeared and admitted his obligations as warrantor, and, in case of judgment evicting his vendees, has asked judgment against *411plaintiffs for the value of improvements put on the lane! by Mm or for the enhanced value of the soil.\nTil ese questions have never been passed on by tbe lower court, and we do not find the evidence in such shape as to enable us satisfactorily to dispose of them. We shall, therefore, remand the case as to these questions.\nIt is, therefore, ordered, adjudged and decreed that there he judgment in favor of defendants, Mrs. Leonard Edgecombe and Diedrich Wischliusen, maintaining their plea of prescription and rejecting plaintiffs’ demand as against them with costs in both courts.\nThat there he judgment in favor of plaintiffs and against the defendants, George T. Wilson and Mrs. Margaret Wilson, declaring the said plaintiffs to be the true and lawful owners of the property referred to in the petition and more fully described in the separate answers of said defendants and condemning said defendants, respectively, to deliver up the lands so held by them into the possession of said plaintiffs ; that the right of plaintiffs to recover the revenues of said properties from the date of institution of this suit be recognized, with the correllative right of said defendants to recover from plaintiffs the amount expended by them in improvements as the enhanced value of the soil resulting therefrom; that there be judgment in favor of defendants and against John Burton, recognizing Ms liability to them as warrantor of their respective titles, and reserving their right to sue Mm in a separate action for reimbursement of the price and for damages ; that Ms right to recover from plaintiffs the amount expended by him or Ms author for improvements or the enhanced value of the soil resulting therefrom he recognized; that the case be remanded to the lower court for further proceedings in order to settle the amounts due on account of rents and improvements between the respective parties; and that the execution of the decree placing plaintiffs in possession of the land in controversy be stayed until after final judgment settling the said questions of rents and improvements ; that defendants, George T. Wilson and Mrs. Margaret Wilson, pay half the costs of che lower court and of this appeal, and that the other half be paid by plaintiffs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"barrow-v-wilson","summary":"A PPEAL from the Twenty-fourth District Court, parish of PlaqueJz.A. mines. Livcmdcm, J. 1. Minority suspends prescription. R. C. C. 3522, 3544, 2. Prescription is suspended against a minor emancipated by marriage until her majority. 33 Ann, 35G; Troplong Prescription, T. 2, No. 740; Marcadé Prescription, art. 2252; C N. Bousquefi Diet. Pres. Tit. Mmeur ; Laurent, p. 32, No, 46. But it commences to run against a minor emancipated by judgment of court under article 385, C. O. from the date of the decree. 36 Ann. 250, 3. Even possessors in good faith are liable for fruits and revenues gathered and received since the time of the owner’s claim for restitution. R. C. C. 3453, 503. 4. The prescriptions in favor of tax titles established by Act No. 101 of 1373, and Í05 of 1874, cannot avail in this case because (1) the former applies ex vi termini to “sales made to satisfy j udgments for taxes; (2) these statutes have been repealed by subsequent laws before plaintiffs attained the age of majority; (Act 96, E. S. 1877 and Act 9, E, S. 1878); and (3) the property in dispute was not assessed in the name of the true owner. 32 Ann. 932. 5. The prescription of three and iive years only cures informalities — and not radical defects and illegalities in the assessment and sale of property for taxes. T5 Ann. if>; 34 Ann. 107; 32 Aim 228; 34 Aim. 407; 35 Ami. 954. The rules laid down in the Civil Code pertain to the legal relations of the people among themselves, and do not apply to the State in its sovereign capacity, especially in tax matters, unless the code so specially provides. Dropsie’s Mackeldy Dw. 1. § 8 ; Justinian 3, § 4; Domafc. tom. 1, chap. 11, §§ 41, 44; Demolombe tom. 1, p. 14; Mourion tom. 1, p. 7, § 10; Marcadé tom. 1, p. 24 ; Duranton tom. i, p. 17. Under all systems of la^y prescription cannot he maintained against the sovereign unless it he established by statute. Prescription does not run against laws of public order. Bacon’s Ahridg. L. 4, 201; Justinian, Ins. Lib. 2, tit. 6; Code tit. 38, §7, 3; Pothier, part 3, § 685; Troplong Pres., chap. 1, Disp. Jen. § 132, 3; Laurent, tom. 32, p. 249 ; Do-mat. chap. 11, No. 40; Laurent, tom 1, p. 83, § 48; Boileaux, tom. 7, p. 743; Laurent, tom. 32, p. 743; Moreau & Carelton's Partidas, p. 373, tit. 29, law 6; White’s Recopilación, vol. 1, pp. 348, 350. If this be correct, then none of the interruptions or suspensions of prescription on account of minority or coverture established by the code are of force in suspending proscription running under a tax law. Under Act No. 42 of 3871, sec. 62, two years possession of real estate, under a tax deed vested title completely aud fully, and under sec. 2, Act No. 101 of 1873, under such a deed, after two years the former owner is deemed to have acquiesced, and waived all in-formalities, in the tax sale, and the deed is made conclusive. But even if it is‘conceded, for the sake of argument hero, that the rules of the Civil Code apply under O. O.. art. 543, in case of public sales, and the prescription of livo years runs on tax sales, and is not suspended by minority and coverture. All informalities and irregularities of tax sales arising subsequent to the decree (assessment), aro governed by the same rulos, and the deeds are placed on the same footing as judicial sales, and are subject to the same rules as sheriff’s deeds “in regard to the five years prescription.” 30 Ann. 1125; 25 Ann, 237; 29 Ann. 115; 35 Ann. 893; 31 Ann. 662; 34 Ann. 205. The eases cited contra by our opponent, 10 Ann. 777, 12 Ann. 748, 14 Ann, 209, do not apply here, as they were simply actions of nullity, and the question of prescription was not involved. In 15 Ann. 15, cited by him, there was a glaring error of assessment. So in 33 Ann. 520; 34 Ann. 108: 33 Ann, 913; was a case “in which the gravest irregularities and absolute nullities bave been propounded and were known to the party purchasing.” 35 Ann. 952 and 34 Ann. 409, were cases of radically defective assessments. In 33 Ann. 873; 23 Ann. 231; 28 Ann. 354; 24 Ann. 454, the question of prescription was not raised. The possessor in good faith, if evicted, is entitled to he reimbursed the amount expended for taxes, improvements, and interest thereon, and the fruits and revenues are his own until the date of the institution of the suit for eviction. Hen. Dig. p. 1195; 14 Ann. 605; lo B. 178; 34 Ann. 1163; 35 Ann. 1086; 13 Ann. 494; 2 B. 137; 2 Ann. 347; 26 Ann. 58S; 18 Ann. 407; 27 Ann. 398; 32 Ann. 927; 32 Ann. 1293; 34 Ann. 705. Especially where the land, as in the case at bar, was unimproved, open land, producing no rent, and to which the tax purchasers contributed its only rental value by their improvements and disbursements. 34 Ann. 1163; 2 B. 137; 16 Ann. 414 2 Ann. 347; 18 Ann. 407."} {"case_name":"Strain v. Miami Daily News, Inc.","case_name_full":"Richard E. STRAIN v. The MIAMI DAILY NEWS, INC., a Florida corporation","case_name_short":"Strain","citation_count":0,"citations":["169 So. 2d 891"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1964-12-15","date_filed_is_approximate":false,"id":7490517,"opinions":[{"ocr":true,"opinion_id":7412864,"opinion_text":"\nPER CURIAM.\nAffirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"strain-v-miami-daily-news-inc"} {"case_name":"Kinchen v. K-Mart Corp.","case_name_full":"Judy KINCHEN and Leroy Kinchen v. K-MART CORPORATION d/b/a K-Mart Discount Store, Continental Insurance Company and Joseph Tubbs","case_name_short":"Kinchen","citation_count":0,"citations":["590 So. 2d 599"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1992-01-06","date_filed_is_approximate":false,"id":7662806,"opinions":[{"ocr":true,"opinion_id":7596998,"opinion_text":"\nIn re K-Mart Corporation d/b/a; K-Mart Discount Store; — Defendants); applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. CA90 1002; Parish of East Baton Rouge, 19th Judicial District Court, Div. “K”, No. 308,390.\nPrior report: La.App., 589 So.2d 28.\nDenied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"kinchen-v-k-mart-corp"} {"case_name":"Monroe v. State","case_name_full":"Christopher Dale MONROE v. STATE of Florida","case_name_short":"Monroe","citation_count":0,"citations":["275 So. 3d 1212"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2019-07-17","date_filed_is_approximate":false,"id":7715564,"opinions":[{"ocr":true,"opinion_id":7651097,"opinion_text":"\nAffirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"monroe-v-state"} {"attorneys":"Kerruish Chapman & Kerruish, for plaintiff in error., Hamilton & Hamilton, for defendants in error.","case_name":"Independent Coal Co. v. Quirk","case_name_full":"Independent Coal Co. v. C. N. Quirk","case_name_short":"Quirk","citation_count":0,"citations":["26 Ohio C.C. Dec. 471","16 Ohio C.C. (n.s.) 546"],"court_full_name":"Cuyahoga Circuit Court","court_jurisdiction":"Ohio, OH","court_short_name":"Cuyahoga Circuit Court","court_type":"ST","date_filed":"1905-10-27","date_filed_is_approximate":false,"id":8536602,"judges":"Henry, Marvin, Winch","opinions":[{"author_str":"Henry","ocr":true,"opinion_id":8509162,"opinion_text":"\nHENRY, J.\nThis proceeding was brought to reverse a judgment for $333.67, recovered at the January, 1905, term of the court of common pleas of Cuyahoga county, by C. N. Quirk and P. F. *472Waltham, partners under the firm name of Northern Ohio Coal ' & Coke Supply Company, an Ohio corporation, in an action upon a contract for the sale and delivery of coal by said partnership to said corporation. The parties here thus stand in the relation opposite to that in which they stood in the court below.\nAfter this proceeding in error was commenced, a motion was interposed by the defendants in error to strike the bill of exceptions from the files, upon the ground that the record shows it to have been filed after the expiration of the time limited by law for such filing. Upon diminution of record being suggested by the plaintiff in error, in this, to-wit, that the certified transcript of docket and journal entries filed herein failed to contain the entry of the order made by the court of common pleas, refusing an amendatory motion for new trial, filed by the defendant below. We entertained this suggestion and permitted the plaintiff in error to procure a correct transcript. Defendant in error’s objection that the transcript could not thus be amended, after the expiration of the four months period allowed by statute for the commencement of a proceeding in error, was subsequently withdrawn, in view of the rule laid down in Falconer v. Martin, 66 Ohio St. 352 [64 N. E. Rep. 430]. The motion to strike the bill of exceptions from the files was, however, still urged upon the ground that the time for filing the same was begun, not from the date of the overruling of the amendment to the motion for a new trial but from the prior date when the original motion for a new trial was refused; and that, on this view, the forty days had expired when the bill was filed.\nThe transcript discloses this state of facts, namely: verdict rendered March 25, 1905; motion for new trial filed March 27; amendment filed March 28; motion overruled and judgment entered March 28; amendment to the motion for a new trial overruled May 12; bill of exceptions filed May 16. It will be observed that both the motion for a new trial and the amendment thereto were filed within the three days allowed by law; that the motion was overruled before that period had expired; that the overruling of the motion took place on the same day as *473the filing of the amendment, and that if we consider the order in which they are recorded in the transcript as indicating the order in which the events occurred, the amendment was filed before the motion was overruled. It should be noted, furthermore, that the amendment alleges a ground for new trial not averred in the original motion, and that it was alleged by the mover and found by the court that this new ground was unknown to the former when the original motion was filed. On this state of facts it is claimed that the motion and the amendment must be deemed to have been acted upon together, and that the subsequent action of the court, in overruling the amendment alone, was therefore vain and nugatory. Or, if we take the view that the order of events, as recorded in the transcript, is not conclusive with respect to actions which took place in a single day, and that the amendment may therefore be deemed to have been filed after the overruling of the original action, it is still urged that the court below could not make a valid order overruling it, for several reasons, viz: first, because it is not competent xo file an amendment to a motion which is no longer pending. Secondly, there is no authority for filing within term, a second motion for a new trial, however styled, after a first motion has been disposed of. Thirdly, the ruling, on the first motion, especially when coupled, as it was, with the entry of judgment on the verdict, as required by the present statute, renders the asserted right to a new trial res judicata, and hence a bar to entertaining a subsequent motion in the same behalf. And if the court, in the exercise of its proper control over its own orders and judgments during term, might have vacated its first order overruling the motion for a new trial and also the judgment that was entered thereon, in order that it might entertain a second motion to the same end, it is argued that no such procedure was observed in this case, and the judgment that was first rendered therein still stands, despite the fact that no judgment could lawfully be entered by the clerk until after the motion for new trial, if any, was finally overruled.\nThe whole question thus presented is, so far as we have discovered, a novel one. Two of the points made, may however, *474be brushed aside at the outset. There is, we think, no significance in the mere name “amendment to motion for new trial,” which need hinder us from treating this as an independent motion, if the ends of justice shall so require. Compare Klonne v. Bradstreet, 7 Ohio St. 323. Neither is there anything conclusive about the order in which independent events are recorded in the transcript, if they took .place on the same day and the record contains no express recital as to the order of their occurrence.\nWe have then this question, whether a party may, within three days after the return of a verdict against him, and after the overruling of his first motion file a second motion for a new trial upon a new ground that was not known by him to exist when his first motion was made. The sections of the Revised Statutes, relative to applications for new trial within term, are 5305 to 5308 inclusive, and they contain no express provision forbidding the practice here in question. Nor does the doctrine of res judicata apply strictly to mere motions even where such motions result in orders that are reviewable. We entertain no doubt that the trial court has full power to permit the filing of a second motion under these circumstances, and while it did not expressly give such permission in the present instance, the fact that it entertained the second motion, by hearing and disposing of it, on its merits, conclusively implies such permission (14 Enc. Pl. & Pr. 176, 183, 184 and 191, and cases cited). The fact that judgment was meanwhije entered by the clerk upon the verdict, whether prematurely or otherwise, under the provisions of Sec. 5326 R. S., is not of itself a bar to an application for a new trial. Applications of that nature may be made even after term under Sec. 5309 R. S., if the ground alleged therefor was not previously discovered by the party applying. It is true the application, if made after term, must be made by petition; but in cases where judgment is entered by the clerk, after three days have elapsed without any motion for a new trial having been filed, it can not be doubted that under 5307 the application for a new trial may still be made at the same term by the mere motion of a party who has been “unavoidably prevented from *475filing the same within such time.” In this ease the motion was filed within three days, and having been heard on its merits by the court below, we hold that the evidence introduced respecting the ground of new trial therein asserted, might be, and in this case was, incorporated into a valid bill of exceptions filed within forty days after the overruling of said motion. Whether the grounds for a new trial, that were asserted only in the original motion, can be thus reviewed, we do not now decide.\nThe bill, which we have thus determined to consider, avers that it contains all the evidence adduced on the hearing of said motion. It is claimed, however, that this averment is plainly untrue, for the reason that the court found as a fact that the ground alleged in the motion was unknown to defendant below when his original motion was filed, whereas there is no evidence in the bill upon the subject. The record is perhaps silent as to the evidence, if any, heard by the court upon the question whether the motion was filed under circumstances which would permit it to be heard at all; but the court having affirmatively found that question in favor of the plaintiff in error, we can not in the present status of this case, and on the mere suggestion of the defendant in error, review that finding. And with respect to the evidence heard concerning the ground asserted for a new trial, we must treat the averment of the bill as conclusive in the absence of any disclosure to the contrary.\nThe bill exhibits the affidavit of the bailiff temporarily acting as such in the trial court when this cause was tried and who was also a witness for the defendant. No other evidence was introduced on the hearing of the motion. He says that, during the progress of the trial, members of the jury discussed with him, and he with them, at intermissions, the general merits of the case, and particularly the meaning of the term “local trade,” which was in issue therein. It is true that he was a witness for the defeated party; but his affidavit avers his familiarity with the coal trade, and we can not presume that the interchange of opinions between him and members of the jury was not prejudicial. Such conduct is grossly improper, and its inevitable tendency is in subversion of justice. We think it *476showed such conduct of the jury as not only to w'arrant but to require a new trial. The' judgment below is accordingly reversed and the cause remanded.\nMarvin and Winch, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"independent-coal-co-v-quirk","summary":"Error.","syllabus":"NEW TRIALS.
1. Second Motion for New Trial Based upon Different and Unknown Ground of First Motion Filed within Three Days.
A second motion for a new trial may be filed within the three days allowed for filing such motions, when it is based upon a different ground and one not known at the time of filing the first motion.
2. Designating Second Motion for New Trial as Amendment to First Motion is Immaterial.
It is immaterial that a second motion asking for a new trial, upon a different ground from that set forth in the first, is designated by the pleader as an amendment to the first motion.
3. Forty Days for Filing Bill of Exceptions Runs from Overruling Second Motion for New Trial.
Where there has been a second motion for a new trial filed in season, the forty days allowed for filing a bill of exceptions will date from the overruling of the second motion, notwithstanding the overruling of the first motion and entering of judgment on the same day upon which the second motion was filed.
"} {"attorneys":"Roderick Wilson, pro se., Michael J. Reynolds, Orleans Parish Dist. Atty.’s Office, New Orleans, La., for respondent.","case_name":"Wilson v. Lensing","case_name_full":"Roderick WILSON v. C.M. LENSING, Acting Warden","case_name_short":"Wilson","citation_count":0,"citations":["755 F. Supp. 153"],"court_full_name":"District Court, E.D. Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"E.D. Louisiana","court_type":"FD","date_filed":"1991-01-16","date_filed_is_approximate":false,"id":8707938,"judges":"Mentz","opinions":[{"author_str":"Mentz","ocr":true,"opinion_id":8691123,"opinion_text":"\nORDER AND REASONS\nMENTZ, District Judge.\nThis matter was referred to a United States Magistrate for the purpose of conducting hearings, including evidentiary hearings, if necessary, and submission of proposed findings of fact and recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1) and (c), and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases.\nUpon a review of the record, including the state court record submitted by the respondent, the Court has determined that it is sufficient for the purpose of adjudication of petitioner’s claims, that a federal evidentiary hearing is not necessary, and that the petition should be dismissed for the following reasons.\nAccordingly, the order of reference to the Magistrate is hereby revoked and it is ordered that the petition be denied.\nRoderick Wilson, petitioner herein, is a state court prisoner currently incarcerated at the Washington Correctional Institute, Angie, Louisiana. On August 18, 1977, Wilson was convicted of two counts of armed robbery after trial, by jury, in the Criminal District Court for the Parish of Orleans, State of Louisiana. Petitioner was ultimately sentenced to thirty-five years imprisonment as to each of the two counts, the sentences to run concurrently.\nWilson’s convictions and sentences were affirmed on direct appeal. State v. Wilson, 360 So.2d 166 (La.1978). Petitioner’s most recent state applications for post-conviction relief, wherein he urged the same claims for relief presented in the above-captioned matter, were denied by the state trial court and the Louisiana Supreme Court. State ex rel. Wilson v. Becker, 541 So.2d 889 (La.1989). As conceded by the State, Wilson has exhausted available state court remedies and is properly before the Court. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).\nIn the instant petition under 28 U.S.C. § 2254, Wilson alleges a deprivation of his due process rights in that he was adjudicated and sentenced as a multiple offender subsequent to the filing of an appeal with the state trial court. Petitioner further complains that he was not afforded a full, fair, and adequate hearing by the state courts on the claim for relief he now urges and that the state courts erroneously applied an amendment to LSA-C.Cr.P. Art. 916 to the facts of his case, in violation of the Ex Post Facto Clause.\nThe instant petition is not Wilson’s first in this Court seeking habeas corpus relief. In May of 1981, he filed the proceeding entitled Roderick G. Wilson v. Frank C. *155Blackburn, Warden, Civil Action No. 81-1868 “I”(5), asserting therein six separate claims for relief. On September 24, 1981, the Magistrate to whom the case was assigned issued a Report and Recommendation recommending that Wilson’s petition be dismissed as meritless. On September 28, 1981, the District Court Judge adopted the Magistrate’s Report as the Court’s opinion and ordered that the petition be dismissed. Judgment was accordingly entered on September 30, 1981 and no appeal was taken.\nIn its response to the present petition, the State argues that it is successive within the meaning of Rule 9(b), Rules Governing Section 2254 Cases in the United States District Courts, and that it should be dismissed as such.1 Based on a review of the state court record, because the Court is unable to definitively conclude that Wilson had actual knowledge of the claims he now urges at the time he filed Civil Action No. 81-1868, Passman v. Blackburn, 797 F.2d 1335, 1342-44 (5th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1609, 94 L.Ed.2d 794 (1987), and because the Court is of the opinion that the grounds presently advanced by Wilson do not entitle him to the relief he seeks, we shall pretermit ruling on the applicability of Rule 9(b) and proceed to the merits of petitioner’s claims.\nAs noted earlier, Wilson was tried on two counts of armed robbery and convicted on August 18, 1977. During the course of his trial, Wilson admitted to having been previously convicted of possession of stolen property in 1976. Sentencing on the two counts of armed robbery went forward on September 8, 1977. At the start of that proceeding, the defense, anticipating the State’s intention to seek enhancement of Wilson’s sentences under LSA-R.S. 15:529.1 based on the 1976 conviction, moved “... for a speedy sentencing under the habitual offender statute ...” (Tr. of 9-8-77, pg. 2). The judge denied that request as premature, noting that no multiple offender bill of information had been filed by the State as of that date. The trial judge thereupon sentenced Wilson on the armed robbery convictions to concurrent terms of thirty-five years at hard labor without benefit of parole, probation, or suspension of sentence. Following the lodging of an oral motion for appeal, counsel stipulated that if the State were to file a multiple offender bill of information based on the 1976 conviction, Wilson would plead guilty to it. The State filed the multiple offender bill of information on September 20, 1977; Wilson was arraigned and pled not guilty to the multiple offender charge on September 21, 1977. On the following day, September 22, 1977, the trial judge granted Wilson’s written motion for appeal.\nThe hearing on the multiple offender charge was conducted on October 5, 1977. At the start of that hearing, defense counsel recalled the stipulation entered into on September 8, 1977, and then brought an oral motion to quash the multiple offender bill, arguing that the State had delayed bringing the bill to deprive Wilson of the benefit of the law governing the award of “good-time” credits as it existed prior to its amendment in 1977.2 The trial court denied the motion to quash and, on the basis of the stipulation, found Wilson guilty of being a second offender under R.S. 15:529.-1, but only as to the first of the two counts of armed robbery. Accordingly, the trial judge vacated the thirty-five year sentence he had previously imposed with respect to the first count of armed robbery and imposed a sentence of like length under the multiple offender statute. The original thirty-five year sentence on the second count was allowed to stand and the court *156again ordered that the sentences were to be served concurrently.\nBy Act 851 of 1986, the Louisiana Legislature amended Article 916 of the Louisiana Code of Criminal Procedure to add thereto a paragraph designated as number eight, as follows:\n\nArt. 916. Divesting of jurisdiction of trial court\n\nThe jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except to\n(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.\nPrior to the 1986 amendment, Article 916 contained no specific provision preserving the trial court’s jurisdiction over multiple offender proceedings subsequent to the entry of a written order of appeal. Despite the absence of such a savings clause, the trial court’s post-appeal jurisdiction over multiple offender proceedings was not seriously challenged throughout the 1970’s. In fact, just as was litigated in Wilson’s direct criminal appeal, the trend at that time was to the contrary, to require prosecutors to initiate recidivist proceedings as expeditiously as possible following a conviction on the underlying offense irrespective of the filing of an appeal. Wilson, 360 So.2d at 172 (citing State v. Bell, 324 So.2d 451 (La.1975) and State v. McQueen, 308 So.2d 752 (La.1975)).\nOn May 28, 1980, the Louisiana Supreme Court rendered its per curiam decision in State v. Sharper, 383 So.2d 1248 (La.1980). Relying on the pre-amendment version of Article 916, the Supreme Court ruled that a trial court was without jurisdiction to enhance a defendant’s sentence from twenty-one to forty-nine and one-half years following the “perfect[ingj” of an appeal to that Court. Subsequent cases reached the same result. State ex rel. Tuesno v. Maggio, 441 So.2d 1226 (La.1983); State v. Lutz, 491 So.2d 716 (La.App. 4th Cir.1986); State v. Thomas, 479 So.2d 28, 29 (La.App. 4th Cir.1985).\nNot long after the amendment to Article 916 in 1986, the question arose as to whether the article as amended should be applied retroactively to uphold the validity of multiple offender proceedings where an order of appeal had been entered prior to the sentencing of the defendant as a habitual offender. Pursuant to an appellate court’s request, the Louisiana Supreme Court granted certification on that very question and answered it in the affirmative in State v. Abbott, 508 So.2d 80 (La.1987). Since that time, Abbott has been applied to validate multiple offender sentencings which occurred subsequent to the entry of an appeal but prior to the amendment to Article 916. See State v. Williams, 522 So.2d 1171, 1173 (La.App. 4th Cir.1988); State v. Abraham, 521 So.2d 511, 512 (La.App. 4th Cir.1988); State v. Camp, 517 So.2d 1202, 1204 (La.App. 4th Cir.1987); State v. Hooks, 514 So.2d 597, 599 (La.App. 4th Cir.1987).\nThe basis of petitioner’s claim in the instant matter is that he was sentenced as a multiple offender at a time when the trial court was divested of jurisdiction under Article 916 by virtue of the filing of an order of appeal. Wilson additionally complains that the 1986 amendment to Article 916 was retroactively applied by the state courts to uphold his habitual offender sentencing in violation of the Ex Post Facto Clause.3\nThe prohibition on ex post facto laws serves dual purposes, to restrain legislatures and courts from arbitrary and vindictive action and to prevent prosecution and punishment without fair warning. Miller v. Florida, 482 U.S. 423, 429-30, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). *157For a criminal law to fall within the ex post facto prohibition, “... two critical elements must be present: first, the law ‘must be retrospective, that is, it must apply to events occurring before its enactment’; and second, ‘it must disadvantage the offender affected by it.’ ” Miller, 482 U.S. at 430, 107 S.Ct. at 2451 (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). However, “... no ex post facto violation occurs if the change in the law is merely procedural and does ‘not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’ ” Miller, 482 U.S. at 433, 107 S.Ct. at 2452-53 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884)).\nApplying the above precepts to the precise facts of this case, the Court is unable to conclude that a violation of the Ex Post Facto Clause has occurred to the detriment of Wilson’s due process rights. The amendment to Article 916 did not increase the punishment which could be imposed following a conviction for armed robbery nor that which a defendant may receive if subsequently adjudicated a second felony offender. Likewise, the amendment did not alter the State’s burden of proof or the elements which it must establish to sustain a conviction for armed robbery or one under the multiple offender statute. The pre-amendment version of Article 916 merely suspended the trial court's ability to sentence a defendant as a multiple offender during the pendency of his direct criminal appeal. In Wilson’s case, the written order of appeal was entered on September 22, 1977 and his convictions and sentences were affirmed by the Louisiana Supreme Court on June 16, 1978. The trial court was thus free to sentence Wilson as a multiple offender after the latter date. Wilson made no challenge to the timeliness of his sentencing under R.S. 15:529.1 until after Article 916 was amended and Abbott was decided. Moreover, subsequent to Wilson’s original sentencing on the two counts of armed robbery, he himself moved for a speedy sentencing under the multiple offender statute. He may not now complain that his sentencing under R.S. 15:529.1 was conducted too hastily. In addition, it must be recalled that Wilson was convicted of two counts of armed robbery but was only multiple billed as to one of those counts, for which he received the identical sentence that was imposed on the underlying conviction. Petitioner therefore makes no showing of suffering any substantial “disadvantage” or prejudice as a result of being sentenced as a multiple offender on October 5, 1977 as opposed to a date subsequent to June 16,1978. This claim must be rejected.\nPetitioner’s second claim is that he was not afforded a full, fair, and adequate hearing by the state courts on his first claim for relief and that the state courts erred in retroactively applying Article 916(8) to the facts of his case.\nThe Louisiana Supreme Court has determined that the 1986 amendment to Article 916 should be applied retroactively to uphold the validity of multiple offender proceedings where orders of appeal had been entered prior thereto. State v. Abbott, 508 So.2d 80 (La.1987). This considered conclusion of the coequal state judiciary should be given great weight. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985). Because the Court is of the opinion that the amendment is procedural in nature and not an ex post facto law, the state courts’ application of the amendment to the facts of Wilson’s case is not violative of due process concerns. See Collins v. Youngblood, — U.S. -, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Moreover, the state court proceedings of which petitioner complains are collateral in nature and not direct challenges to the validity of his conviction. The state courts’ alleged error in the conduct of their habeas proceedings presents no constitutional violation. See Byrne v. Butler, 845 F.2d 501, 509-10 n. 8 (5th Cir.), cert. denied, 487 U.S. 1242, 108 S.Ct. 2918, 101 L.Ed.2d 949 (1988); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987).\n*158Having concluded that the grounds raised in the instant petition are without merit and that petitioner is not entitled to an evidentiary hearing, accordingly,\nIT IS ORDERED that the petition of Roderick Wilson be and is hereby dismissed with prejudice.\n\n. Rule 9(b) of the Rules Governing Section 2254 Cases provides as follows:\nSuccessive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.\n\n\n. The timeliness of the filing of the multiple offender bill as well as the effect of the amendment to the \"good-time” law were litigated in the context of Wilson’s direct appeal, Wilson, 360 So.2d at 170-72, and in his prior federal habeas proceeding, Civil Action No. 81-1868.\n\n\n. The Constitutional prohibition against the enactment of ex post facto laws applies only to state legislatures. The appropriate inquiry in this case is whether the state courts' application of an allegedly ex post facto law to the facts of petitioner’s case violated his due process rights. The due process analysis of judicial action is interchangeable with the ex post facto analysis of analogous legislative action. Rubino v. Lynaugh, 845 F.2d 1266, 1271 (5th Cir.1988).\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"wilson-v-lensing"} {"attorneys":"Henry J. O’Bryan (J. Grattan O’Bryan, on the brief), for plaintiff in error., Ralph Talbot (John H. Denison and William H. Wadley, on the brief), for defendant in error.","case_name":"Harkison v. Harkinson","case_name_full":"HARKISON v. HARKINSON","case_name_short":"Harkison","citation_count":0,"citations":["101 F. 71"],"court_full_name":"Court of Appeals for the Eighth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Eighth Circuit","court_type":"F","date_filed":"1900-03-26","date_filed_is_approximate":false,"headnotes":"1. Limitations — Action for Fraud — Colorado Statute.
By a statute passed in Colorado in 1801 (Sess. Laws 1861, p. 341) it was provided that actions on the case should be brought within six years after the cause ol’ action accrued, and bills for relief on the grounds of fraud within three years from the time of the discovery of the fraud. In 1877 the state adopted a Code of Civil Procedure, by which the distinction between actions at law and suits in equity was abolished. Held, that the change in the form of adion did not affect the operation of the prior statute of limitations, but whether an action based upon fraud was governed by the limitation of three or six years depended on whether it was in substance an. action on the case or for equiiable relief.
Si TRrAi-^AcTrow of Court — Misleading Remarks.
An expression of opinion by the court on overruling a motion for a non-suit at the close' of plaintiff’s case, as to the nature of the action, which. was at variance with- the instructions subsequently given to the jury, and which'-may have misled the defendant to his prejudice in introducing his evidence, is ground for reversal of a judgment against the defendant.
Thayer, Circuit Judge, dissenting.
","id":8757472,"judges":"Caldwell, Sanborn, Thayer, Tttayeb","opinions":[{"author_str":"Sanborn","ocr":true,"opinion_id":8740764,"opinion_text":"\nSANBORN, Circuit Judge.\nOn June 30, 1897, the defendant in ■error, David Harkinson, brought an action against the plaintiff in error, Charles T. Harkison. The ground of his complaint was that on October 12, 1S92, he delivered to Harkison, as his agent, $8,000, and directed him to purchase with it the stock of the Anaconda Gold-Mining Company; that on October 18, 1894, Harkison bought 8,000 shares of the stock, which was of no greater value than $4,000, and paid $4,000 for it; that, maliciously and with willful deceit, he represented to the defendant in error that this stock was worth $8,000, and that he had paid $8,000 for it; and that he retained $4,000 of the money sent him by his principal, and converted it to his own use. The prayer of the complaint was that the defendant in error might have judgment for $10,000 and costs, that he might have execution against the body of the plaintiff in error, and that the plaintiff in error might be imprisoned for a term not exceeding one ■ year, or until the judgment was paid. The latter part of this ■prayer is based on section 2164, Mills’ Ann. St. Colo., which provides that in any civil action founded upon tort, in which there is a verdict for the plaintiff, and the jury shall find that in committing the tort complained of the defendant w7as guilty of malice, fraud, or willful deceit, the plaintiff may have execution against the body of the defendant. To-this complaint the plaintiff in error answered. In his answer he denied the allegations of the complaint, and averred that on October 12, 1892, the defendant in error purchased of him the stock of- the gold-mining company in controversy, for the agreed sum 'of $8,000, and paid him for it. There was a trial of the issue before the jury, and a verdict and judgment for the defendant in error for $5,520.24 and costs; that execution should issue therefor, and that, upon its being returned unsatisfied, the defendant in error should have execution against the body of the plaintiff in error; and that he should be imprisoned in the common jail of Arapahoe county for the full period of one year unless the judgment should be sooner paid.\nOne of the chief specifications of error is that this action was barred by the statute of limitations of the state of Colorado. This contention is founded upon the following provisions of the statutes: In 1861 the legislature of the territory of Colorado enacted a statute *73for the limitation of actions, which provided that actions on the case, except actions for slanderous words and for libels, should he commenced within six years next after the cause of action should accrue, and not afterwards, but that hills for relief on the ground of fraud should he filed within three years after the discovery by the aggrieved party of the facts constituting such fraud, and not after-wards. Sess. Laws Colo. 1861, pp. 341, 342, §§ 1,12. These provisions of the statute have continued in force in the territory and state of Colorado from .1861 to the time of the commencement of this action. Mills’ Ann. St. Colo. 1891, §§ 2900, 2911. In 1877 the legislature of the state of Colorado adopted a Code of Civil Procedure, the first section of which contained this provision: . . ;\n“That the distinction between actions at law and suits in equity and the distinct forms of actions and suits heretofore existing are abolished and there shall be in this slate but one form of civil action for the enforcement or protection 'Of private rights, and the redress or prevention of private wrongs, which shall be the same at law and in equity, and which shall be denominated a civil1 action, and which shall be prosecuted and defended as prescribed in this act.” Code Oiv. Proc. Oolo. 1877.\nIt is claimed that the abolition of forms of action abolished the six-years limitation upon actions on the case for fraud, and extended to them the three-years limitation upon bills for relief on the ground of fraud. This claim, however, does not seem to be supported either by reason or by authority. Forms of action were abolished by the provisions of the Code, hut the natures of actions at law and hills in equity remain as dear and distinct as ever. There is nothing in the Code to indicate that it was the intention of the legislature by its enactment to modify or repeal any of the provisions of the statutes of limitations which were then in force in the state of Colorado. It would he as reasonable to suppose that the six-years limitation prescribed for an action on the case was extended to hills for relief on the ground of fraud, as to imagine that the three-years limitation upon the latter was applied to the former. Any attempt to construe or interpret the statutes of limitations of this state upon any such theory must result in nothing but doubt, uncertainty, and conjecture: The truth is that the adoption of the Code had no effect upon the statutes of limitation of the state which were then in force, and which have been repeatedly re-enacted, and that actions on the case for fraud remain limited to six years, while bills lor relief on that ground are barred in three years. The suit at bar is an action on the case. It was not for slanderous words or for libel. It was commenced within six years after it accrued. It was governed by section 2900, Mills’ Ann. St., and it was rightly sustained by the court below.\nAfter the defendant in error had produced his evidence and rested his case, the counsel for the plaintiff in error moved for a nonsuit on the ground that the action was baiTed by the limitation of three years. Upon the presentation of this motion the following colloquy resulted:\n“The Court: The case does not necessarily stand upon any question oí fraud or deceit. If the defendant was the agent of the plaintiff for jmrehasing stock, and lie received more money than ho laid out in the purchase, he may be liable for the excess in an ordinary action of assumpsit. It does not *74stand upon any idea of fraud or deceit at all, and -whether he was agent or not is a question for the -jury-. We are not to determine that. That is a question for the jury to decide. I do not think there is any question of the statute of limitations in relation to the accusations of fraud and deceit in the case. It is true, it is averred in the complaint that the defendant fraudulently converted this money to his own use; but that does not make the case an action in tort, and for the recovery of damages for a tort. The case stands more in the way of an ordinary action of assumpsit for money had and received to the plaintiff’s use. Mr. O’Bryan: In regard to the suggestion as to that, I might say that, if your honor will take the trouble to read the complaint, your honor will find'that the entire action in this complaint sounds in tort; that they have asked in this matter for the arrest of the defendant’s body, which alone, under the statutes of the state of Colorado, could sound in tort. The doctrine that has been maintained is that the action is tort, and sometimes we must, even in the presence of the Code, look to the question of the prayer to find out what their action is. If it is conceded this is a simple action of assumpsit, and your honor holds this an action of assumpsit, and not of tort, I would like to have that holding converted into a finding. The Court: I think it stands in that way, sir. Mr. O’Bryan: Then I ask that the question as to the arrest of the body be absolutely stricken from the complaint. The Court: We will come to that I wish to have it noted that Mr. O’Bryan’s motion is overruled.”\nThe defendant thereupon proceeded to introduce his evidence, and at the close of the trial the court charged the jury in this way:\n“You are instructed that this is an action on the case, founded upon tort; and, 'if you shall find for the plaintiff herein, you may state in your verdict that, in committing the tort complained of, the defendant was either guilty of fraud or willful deceit, as you may believe the case to be from the evidence.”\nUnder this instruction the jury found that, in committing the wrong complained of, the plaintiff in error was guilty of willful deceit, and the judgment of imprisonment followed. The statement of the court at the close of the case of the defendant in error that the’suit did.not stand upon any idea of fraud or deceit at all; that the allegation in. the .complaint that the defendant fraudulently converted the money to his own use did not make the case an action in tort, and for the recovery of damages for a tort; and its statement that, in its opinion, this was a simple action of assumpsit, and not an action of tort, — were well calculated to lead the plaintiff .in error to suppose that the question of deceit and frafid was eliminated from the case. He proceeded to present his evidence, and a careful perusal of it fails to show that any testimony was elicited regarding the intent of the plaintiff in error to deceive or defraud the defendant in error. His counsel insist that they put in his defense in reliance upon this ruling of the court, and asked no questions relative to the intent, knowledge, or purpose of their client, because they relied upon the. statement of the court that the charge of fraud and deceit was no longer in issue. After the evidence had been introduced, however, the court instructed the jury that they might find the existence of deceit and fraud, and rendered a judgment of imprisonment upon that finding. This was undoubtedly a surprise to the plaintiff in error and his counsel, and the declaration of the court at the close of the case of the defendant in error probably misled them, and justified them in omitting any evidence upon this issue. For this reason, .the trial was not a fair one, and the judgment must be reversed, and a new trial granted.\n- -There-is one item of testimony to which we call attention, as the *75case is to be tried again. For tlie purpose of laying the foundation for impeachment, the plaintiff in error was asked if he did not state to Miss Mary Harkinson that he had none of his stock for sale, a.nd he answered that he did not think he did. Miss Buck was then permitted to testify, over the objection of the plaintiff in error, that he had refused to buy any stock for her, and had refused to sell any of his stock to her. This was not competent impeaching testimony, because it was on an immaterial issue, and because Harkison had not testified that he refused to buy for or sell to Miss Buck. The judgment is reversed, and the case is rema nded for a new trial.\n","per_curiam":false,"type":"020lead"},{"author_str":"Tttayeb","ocr":true,"opinion_id":8740765,"opinion_text":"\nTTTAYEB, Circuit Judge\n(dissenting). I deem it wholly unnecessary to reverse the judgment in this case because of the colloquy between the court and counsel which is referred to in the majority-opinion. The complaint on which the case was tried charged fraud, in that the defendant below had received $8,000 from the plaintiff below to buy stock, and had reported that he had expended it in purchasing 8,000 shares at $1 per share, when it only cost 50 cents I>er share. The proof was in accordance with the allegations, and was of such a nature as would have warranted any jury in finding, as they did, that the defendant “was guilty of willful deceit” Fraud inhered in the transaction as charged and proven, although the action might he treated as one in assumpsit on the case; and the defendant had ample opportunity to exculpate himself, which he failed to do to the satisfaction of the jury. No evidence which he might have offered as to what his intent was would have served to overcome the inient which the law presumes from the nature of his acts. I think the judgment should not be disturbed.\n","per_curiam":false,"type":"040dissent"}],"precedential_status":"Published","slug":"harkison-v-harkinson","summary":"In Error to the Circuit Court of the United States for the District of Colorado."} {"attorneys":"Dennis R. Powell, Maurice R. Jourdane, David H. Kirkpatrick, Richard A. Gonzales, Neil M. Levy, California Rural Legal Assn., Salinas, Cal., for plaintiffs., Thomas C. Lynch, Atty. Gen. and Victor D. Donenberg, Deputy Atty. Gen., San Francisco, Cal., for defendants.","case_name":"Rivas v. Cozens","case_name_full":"Celestino V. RIVAS v. Robert C. COZENS","case_name_short":"Rivas","citation_count":0,"citations":["327 F. Supp. 867"],"court_full_name":"District Court, N.D. California","court_jurisdiction":"California, CA","court_short_name":"N.D. California","court_type":"FD","date_filed":"1971-05-06","date_filed_is_approximate":false,"id":8804579,"judges":"Conti, Hamlin, Sweigert","opinions":[{"ocr":true,"opinion_id":8788805,"opinion_text":"\nMEMORANDUM OF DECISION\nPER CURIAM.\nPlaintiffs, who had been involved in an automobile accident and whose driving privileges were thereafter suspended under the California Financial Responsibility Law (Cal. Vehicle Code, § 16000 et seq.) pending their deposit of cash security amounts fixed by the Department of Motor Vehicles, bring this suit under Civil Rights Act, 42 U.S.C. § 1983, to challenge the constitutionality of the California statute under which the Department acted.\nFor this reason, a three judge court was convoked as required by 28 U.S.C. §§ 2281 and 2284.\nThe California Financial Responsibility Law, Vehicle Code, § 16000 et seq., amended 1967, requires that the driver of every motor vehicle which is in any manner involved in an accident originating from the operation of a motor vehicle on any street or highway which accident has resulted in damage to the property of any one person in excess of $200 or in bodily injury or in the death of any person, shall within fifteen (15) days after the accident report the accident on a form approved by the Department to the office of the Department.\nUnless the driver involved in an accident described in § 16000 complies with one of the conditions of exemption specified in § 16050 (not applicable in this case because plaintiffs admit their inability to establish any of the available exemptions) the driver shall deposit security in a sum which shall be sufficient in the judgment of the Department to satisfy any final judgment in any amount for bodily injury or in excess of $200 for property damage resulting from such accident as may be recovered against such driver.\nThe Department determines the amount of security deposit upon the basis of reports or other evidence submitted to it but shall not require a deposit of security for the benefit of any person when evidence has not been submitted by such person within fifty (50) days following the date of the accident.\nWhenever a driver has failed within fifty (50) days after an accident to establish his exemption from security and has failed to deposit security within ten (10) days after notice by the Department specifying the amount of security, the Department shall suspend the privilege of the driver to drive a motor vehicle. The suspension becomes effective not later than the seventy-sixth (76) day after receipt of the accident report by the Department.\nPlaintiffs contend (1) that insofar as the statute denies a prior hearing before suspension, it deprives the suspended driver of the procedural due process of law required by the Fourteenth Amendment; (2) that, since, according to plaintiffs, all other drivers faced with suspension of their driving privileges are afforded prior hearings, the statute, insofar as it denies a prior hearing to uninsured motorists, discriminates against uninsured motorists as a class and thereby deprives them of equal protection of the law in violation of the Fourteenth Amendment; (3) that insofar as the statute results in the suspension of driving privileges for failure to deposit security, it discriminates against poor persons as a class and thereby deprives them of equal protection of the law.\n*869In support of their due process contentions plaintiffs cite and rely on such Supreme Court cases as Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), holding that a welfare recipient is entitled to a prior hearing before benefits can be terminated and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), holding unconstitutional a statute permitting garnishment of a debt- or’s wages prior to judgment; also such similar rulings as La Prease v. Raymours Furniture Co., 315 F.Supp. 716 (N.D.N.Y.1970), holding unconstitutional a New York statute permitting pre-hearing seizures of property by creditors; Klim v. Jones, 315 F.Supp. 109 (N.D.Cal.1970) holding invalid the California innkeepers lien; Davis v. Toledo Metropolitan Housing Authority, 311 F.Supp. 795 (N.D.Ohio 1970), enjoining a housing authority from refusing a hearing to a person concerning his eligibility for public housing; Harrell v. Harder (D.C.Conn.1970), enjoining suspension of food stamp privileges without a prior hearing; Java v. California Dept. of Human Resources Development, 317 F.Supp. 875 (N.D.Cal.1970), invalidating revocation of unemployment insurance benefits without a prior hearing; Doyle v. Finch (D.C.Texas 1970), holding invalid a termination of social security benefits without a public hearing.\nAs more specifically applicable the pending case, plaintiffs cite and rely on People v. Nothaus, 147 Colo. 210, 363 P.2d 180 (1961), declaring the Colorado Financial Responsibility Law unconstitutional insofar as it permitted suspension of driving privileges without an opportunity to be heard; Miller v. DePuy, 307 F.Supp. 166 (E.D.Pa.1969), declaring the Pennsylvania Financial Responsibility Law unconstitutional upon the same ground; Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963), upholding the Arizona Financial Responsibility Law but only with the proviso that there is an implication in the statute that, if requested, an aggrieved person shall have an administrative hearing before the suspension becomes effective; also Williams v. Sills, 55 N.J. 178, 260 A.2d 505 (1970) upholding the New Jersey Financial Responsibility Law with the same proviso.\nOn the other hand, defendants, represented by California’s Attorney General, cite and rely on cases upholding validity of similar financial responsibility laws notwithstanding absence of provision for a hearing prior to suspension of license, e. g., Escobedo v. State of California, etc., 35 Cal.2d 870, 222 P.2d 1 (1950); Orr v. Superior Court, 71 Cal.2d 220, 77 Cal.Rptr. 816, 454 P.2d 712 (1950); Latham v. Tynan, 435 F.2d 1248 (2d Cir. 1970); Trujillo v. DeBaca, 320 F.Supp. 1038 (D.C.N.M., 1970); Llamas v. Department of Transportation, etc., 320 F.Supp. 1041 (E.D.Wis.1969).\nThe Supreme Court of California in Escobedo v. State of California, etc., supra, upheld the constitutionality of the suspension provision of the State’s Financial Responsibility Law against the challenge that there was no provision for prior hearing, holding that the statute did not violate due process in that respect because such a suspension would be reasonably justified by a compelling public interest; that such interest appeared from the obvious carelessness and financial irresponsibility of such a substantial number of drivers that to require a hearing in every case, before suspension of a license, would substantially burden and delay, if not defeat, the operation of the law.\nThe Supreme Court of California in Orr v. Superior Court, supra, construing its previous decision in Escobedo, supra, has further interpreted the California Financial Responsibility Law as meaning that, before ordering suspension of the license of a driver involved in an accident, the Department must determine whether there is a reasonable possibility that a judgment may be recovered against the driver and so must consider culpability; that the Department should find no particular difficulty in determining from accident reports, which involved drivers are obligated to make *870(Section 16000), and from other evidence submitted to it (Section 16020) whether there is a reasonable possibility that a judgment may be l-ecovered against the driver based on his possible culpability; that the Department need not decide as between conflicting versions of the accident but only whether there is any credible evidence on the basis of which, if believed by a trier of fact, the driver could reasonably be considered culpable; that, further, an order suspending a license is subject to a court review to determine whether the evidence before the Department supports its implied finding that there is reasonable possibility that a judgment for damages will be rendered against the driver.\nLatham v. Tynan, supra, dealing with the precise question here presented, goes to the extent of holding that due process and equal protection claims similar to those of plaintiffs here do not present even a substantial enough constitutional question to have required three judges at the District Court level.\nTrujillo v. DeBaca, supra, a three judge district court, distinguishing Goldberg v. Kelly and Sniadach v. Family Finance Corp., held that there was no merit to claims similar to those presented in our pending case.\nIn Llamas v. Department of Transportation, etc., a three judge district court, citing Escobedo v. State of California, etc., supra, held that there was no merit to the due process argument because the statute there, although authorizing suspension without a hearing, did provide, (as the California statute has been held in Orr v. Superior Court to provide) for a judicial review after suspension, and, further, because there was adequate and compelling need for dispensing with pre-suspension hearings that might obstruct the purposes of the statute; further, that there was no merit to the equal protection claims because the classification is obviously reasonable.\nSo far as the present state of the law on the pending issue is concerned, we note that two of the cases, relied on by plaintiffs as holding Financial Responsibility Laws invalid for lack of pre-suspension hearing, do not really support plaintiff’s arguments.\nWilliams v. Sills, supra, expressly accepts the California cases of Escobedo v. State of California, etc., supra and Orr v. Superior Court, supra, differing from these cases only in the respect that the court in Williams v. Sills seems to have interpreted the New Jersey Financial Responsibility Law as requiring an administrative hearing prior to suspension.\nOn this point, however, the Chief Justice, concurring said (260 A.2d p. 510): “I do not quarrel with an interpretation of the statute which calls for an administrative hearing in which the critical consideration will be the absence of a possibility of fault, but I have no doubt the Legislature need not provide for that inquiry.”\nIt appears, therefore, the ruling in Williams was based upon grounds of legislative intent rather than any constitutional requirement for a pre-suspension administrative hearing.\nMiller v. DePuy, supra, is quite distinguishable from our pending case. There the district judge considered a revocation of driver license for non-payment of a motor vehicle accident judgment rendered against the owner of a truck upon respondeat superior grounds. The suspension was held to deprive the owner, who had been meanwhile discharged in bankruptcy from the judgment, of due process because the statute there (unlike the California statute as construed in Orr, supra), made no provision for judicial review and for the further reason that the suspension involved the driving rights, not of the driver involved in the accident, but of a non-driving owner against whom the judgment was rendered, not for any personal negligence, but vicariously upon the theory of respondeat superior. The court noted this as a “crucial” distinction from such cases as Kesler v. Department of Public Safety, etc., 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (1962) upholding Utah’s Financial Responsibility Law as serving *871valid state rights, and Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1951) upholding New York’s Financial Responsibility Law against due process arguments.\nSo far as we can find, the Colorado case of People v. Nothaus, supra, is the only case which unqualifiedly holds unconstitutional on grounds of due process a financial responsibility law comparable to California’s and those of other states in which constitutionality has been upheld.\nThe weight of authority, therefore, seems to support the constitutionality of the statute as against the argument of procedural due process.\nPlaintiffs contend, however, that cases upholding suspension of license without prior hearing have not considered the case progeny following Goldberg v. Kelly, supra, and Sniadach v. Family Finance Corp., supra, and teaching generally that a due process hearing must be afforded prior to the deprivation of any basic right.\nIt is true that freedom to make use of a motor vehicle as a means of getting about from place to place, whether in pursuit of business or pleasure, is a liberty which under the Fourteenth Amendment cannot be denied or curtailed by a state without due process of law. (See, Wall v. King, 206 F.2d 878, 882 (1st Cir. 1953).\nWe are of the opinion, however, for reasons hereinafter set forth that, although no provision is made in the California statute for a personal, oral hearing of the kind held necessary in Goldberg v. Kelly, supra, due process for the suspension of driver privilege under the statute, as interpreted by the Supreme Court of California, is sufficiently provided.\nIt will be noted that under the California Financial Responsibility Law all parties involved in the accident file reports containing all the evidence they have in support of their respective versions of the accident. The Department then evaluates this evidentiary material, not to determine the ultimate question of culpability, but only to determine whether there is a reasonable possibility of a judgment being rendered against any of the parties. Orr v. Superior Court, supra. If a driver is not exempt, the Department then fixes and requires the deposit of security. Vehicle Code, § 16020. Under Vehicle Code, § 16084 the Department may modify its determination of the amount of the deposit upon receiving information that the original determination was excessive.\nIn other words, an opportunity is given to each party to present evidence on the only issues involved, i.e., (1) whether the party was involved in the traffic accident; (2) whether the party comes within any of the exemptions; (3) whether there is' a reasonable possibility that a judgment may be rendered against a party, and (4) the amount of security.\nSince the ultimate question of culpability is not involved there is no need to provide for a further, full scale oral hearing for the parties to administratively litigate that issue.\nWe also note that it has been held by the California courts that a person so required to deposit security has a right to judicial review of the question whether reasonable possibility of rendition of a judgment against him has been shown. Orr v. Superior Court, supra.\nThe question, then, is really whether the state can require drivers to carry insurance or post security as a condition of the driver privilege without regard to culpability and without any hearing beyond the hearing permitted by the California law.\nIt has been long established that financial responsibility can be required of all drivers by requiring compulsory insurance or compulsory security deposit as a condition to issuance of a driver’s license. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Ortiz v. DePuy, 313 F.Supp. 156, 158 (E.D.Pa.1970); Perez v. Tynan, 307 F.Supp. 1235 (D.C.Conn.1969).\n*872The purpose of financial responsibility statutes of the kind here in question is not solely, as plaintiffs seem to believe, the discouragement of negligent, reckless or otherwise illegal operation of automobiles. Rather, the further, particular and overriding purpose of financial responsibility laws is to protect, so far as the state deems practicable, persons who have been injured in their person or property by negligent, uninsured, indigent drivers, against the injustice and frustration of an uncollectible “empty” judgment obtained against such a driver. Perez v. Campbell, infra; Perez v. Tynan, supra; Schecter v. Killingsworth, supra; Williams v. Sills, supra.\nFaced with the problem of assuring maximum protection against such loss and at the same time keeping interference with freedom of movement at a minimum, many legislatures have tipped the balance in favor of freedom of movement by preferring financial responsibility laws of the kind here in question over compulsory insurance laws in the expectation that the former will sufficiently incline drivers to either operate their automobiles safely or establish financial responsibility through insurance, or otherwise, or hopefully, both. See, Perez v. Tynan, supra.\nIn passing upon the validity of this kind of financial responsibility legislation, the courts have reasoned that, since compulsory insurance or security laws can validly limit the driving privilege even before the question of fault ever arises and, therefore, without any administrative or'other hearing, it follows that the state may validly enact the less drastic form of such legislation, i.e., legislation providing that, although a driver may initially take the road without insurance or any showing of financial responsibility, his right to drive may be suspended if, remaining uninsured, he becomes involved in an accident and then fails to assure financial responsibility — without any determination of fault and without any administrative hearing —just as would have been his situation if the state had enacted the more drastic compulsory form of financial responsibility statute.\nIt is quite obvious, however, that any provision for personal, oral hearings in connection with every accident involving an uninsured driver would, as stated in Escobedo v. State of California, etc., supra, substantially burden and delay, if not defeat, the operation of the kind of financial responsibility law here in question.\nHaving in mind the public purpose of the statute, the very simple and narrow issues involved and the burdening or defeating effect of any such provision, we conclude that due process does not require any further or different kind of hearing than is now available under the California statute.\nDISCRIMINATION AGAINST POOR PERSONS\nWe find no merit in plaintiff’s contention that the Financial Responsibility Law discriminates against poor persons who have insufficient funds to procure insurance coverage or make security deposits.\nThe victim of a negligent, uninsured, indigent driver may be and often is, himself, financially unable to bear the losses inflicted upon him. In this view of the matter the poor person, far from being discriminated against, needs the protection of a financial responsibility law more than a well-to-do person.\nConsidering the matter from another point of view, the requirement for insurance or deposit as a condition for driving does not deprive a poor person from the use of the road any more than lack of funds to acquire an automobile in the first place or for the purchase of gasoline would so preclude such enjoyment.\nFurther, by comparison with compulsory insurance statutes, financial responsibility laws of the kind here in question, favor poor, uninsured motorists by permitting them the privilege of the road at least until they become involved in an accident, and even then, until there is evidence indicating a reasonable possibility *873of a judgment being rendered against them.\nUpon these considerations of public interest, the courts have held that financial responsibility laws do not discriminate against the poor. See, Escobedo v. State of California, etc., 35 Cal.2d 870, 222 P.2d 1, 6 (1950); Perez v. Tynan, supra; Perez v. Campbell, 421 F.2d 619, 622 (9th Cir.1970).\nDISCRIMINATION IN CERTAIN RESPECTS BETWEEN INSURED AND UNINSURED DRIVERS\nPlaintiffs contend that the statute denies to an uninsured motorist an opportunity to be heard prior to suspension while other motorists, faced with the possibility of suspension or revocation upon conviction of certain traffic offenses, are afforded such administrative hearings.\nPlaintiffs cite Vehicle Code, §§ 13350, 13352 and 13950.\nIt is hard to understand how plaintiff can make this argument; California law is otherwise. It expressly provides that no such administrative hearing is required where suspension is mandatory (Vehicle Code, § 14101(a)); under both Sections 13350 and 13352 suspension of license after conviction is mandatory. Therefore, no administrative hearing is required. Hough v. McCarthy, 54 Cal.2d 273, 5 Cal.Rptr. 668, 353 P.2d 276 (1960); Cook v. Bright, 208 Cal.App.2d 98, 25 Cal.Rptr. 116 (1962).\nIt is, of course, true that an insured driver, who is charged with a traffic violation, is entitled to court adjudication of his guilt before becoming subject to administrative suspension. The reason, however, for deferring administrative license suspension in his case until after conviction is that he has already established his financial responsibility for meeting possible civil claims against him —while the uninsured driver, similarly charged and similarly entitled to court adjudication, has not established any such financial responsibility.\nWe find no merit in plaintiff’s challenge on this ground to what appears to be a necessary and reasonable distinction in this respect between insured and uninsured drivers charged with traffic offenses.\nFor the foregoing reasons we conclude that plaintiff’s motion for a preliminary injunction enjoining defendants from enforcing the provisions of the California Financial Responsibility Law against plaintiffs and declaring said statute unconstitutional should be and is hereby denied and, further, that the temporary restraining order issued herein under date of December 2, 1970, be and the same is hereby dissolved.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"rivas-v-cozens"} {"attorneys":"William P. Tinkler, Jr., Decatur, Ga., for Mendoza., William B. Hill, Jr., Deputy Atty. Gen., Daryl A. Robinson, Cathy A. Cox, John C. Jones, Senior Asst. Atty. Gen., Atlanta, Ga., for Burden., J. Vincent Cook, Cook, Noell, Tolley & Aldridge, Athens, Ga., Patrick T. Beall, Watkinsville, Ga., for plaintiffs-appellees.","case_name":"Howell v. Evans","case_name_full":"Willa Dean HOWELL, individually and as administratrix of the estate of Van Howell, Lisa Howell, through her natural guardian and next friend Willa Dean Howell, and Lori Miller v. David C. EVANS, Etc., Commissioner, Dept. of Corrections, Edward M. Mendoza, M.D., Correctional Medical Systems, Inc. and Charles Burden, individually and as Superintendent of Augusta Correctional and Medical Institution","case_name_short":"Howell","citation_count":0,"citations":["931 F.2d 711"],"court_full_name":"Court of Appeals for the Eleventh Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Eleventh Circuit","court_type":"F","date_filed":"1991-04-29","date_filed_is_approximate":false,"id":8997493,"judges":"Anderson, Godbold, Kravitch","opinions":[{"ocr":true,"opinion_id":8989881,"opinion_text":"\n*712BY THE COURT:\nAppellees’ motion to withdraw the petition for rehearing and suggestion for rehearing en banc is GRANTED. As the case has settled, the opinion at 922 F.2d 712 is vacated, the judgment of the district court is vacated and the case is remanded to the district court with direction that the case be dismissed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"howell-v-evans"} {"case_name":"White v. Johnson","case_name_full":"White v. Johnson, Director, Texas Department of Criminal Justice, Institutional Division","case_name_short":"White","citation_count":0,"citations":["531 U.S. 995"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2000-11-13","date_filed_is_approximate":false,"id":9262986,"opinions":[{"ocr":true,"opinion_id":9257808,"opinion_text":"\nC. A. 5th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"white-v-johnson"} {"attorneys":"James V. Fareri, for plaintiffs., Donald G. Scheck, for defendant.","case_name":"Francabandera v. Indian Mountain Lake Development Corp.","case_name_full":"Francabandera v. Indian Mountain Lake Development Corp.","case_name_short":"Francabandera","citation_count":0,"citations":["48 Pa. D. & C.3d 246"],"court_full_name":"Pennsylvania Court of Common Pleas, Monroe County","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Monroe County Court of Common Pleas","court_type":"ST","date_filed":"1988-10-21","date_filed_is_approximate":false,"id":9322413,"judges":"Brien","opinions":[{"author_str":"Brien","ocr":true,"opinion_id":9317722,"opinion_text":"\nO’BRIEN, J.,\nOn July 19, 1973, plaintiffs Philip Francabandera et ux. executed an agreement of sale with defendant Indian Mountain Lake Development Corporation for the purchase of a house and lot situate in Tunkhannock Township, Monroe County, Pennsylvania. On August 17, 1973, plaintiffs Leonard Hershkowitz et ux. and Maurice Lehon et ux. executed a similar agreement of sale for the purchase of a separate house and lot in the same development. The defendant corporation delivered deeds to the properties to the purchasers in 1973. All plaintiffs com*247menced this action by praecipe for summons on January 4, 1985, and on April 13, 1987, filed their complaint alleging that defendant negligently designed, planned and supervised the construction of their homes. Defendant’s responsive pleading raised the statute of limitations as a defense and subsequently the defendant filed motions for summary judgment which following briefs and argument are now before the court for disposition.\nIn the case at bar, the parties cannot agree as to which statute of limitations governs the current action. Defendant asserts • that 42 Pa.C.S. §5524 should govern due to the language of plaintiffs’ complaint: “Defendant negligently designed, planned and supervised ...” Under section 5524, actions caused by another’s negligence must be commenced within two years from the accrual of the action. Trieschock v. Owens Corning Fiberglass Co., 354 Pa. Super. 263, 511 A.2d 863 (1986). In the alternative, defendaht urges this court to employ the four-year limitations period of 42 Pa.C.S. §5525. In support of this proposition, defendant cites Luden’s Inc. v. Irwin and Leighton Inc., 28 D. & C. 3d 565 (1983) in which the Court of Common Pleas of Montgomery County held that causes of action based upon latent structural defects in buildings must be commenced within four years of the discovery of the defects.\nPlaintiffs argue that the 12-year period described in 42 Pa.C.S. §5536 is the only applicable limitation on the commencement of their action. That provision of the Judicial Code provides as follows:\n“(a) General rule — Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement *248to real property must be commenced within 12 years after completion of construction of such improvement to recover damagers for:\n“(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.\n“(2) Injury to property, real or personal, arising out of any such deficiency.\n“(3) Injury to the person or for wrongful death arising out of any such deficiency.\n“(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).\n“(b) Exceptions—\n“(1) If. an injury or wrongful death shall occur more than 10 and within 12 years after completion of the improvement a civil action or proceeding within the scope of subsection (a) may be commenced within the time otherwise limited by this subchapter, but not later than 14 years after completion of construction of such improvement.\n“(2) The limitation prescribed by subsection (a) shall not be asserted by way of defense by any person in actual possession or control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or wrongful death for which it is proposed to commence an action or proceeding.\n“(c) No extension of limitation. — This section shall not extend the period within which any civil action or proceeding may be commenced under any provision of law.” (emphasis added)\nSubsection (c) makes it apparent that the above-quoted provision of law is not a statute of limitations but a statute of repose. In Misitis v. Steel City Piping Co., 441 Pa. 339, 272 A.2d 883 (1971), the Su*249preme Court held that this statutory language does not effect a procedural change in the statute of limitations but rather completely ehminates all causes of action arising out of negligence in construction or design occurring more than 12 years before the accrual of plaintiffs’ action. As the Superior Court stated in A.J. Aberman Inc. v. Funk Building Corp., 278 Pa. Super. 385, 420 A.2d 594 (1980), if injury or damage should occur after the 12-year period, the particular statute of limitations applicable to the action might not commence to run until the discovery of the injury or damage but the statute of repose would preclude any action against the persons protected by the act without regard to whether the action was timely filed under the applicable statute of limitations.\nHowever, our Superior Court also held in A.J. Aberman Inc. v. Funk Building Corp., supra, that in cases involving latent defects in construction, the statute of limitations will not start' to run until the injured party becomes aware, or by exercise of reasonable diligence should have become aware, of the defect. Plaintiffs’ complaint alleges that their damages were caused by a latent defect in the construction of the foundation of their homes which have come to their attention after several years of settlement. Plaintiffs’ claim that the defective construction and resulting settlement resulted in their loss of use and enjoyment of their homes and a substantial diminution in their value. It is apparent that these allegations would constitute a latent defect and that plaintiffs commenced their action within the 12-year period prior to the elimination or abolishment of their cause of action. However, in ruling upon defendant’s motion for summary judgment we must first determine the applicable statute of limitations and finally determine when plaintiffs became *250aware, or by exercise of reasonable diligence should have become aware, of the alleged defects.\nIn Luden’s Inc. v. Irwin and Leighton Inc., 28 D.&C. 3d 565 (1983), Judge Brody of the Court of Common Pleas of Montgomery County made a comprehensive analysis of the statutes of limitations governing claims for latent defects in construction. We find the following analysis most persuasive:\n“Over the past three decades, the Pennsylvania General Assembly has shortened and rendered uniform the statute of limitations period for actions in assumpsit.\n“This progression dates from 1953, when the assembly, taking note of modern commercial practice, terminated the applicability of the general six-year assumpsit limitations period (12 P.S. §31, Act of March 27, 1793, 1 Sm.L. 76, §1.) to sales contracts by enacting Article 2 of the Uniform Commercial Code. 12A P.S. §2-725 (Purdon 1970), Act of April 6, 1953, P.L. 3, §2, §2-725 (reenacted Oct. 2, 1959, P.L. 1023, §2; recodified at 13 Pa.C.S. §2725 (Purdon 1983), Act of Nov. 1, 1979, P.L. 255, no. 86, §1). Article 2 [took] sales contracts out of the general laws limiting the time for commencing contractual actions and [selected] a four-year period as the most appropriate to modern business practice. Pennsylvania Uniform Commercial Code §2-725 comment at 583 (1970). One of the assembly’s goals in reducing the limitations period was the preservation of evidence, especially impermanent evidence as to workmanship and the condition of the goods which were sold. Since such evidence was unwritten, and therefore less likely to remain immutable, the assembly felt that it necessitated an earlier trial than was required in cases involving only written evidence.\n*251“The court holds that section 5525(1) applies to the present construction contract case, as specifically stated in Crisante v. J.H. Beers Inc., 297 Pa. Super. 337, 341, 443 A.2d 1150, 1152 (1982). Such a holding follows from the expansive reading which the Crisante court gave to section 5525(4) in order to effectuate the 1976 legislature’s intent to create a uniform statute of limitations. The result furthers the intent triggered by the 1953 legislature to shorten the statute of limitations period for those actions in which latent, unwritten evidence of workmanship is crucial. Furthermore, our holding is consistent with the language of section 5525(1), which focuses on contracts for construction where tangible personal property, such as the insulation and other building materials, is used.” 28 D.&C. 3d at 570-3.\nTherefore, we conclude that the four-year statute of limitations is applicable to the case at bar involving a claim for a latent defect in construction and the arguments of both parties for a shorter or longer period of limitations are without merit.\nA party is entitled to summary judgment if the pleadings, depositions, answers to discovery and admissions of record show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Taylor v. Tukanowicz, 290 Pa. Super. 581, 435 A.2d 181 (1981). In considering a motion for summary judgment, the court must examine the record in a light most favorable to the non-moving party. Id.; First Pa. Bank, N.A. v. Triester, 251 Pa. Super. 372, 380 A.2d 826 (1977). Any and all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Ritmanich v. Jonnel Enterprises Inc., 219 Pa. Super. 198, 280 A.2d 570 (1971). We also note that “ordinarily most questions relating to the appli*252cability of the defense of the statute of limitations are questions of fact to be determined by the jury.” Taylor v. Tukanowicz, supra; 2 Standard Pa. Practice 289. However, in cases where the relevant facts are not disputed, whether the statute of limitations has run is a question of law for the judge and is properly resolved upon a motion for summary judgment. Id.; Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 153 A.2d 477 (1959).\nIn applying this standard to the case at bar, we must determine when plaintiffs became aware, or by exercise of reasonable diligence should have become aware, of the 'defects in the construction of their homes. In determining this issue, we must accept only those facts that are clear from the record and are undisputed. The claims of Hershkowitz and Lehon on the one hand and the Francabanderas on the other hand must be separately evaluated in making a determination as to their respective claims. A review of the deposition of plaintiff Leonard Hershkowitz discloses the following testimony:\n“We noticed in the bedroom the carpeting was lifting up from the perimeter of the house. The carpeting was coming away, so we looked, and we saw a big crack running the whole side of the perimeter in all the bedrooms all around the house, into the kitchen, into the bathroom, all around.\n“There’s a crack where you can put — you can put a ruler down 25 feet — I’m sorry, 25 inches, into the ground in the house. That’s the kind of crack we have all around. That’s what we saw. That was in 1977, ’78.”\nFurther, Mr. Hershkowitz testified of the following conversation with a representative of defendant:\n“He told me, he says, well, you got two things you can do, basically. He says you could get someone to fill in all the cracks. He said that has happened be*253fore. It’s not only — it’s not the first time it’s happened; it’s happened with all Hertweck’s houses. All right? That’s the way he builds them. This was his words.\n“He says you can get someone to fill it in, but, he says, I wouldn’t advise you to do that now because you’re going to have more cracking. It’s going to keep cracking. It’s going to get worse. Wait till the cracking stops. Then fill it in, and that’s all you can do.\n“I said no, I can-sue.” (emphasis added)\nThe testimony of Marion Hershkowitz, Maurice Lehon and Toby Lehon corroborated Leonard Hershkowitz’s testimony that the defect and resulting damage was discovered before 1980. Further Mr. Hershkowitz expressly testified that he knew he had a right to sue the defendant before 1980. In view of the fact that this action was not commenced until 1985, it is apparent that the claims of the plaintiffs Hershkowitz and Lehon are barred by the four-year statute of limitations. (42 Pa.C.S. 5525)\nOn the other hand, the testimony of Mr. and Mrs. Francabandera is not as clear. While Mr. Francabandera testified that they discovered “cracks in their dining area” in the 1970’s, Mrs. Francabandera testified that she discovered the problem four years prior to her deposition. The record is not clear as to the extent of their respective knowledge or whether they were aware, or by reasonable diligence should have been aware, of the significance of the defects. Further, the record is not clear as to when the Francabanderas became aware, or should have become aware, that they had a claim to be pursued against defendant. Therefore, in applying the standard for summary judgment to the facts of their claim, we conclude that an issue of fact remains to be resolved at trial.\n*254ORDER\nAnd now, October 21, 1988, the motion of defendant, Indian Mountain Lake Development Corporation, for summary judgment is granted in part and denied in part and it is ordered as follows:\n(1) Judgment is entered in favor of defendant Indian Mountain Lake Development Corporation and against the plaintiffs Leonard Hershkowitz, Marion Hershkowitz, Maurice Lehon and Toby Lehon.\n(2) Defendant’s motion for summary judgment with respect to the claims of plaintiffs Philip Francabandera and Gertrude Francabanderá is denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"francabandera-v-indian-mountain-lake-development-corp"} {"attorneys":"Adam P. Cerbone, for appellant., Johnson, Kraeuter & Dunn, Kenneth P. Johnson, Robert S. Kraeuter, for appellee.","case_name":"Entrekin v. Friedman","case_name_full":"Entrekin v. Friedman","case_name_short":"Entrekin","citation_count":0,"citations":["294 Ga. 429","754 S.E.2d 14"],"court_full_name":"Supreme Court of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Supreme Court of Georgia","court_type":"S","date_filed":"2014-01-21","date_filed_is_approximate":false,"headmatter":"1. Deceased Suitor: Legal Representative: Substitution. There is no authority under title 13 of the Code of Civil Procedure for the substitution of the legal representative, ,or successor, of a deceased suitor at the instance of a litigant having no interest in the controversy adverse to that of the party who died.
2. Error: Right of Action. Where a cause of action is pending in this court, on error, the right of action, within the meaning of section 456 of the Code of Civil Procedure, is the right to have the judgment of the district court set aside.
3. Death of One of Several Parties: Right of Action: Survival. Where one of several plaintiffs or defendants dies, in an action pending in this court on error, the right of action, if it survives to or against the remaining parties, may be enforced without bringing the representative or successor of the deceased party into the case.
. 4. Right of Survivor. When one of several plaintiffs in error dies the right to have an erroneous judgment against all of them reversed attaches to the survivors.
5. Temporary Injunction: Dissolution: Expenses: Counsel Fees. Expenses necessarily incurred in obtaining a dissolution- of a temporary injunction may be recovered in an action on the bond given under section 355 of the Code of Civil Procedure, and reasonable counsel fees are to be regarded as part of such expenses.
0. ———: -: -: -: Damages. But expenses paid or incurred for professional services in the general defense of the action are not ordinarily damages which the obligee of the bond has sustained by reason of the injunction.
7. Bond: Provisional Remedy. The bond has relation only to the provisional remedy, and is intended to protect the defendant from the consequences of its wrongful use.
8; Injunction: Sale Pendente Lite: Incident. An injunction preventing a sale of property pendente lite is a mere incident of an action brought by creditors to have such property applied in satisfaction of their claims and to exclude other creditors from sharing in its proceeds.
9. Ancillary Injunction: Counsel Pees. Where the injunction was ancillary to the main action, it is error, in a suit on the bond, to submit the case to the jury on the theory that the services of counsel in trying the issues raised by the pleadings were rendered in g-etting rid of the wrongful restraint.
10. Review. Rulings of the trial court examined, and found to be erroneous.
","id":6771339,"judges":"Sullivan","opinions":[{"author_str":"Sullivan","ocr":true,"opinion_id":6654213,"opinion_text":"\nSullivan, C. J.\nThis was an action by Arthur M. Bartlett against Charles C. Jameson, W. H. Reynolds and Andrew A. Mc-Fadon upon an injunction bond given under section 255 of the Code of Civil Procedure. As the result of a trial in the district court, plaintiff recovered the judgment which defendants are here seeking to reverse.\nBefore reaching the merits of the controversy a preliminary question must be disposed of. McFadon having-died during the pendency of the case in this court, -Jame-son and Reynolds moved for and obtained a conditional order of revivor, which has been duly servéd upon Bartlett and the administratrix of McFadon’s estate. The administratrix has made no appearance, but the authority of the court to make the conditional order absolute is denied by Bartlett. Section 460 of the statute on the subject of revivor of actions provides that the order of revivor may be made on the motion of the adverse party, or of the representative or successor of the party who died. We know *640of no provision in the law permitting the substitution of the legal representative or successor of a deceased suitor at the instance of a party having no interest in the litigation adverse to that of the party who died, and we believe no such provision can be found. The administratrix not having asked to be admitted into the case, and the defendant in error having resisted the application to make her a party, we are of opinion that the conditional order should not be permitted to stand. It does not follow, however, from this conclusion, that the cause may not proceed to judgment. The statute (Code of Civil Procedure, sec. 456) provides, in substance, that, where one of several plaintiffs or defendants dies, the right of action, if it survive to or against the remaining parties, may be enforced without bringing the representative or successor of the deceased party before the court. The present cause of action, that is, the right to have the judgment of the district court set aside, comes clearly within the provisions of section 456 aforesaid, and may therefore be tried and determined without making the administratrix a party. This is the construction which the supreme court of the United States and other courts have placed upon statutes substantially identical with ours. McKinney v. Carroll, 12 Pet. [U. S.], 66; Moses v. Wooster, 115 U. S., 285; Clarke v. Rippon, 1 B. & Ald. [Eng.], 587; McGregor v. Comstock, 28 N. Y., 237.\nThe question of procedure being out of the way, we will now consider the case upon the merits. The record with which we have to deal is not easily understood, consisting, as it does, for the most part, of a large mass of court files and other papers thrown together with admirable abandon, but without an index or suggestion in the briefs as to the utility or probative worth of any particular document. We have endeavored, of course, to winnow the evidence and lay hold of the essential facts; but it is a matter of regret, and perhaps a misfortune, that we have not had in this effort the assistance of counsel for either party. The action in which the injunction bond was given was brought by Hart Bros, and others, general creditors of the firm of G. B. *641Smith & Son, against Arthur M. Bartlett, as sheriff of Dawes county, Nebraska; Leon B. Smith; Leon B. Smith as surviving partner of the firm of G-. B. Smith & Son; Leon B. Smith as administrator of the estate of George B. Smith\", deceased; Kate L. Smith as administratrix of the estate of Willard P. Bump, deceased; and the First National Bank of Missouri Valley, Iowa, — to enjoin an execution sale of a stock of merchandise, and for other purposes. It appears from the record, as we understand it, that in the summer or fail of 1894 G. B. Smith, of the firm of G. B. Smith & Son, died intestate and that Leon B. Smith, Ids son and partner, Avas appointed administrator of his estate, and continued for some time to conduct the partnership business in the city of Ohadron. It also appears that Leon B. Smith, as sole surviving partner of the firm of G. B. Smith & Son, confessed two judgments on Avhat purported to be partnership obligations, — one in favor of his mother, Kate L. Smith, and the other in favor of the First National Bank of Missouri Valley, IoAva. Upon these judgments executions were issued, and levied by Bartlett upon the AArhole of the partnership property. The petition in the action brought by Hart Bros, and other creditors to prevent a sale of this property under the executions, and for general relief, charged that the firm of G. B. Smith & Son Avas not indebted to either Kate L. Smith or the Missouri Valley Bank, and that the judgments confessed by Leon B. Smith were fraudulent, and were being used to prevent the • plaintiffs from obtaining satisfaction of their claims. The relief prayed for, in addition to a preliminary injunction, was that the judgments be declared null and canceled.of record; that Leon B. Smith, as administrator, be given possession of the property and directed to hold and administer it as part of his father’s estate, and that the individual interest of Leon B. Smith in the property be subjected to the payment of claims in favor of partnership creditors. The defendants ansAvered the petition and traversed nearly all of its material averments, hut long before the case came on for trial the sheriff, acting under the direction of Kate *642L. Smith, and the Missouri Valley hank, released the property and restored it to the owner. It was then seized and afterwards sold upon executions and orders of attachment issued at the instance and for the benefit of the plaintiffs in the injunction case. A trial of the ca.se of I-Iart Bros, et al. against Arthur M. Bartlett et al. resulted in a general finding and judgment in favor of the defendants. Before tlie trial there was filed a motion to dissolve the injunction, but for some undisclosed reason it Avas not ruled upon.\nThe present action Avas, it is clear, tried by the plaintiff and decided by the jury on the theory that all the services of attorneys for defendants in the original case Avere rendered in obtaining a dissolution of the injunction, and that the value of such services was therefore recoverable as damages resulting from the Avrongful use of the provisional remedy. The law on the subject of damages in actions on injunction bonds is Avell understood, but the application of it is not ahvays free from difficulty. The rule established by a multitude of decisions is that expenses necessarily incurred in obtaining a dissolution of the injunction may be recovered in an action on the bond, and that reasonable counsel fees are to be regarded as part of such expenses. But it is equally well, settled that expenses paid or incurred for professional services in defending the main action are not ordinarily damages which the obligee of the bond has sustained by reason of the injunction. Bolling v. Tate, 65 Ala., 417; Elder v. Sabin, 66 Ill., 126; Alexander v. Colcord, 85 Ill., 323; Robertson v. Smith, 129 Ind., 422; Bullard v. Harkness, 83 Ia., 373; Aiken v. Leathers, 40 La. Ann., 23; Lamb v. Shaw, 43 Minn., 507; Hovey v. Rubber-Tip Pencil Co., 50 N. Y., 335; Newton v. Russell, 87 N. Y., 527; 16 Am. & Eng. Ency. Law [2d ed.], 469, note 1. Bullard v. Harkness, supra, was an action by Pronty to enjoin a sale of real estate in execution of a decree of foreclosure, and to have the title quieted and confirmed in himself. He failed in the action, and suit was brought on the injunction bond. The court, denying the plaintiff’s claim for attor*643Ley’s fees, said: “There was no direct attack made against the injunction. It was left to stand or fall upon the question of ownership; and, Prouty’s title being found to be that of a trustee for the appellant, the injunction was dissolved. The costs and expenses incurred by appellant were in trying the issue of OAvnership, and are not different from what they Avould have been if no injunction had been is-. sued. It is only such expenditures as Avere necessarily incurred in defending against the injunction that are recoverable on the bond, and expenses incurred in defending against other features of the case in which the injunction Avas issued are not included.” Lamb v. Shaw, 43 Minn., 507, was an action on an injunction bond given to prevent an execution sale, and to annul the judgment on which.the execution Avas issued. The court, speaking through Yanderburgh, J., said that there could be no recovery for the services rendered in the trial of the case on the merits. Part of the argument supporting the conclusion reached was this: “If, as would seem to be the case, the question involved was the validity of a judgment upon which the execution sale Avas sought to be restrained, the determination of that question Avould not necessarily cease to be important or material to the plaintiff’s rights in that suit, though the sale Avas not temporarily restrained, and he might be embarrassed and prejudiced by the proceedings. Presumptively, therefore, the litigation in the principal action would proceed and be determined on its merits, though no temporary injunction had been issued. * * * The plaintiff Avas entitled to recover damages shoAvn to have been suffered by him by reason of the preliminary injunction, but Ave do not think the counsel fees sued for in this action can be properly included therein.” In Lambert v. Alcorn, 144 Ill., 313, Avhich Avas an action brought to obtain an injunction, and for no other purpose, it Avas held that expenses incurred for services of counsel in the trial of the case, although the trial resulted in a dissolution of the temporary injunction, were not recoverable as damages occasioned by the wrongful restraint. The court, speaking *644through Bailey, C. J.,said (p. 330) : “Perhaps the view was entertained by court and counsel at the time of the assess* ment of damages, that as the only relief sought by the bill was an injunction, the entire defense was virtually directed to the sole object of procuring a dissolution of the injunction, and therefore that all the services rendered in the case must be deemed to have been rendered for that purpose. The relief sought by the bill was a perpetual injunction restraining- the defendant froto' laying his proposed tile drain, and an injunction-pendente Ute was a mere ancillary writ which the complainant was at liberty to apply for or not as he saw fit. Its only office was to preserve the statics quo until a final hearing could be had. The complainants might have prosecuted their suit without asking for a preliminary injunction, and if the defendant had proceeded to construct his drains during the pendency of the suit, he would not have been in contempt for disobedience to a writ it is true, but he would have acted at the risk of having his acts pendente Ute declared illegal, and of being compelled to restore everything to the condition in which it was at the commencement of the suit. In a litigation of this character, the services rendered in the general defense of the suit are as clearly distinguishable from those rendered for ’ the mere purpose of getting rid of an injunction pendente Ute, in case one has been issued, as they are in cases where relief of a different character is sought.” Trester v. Pike, 60 Nebr., 510, was an action to -establish a judgment as a lien upon land which it was claimed had been fraudulently-conveyed. The judgment defendant and the alleged fraudulent grantee were made parties, and a restraining order was granted to prevent a transfer of the property. In a trial upon the merits the plaintiff was defeated and the defendants limn brought suit upon the bond; but they were not permitted to recover counsel fees, although the right to the injunction and to the principal relief sought depended precisely upon the same question, — that is, the character of the transfer assailed. “We think it entirely clear,” says Holcomb, J., in the course of the opinion, *645“that the restraining order was auxiliary only to the main proceedings, and without deciding what would be the effect in case an injunction had been regularly issued, we are of the opinion that it was erroneous to-instruct the jury to allow the expenses incurred for counsel in the trial of the issues raised by the pleadings as one of the dements of damages sustained by the defendants by reason of the wrongful issuance of the restraining order.” Other cases aptly illustrating the principle upon which attorney’s fees are allowed in actions upon injunction bonds are Curtiss v. Bachman, 110 Cal., 433; Grove v. Wallace, 52 Pac. Rep. [Colo. App.], 639. Where no bond has been given, a party wrongfully enjoined can recover nothing more than the taxable costs, unless he can show that the action was maliciously prosecuted. The bond has relation only to the provisional remedy, and is intended to protect the defendant from the consequences of its wrongful use. If in the case of Hart Bros, et al. against Bartlett et al. the expenses incurred were for services r'endeired by attorneys in trying the issues formed by the pleadings, and were such as would have been made regardless of the injunction, then it can not be said that they were the result of the injunction, and consequently are not recoverable as an element of damages. The principal object of the action against the obligees of the bond in suit was, as we have already indicated, to have the partnership property applied to the satisfaction of the plaintiffs’ claims, and to prevent Kate L. Smith and the Missouri Valley bank from sharing in the proceeds of that property as partnership creditors. The office of the injunction was to preserve the status quo, so that if the plaintiffs were successful, their judgment might be made effective. Prevention of a sale under the executions was obviously not the substantial relief sought. That relief was important, it is true, but it was nevertheless incidental and ancillary to a cancelation of the judgments and a division of the property among creditors other than Kate L. Smith and the Missouri Valley bank. When Mrs. Smith gnd the bank released their levies, and the sheriff sewed *646and sold the whole of the partnership property for the benefit of Hart Bros, and other creditors, the temporary injunction lost its force and effectiveness; it ceased to have any practical significance; its occupation was gone; it Avas a mere reminiscence; and the expense thereafter incurred by defendants for attorneys’ sendees Avas not made in attempting to escape from a Avrongful and injurious restraint. The judgment dismissing the action after a trial on the merits was, of course, a technical dissolution of the injunction, but it delivered the defendants from no real bondag’e and gave them no freedom of action which they did not possess before the trial commenced. If the defendants tried the case for the purpose, as they claim, of getting rid of the injunction, then, indeed, they went to a great deal of trouble and expense to free themselves from a harmless restraint. Since the injunction, at the time the case was tried, prevented the defendants from exercising no right Avhich they might laAvfully exercise, it Avould seem, on plaintiffs’ theory, that the expense of the tidal was incurred for the purpose of obtaining evidence to show that the restraint, during the time it was effective, was unjust.. The objections made by counsel for defendants in this case to the introduction of evidence tending to show the value of attorneys’ services in the trial of the injunction suit were clearly valid, and- should have been sustained, and the instruction AAhich he tendered relative to the same matter should have been given.\nThe judgment is reversed and the cause remanded for further proceedings.\nReversed and remanded.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"jameson-v-bartlett","summary":"Error from the district court for Dawes county. Tried below before Westover, J."} {"case_name":"Unsecured Creditors' Committee v. First National Bank & Trust Co.","case_name_full":"UNSECURED CREDITORS' COMMITTEE v. FIRST NATIONAL BANK & TRUST COMPANY OF ESCANABA","citation_count":0,"citations":["109 S. Ct. 55"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1988-10-03","date_filed_is_approximate":false,"id":6802441,"opinions":[{"ocr":true,"opinion_id":6687503,"opinion_text":"\nPetition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit.\nDenied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"unsecured-creditors-committee-v-first-national-bank-trust-co"} {"attorneys":"Mr. Patrick Gareau, prosecutor, and Mr. William J. McCrone, assistant prosecutor, for plaintiff-appellee., Messrs. Bogart & Murray, for defendant-appellant.","case_name":"Westlake v. Peniston","case_name_full":"Westlake (City) v. Peniston","case_name_short":"Westlake","citation_count":0,"citations":["90 Ohio Law. Abs. 97"],"court_full_name":"Ohio Court of Appeals","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Court of Appeals","court_type":"SA","date_filed":"1962-06-21","date_filed_is_approximate":false,"id":6861924,"judges":"Crawford, Eighth, Kerns, Second, Sherer","opinions":[{"author_str":"Kerns","ocr":true,"opinion_id":6751400,"opinion_text":"\nKerns, J.\nThis is an appeal on questions of law from a sentence and judgment of the Rocky River Municipal Court wherein the defendant, Lawrence Y. Peniston, was found guilty of speeding contrary to Section 333.03 of the traffic ordinances of the City of Westlake, Ohio.\nThe following errors have been assigned:\n1. That the decision is contrary to law;\n2. That the decision is contrary to the weight and sufficiency of the evidence;\n3. That the Municipal Court of Rocky River was without jurisdiction to hear this case;\n*984. That the defendant should have been charged under State Statute;\n5. Errors manifest on the record.\nAssignments of error three and four are based upon the contention that the police officers of the City of Westlake were unable “to clock the speeds of the defendant within the territorial limits of the City of Westlake, Cuyahoga County, and that in fact, said clocking was performed in Lorain County, and therefore was beyond the jurisdiction of the Rocky River Municipal Court.”\nThis contention, however, is refuted by the record which discloses evidence of sufficient probative force to support the trial court’s conclusion that the offense occurred in the City of Westlake. In fact, Sergeant Daniel Owad, one of the arresting officers, after testifying that the defendant was travelling 100 miles per hour in a 40 mile per hour zone, testified specifically as follows:\n“Q. Sergeant, these facts that you testified to in regard to what you observed the defendant do, did they occur in the City of Westlake?\n“A. Yes, sir.\n“Q. Is that Cuyahoga County?\n“A. Yes, sir.\n“Q. And the State of Ohio?\n“A. Yes, sir.”\nAlthough the defendant attempted to show mathematically that the offense could not have been committed in the City of Westlake, the final determination of this factual issue rested with the trial court, and may not be disturbed by this court unless the fiuding is contrary to the weight of the evidence. See 3 Ohio Jurisprudence (2d), 789, Section 809. In this regard, our view of the evidence upon the question of jurisdiction is not in conflict with that of the trial court. Assignments of error three and four will therefore be overruled.\nAssignments of error one, two and five are also without merit and will likewise be overruled.\nThe judgment will be affirmed.\nCrawford, P. J., and Sherer, J., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"westlake-v-peniston"} {"attorneys":"Jeffries, Wolcott, Wolcott & Lankford, for the plaintiff in error., John Fields, Jr., and Thos. W. Shelton, for the defendant in error.","case_name":"Security Loan & Trust Co. v. Fields","case_name_full":"Security Loan and Trust Co. v. Fields","case_name_short":"Fields","citation_count":0,"citations":["110 Va. 827"],"court_full_name":"Supreme Court of Virginia","court_jurisdiction":"Virginia, VA","court_short_name":"Supreme Court of Virginia","court_type":"S","date_filed":"1910-03-10","date_filed_is_approximate":false,"disposition":"\nReversed.\n","id":6916696,"judges":"Cardwell","opinions":[{"author_str":"Cardwell","ocr":true,"opinion_id":6812168,"opinion_text":"\nCardwell, J.,\ndelivered the opinion of the court.\n■ This is a writ of error to a judgment of the Court of Law and Chancery of the city of Norfolk in favor of the defendant in error, the holder of the negotiable note sued on, against the plaintiff in error, the Security Loan and Trust Company, an endorser of the note, the action being by motion upon notice, under section 8811'of the Code.\nThe notice of motion is as follows: “You are hereby notified that on the 20th day of July, in the year 1908, between the hours of ten (10) and eleven (11) A. M., I shall move the Court of Law and Chancery of the city of Norfolk, Virginia, for a judgment against you for the sum of one thousand dollars ($1,000.00), ydth interest thereon from the first day of March, 1907, until paid, the same being due to the undersigned, John Fields, Jr., from you, as evidenced by a certain negotiable promissory note signed by Virginia Medical Co., Inc., by its proper officers, payable to your order and by you endorsed in blank, for the principal sum of $1,000.00, said note bearing date March 1, 1907, being payable one year after date at the Citizens Bank of Norfolk, Virginia, and bearing interest from the date thereof, at the rate of 6 per cent, per annum, the undersigned being the holder in due course, and for value.\n“Given under my hand this 26th day of June, in the year 1908.\n“JOHN FIELDS, Jr., By Counsel.”\n*829The note sued on, with its endorsements, is as follows: •\n“$1,000.00 Norfolk, Va., March 1, 1907.\n“One year after date Virginia Medical Co. Inc., promises to pay to the order of Security Loan and Trust Co. one thousand dollars, with interest from date hereof till paid, at six per centum per annum, payable semi-annually, at Citizens Bank, Norfolk, Va., without defalcation, for value received. And we, maker and endorser, do hereby waive the benefit of our homestead exemption as to this debt.\n“VIRGINIA MEDICAL CO., INC.,\n“W. L. Fields, Vice-President.\n“Attest:\n“A. M. Waddell, Jr., Secretary.”\n( Endorsements.)\n“Security Loan and Trust Co., Abbott Morris, President.\n“With recourse,\n“W. L. Fields.”\n“Pay to the order of any bank or banker, prior endorsement guaranteed, March 2, 1908, The Nat’l Bank of Goldsboro.\n“Goldsboro, N. C.\n“C. C. Komegay.” “Cashier.”\nIt will be observed that the action is brought by the holder of the note, claiming to have acquired it in due course and for value, against the first endorser thereof; the endorsement being in blank.\nWhen the case was called for trial on the 5th of February, 1909, plaintiff in error demurred to the notice, in which demurrer defendant in error joined, whereupon the court overruled the demurrer, and this ruling constitutes plaintiff in error’s first assignment of error. -\nThe ground of demurrer was that, in order to entitle defendant in error to recover on the note against plaintiff in error, the note must have been duly presented at maturity and due *830notice of its dishonor given to plaintiff in erorr; that the note was payable at The 'Citizens Bank of Norfolk, Virginia, and there is no allegation in the notice that the note was presented to said bank or to any person at any time, or at any place, or that any notice of its dishonor was ever given to plaintiff in error or any person representing it.\nWhile, in proceedings on motion for judgment for money under the statute, supra> the notice takes the place of both the writ and the declaration, and is viewed with great indulgence by the courts, this does not relieve the plaintiff of the requirement that he set out in his notice to the defendant matter sufficient to maintain the action, and whether or not he has done this is the sole question raised by the demurrer to the notice. Morotock Ins. Co. v. Pankey, 91 Va. 259, 21 S. E. 487; Union Cent. L. Ins. Co. v. Pollard, 94 Va. 146, 26 S. E. 421, 64 Am. St. Rep. 715, 36 L. R. A. 271.\nDefendant in error relies on the last cited case as supporting his contention that if plaintiff in error desired to have more ' specific information he had the right to move the court to order defendant in error to file a statement of the particulars of his claim, and failing to do so, he is to be taken as electing to let the notice stand as it was, in order, thereafter, to object to the introduction of the note upon which the motion was made; but in that case a question arose as to the admissibility in evidence of certain foreign statutes, a question not raised by the demurrer to the notice, and what was said in the opinion neither sustains defendant in error’s contention, nor militates against the settled- doctrine that the notice in such a case must set out sufficient matter to maintain the action.\nIn this pase the action is against an endorser of the note alone, whose liability to the holder, or claimant, of the note was conditional only, as is not questioned; and yet the notice of the motion to be made against him for the amount of the note does not set out a single fact going to show that defendant in error had a right of action against him. As suggested in the *831petition for this writ of error, every word in this notice may he true without any cause of action having arisen against the plaintiff in error as endorser of the note upon which the judgment would be asked.\nWe are of opinion that the lower court should have sustained the demurrer to the notice, but with leave to defendant in error to amend the notice if he desired to do so. In the event that the case takes that course when remanded, there is a question presented and argued in the record now before us that will necessarily arise at the next trial. Therefore we deem it proper to consider and determine that question upon this record.\nThe note sued on fell due and became payable on Monday, March 2, 1908 (March 1, 1908, being Sunday), and it is not pretended that it was ever presented for payment at The Citizens Bank of Norfolk, Va., where it was made payable and should have been presented for payment, as shown upon the face of the note, but was only presented for payment to one Abbott Morris, and that, too, on March 5, 1908, three days after the day of the maturity of the note; this presentation being made by a “runner” for the First National Bank of Norfolk, Va., whereupon Morris wrote on the note the words, “The Virginia Medical Co. is indebted to the Security Loan and Trust Co. A. M. return,” and handed the note back to the “runner.”\nThe contention of the defendant in error is, in effect, that as Morris was president of both the Virginia Medical Co., the maker, and the Security Loan and Trust Co., the payee and ■ blank endorser of the note, and made answer for both, putting a refusal to pay the note on the ground that the maker thereof was indebted .to the endorser already, this is to be taken as a waiver of the release of plaintiff in error from liability by reason of the failure of the holder of the note to present it at maturity to the Citizens Bank of Norfolk.\nWe are of opinion that there is no merit whatever in this contention. In the first place, it is not pretended that Morris was the person to whom notice of the dishonor of the note should *832have been given, nor that anything was said or done by anybody prior to March 5, 1908, when a “runner” of one of the banks in Norfolk presented to Morris the note in question for payment, which could have been construed as a‘waiver of the non-liability of the plaintiff in erorr for the payment of the note. Therefore the waiver must have arisen, if at all, after plaintiff in error’s release from liability. And it is also not pretended that Morris had any authority whatever to waive the non-liability of plaintiff in error and re-establish its liability in the manner it is claimed he did, or in any other mode or manner. It is a well recognized doctrine, as applicable to this case as it is to many others, that a waiver of legal rights will not be implied except upon clear and unmistakable proof of an intention to waive such rights.\nIn Tardy, Trustee v. Boyd’s Admr., 26 Gratt. 637, this court said: “Although a promise to pay by an endorser with full knowledge of all the facts and of the laches of the holder may be held in point of law to amount to a waiver of the right to notice, yet this rule must be taken with this qualification: The promise to be obligatory must be deliberately made in clear, explicit language, and must amount to an admission of the right of the holder, or of a duty and willingness of the endorser to pay. If, therefore, the conduct or acts of the endorser be equivocal, or the language used be of a qualified or uncertain nature, the endorser will not be held responsible. Story Prom. Notes, 363.”\nOther questions presented in this record may or may not arise at another trial of the case, if there be one, and therefore we do not deem it necessary to consider them here.\nThe judgment of the lower court will be reversed, the verdict of the jury set aside, and the cause remanded with leave to defendant in error to amend his notice of motion, if he be so advised.\n\njReversed.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"security-loan-trust-co-v-fields","summary":"Error to a judgment of the Law and Chancery Court of the city of For folk, in a proceeding by motion for a judgment under section 3211 of the Code. Judgment for the plaintiff. Defendant assigns error.","syllabus":"1. Notice for a Judgment—Must State a Case—Demurrer—Code, Section 3211.—In a proceeding by motion for a judgment under section 3211 of the Code the notice takes the place of the writ and the declaration in a regular action, and, while the notice is viewed with great indulgence by the courts, it must set out matter sufficient to maintain the action; and whether or not it does this is tested by a demurrer to the notice.
2. Notice for a Judgment—Action Against Endorser—Allegation of Presentment and Notice—Demurrer—Bill of Particulars.—The notice of a motion for a judgment under section 3211 of the Code against the endorser of a negotiable note must contain such allegations of presentment for payment and notice of dishonor to the endorser as will fix a liability upon him for the payment of the note, else the notice will be bad upon demurrer. The defendant is not obliged to call for a bill of particulars in such case.
3. Waiver—Implied Waiver—Case at Bar.—A waiver of legal rights will not be implied except upon clear and unmistakable proof of an intention to waive such rights. In the case at bar the alleged waiver of notice to an endorser was made by one who was not entitled to receive the notice, and who had no authority whatever to make the waiver, even if his conduct could be construed to be such, and hence is not effective.
"} {"attorneys":"Ben F. Cameron and Lester E. Wills, both of Meridian, Miss., for appellants., Marion W. Reily, of Meridian, Miss., for appellees.","case_name":"Alabama Great Southern R. v. Johnson","case_name_full":"ALABAMA GREAT SOUTHERN R. CO. v. JOHNSON","citation_count":0,"citations":["140 F.2d 968"],"court_full_name":"Court of Appeals for the Fifth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Fifth Circuit","court_type":"F","date_filed":"1944-02-10","date_filed_is_approximate":false,"id":6989748,"judges":"Hutcheson, Sibley, Waller","opinions":[{"author_str":"Hutcheson","ocr":true,"opinion_id":6888146,"opinion_text":"\nHUTCHESON, Circuit Judge.\nBrought by the parents and the brothers and sisters of Roger Johnson, age 12, and J. B. Johnson, Jr., age 10, who had been run over and killed while at and on a public crossing, the suit was for the damages recoverable under the Mississippi Statute.1 The claim was that their deaths were due to the negligence of the defendants, railroad company and Roden, its engineer, in not sounding the statutory signals and in not keeping a reasonable lookout in approaching the crossing. The defenses were (1) a denial of the negligence charged; (2) a claim that decedents, when struck, were not passing over, but were loitering on the tracks, and, therefore, were trespassers to whom there was no duty to give the statutory signals, and (3) that if there was negligence in respect of them, they were themselves guilty of contributory negligence.\nThere was a trial to a jury, at the conclusion of which the court, rejecting the de*970fendants’ contention that they were not under a duty to sound statutory signals, but instructing it that decedents were themselves negligent, submitted the cause to the jury to determine (1) whether the negligence of decedents was the sole proximate cause of the injury, (2) whether the defendants were guilty as charged of failing to give the proper signals and to keep the necessary lookout, and (3) whether if negligent, their negligence was the proximate cause of the deaths. The verdict, a general one with answers also to special interrogatories, was for plaintiffs, fixing their damages at $30,000.00.\nDefendants have appealed, assigning as errors (1) the rejection of their claim that the decedents were trespassers, and, therefore, defendants owed them no duty to give the statutory signals; (2) the admission in evidence of testimony as to \"experiments made for the purpose of determining the point at which the enginemen could have seen the crossing; (3) the admission in evidence of Mrs. Johnson’s testimony that she had sent the boys on an errand which required them to cross the tracks; (4) the admission in evidence of statements purported to have been made by the engineer shortly after the accident; and (5) errors in giving and refusing charges including interrogatories and charges on the measure of damages.\nA careful examination of the record in the light of these contentions leaves us in ho doubt that the court was not in error (1) in completely rejecting defendants’ theory that the decedents, who were killed while on a public crossing, were trespassers and no duty of warning was owed them, and (2) in admitting Mrs. Johnson’s testimony and the testimony as to the experiments. We are equally without doubt that except as to the instructions with regard to the measure of damages, no reversible error was shown either in respect of the charges given or of those refused. Upon the measure of damages, however, the matter stands quite differently, and because the jury was affirmatively instructed, when there was no evidence to justify the instruction, that they could also find for the plaintiff for such “amount of money that the evidence shows that these boys might have voluntarily contributed to their parents after they reached twenty-one years of age”, the judgment must be reversed. In Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 484, this instruction was specifically condemned. There,. holding that the trial court ought to have granted an instruction, the negative of the one given here, but that, though error, it was not reversible, the court pointedly said:\n“We think the court should have granted this instruction, but, in the light of the fact that the jury was,not instructed in anywise to consider this element of damage, we do not believe we should reverse this case because of its refusal, for we have no reason to believe that the jury awarded anything on this element of damage.”- (Emphasis supplied.)\nHere the very thing occurred which the court said would have been reversible error if it had occurred there, and it is quite plain that its occurrence here contributed to the unusually large verdict. For, though the jury was instructed that the decedents were negligent and the recovery must be reduced because they were, the verdict in this case was for $30,000, a sum which could not, under Mississippi law, reasonably have been arrived at unless the jury took into consideration the speculative element of future contributions which had been submitted to it, though there was no evidence whatever to guide the jury in, or form a basis for, its determination. Given to the jury in the general charge, the instruction was promptly and immediately objected to and relief from it asked. The District Judge refused relief and adhered to the instruction not on the ground that the evidence justified its giving but on the ground that the precise language had been taken from defendants’ special instruction, numbered “E” which he had refused to give, and that, though the instruction as a whole had been marked, “Refused”, he felt that he should adhere to it.2\nWe think it quite clear that the complained of action constituted reversible error. The doctrine that there shall be no *971reversal for invited error is, when justly and correctly applied, a wise and wholesome one. Based as it is, on estoppel, it finds its justification only when facts exist which raise an estoppel. Of wide and varied application, beginning with and attending a trial throughout, it, particularly in those jurisdictions which do not require objections to charges to be made before the jury retires, as Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, does,3 prevents a litigant from speculating on a verdict, and then, when the speculation turns out badly, escaping the consequences of having done so. Under the title Appeal and Error, “Estoppel to Allege Error — Error Committed or Invited by Party Complaining”, 5 C.J.S. contains an excellent discussion beginning with Sec. 1501 on page 173 and running through Section 1516 on page 237. Throughout the discussion, the basis of the rule that one may not on review complain of errors below for the commission of which he is responsible is made clearly to appear. Section 1507, subd. g, dealing with instructions relative to the amount of recovery, thus clearly states the rule:\n“An appellant or plaintiff in error is es-topped to question the correctness of an instruction as to the amount of recovery or rule of damages stated in the charge at the trial, when such instruction or rule was adopted at his instance, or is similar to one requested by him.” *972If defendants had not timely objected to it as incorrect, they could not have complained here of the instruction as error. But they did timely object. In exact accordance with Rule 51, a rule aptly drawn to do away altogether with sleeping complaints and in effect, as to instructions, superseding and making unnecessary resort to the rule of invited error, defendants, before the jury retired to consider its verdict, objected, excepted to, and sought correction of the instruction, the giving of which is now assigned as error. Notwithstanding that defendants, as required by the rule, stated distinctly the matter to which they objected and the ground of the objection, the District Judge refused to correct it. He did this on the wholly untenable ground that because the defendants had suggested the idea in a refused charge and the court had made the idea his own in the general charge, he and they became irrevocably and inescapably committed to the error so that they could not, or at least ought not, on second and better thought, correct it though the objection was made before the jury had retired to consider its verdict. Even if defendants’ instruction “E”, which contained the complained of language, had been marked “given” instead of “refused”, and had been given exactly as the defendants had requested it, defendants could have timely pointed out and confessed the error in their own charge and obtained a proper instruction effecting its cure. It is even clearer here, their requested charge having been refused, that defendants were not estopped from proceeding under Rule 51 to correct the error into which they and the court had fallen. The Federal rules, by aiding in converting a lawsuit from a battle of wits and a succession of traps and pitfalls into a calm and ordered procedure for the discovery of truth, were designed for the purpose of avoiding the very situation which this case presents, the loss of rights, the prevention of justice, through errors which, by timely request for correction, are called to the attention of the court. The rules begin with the statement that they shall be interpreted to secure the just, speedy and inexpensive determination of every action. Rule 61 provides: “The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Rules which were adopted with the express purpose of relieving litigants from traps and pitfalls and procrustean rulings or results may not be applied, as they have been here, to produce them. It is entirely true, as counsel for appellees point out, that we may not relieve against an excessive verdict merely because it is excessive, but it is equally true, and in Sinclair Refining Co. v. Tompkins, 5 Cir., 117 F.2d 596, 597, we have said, that though the size of the verdict is the trial judge’s responsibility and not ours, “it justifies our careful scrutiny of the errors specified which may have produced it.” Here the verdict, $15,000.00 for the pecuniary loss resulting from the death of each child, is very large, in fact larger than any other verdict in a child death case allowed by the Mississippi courts4 to stand, which has been called to our attention. When we consider it in the light of the objected to charge and of the meaning and purpose of the Mississippi death statute as construed by its courts,5 the preju*973dicial character of the error assigned becomes crystal clear. Only if the error can be regarded as invited by appellants and, therefore, not available to them, can we refuse reversal. We think it too plain for argument that there was no invitation to error but quite the opposite. The invitation was, indeed, to correct, the answer to the invitation was to preserve, the error. The District Judge was right in his statement to the defendants that under the rule the objections could be made out of the presence of the jury. The rule so provides. But it clearly intends and in terms provides that the charge shall not be regarded as final and that the jury shall not be considered as having retired to consider their verdict until all exceptions to it have been made and passed on, and proper corrections made. For the error in refusing to correct the charge, in respect of the measure of damages, the judgment is reversed and the cause is remanded for further and not inconsistent proceedings.\n\n Chapter 229, Laws of 1922, Sec. 515, Hemingway’s Code of 1927, the applicable part of which here is: “Such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested.”, as construed in Avery v. Collins, 171 Miss. 636, 157 So. 695; Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, and cases cited.\n\n\n This is the record with respect to the giving of, the objection to, and the refusal to retract, the instruction: After Instructing that in actions for wrongful deaths such as this, the courts and juries consider and deal with the money value of the boys to their parents if they had not- been killed and that the jury could not render any verdict to compensate them for sorrow or grief because of the death of the two boys, the court said, “If you render a verdict for the plaintiffs *971you can take into consideration the net money value of the services that these boys would have rendered to their parents while they were under twenty-one years of age and the amount of money that the evidence shows that these boys might have voluntarily contributed to their parents after they reached twenty-one years of age.” (Emphasis supplied.). Then appears the following colloquy:\nBy Mr. Cameron: “Shall we have exceptions? The rules require that the exceptions be taken before the jury retire.”\nBy the Court: “Not in the presence of the jury.” (The jury retired.)\nBy the Cburt: “Now Mr. Cameron, you may state your exceptions to the charge.”\nBy Mr. Cameron: “I respectfully submit while the jury was in the box I offered to make them because it is my conception that they should have to be made under the rules before the jury retires, and so I offered to make them, but I am perfectly willing to go ahead with them now.”\nThen after exceptions hot material here, this exception:\n“To that portion of the charge where the Court advised the jury that the jury was authorized to award to the plaintiffs any amount the jury found the evidence to show that the boys might have contributed after they were 21 years old, for the reason that there was no evidence from which the jury could have reached such a conclusion.”\nBy the Court: “Right at that point, Mr. Cameron, let me state that I gave that instruction because it was requested by you under your instruction No. E, and the only part that I eliminated from your instruction requested under E was the following, which I have marked in parenthesis, and reads as follows, you having requested this: ‘or for the loss of any joy or happiness or comfort that any of them would get out of the companionship of these boys if they had lived’. I eliminated that clause from your requested instruction, otherwise I was reading it just as you requested it.”\nBy Mr. Cameron: “If the Court please I was advis-ed by the fact that the Court had marked ‘refused’ on Instruction E that it has been refused in toto, this having been submitted prior to the beginning of the argument, and we now submit that the instruction as given to the jury permitting the jury to award any damages to the plaintiffs after they were twenty-one years of age is error, because there is no evidence on which it could be founded.”\nBy the Court: “Well, you have requested it be so given, with the exception of that part I eliminated, I am not going to call the jury back to change it. The instruction is not in such language as I would have given it if not requested to do so, but having been requested to give that instruction and it being substantially correct as I saw it with that one exception, I gave it; but, being erroneous as a whole, before the argument started I did mark it ‘refused’ for the simple reason I considered that part I have heretofore quoted as erroneous, and otherwise I read from the instruction to the jury. You may have the exception under those circumstances.”\n\n\n “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”\n\n\n In Gulf Refining Co. v. Miller, 150 Miss. 68, 116 So. 295, the verdict set aside on the first appeal was $15,000.00, that sustained on the second appeal was for $11,000.00. In both reports the vice of an incorrect charge in its effect on the amount of the verdict is clearly pointed out.\n\n\n In Avery v. Collins, 171 Miss. 636, 157 So. 695, 699, where there was a verdict for $7500.00, the court, reversing on the ground that the jury must have taken improper matters into consideration, said:\n“It is not the purpose of the statute creating a right of action for death that the death shall be converted into an occasion for speculative profit in behalf of any of the beneficiaries, whoever they may happen to be. The conception of any profit at all, whatever the character thereof, out of the misfortune of death would be no less obnoxious to the statute than to sentiment. Damages (1) for the pain and suffering of the deceased before his death, and (2) for the loss of companionship and society, but not by way of solatium, and (3) compensation estimated on the present net value of any pecuniary benefits which the evidence discloses that the beneficiaries had a reasonable expectation of receiving from the decedent during their respective lives had he continued to live, complete the measure of the statutory purpose.\n“The evidence shows that the boy killed was thirteen years old, and lived and worked with his mother on a small farm of about 8 acres in cultivation. It is not shown that he had any estate, or that he had ever conferred gratuities, or that he had anything out of which to bestow gratuities. That no such amount as $7,-*973.500 could be found out of loss of services is too plain for argument, even when we leave aside the fact that there was no proof as to the life expectancy of any •of the beneficiaries. It follows that the jury must have resorted to the element •of pain and suffering, or some other element not within the law in arriving at the amount fixed by them. But it is so apparent from all the evidence that the jury had so little upon which to stand as to the element of pain and suffering of the deceased that we are driven to the conclusion that the jury must have resorted also to some other consideration not within the law in arriving at the amount fixed by them.”\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"alabama-great-southern-r-v-johnson"} {"attorneys":"Foster, for the plaintiffs in error., \nCoulter, contra.\n","case_name":"Amelong v. Dorneyer","case_name_full":"AMELONG and others against DORNEYER","case_name_short":"Amelong","citation_count":0,"citations":["16 Serg. & Rawle 323"],"court_full_name":"Supreme Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Supreme Court of Pennsylvania","court_type":"S","date_filed":"1827-09-18","date_filed_is_approximate":false,"headnotes":"Devise, “ I give unto my son J. D. my plantation, to have and to hold for ever, and, if my son J. D. dies without heirs, the plantation is to fall back to my son J. J. in the same manner and form as it was made over unto his brother, J. D. ” J. J. died unmarried, and without issue in the lifetime of his brother J. D. and the property was sold on a judgment and execution against J. D., who afterwards died without issue; held, that, J. D. took an estate tail, and the reversion passed to the testator’s children, the purchaser taking only J. D’s. share of that reversion.
","id":7481522,"judges":"Duncan","opinions":[{"author_str":"Duncan","ocr":true,"opinion_id":7403312,"opinion_text":"\nThe opinion of the court was delivered by\nDuncan, J.\nThis question arises on the will of Christopher Amelong, who devises, I give unto my son, John Daniel, my plantation, to have and to hold for ever; and, if iny sou John Daniel dies without heirs, the plantation is to fall back to my son John Jacob, in the same manner and form as it was made over unto his brother, John Daniel.”\nJohn Jacob died unmarried, and without issue, in the lifetime of his brother John Daniel, who is likewise deceased, without issue. The plaintiffs are heirs, under our intestate aets, of Christopher Jlmelong, the testator. The plantation was sold by the sheriff as the estate of John Daniel. The Court of Common Pleas was of opinion, that John Daniel took an estate in fee by way of executory devise, subject to be divested by his death in the lifetime of his brother, John Jacob; and that, as that event did not happen, the estate in fee continued in him.\nI am not able to find any intention expressed in the will, to confine the devise over to John Jacob, to the death of John Daniel without heirs in the lifetime of his brother John Jacob. It is indefinite failure of heirs, which, in this will, means heirs of the body; and, consequently, was an estate tail in John Daniel; for it is impossible tiit&John Daniel could die without heirs, whilst any of his brothers or sisters were living. The testator, by heirs, could only mean heirs of the body. By tne first words, John Daniel took an estate in fee, in express words, to hold to him for ever; and, where the remainder over is after dying without heirs, limited to one who is, or may be, heir to the first devisee, this has always been determined to be an estate tail.\nNow, John Jacob would not only be heir of the first devisee, but heir of the testator himself. If the devise over had been to one who could not, by any possibility, be the heir of the first devisee, then the subsequent limitation over would not alter the pre*326ceding positive devise in fee, and the court would not restrain the general import of the word heir. This was clearly an estate tail in John Daniel. I refer to 2 Fearne’s Contingent Remainders, 350.\nThe reversion in the fee would be in the father, and always continue in him; the estate tail, being a particular estate, carved out of the testator’s general estate. The reversionary interest was undisposed of by the will, and descended to the heirs immediately on the death of the testator, but would not come into possession until the determination of the estate tail; the interest of John, whatever it was, was the subject of a judgment which would bind it, and was subject to execution and to sale.\nThe judgment against John Daniel would bind his interest in the reversionary estate of the father, and vest in the purchaser his portion of that reversionary estate; consequently, if the plaintiffs were the only survivors of the testator’s family, and his heirs at law, they would be entitled to one-half, and the other half be vested in the purchaser of John Daniel’s interest at the sheriff’s sale. Judgment would then be entered for the plaintiffs for that part of the estate which by our intestate law they would be entitled to, as the grandchildren of the testator. But, from the case stated, it does not precisely appear what that interest would be, nor, consequently, what would be the interest which the purchaser would take in right of John Daniel, of the reversionary interest of his father, the testator.\nThe judgment is reversed, and a venire facias de novo awarded, on account of the defect stated in the case in nature of a special verdict, as the court cannot render judgment for the plaintiffs generally for the whole, because it appears that the defendant would be entitled to John Daniel’s purpart, and it does not appear what other heirs of the testator there are. The cause is remanded, to have these facts found; but the parties in interest may, without further trouble or expense, settle the distribution among themselves: the opinion of the court being, that the heirs of the testator had the reversionary interest by descent, among whom John Daniel is included, whose share became vested in the purchaser at sheriff’s sale.\nJudgment reversed, and a venire facias de novo awarded.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"amelong-v-dorneyer","summary":"in error. Writ of error to the Court of Common Pleas of Westmoreland county. The plaintiffs in error, who were plaintiffs below, David Amelong, James Hamilton, and Catherine his wife, formerly Catherine Amelong, George Deimer, and Elizabeth, his wife, formerly Elizabeth Amelong, Nicholas Louzell, and Mary, his wife, formerly Mary Amelong, Jacob, George, and Christopher Amelong, brought this ejectment against George Dorneyer, and George Ammon admitted co-defendant; and a case was stated for the opinion of the court below, to be considered in nature of a special verdict. The defendants were admitted to be in possession of the premises described in the ejectment. Christopher Amelong, the elder, died seised in fee of the premises in the year 1S05, having first made his last will and testament, which was duly proved and approved on the 14th of December, 1S05, and by said will, devised the premises, as follows: “ As touching the worldly estate wherewith it has pleased God to bless me in this life, I give, devise, and dispose of the same .in the following manner'and iovva-, first of all, I will, that my debts which I have contracted, be discharged and justly paid; which is to be raised and levied out of my estate, that is to say, out of my stock, until paid, and then I give unto my son, John Daniel, my plantation, to have and to hold for ever; I also give unto my dearly beloved wife Catherine Elizabeth, all that personal property which will remain after my death if all my debts are paid, and her maintainance out of the aforesaid plantation, while she remains a widow; if so be that my wife, Catherine Elizabeth, marries again, then she is only to have the third share of all the personal property, and the remainder unto my son, John Daniel, aforesaid; and also I ordain, that if my wife aforesaid dies, the whole remainder of her property is to fall back to my son, John Daniel, and he has to give, and pay, after the death of his mother, to my other children for their share, namely, my daughter Sophia Elizabeth, twenty shillings; my daughter, Maria Engles, twenty shillings; my son Christopher Frederick, twenty shillings; my son John Jacob, twenty shillings; my daughter, Anne Margaretta, twenty shillings; my daughter, Catherine twenty shillings, my daughter Elizabeth, twenty shillings: and I further will and ordain, that, if my son John Daniel dies without heirs, then the plantation is to fall back to my son John Jacob, in the same manner and form as it was made over unto his brother John Daniel, and I likewise constitute, make and ordain George Ammon, and my wife Catherine Elizabeth, the sole executors of this my last will and testament, &e. John Daniel Amelong, named in the said will, entered into possession of the premises under the said will, and continued the said possession, until the year 1S16, after the sale of the same by the sheriff of the said county, by virtue of a writ of venditioni exponas, No. 32, November, 1816, in pursuance of a judgment, in favour of George Ammon, and John McCreary, against the said Daniel-, at which said sale, the premises were sold to the said George Ammon, as the property of the said Daniel, and conveyed by the sheriff accordingly. George Ammon, in pursuance of the said sale, took possession of the said premises, and put George Dorneyer in possession thereof, as his tenant. John Daniel Amelong died in the beginning of the year, 1821, intestate, and without issue, never having been married. John Jacob Amelong, mentioned in the said will, died, living the said Daniel, unmarried, and without issue, in the year 1808. Christopher Amelong, son of the aforesaid testator, died in the year 1809, after the death of the aforesaid John Jacob Amelong, and living the said John Daniel, leaving lawful issue, the said David Amelong, Elizabeth, the wife of George Deimer, Catherine, the wife of James Hamilton, Mary, the wife of Nicholas Louzell, Jacob Amelong, George Amelong, and Christopher Amelong, plaintiffs in this suit, who are heirs at law, of Christopher, jr., their father, and of Christopher Amelong the elder, the said devisor. Opinion of the court b|low:— The defendant, George Ammon, makes title to the land in question, under a sale by the sheriff of the right of John Daniel Amelong. The land was devised to him by his father, by will, dated the 14th of December, 1805, to have and to hold for ever. That is clearly'a fee simple. There is another clause in the will, providing, that if his son John Daniel die without heirs, then the plantation is to fall back to his son John Jacob. He died in the year 1808; the plain intention of the testator was, that if John Jacob should survive his brother John Daniel, having no legal issue, John Jacob was to have the land; but it was only in the event of such survivorship, he was to have any interest in the land: and as he did not survive, the estate, if I may use the expression, became absolute in his brother John Daniel, or a fee simple, and, as such, subject to levy and sale for the payment of his debts. There is nothing in the will, from which an estate in tail only can be implied, or but an estate for life, when the land is given to the first devisee for ever."} {"attorneys":"Boothe & Pepper, for appellant., Geo. II. Ethridge, Assistant Attorney-General for appellee.","case_name":"Cudahy Packing Co. v. Stovall","case_name_full":"Cudahy Packing Co. v. Stovall, State Treasurer","case_name_short":"Stovall","citation_count":0,"citations":["112 Miss. 106","72 So. 870"],"court_full_name":"Mississippi Supreme Court","court_jurisdiction":"Mississippi, MS","court_short_name":"Mississippi Supreme Court","court_type":"S","date_filed":"1916-10-15","date_filed_is_approximate":true,"id":8036297,"judges":"Stevens","opinions":[{"author_str":"Stevens","ocr":true,"opinion_id":7992533,"opinion_text":"\nStevens, J.,\ndelivered the opinion of the court.\nStatement oe the Case.\nAppellant is a nonresident corporation, chartered under the laws of the state of Illinois, extensively engaged in the slaughterhouse and packing business. This company, as complainant in the court below, filed its bill of complaint in the chancery court of Hinds county, seeking to restrain appellee as the treasurer of the state from collecting a certain tax and the penalty thereon imposed by chapter 113, Laws of 1912, entitled “An act providing for the taxation of freight line companies.” Section 1 of this act reads as follows :\n“Be it enacted by the legislature of state of Mississippi, that every person or persons, joint stock association or corporation, wherever organized or incorporated engaged in the business of operating cars, or engaged in the business of furnishing or leasing cars not otherwise listed for taxation in Mississippi, for the transportation of freight (whether such cars he owned by such company or any other person or company) over any railroad line or lines, *in whole or in part, within this state, such line or lines not being owned, leased or operated by such company, whether such cars he termed box, flat, coal, ore, tank, stock, gondola, furniture or refrigerator cars, or by some other name, shall he deemed a freight line company.”\nSection 2 of the act makes provision for sworn statements to be rendered to the auditor, giving the *113name and location of the company, the nature of its business, the total number of cars used, and the whole length of the line of railway over which the company runs its ears, as also the length of so much of its line as is without and is within the state of Mississippi, and other information .therein called for. Section 3 declares that for the purpose of taxation “all cars used exclusively within this state, or used partially within and without the state, are hereby declared to have a situs in the state,” etc. The act also provides that every freight line company shall render a statement showing the total gross earnings received from all sources by the company within the state for the year ending December 31st; and section 5 defines the term “total gross earnings” as meaning “all earnings on business beginning and ending within the state, and a proportion, based upon the proportion of milage over which such business is done, of earnings on all interstate business done, of earnings on all interstate business passing through or into or out of the state;” and subsequent provisions require each freight line company to pay a tax “on its property and in lieu of all other taxes upon the same” equal to three per centum upon the gross earnings of the company as defined in the act. Taxes collected under this statute are to be paid into the state treasury and credited to the general revenue fund. .Section 7 provides for a certain penalty to be imposed for failing to furnish the required statements, while section 8 imposes a penalty for failing to pay the tax.\nIt appears that a small tax of thirty dollars and seventy cents was assessed against appellant as a freight line company under the act in question, and, upon refusal of appellant to pay, the treasurer was threatening to distrain sufficient goods and chattels belonging to complainant out of which to realize the tax and ten per cent, penalty thereon for each month after demand made. The company thereupon exhibited its bill for an injunction and obtained a temporary writ of *114injunction. Appellee appeared and demurred to tlie bill of complaint. The demurrer was sustained, the injunction dissolved, and the bill dismissed. From the decree dismissing the bill appellant prosecutes this appeal, contending, first, that appellant is -not a freight line company within the purview and meaning of this act; and, secondly, that if appellant comes within the provisions of the act it should have prevailed in this suit, because the act violates section 112 of our state Constitution, as also, clause 3 of - section 8 of article 1, and section 1, article 14,, of the Constitution of the United States.\nOpinion.\nAppellant by its bill admits that it is doing a large packing house business over the United States, including Mississippi, and that in the handling and shipping of its products it has found it economical and expedient .to have constructed and to use its own refrigerator •cars, suitable for the purpose of properly handling meats and other packing house products, and that these cars are the property of the complainant, used solely and only for the transportation of the complainant’s products. The bill further shows upon its face that these cars containing the property and products of appellant are drawn and carried over railroad lines in Mississippi. It is contended, however, that appellant owns no railroad in Mississippi or elsewhere; that it is not the lessee of a railroad; that its cars are its own property, and “are not used for profit or hire,” and therefore that appellant is not operating a freight car line within the meaning of the act under review.\nWe are of the opinion that complainant comes within the terms of the act. This statute appears to have been copied and indeed is almost an exact rescript of an act passed by the legislature of the state of Minnesota as chapter 250, Laws of 1907 of that state. The main dU-*115ference between the Minnesota statute and onr statute is that under the Minnesota law a tax equal to four per cent, of the gross earnings is imposed, whereas our statute imposes a tax equal to only three per cent. This very packing house company refused to pay the Minnesota tax, and a suit by the state brought that statute up for examination and review by the supreme court of Minnesota, as disclosed by the case of State v. Cudahy Packing Co., 129 Minn. 30, 151 N. W. 410. Section 1 of our statute is in the exact words of section 1 of the Minnesota statute, and the opinion of the Minnesota court, among other things, says:\n“We think defendant comes clearly within this law. The intention to bring the large shippers who furnish the cars for the transportation of their products is indicated, not only by the clause in parenthesis, but by the careful description of the kind of cars usually owned and operated by these shippers. . . . The defendant is not an equipment company, as described in the stipulation, nor as defined in the original statute. It was never. engaged in the business of furnishing or leasing cars to be used in the operation of railroads, but it furnished cars for the conduct of its own transportation business. . . . It is evident that operating here does not refer to the physical power exerted in moving the cars upon the railroad tracks, but to the-fact that the freight line company directs and controls the movement of the cars employed in the conduct of its transportation business as to kind and quantity of freight to be carried, the route, and the destination.”\nThe same contentions made by this company in the Minnesota case are now made before us. Appellant comes within the plain terms of the statute. It cannot free itself from the burden of this tax by simply averring in the bill that its cars are not operated “for profit or hire.” The manifest purpose of the statute is to impose a tax upon such property of the company as is used -or operated in Mississippi. It is a matter of common *116knowledge that these large packinghouse companies ship their products in carload lots and in their own cars, and these ears are virtually moving commissaries. Such-cars are not taxable as a part of'the rolling stock or equipment of railroads, for the simple reason that they do not belong to the several railway companies who contribute to the revenues of our state. It is certain that the use of these cars does not represent a donation to the railroads, and also that the use of the cars is a thing of' value. The bill does not follow up its allegation that the cars are not used “for profit or hire” by further allegations that the railroad .companies do not allow appellant a lower freight rate in the nature of a rebate or a sum of money equivalent to a rental value on each car. By the express terms of the statute appellant is engaged in “operating cars” over a railroad line or lines in Mississippi that belong to other companies. If appellant owned the railroad line, it of course would not come within the terms of the act. The very purpose of the' act is to impose a tax on cars not belonging to the railway companies.\nIt is further to he noted that chapter 114, Laws of 1912, entitled “An act «providing for the taxation of equipment companies,” was passed by the legislature at the same time and was approved on the same day that chapter 1.13 was approved. The essential business of an equipment company is to hold title to cars, engines, and rolling stock, and furnish same for the use of railroad companies for a stipulated profit, rental, or hire, and to serve as a device to prevent the equipment from becoming subject to the lien of trust deeds or mortgages executed by railroad companies. The defense interposed by appellant would be more appropriately pleaded against chapter 114, taxing equipment companies. It is our judgment, therefore, that complainant made sufficient admissions in its bill of complaint to bring it within the terms of the statute.\n*117Without discussing in detail the objections to the •constitutionality of the law, we hold that the statute does not contravene either section 112 of our state Constitution or any provisions of the Federal Constitution. By the express provisions of section 112 of our state Constitution the legislature may provide for a special mode of valuation and assessment for “ corporate property, or for particular species of property belonging to persons, corporations, or associations not situated wholly in one county.” The Legislature in its wisdom has adópted this method of arriving at the valuation of that portion of appellant’s property used in Mississippi, and the tax imposed is in lieu of all other ad valorem taxes. It is a means of imposing a legitimate tax upon the rolling stock of appellant situated in and used in Mississippi. The tax is equal and uniform, as contemplated by section 112, because all property of the same kind is classed for taxation in the safe way.\nThere is no manifest effort here by the legislature to burden interstate commerce. “The mere fact that a corporation is engaged in interstate commerce does not exempt its property from . . . taxation.” Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 34 Sup. Ct. 15, 58 L. Ed. 127. “A resort to the receipts of property or capital employed, in part at leást, in interstate commerce, when such receipts or capital are not taxed as such, but are taken as a mere measure of a tax of lawful authority within the state, has been sustained.” Id. On both of these propositions abundant authorities are collated in the opinion of the United States supreme court just referred to.\nIt must readily be conceded that our state has no right to impose a tax that directly burdens interstate commerce. The present company, however, is not chartered primarily to transport commerce, although it is doing an interstate business. It is engaged in the general business of slaughtering animals and of packing *118and selling their products. In doing this business in Mississippi it owns and uses its own cars, and these cars so situated or used in Mississippi are' proper subjects 'of taxation. “By whatever name the exaction may be called, if it amounts to no more than the ordinary tax upon property or a just equivalent therefor, ascertained by reference thereto, it is not open to attack as. inconsistent with the Constitution.” Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 15 Sup. Ct. 268, 39 L. Ed. 311; U. S. Express Co. v. Minnesota, 223 U. S. 335, 32 Sup. Ct. 211, 56 L. Ed. 459.\nIn the present ease a very small tax has been assessed against appellant. Just how the amount of this tax was arrived at the bill does not show. We are justified in assuming that appellant complied with the statute in furnishing the statements called for by the law in question, and that upon the information furnished the amount of the tax was assessed in accordance with the terms of the statute. Be that as it may, the bill does not advise the court how many cars appellant uses or operates in Mississippi, and does not charge that the state officers in levying the tax pursued any method except that provided by the statute. The gravamen of the bill is an assault upon the constitutionality of the statute, and, the objections on constitutional grounds being without merit, we think the bill fails to state a cause of action. The learned chancellor in disposing of the case prepared and delivered a written opinion, the reasoning of which, as well as the decree based thereon, meets with our approval.\n\nAffirmed.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cudahy-packing-co-v-stovall","summary":"Appeal from the chancery court of Hinds county. Hon. O. B. Tavlob, Chancellor. Bill for injunction hy the Cudahy Packing Company against P. S. Stovall, state treasurer. Demurrer sustained, temporary injunction dissolved, bill dismissed and complainant appeals. The opinion of the chancellor, referred to in the opinion of the court, was as follows-: The complainant in this case is an Illinois corporation, having its domicile and principal office in the city of Chicago. It is a packing house company, and in the conduct of its business of delivering its products to dealers and consumers uses refrigerator and other cars owned by it exclusively and used only for the purpose of transporting its own products. It does not ■ own, nor has it leased, any railroad line in this state, but the various railroad companies haul its cars for hire into Mississippi and into many other states where the said company sells its products. Chapter 113 of the laws of Mississippi of 1912 designates as freight line companies every person or corporation engaged in the business of operating cars, or of furnishing or leasing cars, not otherwise listed for taxation in Mississippi for the transportation of freight on railroad lines in whole or in part within the state, the said railroad lines not being owned, leased, or operated by 'such person or* corporation. The chapter provides for certain sworn statements to be made to the state auditor by such freight line companies, and declares that for the purpose of taxation all cars of such companies used exclusively or partly within and partly without this state have a situs within this state. The chapter further provides in section 5 for a tax upon the property of such companies, in lieu of all other taxes, of 3 per centum upon the gross earnings of such companies; the term ‘ ‘ gross earnings” to be construed to mean all earnings on business beginning and ending with this state, and a proportion, based upon the proportion of mileage over which such business is done, of earnings on all interstate business passing through, or into, or out of the state. The remaining sections of the act provide for the collection of the tax, and for penalties for failure to furnish statements, or for failure to pay the tax. Complainant filed its bill in the chancery court and secured an ■ injunction to prevent the collection of the tay, seeking to avoid it on the ground that it is not a freight line company within the meaning of the act, and further upon the ground that the act is in violation of certain provisions of both the state and the United States Constitutions. We are of the opinion that under this act the complainant is classed as a freight line company, and it only remains to consider whether or not the act violates any of the provisions of the Constitutions. In the outset it should he noticed that the tax imposed is in lieu of all other taxes upon the said property of complainant. We do not think it is a privilege tax, hut that the legislature, following the provisions of section 112 of the state Constitution, which recognizes the fact that it is necessary for a special mode of valuation to he provided for assessing corporate property not wholly within one county, has provided for a plan to arrive at the true valuation of the property to be taxed. In other words, the legislature simply means to say that the value of complainant’s property for taxation does not only consist of the actual value of the cars used by it, but that the real value is reached by adding to this that increased value and worth which arises by reason of the fact that these cars are used in connection with and as a part of a great business, operating over many lines of railroad, through many states, and possessing valuable franchises, rights,, and privileges, and forming 'one indivisible unit. In fact, doubtless, the principal value of its property consists in all this, combination of units, all interwoven and interrelated to each other, and making, as stated, one great business. The right of the states to reach and tax this true value is conceded over and over again in decisions of the supreme court of the United States. We mention this to show that the contention that the tax is not uniform and , equal with other taxes, that it is out of proportion to the value of the property, and that it denies complainant equal protection of the laws, is without merit. Aside from this, however, we think that under this act all property of the same kind and class is classed for taxation in the same way, and, as we understand it, is therefore equal and uniform in a constitutional sense: To our mind, the real difficult problem in this case is the solution of the question as to whether or not this act does not violate the .clause of the Federal Constitution in reference to interstate commerce. There are a great number of decisions of the supreme court of the United States construing this section from cases arising under taxation statutes of the various states, the statutes being, somewhat similar to the act here in question. Some of these decisions sustain, others condemn, the statutes, and it is very difficult, indeed, to arrive at the true line between that class of statutes which have been upheld and those which have been condemned. As we have stated, the supreme court holds that not only' is the physical property, such as cars, track, wire, etc., of corporations engaged in interstate commerce taxable within the state where situated, but that in addition to this the state has the power to tax all the property of such corporations used in interstate business, in proportion to the mileage within the state as compared with' the mileage ■ without the state, and that to this may also be added the proper proportion of the increased value of such property which arises and is created by reason of its separated articles of property being combined and used as one unit, and making an extensive business, possessing valuable franchises, privileges, and rights, and extending into many states and over many lines of railroad. It has also consistently held that although the transportation of the subjects of interstate commerce, or the receipts received therefrom, or the occupation of the business of carrying it on, cannot be directly subjected to state taxation, yet property belonging to corporations engaged in such commerce can be, and, whatever the particular form -of the exaction, if it is essentially only property taxation, it will not be considered as falling within the inhibition of the Constitution. The fact that the proper taxation of its property may have the effect of incidentally affecting interstate commerce makes no difference at all. It enjoys the protection of the laws of the state government, and is under obligation to contribute to its support. It matters not by what name a tax may be called, yet if it amounts to only a tax upon its property, then such a tax is valid. In this case we do not believe that the tax is imposed upon the gross earnings, hut that these gross earnings are used simply and alone, as we have stated, for the purpose of arriving at the value of the property taxed. The statute plainly says that it is upon the property of complainant, and goes further in saying that it shall he in lieu of all other taxes. \"We believe that a careful reading of the following •cases will disclose the fact that under the law the property of complainant is properly taxable under the act and that the same is constitutional: Case note, '57* L. R. A. 59; Maine v. Trunk By. Go of Canada,-142 U. S. 217, 12 Sup. Ct. 121, 35 L. Ed. 994; Wisconsin & Michigan By. Go. v. Powers, 191 U. S. 379, 24 Sup. Ct. 107, 48 L. Ed. 229; Adams Express Co. v. Ohio State Auditor, 165 U. S. 194, 17 Sup. Ct. 305, 41 L. Ed. 683, and rehearing on same case, 166 U; S. 185, 17 Sup. Ct. 604, 41 L. Ed. 965; Henderson Bridge Go. v. Kentucky, 166 U. S. 150, 17 Sup. Ct. 532, 41 L. Ed. 953; Cleveland etc., B. B. Go. v. Backus, 154 U. S. 439, 14 Sup. Ct. 1122, 38 'L. Ed. 1041; Western Union Tel. Go. v. Massachusetts, 125 IT. S. 530, 8 Sup. Ct. 961, 33 L. Ed. 790; American Bef%igerating Transit Go. v. Hall, 174 U. S. 70, 19 Sup. Ct. 599, 43 L. Ed. 899; Union Bef. T. Co. v. Lynch, 177 U. S. 149, 20 Sup. Ct. 631, 44 L. Ed. 708. As to due process of law and equal protection of laws under the Fourteenth Amendment: Merchants’ & Manufacturers’ Bank v. Pa., 167 U. S. 461, 17 Sup. Ct. 829, 42 L. Ed. 236. For the foregoing reasons we are of the opinion •that the demurrer is well taken and should be sustained.","syllabus":"1. Taxation. Refrigerator cars. Earnings. Constitutional provisions. Special mode of valuation and assessment. Equal protection of law. Uniform and equal. Burden upon interstate commerce.
Laws 1912, chapter 113, sections 1-8, designating as freight line companies every corporation engaged in the business of operating, furnishing or leasing cars for the transportation of freight on railroad lines in whole or in part within the state not owned or operated by such corporations, and not otherwise listed for taxation, and requiring such corporation to make certain sworn statements to the state auditor, and providing that for purposes of taxation such cars shall have a situs within the state, and imposing a tax upon the property of such corporations of three per cent., upon their gross earnings, and providing for the collection of sucb tax, and penalties for failure to furnish a statement or to pay the tax, considered with Laws 1912, chapter 114, taxing equipment companies, includes refrigerator cars, the property of a packing company, used solely for the transportation of its products over railroad lines within and without the state, though it owns or leases no railroad within the state or elsewhere.
2. Taxation\". Refrigerating cars. Earnings. Constitutional provisions. Special mode of valuation and assessment.
Such Statute does not contravene either section 112 of our state Constitution or any provision of the Federal Constitution, since by the express provisions of section 112 of our state Constitution the legislature may provide for a special mode of valuation and assessment; for corporate property or for particular species of property belonging to persorts, corporations or associations not situated wholly in one county, and such statute is a means of imposing a legitimate tax on the rolling stock of a- packing company situated and used in the state.
3. Same.
Such tax as equal and uniform as contemplated by section 112, because all property of the • same kind is classed for taxation in the same way.
4. Same.
Such tax' is not invalid as imposing a burden on interstate commerce. The mere fact that a corporation is engaged in interstate commerce does not exempt its property from taxation and since resort to the receipts of property or capital employed in part at least, in interstate commerce,' when such receipt or capital are not taxed as such, but are taken as a mere measure of a tax of lawful authority within the state, such tax is within the taxing power of the state.
"} {"attorneys":"Lawrence & Tuttle (Barnes, Richardson & Colburn by Edward N. Clad and Paul J. Covin, of counsel) for the plaintiffs., 'William S. Orriclc, Jr., Assistant Attorney General (Sheila N. Ziff and Murray Ciclar,off, trial attorneys), for the defendant.","case_name":"Hudson-Rissman v. United States","case_name_full":"Hudson-Rissman H. H. Elder & Co. v. United States","case_name_short":"Hudson-Rissman","citation_count":0,"citations":["46 Cust. Ct. 80"],"court_full_name":"United States Customs Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Customs Court","court_type":"FS","date_filed":"1961-02-09","date_filed_is_approximate":false,"id":8147680,"judges":"Donlon, Eichardson, Johnson, Riohaedson","opinions":[{"author_str":"Johnson","ocr":true,"opinion_id":8109108,"opinion_text":"\nJohnson, Judge:\nIn these protests, consolidated at the trial, it is claimed that merchandise described as original paintings on glass, assessed with duty at 30 per centum ad valorem under paragraph 218 (f) of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T.D. 51802, and T.D. 51898, as articles of colored glass is entitled to free entry under paragraph 1807 as original paintings or is dutiable at 10 per centum ad valorem under paragraph 1547(a) ,-as modified by the General Agreement on Tariffs and Trade, T.D. 51802, as works of art.\n*81Prior submission of these cases was set aside to permit the introduction of evidence to establish that protest No. 59/3478 was filed by an authorized person. Hudson-Rissman et al. v. United States, 44 Cust. Ct. 453, Abstract 64140. Evidence of such authorization has been produced by stipulation of the parties. We overrule the collector’s objection and hold that said protest was filed by a duly authorized attorney for the plaintiffs.\nThe merchandise involved in this case consists of- an article covered by protest No. 59/3305, described on the invoice as an original painting on glass, signed by Dube, and articles covered by protest No. 59/3478, described on the invoice as a decorated bowl for wall, listed as a manufacture of glass, and wall decorations of painted glass by Dube on various backgrounds and, respectively, entitled “Abstraction,” “Arena,” and “Fish,” listed as original works of art.\nThe provisions of the tariff act, under which claims are made, read as follows:\nPAR. 1807. Original paintings in oil, mineral, water, or other colors, * * * and the words “painting,” * * * as used in this paragraph shall not be understood to include any articles of utility or for industrial use, * * *. [Free.]\nPar. 1547. (a) Works of art, including (1) paintings in oil or water colors, * * * 20 per centum ad valorem.\n[Par. 1547, ,as modified by the General Agreement on Tariffs and Trade, T.D. 51802].\nWorks of art, not specially provided for:\nPaintings in oil or water colors, * * *_10% ad val.\nThe articles involved herein are not articles of utility or for industrial use. The question before the court is whether they are classifiable as original paintings under paragraph 1807 or as works of art under paragraph 1547 or said paragraph, as modified, as claimed by the plaintiffs, or are properly dutiable as assessed by the collector as articles of colored glass.\nThe only evidence that any of the items involved is a work of art is contained in the testimony of Robert H. Rissmam. Mr. Rissman is a copartner in a wholesale accessory and arts shop, which sells objects of art .and other commercial items, such as ashtrays, cigarette boxes, baskets, wooden tables, iron or steel .benches, glass shelves, photographs, trays, flower containers, book ends, wastepaper baskets, and umbrella holders. He stated that he had been collecting art for 25 years, but gave no details as to type. While he said he had majored in art in school and had spent most of his life studying, he did not specify what schools he attended nor under whom he had studied. He also said he had visited museums and attended openings of art shows and that it was part of his business to know artists and to be able to recognize fine art in order to know the value of the objects he *82sells. He is in the wholesale business and sells primarily to interior decorators and dealers. His conception of a work of art is as follows:\nWell, it is something to me that is completely original in its concept and it is something that seems to remind you that it would have a lasting effect. It is actually I feel, it is something if you recognize, if you hare been in the field a long time, it is something you recognize. You sort of know it is a work of art and especially if it is a painting regardless.\nThe merchandise involved in this case consists of paintings on glass and a bowl, designed and signed by one Dube. The witness testified that he had first heard of Dube about 5 years ago through Fontana, a manufacturer of crystal in Milan; that, subsequently, Amberg and Hirth (who were not otherwise identified) told him of his work; that he ordered some paintings and then went to Europe to see Dube and recognized him as a fine artist. He learned that Dube had been educated at the University of Bologna and that his work was represented in museums in Milan, Nome, and Vienna. He did not specify the museums or state whether the works were on permanent exhibit.\nThe witness testified that he had imported about 2 dozen Dube items over the last 3 years. He mentioned one in particular which he said was an original piece, never duplicated. He described the items as large paintings on thick crystal glass, painted on the reverse side in oil and sealed. He added that they were imported through Fontana who does the glass and that Dube does the work for Fontana. He had never sold any of Dube’s work to an art gallery and explained that he could not because he is in the wholesale business.\nThere is no testimony that the paintings on glass are works of art, and the only evidence in regard to the bowl is as follows:\nXQ. I refer you to entry under Protest 69/3478, unit No. 1088, decorative bowl for wall, irregular shape, 61 centimeters diameter, was this made by Dube ? — A. That is Dube.\nXQ. You claim that to be a work of art? — A. Yes. It is a wall treatment. They happen to call it a bowl there.\nThe record as presented does not establish Mr. Bissman as an art expert, nor even as an art dealer, but as a seller of various items to dealers and interior decorators. His conception of a work of art is extremely vague and does not show him to be qualified as a judge thereof. The testimony which he gave is clearly insufficient to establish that any of the items, including the bowl, is an original painting within the meaning of paragraph 1807 or a work of art within the purview of paragraph 1547.\nWhile the articles covered by paragraph 1547 are not the “fine art which is the product of a somewhat rare and a very special genius” provided for in paragraph 1807 (Wm. S. Pitcairn Corp. v. United States, 39 C.C.P.A. (Customs) 15, 34, C.A.D. 458), not all decorative articles are included therein. United States v. Mrs. Adelaide Ehrich, *8322 C.C.P.A. (Customs) 1, T.D. 47019. There must be some evidence to show that the items in question are in fact works of art. In the Pitcairn case, it was held that the phrase “works of art” in paragraph 1547 (a) contemplates that the original statuary or sculptures shall be the work of professional artists, but that the copies, replicas, or reproductions of figurines coming from molds need not receive the inspection, supervision, and care of a professional sculptor. In the instant case, whether or not Dube was a professional artist or a skilled artisan in the employ of Fontana does not clearly appear.\nOn the record presented, the protests are overruled. Judgment will be rendered for the defendant.\n","per_curiam":false,"type":"020lead"},{"author_str":"Donlon","ocr":true,"opinion_id":8109109,"opinion_text":"\nCONCURRING IN PART AND DISSENTING IN PART\nDonlon, Judge:\nI concur with my colleagues that the evidence of record shows that the articles of this litigation are not articles of utility or for industrial use, and I concur also that there is no evidence that the paintings on glass are works of art. I am of opinion, however, that there is a prima facie case, established to be sure by testimony defendant elicited on cross-examination, that the bowl here in question is a work of art within the scope of the dutiable provision of paragraph 1547. The witness Kissman so testified.\nThat defendant is bound by the adverse testimony it elicits, is well established. It is evidence to be weighed with other evidence.\nAs Judge Eichardson pointed out in United States v. Baar & Beards, Inc., 40 Cust. Ct. 874, 881, A.R.D. 85, citing authorities:\nIi there be contained therein [the Government’s evidence] competent evidence beneficial to the importer, we think [the] importer is entitled to have the same considered and weighed along with all the evidence in the case. [Golding Bros. Co., Inc. v. United States, 21 C.C.P.A. (Customs) 395, 400, T.D. 46926. See also Florea & Co., Inc. v. United States, 7 Cust. Ct. 581, Reap. Dec. 5489.]\nThe court of appeals reversed the decision on the ground, inter alia, that what had been held below to be competent evidence was, in fact, merely a conclusory statement and, therefore, not evidence at all. The established ruling, cited above, was not reversed, namely, that evidence elicited by defendant is entitled to weight.\nHere, the evidence identifying the article as a work of art is the only evidence on that subject, and it is not overcome by any other testimony. There is nothing else against which to weigh it. That, in my view, makes a prima facie case.\nWhile certainly it is true that not all decorative articles are included as works of art within the provision of paragraph 1547, as my colleagues correctly state, there are included in paragraph 1547 those inexpensive articles which are shown by the evidence of record to be works of art. We are not here concerned, as was the court in Wm. S. Pitcairn Corp. v. United States, 39 C.C.P.A. (Customs) 15, C.A.D. *84458, with copies, replicas, or reproductions of figurines from molds. This bowl is an original. That original works of art, relatively inexpensive, are subject to the paragraph 1547 duty was stated by our court of appeals in the Pitcairn, case, supra: “It seems not inappropriate to suggest at this point that the Congress which passed the .1930 Act evidently felt that there are, at least for tariff purposes, works of art, including statuary and sculptures, which are of low value so far as dollars and cents are concerned.” (P. 26.)\nAs to the qualifications of Mr. Eissman, the witness who testified, I find his qualifications, as a student and day-by-day practitioner of the decorative arts, sufficient to give evidentiary value to his testimony as to articles dutiable under paragraph 1547.\n","per_curiam":false,"type":"035concurrenceinpart"},{"author_str":"Eichardson","ocr":true,"opinion_id":8109110,"opinion_text":"\nCONCURRING OPINION\nEichardson, Judge:\nI should like to append a word to Judge Johnson’s opinion, with which I concur.\nI share the view that all evidence adduced in a case, whether it be by the plaintiff or the defendant, is entitled to weight, and I so stated in the case of United States v. Baar & Beards, Inc., 40 Cust. Ct. 874, 881, A.R.D. 85. The plaintiff in that case introduced only an affidavit which the Court of Customs and Patent Appeals, in reversing the decision of the majority opinion of this division, ruled to be “the conclusions of the affiant.” The Court of Customs and Patent Appeals did not rule on the competency and availability of the defendant’s evidence to establish the plaintiff’s case and concluded that “Since, however, no substantial evidence showing error in the appraiser’s valuation mas presented ~by the importer, there is no obligation on the part of the Government to offer any evidence.” [Italics added.]\nIn the instant case, while it is true that the plaintiff did answer “Yes” to the question on cross-examination by the Government: “You claim that to be a work of art?” it is insufficient to establish the bowl as a work of art.\n","per_curiam":false,"type":"030concurrence"}],"precedential_status":"Published","slug":"hudson-rissman-v-united-states"} {"attorneys":"Eor the appellants there was a brief by Quarles, Spence & Quarles, attorneys, and T. W. Spence and J. V. Quarles, Jr., of counsel, and a separate brief by Jackson B. Kemper, of counsel; and the cause was argued orally by Mr. J. V. Quarles, Jr., Mr. Spence, and Mr. Kemper., Eor the respondents there was a brief by Thomas M. Kearney and James Oavanaugh, and oral argument by Mr. Kearney and Mr. ffl. D. Thompson.","case_name":"Jeffery v. Osborne","case_name_full":"Jeffery and others, Executors v. Osborne and others, Receivers, imp.","case_name_short":"Jeffery","citation_count":0,"citations":["145 Wis. 351"],"court_full_name":"Wisconsin Supreme Court","court_jurisdiction":"Wisconsin, WI","court_short_name":"Wisconsin Supreme Court","court_type":"S","date_filed":"1911-03-14","date_filed_is_approximate":false,"disposition":"\nAffirmed.\n","headnotes":"\nRailroads: Condemnation of land: Parties: Receivers: Removal of cause to federal court: Appeal: By whom taken: Sufficiency of notice: Law of the case: Evidence: Value of land: Damages for taking: Availability of other lands: Expert testimony: Excessive award.\n
1. Where, pending a proceeding in a state court to condemn land for a railroad company, the company is placed in hands of receivers in an action in a federal court and such receivers, on their own application, are made parties to the condemnation action, they take that action as they find it, subject to the disabilities of the railroad company, and the case does not become one of federal cognizance so as to entitle them to have it removed to the federal court.
2. Where interests have been acquired in the subject of controversy by legal succession, as in the case of administrators, assignees in bankruptcy, or receivers, the persons acquiring such interests, on being made parties to the action, may prosecute an ap- ■ peal from a judgment therein adverse to the interests they represent.
S. Where in a condemnation action to which receivers of the railroad company had been made parties defendant judgment was rendered in terms against the defendant company, a notice of appeal by the receivers, properly entitled in the action and giving the date and amount of the judgment but referring to it as being against the “defendants,” and an undertaking on appeal describing the judgment as one against the receivers, were sufficient to give the appellate court jurisdiction.
4. Legal propositions upon which the decision of the supreme court was based in the opinion on a former appeal are, whether right or wrong, the law of the case upon subsequent trials or appeals.
5. It seems, as an original proposition, that if lack of opportunity for expansion be a proper element to consider in estimating damages to a manufacturing plant a part of whose land is taken for railroad purposes, evidence that other adjoining land was • readily purchasable, or was in fact purchased, at moderate cost, upon which the plant could be enlarged, would be admissible- and proper to be considered by the jury to mitigate such damages.
6. But where, upon a former trial, the railroad company procured an option upon adjoining land and tendered it to the owner of the plant to replace the land taken, and the supreme court on appeal from the judgment sustained the trial court’s rejection of the offer on the ground that it was not material that plaintiff could move his plant to other land, or, in effect, swap land for the accommodation of the railroad company, the question was-foreclosed on the second trial, and proof of the availability and price of.adjoining land was not admissible.
7. Experts in the manufacturing business, acquainted from long: years of experience with the values and needs of plants of that, kind, are competent to testify to the value, as part of a manufacturing plant to which it belonged, of a strip of land taken for the right of way of a railroad company, though having no-knowledge at all as to the value of bare land in the-vicinity, especially where there is practically no dispute on the question, of the value of the strip as mere land.
8. The refusal of the trial court, on motion, to strike out the evidence of a witness on the ground that, in stating the value of a strip taken by a railroad company, he had included damages to-the entire tract from which it was taken and had thus duplicated damages, was not a prejudicial error where the verdict: was amply supported by the evidence of seven disinterested experts.
9. An instruction to the jury in a condemnation suit that in estimating and determining the fair market value of the strip of' land taken they should consider that it was “part and parcel of and used in connection with the tract and premises of the-plaintiff,\" also the “use to which it was in whole or in part devoted,” and “the uses to which it was or was intended by the-owners in the immediate future to be applied,” was not improper as permitting the jury to duplicate damages. Jeffery v. 0. <& M. E. JR. Go. 138 Wis. 1, distinguished.
10.It is settled law in this state that in awarding damages for the-taking of land for railroad or highway purposes the strip taken is to be valued as part and parcel of the entire tract of which it formed a part; that the landowner is entitled to recover the difference between the fair market value of the whole property before the taking and the value of what remains after the tak~ ing; and that the actual use and intention of the proprietor is to he considered as well as the adaptability of the property for some other use in future.
11. In a proceeding to condemn land for a railroad, the juries in two successive trials having awarded substantially the same amount of damages, which, though large, is supported by ample evidence, the court declines to interfere on the ground that the award is excessive.
Mabshat.l, J., dissents.
","id":8226345,"judges":"Marshall, Winslow","opinions":[{"author_str":"Winslow","ocr":true,"opinion_id":8190165,"opinion_text":"\nThe following opinion was filed January 10, 1911:\nWiNslow, C. J.\nThis is a proceeding by an electric railway company to condemn a strip of land 100 feet in width running through the manufacturing plant of the respondents at Kenosha. The case was once here upon an appeal from the verdict of a jury fixing the damages at $125,000 (Jeffery v. C. & M. E. R. Co. 138 Wis. 1, 119 N. W. 879), and the judgment was reversed and the action remanded for a new trial. While the case was pending here the railway company was placed in the hands of receivers in an action in the federal courts, and upon return of the case to the trial court such receivers were made parties defendant on their own application. A second trial resulted in a general verdict for *354tbe plaintiffs, assessing the damages at $133,000. From judgment against the railway company upon this verdict the receivers have appealed.\nSome preliminary questions are raised which will be first considered.\nImmediately after the order made by the trial court admitting the receivers as parties to the action, they presented a petition for the removal of the case to the United States court on the ground that the case became one of federal cognizance, such receivers being officers of the United States and the matter in litigation involving property in the hands of such receivers. This application was denied and, as we think, rightly so.\nThe receivers came into the action not as necessary parties thereto, but simply as proper parties to maintain and defend the property rights which had been placed in their hands. They succeed to the interests of the railway company, but their rights in the case are no broader than the rights of the corporation itself. They take the suit as they find it, subject to the disabilities of the party whose interests they represent. Their presence raises' no question of federal cognizance. Speckert v. German Nat. Bank, 98 Fed. 151; Gableman v. P., D. & E. R. Co. 179 U. S. 335, 21 Sup. Ct. 171.\nThe judgment in the case was rendered in terms against the railroad company, and further provided that, upon payment into court of the amount of damages awarded, the exclusive use of the condemned premises should vest in the company for railroad purposes. The notice of appeal was entitled in the case, giving the names of both the company and the receivers as defendants, and gave notice that the receivers appealed from the judgment “rendered by the circuit court of Kenosha county in the action above entitled, entered on the 30th day of November, 1909, in said court in favor of the plaintiffs and against said defendants.” The undertaking accompanying the notice also described the judgment as *355one recovered against tbe receivers. Upon these facts the respondents now claim, first, that the receivers have no right of appeal, and, second,, that they have not in fact taken an appeal.\nBoth contentions must be overruled. As before stated, the receivers were proper parties to the action. By their order of appointment they were required to take possession of the property of the defendant corporation, manage its business, and prosecute and defend all such actions as might be necessary or advisable for the proper protection of the property and the trust vested in them. It was plainly their duty to defend these proceedings, and just as plainly their duty to take an appeal from the judgment if, in the exercise of a reasonable and sound discretion, it seemed that prejudicial error had occurred, by reason of which the amount of the award had been increased. The strip in question had been taken possession of by the railroad company and $50,000 had been paid into court by the company as damages, being the amount awarded by the commissioners. The rights of the company in the strip were valuable and it was essential that those rights be protected by the receivers. As to the right of the receivers to appeal from the judgment there can be no serious question. The general rule is that where interests have been acquired in the subject of the controversy by legal succession, such as the interests acquired by administrators, or assignees in bankruptcy, or receivers, the persons acquiring such interests may, on being made parties to the proceeding, prosecute an appeal from a judgment against the party whose interests they represent. Elliott, Appellate Procedure, §§ 133, 131.\nAs to the form of the notice and undertaking on the appeal there is doubtless something to be desired. The judgment was not described with exact legal accuracy in either paper; nevertheless there was no possibility of mistake. The action was correctly entitled, and the dates and amount of the judgment properly given. It was called in the notice a judg*356ment against tbe “defendants” and in tbe undertaking a judgment against tbe receivers, naming them in tbeir official capacity. In legal effect tbe judgment might properly be said to be a judgment against tbe receivers in tbeir official capacity, because while it did not bind them personally it way adverse to tbe interests of tbe trust which they represented and were bound to protect and defend, and in this sense was a judgment against them. In any event there could be no question as to tbe judgment which was referred to in tbe appeal papers, and tbe verbal inaccuracy, if any there was, in tbe notice and undertaking cuts no figure.\nWe pass now to tbe merits of tbe appeal. Tbe piece of land which has been condemned here is a strip 2.3 acres in extent and is 100 feet wide and 1,013 feet long north and south, running through a large automobile manufacturing plant. While it took no substantial buildings, it separated the principal buildings of tbe factory on tbe east from tbe testing track on tbe west and took space upon which a building bad already been begun. Tbe factory was situated in tbe outskirts of tbe city of Kenosha and there was vacant land to tbe west and to tbe north. Tbe witnesses for tbe plaintiff, who placed tbe damages at somewhere from $125,000 to $200,000, all testified that opportunity for expansion bad much to do with tbe value of manufacturing plants and sites, and tbe testimony was further to tbe effect that by tbe taking of this right of way tbe opportunity of expanding tbe factory upon tbe premises owned by the plaintiffs on tbe west was very seriously impaired, if not practically destroyed. Tbe plaintiff Thomas B. Jeffery himself testified that after tbe condemnation proceedings were commenced be bad purchased lands immediately north of bis buildings and east of tbe right of way, comprising something less than thirty acres, at $1,100 to $1,200 per acre, and that be also purchased a block of land on tbe east of bis factory for $24,200. Upon these premises so purchased be bad erected additional factory *357buildings and thus expanded tbe plant. It was also admitted on tbe trial tbat at tbe time of the taking vacant land could be bought immediately north of the plaintiffs’ buildings for $1,100 to $1,200 per acre.\nMr. F. L. Mitchell, being called as a witness for the plaintiffs, testified that in his opinion the plaintiffs’ plant was worth $500,000 before the taking of the strip in question and $350,000 to $315,000 immediately after the taking, and that opportunity for expansion had much to do with the value. Upon cross-examination Mr. Mitchell was asked the following question in several different forms and upon objection the evidence was excluded:\n“Q. Now,. I desire to ask you whether the fact that to the north and south and east there were other available lands purchasable at approximately the market value of suburban lands, say a thousand dollars, or thereabouts, an acre, would not make a material difference in the valuation that you would put upon this plant before and after the taking ?”\nThe same question, was also raised in a different form by the refusal of the court to give to the jury the following instructions which were requested by the defendant:\n“3. While you may not take into consideration the price, or the opportunity of acquiring adjoining land for any contemplated extension of the plant, in mitigation of damages, you may consider the same as bearing upon the market value of the plant; that is to say, the existing opportunity of acquiring land for additional buildings and for piling and storing lumber and other material may be considered by you, applying the evidence of such opportunity and of the cost of such additional land solely to the question of the decrease in the market or salable value of the remainder of the plant, and to aid you in weighing the opinion testimony of witnesses as to the lessening of the market value of the part not taken, by the taking of the strip.”\n“8. You may consider the expansion and enlargement of the plant since the taking and the manner in which the same has been accomplished as evidence of the capacity for such *358enlargement immediately after tbe taking, and tbe availability of particular portions of tbe tract for improvements incidental to sucb expansion, as bearing upon tbe question of tbe lessened value of tbe part not taken caused by tbe taking of tbe strip in question and tbe opinions of witnesses given thereon.”\n“12. In determining tbe diminution, if any, in market value of tbe property not taken by tbe taking of tbe strip, if you determine tbat any diminution in value was occasioned by lack of opportunity for expansion of tbe plant, you may consider tbe market value of adjacent lands and tbe amount thereof suitable for tbe uses of tbe plaintiffs and tbe amount thereof obtainable by tbe plaintiffs as an element in determining tbe amount of sucb diminution of market value and as bearing upon tbe weight to be given to tbe opinion of witnesses as to tbe diminution of tbe market value of tbe property not taken.”\nTbe instructions given by tbe court touching this question were as follows:\n“In tbe examination of certain of tbe witnesses questions were propounded which included reference to parcels of real estate lying outside of tbe lands owned and occupied by tbe plaintiffs March 3, 1906. In reaching your determination in this case you will not consider tbe availability, if any, of lands outside of tbe lands in question owned by the plaintiffs March 3, 1906, or tbat sucb outside land might have been acquired by tbe plaintiffs, or tbat they have since acquired any sucb lands. Sucb matters may not be shown or considered in this case for tbe purpose of reducing tbe compensation to which tbe plaintiffs are entitled. Tbe owners were not required to move part of tbe plant to other lands for tbe accommodation of tbe defendant railroad company. Tbe compensation to which tbe owners are entitled is to be based upon tbe conditions as they are proven to have existed March 3, 1906, before tbe taking of tbe strip, and after tbe taking of tbe strip. Tbe evidence offered and received in this ease as to tbe then market value of land in tbe immediate vicinity of tbe tract owned by tbe plaintiffs may be considered by you in determining the value of tbe parcel taken by tbe railroad company, and tbe damage, if any, to tbe remain*359der of tbe land of wbicb sncb tract taken formed a part on tbe 3d day of March, 1906, and in considering tbe weight and value to be given by yon to tbe opinions expressed by tbe several witnesses.”\nAll of these rulings raise tbe same question, namely, whether tbe admitted fact that other adjoining land was readily purchasable upon wbicb tbe plant could be enlarged was a proper fact to be considered by tbe jury in estimating tbe damage to plaintiffs’ property, in view of tbe testimony to tbe -effect that lack of opportunity for expansion bad much to do with tbe estimates of value of such property.\nAs an original proposition we should find it very difficult, if not impossible, to sustain tbe rulings of tbe trial court. If, as tbe witnesses testified, tbe damages would be enhanced because opportunity for expansion of tbe works was impaired or destroyed by tbe taking of tbe strip, it would seem logically to follow that tbe fact that tbe opportunity for expansion still existed by tbe expenditure of a comparatively insignificant sum of money would have a vital bearing on the question of tbe amount of tbe damage^ i. e. reduction in market value suffered by tbe remainder of tbe plant.\nIt seems, however, that we cannot approach tbe proposition upon first principles. A very similar questiqn was presented to tbe court and considered upon the first appeal, and whatever legal propositions were laid down upon that appeal form tbe law of tbe case upon all future trials or appeals, whether those propositions be right or wrong. Upon tbe first trial tbe subject was approached from a somewhat different standpoint. Tbe taking of tbe strip encroached upon tbe east side of tbe circular testing track, making it necessary to shorten tbe track somewhat and increase tbe sharpness of tbe curves, and tbe defendant procured from tbe owner of land on tbe west an option for tbe purchase of a strip of land equal in size to tbe strip taken for a moderate price, wbicb would enable tbe plaintiffs to duplicate their previous testing track. This op*360tion tbe railroad company tendered to tbe plaintiff witb an assignment thereof and offered to prove these facts upon tbe trial. Upon objection tbe offer was rejected, and this ruling was one of tbe errors claimed upon tbe former appeal.\nIn treating tbe question this court then said:\n“Tbe obvious purpose of this offer was in mitigation of damages. Tbe fact that other lands in tbe immediate vicinity could be purchased from a third party at a moderate price, to which plaintiff should shift bis business, could not be shown to. reduce tbe damages to which plaintiff was entitled. It is not material that be could move part of bis plant to other land for tbe purpose of giving tbe appellant a right of way, and thus, in effect, swap land for tbe accommodation of appellant. . . . Tbe only relevancy such an offer could have, if admissible for any purpose, would be as tending to prove tbe value of land in tbe immediate vicinity of plaintiff’s plant on tbe question of value of tbe land taken and damages to other land.” [138 Wis. 14.]\nIt is true that some further reasons are given in tbe opinion as additional grounds for tbe bolding that tbe offer of proof was properly rejected, but tbe ruling is squarely rested upon tbe legal proposition above quoted as well as upon tbe other subsidiary grounds, and that proposition must necessarily be considered as settled in this case. That proposition is that tbe fact that other lands could be purchased in tbe immediate vicinity to which tbe plaintiff might shift bis business could not be shown to reduce tbe damages, but might probably be shown on tbe question of tbe value of tbe land taken and damages to other land. If this be tbe correct meaning of tbe former opinion, then it is quite apparent that tbe court’s rulings on tbe second trial were in accord witb tbe principles there laid down, which principles are tbe law of tbe case.\nIn charging tbe jury tbe trial court told them plainly that they were not to consider tbe availability of lands outside of the lands owned by tbe plaintiffs at tbe time of tbe taking, for *361the plaintiffs were not. required to move any part of their plant to other lands for the accommodation of the defendant and their compensation must be based upon the conditions existing at the time of the taking; but that evidence of the value •of adjacent lands might be considered in determining the value of the parcel taken and the damage to the land not taken.\nWe are not to be understood as approving of these propositions as independent legal principles, but simply as holding that the rulings are in substantial accord with the rules laid down by this court in the former opinion and which are conclusive so far as this case is concerned.\nThe foregoing question is the question which was mainly discussed upon this appeal, but there are some other questions raised which will be briefly considered.\nIt is said that the witnesses who testified as to the value of the plant before and after the strip of land was taken did not qualify themselves to testify as experts. It is true that a number of them were witnesses who lived in Racine and they did not claim to have knowledge of the value of land as land in that vicinity. If the question at issue had been the mere question of the value of land which had no value except for residence or farming purposes, they clearly would not have been qualified witnesses. But this was not the question. There was practically no dispute on the question of the value of the strip as mere land. The plaintiff fixed its value at about $1,100 per acre and no one disputed him. The question was as to the value of the strip as part of the manufacturing plant conducted by the plaintiff, and this was the question upon which these witnesses testified. They showed themselves to be experts in the manufacturing business and well acquainted, from long years of experience, with the values and needs of plants of this kind. It also appeared that they knew, by examination of the property at or very soon after the time when the land was taken, what its situation, *362condition, and general adaptability to tbe plaintiff’s business was. This knowledge, we think, qualified them to testify as experts on the question of the value of the manufacturing property before and after the strip was taken, especially in view of the fact that there was no serious controversy as to the value of the land taken considered merely as land not connected with any industry.\nGeorge Yule was called as an expert witness for the plaintiff on value. He testified that the value of the plaintiff’s plant before the taking of the strip was $600,000 and after the taking was $425,000. lie further testified that in considering the reduction in market value which would accrue to the part of the plant left on the east of the track he considered the fact of its not being able to extend. Being asked as to the market value of the strip taken, he stated that it was $50,000, and upon cross-examination that he considered as elements which went to make up this value “the matter of extension of the plant and the growth of the business” and. the difficulty and expense of proper supervision in case the plant was extended across the tracks, making two separate plants.\nThe defendant then moved to strike out Mr. Yule’s testimony as to the value of the'strip on the ground that he manifestly included in his estimate of value damages to the entire tract and thus duplicated damages, but the motion was denied. It may be possible that, under the rules laid down in the former opinion as to the duplication of the elements of damage, the defendant’s motion should have been granted, but we do not find it necessary to decide this question. Even should this be admitted, it does not seem to us that any substantial prejudice resulted from the denial of the motion. Seven disinterested witnesses testified in the case as to the damage to the property by the taking of this strip for railroad purposes, and all but one had placed the damage at somewhere from $150,000 to $200,000, while the remaining witness had *363placed it at $125,000 to $150,000. Tbe idea that the striking out of the testimony of one of these witnesses as to the value of the part taken would make any substantial difference in the result of the jury’s deliberations seems in the highest degree improbable. \"We therefore conclude that if there was error in the ruling it was nonprejudicial.\nThe court charged the jury in reference to the value of the strip taken as follows:\n“In estimating and determining the fair market value of the strip or parcel of land taken by the railroad company you will consider the fact that said strip of land was part and parcel of and used in conneciion with the tract and premises of the plaintiffs, described in the evidence, and you will not view the parcel taken as an isolated or separate parcel of land. You will further consider any and all -evidence relating to the situation of said strip, its general location with reference to the remainder of said plaintiffs’ premises, its surround ings, the use to which it was, in whole or in part, devoted, its availability and adaptability for valuable uses, its natural ad-. vantages, if any, arising out of its location and situation, the uses to which it was or was intended by the owners in the immediate future to be applied, and all the other evidence,, facts, and circumstances introduced and appearing upon the trial which will aid you in arriving at a just determination of said value.”\nThe appellant contends that this instruction allows the jury to duplicate damages and is in direct violation of the law laid down in the opinion of the court upon the former appeal. At first blush the contention seems to have weight, but we think that when the former opinion is carefully studied in connection with the peculiar questions which arose in that case it will be found that there has been no departure from the established law either in that opinion or in the charge now objected to.\nUpon the first trial the case was submitted to the jury upon two special questions, instead of upon a general verdict as was done upon the second trial. The first of these questions *364asked what was the market value of the strip taken considered as a part of plaintiffs entire tract as used in his business; and the second asked in whát amount was the fair market value of the remainder depreciated by the taking of the strip. It was considered that as these questions were framed they necessarily involved and demanded of the jury answers duplicating in some degree the damages. It was said in substance that the value of the strip as a part of the premises used in the plaintiff’s business must include deterioration in whole or in part of the remainder of the plant, and hence the same element was included in both questions and the sum of the answers must duplicate some part of the damages. It was clearly not intended to overrule or change the law governing the elements of damage in condemnation cases, for the ■cases which amply justify the charge of the trial court which is now attacked are cited upon page II of the opinion on the former appeal. Really the only point decided was that the form of the questions rendered duplication of damages inevitable, although some language in the opinion may seem to justify the idea that the decision goes further.\nSince a very early day in this state it has- been very well settled that in awarding damages for the taking of lands for railroad or highway purposes the strip taken is to be valued as part and parcel of the entire tract of which it formed a part; that the landowner is entitled to recover the difference between the fair market value of the whole property before the taking and the value of what remains after the taking; that the actual use and intention of the proprietor is to be considered as well as the adaptability of the property for some use in the future. Welch v. M. & St. P. R. Co. 27 Wis. 108; Driver v. W. U. R. Co. 32 Wis. 569; Watson v. M. & M. R. Co. 51 Wis. 332, 15 N. W. 468; Meinzer v. Racine, 74 Wis. 166, 42 N. W. 230; Washburn v. M. & L. W. R. Co. 59 Wis. 364, 375, 18 N. W. 328; Alexian Brothers v. Oshkosh, 95 Wis. 221, 70 N. W. 162; American States S. Co. v. M. N. R. Co. 139 Wis. 199, 120 N. W. 844.\n*365These cases, except the last, were in mind when the former opinion was written, as is demonstrated by the fact that a number of them were cited in the opinion, and had there been any intention of departing from them that intention would have been clearly expressed.\nIt is evident that the charge of the court now attacked was in substantial conformity with the law as settled in numerous decisions, and that law, not having been disturbed by the opinion on the previous appeal, is controlling here and entirely justifies the charge.\nIt is claimed that the damages are excessive. .Were this the first verdict we should feel some hesitancy in sustaining it, but there have now been two verdicts of substantially the same amount in this case by juries whose fairness is in no way impeached. There was ample evidence upon both trials -justifying the finding of the large amounts which the two juries have found. We see no reasonable probability that another trial would result differently, nor do we feel that there is any amount which the court can say that the jury should have found rather than the one which they actually did find.\nBy the Gowd. — Judgment affirmed.\n","per_curiam":false,"type":"020lead"},{"author_str":"Marshall","ocr":true,"opinion_id":8190166,"opinion_text":"\nThe following opinion was filed February 8, 1911:\nMARSHALL, J.\n(dissenting). I think fatal error was committed in holding that evidence of there being ample opportunity for respondents to purchase land adjacent to the manufacturing premises for use in expansion of the business was not admissible as bearing on damages to the property not taken, and, further, in refusing to instruct the jury that evidence of such opportunity was proper for consideration on such question. If the premise upon which my brethren grounded their decision be correct the conclusion is correct also. My judgment is that their reasoning was from a wrong premise'; first, because the question at issue was ex*366pressly excluded from the former opinion instead of being passed upon in favor of respondents; second!, if such question were not so excluded the former opinion is certainly very ambiguous in respect thereto and, therefore, should be construed in favor of a theory which will not convict this court of making what all now agree would he, as an original matter, a •clearly wrong and exceedingly unjust decision. Eor myself, I have no hesitancy in saying that I had no idea upon the former occasion of agreeing to a conclusion such as the court now reads from the opinion then rendered. I filed a dissenting opinion with reference to one vital question, treating the matter at considerable length. I did not mention the subject in hand because, as I read the opinion, so far as the subject was touched upon, it was in favor of the position taken by appellants on the second trial. That I gave careful attention to the language used before, must be supposed from my analysis of that part treating of the measure of damages, about which I will speak later. Certainly I would not have allowed the decision on the other point, now confessed to he wrong, pass without vigorously protesting, had I understood it as the court now does, hut would have discussed the matter fully in the opinion which I wrote.\nOn the first appeal it appeared that at the trial defendant offered proof in mitigation of damages, hy showing it had an option, which was at plaintiff’s disposal, to purchase a tract of land adjacent to the manufacturing plant and suitable for extension thereof; that the optioned land was purchasable at a low price compared with the value claimed for land taken and damages to the land not taken. The court on the second trial interpreted what-was said in the opinion as to the rejection of that offer as holding in such a case that proof of the market value of land available in place of the land taken is not admissible either as bearing on the value of that taken or damages to the land not taken. As indicated, while there is, as I understand, unanimity of thought that such doctrine, *367from an original standpoint, is wrong, my brethren confess it was written into the former opinion and so the court is powerless to correct it now.\nTo determine correctly what the court on the former occasion intended to decide we must start by facing the proposition it assumed to be dealing with. That can best be appreciated by this language of the opinion whereby the attempt was made to concisely state the matter:'\n“The obvious purpose of this offer was in [note the language'] mitigation of damages. The fact that other lands in the immediate vicinity could be purchased from a third party at a reasonable price, to which plaintiff should shift his business, could not be shown to reduce the damages to which plaintiff was entitled. . . . What has been heretofore said applies here as to the tender \\note the term again] in mitigation of damages, which it was obviously offered for. The •only relevancy such an offer could have, if admissible for any purpose, would be as tending to 'prove the value of land in the immediate vicinity of the plaintiff’s plant on the question of ■value of the land talcen and damages to other land.”\nIt will be seen the court, industriously, distinguished between proof “in mitigation of damages” and proof bearing on the value of the land talcen and damages■ to the other land. It then proceeded to hold that, as an offer “in mitigation of damages,” it was incompetent under any circumstances, and that as to the other purpose, not intended by the offer, it was properly rejected for reasons stated, which were curable. The distinction between the two phases of the matter was •evidently attempted to be emphasized.\nAs to the first phase mentioned, the court characterized the offer as an attempt to compel the plaintiff to submit to an •offer to “swap land for the accommodation of appellant” and thus mitigate damages. Turning to the other phase it was remarked that, “The only relevancy such an offer could have, if admissible for any purpose, would be as tending to prove the value of the land in the immediate vicinity of plaintiff’s *368plant on the question of value of the land taken and damages to the other land/’ plainly suggesting that for such purpose (note that such was the identical purpose we now have under consideration) evidence of the purchasable value of adjacent available and suitable land might be received.\nAs it seems to me the court thus, industriously, even if somewhat ambiguously, reserved the question as to whether such evidence for such purpose was relevant. Having done so the court proceeded to show that the evidence was not relevant for such purpose under the circumstances of the offer, so confining the discussion to that as to leave the matter in reserve as to whether, with infirmities removed, the evidence would have been relevant, and, at least, without casting any doubt on the question, and, in a reasonable view, suggest that it might.\n“But,” says the opinion, “the offer was not competent on the question of value of the land embraced in the optionbe-cause it “was not supported by any sworn testimony.” “The contents of the option were not made known, except by a general statement.” It “was not offered formally, so that coun-. sel could examine it, so far as we can discover from the record. Nor does it appear that the option was in force when the offer was made.”\nSummarizing somewhat, the foregoing is followed thus:\n“It is very obvious that it would be a dangerous rule to allow an adverse party, for the purpose of establishing the value of land, to put in evidence a writing purporting to be an option to sell at a named price, without any other proof verifying the facts stated in the option. This would, in effect, be to allow the appellant to malee proof by declarations-of third parties, not under oath.”\nDid not that by reasonable, if not necessary inference, suggest that proof of the value, for the purpose in contemplation here, was proper, though the manner of proof in the then situation for the particular reasons mentioned was improper?\n*369The discussion in the opinion was closed by conclusions in strict harmony with what we have said. Note the language of such closing: “The offer made . . . had no materiality, because . . . appellant could not transfer interests or rights in lands in mitigation of damages, and it was not competent on the question of value of the land therein described or in the vicinity.” That is, it had no materiality in any event, on what the court referred to as “in mitigation of damages” and was not competent on the other question, that of the “value of the land taken and damages to the other land,” because, under the circumstances the court had referred to, going to avoidable infirmities in the offered proof, it was not competent to show the value of the land described in the option. Not being competent therefor, of course, it was not as bearing on the ultimate fact in controversy. It was, in that respect, as if a witness to prove value were interrogated in respect to the matter in advance of proper proof in respect to his competency to testify on the question.\nErom the foregoing does it not appear quite plain that the court before did not intend to decide that, in a case of this sort, proof of the market and purchasable value of adjacent suitable land for the business disturbed by the invasion and deprivation in controversy, is not competent on the subject of “value of the land taken and damages to other land?” It does to me, and I wish as emphatically as possible to wash my hands of any intention of having been a party to making a decision now conceded to he'wrong, and from which seemingly flows a decision conceded to be unjust in fact if right in law.\nWas I derelict before in thinking that the opinion would be construed as I contend now it should be, and so neglecting to treat the subject in my independent opinion, as I did the other dominating one, endeavoring to escape responsibility for a seemingly radical departure from the settled law in respect to the latter, which we are now happily agreed would *370have been such departure, a way of escape from the dilemma I did not share in creating being found by treating that part of the opinion on the subject of measure of damages as ambiguous, and reading out of the obscurity a statement of the law in conformity to the views I then expressed ? If I were so derelict then, looking at the language I have analyzed fairly; in the most favorable aspect it will reasonably bear for respondents, is it not ambiguous, permitting, reasonably, of the meaning I read out of it being easily discovered therein ? If so, then why does not the rule which applies to the construction of contracts and statutes govern, viz.: of two reasonable meanings, one that is consistent with the law and will lead to a just result, and one that will render the contract or statute unlawful or lead to some unjust or some absurd result, the former should be adopted? I think these questions should be answered in favor of appellants instead of, unnecessarily, as it seems, confessing that the- court wrongly decided an important question on the former appeal and inflicting the consequences thereof on the appellants on this appeal. I do not doubt but what my brethren would fully agree with me in answering my last proposition in the affirmative. Where we differ is in respect to the others.\nThe instructions given on the last trial indicate to my mind, very clearly, that the trial court understood the subject under discussion was treated before in two aspects, as I have indicated, in one proof of the market value of outside available land being thought improper and in the other not so. Endeavoring to cover the first phase, supposed to involve whether plaintiff could be compelled to swap land in “mitigation of damages,” the judge said:\n“Such matters may not be shown or considered in this case for the purpose of reducing the compensation to which the plaintiffs are entitled. The owners were not required to move part of the plant to other lands for the accommodation of the defendant railroad company.”\n*371Directing attention to tbe other phase of the matter the court added:\n“The evidence offered and received in this case as to the then market value of the land in the immediate vicinity of the tract owned by plaintiffs may be considered by yon in determining the value of the parcel taken by the railroad company, and the damage, if any, to the remainder of the land of which such tract taken formed a part.”\nThat was the very purpose for which the rejected evidence was offered, not in “mitigation of damages” as the term was used in the former opinion. The rejected requests were phrased accordingly. The purpose thereof was to inform the jury that proof of opportunity to obtain suitable adjacent land and the probable cost thereof while not to be considered “in mitigation of damages” were in determining “damages to the other land.” It seems that the ambiguity in the former opinion was exaggerated by the trial judge, leading him to confuse the two ideas and so reject evidence plainly competent for one purpose, mistaking the offer thereof to be for another, and, not appreciating the somewhat shadowy distinction apparent from the facts of the former case there made between proof “in mitigation of damages” and circumstantial proof of the actual damages made in the way attempted, he got the idea that circumstantial proof thereof was not permissible. That is the only key I can see to unravel the obscurity in the charge. Looking at the language thereof and the ruling the charge seems fatally contradictory. Looking at the quoted language alone last referred to it seems in harmony with the spirit of the rejected instruction, but applying it to the rejected evidence and the case in general in the light of the former opinion, it seems the judge was of the opinion that this court held that the lessened value of land not taken caused by taking a part of the entire tract could not be established circumstantially. I insist that there is *372nothing in the former opinion necessarily requiring that view.\nFor the reasons stated I think the judgment should he reversed. There is at least one other reason which of itself calls for the same result. I think the trial court, though as an original proposition giving the law to the jury correctly, violated the law of this case in instructing, as he did, on the measure of damages. The instruction is quoted in the opinion of the court. As I read it, counsel for appellants. are right in the contention that the law as there stated is condemned in the former opinion. That condemnation was the occasion for my labor in writing the quite lengthy independent opinion, hoping to prevent any permanent departure from long settled rules. While I still think I took the right view of the opinion and the one the bench and bar in general have read out of it, if it be otherwise, and the difficulty was only in stating ambiguously a correct rule, then I quite agree that the meaning which will render what was said harmonious with previous adjudications on the subject, if to' be found in the language used, should be adopted rather than one which will not. So, on the whole, I am content to unite with my associates in treating the former opinion as not overruling previous cases on the subject of damages. I am so content, particularly, as to what the court really intended, because soon after the opinion was filed American States S. Co. v. M. N. R. Co. 139 Wis. 199, 120 N. W. 844, and Krier v. M. N. R. Co. 139 Wis. 207, 120 N. W. 847, were decided, in which the law was stated as in my independent opinion in this case, all the justices concurring.\nI have given considerable attention in this opinion to the logic with which I heartily concur, enabling the court to construe one ambiguous feature in the former opinion in harmony with settled principles, thus saving the judgment from reversal. But why the same logic does not also apply to the other ambiguous feature, thus avoiding the result of *373affirming a judgment which is wrong from an original viewpoint, upon the ground that wrong has been made right by a previous wrong decision, I am not able to understand.\nA motion for a rehearing was denied March 14, 1911.\n","per_curiam":false,"type":"040dissent"}],"other_dates":"\nNovember 18, 1910\n","precedential_status":"Published","slug":"jeffery-v-osborne","summary":"Appeal from a judgment of the circuit court for Kenosha county: E. B. BeldeN, Circuit Judge. The facts so far as they are essential are stated in the opinion."} {"attorneys":"jPetigru 8f Harper, for motion,, Hunt, contra.","case_name":"Singleton v. Bremar","case_name_full":"Tabitha Singleton v. Eliza Elliott Bremar, Widow and Administratrix of F. Bremar","case_name_short":"Singleton","citation_count":0,"citations":["16 S.C.L. 201"],"court_full_name":"Supreme Court of South Carolina","court_jurisdiction":"South Carolina, SC","court_short_name":"Supreme Court of South Carolina","court_type":"S","date_filed":"1824-01-15","date_filed_is_approximate":true,"headnotes":"Letters, which mere received through the Post-Office, may be submitted to the jury, to infer whether they were written by the direction of the plaintiff, who cannot write, on internal evidence; suchas that they state fixts which could only be known to the plaintiff, or contain many circumstances which could relate to no other person.
As between the original parties to a promissory note, it may be proved to have been given without consideration, though expressed to be1 for value received,” and if so proved, it is nudum pactum.
\nPast cohabitation is not a good consideration to support a promise.\n
","id":8388608,"judges":"Bay, Huger","opinions":[{"ocr":true,"opinion_id":8358739,"opinion_text":"\n\n*210\nThe opinion of the court was delivered by\n\n\nMr. Justice Jf.ott.\n\nThe usual method of proving an instrument of writing\", Where there is no subscribing witness, is by proof of the hand writing. But that could not be expected in this case, as the party cannot write. Even if her name had been subscribed to the letters, the difficulty would not have been lessened. Some other method must, therefore, be resorted to, and why may not the letters be looked into. If they furnish internal evidence of •the source from whence the}' were derived, I can see no reason why we may not avail ourselves of that evidence. Thus for instance, if they relate to facts which cannot be known to any other person, it will be presumed that they were written by her .authority. JLf they embrace a number of facts which relate to her and her situation, and which cannot apply to any other person, each of those facts constitutes a link in the chain of circumstances, which go to strengthen the presumption. In ordinary' cases, such evidence will not be allowed, because the writing is always presumed to be by the person by whom it purports to be, .written, and proof of the hand writing, therefore, is higher •evidence, But in the present case, the evidence offered was the best which the nature of the case could afford. Whether it would have been sufficient to establish the fact, is another question, hut I think it ought to have been submitted to the jury.\nThe certificate from the Comptroller’s Office, I think, Was .properly rejected: It was the certificate of a clerk only, and .therefore was nothing more than a private paper. The certificate of the Comptroller himself, is required by the act of the-legislature, (1st. Brevard, 319,) to render it competent evidence. The inducements which led to that act, probably were the inconvenience which would result from frequently calling a public officer from the duties of his office, and also the credit which is due to a person high in office and in whom great confidence is necessarily .reposed, but none of these reasons can apply ter the clerk, and therefore it cannot be supposed that he was intended to be embraced by the act.\nThe next ground relates to the charge of . the judge., ip which he instructed the jury, that even if they were of opinion that this was a voluntary note, the plaintiff was entitled to *211¡recover. By a voluntary note, I understand, is meant a mere gratuitous promise, without any. consideration. The payment of such a note certainly cannot be enforced in a court of common law. By the. principles of the common law, a consideration of some sort is necessary to'every contract, but bond3 and other specialties, from the solemnity of the seal, carry with them intrinsic evidence of consideration, which cannot be controverted, unless the consideration be unlawful. Judge \"Blackstone seems to think (2 Com. 445,) that simple written contracts derive the same solemnity from the subscription of the maker, that special contracts do from the seal, and justice Wilmot, lays it down as doubtful whether any contract in writing can be considered nudum pactum. Pillans Rose, vs. Van Mierop Hopkins, 3 Burr. 1663. But it is settled that the mere reduction of a contract to writing, will not change it’s character, and that a contract, though in writing, is void, if without consideration. In the case of Rhann, vs. Hughes, 7 Durnford East 346, which was referred to all the judges of England for their opinion, it .is said that there are but two kinds of contracts in England, to wit, special contracts, and contracts-by parol. That there is no such intermediate or third class, as written contracts, not under seal, and that written contracts not Under seal, are mere parol contracts. The consideration therefore, may be enquired into; and the rule applies as well to promissory notes, as long as they are in the hands of the original party, as to other Written contracts not under seal; 1 Com. on Con. 12. In the second volume of an American edition of Phillips on evidence, p. 11, it is laid down that in ah action by the payee against the maker of a promissory note, the matters of defence, which may be given\" in evidence under the general issue, are governed by the rules applicable to the action of assumpsit in general. The defendant may show that the consideration of the note was illegal and void, or that it was given without consideration. Fink, vs. Cox, 18 Johnson, 145, Skilding & Hacght vs. Warren, 15, Johnson, 270. As between the original parties, a note without consideration is no more than a parol promise to pay money as a gift, which is not a ground of action; it is a nude pact and void as between the ori« *212ginal parties to it, and a number of authorities are quoted lu .support of the doctrine»\nThe same principle has been laid dówli íá cur owii courts.. In the case of Rugely & Davidson, 2nd. Const. Decís. 40', Judge Gantt, who delivered the opinion of die court, says, that between the immediate parties to a negotiable instrument:, oí tu the transfer of such an instrument, it is competent for the defen-» dant, notwithstanding the words “value received,” to prove that no consideration had in fact passed from the plaintiff; and in further illustration of the rule, we are almost daily in the habit of permitting the drawer of a note to show that it was given for *he accommodation of the payee, although expressing on its face to be for valued received. I think therefore, that the opinion of the presiding judge on that point cannot be maintained.\nTliis brings me to the consideration of the next ground; which is a supposed misdirection of the. judge, in instructing the jury, that if they should be of opinion that the .note was given in consideration of past cohabitation, the plaintiff was entitled to a verdict. The only cases that I can now recollect, either in this State or in England, where this question has been involved, have arisen upon bonds or deeds, wherein the comido-ration could not be enquired into, unless it could be shewn to be unlawful; and therefore, where a bond is given in consideration of past cohabitation, it is good, because where the consideration has been gratuitous, the bo¿id must be considered as voluntary. The English decisions upon the subject arfe considered and seem to be recognized as correct, in the case cf Cusack & Wife, vs. White 2nd Const. Decís. 279. The judge who delivered the opinion of the court in that case, speaking of the case of Turner and Vaughn, ■2nd Wih.on 339, which was an action on a bond, expressed on Its face to be for past cohabitation, says, the English judges held it to be a good and “meritorious” consideration. Perhaps that is rather too strong an expression; for although a person may be entitled to merit for making reparation for injured reputation, whether occasioned by seduction or otherwise, the act itself of unlawful cohabitation can never be considered meritorious. I presume, therefore, that p&st «oliabiíatiou, under any circumstances, would not be considered £,$ 2 consideration on which an action of assumpsit could be *213maintained, without some written agreement: and it follows from the principles above laid down, that the mere fact of reducing it to writing, or giving it the form of a promissory note, cannot make it so. When the consideration is gratuitous, a promise made afterwards must be considered as equally gratuitous and voluntary; and therefore it mustbe optional with fhe.party whether he will perform it or not. It is otherwise with bonds, which, though voluntary, must be supported in a court of law. Whether a promissory note, given for the actual injury sustain-, ed in reputation by seduction, would be supported, as bottomed on a good consideration, is a question which does not occur in this case; but I am satisfied that if the notes in question were given in consideration of cohabitation, though past, they must be considered as voluntary and the plaintiff’s action must fail.\nWith regard to the last exception to the opinion of the ¡court, -in which the jury were instructed, “that if the notes were -given in consideration of property surrendered to the plaintiff, even though that property had been given in consideration of future cohabitation; the plaintiff was entitled to recover,” I think as an abstract rule of law, the opinion was correct. With regard to the application of it to this particular case, I -am not disposed to express any opinion. That will afford a subject for ihe consideration of the jury, whenever the case shall be again submitted to them. If a person should actually transfer property by deed, properly executed, accompanied by delivery and possession of the property, I think it could not be reclaimed, even though die title were founded on a base consideration. I think the rule would apply, mdior est conditio possidentis; and when property is actually vested in a person, a revestiture of it will be a good consideration for a promise. But a mere pretended transfer, for the purpose of giving colour to the transaction, could not promote the object, nor would a voluntary surrender of the property, by which the parties were left in statu quo, raise a consideration for a future promise.\nThe evidence in this case, has afforded an ample field for speculation, if we had been disposed to give expression to the reflections to which it was calculated to give rise. But I have forborne to give any opinion upon the facts, or the policy cob-*214nected with the case, for whatever may be the relation in which the parties stand to each other, the case ought to go down, uninfluenced by the opinion of this court, to b.e tried upon it’s merits, if any merits it has; of which the jury must judge.\njPetigru 8f Harper, for motion,\nHunt, contra.\nA new trial is granted —\nBay, Johnson Huger, Justices* concurred.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"singleton-v-bremar","summary":"This was an action of assumpsit, to recover the following -promissory notes, which were proved at the trial: $2,000' Charleston, 2d October, 1813. Twelve months after date, I promise to pay Tabitha Sin-gletop, or order, two thousand dollars, for value received. (Signed) F. Bremar. $2,000. Charleston, 2d October, 1815. Twelvemonths after date, 1 promise to pay Tabitha Singleton, two thousand dollars, value received. (Signed) F. Bremar.\" The defence was, that these notes were each of them, either nudum pactum, or ex turpi contractu. In support of this de-fence, the following evidence was offered,, proving that the woman Tabitha was a dependant on Bremar, even for the means of subsistence; that she had been first his slave, and afterwards his freed woman, and had notoriously carried on an adulterous intercourse with him, from the time of his marriage to the pe? ¥Íod of his death. . Mr. Jervis II. Stevens bad known the woman Tabithg^ When she was a slave, and belonged to some persons namedSingleton; he stated that Bremar bought her more than thirty years ago, and she was living with him till his marriage; that in' 1794, he married the lady who is now Ills widov/ and the defend- • ant in this action; that lie setTabitha free,butmainlained the same intercourse with her; that after some years, he went to live in St.. Matthew’s Parish, but still maintained Tabitlia iu town. This testimony was confirmed by captain James Kennedy and Mr, Payne. . Dr. Bryan Gunter, had known the plaintiff, after Bremar 'went to live in St. Matthew’s. She was then maintained by hire,, and boasted of the connexion and of his generosity. She and her mother and sisters all lived together; the mother went by the name of Lucy Sorrel, and some other names. Mr. William Fain and Mr. Bartholomew Carroll, liad Severally hired houses to Bremar, which ha took for the plaintiff. The receipts for rent paid by Bremar, from the year 1795, for the houses occupied by the same woman,- were produced,amounting to a large sum. The intercourse and the utter dependence of the plaintiff on Bremar, were further proved by the evidence of Mr. Robert Cochran and Mrs. Holly, and carried down to the period of his death. With a view to the introduction of certaiuletters, the defendant then read the evidence of M . Glover, which shewed that Bremar was accustomed to take out of the office at Orangeburg,, letters with a private mark; and proved that the letters now offered, having such mark, had, also the Post-Office stamp, and were found among Mr. Bremar’s papers. The defendant submitted the letters themselves, to show by the internal evidence,, that they were the letters of the plaintiff; although she cannot write, and the letters were not signed, and the hand-writing not identified. The internal evidence was found, in the language of jealousy towards Mr. Bremar’s wife; the mention of Lucy Sorrel and of plaintiff’s brother, and the importunate tone in whiclnjhey were written. But the presiding judge refused to look at the contents, and the letters were rejected for want of' pyoof of the hand-writing. To rebut tbe supposition that' Bremar was a debtor to the plaintiff, the defendant’s counsel called for and produced the deed of F. Bremar, dated 4tli March, 179.4, setting this woman free, by the name of my mulatto girl, Tabitha; also, the .records of two other deeds, emancipating Elisa and Caroline, her sisters; and the record of another deed, conveying to her a !(iegro. . In reply, plaintiff produced and proved a deed of F. Bre-mar, dated the 15th April, 1794, conveying to her by the name of “Tabitha, a mulatto girl, lately belonging to me,” two ne-groes, Sarah aud „Polly; consideration, her faithful service; also, a deed dated 18th May, 1809, whereby “in case of death,” he gives her by the name of' Tabitha, a free brown Woman, a house and lot in Wentworth street, “having received full value.”' Plaintiff then proved, by Mr. Cleary, that Bremar liad in his life time sold the house in Wentworth street. Two females-were then called, who said that plaintiff had once been in pos- . ■session of the two slaves; and one of them swore that she saw Bremar one day come to the gate and tell plaintiff that he was'going to sell these negroes, and she afterwards saw them na more. The same witness testified to the virtuous character of plaintiff; that Bremar had been her guardian, and theiy wag nothing in their conduct but what was fit for the relation of guardian 'and ward. No evidence connecting the deeds with the notes was offered. Tire defendant then offbred a certified statement, from the books of the Comptroller General,, to- show that plaintiff neves paid taxes either for the house or negroes above-mentioned, and that she did pay taxes, since the time spoken of by the witnesses, for other property. But this evidence was rejected by the; presiding judge, ■The presiding judge charged the jury, that these nates, even if Voluntary, were not nudum pactum, and that if a man makes a voluntary note, he is legally bound by it. But that it was unnecessary to consider this point, inasmuch as an ampl§ consideration had been proved: 1st. Cohabitation; 2d. Surrender of property. As to the objection, against the first of the-■above named considerations; viz: ex-turpi contractu lion oritur actio, the presiding judge declared the distinction to be. between a promise in consideration of past cohabitation, which is good, and a promise in consideration of future cohabitation, which is invalid. The presiding judge further charged the jury that the sale of the- house and negroes, which Bremar had given to plaintiff, was a good consideration for these notes, and that the; deed giving\" the house and lot, in case of his death, was good and effectual to pass the legal estate, and that it was immaterial what the consideration of these deeds might])ave been. The jury found for the plaintiff the full amount of the notes and interest. The defendant moves for a new trial for the following, among other reasons.. 1st. That the presiding judge refused certain letters to be-read, written in a hand not known, but traced to the plaintiffby the proofs offered; viz: that they had been found among the papers of Bremar, had a private mark, such as the Post-master at Orangeburgh described', and the regular Post-office stamp; and the internal evidence, if the contents b.e examined, shows that they are the letters of the plaintiff. 2nd. That he refused to admit in evidence certified copies from the comptroller’s office. 3rd. That he charged the jury, that if the notes on which the plaintiff declared, were voluntary, they were nevertheless good; and charged them further, that even supposing a voluntary note to be nudum pactum, (which he denied,) the plaintiff was still entitled to recover, and had proved a sufficient consideration. 4th. That he charged the jury, that the intercourse which, had been proved,, prior to- the date of the notes, was a sufficient consideration for those notes. 5th: That he charged the jury, that the voluntary deeds produced by the plaintiff were a sufficient consideration for the notes declared on, provided the notes were given on that account; even if those deeds had been the price of future cohabitation. For the motion, it was argued: That a voluntary note, as between the original parties, is nudum pactum. Finh vs. Coxt 18 Johns. Rep. 145, 2 Phil. Ev. 11» That no valuable consideration was given for this note, is established by the evidence pf the plaintiff’s circumstances, and that she wag entirely do.pendant on the defendant’s intestate. At all events whether the evidence was sufficient to establish this or no, it should have been left to the jury, to whom it pertained to decide on it’s weight. The consideration relied on to support this note, (if consideration be necessary,) are the house and negroes, which are said to have been conveyed to her and afterwards given up, and past cohabitation. The alleged deed is void as a conveyance, because it gives a free hold to commence in future. It is not a covenant, which will give an equitable interest and serve as a consideration. Where a deed is not sufficient to pass the estate, but. the party must come into Equity, the court will never execute a. voluntary agreement. Coleman, vs. Sarrell, -iSro. Ch. Ca. 12/ 1 -Ves. Jun. 54; 1 Ves. 514.- In favour of a wife, children, &c,Equity will execute such an agreement; but there was no such .sanctity in this relation. The testimony with respect to the slaves, was very suspicious. If it was true, the intestate may have sold for the plaintiff’s benefit. If he received the proceeds by her consent, shé had no demand against him on that account. A voluntary settlement may be surrendered voluntarily. Wentworth, vs. Der-vigny, Finch's Chan. 69. It is merely a surmise however, that, the notes may have been-founded on these considerations; and it ought to have been submitted to the jury. If we have any evidence however, to shew that these notes were founded on abase consideration, it will apply more strongly to the covenant respecting the house and the gift of the slaves. These were at the beginning of the cohabitation. But it is said, that past cohabitation was a good consideration. In general, a past consideration will not support a pro-\" mise, unless a legal liability has been incurred. Is there any thing peculiarly meritorious in this consideration, to make it au exception? It would be ludicrous to speak of an action of as-sumpsit, brought on a verbal or implied promise, supported by a consideration of this nature. A voluntary bond or deed may be good, and the cases in the books go on that ground; it is never pretended that they are rendered better by a past consideration of this sort. The case of Cusack ¿† wife, vs. White, is relied -upon to shew that past cohabitation is a good consideration.Such expressioiisSare used in the opinion which was delivered iut that ease; but the point did not necessarily arise, and taking the whole opinion ^together, it is evident no more was meant than tliat it would not vitiate a bond or covenant. The rule of law, is, that a bond founded on an immoral consideration is void, and that, as far as we can perceive, without distinction of it’s being past or future. Collins, vs. Blan-tum, 2 Wils. 349. Chief Justice Wilmot, in this case remarks, «as to a bond being a gift, that is to be repelled by shewing it was given upon a bad consideration.” Would an7 court entertain a suit on a bond which recited that it was given in consideration that the obligee had committed murder or peijury. This being the general rule, the exception is to be made fi-’rt. An exception was made where the bond was preemium pu-dickee; a reparation for seduction; and In the earlier cases, such bonds seem to be supported on this ground alone. Marchioness of Remándale vs. Harris, 2 Pr,. Wins. 432, and the case of Ord., vs. Blaclcet, there cited; Cray, vs. Hooke, cases Temp. Talbott, 153; Robinson, vs. Gee, 1 Wes. 254; Walker, vs. Per--liins, 3 Burr. 1568. The case of Turner, vs. Waughan, 2 Wils* •340, seems to have been decided on this understanding. • The exception was gradually extended to other cases, where it was supposed that an injury might have- been done, though the woman had not been in strictness seduced. But in all such cases it was held a sufficient answer to say she had been-r common prostitute. 2 Wern. 242; 9 Mod. 340. But it may be asked, have we shown the woman to have been a prostitute in this case? Though it may sound harshly, sve have shewn what is equivalent. When the intercourse commenced, she was a slave; as to whom our laws do not recognize marriage, nor consequently chastity. And owing to the degraded point of view in which’ such persons are regarded, it was\" not practically an injury^ as respected either her reputation or' means of support. Other cases, in courts of equity, seem to have determined that bonds or settlements,’ founded on past cohabitation, shall always be considered voluntary. Hill, vs. Spencer, JLmb. 641 / Gray, vs. Matthias, 5 Wes. 286. Never, however, have they been considered as better than voluntary. When the question arises in a court of law, it seems that the consideration is matter of fact, and proper for the determination of the jury. It is proper that they should have the pow-hr of deciding whether the' settlement has been obtained by the ártá of an abandoned woman; or whether the man has done nO: inore than in honor and conscience he was bound to do. As to the letters which were offered as the plaintiff’s, think that on the circumstances proved, and the internal evidence, they ought to have gone to the jury. This is not &■ new Sort of proof. One who has corresponded with another is allowed to prove his hand-writing, though he may never have Seen him write. In such case, the witness first ascertains the genuineness of the writing by internal evidence; such as that his correspondent speaks of matters which could be known only to himself, or which no other person would be likely to mention. Against the motion. The notes on which the action is brought, express to be for value received; and this is sufficient Evidence of consideration. It lay upon the defendant to shew that they were given upon no ‘ consideration or upon an illegal consideration. The presumption is in favor of the validity of the notes; and certainly there is more evidence of a precedent valuable consideration, from the sale of the houséf and negroes, than there is of subsequent cohabitation. It is a general rule that promissory notes carry on their face evidence of considera.tion. 7 Johns. Rep. 321; 8 Johns. 465; 9 Johns. 217; f> Wheat. 277. The promise by the intestate, to give the house after his death, and the surrender of the two slaves by the plaintiff, clearly constituted a legal and valid consideration for the notes; and when there may be both a valid and an illegal Consideration, the law will refer the contract rather to that which is valid than to that which is illegal. It is admitted that the paper promising to convey the house, is not a deed; hut it is contended that it may operate as a deed: it expressed to be for value received, and contained a general warranty. ■ Gae may covenant to stand seized to the use of another, for the life of the grantor, remainder to such Other; and the statute executes the use, in presentí, ■ 3 Com, pig. 253, Tit. Covenant. All that is necessary to süch a. covenant is, that the grantor should be seized at the time, 2 JVilsi-75. In the construction of convenants, -the court always looks to the intention; and there can be no doubt about the intention ofBremar. If one covenant with another, that if he (the grant- or) die without issue, he will stand seized to the use of such othv er, it is a good springing use. 2 Lev. 77; Coliman, vs. >Se?iu-house, 2 Lev. 225; Co. Lit. 154, b. If the bill of sale of the negroes was upon an immoral consideration, the court would not interfere to restore them to the intestate or his representatives. He was partiteps criminis; to-lenti non Jit injuria. 1 Salk. 22. Past cohabitation is itself a good consideration. Chit, on Bills, 93; 2 P.Wms. 432; 2 .Wils 33Q; Amb. 642; 2 Cotop. 742. It is said that these cases proceed on the supposition of a wrong done; but this conclusion is at war with the cases; ancí it will be found upon investigation, that a reasonable and conscientious motive to a contract, is a sufficient consideration. -“The ties of conscience are sufficient for an honest man.” Pr. Ld. Mansfield, 1 Cow'p. 290. It is not true that a past is not a good consideration: although it would not of itself raise an as-sumpsit in law, yet an actual promise, founded on it, is good„ I Com, Dig. 192, Tit. assumpsit. The act of the legislature, 1 Brev. Dig. 68, renders void any deed or devise to a woman with whom the grantor or testator lives in adultery, if it be for more than one fourth of his estate; and this raises-a strong implication that the gift is so far valid. It does not appear that these notes amount to one fourth of the intestate’s estate. To authorize the admission in evidence of the letters which are said to be the plaintiff’s, it must first be proved that they were written by her, or by her authority. Of this there is no shadow of evidence. It is a strange doctrine that you shall-first give their contents in evidence, to get at the internal evidence of their authenticity. In reply. As to the admissibility of the letters, were cited Young, vs StocJcdale, 2 Mott 8f JVL1 Cord, 581; and Hopkins, vs.-De Oraffenreid, 1 Bay; in which proof of hand-writing was dispensed with, as being established by internal testimony, §>ee also, Canty, vs. Platt, 1 Ml Cord, 260,. The ¡question, whether these notes were voluntary or not, was necessary to a determination of this case, and ought to have been submitted to the jury. It is admitted that a deed, although voluntary, is good, on account of its solemnity. It has never been questioned that a voluntary verbal promise to pay or give money is not binding. The law recognizes but two descriptions of contracts; by deed and by parol; the Iasi of which covers both written and verba] contracts. There is no distinction between written and verbal contracts, except where convenience or policy requires; as in favor of commerce, under the custom of merchants; or to revive a debt barred by the statute of limitations, or contracted during infancy. Lawson Plead* ■64) 8 Bos. S/ Pul. 249; 5 Johns. Rep. 275; Cro. Eliz. 442; 756, 873, 885; 15 Johns. 145; 17 Johns. 301; 2' Ves. Jun. Ill; '2 Phil• Ev. 11; 7 T. R. 346; 1 School. \\ Lef. 327; 1 Strange, 674; 1 Fonb. 337, n. 4 Mod. 242. Considerations are founded either on a legal tie or moral obligation. 2 Poth-■ieron Obligations, 2. Nuda pacta are left to the parties and impose no legal obligation. Vinnius, B. 3, Tit. 14. The case from Ambler, 641, is the strongest in Support fif a contract made in consideration of past cohabitation; and in that case, the court proceeded on the ground that the bond was a gift, and that the want of consideration could not ’be averred against a bond. The court of equity has refused to carry into effect contracts founded on the consideration of past cohabitation. Priest, vs. Parrott, 2 Yes. 160; Matthews, vs. Eld, 1 Maddock, 558. The cases in which' such contracts have been supported are put on the grounds, either of positive injury done, as by seduction; or that the bonds themselves imported a consideration, which was not controverted by thej .facts. There is a distinction between executed and executory contracts. If they are executed upon an illegal consideration, the maxim, melior est conditio defendentis, applies. Co. Ldt. 306, b. A covenant to stand seized to uses, like all others, must have a consideration either valuable or good; nothing short of blood will do.."} {"attorneys":"Peter F. Vaira, U. S. Atty., Roberto Rivera-Soto, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff., Nicholas J. Nastasi, Philadelphia, Pa., for defendant.","case_name":"United States v. Zepp","case_name_full":"United States v. Harold A. ZEPP","case_name_short":"Zepp","citation_count":0,"citations":["466 F. Supp. 1062"],"court_full_name":"District Court, E.D. Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"E.D. Pennsylvania","court_type":"FD","date_filed":"1978-10-31","date_filed_is_approximate":false,"id":8875326,"judges":"Newcomer","opinions":[{"author_str":"Newcomer","ocr":true,"opinion_id":8861084,"opinion_text":"\nMEMORANDUM AND ORDER\nNEWCOMER, District Judge.\nThe defendant Harold A. Zepp is charged with possession of goods stolen from an interstate shipment in violation of Section 659 of Title 18 of the United States Code. He has moved to suppress certain physical evidence on the grounds that the search and seizure which produced the evidence were unconstitutional. He also seeks to suppress the fruits of that evidence. Hearing was held on the defendant’s motion, and the Court has made findings of fact about the conduct of the search and seizure. For the reasons set forth below, the defendant’s motion is DENIED.\nOn July 28, 1978, a tractor-trailer loaded with a cargo of miscellaneous freight was stolen from the premises of the Jones Motor Freight Company in Philadelphia. The truck was recovered three days later, but most of the cargo was missing. One of the items of missing cargo was a bright yellow Gould battery, serial number KRD 653-0, the outer dimensions of which were 38\" by 30\" by 16\".\nJones Motor Freight informed the Federal Bureau of Investigation (FBI) soon after the theft of the truck that they suspected that Mr. Zepp had something to do with the crime. The Company also supplied a fairly complete list of the items stolen, a physical description of most of the items, and the serial numbers of some of the items. A detailed description of the Gould battery, including its color, size and serial number was contained in the information passed along by the Company.\nMeanwhile, the'FBI was developing other information about the case. On about August 2, 1978, the FBI received an anonymous phone tip that two of the employees of Jones Motor Freight had been seen with merchandise stolen from the truck. The caller did not mention the defendant by name, but the FBI began to focus its investigation on company employees.\nAbout a week before the arrest of the defendant the FBI obtained information about the case from a confidential informant. The informant had been reliable in the past, and his information corroborated other leads in the Jones Motor Freight investigation.\nThe informant told the FBI that Zepp was in possession of the Gould battery. Special Agent William Fleming, who was primarily responsible for dealing with the informant, testified at hearing that he had had approximately six conversations with the informant up to the time of the arrest of the defendant, and that the informant implicated Zepp each time.\nOn August 10, 1978, the FBI began surveillance of the defendant. Agents Macko and Stodt soon observed Mr. Zepp driving a flat-bed truck upon which was an object about the size of the missing Gould battery. From prior briefings the agents were familiar with the physical characteristics of that battery, including its color. The object on the truck was partially covered by a black cloth, but the agents were able to see a strip of bright yellow between the cloth and the pallet upon which the battery was resting. The agents estimated the strip of yellow to have been from three to six inches *1064wide. As they followed the vehicle, the agents were able to see onto the bed of the truck from their car, and the strip of yellow was clearly visible to them.\nBased on the knowledge obtained at the briefing, and their sighting of what they thought was the Gould battery, the agents stopped the defendant’s truck, arrested him, and uncovered and seized the battery. The serial number of the seized battery matched that of the battery stolen from Jones Motor Freight on July 31.\nThe FBI actually had a great deal more probable cause to arrest the defendant than is indicated by the facts set forth above. The defendant argues, and the Court finds, that the FBI had reason to believe that the defendant had arranged to sell the battery at the intersection of Front and Lehigh Streets in Philadelphia sometime on the evening of August 10. The FBI also had reason to believe that the defendant planned to be present at the sale. Those expectations proved to be true; the FBI found Zepp (for a second time) on August 10th by waiting for him at Front and Le-high. The Court also finds that the FBI had received the information about the impending sale from a reliable informant sometime on or before August 9th.\nI\nThe defendant argues, rather ingeniously, that a search warrant was required in this case because the FBI had more than enough probable cause and sufficient time to obtain a warrant to search him and his vehicle.1 The Court agrees that there was probable cause both to arrest the defendant and to search his truck for the battery. That probable cause was based on information supplied by the Company, and information supplied by a previously reliable informant whose information was based on first hand knowledge.2\nThe defendant’s argument finds strong support in certain language in Coolidge v. New Hampshire, 408 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971): “[N]o amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances’ ”.\nIf that statement in Coolidge were still the law, this Court would perhaps be required to grant the defendant’s motion to suppress. However, in subsequent cases the Supreme Court has modified the position taken in Coolidge.3 The “exigent circumstances” exception to the warrant requirement is no longer the only such exception, if indeed it ever was.\nIn recent years the Supreme Court has attempted to incorporate various search and seizure doctrines into a single framework. The foundation of that framework was stated succinctly in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973):\n*1065“The ultimate standard set forth in the Fourth Amendment is reasonableness. In construing this command, there has been general agreement that ‘except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant’.” 413 U.S. at 439, 93 S.Ct. at 2527, quoting Camara v. Municipal Court, 387 U.S. 523, 528-9, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).\nThe classes of cases in which a warrantless search is reasonable, and therefore constitutional, include (but are not necessarily limited to) searches incident to arrest (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)); “stop and frisk” (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); search of the person incident to an arrest (U. S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)); vehicle searches (Cady v. Dombrowski, supra); and “exigent circumstances” searches (Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)). Warrantless seizure of fruits, instrumentalities, and evidence of crime in “plain view” is permissible if the officer was lawfully in the place from which he viewed the object seized. Coolidge v. New Hampshire, supra, 403 U.S. at 582, 91 S.Ct. 2022.4\nExamination of the exceptions to the warrant requirement listed above reveals that the shared characteristic of all the searches is not “exigent circumstances” but “reasonableness”.\nWarrantless inventory searches of impounded vehicles, for example, are constitutional not because of any exigency but because “the process is aimed at securing or protecting the car and its contents.” South Dakota v. Opperman, 428 U.S. 364, 373, 96 S.Ct. 3092, 3099, 49 L.Ed.2d 1000 (1976).\nWarrantless searches of the person incident to an arrest are constitutional because “a custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” United States v. Robinson, supra, 414 U.S. at 235, 94 S.Ct. at 477.\nThe defendant places principal reliance on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Chadwick, agents seized a foot-locker from the defendants’ car, and searched the footlocker later while it was safely in custody at the Federal Building. The agents had arrested the defendant because they had probable cause to believe that the footlocker contained marijuana. The Court held that the arrest of the defendant did not eliminate his expectation of privacy in his footlocker, and that therefore a warrant to search the footlocker was required. No warrant having been obtained, the evidence seized from the footlocker was suppressed.\nThe Court in Chadwick summarized the bases for warrantless searches of automobiles. The Court made clear that while one justification for a warrantless automobile search may still be exigent circumstances,5 another distinct and independent justification for a warrantless search is “the diminished expectation of privacy which surrounds the automobile.” (433 U.S. at 12, 97 S.Ct. at 2484.):\n“[T]his Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts, [citations omitted]\nOur treatment of automobiles has been based in part on their inherent mobility, *1066which often makes obtaining a judicial warrant impracticable. Nevertheless, we have also sustained ‘warrantless searches of vehicles ... in cases in which the possibilities of the vehicle’s being removed or evidence in it destroyed were remote, if not nonexistent.’ ” Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); [citations omitted] The answer lies in the diminished expectation of privacy which surrounds the automobile:\n‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. ... It travels public thoroughfares where both its occupants and its contents are in plain view.’ Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion).\nIn fact, Chadwick was not the first case that suggested that a warrantless search might be held reasonable because of the property owner’s diminished expectation of privacy in the area searched, and not because of exigent circumstances. The majority in United States v. Robinson, supra, upheld the reasonableness of the “intrusion” of a search of the person based on the intrusion of the arrest. (See the passage quoted supra at 1065.) Mr. Justice Powell, concurring, was even more specific: “The search incident to arrest is reasonable under the Fourth Amendment because the privacy interest protected by that constitutional guarantee is legitimately abated by the fact of arrest.” 414 U.S. at 237-8, 94 S.Ct. at 494.\nThe defendant argues that Chadwick compels a finding that the warrantless search and seizure in this case were unreasonable. Chadwick does clearly indicate the proper result in this case, but it compels a finding that the search was reasonable. In Chadwick, the defendants’ expectations of privacy were obvious:\n“By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination.” 433 U.S. at 11, 97 S.Ct. at 2483.\n[6] In contrast, Defendant Zepp could have had no expectation that his partially-covered cargo would remain free from public view. The nature of the cargo was apparent to anyone who was thoroughly familiar with the physical characteristics of that type of Gould battery, as were these agents.6\nThe defendant may have had an expectation that members of the general public would be ignorant of the character of his cargo. That expectation is, of course, entirely different from an expectation of privacy.\nII\nA finding that an exception to the warrant requirement applies in this case does not completely meet the defendant’s argument that a warrant was required because the agents had sufficient time and probable cause to secure one. As Mr. Justice Marshall argued in dissent in United States v. Robinson, supra:\n“[B]ecause an exception is invoked to justify a search without a warrant does not preclude further judicial inquiry into the *1067reasonableness of that search ‘[T]he general requirement that a search warrant be obtained is not lightly to be dispensed with, and’ the burden is on those seeking [an] exemption [from the requirement] to show the need for it.” 414 U.S. at 243, 94 S.Ct. at 480, quoting Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) and United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (emphasis supplied).\nThe difficulty this Court has with defendant’s argument is that the Supreme Court has considered it and rejected it in cases very similar to this one. In at least three automobile cases, in which there were vigorous dissents advancing essentially the same argument that the defendant makes here, the Court has upheld warrantless searches where the police had both ample opportunity to obtain a warrant and probable cause to search the vehicles for evidence of the crimes for which the defendants had been arrested. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion). The obvious basis for the holdings is that, in most automobile cases, a warrant is an unnecessary safeguard because “One has a lesser expectation of privacy in a motor vehicle . . .” Cardwell v. Lewis, supra, 417 U.S. at 590, 94 S.Ct. at 2469. The primary protection afforded by the Fourth Amendment is not the warrant requirement but the protection of one’s privacy. Cardwell v. Lewis, supra, 417 U.S. at 589, 94 S.Ct. 2464, citing Warden v. Hayden, 387 U.S. 294, 305-6, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The conclusion is inescapable that, at least where the defendant had such diminished expectations of privacy (making the automobile exception applicable and the search reasonable), the police are not required to demonstrate a specific “need” for invoking the exception.7 The requirement that the search be reasonable is sufficient to safeguard the defendant’s diminished privacy interests in his vehicle.\nFinally, the Supreme Court has explicitly rejected the approach proposed by the defendant here:\n“The Fourth Amendment does not require every search be made pursuant to a warrant. It prohibits only ‘unreasonable searches and seizures’. The relevant test is not the reasonableness of the opportunity to procure a warrant but the reasonableness of the seizure under all the circumstances.” South Dakota v. Opperman, 428 U.S. 364, 372-3, 96 S.Ct. 3092, 3099, 49 L.Ed.2d 1000 (1976), quoting Mr. Justice Black in Coolidge v. New Hampshire, 403 U.S. at 509-10, 91 S.Ct. 2022.\nThe Court holds that Mr. Zepp had diminished expectations of privacy in the cargo that he carried, and that, given the existence of probable cause to search, a warrantless search of the truck and its cargo was reasonable.\nIn light of the Court’s holding that the search and seizure of the truck were lawful, the defendant’s motions to suppress other “fruits” of the seizure are also denied.\n\n. The defendant does argue in the alternative that no probable cause existed, but the argument is not pressed. In any event, the Court finds it to be without merit. In fact, most of the defendant’s questions at hearing were aimed at establishing that probable cause existed long before the search.\n\n\n. At first blush, it is difficult to envision how the FBI would have gone about drafting a warrant authorizing the search, for example, of the area around Front and Lehigh Streets, including any truck in which the defendant happened to arrive. On reflection, however, the difficulties do not appear at all insurmountable. As has been noted many times, the Fourth Amendment “protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A warrant describing the battery and authorizing a search of the defendant and any vehicle in which he arrived would certainly have been sufficiently particularized to satisfy Fourth Amendment requirements.\nIn fact, Rule 41(c), F.R.Crim.P. apparently contemplates such situations: “If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist he shall issue a warrant identifying the property and naming or describing the person or place to be searched.” (emphasis supplied) Here, the FBI knew the person to be searched, and there is no reason to read Rule 41, or the Fourth Amendment, as requiring the agents to specify the exact truck to be searched.\n\n\n. The quoted statement did not command a majority of the Court. Only Justices Stewart, Douglas, Brennan and Marshall concurred in Part II-C of the Opinion, in which the statement appeared.\n\n\n. The Court in Coolidge stressed that the plain view doctrine “serves to supplement the prior justification — whether it be warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused . . . [but] plain view alone is never enough to justify the warrantless seizure of evidence.” 403 U.S. at 466-8, 91 S.Ct. at 2038 (emphasis in original).\n\n\n. United States v. Chadwick, supra, 433 U.S. at 13, n. 7, 97 S.Ct. 2476.\n\n\n. The defendant has argued that the FBI agents’ testimony about the “yellow strip” was inherently incredible in that the black tarpaulin was capable of covering the entire battery, and that the defendant would naturally have secured the tarpaulin in such a way that the entire battery would have been covered. As is apparent from its findings of fact supra, the Court found the agents’ testimony to have been truthful. It is not necessary therefore to reach the question of whether the defendant would have had an expectation of privacy in the area under the tarpaulin if the tarpaulin had covered the battery completely. However, it would be anomalous, to say the least, if defendants who cover such evidence with cloth and place it on the back of a flatbed truck are entitled to such an expectation of privacy, while defendants who place evidence of crime in the trunk of a car are not. See, Cady v. Dombrowski, supra. Expectations of privacy adhere to, and the holding in Chadwick is likely to extend to, items of personalty carried in a car which are intended to enclose other items of personalty— e. g. briefcases, luggage, etc.\n\n\n. Coolidge v. New Hampshire, supra, still stands as a limit on warrantless searches of automobiles. There, the defendant’s car was not “travels [ling] public thoroughfares where its occupants and its contents are in plain view.” Cardwell v. Lewis, supra, 417 U.S. at 590, 94 S.Ct. at 2469. Rather, it was parked on his property next to his home. Under the circumstances, the defendant arguably had a reasonable expectation of privacy in the automobile. Where such an expectation is present Chambers v. Maroney, supra, Texas v. White, supra, and Cardwell v. Lewis, supra, do not obviate the need for a warrant, as Chadwick made clear.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"united-states-v-zepp"} {"case_name":"Samuels v. Ohio","case_name_full":"Samuels v. Ohio","case_name_short":"Samuels","citation_count":0,"citations":["486 U.S. 1011"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1988-05-16","date_filed_is_approximate":false,"id":9077603,"opinions":[{"ocr":true,"opinion_id":9071521,"opinion_text":"\nCt. App. Ohio, Cuyahoga County. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"samuels-v-ohio"} {"case_name":"Massenburg v. Cason","case_name_full":"Massenburg v. Cason, Warden","case_name_short":"Massenburg","citation_count":0,"citations":["540 U.S. 989"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2003-11-03","date_filed_is_approximate":false,"id":9216618,"opinions":[{"ocr":true,"opinion_id":9211405,"opinion_text":"\nC. A. 6th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"massenburg-v-cason"} {"case_name":"Williams v. Cate","case_name_full":"Williams v. Cate, Secretary, California Department of Corrections and Rehabilitation","case_name_short":"Cate","citation_count":0,"citations":["568 U.S. 990"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2012-10-29","date_filed_is_approximate":false,"id":9239049,"opinions":[{"ocr":true,"opinion_id":9233862,"opinion_text":"\nC. A. 9th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"williams-v-cate"} {"case_name":"Reedy v. Phillips","case_name_full":"Reedy v. Phillips, Warden","case_name_short":"Reedy","citation_count":0,"citations":["528 U.S. 1008"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1999-11-15","date_filed_is_approximate":false,"id":9263145,"opinions":[{"ocr":true,"opinion_id":9257968,"opinion_text":"\nC. A. 6th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"reedy-v-phillips"} {"attorneys":"Deborah L. Kim, Deputy Public Defender, for defendant-appellant., Caroline M. Mee, Deputy Prosecuting Attorney, for plaintiff-appellee.","case_name":"State v. Culkin","case_name_full":"STATE of Hawai'i, Plaintiff-Appellee, v. Timothy J. CULKIN, Defendant-Appellant","case_name_short":"Culkin","citation_count":39,"citations":["35 P.3d 233","97 Haw. 206"],"court_full_name":"Hawaii Supreme Court","court_jurisdiction":"Hawaii, HI","court_short_name":"Hawaii Supreme Court","court_type":"S","date_filed":"2001-12-06","date_filed_is_approximate":false,"headmatter":"\n Briefs of\n \n amici curiae\n \n urging reversal were filed for the American Bar Association by\n \n Robert J. Grey, Jr.,\n \n and\n \n Jeffrey L. Bleich;\n \n for Bar Associations et al. by\n \n Kevin R. Sullivan, William J. Aceves,\n \n and\n \n Clifford S. Anderson;\n \n for Foreign Sovereigns by\n \n Asim M. Bhansali\n \n and\n \n Steven A. Hirsch;\n \n for Former United States Diplomats by\n \n Harold Hongju Koh, Donald B. Ayer,\n \n and\n \n William K. Shirey II;\n \n for the Government of the United Mexican States by\n \n Sandra L. Babcock;\n \n for NAFSA: Association of International Educators et al. by\n \n Stephen F. Hanlon;\n \n and for Ambassador L. Bruce Laingen et al. by\n \n Joseph Margulies.\n \n
\n\n Briefs of\n \n amici curiae\n \n urging affirmance were filed for the State of Alabama et al. by\n \n Troy King,\n \n Attorney General of Alabama, and\n \n J. Clayton Crenshaw\n \n and\n \n Charles B. Campbell,\n \n Assistant Attorneys General, and by the Attorneys General for their respective States as follows:\n \n Terry Goddard\n \n of Arizona,\n \n Bill Lockyer\n \n of California,\n \n John W. Suthers\n \n of Colorado,\n \n M. Jane Brady\n \n of Delaware,\n \n Charles J. Crist, Jr.,\n \n of Florida,\n \n Thur-bert E. Baker\n \n of Georgia,\n \n Lawrence G. Wasden\n \n of Idaho,\n \n Steve Carter\n \n of Indiana,\n \n Phill Kline\n \n of Kansas,\n \n Jim Hood\n \n of Mississippi,\n \n Jeremiah W. (Jay) Nixon\n \n of Missouri,\n \n Mike McGrath\n \n of Montana,\n \n Jim Petro\n \n of Ohio,\n \n W. A. Drew Edmondson\n \n of Oklahoma,\n \n Thomas W. Corbett\n \n of Pennsylvania,\n \n Henry D. McMaster\n \n of South Carolina,\n \n Paul G. Summers\n \n of Tennessee,\n \n Mark L. Shurtleff\n \n of Utah, and\n \n Judith Williams Jagdmann\n \n of Virginia; for the Alliance Defense Fund by\n \n Nelson P. Miller, William Wagner,\n \n and\n \n Benjamin Bull;\n \n for the Criminal Justice Legal Foundation by\n \n Kent S. Scheidegger;\n \n for the Liberty Legal Institute by\n \n Kelly Shackelford;\n \n for the National District Attorneys’ Association by\n \n Charles C. Olson\n \n and\n \n Thomas J. Charron;\n \n for Professors of International Law et al. by\n \n Paul B. Stephan;\n \n and for the Washington Legal Foundation et al. by\n \n Daniel J. Popeo\n \n and\n \n Richard A. Samp.\n \n
\n\n Briefs of\n \n amici curiae\n \n were filed for the European Union et al. by\n \n S. Adele Shank\n \n and\n \n John B. Quigley;\n \n for International Law Experts et al. by\n \n Lori Fisler Damroseh\n \n and\n \n Charles Owen Verrill, Jr.;\n \n for the Mountain States Legal Foundation by\n \n William Perry Pendley;\n \n and for Senator John Cornyn by\n \n Charles J. Cooper, Vincent J. Colatriano,\n \n and\n \n David H. Thompson.\n \n
\n\n The panel unanimously concludes this case is suitable without oral argument.\n \n See\n \n Fed. R.App. P. 34(a)(2).\n
\nThe Act of June 1, 1887, P. L. 285, entitled “A further supplement to an act for the regulation of boroughs ” is unconstitutional (1) in that the title fails fairly to give notice of the legislative purpose in that it does not refer to school districts; (2) it offends against the constitutional prohibition “of any local or special law .... regulating the affairs of ... . school districts.”
"} {"attorneys":"J. J. L/udens, for appellant., Ward, Ward & Ward, (A. J. ScheinEman, of counsel,) for appellee.","case_name":"Warner v. Young","case_name_full":"Fred B. Warner v. George Young","case_name_short":"Warner","citation_count":0,"citations":["308 Ill. 239"],"court_full_name":"Illinois Supreme Court","court_jurisdiction":"Illinois, IL","court_short_name":"Illinois Supreme Court","court_type":"S","date_filed":"1923-04-18","date_filed_is_approximate":false,"id":7076271,"judges":"Stone","opinions":[{"author_str":"Stone","ocr":true,"opinion_id":6981029,"opinion_text":" Mr. Justice Stone delivered the opinion of the court: Appellee filed his bill in the circuit court of Whiteside county praying the cancellation of certain deeds delivered by him to the appellant and to restrain appellant from disposing of the property therein described, and for an accounting. The bill alleges that appellant had acted as agent for the transfer, of real estate owned by appellee, consisting of 105 acres of land in Whiteside county, to Charles Gettle in exchange for a certain 80 acres of land in that county, two other small pieces of real estate and a balance in cash; that after the transfer was made appellant sought as his commission the two small pieces of property, one of which was located in Rock Ralls, in Whiteside county, and the other in Sterling; that the appellee believing the statements made by appellant, as his agent, that the equity in these two pieces of property was worth but little more than $500, deeded the samé to him'as his commission in the transaction; that he later found that the two pieces of property were worth in the neighborhood of $4000 over the incumbrances thereon; that the services of appellant as agent were not reasonably worth more than the sum of $500. The-bill avers a willingness on the part of appellee to pay a reasonable commission to appellant for the services rendered.; that, since the transaction he has been informed and believes that appellant was also acting as agent for Gettle. The bill asks an accounting to determine what, if any, fees and commission are due to the appellant. Appellant answered, denying any false or fraudulent representations as to the value of the pieces of property deeded to him as his commission and averring that the conveyance to him was freely and voluntarily made and agreed upon, and that the property deeded is not worth $4000 above the incumbrances but that the actual value thereof did not exceed $500. The chancellor found that the properties in question were worth substantially more than $500 over and above the incumbrances thereon; also that the appellant was acting as the agent for both appellee and Gettle with the knowledge and consent of both of them; that appellant did not inform appellee concerning the value of the properties deeded to him as a commission, as was required of him as agent, and that appellee relied upon appellant’s representations in that matter. The chancellor decreed that the deeds be' set aside as-clouds upon the title of appellee, and that because of misrepresentations and bad faith appellant was not entitled to any commission for his services. An examination of the record discloses that the chancellor’s finding as to the value of the two pieces of property in question is amply sustained by the evidence; also that appellant was acting as the agent of both parties in this transaction with the knowledge and consent of both. The evidence also discloses that appellee relied upon the statement of appellant as to the value of the two pieces of property deeded to him as his commission. Appellant contends that it was the duty of appellee to use diligence in knowing what the properties were worth. As between appellee and Gettle, the other party to the trade by which the property was acquired, this would be true, but as to appellant, who was acting as the agent of appellee as well as Gettle, such a rule has no application, as the agent of appellee was bound to use good faith in giving to his principal correct information concerning the character and value of the property. This the record shows he did not do, and the decree that the deeds to him be set aside is right. The chancellor, however, was not justified, under the issues made up in the bill, in denying appellant a reasonable commission for his services as appellee’s agent. Appellee by his bill asks for an accounting and offers to pay a reasonable commission, stating that the value of the property transferred by him was $20,000 and that a reasonable fate to be paid as a commission would be two and a half per cent, amounting to $500, thus, in effect, stating in his bill that he considers $500 to be a reasonable commission. There is no denial of this averment. Appellee testified that appellant was acting as agent for both of the parties to the trade. The rule is that one may act as agent for both parties to a transaction if it be.with their full knowledge and consent. (Adams v. Larson, 279 Ill. 268.) •While the evidence does not show that either appellant or Gettle knew what commission the other was to pay, it is only reasonable to say that they expected that he would receive a commission from each. However that may be, in the bill presented here appellee offers to pay a reasonable commission, which he intimates is $500. It is a fundamental principle of equity that he who seeks equity must do equity, and where by his bill he makes offer to pay a reasonable sum the court is not justified in giving him more than he asks. We are of the opinion, therefore, that the court should have decreed that the deeds be set aside upon payment by appellee to appellant of the sum of $500 within a time to be fixed by the court. The decree is therefore reversed and the cause is remanded, with directions to enter a decree in accordance with the views herein expressed, each party to pay his own costs m this court. Reversed and remanded, with directions. ","per_curiam":false,"type":"020lead"}],"other_dates":"Rehearing denied June 6, 1923.","precedential_status":"Published","slug":"warner-v-young"} {"attorneys":"J. W. Bv,rton, for appellants., J. Baker and 0. B. Baker, for appellees.","case_name":"Cabel v. McCafferty","case_name_full":"Cabel v. McCafferty","case_name_short":"Cabel","citation_count":0,"citations":["53 Ind. 75"],"court_full_name":"Indiana Supreme Court","court_jurisdiction":"Indiana, IN","court_short_name":"Indiana Supreme Court","court_type":"S","date_filed":"1876-05-15","date_filed_is_approximate":true,"headnotes":"County Treasurer.—Suit on Official Bond.—Payment by Sureties.—Pleading.—Where a county treasurer, at the expiration of his term of office has failed to deliver to his successor public money in his possession as treasurer, it is the duty of the county auditor, upon being so required by the board of county commissioners, to bring suit, as relator, upon the official bond' of said treasurer for such failure; and said auditor may compromise such suit so brought by him, and receive the money so agreed to be paid; and upon the compromise of such a suit, and the payment by the sureties on said bond of the money so found to be due, such sureties, in an action brought by them against said treasurer to recover the amount so paid by them, need not allege that such payment was made to said treasurer’s successor in office. In such an action by sureties, it was a sufficient allegation of such payment by them, that “ the plaintiffs paid to the commissioners of said county and auditor of said county and their attorney of record in said suit, and, on,” etc., “in fact and in truth, did pay over, to the persons authorized to receive the same, the aforesaid sum,” etc.
","id":7133619,"judges":"Btjskirk","opinions":[{"author_str":"Btjskirk","ocr":true,"opinion_id":7041163,"opinion_text":"\nBtjskirk, J.\nThis was an action by the appellants, who *76were sureties upon the bond of George A¥. McCafferty, as treasurer of Daviess county, against the said McCafferty, his wife and Patrick L. Crane, the purpose of which was to recover from the said McCafferty a sum of money which they had been compelled to pay for him as his sureties, and to require the said Crane to pay to them a judgment, which had been rendered in favor of the wife of the said McCafferty, and against the said Crane, upon the grounds of the insolvency of the said McCafferty and the fraudulent assignment by him to his wife of the indebtedness upon which said judgment was rendered.\nA demurrer was sustained to the complaint, to which ruling an exception was taken. There was final judgment on demurrer.\nThe only error assigned is based upon the action of the court in sustaining the demurrer to the complaint.\nThe only question discussed by counsel is, whether the complaint shows a valid payment by the appellants, as the sureties of the said McCafferty. The complaint alleges the election of the said McCafferty, the execution of his bond as such treasurer, his failure to pay over money by him collected, his fraudulent assignment of the debt against Crane, the commencement of an action upon the bond of McCafferty, and the compromise of such action, and the payment by the appellants of the sum found to be due.\nAVe quote from the complaint that portion of it which bears upon the question relied upon and discussed by counsel:\n“ And thereupon the board of commissioners of said county of Daviess made an order, instructing the auditor of said county to cause suit to be instituted against the plaintiffs on said bond; and that during the pendency of said suit in the Daviess Circuit Court, Indiana, the plaintiffs paid to the commissioners of said county and auditor of said county and their attorney of record in said suit, and, on the 8th day of June, 1872, in fact and in truth, did pay over to the persons authorized to receive the same, the aforesaid sum of eight *77hundred and nineteen dollars and sixty-two cents ($819.62), in manner and form as aforesaid.”\nIt is contended by counsel for appellees, that the payment should have been made to the successor in office of the said McCafferty, and, in support thereof, they rely upon section 13 of an act in relation to county treasurers, 1 G. & H. 642, which reads:\n“ The treasurer shall annually make complete settlement with the board of county commissioners, at the regular June term thereof, and shall, at the expiration of his term, deliver to his successor all public money, books and papers in his possession. ”\nIt is unquestionably true that it was the duty of said McCafferty to make a settlement, and pay over the money, ■and deliver the books, as required by the above section; but the question before us is, whose duty it was to commence suit upon his bond, for his failure to perform the acts required of him by the statute above quoted.\nIt is well settled by the statute, and by repeated decisions of this court, that it is the duty of the county auditor, whenever required by the board of commissioners, to bring suit upon the bond of a county treasurer, for a failure to make- a settlement, or to pay to his successor any money in his hands at the expiration of his term of office, or to deliver any books or papers. Sections 126, 127 and 128, 1 G. & H. 102; Snyder v. The State, ex rel. etc., 21 Ind. 77; Pepper v. The State, ex rel. Harvey, 22 Ind. 399; Taggart v. The State, ex rel. Jackson Township, 49 Ind. 42; Taggart v. The State, ex rel. Van Buren Township, 49 Ind. 45. See five other cases of Taggart v. The State, ex rel., etc., 49 Ind. 46, 47, 48, 49 and 50; Scotten v. The State, ex rel. Simonton, Auditor, 51 Ind. 52.\nThe action was properly brought on the relation of the ■county auditor. He was, therefore, authorized to compromise the suit and receive the money agreed to be paid.\nThe court erred in sustaining the demurrer to the complaint.\n*78The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to overrule the demurrer to the complaint, and for further proceedings.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cabel-v-mccafferty","summary":"Erom the Daviess Circuit Court."} {"attorneys":"T. F. McGue for appellants., Soper, Allen & Morling for appellee.","case_name":"Maguire v. Hanson","case_name_full":"Patrick Maguire v. J. W. Hanson, Sheriff","case_name_short":"Maguire","citation_count":0,"citations":["105 Iowa 215"],"court_full_name":"Supreme Court of Iowa","court_jurisdiction":"Iowa, IA","court_short_name":"Supreme Court of Iowa","court_type":"S","date_filed":"1898-04-09","date_filed_is_approximate":false,"disposition":"Reversed.","headnotes":"1 4 6 Homesteads: abandonment: Pleading. Plaintiff, occupying a dwelling house with his wife, which they had moved from their homestead to their son’s land sixteen months previously, sued to enjoin a sale of their land under execution, and alleged that they moved because they needed their son’s care, “by reason of their age, sickness and infirmities,” and that the removal was temporary and without any intent to permanently separate the house from the land, or of abandoning their homestead or homestead rights. Held, that the petition was insufficient, as it failed to show a definite purpose to resume their residence on the land.
2 Same It is not sufficient that a homestead claimant is supported by cultivation and use of the property claimed as a homestead. The actual occupation of the premises as a home for the owner and his family is required, except in a few exceptional cases of temporary absence.
5 Same. A removal of the dwelling house from a homestead for a temporary cause, with the intention on the part of the owner to replace it on the land and resume his residence therein, does not pevent an abandonment of his homestead right in the land, where he subsequently abandons such original intention.
7 Same. The fact that the dwelling house, after removal from land previously used as a homestead, remains exempt as a homestead does not continue the homestead character of the land from which it has been removed.
3 Evidence. The removal of a dwelling house from land and its oecu-pation as a home in its new location are prima facie evidence of abandonment and plaintiff who asserts homestead rights, must rebut this presumption which arises from these facts.
","id":7197021,"judges":"Robinson","opinions":[{"author_str":"Robinson","ocr":true,"opinion_id":7108207,"opinion_text":"\nRobinson, J.\n1 — The facts alleged in the petition, and admitted by the demurrer, are as follows: In April, 1873, a judgment was rendered by the district court of Allamakee county against the plaintiff, and in favor of the defendant O. H. McCormick & Bro., which is unpaid. At the time the indebtedness on account of which the judgment was rendered was contracted, the plaintiff owned six hundred and forty acres of land in. Allamakee county, upon which his dwelling house was situated. He afterwards ¡disposed, of that land, and, with the proceeds thereof, purchased two hundred acres of land in the ©ame county, and occupied a part thereof as his homestead. It is alleged that the price of that property was paid from the proceeds of his former homestead. In the year 1885 he disposed of the second homestead, and, with the price received, purchased an eighty-acre tract of land in Palo Alto county, and erected upon one-half of it a dwelling house, which he and 'Ms wife thereafter occupied as a homestead for a period of nearly ten years. In October, 1894, the dwelling house was moved onto land owned by a son of the plaintiff. The reason for the removal of the house was that the plaintiff and his wife, “by reason of their age, sickness, and infirmities,” required the care and assistance of their son; but it is alleged that the “removal was only temporary, and for the purposes aforesaid, and not with any intention of permanently separating the ©aid house from the said land, and with no intention *217whatever of abandoning their said homestead rights in said property, bat that they still use, and are supported from the proceeds of the use and cultivation of, the said homestead forty acres.” The defendant Hanson, as sheriff, levied an execution, issued by virtue of the judgment described, on the forty acres of land from which the dwelling house was removed, advertised it for sale on the eighth day of February, 1896, and, unless restrained, will sell it to. satisfy the judgment. The decree of the district court enjoined the defendants from seeking to enforce the judgment against the land dscribed.\n2 That the land was a homestead, and hot subject to sale to satisfy the judgment specified' prior to the removal of the dwelling house therefrom, is not disputed, and the only question we are required to determine is stated by the appellants as follows: “Did the' forty acres in controversy constitute the homestead of the appellee at the time of the levy?” To constitute a homestead under the law of this state, it is not sufficient that the homestead claimant is supported by the cultivation and use of the property claimed as a homestead. The actual occupation of the premises as a home for the owner and his family is required, excepting in a few cases* where a temporary absence from the home for authorized purposes will hot affect its homestead 'character. Davis v. Kelley, 14 Iowa, 523; Windle v. Brandt, 55 Iowa, 221. “The homestead must embrace the house used as a home by the owner thereof, and if he has two or more houses thus used' by him at different times and places, he may select which he will retain as his homestead.” Code 1873, section 1994. A p.erson may sell his homestead, 'and invest the proceeds in another which will be exempt from existing debts, and should be .allowed a reasonable time in which to make the change; but a mere intent to erect *218upon a lot or tract of land a house to be occupied as a 'home at some indefinite time is not sufficient to constitute a homestead, within the meaning of the statute. Givans v. Dewey, 47 Iowa, 414; Christy v. Dyer, 14 Iowa, 438; Bank v. Hollingsworth, 78 Iowa, 575; Mann v. Corrington, 93 Iowa, 108, and cases therein cited.\n\n*219\n3\n\n\n4\n\n\n5\n\n6 *218But we are required to consider in this case more particularly what constitutes an abandonment of a homestead. It is, of course, true that an actual removal from a homestead, with no intention to return to it, will operate as an abandonment. Fyffe v. Beers, 18 Iowa, 4; Newman v. Franklin, 69 Iowa, 244. And a removal with an intention not to return except upon a contingency which the person removing intends to- avoid will constitute an abandonment. Kimball v. Wilson, 59 Iowa, 638. The same is true of a removal made without •any definite and fixed purpose to return. Cotton v. Hamil, 58 Iowa, 594; Perry v. Dillrance, 86 Iowa, 424; Blackurn v. Traffic Co., 90 Wis, 362, (63 N. W. Rep. 289); Jarvis v. Moe, 38 Wis. 440. But when a person removes from this homestead for a temporary cause, with the definite and- settled purpose of returning to it, and that purpose is continuously held in good faith, there is no abandonment of 'the homestead right. The length of time he is 'absent from his homestead, although not necessarily conclusive, may be 'considered as tending to show 'his intent. Dunton v. Woodbury, 24 Iowa, 74. An absence from the homestead of several years, during which time.it is rented to another does not necessarily operate as an abandonment of the -homestead right. Boot v. Brewster, 75 Iowa, 631; Zwick v. Johns, 89 Iowa, 550; Repenn v. Davis, 72 Iowa, 548; Ayers v. Grill, 85 Iowa, 720; Robinson v. Charleton, 104 Iowa, 396; Waples Homestead, section 563. The homestead right, when once acquired, will be presumed to continue until it is shown to have been terminated. *219Boot v. Brewster, supra; Robinson v. Charleton, supra; And the burden of showing that it is 'at an end is upon the party who assails it. In this ease it .appears that the land in controversy was a homestead until less than sixteen months before this action was commenced; but ‘the removal by the plaintiff of his dwelling house from the land, and his occupation of it in its new location as a home, are prima facie evidence of .abandonment, and the burden is on 'him to rebut the presumption which arise® from those facts. Newman v. Franklin, 69 Iowa, 244; Waples Homestead, section 564. It is said that he has failed to meet that requirement, in that 'his petition does not explicitly (allege an absolute ¡and unqualified intention! to return to and reoccupy as a homestead the land in controversy. The petition alleges that the removal was only temporary, and not with any intention of separating permanently the house from the land, and with no intention whatever of abandoning the homestead or the homestead rights. All this may be true, and yet the plaintiff may not now have any intention of replacing his house on the land, and there occupying it as a. home for himself and his wife. The intent with which the house was removed is not controlling. If the plaintiff, when he removed it, did so for a temporary cause, and intended to replace it on the land, and resume hi© residence therein, but afterwards .abandoned that intention, and now does not purpose to again make it Ms place of residence, his original intention has ceased to be effective, and there is 'an. 'abandonment of the homestead right in the ■ land. The plaintiff removed his house from the land because of the age, infirmities, and sickness of himself and his wife, for'the purpose of having the care and assistance of their son. The sickness may be *220temporary, but their increasing age and the infirmities incident thereto might well make the care and assistance of the son as necessary in the future as in the past. However that may be, it is clear, we think, that the petition fails to show that definite and fixed purpose on the part of the plaintiff to- resume his resi-dente on the land in controversy which is necessary to prevent Ms removal and absence therefrom, under the circumstances stated, having the effect of an abandonment.\n7 It is claimed by the appellee that his dwelling house is exempt as a homestead, although he does not own the land upon which it is now situated. That may be true, but the defendants are not seeking to sell the house; and, if it be true that it is a homestead,. that fact alone does not continue the homestead character of the land. To have that effect, the house should 'be on the land. Section 1995 of the Code of 1873 provided that a homestead might contain one or more lots or tracts of land if they were continue; but the petition does not make a case within the provisions of that section, and the case of Reynolds v. Hull, 36 Iowa, 394, does not support the claim which we understand the plaintiff to make, that the house, although separated from the land, may be regarded as SO' much a part of it as to continue the homestead character which once attached to it. We 'conclude that the demurrer should have been sustained, and the decree of the district court is therefore reversed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"maguire-v-hanson","summary":"Appeal from Palo Alto District Court. — Hon, W. B. Quarton, Judge. Action in equity to restrain toe sale under execution of land alleged' to be a boonestead. 'A demurrer tQ the petition was overruled, and,'the defendants having refused to plead further, a decree was rendered in favor of the plaintiff. The defendants appeal. —"} {"attorneys":"Debra A. Haimowitz, of Kansas Department of Health and Environment, for the appellant., Robert J. McCully and Karl N. Hesse, of Foulston & Siefkin, L.L.P., of Wichita, for the appellee.","case_name":"Kansas Department of Health & Environment v. Wells","case_name_full":"Kansas Department of Health and Environment v. Jay Wells, d/b/a Lemon Shake-up","case_name_short":"Wells","citation_count":0,"citations":["29 Kan. App. 2d 585","28 P.3d 1043"],"court_full_name":"Court of Appeals of Kansas","court_jurisdiction":"Kansas, KS","court_short_name":"Court of Appeals of Kansas","court_type":"SA","date_filed":"2001-08-03","date_filed_is_approximate":false,"id":7212725,"judges":"Hill, Lewis, Rulon","opinions":[{"author_str":"Lewis","ocr":true,"opinion_id":7124564,"opinion_text":"\nLewis, J.:\nJay Wells makes his living selling cotton candy and lemonade. His business is named Lemon Shake-Up and operates out of two mobile units. The question on appeal is whether Wells’ operations were properly licensed as they were operated at the Kansas State Fair in 1999.\nIn 1999, Wells had two mobile units at the Kansas State Fair. These units were located on the same 30-square-feet of property, which was referred to as Block 18, Space 7. The two mobile units are adjoining—on one side he sold cotton candy and lemonade on the other. Wells had a license as a food service establishment from *586the Kansas Department of Health and Environment (KDHE), which he posted in the trailer in which he made cotton candy. However, it was his understanding and belief that the license covered not only his cotton candy sales but also the trailer in which he was selling lemonade. Both of these trailers were open for inspection and were inspected on numerous occasions by the KDHE during the fair in 1999.\nFor 15 years, under the constant and thorough supervision of KDHE, Wells had operated with one license covering both of his trailers. For those 15 years, the KDHE had agreed that only one license was required. However, in 1999, the inspector for KDHE decided that one license was not sufficient and cited Wells for a failure to have a proper license in each trailer and imposed a fine of $1,000.\nWells first sought administrative review of his citation, and the presiding officer of the administrative appeals section of the KDHE held in favor of Wells, finding that only one license was required. The KDHE was much aggrieved by its appellate section decision and appealed that decision to the Secretary of the KDHE, who promptly reversed the decision of the presiding officer. Wells then appealed to the trial court, and the trial court reversed the Secretary’s order and held that the two concession trailers were only one single food establishment and required only one license. This appeal followed.\nThe first issue we must determine is one of venue. The KDHE argues that Sedgwick County was not the proper venue for this action. Wells argues that this issue was not raised before the trial court and has not been preserved for appeal.\nIn its answer to the petition for judicial review, the KDHE did object to venue, arguing that the location of the mobile unit was in Reno County, that the final order was effective in Shawnee County, and that Sedgwick County was an inappropriate county for venue. However, the issue was not raised in the hearing before the trial court by either party, nor was it addressed by the trial court. We conclude that die silence of the KDHE on the issue of venue during the hearing on merits before the trial court constituted a waiver of the issue of venue. In addition, we see no prej*587udice to the KDHE because of improper venue if, in fact, venue was improper.\nWe hold the issue of venue was not properly preserved for appeal, and we do not reach that issue.\nWe now turn to the merits. The KDHE argues the trial court erred in holding that Wells needed only one license for two mobile food establishments at the same location.\nWe disagree and affirm the decision of the trial court.\nIn reviewing the decision of the trial court on appeal from an agency action, we must first determine whether the trial court observed the requirements and restrictions placed upon it and then make the same review of the administrative agency’s action as did the trial court. Hickman Trust v. City of Clay Center, 266 Kan. 1022, 1036, 974 P.2d 584 (1999). The standard of review of a state administrative agency action is set forth in K.S.A. 77-601 et seq.\nIn this case, the trial court determined that the KDHE had erroneously interpreted or applied the law regarding the definition of “food service establishment”. as used in K.S.A. 36-503 and granted relief under K.S.A. 77-621(c)(4).\nK.S.A.- 36-503(a) states: “It shall be unlawful for any person to engage in the business of conducting a food service establishment unless such person shall have in effect a valid license therefor issued by the secretary of health and environment.” “Food service establishment” is defined by K.S.A. 36-501(e):\n“ ‘Food service establishment’ means any place in which food is served or is prepared for sale or service on the premises or elsewhere, such term include, but not be limited to, fixed or mobile restaurant, coffee shop, cafeteria, short-order cafe, luncheonette, grill, tea room, sandwich shop, soda fountain, tavern, private club, roadside stand, industrial-feeding establishment, catering kitchen, commissary and any other private, public or nonprofit organization or institution routinely serving food and any other eating or drinking establishment or operation where food is served or provided for the public with or without charge.”\nThis case turns upon the interpretation of what is a food service establishment. The presiding officer of the KDHE’s administrative appeals section and the trial court found that the definition was such that it covered the combined mobile units operated by Wells on the same lot at the fair. The Secretaiy of the KDHE did not *588agree and found that separate licenses were required, thereby concluding that the two trailers located side-by-side were separate food service establishments.\nThe trial court, in reversing the Secretaiy and agreeing with the presiding officer of the appeals section, relied on State v. Helgerson, 212 Kan. 412, 511 P. 2d 221 (1973). The Helgerson decision involved multiple food counters operated at Henry Levitt Arena on the campus of Wichita State University by the same operator. The operator had one license from the KDHE to cover the entire area operation and all of the separate food counters he operated at that location. The KDHE argued that the operator was required to purchase a separate license for each of the concession counters at which food was sold. The Supreme Court disagreed and held that the concessions constituted a single food service establishment for state licensing purposes. The court reasoned that there was only one premise where food was sold and that the public policy behind the licensing would not be better served by requiring the operator to procure several licenses instead of one. 212 Kan. at 413-14.\nWe are unable to distinguish Helgerson from the instant matter. The KDHE, in an attempt to do so, argues the statutory authority upon which Helgerson relied was repealed in 1975. That argument is rather hollow; the statute in effect in 1973 simply referred to “restaurants” and the amendment in 1975 changed the term used to “food service establishments.” See L. 1975, ch. 314. § 5. The statutes are virtually identical in every other way, and there was no change made in the statute which would affect Helgerson.\nBased upon Helgerson, we hold that the two mobile units operated by Wells at the Kansas State Fair constituted one food service establishment and that only one license was required. We affirm the decision of the trial court to that effect.\nAffirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"kansas-department-of-health-environment-v-wells"} {"attorneys":"J. W. Parsons (Charles Wheaton Elam of Counsel) for Plaintiff, Appellee. ■, Wise & Herndon for Defendant, Appellant.","case_name":"Pegues v. Ray","case_name_full":"W. T. Pegues, Tax Collector v. O. P. Ray","case_name_short":"Pegues","citation_count":0,"citations":["50 La. Ann. 574"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1898-06-13","date_filed_is_approximate":false,"headnotes":"1. A commercial drummer, or canvasser, who goes out on the road soliciting orders for his house, whether it be located in or out of the State, and who takes with him samples of the goods or wares his house deals in, is not a “ traveling vendor ” with in the meaning of Sec. 13 of Act No. 150 of 1890.
2. A business house, located in one of the towus or cities of the State, taking out the necessary licenses there, may send its drummers or canvassers out, with samples, to take orders in other towns and parishes without becoming subject to the payment oE a State, parish or municipal license in such other towns and parishes.
3. The negotiation here of sales of goods which are in another State for the purpose of their introduction in this State is interstate commerce.
","id":7280582,"judges":"Blanchard","opinions":[{"author_str":"Blanchard","ocr":true,"opinion_id":7197559,"opinion_text":"\nThe opinion of the court was delivered by\nBlanchard, J.\nThe Wrought Iron Range Company, a corporation domiciled in the city of St. Louis, Missouri, is engaged in the business of the manufacture and sale of cooking stoves and ranges.\nIt sent agents to Shreveport, Louisiana, engaged a warehouse or place of'business there, and shipped hither in carload lots its wares.\nThe ranges thus consigned to the Shreveport house were shipped in original packages, remained in such packages, and as sales were effected or orders received for goods they were delivered in the original packages to the purchasers.\nA State license for the occupation of retail dealer in stoves and ranges was taken out at Shreveport.\nThe company sold goods at retail in the house at Shreveport and put drummers in the field to canvass the parishes of that section of the State.\n*575Defendant herein, O. P. Ray, was sent to De Soto parish and under him were several canvassers, who were dispatched through the parish to solicit orders. As orders were taken they were sent in to Ray at Mansfield, the county seat of the parish, who forwarded the same to R. F. Dixon, the general manager of the company 'at Shreveport, and he would fill the orders by shipping the goods in the original packages to Ray at Mansfield, and on their receipt Ray would load the stoves, without breaking the packages, on his delivery wagons and deliver the same to the parties giving the orders.\nRay and the drummers under him were in the parish temporarily only.\nThe drummers, or soliciting agents, each used a wiagon with a stove and its attachments therein as an exhibit or sample of the kind and quality of goods they were drumming for. No stoves were sold from the wagons of the canvassers.\nThey took orders only for subsequent delivery by other parties in the employ of the company.\nNo large stock of the ranges was kept in the warehouse at Shreveport, but new supplies were ordered by Dixon from the manufactory at St. Louis as needed.\nThe business was started at Shreveport in 1897. Ray and the canvassers under him began soliciting orders in De Soto parish in February, 1898, and by the twentieth of the month thirty-four orders had been taken.\nThe tax collector of De Soto parish demanded of Ray the payment of a license tax and took the present proceeding to enforce its payment.\nThe proceeding is summary in character under the provisions of Sec. 18 of Act No. 150 of 1890, which authorizes action by rule to show cause within five days why the license claimed should not be paid, etc.\nThe petition of the tax collector, mover in rule, sets forth that the defendant is a traveling vendor of stoves and ranges, selling and delivering his wares throughout the parish as agent for the Wrought Iron Range Company of St. Louis, Missouri, and that as such he owes a license of two hundred dollars to the State and parish, which has been demanded and refused. He asks judgment making the *576rule absolute and condemning defendant to pay the license, with penalties, etc.\nThe statute under which the tax collector proceeds is Sec. 13 of Act No. 150 of 1890, and is as follows:\n“ That all traveling vendors of stoves, lightning rods and clocks shall pay a license annually of two hundred dollars in each parish of the State.”\nDefendant resists the.payment of this license on the ground (1) that he is the agent and representative of the Wrought Iron Range Company, which is authorized to conduct a mercantile business at the city of Shreveport; and, if this defence be not good, (2) that the attempt to impose this tax upon him is an interference with interstate commerce and repugnant to the third paragraph of the eighth Section of Art. 1 of the Constitution of the United States.\nThe trial judge held that defendant and the canvassers under him are peddlers, and not merchants in the ordinary sense of the word; that they are “ traveling vendors,” within the meaning of the statute, notwithstanding the warehouse, or place of business, or depot of supplies at Shreveport; and that having such establishment in the State, their goods, when shipped here, become liable to the tax laws of the Stated\nProm a judgment against him defendant prosecutes this appeal.\nA commercial drummer, or canvasser, who goes out on the road soliciting orders for his house, whether it be located in or out of the the State, and who takes with him samples of the goods or wares his house deals in, is not a “ traveling vendor ” within the meaning of the statute quoted.\n“ Traveling vendor ” is synonymous with “peddler.” A traveling vendor is a peddler on an enlarged scale. The term seems to convey that idea. Nevertheless he is a peddler because he carries wares which he sells and delivers at the same time, going from place to place for the purpose.\nWebster’s dictionary defines a peddler as “a traveling trader; one who carries about small commodities on his back or in a cart or wagon and sells them.”\nBouvier’s Law Dictionary says :\n“A peddler is a person who travels about the country with merchandise for the purpose of selling-it.”\nAnd Anderson’s Dictionary of Law declares him to be “a person *577wlio travels from place to place and carries about with him on horseback or in a vehicle articles of merchandise for sale.”\nA traveling vendor, then, is one who carries about with him the articles of merchandise which he sells. That is to say, the identical merchandise he sells he has with him- and delivers at the time of sale.\nHis vocation is quite different from that of the drummer, who carries only samples of his wares as exhibits, and takes orders for the future delivery of merchandise of their kind and quality, or of similar kind and quality.\nThe statute under consideration imposes no license on the drummer with his samples taking orders, w'hile it does on the traveling vendor of certain kinds of goods.\nTax laws are to be construed strictly. Defendant) and the canvassers under his orders were all employees of the Wrought Iron Range Company. This company was the vendor, the parties referred to its salesmen. They took the orders and transmitted the same to the company, who shipped the goods to fill the orders. In soliciting orders they did not carry about with the.m the goods actually sold. The evidence is the reverse. It is true, in two instances orders were taken for ranges where delivery was made on the same day. But this is explained by defendant’s statement, that his men had previously taken several orders for ranges, which he (defendant) had ordered from the Shreveport house to fill, but two of the parties were, on inquiry, found to be irresponsible, and, in consequence, delivery to them was refused, and having the two ranges on hand at Mansfield, they were delivered immediately to two other parties, whose orders were substituted for those declined. Besides, even in these instances, the drummers who took the orders did not have the ranges with them, and the delivery was made by other parties. In all the other cases of orders taken, a period of sixty days for delivery was stipulated for, though, as a matter of fact, the delivery was made much sooner, for the distance is not great to Shreveport, where the stoves were in stock, and the trains passed to and fro each day.\nNor does the fact that because defendant, as agent of the selling company, undertook to deliver the stoves in his wagons at the homes of the purchasers necessarily bring him within the definition of “ traveling vendor.” The facts, as disclosed by the evidence, do not make out that kind of a case.\n*578The crucial facts are, the orders were taken by the drummers who merely had samples of the goods sold, these orders were filled from the Shreveport house, and the goods were shipped to the depot at Mansfield. From there they were, pursuant to agreement, transported by defendant’s or the company’s wagons to the place designated.\nIt can not be said, under these circumstances, that the ranges were incorporated into the general mass of property in the parish of De Soto prior to their delivery, so as to make them subject to taxation there in the hands of the company’s agents.\nThey only became so incorporated after delivery to the parties purchasing. See McClellan, Tax Collector, vs. Pettigrew, 44 La. An. 357.\nIt may be that the stock of these goods kept at Shreveport became incorporated in the general mass of property of that parish, and became subject to taxation there. But that can not avail plaintiff, who is tax collector of another parish. A tax was imposed at Shreveport, a State license to do business was taken out there, and the presumption is that the company’s stock of goods went on the assessment rolls there for ordinary ad valorem taxation.\nA business house located at the city of Shreveport, taking out the necessary licenses there, may send its drummers and canvassers ouc with samples to take orders in other towns and parishes without becoming subject to the payment of a State, parish or municipal license in such other towns and parishes. If it were otherwise, the enterprising practice of sending drummers out from the large cities would be broken up, thousands of persons thrown out of employment and trade, and commerce greatly impeded.\nIf it be true, as intimated by our learned brother of the court a qua, this house at Shreveport was only a warehouse for the storage of goods, and its existence and maintenance there did not make the company, and defendant, its employee, merchants in the ordinary sense of the word, then must these goods, kept in the original packages, be held objects of interstate commerce in the strictest sense of that term, stopping merely at Shreveport on their way to a delivery destination contracted for by persons engaged in introducing in this State articles of goods manufactured in another State.\nThe negotiation here of sales of goods which are in another State for the purpose of their introduction in this State is interstate commerce. And this court said, through Mr. Justice Watkins, in Sim*579mons Hardware Company vs. Sheriff, 39 La. An. 853: “Tf the person sought to be taxed, or of whom a State license is required, be one who is merely passing through the State, or one coming into it for the temporary purpose of selling by sample goods to be imported from another State, or if the goods, the sale of which is thus negotiated, are imported into the State from another State and not yet become a part of the mass of property therein, neither the person nor property have become subjected to the taxing power of the State, and any State law imposing such a license tax is repugnant to the Federal Constitution and void.”\nThe principle thus announced is sustained in a long line of decisions by the Supreme Court of the United States, beginning with the early and leading case of Brown vs. Maryland, 12 Wheat. 419, where it was luminously stated by Chief Justice Marshall himself, and extending down to Brennan vs. Titusville, 153 U. S. 289, among which decisions should be especially noted that of Robbins vs. Shelby County Taxing District, 120 U. S. 489.\nOur conclusion is defendant is not subject to thelicense tax sought to be imposed, and, accordingly, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and plaintiff’s demand be rejected at his costs in both courts.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued and submitted May 17, 1898.","precedential_status":"Published","slug":"pegues-v-ray","summary":"APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J."} {"case_name":"Mayzel v. Office of Personnel Management","case_name_full":"Joseph R. MAYZEL v. OFFICE OF PERSONNEL MANAGEMENT","case_name_short":"Mayzel","citation_count":0,"citations":["49 F. App'x 318"],"court_full_name":"Court of Appeals for the Federal Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Federal Circuit","court_type":"F","date_filed":"2002-10-25","date_filed_is_approximate":false,"id":7295022,"judges":"Dyk, Lourie, Newman","opinions":[{"ocr":true,"opinion_id":7212801,"opinion_text":"\nPER CURIAM.\nJoseph R. Mayzel petitions for review of the decision of the Merit Systems Protection Board, Docket No. SF831E010281-I1, sustaining the reconsidered decision of the Office of Personnel Management (OPM) that he is not entitled to a disability retirement annuity. We affirm the decision of the Board.\nDISCUSSION\nMr. Mayzel was employed as an engineer at the Department of Defense. In his application for disability retirement benefits Mr. Mayzel listed two heart attacks occurring on May 14, 1996 and August 9, 1999, a lower back condition since January 1989, and Bell’s Palsy diagnosed on May 7, 2000. He stated that the second heart attack was caused by the stress of his job and that he has been disabled since that time. OPM denied the application, finding that Mr. Mayzel had not established that his medical problems were severe enough to prevent him from performing his job. The Board sustained the OPM decision, and this appeal followed.\nThis court is without authority to review the substantive merits of OPM disability determinations, or the factual underpinnings of such determinations. See Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed.Cir.1993); Lindahl v. Office of Personnel Management, 470 U.S. 768, 791, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985). Our obligation is limited to determining whether the correct legal and procedural standards were applied. Id.\nMr. Mayzel claims that the medical evidence he has submitted contradicts the conclusion of the Board. He describes the various physicians’ reports and argues that they substantiate that he is disabled. He states that OPM failed to take into account his fear of having another heart attack and his family history of heart disease. These arguments are challenges to the substantive merit of the disability determination made by OPM, and are not subject to our review. We have not been directed to, and we do not discern, departure from the correct legal or procedural standards. On this limited ground of appellate review, the decision of the Board must be affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mayzel-v-office-of-personnel-management"} {"case_name":"Breton v. Green Tree Servicing, LLC","case_name_full":"Laurie Elizabeth BRETON, Appellant/Petitioner(s) v. GREEN TREE SERVICING, LLC, Appellee/Respondent(s).","case_name_short":"Breton","citation_count":0,"citations":["263 So. 3d 768"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2019-01-23","date_filed_is_approximate":false,"id":7699969,"opinions":[{"ocr":true,"opinion_id":7635381,"opinion_text":"\nDismissed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"breton-v-green-tree-servicing-llc"} {"attorneys":"Underwood & Rowell, for plaintiff in error., Ivy F. Thompson, for defendant.","case_name":"Brown v. Davenport","case_name_full":"Brown v. Davenport, Ordinary, for Use","case_name_short":"Brown","citation_count":0,"citations":["1 Ga. L. Rep. 447"],"court_full_name":"Supreme Court of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Supreme Court of Georgia","court_type":"S","date_filed":"1886-07-01","date_filed_is_approximate":true,"headnotes":"Assumpsit, from Harralsox. Administrators and Executors. Principal and Surety. Contracts. Bonds. Escrows. Evidence. Pleadings. (Before Judge Branham).
","id":7933387,"judges":"Jackson","opinions":[{"author_str":"Jackson","ocr":true,"opinion_id":7883740,"opinion_text":"\nJackson, C. J.\n1. Where suit was brought on the bond of an administrator, it was proper to strike pleas by a surety thereon to the effect that he signed a temporary bond, and that subsequently he signed the bond sued on, under the statement of the ordinary that the temporary bond had been lost, and that he merely wanted this signed as a temporary-*448bond in its stead, and under representations both of the ordinary and the principal that it was only a temporary bond, and that other parties would also sign, and that he could read but poorly and the bond was not read to him, but the ordinary said it was a copy of the'former bond, and that he signed on the basis of these statements. 70 Ga., 488, 491 — 494; 72'Id,, 517.\nUnderwood & Rowell, for plaintiff in error.\nIvy F. Thompson, for defendant.\n(a) This case differs from that in 6 Ga., 202. Where the bond was signed by the principal and surety, and was delivered to the ordinary as a deed, it was not an escrow.\n(b) If both parties intended that something left out of the bond at the time it was signed was to be inserted in it then, but it was left out by fraud or mistake, parol evidence would be admissible to engraft it therein; but if the party signed in expectation that it would be after-wards done, the bond as written and delivered could not be altered by parol. 57 Ga., 319; 52 Id., 418; 43 Id., 190, 423.\n2. Where no plea of non est factum was filed at the first term, nor any other plea on which it could be grafted by amendment, it could not. be subsequently filed. 34 Ga., 435; 61 Id., 233; Searcy, Executor, vs. Tillman, (last term). 1 Georgia Law Reporter, 106.\n(a) Besides, evidence seems to have been taken and introduced on this plea, the preponderance being against it; and it is by no means certain from the record that it was stricken.\nJudgment affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"brown-v-davenport"} {"case_name":"Pelton Enterprises, Inc. v. United States","case_name_full":"Pelton Enterprises, Inc., and Hoyt, Shepston & Sciaroni v. United States","citation_count":0,"citations":["44 Cust. Ct. 381"],"court_full_name":"United States Customs Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Customs Court","court_type":"FS","date_filed":"1960-03-09","date_filed_is_approximate":false,"id":8146258,"judges":"Ford","opinions":[{"author_str":"Ford","ocr":true,"opinion_id":8107680,"opinion_text":"\nFord, Judge:\nThe merchandise under consideration consists of 100 womout :and obsolete print rollers, which were assessed with duty at 57 per centum ad 'valorem and $5 each under paragraph 395 of the Tariff Act of 1930, as modified 'by the Sixth Protocol of Supplementary Concessions to the General Agreement •on Tariffs and Trade, 91 Treas. Dec. 150, T. D. 54108, which provides as follows:\n(Print rollers, of whatever material composed, with raised _ _70/ . patterns of brass or brass and felt, finished or unfin- 'P c /o ished, used for printing, stamping or cutting designs. va ’\nPlaintiffs contend that the involved print rollers in their condition as im-iported are incapable of being used as print rollers for printing, stamping, or •cutting designs and that they are “waste,” properly dutiable at 4 per centum :ad valorem under paragraph 1555 of the Tariff Act of 1930, as modified by the ’Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T. D. 52739, which provides as follows:\n'Waste, not specially provided for_4% ad val.\nThe record in the instant case consists of the testimony of one witness and a. ■sample of the merchandise, similar in all material respects to that covered by •the instant importation, which was received as plaintiffs’ illustrative exhibit 1.\nThe witness called on behalf of plaintiffs, after having established his qualifications in the wallpaper field, including manufacturing, designing, coloring, ■and familiarity -with the production and distribution.problems for a period of approximately 30 years, testified that he is familiar with the merchandise covered by the importation under consideration; that he examined all of the rollers and found them to be obsolete, wornout, and consisting of odd rollers; that, in order to print wallpaper, the manufacturer must have 12 rollers of the same pattern; ■that, in his examination of the merchandise, he found only two matching rollers; that the merchandise could not be used for the printing of wallpaper for the .additional reason that the printing machines in use today use a different process of manufacture; that the roller is made from aluminum rather than wood. The witness further testified that the printing machines are handmade in England •and Germany, and the rollers must be made for the particular size of the machine •in order to be used as a print roller; that the roller must be exact and perfect in order to obtain a clear print; that the patterns of the imported rollers are -quite low and would not produce a clean cut; that the imported rollers had a high percentage of warpage, which would prevent their use as print rollers and -some had cracks. It was further stated that exhibit 1 could not be used for the printing of linoleum, since the rollers for the production of linoleum.are ap•proximately 6 feet long, whereas the involved articles are approximately 20 inches long.\nThe only purpose for which the print rollers were suitable, in the opinion of ■the witness, and for which they were imported, was for the manufacture of /lamps or bookends. It was stipulated by and bétween counsel for the respective ■parties that the subject print rollers were not lamps in their condition as imported and were in chief value of brass and not plated with platinum, gold, ■silver, or colored with gold lacquer.\nThe term “waste” for tariff purposes has been the subject of frequent judicial expression. In the case of Harley Co. v. United States, 14 Ct. Cust. Appls. 112, T.D. 41644, the court stated:\nIn the tariff sense, waste is a term which includes manufactured articles -which ’ ihave become useless for the original purpose for which they were made and fit *382only for remanufacture into something else. It also includes refuse, surplus, and useless stuff resulting from manufacture or from manufacturing processes and commercially unfit, without remanufacture, for the purposes for which the original material was suitable and from which material such refuse, surplus, or unsought residuum was derived. The latter class of waste might be appropriately designated as new waste and includes such things as tangled spun thread, coal dust, broken or spoiled castings fit only for remanufacture. T.D. 33376; Willets v. United States, 11 Ct. Cust. Appls. 499, 500, 501; Sohlesinger v. Beard, 120 U.S. 264; Seeberger v. Castro, 153 U.S. 32; Patton v. United States, 159 U.S. 500, 505, 509; Latimer v. United States, 223 U.S. 501-503.\nSubsequently, in the case of United States v. C. J. Tower & Sons, 31 C.C.P.A. (Customs) 185, C.A.D. 271, the court, in citing the Harley case, supra, made the following observation:\nAs appears from the quoted statement in the Harley Co. case, supra, there are two kinds of waste; namely, one, a manufactured article which, because of use or otherwise, has become useless for the purpose for which it was designed and is fit only for remanufacture; and, two, so-called “new waste,” which is refuse material resulting from a manufacturing process and which is commercially unfit without remanufacture for the purpose for which the original material was suitable.\nThe above cases were cited with approval in a more recent decision of this court in the case of The Midwest Waste Material Co. and E. J. Keller Co., Inc. v. United States, 28 Cust. Ct. 8, C.D. 1382.\nBased upon the foregoing decisions and the record made herein, we are of the opinion that the involved print rollers in their condition as imported are incapable of being used as print rollers for printing, stamping, or cutting designs, within the purview of paragraph 395 of the Tariff Act of 1930, as modified, supra. We are further of the opinion that the subject merchandise, by virtue of its condition as imported, is a manufactured article which has become useless for the original purpose for which it was made, is fit only for remanu-facture into something else, and is, accordingly, properly dutiable as “waste,” as that term is utilized in paragraph 1555 of the Tariff Act of 1930, as modified, supra, as claimed herein by plaintiffs.\nTo the extent indicated, the specified claim in the above suit is sustained; in all other respects and as to all other merchandise, all the claims are overruled.\nJudgment will be rendered accordingly.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"pelton-enterprises-inc-v-united-states"} {"attorneys":"J. Franklin Long, Esquire, Bluefield, West Virginia, Attorney for Petitioner., Susan 0. Phillips, Esquire, Ancil G. Ra-mey, Esquire, Steptoe & Johnson, Charleston, West Virginia, Attorneys for Respondent Joseph P. Nieto, D.O., A.L. Emch, Esquire, Lynn Oliver Frye, Esquire, Katherine Venti, Esquire, Jackson & Kelly, Charleston, West Virginia, Attorneys for Respondent Laboratory Corporation of America Holdings., Thomas V. Flaherty, Esquire, W.E. Sam Fox, II, Esquire, Flaherty, Sensabaugh & Bonasso, Charleston, West Virginia, Attorneys for Respondent Princeton Community Hospital Association, Inc.","case_name":"State ex rel. Huffman v. Stephens","case_name_full":"STATE of West Virginia ex rel. Dollie HUFFMAN, Administratrix of the Estate of Kayla Rene Huffman v. Honorable Booker T. STEPHENS, Judge of the Circuit Court of McDowell County Joseph P. Nieto, D.O. Laboratory Corporation of America Holdings, a Non-Resident Corporation and Princeton Community Hospital Association, Inc., a West Virginia Corporation","case_name_short":"Stephens","citation_count":0,"citations":["206 W. Va. 501","526 S.E.2d 23"],"court_full_name":"West Virginia Supreme Court","court_jurisdiction":"West Virginia, WV","court_short_name":"West Virginia Supreme Court","court_type":"S","date_filed":"1999-12-09","date_filed_is_approximate":false,"id":8218756,"judges":"Maynard, Risovich, Scott, Temporary","opinions":[{"author_str":"Per Curiam","ocr":true,"opinion_id":8181922,"opinion_text":"\nPER CURIAM:\nIn this proceeding in prohibition, the relator Dollie Huffman, as Administratrix of the Estate of Kayla Rene Huffman, prays that this Court issue a writ of prohibition prohibiting the respondent Judge of the Circuit Court of McDowell County from transferring to Mercer County a wrongful death action instituted by her in the Circuit Court of McDowell County. The respondent argues that such a transfer is appropriate because the Circuit Court of Mercer County is an appropriate venue for trial of the case.\nI.\nFACTS\nOn July 10, 1997, the relator, Dollie Huffman, gave birth to a child whom she named Kayla Rene Huffman. Later, on July 10, 1997, Kayla Rene Huffman died of a fatal Group B Streptococci infection. During her pregnancy, Dollie Huffman had undergone tests which indicated that she was infected with Group B Streptococci. The final test was submitted by Ms. Huffman’s physician, to the respondent Laboratory Corporation of America Holdings, a corporation with its principal offices in North Carolina, for analysis. After analyzing the test sample, Laboratory Corporation of America Holdings erroneously reported that Ms. Huffman had no Group B Streptococci, when, in fact, she was infected with the bacteria.\nFollowing the death of Kayla, Dollie Huffman, acting as Administratrix of the Estate of Kayla Rene Huffman, instituted a wrongful death action against her physician, against Laboratory Corporation of America Holdings, and against Princeton Community Hospital Association. The action was instituted in the Circuit Court of McDowell County.\nAfter the filing of the action, Laboratory Corporation of America Holdings moved to dismiss on the ground that the Circuit Court of McDowell County lacked venue for trial of the action. In the alternative, Laboratory Corporation of America Holdings moved to transfer the action from McDowell County to Mercer County on the basis of the doctrine of forum non conveniens.\nAfter receiving the motions of Laboratory Corporation of America Holdings, the Circuit Court of McDowell County on April 27, 1999 entered an order stating:\nBased upon review of the pleadings and argument of counsel, the Court is of the opinion that venue would be proper in the Circuit Court of Mercer County and, accordingly, hereby transfer this Civil Action to the Circuit Court of Mercer County.\nIn a subsequent order entered on May 19, 1999, the Circuit Court of McDowell County found that the contacts between Laboratory Corporation of America Holdings and McDowell County were insufficient to establish venue, and that as a consequence, there was no venue for the action in McDowell County. The court went on to find that venue would be proper in the Circuit Court of Mercer County and ordered transfer of the action to Mercer County.\nIn the present proceedings, the relator, Dollie Huffman, as Administratrix of the Es*503tate of Kayla Rene Huffman, contends that the facts of the case are sufficient to establish venue in the Circuit Court of McDowell County and that the change of venue ordered by the circuit court was inappropriate under our law. The relator, therefore, prays that this Court issue a writ of prohibition prohibiting the resppndent Judge of the Circuit Court of McDowell County from transferring the ease from McDowell County to Mercer County..\nII.\nPROHIBITION\nIn State ex rel. Riffle v. Ranson, 195 W.Va. 121, 464 S.E.2d 763 (1995), this Court recognized that the exercise of original jurisdiction in prohibition by this Court was appropriate to resolve the issue of where venue for a civil action lies. We reached this conclusion after noting that the issue of venue had the potential of placing a litigant at an unwarranted disadvantage in a pending action and that relief by appeal would be inadequate.\nIII.\nDISCUSSION\nFundamental to the decision of the principal issue in the present case is W. Va.Code 56-1-1, which establishes where venue for a civil action lies in the State of West Virginia. That statute provides, in relevant part:\n(a) Any civil action or other proceeding, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county:\n(1) Wherein any of the defendants may reside or the cause of action arose, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered or some part thereof, is; or ■\n(2) If a corporation be a defendant, wherein its principal office is, or wherein its mayor, president or other chief officer resides; or if its principal office be not in this state, and its mayor, president or other chief officer do not reside therein, wherein it does business; or if it be a corporation organized under the laws of this state, which has its principal office located outside of this state, and which has no office or place of business within the state, the circuit court of the county in which the plaintiff resides or the circuit court of the county in which the seat of state government is located shall have jurisdiction of all actions at law or suits in equity against such corporation, where the cause of action arose in this state or grew out of the rights of stockholders with respect to corporate management; ...\nThe evidence presented in the case presently before the Court shows that Laboratory Corporation of America Holdings is a Delaware corporation with its principal offices in North Carolina. It does not appear that the mayor, president or other chief officer of Laboratory Corporation of America Holdings resides in West Virginia. Thus, it would appear that, under W. Va.Code 56-1-1(a)(2), venue for an action against Laboratory Corporation of America Holdings would lie in any county “wherein it does business.”\nIn Kidwell v. Westinghouse Electric Company, 178 W.Va. 161, 358 S.E.2d 420 (1986), this Court examined the meaning of the phrase “wherein it does business” contained in our venue statute. In Kidwell, the Court overruled Brent v. Board of Trustees, 163 W.Va. 390, 256 S.E.2d 432 (1979), and held that the proper test for determining venue under W. Va.Code 56-1-1 is the same test used for determining personal jurisdiction under W. Va.Code 31-1-15. In the Brent case, the Court had held that the test for venue in a tort case was whether a corporation’s business activity in a county related directly to the acts which caused injury. In Kidwell, the Court concluded that this test was inappropriate. In the sole syllabus of Kidwell, the Court stated:\nWhether a corporation is subject to venue in a given county in this State under the phrase in W. Va.Code, 56-l-l(b), “wherein it does business” depends upon the sufficiency of the corporation’s minimum contacts in such county that demonstrate it is doing business, as that concept is used in W. Va.Code, 31-1-15. To the extent that Brent v. Board of Trustees, 163 W.Va. 390, *504266 S.E.2d 432 (1979), implies a more restrictive standard, it is overruled.\nIn Eastern Marketing Corporation v. Texas Meridian Production Company, Ltd., 798 F.Supp. 363 (S.D.W.Va.1992), the United States District Court for the Southern District of West Virginia recognized that the minimum contacts test of West Virginia’s jurisdiction statute, and inferentially, of West Virginia’s venue statute, would comport with federal due process requirements where the minimum contacts showed that the defendant had purposely directed its activities at residents of the forum state and that litigation had arisen out of or related to those activities.\nAn examination' of the documents filed in the present case shows that Laboratory Corporation of America Holdings did and does have contacts within McDowell County, where the relator brought her action. Further, it appears that those activities were purposefully directed at West Virginia parties and that the activities are the type of activity that gave rise to the present action. Specifically, the documents filed in the present case indicate that Laboratory Corporation of America Holdings has maintained accounts for Welch Emergency Hospital, located in McDowell County, West Virginia; Tug River Clinic of Northfork, located in McDowell County, West Virginia; and McDowell Medical Associates, Inc., located in McDowell County, West Virginia. These accounts exist because Laboratoiy Corporation of America Holdings performs tests and/or provides test results to these McDowell County organizations. Additionally, invoices are sent to these McDowell County organizations for payments due. The present action arose out of the type of testing that Laboratory. Corporation of America Holdings performs for its McDowell County customers.\nIt is the claim of Laboratory Corporation of America Holdings that its conducting of tests, its reading of test results, and its billing of McDowell County customers do not constitute sufficient contact with McDowell County for venue of the relator’s civil action to lie against it in McDowell County. In arguing this point, Laboratory Corporation of America Holdings takes the position that testing of fluid and tissue specimens is its real business and that it does not physically do that business in McDowell County. Specifically, in its memorandum Laboratory Corporation of America Holdings states:\nThe testing of fluid and tissue specimens is truly the business of LabCorp. Accordingly, any business conducted or transacted by LabCorp takes place outside McDowell County. Any contacts with McDowell County are merely incidental and attenuated to the performance of LabCorp in transacting its business.\nThis Court finds this argument unpersuasive. It defies logic to conclude that testing of fluids is the only business of Laboratory Corporation of America Holdings and that it is not in the business of billing and collecting for such activities. The documents filed show that in addition to testing, it does submit invoices for payment due and expects to receive payment due. The record also suggests that the activity is not sporadic but is ongoing and that there is, in fact, an ongoing business relationship between Laboratory Corporation of America Holdings and its McDowell County customers.\nA fair reading of the facts as developed by the documents filed in this case shows that Laboratory Corporation of America Holdings maintains a business relationship with a number of parties located in McDowell County, West Virginia, that it performs services for those parties, and that it does bill those parties in McDowell County, West Virginia.\nThe contacts of Laboratory Corporation of America Holdings with McDowell County are substantial and have been repeated and are, in our opinion, under our law, sufficient to support the finding that venue for the petitioner’s action does lie in the Circuit Court of McDowell County.\nW. Va.Code 56 — 1—1(b) indicates that even where venue does lie in a county, the civil action may be transferred to another county if certain circumstances are present. As previously stated, W. Va.Code 56 — 1—1 (b) provides:\n(b) Whenever a civil action or proceeding is brought in the county wherein the *505cause of action arose, under the provisions of subsection (a) of this section, if no defendant resides in such county, a defendant to the action or proceeding may move the court before which the action is pending for a change of venue to a county wherein one or more of the defendants resides, and upon a showing by the moving defendant that the county to which the proposed change of venue would be made would better afford convenience to the parties litigant and the witnesses likely to be called, and if the ends of justice would be better served by such change of venue, the court may grant such motion.\nIn Syllabus Point 1 of State ex rel. Riffle v. Ranson, supra, this Court stated:\nW. Va.Code, 56 — 1—1(b) (1986), is the exclusive authority for a discretionary transfer or change of venue and any other transfer or change of venue from one county to another within West Virginia that is not explicitly permitted by the statute is impermissible and forbidden.\nWest Virginia Code 56 — 1—1(b) authorizes a change of venue only when a civil action or proceeding is brought in the county in which the action arose. The relator’s action was not brought in Mercer County where it arose, but in McDowell County where venue lies under W. Va.Code 56 — 1— 1(a). Since W. Va.Code 56-l-l(b) permits a change of venue only when the action is brought in the county where action lies, this Court believes that the Circuit Court of McDowell County lacked authority for transferring venue of the action to the Circuit Court of Mercer County. ■\nFor the reasons stated, this Court believes that the appropriate venue for the relator’s action is the Circuit Court of McDowell County and that the respondent, judge of the Circuit Court of McDowell County erred in ordering a transfer of the ease to the Circuit Court of Mercer County.\nThe writ, pf prohibition which the relator seeks is, therefore, issued and the respondent judge is directed to refrain from proceeding to transfer the action to the Circuit Court of Mercer County.\nWrit issued.\nJudge FRED RISOVICH, II, sitting by temporary assignment.\nJustice SCOTT did not participate in the decision in this case.\n","per_curiam":true,"type":"020lead"},{"author_str":"Maynard","ocr":true,"opinion_id":8181923,"opinion_text":"\nMAYNARD, Justice,\ndissenting.\n(Filed Dec. 15, 1999)\nI dissent in this case because I do not believe that Laboratory Corporation of America Holdings (“LabCorp”) is subject to venue in McDowell County. Because the circuit court correctly determined that venue would be proper in the Circuit Court of Mercer County and ordered transfer of the action there, this Court should have denied the writ of prohibition prayed for by the petitioner.\nOne interesting thing about the majority opinion is what it does not tell the reader about the facts of this case. Specifically, it does not mention that the petitioner and plaintiff below, Dollie Huffman, is a resident of Mercer , County; Ms. Huffman’s doctor, Joseph P. Nieto, D.O., lives and practices medicine in Mercer County; all of the events at issue occurred in Mercer County including all of the treatment and services provided to Ms. Huffman by Dr. Nieto; the Princeton Community Hospital where Ms. Huffman’s labor and delivery occurred is located in Mercer County; LabCorp is a Delaware Corporation with its principal offices in North Carolina; and LabCorp’s analysis of the specimen at issue was performed in Marion County and reported to Dr. Nieto in Mercer County. The fact is that nothing about this case involved McDowell County.\nThe majority finds, however, that LabCorp “does business” in McDowell County in that it “performs tests and/or provides test results to McDowell County hospitals and clinics, and LabCorp maintains accounts for these organizations.” This is far too thin a reed to support venue. The test is not whether a corporation has any contacts in a given county but whether the sufficiency of the corporation’s minimum contacts demonstrates that it is doing business, “as that concept is used in W.Va.Code, 31-1-15.” Kidwell v. Westinghouse Electric Co., 178 W.Va. 161, 163, 358 S.E.2d 420, 422 (1986). This standard requires that “a foreign corporation must have such minimum contacts *506with the forum that the maintenance of the action in the forum does not offend traditional notions of fair play and substantial justice.” Kidwell, 178 W.Va. at 163, n. 5, 358 S.E.2d at 422, n. 5 (citation omitted). Certainly, allowing the underlying action to be tried in McDowell County is offensive to these notions.\nFurther, it is clear that prohibition is not appropriate here. Judge Stephens committed no substantial, clear-cut legal errors which were plainly in contravention of a clear statutory, constitutional, or common law mandate. See Ellis v. King, 184 W.Va. 227, 400 S.E.2d 235 (1990).\nIn conclusion, one can only conclude that Ms. Huffman’s lawyer filed the underlying action in McDowell County, a venue which had nothing to do with the events and parties in this case, because he was forum shopping. He is obviously quite certain that his chances of winning a large verdict in McDowell County are much greater than in Mercer County. This type of calculation is rightly discouraged by our law concerning venue. Unfortunately, the majority errs in wrongly applying this law. Judge Stephens was right. Accordingly, I dissent.\n","per_curiam":false,"type":"040dissent"}],"other_dates":"Submitted Sept. 1, 1999., Dissenting Opinion of Justice Maynard Dec. 15, 1999.","precedential_status":"Published","slug":"state-ex-rel-huffman-v-stephens"} {"case_name":"Smith v. Stephens","case_name_full":"Robert Allan SMITH v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division.","case_name_short":"Stephens","citation_count":0,"citations":["134 S. Ct. 921","187 L. Ed. 2d 797","82 U.S.L.W. 3405","571 U.S. 1137"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2014-01-13","date_filed_is_approximate":false,"id":8414234,"opinions":[{"ocr":true,"opinion_id":8384578,"opinion_text":"Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit denied.","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"smith-v-stephens"} {"attorneys":"Allen & Cobbs, for plaintiff in error., Slabaugh & Seiberling, for defendant in error.","case_name":"Postal Telegraph Cable Co. v. Akron Cereal Co.","case_name_full":"Postal Telegraph Cable Co. v. Akron Cereal Co.","citation_count":0,"citations":["3 Ohio C.C. (n.s.) 259"],"court_full_name":"Summit Circuit Court","court_jurisdiction":"Kentucky, KY","court_short_name":"Summit Circuit Court","court_type":"ST","date_filed":"1902-01-15","date_filed_is_approximate":true,"headnotes":"MEASURE OF LOSS THROUGH MISTAKE IN A TELEGRAPH MESSAGE.
Contract — Can Be No Breach of — Where Never Fully Entered Into Because of a Misunderstanding of Terms — Due to a Mistake in a Telegraph Message — Measure of Damages Against the Telegraph Company.
There can be no breach of a contract which, because of a misunderstanding between the parties as to its terms, was never made; and where the misunderstanding was due to a mistake in the transmission of a telegraph message, the measure of damages against ■the telegraph company is not the amount of loss sustained by the sender of the message through failure to fix prices as he had intended, hut the amount of loss actually sustained by him in connection with the negotiation.
","id":8537608,"judges":"Caldwell, Hale, Marvin","opinions":[{"ocr":true,"opinion_id":8510169,"opinion_text":"\n*265Judge Boynton, in delivering the opinion for the majority of the court, announced three propositions — perhaps four.\nFirst. That the verdict was sustained by sufficient evidence. That he held as a fact.\nThen, as propositions of law, he held that the special agreement that is shown in the case, whereby the company says it will not be liable unless the message is repeated, was not binding; that the company could not relieve itself from its own negligence by that agreement; that did not relieve the telegraph company from the consequences of its own negligence.\nSecond. As a matter of law, Judge Boynton announces that the failure to transmit the message as delivered is prima facie evidence of negligence.\nThird. As a matter of law, he holds that that message was not obscuré; that is all the propositions of law.\nJudge Okey dissented in this case, and he sáid that the verdict was not supported by sufficient evidence, and taking that view of it, he then discusses what the law would be in case the verdict was not supported by sufficient evidence.\nClaim was made that Cowpland, the agent of Griswold^ Company, had notice of the erroneous message, or of the fact that the message was erroneous before he bought a bushel of flax-seed. That was denied on the other side. Judge Okey says that it is clear that Cowpland did know before he bought any seed, and then he goes on and discusses what the law would be in that ease, and nothing he announces in that regard is at all at variance with the opinion of the court as delivered by Judge Boynton.\nAttention is called to Ayer v. Telegraph Co., 79 Me., 493 (21 Am. & Eng. Corp. Cases, 145), where there was a mistake made in a message about some lath. Without stopping to read the case, it shows there was a contract completed between the parties, and that being true it was held that the telegraph company was liable for the mistake it made in its message.\nThe ease referred to in 25 Enc. Law (1st Ed.), page 890, Western Union Tel. Co. v. Shotter, 71 Ga., 760, shows that there was a contract complete between the parties; that the contract *266was different from what it would have been, because of the negligence of the telegraph company.\nAllen & Cobbs, for plaintiff in error.\nSlabaugh & Seiberling, for defendant in error.\nIt is true that in neither of these cases was there a performance until after the mistake was known, but there was a complete contract between the parties, and that being binding, the party who lost by it held the telegraph company.\nAs being applicable as well to cases of this sort involving telegraph messages as to any other contracts, the rule of law seems to be such as is stated in 2 Townsend on Negligence (2d Ed., 1886), 858, par. 20, where it is said that the law, for wise reasons, imposes upon the parties subjected to injury for the breach of a contract the active duty of making reasonable exertions to render the injury as light as possible. Public interests and sound morality accord with the law in demanding that, if the injured party through negligence or willfulness, allows the damage to be unnecessarily enhanced, the increased loss justly falls upon him.\nApplying that principle here, although it was not a contract as between the parties, yet there was to be some loss, at least the expense of the message, and certainly a loss to the cereal company if it was mistaken or had been led into making a contract at $164 per thousand sacks less than what the property ought to have brought, but before any contract was made and before any goods were delivered it knew of that.\nNow, neither good morals, it seems to us, nor sound reason, would allow the company to go on and furnish those goods and charge it up to the telegraph company.\nWe think there was error in the judgment of the court below, and it is reversed, and the case remanded to the court of common pleas.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"postal-telegraph-cable-co-v-akron-cereal-co","summary":"Heard on error. The case of the Postal Telegraph Cable Company against the Akron Cereal Company comes into this court upon a petition in error, seeking to reverse the judgment of the court of common pleas. Suit was brought in that court by the defendant in error against the plaintiff in error upon this state of facts: One N. A. Bosch, of Maastrich, Holland, had some correspondence with the Akron Cereal Company, of this city, in relation to the purchase by the former from the latter of certain goods known as distillers’ grits. This correspondence was prior to November 29, 1898. By such correspondence it was known to the cereal company that if Bosch wanted to wire it asking price for such grits he would use the word “eotation” (spelled a little after the Holland way), meaning “quotation,” but the word “eotation” was used. But, further, it was known by both parties that the word “sack” meant a certain quantity of the grits. With this knowledge on the part of both, Bosch, on November 29, 1898, cabled the cereal company in these words: “Cotation 5,000 sacks.” This meant to both the sender and the cereal company, “At what price cart you furnish five thousand sacks of distillers’ grits?” To this, on the next day, November 30, the cereal company sent to the Postal Telegraph Cable Company for transmission by cable to Bosch the following: ‘ ‘ 63dx4 guilders cif Rotterdam December January.” This meant to the sender that it would furnish five thousand sacks of distillers’ grits, including cost of insurance and freight, at Rotterdam, Holland, at six and three-quarters guilders per sack, to be delivered in December, 1898, and January, 1899; and if it had been sent as it ought it would have meánt this to Bosch. The letters “dx” between the figures “3” and “4” meant, both to the sender and to the telegraph company, that a hyphen was to be placed between these two figures. The telegraph company undertook to transmit this as received ; by it to Bosch at Maastricht. Instead, however, of sending it as delivered, it sent a message to Bosch in these words: “634 guilders cif Rotterdam December January.” This was, and might well be, understood by Bosch as offering to send the five thousand sacks at the price of 6.34 guilders per sack instead of six and three-fourths, that is, 6.75 per sack, so that by the . mistake of the telegraph company the price given to Bosch was 41-100 guilders less than that given by the cereal company to the telegraph company. This, on each one thousand sacks, would make a difference of four hundred and ten guilders, or, under the evidence in this case that a guilder is worth forty cents of our money, it would make a difference of $164 per thousand sacks. Assuming that the telegraph company was the agent of the cereal- company in such wise that what it said to Bosch should be held to be the act of the cereal company, and, in our view of the case, that'assumption can be made and do no prejudice to either party; no discussion is had as to an argument made here upon the question of whose agent the telegraph company was. An unconditional acceptance of this proposition would have constituted a contract binding the cereal company to furnish to Bosch five thousand sacks of grits at $164 less per thousand sacks than the price it really fixed for the goods; that is to say, that would be true if the figures “634” meant (and they properly meant) 6.34. Some discussion was had here as to whether Bosch was justified in understanding the figures “634” to mean 6.34 guilders. As has already been said, it was agreed between the parties, or, if it has not been stated, it was agreed between the parties that the price should be given in guilders. Now, since six hundred and thirty-four guilders would be certainly so much that Bosch must have known it did not mean that, there can be little doubt that it was properly understood by Bosch as meaning 6.34 guilders. That being true, what has already been said, that if there had been an unconditional acceptance of this offer, and assuming that the telegraph company is the agent of the sender, the cereal company would have been bound to furnish five thousand sacks at 6.34 guilders per sack. On December 3, 1898, Bosch cabled the cereal company in these words: “Accept 1,000 each month.” This meant to each of the parties that Bosch would take one thousand sacks of grits in December, 1898, and one thousand in January, 1899, at an agreed price. To Bosch it meant at 6.34; to the cereal company it meant 63.4, or seventy-five hundredths. If this modified proposition to take two thousand sacks instead of five thousand sacks in December and January had been accepted without explanation or condition, assuming, as before, the agency of the telegraph company, the cereal company would have been bound to deliver the goods at 6.34. The cereal company did not have the grits on hand, but decided to furnish the two thousand sacks at 6 3-4 guilders, which it understood to be the agreed price. Thereupon it ordered them from the Cumberland Mills, at Nashville, Tennessee; and at once, on the day of this last cable message, it wrote Bosch a letter, put it into the mail at Akron, and in that letter the cereal company said: “We beg to confirm our cable to you quoting 6 3-4 guilders per hundred kilos in one hundred kilo bags for our choice white brewer’s grits cif Rotterdam; also to confirm your acceptance received this morning of one thousand bags each month, meaning December and January shipments. We have, therefore, entered your order for one thousand sacks, ’1 etc. That letter was received by Bosch on December 15, 1898. Whatever notice then Bosch ever received that the cereal company had accepted his offer for one thousand sacks each for the months of December and January, he got by this letter notified him that the acceptance was at 6 3-4 guilders instead of 6.34. It is said that when the cereal company mailed that letter it thereby accepted the modified order for two thousand sacks instead of the proposition to furnish five thousand sacks, and that there was no change in the price, and that, therefore, it should be held that the cereal company became bound to furnish the two thousand sacks at 6.34. Suppose, instead of mailing that letter, the agent of the cereal company, by some means, could have talked with Bosch on that day, and said to him: “Mr. Bosch, we had notified you we would furnish you five thousand sacks at a price; we have now got your order for two thousand sacks at a price, and we will let you have them, that price being 6 3-4, ’ ’ all in one conversation, all at the same time, is it possible there would have been any binding contract on the cereal company to furnish at 6.34, when at the very time they say to Bosch, we propose to furnish you the two thousand sacks that you want at the price that we have heretofore offered you, to-wit, 6 3-4 ? It seems clear that Bosch would not have been able to enforce that contract, that he could not have recovered damages if the cereal company refused to furnish those goods at less than 6 3-4. Bosch wrote a letter on December 3 to the cereal company. That letter is found in the bill of exceptions. It is somewhat difficult to read, and it is not necessary to read it. It is a letter in which he, on that same third of December, stated to the cereal company that he begged to confirm his order by cable for two thousand sacks at 6.34. That was received by the cereal company on December 17. Now, if there was ever a contract between the cereal company and Bosch, it seems very difficult to fix any time when that contract was completed. First, Bosch says, “What will you furnish me five thousand sacks for?” The cereal company said — what was received by Bosch said (giving the most favorable interpretation to the cereal company) — “6.34.” Bosch said, “I will not take five thousand sacks at that price, but I will take two thousand sacks at the price you have fixed,” Bosch having got it that the price fixed was 6.34. The cereal company said, We have your order for two thousand sacks, and we will let you have them at our price, 6 3-4. Bosch said, “I won’t take them at that price, but I insist on the 6.34. ’ ’ When was the contract completed between Bosch and the cereal company? We think it clear there never was a contract completed between them. There never was a time when Bosch could have held the cereal company under a contract to furnish two thousand sacks at 6.34. Up to this time, although the cereal company had determined that it would furnish, supposing it was to get 6 3-4 for the goods, and had ordered them, no goods had been shipped at all. Several days after both parties knew of this mistake. The cereal company sent on the goods, and it thereafter settled with Bosch at 6.34, Bosch insisting that he had a right to them at that price; although, if we are right, no contract had been made by which it was bound to do it, it did it; furnished the goods at 6.34, and now sues the telegraph company for the difference, and recovered just the amount, $164 per thousand sacks, which, under this evidence, would be the difference between the price at 6.34 and 6 3-4. This case was tried to the court without the intervention of a jury, but the measure of damages allowed by the court is determined by the difference between the price of these goods at 6.34 and the price at 6 3-4. The law is well settled, that for its negligence to send messages as delivered to it, a telegraph company is liable in damages, if damages are thereby occasioned. Of course, this does not mean it is an insurer, but it means it puts upon the company the burden of showing a suitable and good reason why it did not send what was furnished it; as is said in Western Union Tel. Co. v. Griswold, 37 Ohio St., 301, it may show possible that by act of God or the public enemy it was unable to send, atmospheric conditions may have rendered it impossible but, prima facie the company is liable for the mistake it makes; but it is liable only for the damages which result naturally, proximately and necessarily from such mistake as is made. In this case there is no question about the negligence of the telegraph company. It was clearly negligent, for it is shown here that it understood that the message as it reached it meant 6 3-4, and it did not send it that way. The cereal company here was damaged at least to the extent of what it paid for the message which was sent. It may have been damaged beyond that for something else it did, but, if so, there is no evidence as to anything about it. We don’t know, it might not have been, and possibly there is something else by which it was damaged, possibly the expense of negotiating with the Cumberland Mills for the goods. However, there is no evidence about that here. The court was in error in its measure of damages. The measure of damages was not to be determined by the difference between the price that Bosch understood the goods to be and the price the cereal company understood the goods to be, because there never was any contract between the cereal company and Bosch that it should deliver those goods at that price of 6.34. • Our attention is called to the case of the Western Union Tel. Co. v. Griswold, supra. Counsel in this case are very familiar with that case. It is clearly to be distinguished from this. In that case a message was sent by the agent of Griswold & Company from Canada asking if he should purchase flaxseed, a certain number of bushels at $1.50 per bushel. The telegraph company, instead of putting that $1.50 made it one five. Gris-wold & Co. immediately notified their agent to buy the goods. Here is the answer. “Yes, if seed is prime; and we can hold at London until spring.” Attention is called to that in the argument of this case, suggesting that here was- not an unconditional acceptance of an offer. This was an instruction by Griswold & Co. to their own agent, in answer to a dispatch which their agent had sent them, and on which, of course, he was authorized to act. We think it is very clearly to be distinguished from this case. In that case the telegraph company was held liable."} {"attorneys":"Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee., Yolanda Evette Jarmon, Esq., Law Office of Yolanda Jarmon, Houston, TX, for Defendant-Appellant., James Ray Scales, Beaumont, TX, pro se.","case_name":"United States v. Scales","case_name_full":"United States v. James Ray SCALES","case_name_short":"Scales","citation_count":0,"citations":["613 F. App'x 358"],"court_full_name":"Court of Appeals for the Fifth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Fifth Circuit","court_type":"F","date_filed":"2015-08-18","date_filed_is_approximate":false,"id":8694805,"judges":"Costa, Graves, Jolly","opinions":[{"ocr":true,"opinion_id":8677899,"opinion_text":"\nPER CURIAM: *\nThe attorney appointed to represent James Ray Scales has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir.2011). Scales has not filed a response. We have reviewed counsel’s brief *359and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.\n\n 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.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"united-states-v-scales"} {"case_name":"Olden v. Pope","case_name_full":"Olden v. Pope","case_name_short":"Olden","citation_count":0,"citations":["404 U.S. 866"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1971-10-12","date_filed_is_approximate":false,"id":8985390,"judges":"Douglas, Granted, Should","opinions":[{"ocr":true,"opinion_id":8977409,"opinion_text":"\nC. A. 9th Cir. Certiorari denied.\nMr. Justice Douglas is of the opinion that certiorari should be granted.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"olden-v-pope"} {"case_name":"Ruffin v. Georgia","case_name_full":"Ruffin v. Georgia","case_name_short":"Ruffin","citation_count":0,"citations":["444 U.S. 995"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1979-12-10","date_filed_is_approximate":false,"id":9024704,"judges":"Brennan, Marshall","opinions":[{"ocr":true,"opinion_id":9017956,"opinion_text":"\nSup. Ct. Ga. Certio-rari denied.\n","per_curiam":false,"type":"020lead"},{"author_str":"Brennanmarshall","ocr":true,"opinion_id":9017957,"opinion_text":"\nMr. Justice Brennan and Mr. Justice Marshall,\ndissenting.\nAdhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.\n","per_curiam":false,"type":"040dissent"}],"precedential_status":"Published","slug":"ruffin-v-georgia"} {"attorneys":"Lawrence Alioto, San Francisco, Cal., for defendants-appellants., Thomas L. Holzman, Dept, of Labor, Washington, D.C., for plaintiff-appellee.","case_name":"Raymond J. Donovan, Secretary of U.S. Department of Labor v. Joseph P. Mazzola, Robert E. Buckley, Robert J. Costello, Etc.","case_name_full":"Raymond J. DONOVAN, Secretary of U.S. Department of Labor, Plaintiff-Appellee, v. Joseph P. MAZZOLA, Robert E. Buckley, Robert J. Costello, Etc., Et Al., Defendants-Appellants","citation_count":23,"citations":["761 F.2d 1411"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","date_filed":"1985-05-28","date_filed_is_approximate":false,"headmatter":"\n Before FERGUSON and NELSON, Circuit Judges, and JAMESON,\n \n *\n \n District Judge.\n
\n The Honorable William J. Jameson, United States District Judge for the District of Montana, sitting by designation.\n
\nDamages — rule of — flowing from nonpayment of money — withdrawal from corporation of defense of usury.
Foreclosure — of mortgages — judgment and sale — mortgages given by corporation to secure a building loan — provision in case mortgage is not paid at maturity.
The damages flowing from nonpayment of money must be measured by the legal rate of interest, whether the party in default be an individual or a corporation.
While the law withdraws from a corporation the defense of usury with its attendant consequences of forfeiture of the principal and interest, it does not establish thereby a different rule of damages upon the breach of its contract.
Where a bond and mortgage given by a corporation to secure a building loan provided in terms for interest at six per cent per annum, and a collateral agreement executed contemporaneously, but not purporting to modify the terms of the bond and mortgage which made no mention of an additional payment of seventeen per cent interest, provides that in case the mortgage is not paid at maturity the party of the first part, the mortgagor, will in addition to interest at six per cent per annum pay additional interest at the rate of seventeen per cent per annum upon any sums remaining unpaid on the bond and mortgage from maturity until paid, the mortgagee, in an action to foreclose the mortgage, will be decreed a judgment of' foreclosure and sale for the amount of the principal debt, with interest thereon at the rate of six per cent.
","id":5572697,"judges":"Greenbaum","opinions":[{"author_str":"Greenbaum","ocr":true,"opinion_id":5414575,"opinion_text":"\nGreenbaum, J.\nThis action is brought to foreclose a building loan mortgage given to the plaintiff corporation to secure the repayment of $70,000 and interest thereon, evidenced by the bond of the mortgagor, the defendant Frazee Realty Company, a corporation. The bond and mortgage by their terms provide for interest at the rate of six per cent per annum. The differences between the parties arise out of a collateral agreement executed contemporaneously with the bond *601and mortgage in suit. This collateral agreement, so far as material to the discussion, provides as follows : “ '* * * said party of the first part (the mortgagor) covenants and agrees that in the event that said mortgage shall not be paid on said 8th day of October, 1912, the party of the first part will, in addition to interest at the rate of six per cent per annum provided for in said mortgage, pay additional interest at the rate of seventeen per cent per annum upon any sums remaining unpaid upon said bond and mortgage from October 8th, 1912, until the day when said mortgage and its accompanying bond' shall be fully and actually paid. * * * Nothing herein contained shall be construed as obligating the party of the second part (the mortgagee), its successors or assigns, to extend the payment of said mortgage beyond said October 8th, 1912, or as limiting the right to foreclosure or take any other steps whatsoever in connection with said bond and mortgage upon a default in any of the terms, covenants and conditions of said bond and mortgage for $70,000.” The question at issue is whether the plaintiff mortgagee may collect as interest, in addition to the interest at the rate of six per cent, as provided for in the bond and mortgage, interest at the rate of seventeen per cent per annum computed from October 8, 1912, the date upon which the principal sum and interest secured by the mortgage is payable, and, if collectible, whether this additional seventeen per cent interest is secured by the mortgage and therefore a lien upon the premises therein described. It is conceded by all parties that the mortgagor, being a corporation, may not interpose the defense of usury. The defendants contend that the additional interest contemplated by the collateral agreement is a penalty and therefore not recoverable. The plaintiff’s counsel most strenuously argues that *602the provision for additional interest at' the rate of seventeen per cent from the date of maturity of the principal obligation is to be treated as increasing the rate of interest on the principal sum to twenty-three per cent, made up of the six per cent fixed in the bond and mortgage and the additional interest of seventeen per cent, and that since the defense of usury may not be urged by the mortgagor, the increased rate of interest is a “lawful” as distinguished from a “ legal ” rate of interest. The solution of the problem presented depends upon the correct interpretation of the so-called collateral agreement, which under the canons of construction should be read in conjunction with the bond and mortgage and the circumstances attendant upon the execution of the several instruments. The bond and mortgage were executed on July 11, 1912, under a building loan agreement, and the loans were to be repaid on October 8, 1912, with interest at the rate of six per cent. It was contemplated that this building loan was to be replaced by a permanent loan upon the completion of the building to be erected by the mortgagor. It is thus evident that time of the repayment of the loans was strictly of the essence of the contract and that the provision for seventeen per cent additional interest was embodied in the collateral agreement to insure or stimulate the prompt payment of the principal sum and interest at the rate of six per cent. One is impressed at the outset with the fact that the bond and mortgage make no mention of an additional payment of seventeen per cent interest and that the collateral agreement specifically provides “that in'the event that said mortgagee shall not be paid on said 8th day of October, 1912, the party of the first part (mortgagor) will, in addition to interest at the rate of 6 per cent, per annum, pay additional (sic) interest at the *603rate of 17 .per cent, per annum upon any sums remaining unpaid upon said bond and mortgage from October 8, 1912, until the date when said mortgage and its accompanying bond shall be fully and actually paid.” The “ additional interest at the rate of seventeen per cent ” is to be paid upon ‘ ‘ any sums remaining unpaid upon said bond and mortgage from October 8th, 1912,” thus evidencing an intention to treat the principal and interest at the rate of six per cent independently of the “additional interest” at the rate of seventeen per cent. It is not stated that the interest on the principal sum shall, from October 8,1912, be at the rate of twenty-three per cent instead of six per cent as provided for in the bond and mortgage. It may not be assumed that this additional interest of seventeen per cent is to be paid in consideration of forbearance or an indefinite extension of the time of payment of the principal, after October 8, 1912, since it is expressly provided in the collateral agreement that nothing therein contained “ should be construed as extending the time of payment of the mortgage.” The collateral agreement does not purport to modify the terms of the original bond and mortgage. It was evidently made with knowledge of the rule recognized in this state that where a contract fixes the rate of interest upon money up to the time of default, the interest after maturity is awarded as damages and is computed according to the rate prescribed by law (O’Brien v. Young, 95 N. Y. 428), and it doubtless was intended to overcome the effect of the rule of damages, measured by the legal or statutory rate of interest, by providing for the additional payment of interest at the rate of seventeen per cent upon the theory that such a rate was lawfully enforcible in the case of a corporation mortgagor which could not plead usury. It seems reasonable to infer that it *604was the intention of the parties that the additional interest of seventeen per cent was the amount fixed hy way of damages to be paid by the mortgagee ‘ ‘ in the event ’ ’ of the ‘ ‘ non-payment of the principal sum and interest at the rate of 6 per cent, per annum on October 8th, 1912.” The provision for this additional interest in the collateral agreement being by way of damages, it is only necessary to determine whether it is to be considered as one for liquidated damages or as a penalty. If the latter, it is unenforeible. In Bispham’s Equity (§§ 178, 179) the rule for determining whether the damages agreed upon are to be deemed liquidated is stated as follows: ‘ ‘ When the injury is susceptible of definite admeasurements, as in all cases where the breach consists in the nonpayment of money, the parties will not be allowed to make a stipulation for a greater amount, whether in the form of a penalty or of liquidated damages.” And in Curtis v. Van Bergh, 161 N. Y. 47, 52, the rule is thus stated: “ The amount is to be deemed liquidated damages when the actual damages contemplated at the time the agreement was made ‘ are in their nature uncertain and unascertainable with exactness, and may be dependent upon extrinsic considerations and circumstances, and the amount is not, on the face of the contract, out of all proportion to the probable loss.’” Tested by these rules, it inevitably follows that the damages in the case at bar that would result from the non-payment of money on the due date being susceptible of definite measurement by the payment of interest at the legal rate, the amount of damages at the additional rate of seventeen per cent must be regarded as a penalty and not as liquidated damages, and hence unenforeible. The law applicable to this case seems to be appropriately summed up in the language of Lord Chancellor Hatherly in Thompson *605v. Hudson, L. R. (4 H. L.) 1, as follows: “I take the law to be perfectly clear upon these matters, which we have to consider with reference to this and the subsequent agreements, namely, that where there is a debt actually due, and in respect of that debt security is given, be it by way of mortgage or be it by way of stipulation, that in case of its not being paid at the time appointed, a larger sum shall become payable and be paid; in either of these cases equity regards the security that has been given as a mere pledge for the debt, and it will not allow either a forfeiture of the property pledged or any augmentation of the debt as a penal provision on the ground that equity regards the contemplated forfeiture, which might take place at law with reference to the estate, as in the nature of a penal provision, against which equity will relieve when the object in view, namely, the securing of a debt, is attained, and regarding also the stipulation for the payment of a larger sum of money, if the sum be not paid at the time it is due, as a penalty and a forfeiture against which equity will reheve.” The learned counsel for the plaintiff cites authorities in this and other states where extension agreements providing for rates of interest greater than the rate fixed in the original obligation were upheld. But these cases are in entire harmony with the views herein expressed. The agreements of extension of payment afforded an adequate consideration for an increase of the rate of interest, which in every one of the cases cited was within the legal rate of the state wherein the controversy arose. Not one of these cases permitted damages for non-payment on the due date at a greater rate of interest than the legal rate. It also seems to me that where the statute fixes the legal rate of interest, the damages flowing from non-payment of money must be measured by the *606legal rate, whether the party in default be an individual or a corporation. The law simply withdraws from a corporation the defense of usury' with its attendant consequences of forfeiture of the principal and interest, but it does not thereby establish a different rule of damages upon the breach of a contract by a corporation than by an individual. A judgment of foreclosure for the amount of the principal debt, with interest thereon at the rate of six per cent, is. decreed.\nJudgment accordingly.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"union-estates-co-v-adlon-construction-co","summary":"Action to foreclose a building loan mortgage."} {"attorneys":"Allen G. Schwartz, Corporation Counsel (John C. Brennan, James G. Greilsheimer and Joseph F. Bruno of counsel), for appellants in the above-entitled action., Kenneth E. Gordon, Murray A. Gordon, Henry T. Berger and Edward M. Edenbaum for respondents., Charles G. Moerdler, Burton N. Lipshie and Curtis C. Mechling for intervenors-respondents., Michael J. McNulty for appellants in the above-entitled proceeding., Robert Abrams, Attorney-General (Daniel M. Cohen and Shirley Adelson Siegel of counsel), in his statutory capacity under section 71 of the Executive Law and CPLR 1012 (subd [b]). Sections 3 and 30 of the Public Officers Law involve matters of State concern and are general, not special laws.","case_name":"Uniformed Firefighters Ass'n v. City of New York","case_name_full":"Uniformed Firefighters Association, and Edward Ostrowski, as President of the Uniformed Sanitationmen's Association, Intervenors-Respondents v. City of New York, Appellants In the Matter of Samuel De Milia, as President of the Patrolmen's Benevolent Association, Inc., and All Other Police Officers of the City of New York Similarly Situated v. City of New York","citation_count":1,"citations":["50 N.Y.2d 85"],"court_full_name":"New York Court of Appeals","court_jurisdiction":"New York, NY","court_short_name":"New York Court of Appeals","court_type":"S","date_filed":"1980-04-29","date_filed_is_approximate":false,"id":5684269,"opinions":[{"ocr":true,"opinion_id":5533052,"opinion_text":"\nOPINION OF THE COURT\n\nPer Curiam.\n\nThe order of the Appellate Division should be affirmed, with costs.\n*90New York City may not, through Local Law No. 20 of the Local Laws of 1978 (Administrative Code of City of New York, §§ B49-4.0, B49-4.1, B49-4.2), make a residency requirement for municipal officers and employees applicable to members of its police, fire, correction and sanitation departments. As is conceded, the law as applicable to these persons is inconsistent with exemptions from municipal residency requirements contained in section 3 (subds 2, 2-a, 9) and section 30 (subds 4, 4-a, 5) of the Public Officers Law. Contrary to the city’s contention, these sections may not be superseded by local law under municipal home rule as they do not relate \"to the property, affairs or government” of the city by \"special law” (NY Const, art IX, § 2).\nHome rule simply is not implicated when the Legislature acts in areas \"other than the property, affairs or government of a local government” (NY Const, art IX, § 3, subd [a], par [3]). Under the limited meaning of this phrase, legislation of State import does not impinge upon municipal home rule simply because it touches matters that concern the affairs or property of the city (Adler v Deegan, 251 NY 467 [conditions of multiple dwellings]; see Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358 [maintenance of cultural institutions]). While the structure and control of the municipal service departments in issue here may be considered of local concern within the meaning of municipal home rule (see Matter of Osborn v Cohen, 272 NY 55 [duties and number of firemen, hours of work]), the residence of their members, unrelated to job performance or departmental organization, is a matter of State-wide concern not subject to municipal home rule. The city offers nothing to show the insubstantiality of the State’s interest in affording residential mobility to members of the civil service.\nNor are the provisions of the statute infirm because, although cast in general terms, they may affect less than all cities. A statute dealing with matters of State concern is no less general because it classifies the cities affected on the basis of population or some other condition and extends its benefits only to one or a few cities (see Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., supra; Matter of McAneny v Board of Estimate & Apportionment of City of N. Y, 232 NY 377). What is required is that the classification be defined by conditions common to the class and related to the subject of the statute (cf. Farrington v Pinckney, 1 NY2d 74, 80-81; *91Stapleton v Pinckney, 293 NY 330, 335). And, it has long been recognized that New York City and other large municipal centers might reasonably receive different treatment (see Matter of 241 East 22nd St. Corp. v City Rent Agency, 33 NY2d 134; Matter of McAneny v Board of Estimate & Apportionment of City of N. Y., 232 NY 377, supra). Thus, to the extent that Local Law No. 20 is inconsistent with the Public Officers Law, it cannot stand.\nChief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.\nOrder affirmed.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued March 20, 1980;","precedential_status":"Published","slug":"uniformed-firefighters-assn-v-city-of-new-york"} {"attorneys":"Anderson, Gann & Gann and Thomas F. Walsh Jr., for plaintiff in error., Hitch & Denmark and William M. Farr, contra.","case_name":"Seaboard Air-Line Railway v. Gnann","case_name_full":"Seaboard Air-Line Railway v. Gnann & DeLoach","case_name_short":"Gnann","citation_count":0,"citations":["138 Ga. 536"],"court_full_name":"Supreme Court of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Supreme Court of Georgia","court_type":"S","date_filed":"1912-08-16","date_filed_is_approximate":false,"id":5728269,"judges":"Evans","opinions":[{"author_str":"Evans","ocr":true,"opinion_id":5578582,"opinion_text":"\nEvans, P. J.\nThe testimony to which objection was made, when connected with other testimony as required by the court in his ruling on its admissibility, tended to support the case as laid in the petition, and was not irrelevant. The requests to charge, in so far as they contained accurate statements of the law, were covered by the general charge, which in the main applied the rules of law respecting the liability of a railroad company for damage to property, proximately caused by a lire negligently set out by the running of \"its trains, as is clearly and fully defined in Southern Railway Company v. Thompson, 129 Ga. 367 (58 S. E. 1044). The judgment is reversed on the exception to the charge, that “The measure of diligence which the law places upon the railroad company is ordinary care and diligence in respect to carrying and keeping in repair spark-arresters to prevent fire, and the same ordinary care and diligence in keeping the same in good order.” The failure to have or maintain in good order spark-arresters was not charged in the petition as an act of negligence, and the court erred in charging upon the subject. The charge was harmful, inasmuch as the jury might have found that the sparks would not have been emitted if the engine had been equipped with a spark-arrester, and that ordinary care would require such equipment.\n\nJudgment reversed.\n\n\nAll the Justices concur.\n\nAction for damages. Before Judge Sheppard. Effingham superior court. June 15, 1911.\nAnderson, Gann & Gann and Thomas F. Walsh Jr., for plaintiff in error.\nHitch & Denmark and William M. Farr, contra.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"seaboard-air-line-railway-v-gnann","summary":"Action for damages. Before Judge Sheppard. Effingham superior court. June 15, 1911."} {"case_name":"Singer v. Terminal System, Inc.","case_name_full":"Max Singer v. Terminal System, Inc., and Julian Neill","case_name_short":"Singer","citation_count":0,"citations":["5 A.D.2d 788"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1958-01-20","date_filed_is_approximate":false,"id":5844347,"judges":"Hallinan, Kleinfeld, Murphy, Nolan, Wenzel","opinions":[{"ocr":true,"opinion_id":5700332,"opinion_text":"\nAppeal (1) from an order dated August 20, 1957 (a) granting respondent’s motion to examine appellant before trial in accordance with a notice to examine and to strike out appellant’s answer if he fail to appear for examination, and (b) denying appellant’s cross motion *789to vacate the notice and (2) from so much of an order dated November 6, 1957 as (a) adheres, on reargument, to the original decision directing appellant to appear for examination before trial in New York City, (b) denies, on renewal, appellant’s cross motion to vacate the notice, and (e) denies appellant’s motion to modify the order dated August 20, 1957 insofar as it directs his attendance in New York City. Order dated November 6, 1957 insofar as appealed from affirmed, with $10 costs and disbursements. No opinion. Appeal from order dated August 20, 1957 dismissed, without costs, as academic.\nNolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"singer-v-terminal-system-inc"} {"case_name":"People v. Pena-Melo","case_name_full":"The People of the State of New York v. Luis Pena-Melo","case_name_short":"Pena-Melo","citation_count":0,"citations":["159 A.D.2d 446"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1990-03-29","date_filed_is_approximate":false,"id":6059197,"opinions":[{"ocr":true,"opinion_id":5922791,"opinion_text":"\nJudgment of the Supreme Court, New York County (Brenda S. Soloff, J.), rendered on December 5, 1988, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the second degree and sentencing him to an indeterminate term of from five years to life imprisonment, is unanimously affirmed.\nWe are unpersuaded that the sentence imposed was unduly harsh or severe. Taking into account \"among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction”, we perceive no abuse of discretion warranting a reduction in sentence (People v Farrar, 52 NY2d 302, 305). Further, defendant was sentenced in accordance with his plea bargain and within statutory guidelines. \"Having received the benefit of his bargain, defendant should be bound by its terms” (People v *447Felman, 141 AD2d 889, 890, lv denied 72 NY2d 918). Concur— Kupferman, J. P., Carro, Milonas, Wallach and Smith, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-pena-melo"} {"case_name":"State v. Goff","case_name_full":"State v. Goff","case_name_short":"Goff","citation_count":0,"citations":["93 Ohio St. 3d 1323"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"2001-11-28","date_filed_is_approximate":false,"id":6889614,"opinions":[{"ocr":true,"opinion_id":6783592,"opinion_text":"\nClinton App. No. CA95-09-026. On July 24, 1998, this court stayed the execution of sentence in this *1324cause pending appeal to the United States Supreme Court and exhaustion of state post-conviction remedies. Appellee has moved that this court set a date for execution of sentence. On June 28, 1998, the court received notice of the United States Supreme Court’s denial of certiorari in this matter. It appealing to the court that all matters have been disposed of in case Nos. 01-724 and 01-1337, appellant’s post-conviction appeals,\nIT IS ORDERED by the court, sua sponte, that the stay of execution entered in this cause on July 24,1998, be and is hereby revoked.\nIT IS HEREBY ORDERED by this court that said sentence be carried into execution by the Warden of the Southern Ohio Correctional Facility or, in his absence, by the Deputy Warden on Tuesday, the 26th day of February, 2002, in accordance with the statutes so provided.\nIT IS FURTHER ORDERED that a certified copy of this entry and a warrant under the seal of this court be duly certified to the Warden of the Southern Ohio Correctional Facility and that said Warden shall make due return thereof to the Clerk of the Court of Common Pleas of Clinton County.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-goff"} {"attorneys":"J. H. Farnham, for the plaintiff., H. P. Thornton, for the defendant.","case_name":"Farnham v. Hay","case_name_full":"Farnham v. Hay","case_name_short":"Farnham","citation_count":0,"citations":["3 Blackf. 167"],"court_full_name":"Indiana Supreme Court","court_jurisdiction":"Indiana, IN","court_short_name":"Indiana Supreme Court","court_type":"S","date_filed":"1833-05-27","date_filed_is_approximate":false,"headnotes":"Note under seal for the payment of 220 dollars, one half payable in one year, and the other half in two years, with interest. Held, that debt would not lie on the note, until the last payment was due.
In debt, a count on a specialty and one on simple contract may be joined.
If a declaration contain one good count, a demurrer to the whole declaration must be overruled.
","id":7122454,"judges":"Kinnry","opinions":[{"author_str":"Kinnry","ocr":true,"opinion_id":7029792,"opinion_text":"\nM’Kinnry, J.\nThis is an action of debt. The declaration contains three counts. The .first demands 110 dollars, and is founded upon a writing obligatory, by which the defendant promised to pay the plaintiff the sum of 220 dollars, one half to be paid in one year, and the other half in two years from the date, with lawful interest. The sum thus demanded is the amount agreed to be paid in one year, it only having become due. The second is for the same amount, the half of 220 dollars borrowed of the plaintiff, and agreed to be paid in one and two years. The sum claimed in this count is also the amount agreed to be paid in one year, it being then due. The *168third count is for 110 dollars advanced, laid out, and expended, for the defendant, at his special request, and agreed to be repaid to the plaintiff with lawful interest, in one year. The defendant, on oyer, demurred to the declaration. The demurrer was sustained and judgment rendered in his favour. The correctness of this judgment is questioned by the plaintiff in error. If either of the counts be good, the demurrer should have been overruled. ■ ' . .\nThe two first counts are for the recovery of the half of a sum of money agreed to be paid by instalments, in one and two years, the whole debt not having become due. The law appears to be settled, that debt cannot be sustained for money payable by instalments, till the whole debt is due, unless the payment be secured by a penalty. 1 Chitt. Pl. 106.—Rudder v. Price, 1 H. Bl. 547.—2 Saund. 303, n. 6. Only one instalment of the sum,agreed to be paid, was due at the time this suit-was instituted, consequently, the action of debt was not appropriate.' We cannot perceive that the operation of this rule can prove injurious; for if the contract be under seal, upon non-payment of the instalments as they respectively become due, the party has his remedy by action of covenant; or, if by parol, by that of assumpsit. Tucker v. Randall, 2 Mass. 283.—Bac. Abr. debt, b.—Com. Dig. action, f.—Co. Litt. 292.—1 Chitt. Pl. 93, 113. From this view, the two first counts must be regarded as defective.\nThe third count, however, is not liable to the same objection; but as it is urged that it-is insufficient, w'e will examine it and notice the defects that are suggested. This count is on a simple contract, and may be joined in the same action with debt on bond,, or other specialty, or' with debt on judgment. 1 Chitt. Pl. 196.—Bac. Abr. action, c.—Com. Dig. action, g.—13 Johns. 462. Chitty, (in 1st vol. on Pl. 397,) speaking of different counts for the same cause of action, says, “though both counts are in the same declaration, yet they are as distinct as if they were in separate declarations, and consequently they must independently contain all necessary allegations, or the latter count must expressly refer to the former.” The rule is certainly more positive, requiring entire independence and sufficiency in counts, when in the same declaration are joined different causes of action, and whether a plaintiff whose declaration contains more than one count, claims a recovery upon one right of action only, or upon *169several, cannot appear except in evidence. Gould’s PI. 171. When counts are thus joined, they must be considered as constituting distinct causes of action, and a defect in one does not attach to the other. In an action thus brought, the defective count should be demurred to; but if, .instead of a defective count, there is a mis-joinder, the declaration would be bad on general demurrer. The third count may therefore contain a good cause of action, and, if the objection taken be not available, the Circuit Court erred in rendering judgment in favour of the defendants.\nThis count is in the common form of a count for money laid out, &c., and conforms to the precedents in all the essentials of such a count, but it is thought defective, from the fact of its claiming the same sum demanded in the others, from a conformity to the time to which the respective sums are stated to have become due, and from a presumption arising from the record which we cannot indulge, that the debt is claimed on the same contract. We do not think this objection good. If the debt were claimed on the same contract, the question of the rejection of evidence establishing this, would be proper on the trial, for the defendant is correct in saying that debt will not lie on a simple contract, when that contract is under seal; but it is equally correct, when debt is brought on a simple contract, that the fact whether that contract is merged by a specialty, is beyond the limits of legal presumption, and can only be known when evidence is introduced in support of the action. The demurrer only reaches apparent defects.\nThe count is also thought insufficient, because it does not state in the commencement, that the defendant owes and detains the debt, nor does it charge in the conclusion the nonpayment of interest, or allege a sufficient breach. This objection is as untenable as the former. As to the first, it is only necessary to say, that the first and second counts being insufficient, the commencement of the declaration applies exclusively to the third. The breach is in the usual language, and, as respects interest, it is a question which, as the one previously examined, is proper for the jury. It is a rule at common law, that interest should be demanded in the beginning, through the declaration, and its non-payment form a part of the breach,, for it is not allowed if not demanded in the declaration. Hubbard *170v. Blow & Barksdale, 1 Wash. R. 70.—Brooke v. Gordon, 2 Call. R. 212.—Wallace et al. v. Baker, 2 Munf. R. 334.\nJ. H. Farnham, for the plaintiff.\nH. P. Thornton, for the defendant.\nWe are therefore of opinion that the third count is good, and that the demurrer being to the whole declaration, should have been overruled.\n\nPer Curiam.\n\nThe judgment is reversed with costs. Cause remanded, &c.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"farnham-v-hay","summary":"ERROR to the Washington Circuit Court."} {"case_name":"State v. New Jersey State Nurses' Ass'n","case_name_full":"STATE OF NEW JERSEY v. NEW JERSEY STATE NURSES' ASSOCIATION","citation_count":0,"citations":["63 N.J. 557"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1973-09-19","date_filed_is_approximate":false,"id":7376868,"opinions":[{"ocr":true,"opinion_id":7295701,"opinion_text":"\nPetition for certification granted.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-new-jersey-state-nurses-assn"} {"attorneys":"William P; Burr, for appellant. John O. Coleman, for respondent.","case_name":"Barnum v. Barnum","case_name_full":"BARNUM v. BARNUM","case_name_short":"Barnum","citation_count":0,"citations":["66 N.Y.S. 1125"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1900-11-09","date_filed_is_approximate":false,"disposition":"Modified.","id":7420524,"opinions":[{"ocr":true,"opinion_id":7340129,"opinion_text":"\nPER CURIAM.\nThe judgment should be modified by reducing the amount of alimony to $20 a month, and, as so modified, it should be affirmed, without costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"barnum-v-barnum","summary":"Action for divorce by Sarah A. Barnum against Rhilo F. Barnum. From a judgment awarding plaintiff a limited divorce, and directing defendant to pay plaintiff $50 per month, defendant appeals."} {"attorneys":"Ervin, Pennington & Varn, Tallahassee, for appellant., Ben F. Barnes, Marianna and David C. Gaskin, Wewahitchka, for appellee.","case_name":"State ex rel. Hammock v. Kennedy","case_name_full":"In the name of the STATE of Florida upon the relation of Jack E. HAMMOCK v. Leo KENNEDY","citation_count":0,"citations":["170 So. 2d 332"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1964-12-31","date_filed_is_approximate":false,"id":7490625,"judges":"Carroll, Donald, Rawls, Sturgis","opinions":[{"ocr":true,"opinion_id":7412976,"opinion_text":"\nPER CURIAM.\nIt appears upon consideration of this appeal from an order dismissing a petition for writ of quo warranto that the relator has failed to clearly demonstrate an entitlement to the writ. So, denial of the petition is affirmed.\nSTURGIS, C. J., and CARROLL, DONALD K. and RAWLS, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"other_dates":"As Corrected Jan. 4, 1965., Rehearing Denied Jan. 21, 1965.","precedential_status":"Published","slug":"state-ex-rel-hammock-v-kennedy"} {"case_name":"Coleman v. State","case_name_full":"Hayward COLEMAN, Jr. v. STATE of Florida","case_name_short":"Coleman","citation_count":0,"citations":["273 So. 2d 452"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1973-02-20","date_filed_is_approximate":false,"id":7529556,"opinions":[{"ocr":true,"opinion_id":7453939,"opinion_text":"\nAppeal from Court of Record, Broward County; Humes T. Lasher, Judge.\nAppeal dismissed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"coleman-v-state"} {"case_name":"State v. Matthews","case_name_full":"STATE of Louisiana v. Clarence MATTHEWS","case_name_short":"Matthews","citation_count":0,"citations":["642 So. 2d 1277"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1994-09-02","date_filed_is_approximate":false,"id":7746211,"judges":"Dennis","opinions":[{"ocr":true,"opinion_id":7682939,"opinion_text":"\nIn re Matthews, Clarence; — Defendant(s); applying for motion to enforce this Court’s Action of November 23, 1993, La., 629 So.2d 403; Parish of Orleans, Criminal District Court, Div. “A”, No. 280-029.\nDenied.\nDENNIS, J., not on panel.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-matthews"} {"attorneys":"Kenney, appellant pro se., No appearance for appellee.","case_name":"Kenney v. State","case_name_full":"Floyd Thomas KENNEY v. STATE of Florida","case_name_short":"Kenney","citation_count":0,"citations":["650 So. 2d 1136"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1995-03-09","date_filed_is_approximate":false,"id":7749596,"judges":"Benton, Lawrence, Mickle","opinions":[{"ocr":true,"opinion_id":7686563,"opinion_text":"\nPER CURIAM.\nOn appeal from summary denial of a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, we affirm with respect to nine claims. On the authority of Wilson v. State, 647 So.2d 185 (Fla. 1st DCA 1994) and Gill v. State, 632 So.2d 660 (Fla. 2d DCA 1994), however, we reverse for further proceedings on appellant’s claim that he would have been acquitted if his lawyer had not prevented his testimony. See Fla. R.App.P. 9.140(g). On remand, appellant is also entitled to further consideration of his claim that he would have accepted offers for negotiated pleas that his lawyer allegedly failed to communicate to him. Id.; Wilson; Young v. State, 608 So.2d 111, 113 (Fla. 5th DCA 1992).\nMICKLE, LAWRENCE, and BENTON, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"kenney-v-state"} {"attorneys":"Wade Kitchens and W. H. Kitchens, Jr., for appellant., Warner, Warner & Rag on, for appellee.","case_name":"Grayson v. Arrington","case_name_full":"Grayson v. Arrington","case_name_short":"Grayson","citation_count":0,"citations":["225 Ark. 922","286 S.W.2d 501"],"court_full_name":"Supreme Court of Arkansas","court_jurisdiction":"Arkansas, AR","court_short_name":"Supreme Court of Arkansas","court_type":"S","date_filed":"1956-02-06","date_filed_is_approximate":false,"id":7870162,"judges":"Holt, McFaddin, Millwee, Smith","opinions":[{"author_str":"Holt","ocr":true,"opinion_id":7814670,"opinion_text":" J. Seaborn Holt, Associate Justice. This is a suit by appellee, Arrington, to quiet his title to the oil, gas and other minerals in and under the of NW14 of NE% of Sec. 19, Tp. 19 S, R 18 W, Columbia County and to remove cloud on his title created by Sheriff’s deed made pursuant to an execution sale to T. S. Gray-son, now deceased, and who was survived by appellants. Appellee deraigned title from the State by virtue of a tax correction deed of August 19, 1946, duly recorded, and by a mineral deed dated September 7, 1946, recorded, and made by \"W. C. Taylor and wife to appellee. (Taylor had previously owned both surface and minerals but had conveyed the surface, which eventually went to T. S. Grayson, and retained all minerals.) October 30, 1945, the State conveyed by tax deed to appellee the minerals in the 20 acres here involved, but erroneously described it to be in Range 19 when it should have been Range 18. The. State did not own any interest in Range 19, but did own the royalty in the 20 acres in Range 18, which had forfeited for the 1941 taxes. In 1946 [exact date not shown] the State filed a confirmation suit to confirm its title to delinquent lands and mineral rights described therein [under Act 119, 1935, §§ 84-1315 — 84-1332, Ark. Stats. 1947], Case 6439, and included the oil, gas and minerals in the W% N¥]4 NE14, Sec. 19, Tp. 19 S, R 19 W. August 22, 1946, Grayson and Foster, who claimed to be the owners of the surface and mineral rights in said 20 acre tract in Range 19, intervened naming Arrington and his wife as cross-defendants. September 23, 1946, on the first day of the next term of Court, Arrington and wife appeared by their attorney Ezra Garner and filed a disclaimer as to any right, title or interest in the property claimed by Gray-son and Foster in Range 19. On the same day a decree was entered finding that Grayson and Foster owned the oil, gas and minerals in the 20 acres described as W% NW% NE%, Sec. 19, Tp. 19 S, R 19 W, and that on October 30, 1945, Arrington had obtained a deed from the State Land Commissioner based on a purported sale of part of said lands in Bange 19, for taxes of 1941, that said deed was void for the reason that all taxes had been paid in Bange 19 and had not forfeited; that the complaint filed by the State in so far as it affected said land in Bange 19 should be dismissed and it was decreed that said tax deed be cancelled and the title to the oil, gas and minerals be quieted in Grayson and Foster. The court then ordered that Grayson and Foster recover from Arrington all costs expended by them. It appears that Arrington, appellee, was without knowledge of this decree. Execution was issued by appellants on the decree for costs, levy was made on the mineral rights of Arrington in the 20 acre tract located in Bange 18 for the purpose of satisfying the judgment and the property was sold by the Sheriff to the said Grayson for $36 and deed executed to him. From the time appellee first obtained title to the 20 acres in Bange 18, up to and including 1953, he paid all taxes charged thereon. On a trial of the present suit the trial court found that the judgment against Arrington in favor of Grayson and Foster in the confirmation suit for costs was void and without effect; that the Sheriff’s deed to Grayson for minerals in the 20 acre tract in Bange 18 constituted a cloud on Arrington’s title; decreed that the deed be can-celled and title quieted in Arrington. For reversal appellants list these three points: “First, that the judgment for costs in the confirmation suit was not void; second, that the present suit constitutes a collateral attack on the confirmation decree of September 23, 1946; and third, that the judgment for costs in the confirmation suit was within the discretion of the chancellor.” Material facts appear not to be in dispute. After a careful review of the entire record we have concluded that the findings of the Chancellor were not against the preponderance of the evidence and, therefore, that the decree must be affirmed. The confirmation suit was instituted pursuant to the provisions of Act 119 of 1935 as amended, [§§ 84-1315— 84-1332 inch, Ark. Stats. 1947] and was based thereon. Grayson and Foster intervened in that suit as provided in § 84-1322. Section 84-1327 above provides: “Court costs and the publication fees for the notice of such confirmation suit shall hereafter be paid from the amounts received by the State for the confirmation of title of all lands certified to the State for non-payment of taxes.” Section 84-1329 provides: “All costs and fees due and payable hereunder may be paid when proof is made that the services for which the payment is made have been fully performed.” Section 84-1330 provides: “The State Land Commissioner shall hereafter, upon proper application therefor, refund the confirmation fees paid by any person, firm, corporation, association or trustee where the title to state lands have failed.” Since the above confirmation statute provides the specific method for the payment of costs in all confirmation suits in which the State seeks to establish its title, the trial court was without authority or power to disregard the statute and adjudge the costs on the intervention against appellee and that part of the judgment, assessing the costs against appellee, was therefore void because it was beyond the power of the court to make. Section 84-1327 above, as indicated, expressly provides that all court costs incurred in such confirmation proceedings shall be paid from the amounts received by the State for the confirmation of title of all lands certified to the State for non-payment of taxes, and directed the Land Commissioner to refund costs paid by any person where the State’s title has failed. The general statute, in effect, allowing costs to be assessed by the trial court in the exercising of its sound discretion, § 27-2308, Ark. Stats. 1947, relied upon strongly by appellant, has no application here where the court is clearly exercising special statutory power and the measure of the court’s authority is the statute itself. Since the statute clearly provides the method for paying costs in confirmation suits, the court was without authority to disregard the statute and adjudge costs on the intervention against appellee. The rule of the law appears to be well settled that costs are a creature of the statute and can only be taxed by statutory authority: “We have often held that the allowance of costs is purely statutory, since at common law neither party is entitled to recover his costs.” Arkansas State Game & Fish Commission v. Kizer, et al., 222 Ark. 673, 262 S. W. 2d 265, 38 A. L. R. 2d 1372. “A judgment is void when the court proceeds without authority and in a manner forbidden by law with respect to the matter being adjudicated, although it may have jurisdiction of the parties and of the subject matter,” Soper v. Foster, 244 Ky. 658, 51 S. W. 2d 929. “Where the court, as here, is exercising special statutory powers, the measure of its authority is the statute itself; and a judgment or order in excess of the power thereby conferred is null and void. In such a case even though the court may have jurisdiction of the general subject matter and of the parties, an adjudication with reference thereto which is not within the powers granted to it is coram non judice,” Aetna Cas. & S. Co. v. Bd. of Suprvs., 160 Va. 11, 168 S. E. 617, 626. It is true, as appellant asserts, that Grayson and Foster intervened in the confirmation suit but this intervention and cross-complaint was not an independent action but was ancillary to the State’s confirmation suit. “Intervention is not an independent proceeding, but an ancillary and. supplemental one which, in the nature of things; unless otherwise provided for by legislation, must be in subordination to the main proceeding, and it may be laid down as a general rule that an intervener is limited to the field of litigation open to the original parties. . . . ” 39 Am. Jur., § 79, p. 950. Here Grayson and Foster intervened and cross-complained [§ 84-1322 above] and claimed to own the minerals in the tract of land in Range 19, in which they made Arrington and wife cross-defendants. This intervention and cross-complaint was ancillary to the confirmation suit and was in no sense a new action. It is true that the present suit constitutes a collateral attack, however, since we hold that the decree for costs in the confirmation suit, and the Sheriff’s deed made pursuant to the execution sale, were void, the court lacked authority and the power to make the decree and was subject to collateral attack. Lambert v. Reeves, 194 Ark. 1109, 110 S. W. 2d 503: “It is furthermore contended that this is a collateral attack upon the decree of confirmation. Even so, if the confirmation decree is void, in so far as it attempts to confirm a tax sale that is void for the defect above mentioned, then it is open to collateral attack, as a void judgment may be attacked collaterally.” The decree is affirmed. Justice McFaddin not participating. Justices Millwee and Smith dissent. ","per_curiam":false,"type":"020lead"},{"author_str":"Smith","ocr":true,"opinion_id":7814671,"opinion_text":" George Rose Smith, J., dissenting. This is an instance of a hard case making bad law. Grayson acquired title to Arrington’s property under a writ of execution issued upon a relatively small judgment for costs. It is natural enough to sympathize with Arrington, even though he was at fault in not keeping himself informed about the progress of litigation to which he was a party. But that sympathy ought not to be carried to the extent of holding that the solemn judgment of a court of superior jurisdiction is a mere nullity, to be disregarded on collateral attack. It is true, of course, that the legislature could have provided that the chancery court should be wholly without power to render a judgment for costs in a tax conformation suit. But in my opinion that result should depend upon far more emphatic language than that used in the statute upon which today’s decision rests. The reason for the enactment of this statute is easily understood. When a state agency is directed to institute a suit some provision is ordinarily made for the payment of the court costs that must necessarily be incurred. In some instances the statute directs that the State shall not be required to pay costs as a condition to bringing suit; in other instances the legislature designates a fund from which the costs may be paid. The latter procedure has been followed in statutes directing the institution of proceedings to confirm the State’s title to tax-forfeited land. It was provided by Act 119 of 1935, § 10, that the court costs should be paid from amounts received for the redemption or sale of such forfeited property. The present statute, enacted in 1943, authorizes the payment of court costs from amounts received by the State for the confirmation of title to lands certified for nonpayment of taxes. Ark. Stats. 1947, § 84-1327. As far as I can see, the purpose of the statute is to point out the fund from which the costs may be paid. There is nothing to indicate that the legislature meant to divest the chancery court of its routine authority to tax the costs according to the merits of the case. It may be true that, in view of the statute, the court committed an error that might have been corrected upon appeal. But I am altogether unwilling to say that the statute was intended to have the drastic effect of rendering the court’s decree a mere nullity. ","per_curiam":false,"type":"040dissent"}],"precedential_status":"Published","slug":"grayson-v-arrington"} {"attorneys":"G. IF. Allen, attorney, and Win. H. Timlin, of counsel, for the appellants,, For the respondent there was a brief by Greene dé Yro-man, of counsel (0. E. & Y. Y. Ereutzer, attorneys), and oral argument by Y. V. Ereutzer and O. E. Yroman.","case_name":"Propsom v. Leatham","case_name_full":"Propsom v. Leatham and another","case_name_short":"Propsom","citation_count":0,"citations":["80 Wis. 608"],"court_full_name":"Wisconsin Supreme Court","court_jurisdiction":"Wisconsin, WI","court_short_name":"Wisconsin Supreme Court","court_type":"S","date_filed":"1891-12-15","date_filed_is_approximate":false,"headnotes":"\nMaster and servant: Negligence: Injury to servant: Dangerous premises: Evidence: Damages.\n
1. The plaintiff having been injured while at work for the defendants on their dock carrying shingles to a boat, and the evidence tending to show that the injury was caused by a defect in the dock, it was proper to instruct the jury as to the duty of the defendants to provide a reasonably safe place for the plaintiff to work in.
2. Evidence was admissible that the dock was defective in many places by reason of holes other than the one which caused the injury to the plaintiff.
3. Evidence as to how the dock compared with others used for the same purposes was not admissible.
4. Evidence that the plaintiff was an habitually careless man was not admissible.
6. The complaint alleged that the defect which caused the injury was a hole about ten inches broad and eighteen inches long, which was covered by a loose board or slab. The jury found that at the place where the plaintiff’s leg went through the dock there was a broken or cracked plank filling the space, which gave way when plaintiff stepped on it Held, that the variance, if any, was not material.
■6. Both bones of plaintiff’s right leg were broken near the ankle. At the time of the trial, more than two years afterwards, he still suffered pain and was unable to walk without a cane. He testified that his leg was crooked near the ankle, which was sore and was swollen every day; that his right leg was two inches shorter than the other; and that he was unable to do a day’s work or earn his former wages. But one medical witness was called, who testified, on the part of the defense, that he examined the leg about a week after the injury and again ten days later; that there was then no shortening of the leg and nothing to indicate any permanent disability if the leg were properly cared for; that on an examination at the time of the trial he found the leg had shortened half an inch and that there was a soreness in the foot, the cause of which he could not explain. Held, that from this evidence the jury might find that the injury was of a permanent character, and that the court therefore properly gave instructions as to the damages for such an injury.
7. The defendants claimed that some negligence of the plaintiff had caused a change in the leg from what it was soon after the accident, but there was little evidence to sustain such claim. The court charged that if this were so the defendants were in no way responsible for damages resulting from such negligence. Held, that the question was fairly submitted to the jury.
8. A verdict for $1,800 is held not excessive.
","id":8220348,"judges":"Oole","opinions":[{"author_str":"Oole","ocr":true,"opinion_id":8183821,"opinion_text":"\nOole, 0. J.\nAs tbis was an action for damages for a personal injury received by tbe plaintiff while at work for the defendants on their dock, it is very obvious it was most proper for the trial court to instruct the jury as to the duty of the defendants to provide a reasonably safe place for the plaintiff to work, as well as his duty to exercise due care to avoid an injury. The charge of the court upon these points is quite full, and seems to us unobjectionable. It is.certainly not justly open to the criticism made upon it by defendants’ counsel, as being misleading. This general remark is all' we deem it necessary to say upon several objections taken to the charge on that subject.\nIt is said the court erred in admitting evidence of other defects in the dock than the one which caused the accident. The witness Olinger, who was working on the dock at the time the plaintiff was injured, was asked to state what the condition of the dock was,— as to whether sound or defective in any way,— and to describe its condition at the time. The question was objected to, but the objection was overruled, and the witness stated, in substance, that he saw only one hole in the dock at the time; that he had seen some others in the spring of the year, and some a couple of months before, which had been repaired or fixed up before the plaintiff was injured; that he had seen such holes once in a while when he worked there. The evidence was harmless as detailed by the witness, and there is other testimony of the same kind. The testimony of the witness \"Wead was admissible, as this court has held it was proper to show that a bridge was out of repair by evidence that the planks were old and decayed at other points than the one where the accident occurred, because, if the authorities had done their duty in repairing other defective places, of *612which from their character and number they might be presumed to have had notice, they would probably have discovered the particular defect in question. Randall v. N. W. Tel. Co. 54 Wis. 140; Spearbracker v. Larrabee, 64 Wis. 573; Shawn v. Sun Prairie, 74 Wis. 105; Koenig v. Arcadia, 75 Wis. 62; Spaulding v. Sherman, 75 Wis. 77. It was certainly notice to the defendants, if the dock was defective in many places by reason of holes, that they should cause the structure to be thoroughly examined frequently and all defects repaired, and they would fail in the performance of their duty if they did not do this after such a warning as to its condition.\ni The testimony as to how the dock in question compared with the ordinary docks used for shipping lumber and shingles was properly excluded, for the most obvious reasons. The inquiry was not whether the dock was as good as others which were used for a like purpose, but whether it was reasonably safe for the defendants’ employees to work upon; and the learned circuit judge charged that there were certain duties which the law imposed upon the master towards his servant, which were that the master was bound to. use ordinary care and due diligence to provide a reasonably safe place for. his servant to work, and, further, was obliged to use such diligence and care in keeping such place in a reasonably safe condition, if it was liable to become unsafe by use. There can be no doubt but that the law held the defendants to this degree of liability, and hence it was not error to exclude the testimony offered.\nThe same remark may be made as to excluding the testimony that the plaintiff was an habitually careless man. The question was whether the plaintiff was guilty of negligence which contributed to his injury, and the jury found that he was not. The jury also found that there was a defective place in the dock which had existed for so long *613before tbe accident that tbe defendants, in tbe exercise of ordinary care and diligence, could have discovered and repaired it, and that tbe plaintiff, by tbe exercise of ordinary care, could not have avoided tbe injury. That there was abundant evidence to sustain these findings cannot well be controverted.\nIt was alleged in tbe complaint that tbe dock was unsafe by reason of a hole about ten inches broad and eighteen inches long, which was covered by a loose board or slab placed over the same. There was considerable testimony that there was such a hole in the dock which was covered by a slab, though, as the counsel for the plaintiff says, the testimony on the point descriptive of the defect is conflicting. Some of the witnesses described it as an open hole; others as a hole with a slab over it, which broke when 'plaintiff stepped upon it; others that the end of the plank gave way; while others say that a short piece of plank at this point broke and caved in, and let the plaintiff through. The jury found, in effect, that, at the place where the plaintiff’s leg went through the dock, there was a broken or cracked plank, which gave way. The variance between the allegations in the complaint and the finding is not material, if any there was, because it could not have misled the defendants as to the defect.\nExceptions are taken to the charge as to the rule of damages. The court instructed the jury that, if the plaintiff Avas entitled to recover, they should assess his damages resulting directly from the injury received by him at the time and place in question, and that there were two classes of damages — those which were supposed to represent actual compensation for the loss or injury, and those which were known as “ punitive ” damages. The court directed that there could be no assessment of any damages on the latter ground, but that the damages which were to be assessed were such as-would compensate the plaintiff for the injury *614he bad sustained, and nothing more; and, in considering what they were, the jury were told that they were to consider nobody but the plaintiff himself,— his injury and his damage; not the defendants, their ability or inability to pay. The court further added that the jury must bear in mind in assessing the damages that they are only such as are the direct and natural consequences of the injury sustained at the time,— that is, the damage that resulted from the injury, and not from any other cause, if there are other causes, such as negligence or neglect of the plaintiff himself while he was suffering from the injury, which has enhanced his damages; that the defendants were not responsible for that, because that is not an item of injury or damages resulting from the act for which they are liable, but from the plaintiff’s own act. The court further said, as to the items of actual compensation, the plaintiff was entitled in the first place to be paid the expenses he had been put to by way of medical attendance and surgery, if any, and that the next item was any amount that he had lost by way of earnings, wages, as it appeared that he was a laboring man, in consequence of his inability to work for any length of time; that another item, was such wages as he had lost after he became able to work by reason of his impaired ability to work, if before this accident he was in a physical condition to enable him to earn more wages than he had since, though able to work, but not being able to earn as much wages, why his loss was the difference; and that he was entitled, in addition to these items, to be compensated for the physical and mental suffering that he had undergone in consequence of this injury; and, further, that “ if the testimony shows that he has received an injury which is permanent, which will continue in the future, resulting in making him less able to earn wages than formerly, and resulting in his suffering pain and inconvenience, the jury are directed to assess the same class of damages for the future that I have *615mentioned that it is proper for them to assess np to the present time, nnder these heads such amount as it is reasonably probable from all the circumstances of the case, the age and condition of the man, and everything that he would lose, or will compensate him for the future pain and suffering, if any is likely to result from the permanence of the injury.”\nWe have given in substance the entire charge relating to the rule of damages. Eow, it is objected that the court erred in this charge, in stating, as it did, that the jury might assess damages for a permanent injury, and for future pain and suffering and impaired capacity to earn wages in the future, because (1) there was no evidence given on the trial that the injury was permanent; (2) there was no evidence that there would be future pain and suffering resulting from the injury; (3) there was no evidence that the plaintiff’s capacity to earn wages in the future would be diminished.\nWe disagree very widely with counsel as to what the testimony tends to show in regard to these facts. Of course, in order to warrant damages for a permanent injury, there should be evidence upon which such damages can be based. In White v. Milwaukee City R. Co. 61 Wis. 536, the rule on this subject is stated by Mr. Justice Lyón as follows: \"A mere possible continuance of disability by reason of an injury is not a proper element of damages. To justify the jury in assessing damages for future or permanent disability, it must appear by the proofs that continued or permanent disability is reasonably certain to result from the injury complained of.”\nIn this case the plaintiff, while at work on the dock carrying shingles onto a boat, fell through a hole in the dock, and broke his right leg near the ankle. The leg was broken by a bunch of shingles falling from his shoulder on it, both bones being broken. More than two years had elapsed between the injury and the time of trial, and the plaintiff *616still suffered pain in bis ankle and foot, and be was unable to walk without a cane. lie testified that bis leg was crooked at the ankle; that the ankle was sore, and was swollen every day; that bis right leg was two inches shorter than the other. He is unable to lift and carry shingles, because he cannot lift while standing on his leg, but has to go down on his knees in order to lift a heavy weight. He is unable to do a day’s work or earn his former wages. This is the substance of his testimony as to the nature and extent of his disability. There was but one medical witness sworn on the trial, and he ori the part of the defense. The surgeon who regularly attended the plaintiff and reduced the fracture was absent from the state, and therefore could not be examined, but Hr. Hendricks, who was called by Hr. Cook, who had charge of the case about the time the first dressing was removed and the permanent dressing put on the limb, about a' week after the plaintiff was hurt, testified that he then examined the leg to see if the bones were in place, and that the condition of the leg was then promising and doing well, the bones having been properly adjusted. This witness saw the plaintiff next about ten days after, when he made a further examination. He says there was no shortening of the leg, nor any deformity, except what would take place in throwing out the provisional callus that made ‘the bone. He said that there was nothing, therefore, in the nature of the fracture to indicate any permanent disability, if the leg had been properly cared for at that time. He and Cook made careful measurements at both his visits, and there was no difference between the two limbs at all. He thought at the end of five weeks from the date of the injury his leg “would be as good as ever,— would be perfectly sound.” It is evident that the witness did not consider a broken leg near the ankle a very serious injury. I venture to say, if his leg had ever been broken he would have modified his opinion on the subject. To say *617that a broken leg, where bo.th bones are fractured, would be as good as ever and perfectly sound in five weeks, may be the opinion of medical writers, but it is not confirmed by the experience of men who have sustained such an injury. The doctor made an examination of the plaintiff on the trial. He found that his leg was shortened half an inch, and that there was present a soreness in the foot, the cause of which he could not explain. He says there was a degree of tenderness in the ankle joint. He could not locate it. “ It is in some of th’e bones of the tarsus, but whether in the joint itself is a matter of doubt.”\nWe deem this a sufficient reference to the testimony to show that there was evidence from which the jury might find that the injury was of a permanent character, and that the plaintiff’s ability to earn wages was diminished, and will continue so. It is reasonably certain that future pain and suffering will continue, and that permanent disability is inevitable, as a necessary result of the injury. Such being the state of the proofs, there was no error, within the doctrine of the White Case, in the charge to which exception is taken. We have examined the cases which are cited on the briefs of defendants’ counsel, but find nothing in them in conflict with these views. They need not, therefore, be commented on here.\nIt is claimed by the defendants’ counsel that the injured limb had changed in some way from what it was three weeks after the fracture, and it is argued that this must have been caused by some negligence or imprudence of the plaintiff. We find but little evidence in the case to sustain this theory. But the court charged the jury that if the plaintiff had been negligent in his conduct, and had not taken care of himself and of his broken limb, the defendants were in no degree responsible for damages which resulted from his own act. So the question whether the plaintiff’s disability and suffering were wholly consequences *618of the original injury or Rad been aggravated by other causes was fairly submitted on the evidence.\nWe cannot disturb the verdict on the ground that the damages awarded are excessive. The jury gave $1,800 damages, which we are unable to say is disproportionate to the injury sustained. Stutz v. C. & N. W. R. Co. 73 Wis. 147.\nThis disposes of all the material questions in the case, and it follows that the judgment of the circuit court must be affirmed. .\nBy the Gov/rt.— Judgment affirmed.\n","per_curiam":false,"type":"020lead"}],"other_dates":"\nNovember 20\n","precedential_status":"Published","slug":"propsom-v-leatham","summary":"APPEAL from the Circuit Court for Door County. Action to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendants on July 5, 1888, and alleged to have been caused by the defendants’ negligence in permitting their dock upon which the plaintiff was at work to become and remain out of repair and in an unsafe condition. The principal facts will sufficiently appear from the opinion. The testimony of the witness Wead there referred to was to the effect that in the summer of 1888, prior to the accident, there were a good many holes in the dock where the shingles were commonly piled, and that the planks were pretty well worn; that there were at least fifteen or twenty holes, some of them large enough to take a man’s foot in, some smaller, and some larger; and that the holes were weather-beaten and showed signs of being old holes. The jury returned a special verdict to the effect that the plaintiff was injured, July 5, 1888, by stepping through a hole or defective place in the defendants’ dock; that the defendants did not know of such hole or defect before the plaintiff was injured, but that it had existed for such length of time before the accident that, in the exercise of ordinary care and reasonable diligence, they could have discovered and repaired it; that it had existed two weeks or more; that it was in the dock when the shingles which were removed from the spot July 5, 1888, were piled there; that at the place where, the plaintiff’s leg went through the dock there was, at the time, a broken or cracked plank filling the space, but which gave way when the plaintiff stepped on it; and that the plaintiff could not, by the exercise of ordinary care on July 5, 1888, have avoided the injury. Tlie jury also assessed the plaintiff’s damages at $1,800. From the judgment entered upon the verdict in favor of the plaintiff the defendants appealed. contended, inter alia, that the testimony did not show any permanent injury resulting from the accident, and the matter of damages for such injury should not have been submitted to the jury. The future effect of an injury is a matter for expert testimony. McGlain v. Brooklyn Oity B.. Oo. 116 N. T. 461; Filer v. _ZF. Y. G. B. Go. 49 id. 42, 46. The future consequence must be reasonably certain, and must inevitably and necessarily result from the original injury. White v. Milwomkee Oily B. Oo. 61 Wis. 536, 541; Struts v. O. dé N. W. B. Go. 73 id. 147, 157; Curtis v. B. dé 8. B. Co. 18 N. T. 534, 542; Strohm v. IF. Y, L. F. dé IF. B. Go. 96 id. 305."} {"case_name":"People v. Bailey","case_name_full":"PEOPLE of the State of Michigan v. Derek Joseph BAILEY","case_name_short":"Bailey","citation_count":0,"citations":["910 N.W.2d 265","501 Mich. 1060"],"court_full_name":"Michigan Supreme Court","court_jurisdiction":"Michigan, MI","court_short_name":"Michigan Supreme Court","court_type":"S","date_filed":"2018-05-01","date_filed_is_approximate":false,"id":8283447,"opinions":[{"ocr":true,"opinion_id":8249473,"opinion_text":"\nOn order of the Court, the application for leave to appeal the July 25, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-bailey"} {"case_name":"RM v. State","case_name_short":"RM","citation_count":6,"citations":["754 So. 2d 849"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2000-04-07","date_filed_is_approximate":false,"id":1133550,"judges":"Casanueva","opinions":[{"author_id":6847,"ocr":false,"opinion_id":1133550,"opinion_text":"\n754 So. 2d 849 (2000)\nR.M., Appellant,\nv.\nSTATE of Florida, Appellee.\nNo. 2D99-2549.\nDistrict Court of Appeal of Florida, Second District.\nApril 7, 2000.\nJames Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.\n*850 Robert A. Butterworth, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.\nCASANUEVA, Judge.\nR.M. appeals his conviction for loitering and prowling in violation of section 856.021, Florida Statutes (1997), and contends that the trial court erred in failing to grant his motion for judgment of acquittal. Because the evidence presented by the State was legally insufficient for a conviction, we reverse.\nOn the night of February 6, 1999, a gas station manager in Sarasota saw a young man and woman in the parking lot of the Cadillac dealership across the street. For approximately ten minutes, the manager observed the two pulling on the door handles of one car after another. Because of their conduct and the late hourit was almost 11:00 p.m.the manager called the police. While she was on the phone the manager told the dispatcher that the two had begun walking down an adjacent street, but she never saw them again after they were arrested, and at trial the manager was unable to identify R.M. as the young man she saw pulling on the door handles.\nHaving presented this background information at the outset of the trial, the State turned its attention to the circumstances surrounding R.M.'s apprehension. An officer stopped R.M. and a companion as they walked in a public street approximately 50 feet away from the Cadillac dealership. When asked what he was doing there, R.M. gave somewhat inconsistent and improbable answers. A second officer testified that he inspected the lot and found what appeared to be fingerprints and pry marks on the windows or doorjambs of several cars, but because the vehicles were covered with dew and precipitation he could not obtain any more evidence. The police investigation uncovered no tools, either in the lot or on R.M.'s person. This second officer speculated that R.M. was conducting a \"probe\"-surveying the premises in anticipation of possible future criminal conduct.\nIn J.S.B. v. State, 729 So. 2d 456, 457 (Fla. 2d DCA 1999), this court held that to obtain a conviction for loitering and prowling the State must prove the following two elements: first, the accused must be loitering and prowling in a manner not usual for law-abiding citizens; and second, the factual circumstances must warrant a justifiable and reasonable concern for the safety of persons or property in the vicinity. To satisfy the second prong the State must prove that the accused's conduct is alarming in nature, creating an imminent threat to public safety.\nHere, the State demonstrated that a citizen's concerns were aroused by what she observed in the Cadillac dealership, but no evidence actually linked R.M. to the parking lot. The manager did not identify R.M. as the person she saw on the lot, nor did the State connect the fingerprints on the vehicles with R.M. Furthermore, when apprehended, R.M. was walking on a public street in the company of a female at 11:00 p.m., behavior that cannot be described as particularly unusual or alarming. Thus, any suspicion that R.M. might have aroused by giving inconsistent or puzzling answers to the officer's questions is irrelevant, because there was no need for R.M. to dispel any alarm. See W.A.E. v. State, 654 So. 2d 193 (Fla. 2d DCA 1995); K.R.R. v. State, 629 So. 2d 1068 (Fla. 2d DCA 1994).\nThe factual circumstances might have been, as the officer conjectured, consistent with a \"probe.\" However, mere suspicions of future criminal conduct will not satisfy the statute, which requires proof that the suspect's actions created an immediate concern for the safety of nearby property. These facts did not rise to that level as there was no evidence of an imminent threat.\n*851 Accordingly, we reverse the order finding R.M. guilty of loitering and prowling and remand with instructions that he be discharged.\nGREEN, A.C.J., and SALCINES, J., Concur.\n","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"rm-v-state"} {"attorneys":"Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Suzanne Stocking, Frances O’Connell (argued), Washington, D.C., for petitioner., J. Michael Fischer (argued), Ennis, Roberts and Fischer Co., Cincinnati, Ohio, for respondent.","case_name":"National Labor Relations Board. v. Harrison Ready Mix Concrete, Inc.","case_name_full":"NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARRISON READY MIX CONCRETE, INC., Respondent","citation_count":3,"citations":["770 F.2d 78"],"court_full_name":"Court of Appeals for the Sixth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Sixth Circuit","court_type":"F","date_filed":"1985-08-13","date_filed_is_approximate":false,"headmatter":"\n Present: All the Justices\n
\n Honorable Myron H. Bright, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation.\n
\n\n Circuit judge, sitting on the Court of Appeals by assignment.\n
\n\n Affirmed by unpublished PER CURIAM opinion.\n
\n Unpublished opinions are not binding precedent in this circuit.\n
","id":1024234,"judges":"Hamilton, Per Curiam, Traxler, Wilkinson","opinions":[{"author_str":"Per Curiam","download_url":"http://pacer.ca4.uscourts.gov/opinion.pdf/071459.U.pdf","ocr":false,"opinion_id":1024234,"opinion_text":" UNPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 07-1459\n\n\n\nNED N. CARY, JR., Morning Star Baptist Church,\n\n Plaintiff - Appellant,\n\n versus\n\n\nSTERLING PERRY, James City County Police;\nMICHAEL MCGINTY, Commonwealth of Virginia;\nSHAWN MILLER, Anheuser-Bush Incorporated;\nANHEUSER-BUSCH, INCORPORATED,\n\n Defendants - Appellees.\n\n\nAppeal from the United States District Court for the Eastern\nDistrict of Virginia, at Newport News. Walter D. Kelley, Jr.,\nDistrict Judge. (4:05-cv-00047)\n\n\nSubmitted: November 6, 2007 Decided: November 15, 2007\n\n\nBefore WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior\nCircuit Judge.\n\n\nAffirmed by unpublished per curiam opinion.\n\n\nNed N. Cary, Jr., Appellant Pro Se. Leo Paul Rogers, Jr., JAMES\nCITY COUNTY ATTORNEY, Williamsburg, Virginia; Jeff Wayne Rosen,\nLisa Ehrich, PENDER & COWARD, PC, Virginia Beach, Virginia; Leonard\nC. Heath, Jr., JONES, BLECHMAN, WOLTZ & KELLY, PC, Newport News,\nVirginia, for Appellees.\n\n\nUnpublished opinions are not binding precedent in this circuit.\n\fPER CURIAM:\n\n Ned N. Cary, Jr. appeals the district court’s order\n\ndismissing this action challenging Cary’s termination from\n\nemployment and imposing monetary sanctions and a prefiling\n\ninjunction. We have reviewed the record and find no reversible\n\nerror. Accordingly, we affirm for the reasons stated by the\n\ndistrict court. Cary v. Perry, No. 4:05-cv-00047 (E.D. Va. Apr. 2,\n\n2007).* We dispense with oral argument because the facts and legal\n\ncontentions are adequately presented in the materials before the\n\ncourt and argument would not aid the decisional process.\n\n\n\n AFFIRMED\n\n\n\n\n *\n The district court dismissed Sheriff Perry on statute of\nlimitations and res judicata grounds. We affirm his dismissal on\nlimitations grounds only. We note, moreover, that he was not\nalleged to have played any role in Cary’s termination.\n\n - 2 -\n\f","page_count":2,"per_curiam":false,"type":"010combined"}],"other_dates":"Submitted: Nov. 6, 2007.","precedential_status":"Unpublished","slug":"cary-v-perry"} {"case_name":"Kennedy v. Ridgefield","case_name_short":"Ridgefield","citation_count":0,"citations":["411 F.3d 1134"],"court_full_name":"Court of Appeals for the Ninth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Ninth Circuit","court_type":"F","date_filed":"2005-06-22","date_filed_is_approximate":false,"id":3032369,"nature_of_suit":"Prisoner","opinions":[{"download_url":"http://cdn.ca9.uscourts.gov/datastore/opinions/2005/06/22/0335333.pdf","ocr":false,"opinion_id":3032369,"opinion_text":" FOR PUBLICATION\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nKIMBERLY KENNEDY, individually \nand in her capacity as personal\nrepresentative of the estate and as\nguardian for her children aka\nKimberly Gorton; JAY D.\nKENNEDY, aka JD Kennedy; KEITH No. 03-35333\nTEUFEL; TERA TEUFEL,\n Plaintiffs-Appellees, D.C. No.\n CV-01-05631-JKA\n v. OPINION\nRIDGEFIELD CITY OF, a municipal\ncorporation and political\nsubdivision of the State of WA;\nNOEL SHIELDS,\n Defendants-Appellants.\n \n Appeal from the United States District Court\n for the Western District of Washington\n J. Kelley Arnold, Magistrate Judge, Presiding\n\n Argued and Submitted\n September 17, 2004—Seattle, Washington\n\n Filed June 23, 2005\n\n Before: James R. Browning, A. Wallace Tashima, and\n Jay S. Bybee, Circuit Judges.\n\n Opinion by Judge Browning;\n Partial Concurrence and Partial Dissent by Judge Bybee\n\n\n\n\n 7471\n\f KENNEDY v. RIDGEFIELD 7475\n\n\n COUNSEL\n\nRay P. Cox, Forsberg & Umlauf, Seattle, Washington, for the\ndefendant-appellant.\n\nJohn R. Connelly, Jr., Darrell L. Cochran and Lincoln C.\nBeauregard, Gordon Thomas Honeywell Malanca Peterson &\nDaheim, Tacoma, Washington, for the plaintiff-appellee.\n\n\n OPINION\n\nBROWNING, Circuit Judge:\n\n Defendant Noel Shields appeals the district court’s ruling\nthat he is not entitled to summary judgment against Plaintiff\nKimberly Kennedy’s 42 U.S.C. § 1983 claim. He argues that\nhis alleged conduct did not violate Plaintiff’s clearly estab-\nlished constitutional rights. We disagree, and conclude the\ndistrict court correctly determined that Shields is not entitled\nto qualified immunity. Accordingly, we affirm the decision\nbelow.\n\n I. Introduction\n\n Kimberly Kennedy’s § 1983 action against Ridgefield City\nand Ridgefield Police Officer Noel Shields stems from events\noccurring on September 24, 1998, when a thirteen year-old\nneighbor, Michael Burns, shot and killed her husband Jay\nKennedy and severely wounded her.\n\n On September 6, 1998, Kennedy called the Ridgefield\nPolice Department (“RPD”) and alleged that Michael Burns\n\f7476 KENNEDY v. RIDGEFIELD\nhad molested Kennedy’s nine-year-old daughter, Tera Teufel.\nRPD Officer Shields responded to the call.\n\n Kennedy claims to have warned Shields of Michael Burns’s\nviolent tendencies at the September 6 meeting. Kennedy\ninsists that during their initial meeting, she told Shields that\nthe Burns family was unstable and that she had seen a lot of\nviolence in their home. She alleges that she went on to\ndescribe several violent incidents involving Angela Burns,\nMichael’s mother. Kennedy also claims she informed Shields\nthat Michael Burns had been involved in a number of violent\nincidents, including fights at school, lighting a cat on fire,\nbreaking into his girlfriend’s house and attacking her with a\nbaseball bat, and throwing rocks at a building in downtown\nRidgefield.\n\n Kennedy also alleges that during the September 6 meeting,\nShields assured her that she would be given notice prior to\nany police contact with the Burns family about her allega-\ntions. Shields stated that he could not recall whether Kennedy\nasked to be notified prior to any contact by the authorities\nwith the Burns family.\n\n Shields forwarded his report to the Child Abuse and Inter-\nvention Center (“CAIC”) following the September 6 meeting.\nIt is undisputed that Shields had no contact with Kennedy\nbetween the September 6 meeting and September 24, the\nnight of the shooting.\n\n Kennedy alleges that on several occasions, she inquired\ninto the status of the investigation of Michael Burns and\nreminded officers to notify her prior to any contact with the\nBurns family. She learned that Michael Burns had been inves-\ntigated for sending death threats to a classmate, but that the\ninvestigation concluded that he was not responsible. Kennedy\nasserts that she expressed concerns about her safety and told\nthe CAIC officer handling the investigation that she was anx-\nious to have the investigation started.\n\f KENNEDY v. RIDGEFIELD 7477\n On September 24, 1998, Kennedy called both Shields and\nthe CAIC to inquire into the progress of the investigation.\nKennedy left a message for Shields. The content of this mes-\nsage is disputed. Shields stated that when he arrived at work\non September 24, there was a message from Kennedy inquir-\ning about his contact with Angela Burns and the status of the\nmolestation case. Shields’s account clearly contradicts Kenne-\ndy’s repeated testimony that she asked the RPD and CAIC to\nnotify her prior to any contact with the Burns family. After\nreceiving Kennedy’s message, Shields called the CAIC to\ninquire into the status of the investigation. The officer respon-\nsible for the case was out so Shields left a message.\n\n Shields decided to drive to the Kennedy house and inform\nKennedy personally that he called the CAIC but did not know\nthe status of the case. Shields stated that he did not call Ken-\nnedy before driving to her house. On the way to the Kennedy\nhouse, Shields changed his mind and decided to go to the\nBurns’s residence first. He reasoned that it was on the way,\nand he could thus determine whether the Burns family had\nbeen contacted and so inform Kennedy. Shields talked to\nAngela Burns and informed her of Kennedy’s allegations.\n\n After speaking with Angela Burns, Shields proceeded to\nthe Kennedy house. When he arrived, Shields told Kennedy\nthat he had informed Angela Burns of the molestation allega-\ntions. Kennedy became upset and asked Shields why he had\ncontacted the Burns family prior to notifying her and told\nShields that she was in fear for her safety. Kennedy alleges\nthat Shields assured her that the police would patrol the area\naround her and Michael’s house to keep an eye on him.\n\n After Shields left, Kennedy called a friend because she was\nvery frightened of what Michael and Angela Burns’s reaction\nwould be. According to Kennedy, Shields told her Angela\nBurns was very angry after their conversation and Angela and\nMichael Burns began yelling at one another. Kennedy also\nalleges that her husband decided to stay the night at home\n\f7478 KENNEDY v. RIDGEFIELD\nbecause Shields had promised to patrol the premises. They\nplanned to lock the doors to the house and leave town early\nthe next morning. Kennedy also stated that she did not call\n911 that night because she relied upon Shields’s promise to\npatrol the area.\n\n Early on the morning of September 25, 1998, Michael\nBurns broke into the Kennedy house and shot Jay and Kim-\nberly Kennedy while they slept. Jay Kennedy died as a result\nof his injuries. Michael Burns was convicted of the premedi-\ntated murder of Jay Kennedy and attempted premeditated\nmurder of Kimberly Kennedy.\n\n Kennedy brought a lawsuit against Shields and Ridgefield\nCity, among others, in Clark County Superior Court asserting\nseveral state causes of action and a claim under 42 U.S.C.\n§ 1983 and the Fourteenth Amendment. The case was\nremoved to the United States District Court for the Western\nDistrict of Washington. On March 13, 2003, Shields and\nRidgefield City moved for summary judgment. The court\ngranted summary judgment to the defendants on all state law\nclaims and to Ridgefield City on Kennedy’s § 1983 “failure\nto train” claim.\n\n The court denied Shields’s motion for summary judgment\nbased on qualified immunity. The district court concluded that\nviewing the facts in a light most favorable to plaintiffs, “a jury\ncould find that Officer Shields unreasonably created a false\nsense of security in plaintiffs by agreeing to give plaintiffs\nadvanced notice of advising the Burns family of the allegation\nthat Michael Burns sexually molested Tera Teufel, and assur-\ning the plaintiffs of a neighborhood patrol.” Order, p. 4-5.\nThis interlocutory appeal followed.\n\n II. Analysis\n\n This case presents two legal issues. First, we must consider\nwhether this Court has jurisdiction over Shields’s interlocu-\n\f KENNEDY v. RIDGEFIELD 7479\ntory appeal concerning his qualified immunity defense. If so,\nwe must then determine whether Shields is entitled to quali-\nfied immunity under the facts of this case.\n\n We review de novo an interlocutory appeal from the denial\nof summary judgment based on qualified immunity. Wilkins\nv. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003). In\nreviewing a summary judgment order in a § 1983 action\nwhere the district court determines that “the defendant’s\nalleged conduct violated the plaintiff’s clearly established\nconstitutional rights . . . we resolve all factual disputes in\nfavor of the plaintiff . . . .” Cunningham v. City of Wenatchee,\n345 F.3d 802, 807 (9th Cir. 2003).\n\nA. Jurisdiction over Qualified Immunity Claims on\nInterlocutory Appeal\n\n In response to Shields’s interlocutory appeal, Kennedy\nargues first that this Court lacks jurisdiction. We disagree, and\nconclude that we have jurisdiction to determine whether the\ntrial court erred in holding that Shields was not entitled to\nqualified immunity.\n\n [1] As a general rule, interlocutory appeals from determina-\ntions of qualified immunity are permissible. In Mitchell v.\nForsyth, 472 U.S. 511 (1985), the Supreme Court held that\nthe denial of a defendant’s motion for summary judgment is\nimmediately appealable where the defendant is a public offi-\ncial asserting the defense of qualified immunity and the issue\nappealed concerns whether the facts demonstrated a violation\nof clearly established law.\n\n [2] Kennedy correctly notes that the Court created an\nexception to this general rule in Johnson v. Jones, 515 U.S.\n304 (1995). There, the Court held that “a defendant, entitled\nto invoke a qualified immunity defense, may not appeal a dis-\ntrict court’s summary judgment order insofar as that order\ndetermines whether or not the pretrial record sets forth a ‘gen-\n\f7480 KENNEDY v. RIDGEFIELD\nuine’ issue of facts for trial.” Id. at 319-20. In ruling against\nShields’s motion for summary judgment based on his claim of\nqualified immunity, the trial court stated:\n\n Viewed in a light most favorable to plaintiffs, a jury\n could find that Officer Shields unreasonably created\n a false sense of security in plaintiffs by agreeing to\n give plaintiffs advance notice of advising the Burns\n family of the allegation that Michael Burns had sex-\n ually molested Tera Teufal, and assuring the plain-\n tiffs of a neighborhood patrol. . . . In essence there\n is a question of fact as to whether or not there was\n justifiable reliance by plaintiffs on the alleged prom-\n ises by Shields.\n\nOrder at 4-5. Thus, the trial court’s order observes that issues\nof fact remain.\n\n This does not, however, suffice to deprive us of jurisdiction\nunder Johnson. In a subsequent case, the Supreme Court\nexplained:\n\n Denial of summary judgment often includes a deter-\n mination that there are controverted issues of mate-\n rial fact, see Fed. Rule Civ. Proc. 56, and Johnson\n surely does not mean that every such denial of sum-\n mary judgment is nonappealable. Johnson held, sim-\n ply, that determinations of evidentiary sufficiency at\n summary judgment are not immediately appealable\n merely because they happen to arise in a qualified-\n immunity case. . . . Johnson reaffirmed that sum-\n mary judgment determinations are appealable when\n they resolve a dispute concerning an ‘abstract issu[e]\n of law’ relating to qualified immunity . . . typically,\n the issue whether the federal right allegedly\n infringed was ‘clearly established.’\n\nBehrens v. Pelletier, 516 U.S. 299, 312-13 (1996). See also\nKnox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.\n\f KENNEDY v. RIDGEFIELD 7481\n1997) (“[W]e have jurisdiction over an interlocutory appeal\nfrom the denial of qualified immunity where the appeal\nfocuses on whether the defendants violated a clearly estab-\nlished law given the undisputed facts, while we do not have\njurisdiction over an interlocutory appeal that focuses on\nwhether there is a genuine dispute about the underlying\nfacts.”).\n\n Unlike the appeal in Johnson, we are not asked or required\nto look at the sufficiency of the evidence in support of the fac-\ntual claims made by the parties, i.e., Shields’s contention that\nhe did not create a false sense of security and Plaintiff’s insis-\ntence that he did. See Johnson, 515 U.S. at 313 (holding that\nsome orders denying summary judgment, “though entered in\na ‘qualified immunity’ case, determine[ ] only a question of\n‘evidence sufficiency,’ i.e., which facts a party may, or may\nnot, be able to prove at trial. This kind of order, we conclude,\nis not appealable.”).\n\n [3] Here, while the trial court concluded that issues of fact\nremain, those disputed facts are not the basis of Shields’s\ninterlocutory appeal of the denial of qualified immunity.\nRather, Shields’s appeal contends that even after resolving the\nissues of fact in Plaintiff’s favor, the Plaintiff will not have\ndemonstrated that Shields violated a clearly established con-\nstitutional right. Because this question represents an “abstract\nissue of law relating to qualified immunity” it falls within our\njurisdiction on interlocutory appeal.\n\n Assuming the facts as alleged by Plaintiff, we must deter-\nmine whether the Defendant violated Plaintiff’s constitutional\nrights and whether those rights were clearly established. If\nShields’s conduct did not violate Plaintiff’s clearly estab-\nlished constitutional rights, he is entitled to qualified immu-\nnity. We now turn to those questions.\n\nB. Application of Qualified Immunity to Officer Shields\n\n We conclude that Shields’s conduct, as alleged by Plaintiff,\nviolated her constitutional rights. Furthermore, we conclude\n\f7482 KENNEDY v. RIDGEFIELD\nthat the constitutional rights violated by Shields’s alleged con-\nduct were clearly established at that time.\n\n In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme\nCourt established a two-prong analysis for qualified immunity\ncases. First, a court must determine whether the facts alleged\n(resolving all disputes of fact in favor of the party asserting\nthe injury) show that the officer’s conduct violated a constitu-\ntional right. “Taken in the light most favorable to the party\nasserting the injury, do the facts alleged show the officer’s\nconduct violated a constitutional right? This must be the ini-\ntial inquiry.” Saucier, 533 U.S. at 201. If the court determines\nthat the conduct did not violate a constitutional right, the\ninquiry is over and the officer is entitled to qualified immu-\nnity.\n\n If, however, the court determines that the conduct did vio-\nlate a constitutional right, the second prong under Saucier\nrequires the court to determine whether the violated right was\n“clearly established.” A right is clearly established if the\n“contours of the right [are] sufficiently clear that a reasonable\nofficial would understand that what he is doing violates that\nright.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 640\n(1987)). Even if the violated right is clearly established, the\nSaucier Court recognized that it may be difficult for a police\nofficer to determine how to apply the relevant legal doctrine\nto the particular circumstances he or she faces. The Saucier\nCourt therefore held that if the officer makes a mistake in\napplying the relevant legal doctrine, he or she is not precluded\nfrom claiming qualified immunity so long as the mistake is\nreasonable. That is, if “the officer’s mistake as to what the\nlaw requires is reasonable . . . the officer is entitled to the\nimmunity defense.” 533 U.S. at 205. We now take up those\nquestions.\n\n1. First Prong: Did Shields Violate Kennedy’s\nConstitutional Rights?\n\n [4] The Plaintiff alleges that the Defendant violated her\n14th Amendment right to substantive due process under the\n\f KENNEDY v. RIDGEFIELD 7483\n“state-created danger” doctrine. In DeShaney v. Winnebago\nCounty Dep’t of Soc. Serv., 489 U.S. 189, 196 (1989), the\nSupreme Court held that the Due Process Clause “is phrased\nas a limitation on the State’s power to act, not as a guarantee\nof certain minimal levels of safety and security.” Since the\nDue Process Clause does not require the state to provide its\ncitizens with a minimum level of security, it follows that the\nstate cannot be held liable for failing to do so. Id. at 196-97.\n\n Two exceptions to DeShaney exist. Under the “special rela-\ntionship” doctrine, the state can be held liable for a third\nparty’s harm where the state has custody over the plaintiff.\nUnder this exception, “ ‘when the State takes a person into its\ncustody and holds him there against his will, the Constitution\nimposes some responsibility for [that person’s] safety and\ngeneral well-being.’ ” Wang v. Reno, 81 F.3d 808, 818 (9th\nCir. 1996) (quoting DeShaney, 489 U.S. at 199-200). Here,\nPlaintiff does not allege that Shields ever had custody over\nher or her husband; consequently, this exception is inapplica-\nble.\n\n [5] The “state-created danger” doctrine represents the sec-\nond recognized exception to DeShaney’s rule against holding\nstate officials liable for private violence. Under this theory,\nplaintiffs can recover “when a state officer’s conduct places\na person in peril in deliberate indifference to their safety.”\nPenilla v. City of Huntington Park, 115 F.3d 707, 709 (9th\nCir. 1997). This Circuit first recognized liability based on\nstate created danger in Wood v. Ostrander, 879 F.2d 583 (9th\nCir. 1989). In Wood, a state trooper determined that the driver\nof an automobile was intoxicated, arrested the driver and\nimpounded the car. The officer left Wood, a passenger in the\ncar, stranded late at night in a high-crime area. Wood\naccepted a ride from a passing car and was subsequently\nraped. This Court held that Wood could claim § 1983 liability,\nsince there was a genuine issue of fact “that [the trooper]\nacted with deliberate indifference to Wood’s interest in per-\nsonal security under the fourteenth amendment.” Id. at 588.\n\f7484 KENNEDY v. RIDGEFIELD\n Since Wood, this Circuit has held state officials liable for\nthe creation of danger in a variety of circumstances. In L.W.\nv. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992), this Court\nfound that state employees could be liable for the rape of a\nregistered nurse assigned to work alone in the medical clinic\nof a medium-security custodial institution with a violent sex\noffender. In Munger v. City of Glasgow, 227 F.3d 1082 (9th\nCir. 2000), this Court found that police officers could be held\nliable for ejecting a visibly drunk patron from a bar on a bit-\nterly cold night.\n\n [6] To find an officer liable under the “state-created dan-\nger” theory, a plaintiff must show that the officer’s actions\ncreated or increased the danger facing him or her. Second, the\nplaintiff must demonstrate that the state official acted with\ndeliberate indifference to a known or obvious danger. Inter-\npreting the facts in a manner most favorable to Plaintiff, we\nconclude that Shields did in fact augment the danger Plaintiff\nand her husband faced and acted with deliberate indifference\nto a known or obvious danger. Plaintiff has therefore demon-\nstrated that her constitutional rights were violated and so sat-\nisfied the first prong under Saucier.\n\na. Danger Affirmatively Created or Increased Due to\nState Action\n\n [7] First, Shields’s affirmative actions placed the Kennedy\nfamily in a situation of danger greater than they would have\nfaced had he not acted at all. Shields does not dispute that the\nrevelation to Michael Burns’s mother of the allegations of\nsexual abuse against Michael Burns triggered his actions\nagainst Plaintiff and her husband. In revealing the existence\nof allegations against Michael to Angela Burns after having\npromised Kennedy that he would notify her first, Shields cre-\nated a situation of heightened danger. It was inevitable that\nMichael Burns would eventually learn of the allegations made\nagainst him, and he would likely infer who had made them.\nIf Kennedy had received the prior warning officer Shields\n\f KENNEDY v. RIDGEFIELD 7485\npromised her, she and her family could have taken additional\nprecautions. Instead, they relied on Shields’s promise of\nadvance notification and so considered additional precautions\nunnecessary.\n\n [8] Moreover, Shields further augmented this danger by\noffering false assurances that the police would patrol the Ken-\nnedy’s neighborhood the night of the shooting. Misrepresenta-\ntion of the risk faced by a plaintiff can contribute to a finding\nof state-created danger. See Grubbs, 974 F.2d at 121 (“The\nDefendants also enhanced L.W.’s vulnerability to attack by\nmisrepresenting to her the risks attending her work.”). Plain-\ntiff alleges that she and her husband based their decision to\nremain at home that night and leave in the morning in reliance\non Shields’s assurances that the neighborhood would be\npatrolled. Defendant’s affirmative promise of a police patrol\nthus influenced Plaintiff’s assessment of the risk she and her\nfamily faced.\n\nb. Deliberate Indifference\n\n Second, resolving all factual disputes in Plaintiff’s favor,\nShields acted with deliberate indifference. “ ‘[D]eliberate\nindifference’ is a stringent standard of fault, requiring proof\nthat a municipal actor disregarded a known or obvious conse-\nquence of his actions.” Bryan County v. Brown, 520 U.S. 397,\n410 (1997). See also Christie v. Iopa, 176 F.3d 1231, 1240\n(9th Cir. 1999). Here, Plaintiff has alleged that the conse-\nquences of Shields’s actions were obvious: first, that once\ninformed of the allegations against him, Michael Burns would\nattempt to harm the Kennedy family; and second, that having\nbeen assured by Shields’s promise to provide police protec-\ntion, the Kennedy family would rely upon that promise.\n\n [9] Resolving factual disputes in Kennedy’s favor, the\nrecord supports her assertion that Shields should have recog-\nnized the obvious consequences of his actions. Most signifi-\ncantly, Plaintiff specifically asked Shields to give her advance\n\f7486 KENNEDY v. RIDGEFIELD\nnotification because she feared for the safety of her family. In\naddition, Plaintiff herself had previously informed Shields of\nMichael Burns’s violent tendencies, including an incident in\nwhich Michael Burns had broken into a girlfriend’s home.\nShields also knew of a separate investigation in which school\nauthorities suspected (albeit erroneously) that Michael Burns\nsent death threats to another student. Finally, on the night of\nthe attack, Plaintiff informed Shields directly that he had\nplaced her family in danger by informing the Burns family of\nthe allegations against Michael prior to notifying the Kennedy\nfamily. Under these circumstances, the obvious consequence\nof informing Angela Burns prior to the Kennedy family and\nof falsely assuring the Kennedy family of police protection\nwas to increase the risk the Kennedy family faced from\nMichael Burns.\n\n2. Second Prong: Was the Right Violated Clearly\nEstablished?\n\n When all the factual issues are resolved in Plaintiff’s favor,\nwe find Shields’s alleged conduct violated Kennedy’s consti-\ntutional rights. We turn to the second prong of the Saucier\ntest, and consider whether the constitutional right violated by\nShields’s conduct was “clearly established” in September\n1998. We conclude for the reasons set out below that it was.\nTo determine whether a right is clearly established, the\nreviewing court’s inquiry must consider whether a reasonable\nofficer would recognize that his conduct violates that right\nunder the circumstances and in light of the law that existed at\nthat time. As the Supreme Court explained:\n\n For a constitutional right to be clearly established, its\n contours must be sufficiently clear that a reasonable\n official would understand that what he is doing vio-\n lates that right. This is not to say that an official\n action is protected by qualified immunity unless the\n very action in question has previously been held\n\f KENNEDY v. RIDGEFIELD 7487\n unlawful . . . but it is to say that in the light of pre-\n existing law the unlawfulness must be apparent.\n\nHope v. Pelzer, 536 U.S. 730, 739 (2002) (citing Anderson v.\nCreighton, 483 U.S. 635, 640 (1987) (internal citations omit-\nted); see also Flores v. Morgan Hill Unified Sch. Dist., 324\nF.3d 1130, 1136-37 (9th Cir. 2003) (“In order to find that the\nlaw was clearly established . . . we need not find a prior case\nwith identical, or even ‘materially similar’ facts.”). Thus, the\nalleged conduct need not explicitly have been previously\ndeemed unconstitutional, but existing case law must make it\nclear that the conduct violated constitutional norms. More-\nover, “[t]he plaintiff bears the burden of showing that the\nright at issue was clearly established under this second\nprong.” Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).\n\n In September of 1998, it was clearly established that state\nofficials could be held liable where they affirmatively and\nwith deliberate indifference placed an individual in danger. In\n1989, this Court recognized the theory of state-created danger\nin Wood. However, it is not enough to claim that a constitu-\ntional right was clearly established in its broad outlines. First,\n“the right allegedly violated must be defined at the appropri-\nate level of specificity before a court can determine if it was\nclearly established.” Wilson v. Layne, 526 U.S. 603, 615\n(1999). The appropriate level of specificity must take into\naccount the actual circumstances of the case, for the inquiry\ninto whether the right is clearly established “must be\nundertaken in light of the specific context of the case, not as\na broad general proposition.” Saucier, 533 U.S. at 201. In\nSaucier, the Court rejected the idea that the plaintiff could\ndefeat the defendant’s claim of qualified immunity merely by\ndemonstrating that use of force violates the Fourth Amend-\nment if it is excessive under objective standards of reason-\nableness.\n\n [10] Kennedy may not defeat Shields’s claim of qualified\nimmunity merely by demonstrating that police actions vio-\n\f7488 KENNEDY v. RIDGEFIELD\nlated the Fourteenth Amendment if they affirmatively created\nor enlarged danger facing a plaintiff and did so with deliberate\nindifference. To satisfy her burden and demonstrate that\nShields violated a clearly established constitutional right,\nPlaintiff must go further. “The salient question . . . . is\nwhether the state of the law [at the time of the alleged wrong]\ngave respondents fair warning that their alleged treatment of\n[the petitioner] was unconstitutional.” Hope, 536 U.S. at 741.\nThat is, Kennedy must demonstrate, based on the state of the\nlaw in 1998, that Shields was on notice that informing Angela\nBurns of Kennedy’s allegations prior to warning the Kennedy\nfamily and falsely promising a police patrol that evening\nwould violate Kennedy’s constitutional rights. Resolving all\nfactual disputes in her favor, we conclude that Kennedy has\nmet this burden. Consequently, we hold that Shields is not\nentitled to have his motion for summary judgment on the\nbasis of qualified immunity.\n\n [11] Both of Kennedy’s claims against Shields amount to\nverbal promises that were relied upon and then not kept. This\nCourt has previously held officers liable under a state-created\ndanger doctrine where they falsely induce reliance by promis-\ning additional protection or warnings. In Grubbs, 974 F.2d\n119, a registered nurse working at a medium security custo-\ndial institution was raped and terrorized by a young male\ninmate. The nurse brought a § 1983 claim against her supervi-\nsors. According to the plaintiff, her employer had told her she\nwould not be working alone with violent sex offenders. Not-\nwithstanding that representation, her employer subsequently\nallowed an inmate prone to violence against women to work\nwith her unsupervised. The plaintiff, relying upon that repre-\nsentation, did not take all the precautions she might otherwise\nhave taken, and was subsequently raped.\n\n [12] The Grubbs Court recognized that cognizable state-\ncreated harm claims may arise where state officials induce\nreliance by means of verbal promises that are later broken. In\nGrubbs, the plaintiff obviously recognized that she faced\n\f KENNEDY v. RIDGEFIELD 7489\nsome risk, because she was working in a custodial institution\nwith male offenders. She did not realize, however, that the\ndefendants would place her in close unsupervised proximity\nwith an individual with a history of violence against women.\nIt was in part because the conduct of the defendants increased\nthe risk she faced without her knowledge that the Grubbs\nCourt found them to have violated her constitutional rights.\n“Defendants . . . enhanced L.W.’s vulnerability to attack by\nmisrepresenting to her the risks attending her work.” Id. at\n121. Thus, the Grubbs Court concluded that officials may be\nheld liable where they claim to offer protection they do not\nprovide and so misrepresent the risk posed by third-parties to\na plaintiff. Consequently, Shields’s conduct violated Plain-\ntiff’s clearly established constitutional right.\n\n Like the plaintiff in Grubbs, Kennedy was aware of the\nunderlying risk, yet reasonably underestimated it based on\nShields’s representations. His alleged conduct both increased\nand misrepresented the risk that Michael Burns posed to Ken-\nnedy and her family. Shields purportedly told Kennedy that he\nwould warn her before telling the Burns family of the allega-\ntions against Michael Burns, and then failed to do so. Further-\nmore, Kennedy has also alleged that Shields falsely told her\nthat he would patrol her neighborhood the night the allega-\ntions against Michael Burns were revealed to his family. If\neither or both of these allegations were proved at trial, a jury\ncould reasonably find Kennedy relied upon such promises of\nadditional protection in evaluating the risks Michael Burns\nposed to her family. Furthermore, under the circumstances\nalleged by Plaintiff, Shields would have acted unreasonably in\npromising prior notification and additional police protection,\ninducing reliance, and then failing to perform.\n\n III. CONCLUSION\n\n Under Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996),\nwe have jurisdiction to hear Shields’s interlocutory appeal\nregarding qualified immunity. We conclude that Shields\n\f7490 KENNEDY v. RIDGEFIELD\nunreasonably violated Kennedy’s clearly established constitu-\ntional right. Under the state-created danger doctrine, a police\nofficer may be liable for actions that create or augment known\nor obvious dangers. Here, Shields’s actions both increased\nand misrepresented the risk Plaintiff faced. Under Grubbs,\nincreasing and misrepresenting a known risk may give rise to\n§ 1983 liability. This doctrine was clearly established by the\ntime the events of this case took place. Accordingly, the trial\ncourt’s denial of Shields’s motion for summary judgment\nbased on qualified immunity is hereby\n\n AFFIRMED.\n\n\n\nBYBEE, Circuit Judge, concurring in part and dissenting in\npart:\n\n I vigorously part company with the majority’s conclusion\nthat Shields created the danger Kennedy faced and then acted\nwith deliberate indifference, thereby violating her rights under\nthe Due Process Clause of the Fourteenth Amendment. The\nmajority’s conclusion is unsupported by the record and our\nown case law. The majority concludes that in the fifteen min-\nutes between the time Officer Shields contacted Angela Burns\nand the time he advised Kim Kennedy of the contact, he\ndeprived Kennedy of her due process rights. In so doing, the\nmajority not only mangles the state-created danger doctrine,\nit holds that its new rule was so clearly established that Offi-\ncer Shields should have known he was violating the Constitu-\ntion and, thus, has forfeited his qualified immunity.\n\n We have never before recognized a state-created danger\ncause of action on facts remotely analogous to these. In the\nsixteen years since we invented the state-created danger\nexception to DeShaney, we have approved it on fewer than\nfive occasions. In these cases we have narrowly construed the\nexception to encompass only claims in which the govern-\n\f KENNEDY v. RIDGEFIELD 7491\nment’s act was directed toward a specific plaintiff, rather than\nthe public at large; the government acted affirmatively, rather\nthan simply failed to act; the government’s act caused the\nharm, rather than merely increased the risk; and the govern-\nment’s action constituted deliberate indifference to the known\nor obvious danger, rather than mere negligence, or even gross\nnegligence. Ignoring these elements, the majority today\nextends the state-created danger doctrine to a situation in\nwhich it cannot be said with any measure of confidence either\nthat the government’s act caused the plaintiff’s harm or that\nthe government acted with the requisite level of culpability.\n\n Even if I thought Officer Shields had violated our state-\ncreated danger gloss on the Due Process Clause, the violation\nwas surely not so obvious that he should have known at the\ntime that he was violating Kennedy’s constitutional rights.\nConsequently, even assuming a constitutional violation, I\nwould hold that Officer Shields is nonetheless entitled to\nqualified immunity. I respectfully dissent.1\n\n I. BACKGROUND\n\n The facts of this case are undeniably tragic. As outlined in\nKennedy’s complaint, her deposition testimony, and as deter-\nmined by the district court, these facts show that on Septem-\nber 6, 1998 Kennedy filed a complaint with the City of\nRidgefield Police Department (“RPD”) accusing her neigh-\nbor, Michael Burns, of sexually molesting her nine-year-old\ndaughter. Officer Shields was dispatched to Kennedy’s home\nto record the complaint.\n\n Kennedy recalls talking with Officer Shields about the\ninstability of the Burns family. She alleges that she informed\nShields that the Burns family “had bad tempers” and that\nMichael was in trouble all the time, including one unfruitful\n 1\n Although I dissent on the merits, I agree with the majority’s conclusion\nthat we have jurisdiction to hear this interlocutory appeal.\n\f7492 KENNEDY v. RIDGEFIELD\ninvestigation for allegedly sending a death threat to a class-\nmate; he also once threw rocks at his stepfather’s building. On\nanother occasion, Michael reportedly lit a cat on fire, and later\nunlawfully entered his girlfriend’s house “and went after her\nwith a baseball bat” after she broke up with him. On the basis\nof this alleged misconduct, Kennedy requested prior notifica-\ntion before the Burns family was informed of her allegations.\n\n Following her initial complaint, Kennedy repeatedly con-\ntacted RPD — at least six times during the eighteen days fol-\nlowing her complaint — regarding the status of the\ninvestigation. On September 24, Kennedy called Officer\nShields directly to determine whether the Burns family was\naware of her allegations. Unable to reach Shields by phone,\nshe left a message. In response to her inquiry, Shields pro-\nceeded to the Burns’ home to ascertain whether the family\nhad been notified. Shields was greeted by Angela Burns\n(Michael Burns’s mother) and Shields asked her whether she\nhad received a phone call or visit from the Child Abuse and\nIntervention Center (“CAIC”). Angela Burns inquired as to\nthe reason for his question, and Shields advised Angela of the\nallegations.\n\n Immediately following this meeting, Shields drove directly\nto Kennedy’s residence — located approximately one block\naway — and informed her that Angela Burns had been noti-\nfied of her allegations. Kennedy alleges that she expressed\nfear regarding Michael Burns’s possible reaction. She further\nalleges that, in response to her expressions, Officer Shields\npromised to increase surveillance in the area that night to\nwatch for Michael. After discussing the matter with her hus-\nband, Kennedy chose to remain in her home that evening and\nleave town the following morning. Michael Burns entered the\nKennedy home that night, shot and killed Jay Kennedy and\nseriously wounded Kim Kennedy. She now brings this action\nagainst Officer Shields, claiming that his conduct violated her\nrights under the Due Process Clause of the Fourteenth\nAmendment.\n\f KENNEDY v. RIDGEFIELD 7493\n II. SAUCIER TWO-STEP\n\n The Court’s opinion in Saucier v. Katz, 533 U.S. 194\n(2001), as the majority notes, provides the framework for our\nanalysis of this § 1983 suit. Under this framework, if a defen-\ndant claims qualified immunity, we must make two distinct\ninquiries: a “constitutional inquiry” and a “qualified immunity\ninquiry.” See Estate of Ford v. Ramirez-Palmer, 301 F.3d\n1043, 1049 (9th Cir. 2002).\n\n Officer Shields claims that he is entitled to qualified immu-\nnity from Kennedy’s suit. Accordingly, Saucier instructs that\nwe must first determine whether, “[t]aken in the light most\nfavorable to the party asserting the injury . . . the facts alleged\nshow the officer’s conduct violated a constitutional right.”\nSaucier, 533 U.S. at 201. “[I]f a violation could be made out\non a favorable view of the parties’ submissions, the next,\nsequential step is to ask whether the right was clearly estab-\nlished . . . in light of the specific context of the case” such that\n“it would be clear to a reasonable officer that his conduct was\nunlawful in the situation he confronted.” Id. at 201-02 (citing\nWilson v. Layne, 526 U.S. 603, 615 (1999)).\n\n The majority concludes that Kennedy’s allegations permit\na jury to find that Officer Shields’s conduct deprived her of\ndue process as guaranteed by the Fourteenth Amendment on\nthe theory that Shields affirmatively created the danger that\ninjured her and took her husband’s life. The majority holds,\nin addition, that Officer Shields is not entitled to qualified\nimmunity for this violation. I disagree on both accounts. To\nexplain my disagreement on the first point, it is worth briefly\noutlining our court’s gloss on DeShaney and the Fourteenth\nAmendment’s Due Process Clause.\n\nA. State-Created Danger Doctrine\n\n As the majority observes, the state-created danger doctrine\nis said to trace its jurisprudential pedigree to the Supreme\n\f7494 KENNEDY v. RIDGEFIELD\nCourt’s opinion in DeShaney, perhaps best known for Justice\nBlackmun’s exclamation, “Poor Joshua!” DeShaney v. Winne-\nbago County Dep’t of Soc. Serv., 489 U.S. 189, 213 (1989)\n(Blackmun, J. dissenting). Declining to find a due process\nviolation where local officials failed to adequately respond to\ncomplaints that four-year-old Joshua was being abused by his\nfather, the Court held that the Constitution does not require\nthe state to protect the life, liberty, and property of its citizens\nagainst invasion by private actors. Rather, the Due Process\nClause “is phrased as a limitation on the State’s power to act,\nnot as a guarantee of certain minimal levels of safety and\nsecurity.” Id. at 195. The Court observed,\n\n Like its counterpart in the Fifth Amendment, the\n Due Process Clause of the Fourteenth Amendment\n was intended to prevent government from abusing its\n power, or employing it as an instrument of oppres-\n sion[.] Its purpose was to protect the people from the\n State, not to ensure that the State protected them\n from each other. The Framers were content to leave\n the extent of governmental obligation in the latter\n area to the democratic political processes. Consistent\n with these principles, our cases have recognized that\n the Due Process Clauses generally confer no affir-\n mative right to governmental aid, even where such\n aid may be necessary to secure life, liberty, or prop-\n erty interests of which the government itself may not\n deprive the individual. . . . [I]t follows that the State\n cannot be held liable under the Clause for injuries\n that could have been averted had it chosen to provide\n them.\n\nId. at 196-97 (internal quotation marks and citations omitted).\n\n We have noted two distinct exceptions to the general rule\nthat the state has no affirmative duty to protect persons from\nviolence inflicted by private actors: (1) the “special relation-\nship” exception, stemming from a custodial relationship\n\f KENNEDY v. RIDGEFIELD 7495\nbetween the state and the victim; and (2) the “danger cre-\nation” exception, stemming from “affirmative conduct on the\npart of the state in placing the plaintiff in danger.” L.W. v.\nGrubbs, 974 F.2d 119, 121 (9th Cir. 1992) (“Grubbs I”). The\nformer emanates from explicit language in DeShaney itself.\nDeShaney, 489 U.S. at 199-200 (“[W]hen the State takes a\nperson into its custody and holds him there against his will,\nthe Constitution imposes upon it a corresponding duty to\nassume some responsibility for his safety and general well-\nbeing”). The latter, more amorphous, doctrine of “state-\ncreated danger” was developed by lower courts in response to\nthe Court’s observation, in DeShaney, that Winnebago\nCounty neither helped to create the dangers that Joshua faced\nnor rendered him more vulnerable to those dangers.\nDeShaney, 489 U.S. at 201 (“While the State may have been\naware of the dangers that Joshua faced . . . it played no part\nin their creation, nor did it do anything to render him any\nmore vulnerable to them.”).\n\n 1. Ninth Circuit Cases\n\n Four months after DeShaney, we established the state-\ncreated danger theory, recognizing a cognizable due process\nviolation where the plaintiff alleged that she was raped after\na state trooper impounded the vehicle in which she was rid-\ning, ejected her from the vehicle, and left her stranded in a\nhigh-crime area in the middle of the night. Wood v. Ost-\nrander, 879 F.2d 583 (9th Cir. 1989). In holding that Wood\nraised a triable issue of fact as to whether Trooper Ostrander’s\nconduct violated her substantive due process rights, we drew\na distinction between facts demonstrating that police action\ncreated the danger to the person and facts demonstrating a\ndanger that existed without police action. Wood, 879 F.2d at\n589-90. Relying on Deshaney, we held that a substantive due\nprocess claim could be stated when police create the danger\nto an individual. We reasoned that “[t]he fact that Ostrander\narrested [the driver], impounded his car, and apparently\nstranded Wood in a high-crime area at 2:30 a.m. distinguished\n\f7496 KENNEDY v. RIDGEFIELD\nWood from the general public and triggered a duty of the\npolice to afford her some measure of peace and safety.” Id. at\n590. Reversing the district court’s summary judgment for\ndefendants, we concluded that the plaintiff’s allegations dem-\nonstrated “an assertion of government power which . . . tends\nto show a disregard for [her] safety amounting to deliberate\nindifference.” Id. at 588.\n\n We further defined the contours of the state-created danger\ntheory in Grubbs I, in which a registered nurse employed by\nthe state of Oregon at a medium-security custodial institution\nbrought suit against state prison officials after she was bat-\ntered, kidnaped, robbed and raped by an inmate with known\nviolent propensities. 974 F.2d at 120. The plaintiff alleged\nthat she was led to believe that she would not have to work\nalone with residents who were known violent sex offenders.\nId. Finding a cognizable due process violation, we empha-\nsized that the state had knowledge of the inmate’s dangerous\npropensities, and it affirmatively assigned him a job in which\nhe would work alone with the plaintiff. Id. at 121. We con-\ncluded that the defendants, like the officer in Wood, “used\ntheir authority as state correctional officers to create an oppor-\ntunity for [the inmate] to assault [the plaintiff] that would not\notherwise have existed.” Id. (emphasis added). We further\nobserved that the defendants “enhanced [the plaintiff’s] vul-\nnerability to attack by misrepresenting to her the risks attend-\ning her work;” namely, by leading her to believe that she\nwould not be assigned to work alone with any inmates who\nwere known violent sex offenders. Id.\n\n Contrary to the majority’s suggestion, the “enhanced vul-\nnerability” that ensued from the state’s misrepresentation of\nthe risks that the nurse would face in her employment did not,\nby itself, give rise to the due process violation recognized in\nGrubbs I. Maj. Op. at 7485, 7489. Indeed, under DeShaney,\nit is, at the very least, questionable whether a state’s failure\nto fully apprise an individual of the risks attending her\nemployment can ever constitute an affirmative exercise of\n\f KENNEDY v. RIDGEFIELD 7497\nstate power sufficient to give rise to a due process violation.\nSee DeShaney, 489 U.S. at 201-02 (suggesting that the affir-\nmative exercise of state power, as opposed to mere inaction,\nis the minimum threshold requirement necessary to establish\na due process violation, and declining to find such affirmative\nexercise even in the context of an elaborate and exclusive sys-\ntem of child-protection services). Rather, Grubbs I more accu-\nrately stands for the proposition that in order to state a claim\nbased on state-created danger the state must affirmatively play\na part in creating the danger. See Grubbs I, 974 F.2d at 121\n(“The ‘danger creation’ basis for a claim . . . necessarily\ninvolves affirmative conduct on the part of the state in placing\nthe plaintiff in danger.”). See also Munger v. City of Glasgow\nPolice Dept., 227 F.3d 1082, 1086 (9th Cir. 2000) (noting that\nthe court in a state-created danger case “must determine\nwhether [the state] did in fact affirmatively place [the plain-\ntiff] in danger”).\n\n On appeal from our remand of Grubbs I to the district\ncourt, we addressed the level of culpability required to prevail\nunder a state-created danger theory. See L.W. v. Grubbs, 92\nF.3d 894 (9th Cir. 1996) (“Grubbs II”). Explicitly rejecting a\n“gross negligence” standard, we held that “the plaintiff must\nshow that the state official participated in creating a danger-\nous situation, and acted with deliberate indifference to the\nknown or obvious danger in subjecting the plaintiff to it.” Id.\nat 900 (emphasis added). See also Wood, 879 F.2d at 588.\n\n In an effort to further demarcate the outer-bounds of the\nstate-created danger doctrine, our subsequent cases have only\nhighlighted the requirement that, at a minimum, a state-\ncreated danger due process claim must have as its basis the\naffirmative exercise of state power creating a risk which, but\nfor the state’s affirmative action, would not have existed. For\ninstance, in Penilla v. City of Huntington Park, 115 F.3d 707,\n710 (9th Cir. 1997), we found a due process violation where\npolice officers responded to a 911 call, “examined [the plain-\ntiff], found him to be in grave need of medical care, canceled\n\f7498 KENNEDY v. RIDGEFIELD\nthe request for paramedics, broke the lock and door jamb on\nthe front door of [the plaintiff’s] residence, moved him inside\nthe house, locked the door, and left.” Id. at 708. Under these\ncircumstances, we determined that the state created a danger\nto the plaintiff which, but for its affirmative unlawful acts,\nwould not have existed. Likewise, in Munger, we found a\ncognizable due process violation where police officers ejected\nthe plaintiff from a bar late at night when the outside tempera-\ntures were subfreezing. 227 F.3d at 1087. Although the offi-\ncers knew that the plaintiff was intoxicated and was wearing\nonly a t-shirt and jeans, they prevented him from driving his\ntruck or reentering the bar. Id. at 1086-87. Presented with\nthese facts, we held that the state affirmatively acted to place\nthe plaintiff in danger that would not have existed without\nstate action. Id. at 1087.\n\n In those cases where we have declined to find a cognizable\ndue process violation, we have generally emphasized the\nunforeseeable nature of the plaintiff’s injuries, that the danger\nfacing the plaintiff existed independent of state action, or the\nabsence of the requisite mental state. For instance, in Huffman\nv. County of Los Angeles, 147 F.3d 1054, 1061 (9th Cir.\n1998), we declined to find municipal liability under § 1983\nwhere the plaintiff was shot during a barroom brawl with an\noff-duty deputy employed by the Los Angeles County Sher-\niff’s Department. Finding the risk to the plaintiff an unfore-\nseeable consequence of a county policy requiring off-duty\nofficers to carry a firearm, we held that “the danger-creation\nplaintiff must demonstrate, at the very least, that the state\nacted affirmatively, and with deliberate indifference, in creat-\ning a foreseeable danger to the plaintiff, leading to the depri-\nvation of the plaintiff’s constitutional rights.” Id. See also\nLawrence v. United States, 340 F.3d 952, 957 (9th Cir. 2003)\n(citing Wood, Penilla and Munger, and observing that “in\neach of the cases in which we have applied the danger-\ncreation exception, ultimate injury to the plaintiff was fore-\nseeable.”). Similarly, in Lawrence, 340 F.3d at 954, we\ndeclined to find a Fifth Amendment violation in a Bivens\n\f KENNEDY v. RIDGEFIELD 7499\naction where a juvenile plaintiff alleged that she was sexually\nabused by a convicted drug offender participating in the Fed-\neral Witness Security Program; the plaintiff alleged that the\noffender could not have obtained employment at a group\nhome where she was a resident but for the assistance of fed-\neral officers. Although we found it foreseeable that a con-\nvicted drug offender might attempt to distribute illegal drugs\nto children with whom he came into contact, we found the\nplaintiff’s injuries an unforeseeable consequence of the offi-\ncial action. Id. at 957.\n\n Finally, in Nicholas v. Wallenstein, 266 F.3d 1083 (9th Cir.\n2001), we declined to find that a county jail commander acted\nwith deliberate indifference to the known or obvious dangers\nfacing his employees when he disclosed their identities as per-\nsons who had been involved in the restraint and removal of\na deceased prisoner. The deceased prisoner’s family and\nfriends believed that personnel connected with the jail were\nresponsible for his death, and, upon learning their identities,\nharassed and assaulted the employees. Id. at 1085-86. Citing\nWood, the employees contended that their supervisors demon-\nstrated deliberate indifference by not promptly notifying them\nof the release of the records containing their identities and by\nnot taking steps to protect them from dangers that ultimately\nbecame apparent. Id. at 1087. We affirmed the district court’s\ngrant of summary judgment for defendants, reasoning that the\njail authorities could not have reasonably concluded that the\nprisoner’s family and friends would be likely to engage in\nopen violence.2\n 2\n There may be some latent dispute regarding whether the “proximate\ncause” requirement noted in Huffman, 147 F.3d at 1061, and Lawrence,\n340 F.3d at 954, is in addition to, or a mere rephrasing of, the requirement\nthat the danger to the plaintiff must have been “known or obvious” and the\nstate actor must have acted with deliberate indifference to the danger. See,\ne.g., Grubbs II, 92 F.3d at 899-900. Nonetheless, for purposes of the\ninstant case, the relevance of Huffman, Lawrence and Wallenstein derives\nsimply from their recognition that traditional causation principles are not\nwholly suspended in the context of a constitutional tort suit premised on\nstate-created danger.\n\f7500 KENNEDY v. RIDGEFIELD\n 2. Factors for Analysis\n\n As our cases illustrate, we typically consider a number of\nfactors in determining whether the plaintiff has successfully\nstated a due process violation: (1) whether the act was\ndirected toward a specific plaintiff or the public at large, see,\ne.g., Wood, 879 F.2d at 590 (reasoning that the state’s action\n“distinguish[ed] [the plaintiff] from the general public and\ntrigger[ed] a duty of the police to afford her some measure of\npeace and safety”); cf. Huffman, 147 F.3d at 1061 & n.4\n(expressing doubt as to whether the plaintiff must show that\n“the danger created by a state official is directed toward a par-\nticular plaintiff, as opposed to being directed toward the gen-\neral public”); (2) whether the government acted affirmatively\nor simply failed to act, see, e.g., Grubbs I, 974 F.2d at 121\n(requiring “affirmative conduct on the part of the state in plac-\ning the plaintiff in danger”); Munger, 227 F.3d at 1086\n(phrasing the inquiry as “whether [the state] did in fact affir-\nmatively place [the plaintiff] in danger”); (3) whether the gov-\nernment’s act caused the harm, see, e.g., Grubbs I, 974 F.2d\nat 121 (finding state-created danger where the state’s action\n“create[d] an opportunity for [the inmate] to assault [the\nplaintiff] that would not otherwise have existed” (emphasis\nadded)); Penilla, 115 F.3d at 708 (same); Munger, 227 F.3d\nat 1087 (same); and (4) whether the government acted with\nthe requisite culpability, see, e.g., Grubbs II, 92 F.3d at 899-\n900 (requiring the plaintiff to show that the state official\n“acted with deliberate indifference to the known or obvious\ndanger” (emphasis added)). Cf. Armijo v. Wagon Mound Pub.\nSch., 159 F.3d 1253, 1264 (10th Cir. 1998) (adding a fifth fac-\ntor which considers whether the government completely\nremoved all of the plaintiff’s protection); Russell v. Gregoire,\n124 F.3d 1079, 1093 n.10 (9th Cir. 1997) (stating, in dicta,\nthat “a state has no general duty to protect individuals against\npotential harm by third parties unless the state creates the dan-\nger and removes the individual’s ability to protect himself”\n(citations omitted)) . These factors closely parallel those used\nby other circuits recognizing the doctrine. See, e.g., Uhlrig v.\n\f KENNEDY v. RIDGEFIELD 7501\nHarder, 64 F.3d 567, 573 (10th Cir. 1995) (requiring the\nplaintiff to show that (1) he “was a member of a limited and\nspecifically definable group; (2) Defendants’ conduct put\n[him] and the other members of that group at substantial risk\nof serious, immediate and proximate harm; (3) the risk was\nobvious or known; (4) Defendants acted recklessly in con-\nscious disregard of that risk; and (5) such conduct, when\nviewed in total, is conscience shocking.”). My disagreement\nwith the majority’s findings and conclusions centers on the\nsecond, third and fourth factors.\n\n While the Supreme Court has yet to recognize the state-\ncreated danger doctrine, and the circuit courts have yet to con-\nstruct a unified approach either to the state-created danger\ninquiry or to the role that causation principles should play in\nthe analysis, each court recognizing the theory has required,\nat a minimum, a showing that the government’s act was the\n“but-for cause” that put the plaintiff in a position of danger\nshe would not otherwise have faced. See, e.g., Carlton v. Cle-\nburne County, 93 F.3d 505, 508 (8th Cir. 1996) (collecting\ncases and noting that in each case where a cognizable due\nprocess violation was found “the individuals would not have\nbeen in harm’s way but for the government’s affirmative\nactions.”); Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir.\n1993) (finding the evidence sufficient to support summary\njudgment for police officers where “without state interven-\ntion, the same danger would exist”); Salas v. Carpenter, 980\nF.2d 299, 309-10 (5th Cir. 1992) (holding the City not liable\nfor declining assistance from a SWAT team and taking a hard\nline with a hostage taker); Jackson v. City of Joliet, 715 F.2d\n1200, 1204-05 (7th Cir. 1983) (holding officers not liable\nbecause they “did not create but merely failed to avert dan-\nger” by not rescuing victims more promptly from a burning\ncar). We have never recognized a state-created danger where\nthe state was merely a “proximate cause” rather than the\ncause-in-fact of the plaintiff’s injuries. We have not imported\ncommon law tort principles to this doctrine. As the Court\nobserved in DeShaney, “It may well be that, by voluntarily\n\f7502 KENNEDY v. RIDGEFIELD\nundertaking to protect [the plaintiff] against a danger it con-\ncededly played no part in creating, the State acquired a duty\nunder state tort law to provide him with adequate protection\nagainst that danger. . . . But the claim here is based on the Due\nProcess Clause of the Fourteenth Amendment, which, as we\nhave said many times, does not transform every tort commit-\nted by a state actor into a constitutional violation.” 489 U.S.\nat 201-02 (citations omitted). In short, our cases, as well as\nthose of our sister circuits, demand that the state’s affirmative\nact must, at the very least, be the cause-in-fact of the plain-\ntiff’s injury.\n\n My motive for further belaboring the federal reports with\na dissent stems primarily from my conviction that Kennedy\nhas not alleged facts sufficient to support a due process viola-\ntion, and her case against Officer Shields sounds in negli-\ngence, albeit negligence with tragic consequences. The\nmajority has run afoul of our own cases and the Court’s cau-\ntion in DeShaney. I address these issues more fully below.\n\nB. Constitutional Inquiry\n\n The majority finds fault of constitutional magnitude with\ntwo of Officer Shields’s actions: (1) notifying Angela Burns\nof Kennedy’s allegations prior to informing Kennedy that he\nwas about to do so; and (2) promising to increase police sur-\nveillance on the night of the shooting. Maj. Op. at 7489. Nei-\nther of these will support a due process violation.\n\n 1. Notification\n\n The majority concludes that Officer Shields in fact “aug-\nment[ed] the danger Plaintiff and her husband faced” by\nrevealing the existence of allegations against Michael to\nAngela Burns after having promised Kennedy that she would\nbe notified first. Maj. Op. at 7484.3 The majority asserts that,\n 3\n Kennedy did not specify how much advance warning she desired, but\nshe insists that she expected to be notified before the Burns were informed\nof her allegations.\n\f KENNEDY v. RIDGEFIELD 7503\nhad she received prior warning, she and her family would\nhave had the opportunity to take additional precautions. Id. at\n7484-85. The majority reaches this conclusion despite the fact\nthat the Kennedys made a conscious choice to remain in their\nhome for approximately eight hours after they were informed\nof the contact. Nonetheless, in light of the information Ken-\nnedy communicated to Officer Shields regarding Michael’s\npast misbehavior, the majority holds that “the obvious conse-\nquence of informing Angela Burns prior to the Kennedy fam-\nily and of falsely assuring the Kennedy family of police\nprotection was to increase the risk the Kennedy family faced\nfrom Michael Burns.” Id. at 7486.\n\n Nothing in the record supports the claim that Shields’s act\nof notifying Angela Burns of the allegations increased the risk\nfacing the Kennedy family. Notifying Michael Burns was an\ninevitable consequence of Kennedy’s allegations of child\nmolestation. At some point either the police or CAIC was\ngoing to have to talk with the Burns about the allegations.\nKim Kennedy not only knew this, she contacted police at least\nsix times to find out if the Burns had been contacted. Kennedy\nwas anxious because she feared what Michael might do, and\nshe knew that he would have to be informed.\n\n Pursuant to an inter-local agreement, after Kennedy made\nher initial complaint to the Ridgefield Police Department\n(“RPD”), the task of investigating the complaint was per-\nformed solely by a separate law enforcement unit, the Child\nAbuse Intervention Center (“CAIC”). As her only direct con-\ntact, prior to the shooting, had been with Officer Shields and\nthe RPD, Kennedy had absolutely no way of ensuring that she\nreceived notification before CAIC made contact with the\nBurns family regarding her allegations. Indeed, Officer\nShields represented her best chance of receiving prompt noti-\nfication of any contact with the Burns. By Kennedy’s own\ntestimony, Officer Shields informed her immediately after\ncontact was made, at approximately 4:30 in the afternoon.\n\f7504 KENNEDY v. RIDGEFIELD\n The majority’s holding that Shields’s conduct “increase[d]\nthe risk” facing the Kennedy family ignores the fact that the\nKennedys were already exposed to a very real risk of danger\nof which they were aware. Id. at 7486. Contrary to the majori-\nty’s holding, the real danger facing the Kennedy family more\naccurately stemmed from the likelihood that either the police\nor CAIC would contact the Burns without informing Ken-\nnedy. Consequently, the danger facing the Kennedy family\nexisted apart from any action or conduct by Officer Shields.\nRather than increase the risk facing the Kennedy family,\nShields’s prompt notification appears to have given Kennedy\nher best chance for escape.\n\n Yet, even assuming that we could disregard these obstacles\nto find some increased risk attributable to Officer Shields, this\nwould not suffice to support a constitutional violation. To find\na cognizable due process violation we must find more than a\nmere increase in the risk facing the plaintiff. See, e.g., Huff-\nman, 147 F.3d at 1061 (“The danger-creation exception to\nDeShaney does not create a broad rule that makes state offi-\ncials liable under the Fourteenth Amendment whenever they\nincrease the risk of some harm to members of the public.”).\nWe must determine that Officer Shields “used [his] authority\n. . . to create an opportunity for [Burns] to assault [the plain-\ntiff] that would not otherwise have existed.” Grubbs I, 974\nF.2d at 121 (emphasis added). In other words, we must con-\nclude, at a minimum, that, but for the state’s action, the dan-\ngerous situation facing Kennedy would not have existed. Here\nwe cannot do so for the same reasons that we cannot deter-\nmine that the state “increased” the risk facing Kennedy: the\ndanger that Michael Burns would learn of Kennedy’s accusa-\ntions existed independent of any action attributable to Officer\nShields.\n\n An additional obstacle to the majority’s conclusion stems\nfrom the requisite level of culpability necessary to establish a\ndue process violation premised on state-created danger. In\norder to find a due process violation, we must determine that\n\f KENNEDY v. RIDGEFIELD 7505\nthe shooting was a known or an obvious consequence of Offi-\ncer Shields’s action, and that Officer Shields “acted with\ndeliberate indifference to the known or obvious danger in\nsubjecting the plaintiff to it.” Grubbs II, 92 F.3d at 899-900\n(emphasis added). See also Wood, 879 F.2d at 588. The\nmajority fails to explain how Officer Shields’s conduct meets\nthis stringent culpability requirement. Rather, the majority\nsimply asserts that “Shields should have recognized the obvi-\nous consequences of his actions.” Maj. Op. at 7485. Even if\nOfficer Shields knew of Michael Burns’s propensities — the\nallegations that he had threatened a classmate, tortured a cat,\nand assaulted his girlfriend — Shields could not have antici-\npated as an “obvious consequence” that Michael would enter\nthe Kennedys’ home to murder Jay and assault Kim.\n\n The majority’s conclusion sounds in negligence. Negli-\ngence, even gross negligence, is insufficient to establish a due\nprocess violation based on state-created danger. See Grubbs\nII, 92 F.3d at 898. See also DeShaney, 489 U.S. at 201-02.\nInstead, the deliberate indifference standard that we quoted\nwith approval in Grubbs II requires a showing that the “ ‘de-\nfendant recognizes the unreasonable risk and actually intends\nto expose the plaintiff to such risks without regard to the con-\nsequences to the plaintiff.’ ” Grubbs II, 92 F.3d at 899 (quot-\ning Uhlrig, 64 F.3d at 573 n.8). Phrased another way, the\ndefendant must “have actual knowledge of, or willfully\nignore, impending harm,” meaning “the defendant knows that\nsomething is going to happen but ignores the risk and exposes\nsomeone to it.” Grubbs II, 92 F.3d at 900 (emphasis in origi-\nnal).\n\n The specific instances of misconduct communicated by\nKennedy were not sufficient to put Officer Shields on notice\nthat Michael Burns might attempt to murder members of the\nKennedy family. Michael’s previous misconduct included dis-\nturbing juvenile violence, but had never included threats or\nassault with a firearm. Indeed, the record suggests that both\nShields and Kennedy failed to appreciate the extent of the\n\f7506 KENNEDY v. RIDGEFIELD\ndanger that Michael posed. Under these circumstances, it can-\nnot be said that Officer Shields had “actual knowledge of, or\nwillfully ignore[d], impending harm.” Id.\n\n Even assuming, however, that Shields recognized the risk,\nhis actions can hardly be said to demonstrate an intent to\nexpose Kennedy to this risk without regard to the conse-\nquences. Kennedy contacted police no fewer than six times\nafter her initial complaint, each time inquiring as to whether\nthe Burns had been notified of her allegations. However mis-\nguided, Shields’s actions appear to have been motivated by a\ndesire to promptly notify Kennedy of any contact that CAIC\nhad made with the Burns. The brevity of the majority’s analy-\nsis on this point stems from the fact that there is simply no\nevidence to suggest an intent to expose Kennedy to a known\nor obvious risk, without regard to the consequences that\nwould follow. Without the requisite mental state, there can be\nno constitutional violation premised on state-created danger.\nSee, e.g., Grubbs II, 92 F.3d at 898; Wood, 879 F.2d at 588.\n\n When one considers the alternative course of conduct\nwhich could have spared Shields from the outcome today, the\nartificiality of the majority’s analysis is apparent. Under the\nmajority’s theory, Shields would face no liability if he simply\nreversed the order in which he visited the residence of the\nplaintiff and her would-be assailant. Or if he had simply cal-\nled Kim Kennedy from his cell phone while standing at the\ndoorstep of the Burns’ home, his action, under the majority’s\nview, would have been blameless. Yet, by driving to the\nBurns’ residence and then immediately to the Kennedys’,\nShields crossed the majority’s new constitutional line in the\nsand. According to the majority, this flipflop of no more than\nfifteen minutes is of constitutional magnitude. I cannot agree.\nRather, I would hold that Kennedy failed to state a constitu-\ntional violation arising from the prompt notification that she\nreceived regarding Shields’s contact with Angela Burns.\n\f KENNEDY v. RIDGEFIELD 7507\n 2. Promised Police Surveillance\n\n Officer Shields’s assurances of an increased police patrol\non the evening of the shooting similarly fail to provide a basis\nfor a due process violation. Notably, Kennedy does not claim\nthat the RPD failed to patrol the area on the evening of the\nshooting. Rather, she appears to contend that Officer Shields’s\nassurances falsely led her to believe that it was safe to remain\nin her home. Kennedy was in a far better position to ascertain\nthe extent of the risk she and her family faced as a result of\nMichael Burns’s knowledge of her accusations. Yet, the\nmajority asserts that a jury could find in her favor solely on\nthe basis of Shields’s alleged misrepresentation of “the risk\nthat Michael Burns posed to Kennedy and her family.” Maj.\nOp. at 7489 (“If either . . . of these allegations were proved\nat trial, a jury could reasonably find Kennedy relied upon\nsuch promises of additional protection in evaluating the risks\nthat Michael Burns posed to her family.”) (emphasis added).\n\n I have been unable to locate a single case in which a mere\nmisrepresentation of the extent of danger posed to a plaintiff\nis sufficient to state a claim under the Fourteenth Amendment.\nGrubbs I provides no support for this assertion. On the con-\ntrary, the court in Grubbs I relied on the state’s misrepresenta-\ntion merely as a means for bolstering its conclusion that the\nstate’s affirmative act of directly placing the plaintiff in a dan-\ngerous situation — namely, assigning her to work alone with\na known violent sex offender — created a risk that would not\notherwise have existed. See Grubbs I, 974 F.2d at 121. See\nalso Munger, 227 F.3d at 1086 (noting that the court in a\nstate-created danger case “must determine whether [the state]\ndid in fact affirmatively place [the plaintiff] in danger”). Ken-\nnedy’s allegations cannot be elevated to meet this threshold\nrequirement simply because she asserts that she remained in\nher home based on Officer Shields’s misrepresentation of the\nrisk that she and her family faced.\n\n The majority today holds that an officer’s mere awareness\nof a danger to the victim and his expression of intent to help\n\f7508 KENNEDY v. RIDGEFIELD\nare sufficient to establish a due process violation. This conclu-\nsion belies the central lesson of DeShaney. In DeShaney, the\ncounty was undoubtedly aware of the danger facing Joshua:\nauthorities were repeatedly informed that he was a probable\nvictim of physical abuse over a period of two years, during\nwhich time he was treated by emergency room doctors for\nsuspicious injuries on at least three occasions; social workers\nassigned to his case likewise reported numerous suspicious\ninjuries. The county unequivocally expressed its desire to help\nJoshua, attempting on multiple occasions to intervene. A\nChild Protection Team was assembled to assess Joshua’s situ-\nation, interview the father, and recommend action, and a case\nworker was assigned to monitor his home environment for six\nmonths. DeShaney, 489 U.S. at 192-93. Indeed, Winnebago\nCounty’s knowledge of Joshua DeShaney’s plight and its\nexpressions of intent to help him were far greater than the\nCity of Ridgefield’s knowledge of Kennedy’s plight and its\nexpressions of intent to help her. See Balistreri v. Pacifica\nPolice Dep’t., 901 F.2d 696, 700 (9th Cir. 1990) (citing\nDeShaney and declining to find a due process violation where\nthe plaintiff’s allegations amounted to the assertion that “state\nactors knew of her plight and affirmatively committed to pro-\ntect her”). We are not permitted to circumvent the Court’s rul-\ning in DeShaney simply by redefining the cause of action as\none premised on a “state-created danger.” The City of Ridge-\nfield did not create Michael Burns’s violent reaction any more\nthan Winnebago County created the violent beatings that\nresulted in brain damage so severe that Joshua DeShaney “is\nexpected to spend the rest of his life confined to an institution\nfor the profoundly retarded.” See DeShaney, 489 U.S. at 193.\n\n The majority’s new rule comes perilously close to adopting\nfor the Due Process Clause the tort principle that if police\nundertake to perform a service not mandated by the Constitu-\ntion, then adequate performance of the service voluntarily\nassumed is constitutionally required. It is anomalous to\nimpose liability for failing in an effort not required by the\nConstitution. See, e.g., DeShaney, 489 U.S. at 201-02;\n\f KENNEDY v. RIDGEFIELD 7509\nAndrews v. Wilkins, 934 F.2d 1267, 1270-71 (D.C. Cir. 1991).\nMore troubling in my view, however, is the potential for per-\nverse incentives; if liability is the logical result of anything\nless than complete success, police will naturally be hesitant to\nrespond at all when faced with a situation such as Kennedy’s.\nThe result is less police protection, not more. This conse-\nquence is dangerous and, I believe, unnecessary.\n\n In sum, I would hold that Kennedy failed to establish a due\nprocess violation arising from Officer Shields’s actions either\nin notifying the Burns of her allegations prior to warning her,\nor offering to increase surveillance on the evening of the\nshooting. Accordingly, I would hold that she failed to estab-\nlish a cognizable due process violation premised on state-\ncreated danger.\n\nC. Qualified Immunity Inquiry\n\n Even assuming, as the majority maintains, that Kennedy\nhas established a due process violation premised on state-\ncreated danger, in order to bind this case over for trial we\nmust determine that the constitutional right at issue was\n“clearly established” at the time of the events in question. We\nmust hold that a “reasonable official” in Officer Shields’s\nposition “would understand that what he is doing violates that\nright,” Saucier, 533 U.S. at 202, keeping in mind that “offi-\ncials will not be liable for mere mistakes in judgment,\nwhether the mistake is one of fact or one of law.” Butz v.\nEconomou, 438 U.S. 478, 507 (1978). Indeed, “[e]ven defen-\ndants who violate constitutional rights enjoy a qualified\nimmunity that protects them from liability for damages unless\nit is further demonstrated that their conduct was unreasonable\nunder the applicable standard.” Davis v. Scherer, 468 U.S.\n183, 190 (1984). As the Court has repeatedly emphasized,\n“the qualified immunity defense . . . provides ample protec-\ntion to all but the plainly incompetent or those who knowingly\nviolate the law.” Malley v. Briggs, 475 U.S. 335, 342 (1986).\nSee also Burns v. Reed, 500 U.S. 478, 494-95 (1991). Particu-\n\f7510 KENNEDY v. RIDGEFIELD\nlarly in a context where the potential for liability may chill\nlawful and socially desirable behavior at the edge of the “for-\nbidden zone,” qualified immunity ensures that “officials can\nact without fear of harassing litigation” and “can anticipate\nwhen their conduct may give rise to liability for damages.”\nDavis, 468 U.S. at 195.\n\n Imbued with notions of “reasonableness” and “fair warn-\ning,” the “concern of the immunity inquiry is to acknowledge\nthat reasonable mistakes can be made as to the legal con-\nstraints on particular [official] conduct.” Saucier, 533 U.S. at\n205. The central dispositive inquiry essential to finding a right\n“clearly established” is “whether it would be clear to a reason-\nable officer that his conduct was unlawful in the situation he\nconfronted.” Id. at 202. Importantly, our analysis must\nacknowledge and evaluate the specific context of the situation\nconfronted by the official. Id. See also Brosseau v. Haugen,\n___ U.S. ___, ___, 125 S.Ct. 596, 599 (2004) (“It is important\nto emphasize that this inquiry ‘must be undertaken in light of\nthe specific context of the case, not as a broad general propo-\nsition.’ ” (quoting Saucier, 533 U.S. at 201)). With this per-\nspective in mind, I would hold that Officer Shields is entitled\nto qualified immunity.\n\n Citing only our decision in Grubbs I, the majority holds\nthat “Shields was on notice that informing Angela Burns of\nKennedy’s allegations prior to warning the Kennedy family\nand falsely promising a police patrol that evening would vio-\nlate Kennedy’s constitutional rights.” Maj. Op. at 7488.\nGrubbs I did not even begin the heavy lifting necessary to\nsustain the majority’s conclusions in this case.\n\n While perhaps superficially similar on some level, several\nkey facts that were present in Grubbs I are missing from this\ncase. The prison nurse who was battered, kidnaped, robbed\nand raped by an inmate in Grubbs I was led to believe that she\nwould not have to work alone with residents who were known\nviolent sex offenders. 974 F.2d at 120. Grubbs I, thus,\n\f KENNEDY v. RIDGEFIELD 7511\ninvolved a plaintiff who was completely unaware of the risks\nshe faced and a state defendant fully apprised of the danger.\nKennedy, on the other hand, possessed superior knowledge of\nthe danger she faced from Michael Burns, and Officer Shields\nnever assured her that the danger of which she was aware no\nlonger existed. Even according to Kennedy’s own testimony,\nShields merely offered to increase surveillance in the neigh-\nborhood on the evening of the shooting.\n\n Grubbs I also involved affirmative conduct, on the part of\nthe state, which created a risk that otherwise would not have\nexisted. We concluded that, by assigning the nurse to work\nalone with a sexually violent prisoner, the defendants “used\ntheir authority as state correctional officers to create an oppor-\ntunity for [the inmate] to assault [the plaintiff] that would not\notherwise have existed.” Id. at 121 (emphasis added). The\nsame cannot be said of Kennedy’s complaint; indeed, the\nrecord suggests precisely the opposite. As reflected in Kenne-\ndy’s repeated calls to the RPD, the danger facing her family\nstemmed from the probability that CAIC would begin the\ninvestigation without ever communicating as much to her.\nThis risk existed apart from any action attributable to Officer\nShields. In short, I cannot join the majority’s holding that\nGrubbs I put Officer Shields on notice that by responding to\nKennedy’s phone message, informing Angela Burns of Ken-\nnedy’s allegations, immediately notifying Kennedy of as\nmuch and offering to increase surveillance in the neighbor-\nhood, he was acting with deliberate indifference to a known\nor obvious danger.\n\n No case of which I am aware, either in our circuit or any\nother, has found a cognizable due process violation on facts\nremotely analogous to these. On the contrary, in the case clos-\nest to this one, we concluded that the plaintiff could not estab-\nlish a due process violation. See Nicholas v. Wallenstein, 266\nF.3d 1083 (9th Cir. 2001). The facts of Wallenstein are strik-\ningly similar: A state officer released the plaintiffs’ identities\nto an angry group of family and friends; plaintiffs were imme-\n\f7512 KENNEDY v. RIDGEFIELD\ndiately harassed and assaulted. Id. at 1084-85. The plaintiffs\nargued that the release “was done with deliberate indifference\nto the danger to them and that this indifference continued in\nthe refusal of the defendants to afford them protection from\nthe danger.” Id. We concluded that “[a]t the moment [the state\nofficial] released the incident reports he knew that the crowd\nto whom he was releasing them believed that personnel con-\nnected with the jail had killed” the deceased prisoner and that\nthe release of this information “would excite the crowd.” Id.\nat 1087. Yet, when presented with these facts, only three\nyears ago, we held that the “plaintiffs failed to produce evi-\ndence that would create a triable issue of material fact show-\ning that the danger was known or obvious to the defendants.”\nId. at 1085. What we stated there bears repeating here:\n“Knowing that the crowd was angry was not knowing that\nthey would take criminal measures to make the jailors or their\nhealth helpers pay.” Id. at 1087.\n\n Moreover, since we first recognized the state-created dan-\nger doctrine, we have always drawn a sharp distinction\nbetween facts demonstrating that police action created the\ndanger to the person and facts demonstrating a danger that\nexisted without police action. See Wood, 879 F.2d at 589-90.\nIn addition, since Grubbs II we have required plaintiffs to\nmeet a stringent culpability requirement designed to prevent\nthe imposition of § 1983 liability for negligent conduct, even\ngrossly negligent conduct. 92 F.3d at 899-900. And since Huf-\nfman, 147 F.3d at 1061, and Lawrence, 340 F.3d at 957, we\nhave emphasized that the requisite culpability must relate to\nconsequences which were foreseeable. The majority’s conclu-\nsion in this case does not simply whittle away at these\nrequirements; it completely reinvents them.\n\n Consequently, I cannot envision how it “would be clear to\na reasonable officer that his conduct was unlawful” in the sit-\nuation at issue in this case. Saucier, 533, U.S. at 202. Assum-\ning arguendo that Kennedy’s allegations are sufficient to state\na constitutional violation, I would hold that, taking into\n\f KENNEDY v. RIDGEFIELD 7513\naccount the “specific context of th[is] case,” the right was not\nclearly established at the time Officer Shields acted, and\nShields is thus entitled to qualified immunity. Id. at 201.\nThere is no way Shields could have anticipated that his fifteen\nminute delay in notifying Kennedy of his contact with Angela\nBurns or his assurance of additional police surveillance would\noperate to deprive her of her rights under the Due Process\nClause of the Fourteenth Amendment. Even if he had read\nGrubbs I — but especially if he had read Wallenstein — Offi-\ncer Shields could not have known that his conduct would vio-\nlate clearly established constitutional rights. See Meyers v.\nRedwood City, 400 F.3d 765, 774 (9th Cir. 2005) (“Even with\na copy of Harris in their back pockets, the officers could not\nhave determined at what point in the middle of this messy\nrepossession they deprived Meyers of her property without\ndue process of law.”). At the very least, after Saucier, the\ncourt should have declared a constitutional violation but\ngranted qualified immunity in this case.\n\n III. CONCLUSION\n\n Given the tragic circumstances in which this case arises, the\nCourt’s instruction in DeShaney seems especially apt: “Judges\nand lawyers, like other humans, are moved by natural sympa-\nthy in a case like this” to find a way for Kennedy and her fam-\nily “to receive adequate compensation for the grievous harm\ninflicted upon them. But before yielding to that impulse, it is\nwell to remember once again that the harm was inflicted not\nby the State,” but by Michael Burns. 489 U.S. at 202-03. The\npeople of Washington may prefer, and are free to adopt, a sys-\ntem of tort liability which would place upon the State and its\nofficials the responsibility for situations such as the present\none. “But they should not have it thrust upon them by this\n[c]ourt’s expansion of the Due Process Clause of the Four-\nteenth Amendment.” Id. at 203.\n\n I respectfully dissent.\n\f","page_count":40,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"kennedy-v-ridgefield"} {"case_name":"Ex Parte Baniyah Gabriel Starr","citation_count":0,"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"2011-05-25","date_filed_is_approximate":false,"id":3128211,"opinions":[{"download_url":"http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=6612&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa04%5cOpinion","ocr":false,"opinion_id":3128211,"opinion_text":" MEMORANDUM OPINION\n No. 04-11-00235-CR\n\n EX PARTE Baniyah Gabriel STARR\n\n From the 187th Judicial District Court, Bexar County, Texas\n Trial Court No. 2007-CR-7903B-W1\n Honorable Raymond Angelini, Judge Presiding\n\nPER CURIAM\n\nSitting: Phylis J. Speedlin, Justice\n Rebecca Simmons, Justice\n Steven C. Hilbig, Justice\n\nDelivered and Filed: May 25, 2011\n\nDISMISSED FOR WANT OF JURISDICTION\n\n Appellant, proceeding pro se, filed a notice of appeal in this Court seeking to appeal the\n\ndenial of his post-conviction application for writ of habeas corpus filed pursuant to article 11.07.\n\nSee TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2010). Under the exclusive procedure\n\noutlined in article 11.07, only the convicting trial court and the Court of Criminal Appeals have\n\njurisdiction to review the merits of a post-conviction habeas petition; there is no role for the\n\ncourts of appeals in the statutory scheme. Id. art. 11.07, § 5 (providing “[a]fter conviction the\n\nprocedure outlined in this Act shall be exclusive and any other proceeding shall be void and of\n\nno force and effect in discharging the prisoner”). Only the Court of Criminal Appeals has\n\njurisdiction to grant post-conviction release from confinement for persons with a final felony\n\f 04-11-00235-CR\n\n\nconviction. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3; Hoang v. State, 872 S.W.2d 694, 697\n\n(Tex. Crim. App. 1993); In re Stone, 26 S.W.3d 568, 569 (Tex. App.—Waco 2000, orig.\n\nproceeding) (per curiam) (mem. op.). The courts of appeals have no jurisdiction over post-\n\nconviction writs of habeas corpus in felony cases. Board of Pardons & Paroles ex rel. Keene v.\n\nCourt of Appeals for the Eighth District, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (per\n\ncuriam); see In re Coronado, 980 S.W.2d 691, 692 (Tex. App.—San Antonio 1998, orig.\n\nproceeding) (per curiam); In re Bingley, No. 01-03-00705-CV, 2003 WL 21666554, at *1 (Tex.\n\nApp.—Houston [1st Dist.] July 17, 2003, orig. proceeding) (per curiam) (mem. op.); Stone, 26\n\nS.W.3d at 569.\n\n On April 26, 2011, we ordered appellant to show cause why this appeal should not be\n\ndismissed for lack of jurisdiction. Appellant timely responded, but his response does not provide\n\na basis upon which this Court may exercise jurisdiction over this appeal. Accordingly, this\n\nappeal is dismissed for want of jurisdiction.\n\n PER CURIAM\n\nDO NOT PUBLISH\n\n\n\n\n -2-\n\f","page_count":2,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"ex-parte-baniyah-gabriel-starr"} {"attorneys":"Crook, Lord Lawhon, of Beaumont, and W. D. Wilson and W. C. Carpenter, both of Bay City, for plaintiff in error.\n\nGaines Corbett, of Bay City, for defendant in error.","case_name":"Fetzer v. Haralson","case_name_full":"Fetzer v. Haralson. [Fn&8224]","case_name_short":"Fetzer","citation_count":22,"citations":["147 S.W. 290"],"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"1912-02-28","date_filed_is_approximate":false,"id":4146856,"judges":"MOURSUND, J.","opinions":[{"ocr":false,"opinion_id":3910857,"opinion_text":"Plaintiff in error, as assignee of Fetzer Co., filed suit against defendant in error on May 20, 1910, to recover a balance of $1,212.58, besides interest and *Page 292 \nattorney's fees, alleged to be due for certain farm implements known as Rice Drills or Seeders and attachments, sold and delivered to defendant in error in January, 1907. The plaintiff, in his first amended original petition, on which he went to trial, alleged that on January 4, 1907, defendant executed a certain written order to Fetzer Co. for 20 drills and 20 gang press wheels and a lot of repairs to be used by defendant for sale to his customers; that all of said goods were stored in the warehouse of D. P. Moore at Bay City, Tex.; that the order was delivered to a traveling salesman of Fetzer Co., and provided on its face that it was not to become effective until approved by the manager of Fetzer Co., and a copy of said order was mailed to defendant after its approval by Fetzer Co., together with a copy of letter to D. P. Moore instructing him to deliver the goods to the defendant; that the defendant received all of said goods, and agreed to pay 50 per cent. of the list price of same as set out in the booklet attached to said written order; that the total list price was $3.261.60, and 50 per cent. of same was $1,620.80, which amount defendant was bound to pay plaintiff; that defendant sold portions of said goods from time to time and accounted to plaintiff for the same, but that there was a balance due of $1,212.58; that said contract contained a reservation of title in Fetzer Co., which constituted a chattel mortgage on the property sold to secure the amount sued for.\nDefendant answered by general demurrer, special exceptions, and general denial, and for special answer alleged that the seeders or drills were not of the kind and character represented by Fetzer Co. and were not merchantable, sound, or salable; that they were totally unfit for the purposes for which sold, recommended, guaranteed, and warranted; and that by reason of said facts the consideration for said contract had totally failed. And for further special answer the defendant set forth that, after the discovery of the failure of the machinery to fulfill the warranty of Fetzer Co., he notified Fetzer Co. of the facts and of the unsound, unsalable, and defective condition of said drills, and demanded that sound and salable property be substituted, and that he tendered same back to the plaintiff. Also alleging that plaintiff had waived the conditions of the warranty with reference to notice of defects, and that the plaintiff had never in that territory enforced such clause with reference to notice. Defendant also filed a cross-bill suing for $336 storage on said property.\nPlaintiff in his first supplemental petition, after excepting both generally and specially, said that the contract upon which the machinery was sold contained a provision that all goods were sold subject to a warranty that the machines would do good and efficient work when properly operated; that the purchaser of any machine should have one day to give it a fair trial and should it then fail to fulfill the warranty, notice was to be given at once to the dealer from whom the machine was purchased and after the dealer had used his best efforts, and the machine should still fail to fulfill the warranty, then both purchaser and dealer were to give immediate notice to Fetzer Co. at Middletown, Ohio, setting forth wherein said machine failed to comply with the warranty, and that if notice of difficulty was not given as above stated, it should be conclusive evidence of satisfaction on the part of the purchaser. And said supplemental petition further alleged that defendant had never complied with the provisions of the contract in said respect, and that he was estopped from pleading failure of consideration or that said goods did not comply with the warranty.\nThe case was tried before a jury, and after the evidence was introduced the court instructed a verdict in favor of defendant on the original action and also to find against the defendant on his cross-bill, and upon the verdict judgment was rendered decreeing that plaintiff take nothing against defendant, and that defendant recover costs of suit, and that defendant take nothing on his cross-bill, to which plaintiff excepted and gave notice of appeal, but, failing to file appeal bond in time, sued out a writ of error.\nThe original contract sued upon and sent up with the record consists of a printed jobbing contract and a booklet. In the jobbing contract no warranty appears, but it contains the following statements referring to a warranty: \"No canvasser or expert help will be furnished said first party to assist in setting up machines or making sales or for any other purpose excepting within the strict sense of the general printed warranty of second party hereby provided for in the book-form portion of this contract which is duly made part of this contract and agreement.\" It also has the following reference to warranty: \"It is fully understood that this contract with the lists, conditions, instructions and warranty following contains the full and entire agreement between the parties hereto and no modification by agents is authorized or permitted and no outside verbal understanding is of any force or effect.\"\nThe warranty set out and described in plaintiff's supplemental petition is contained in the booklet attached to the jobbing contract. Defendant admitted signing the jobbing contract, but testified that the booklet was not attached to same at the time he signed. Plaintiff testified to approving the contract and returning same to defendant, but did not say whether booklet was attached at the time he received the contract from the traveling salesman, or whether he afterwards attached same, but did testify that, after approving same in writing as manager for Fetzer \nCo., he sent a true copy of the *Page 293 \ncontract to defendant, and that he attached to his depositions a true copy thereof, which copy is sent up with the record and embraces the jobbing contract and the booklet. Defendant did not produce his copy of the contract, but admitted getting it, and stated that he guessed it was in his store, that he did not know whether the copy of booklet was attached to it or not, that he would not swear it was not attached.\nOn the printed jobbing contract, written with ink, appear the following words: \"All goods to be settled for when sold. Unsold goods to be carried until November 1, 1909. All unsold Gang Press Wheels to be returned if not sold, first party to ship out these goods free of expense to Fetzer Company.\"\nW. L. Randell, the traveling representative of Fetzer Co. who made the deal with defendant, testified that the above words were written on such jobbing contract by him before the contract was signed by defendant. Defendant testified that if said marginal writing was on the contract at the time he signed it he did not see it or read it.\nOn January 9, 1907, plaintiff wrote defendant a letter, which defendant admitted receiving, containing the following language: \"We inclose herewith copy of a letter written to-day to Mr. D. P. Moore of Bay City, Texas, and this copy will constitute your order from us upon Mr. Moore for the delivery of these goods in proper fulfillment of the contract we have duly approved this day, and of which a copy will be sent you. We understand from this contract that you are to pay us upon Nov. 1st, 1907, for all machines sold during 1907, and likewise upon Nov. 1st, 1908, for all machines sold during 1908, and that upon Nov. 1st, 1909, you are to pay us then for any machines sold in 1909, and for all machines, if any there are, remaining on hands unsold from this stock at that date, and with this understanding we are duly approving the contract with you this day.\" Said letter also contained the following postscript: \"We understand that you are not required to make settlement for the `Gang Press Wheel Attachments' that may finally remain on hand, but that you are to ship out these goods free of expense, should we hereafter ask you to do so. This, of course, refers to Gang Press Wheel Attachments and not to anything else.\"\nDefendant admits receiving the property mentioned in the contract, as shown by the following statement made by him. \"The drills, when they were turned over to me, were in boxes, and all the bolts and such other articles were in boxes. No, I have not set up together any of the machines remaining on hand; they are just like they were when I received them. I have paid for all machines that I sold.\"\nDefendant, on July 26, 1907, gave plaintiff his note for $400, which was afterwards paid, and also on July 26, 1907, paid $51.65 cash on machine account, and $6.37 on repair account. On November 5, 1908, defendant paid $6.11 cash on repair account. Defendant testified: \"Judge Holland and his partner got this contract once to bring suit on. They came over to my place and talked to me about it, and I told them the drills was no count, and that I could not sell them. The next lawyer to come to see me about it was Mr. Conger. He came over and asked me about it, and I told him that the drills were no count and I could not sell them. This deal was made in January, 1907. In the following fall I told Mr. Randell I could not use the drills and that they did not give satisfaction and that they broke all to pieces. The company agreed to repair them, but it took so long to get them up there that the season would be mighty near over. Fetzer Co. shipped me a few repairs and never shipped any more.\" And in answer to the question, \"Did they refuse to ship them?\" he testified: \"I did not get them. The Le Tulle Mercantile Company used them. I did not order them through Le Tulle Mercantile Company. I ordered them to be shipped direct to me. I had this discussion with Mr. Randell in 1908. I told him then I could not use the machines.\"\nThere is no evidence of any notice being given direct to Fetzer Co. at Middletown, Ohio, concerning the property being unsatisfactory. The warranty concludes with the following sentence: \"No agent has authority to change this warranty.\"\nThe witnesses Reinke and Blaise, who had purchased drills out of the lot sold by plaintiff to defendant, testified in substance that same were constantly breaking down, and not giving satisfaction at all. There was no evidence that either of them ever gave any notice to Fetzer Co. of the defective condition of the drills, but Reinke testified he told defendant several times that the machine purchased by him was of no account.\nDefendant did not return the money to any of the purchasers of the drills sold by him.\nOther witnesses who had purchased drills of same name and made by Fetzer Co., but not purchased from defendant, testified that they were of defective material and their work unsatisfactory.\nThe witness Doubek testified that he was with Le Tulle Mercantile Company for several years while it was selling Columbia drills, and that his company was never required to make a report of the defects in a machine within a day after they were sold. The terms of the contract between witness' employer and Fetzer Co. were not shown.\nThe witness Reinke testified that he never knew Fetzer Co. to demand a report from anybody who bought a drill at Bay City. Plaintiff in rebuttal introduced the evidence of Frank Stephens, who testified that he had been engaged in selling rice drills or seeders of several different makes, including the Columbia made by Fetzer Co.; that the same *Page 294 \ncompared favorably with the Superior, sold by Parlin Orendorf, and the Buckeye, sold by John Deere Plow Company; that the repair bill on the Columbia seemed to be lighter than any other; that the Columbia drills sold by him, about 20, gave satisfaction.\nWe overrule plaintiff's first assignment of error, because the special charge offered assumed that defendant would be required to give the notices stipulated in the warranty, and if unable to sell he would not have been able to give notice by purchaser and dealer both.\nWe overrule the second assignment of error, because the special charge offered instructed a verdict for plaintiff, if defendant and his purchaser failed to give notice regarding any one machine sold.\nWe sustain the third assignment of error, because we think the evidence should have been submitted to a jury. In view of another trial, we will state our view of the propositions of law applicable to this case.\nThe jobbing contract refers to a warranty contained in book-form portion of the contract, and it is immaterial whether or not the booklet was attached at the time the jobbing contract was signed by defendant. If it was attached at the time the jobbing contract was returned to him, and he accepted it and received the property in pursuance thereof, he is bound by its provisions.\nThe answer of defendant pleading failure of consideration is very general in its terms, and does not specifically plead the warranty embraced in the booklet attached to the jobbing contract, nor does it plead or set out any particular warranty. However, if there is a written warranty, as there is in this case, we understand the law to be that the parties are bound by it, and cannot depend upon an implied warranty that the goods sold are suitable for the purposes for which sold. Machine Co. v. Implement Co., 32 Tex. Civ. App. 217, 73 S.W. 835; Dean v. Standifer,37 Tex. Civ. App. 181, 83 S.W. 231; Case Plow Works v. Niles, 90 Wis. 590,63 N.W. 1013; Bucy v. Pitts Agriculture Works, 89 Iowa 464, 56 N.W. 541; Cosgrove v. Bennett, 32 Minn. 371, 20 N.W. 359.\nThere being no plea of fraud and no agreement to return the goods, and there being an express warranty, defendant cannot ask for rescission of the contract, but must exercise his rights under the warranty in accordance with its provisions. Wright Clark v. Davenport,44 Tex. 164; Piano Co. v. Thomas, 36 Tex. Civ. App. 78, 80 S.W. 1063. For a breach of the warranty he would be entitled to have deducted, from the amount agreed to be paid by him, the difference between the value of the article as it is and as it was warranted to be. Wright et al. v. Davenport, 44 Tex. 164.\nThe warranty provides that the purchaser shall have one day to give the machine a fair trial. Should the implement then fail to fulfill the warranty, notice is to be given at once to the dealer from whom the machine was purchased, and after the dealer has used his best efforts, should the machine still fail to fulfill the warranty, then both the purchaser and dealer are to give notice to Fetzer Co. at Middletown, Butler county, Ohio, stating wherein the machine fails to fulfill the warranty. It also provides that if notice of difficulty is not received, as above stated, it will be conclusive evidence of satisfaction. A compliance with the conditions of a warranty must be shown before recovery can be had thereon. C. Aultman Co. v. York,1 Tex. Civ. App. 484, 20 S.W. 851; Case Threshing Machine Co. v. Hall,32 Tex. Civ. App. 217, 73 S.W. 835; Shearer v. Gaar, Scott Co.,41 Tex. Civ. App. 39, 90 S.W. 687.\nIf, in fact, it was impossible for defendant to sell the remaining drills, and therefore impossible to give the exact notice specified in the warranty — that is, by dealer and purchaser both — we are of the opinion that he would be bound to comply with the conditions as far as he could under the circumstances, unless the performance of such condition was waived by Fetzer Co.\nBearing in mind these rules, we pass to the consideration of the remaining assignments of error.\nThe fourth assignment of error is overruled, as we deem the answer sufficient on general demurrer, because it alleges in general terms a warranty and a breach thereof.\nThe fifth assignment of error complains of the action of the court in overruling plaintiff's special exception No. 2 to defendant's first amended original answer. The exception is that the plea of failure of consideration is insufficient because it does not allege that defendant attempted to use any of the machinery in question, and that they failed to work, nor that he attempted to sell the same and failed, nor gave the name of any person or persons who bought or refused to buy any of said machines, also because it does not specifically allege that said implements were sold under a warranty, nor give the terms of such warranty, nor state that defendant had complied with the terms and conditions imposed upon him by the terms thereof.\nThe warranty relied upon should be specifically set out, and also the facts constituting a breach thereof, and the compliance by defendant with the terms thereof, or the facts relied upon by him to excuse such compliance. However, we do not consider it necessary to set out the names of persons who bought or refused to buy any of said machines. We therefore sustain the fifth assignment of error.\nThe sixth assignment complains of the *Page 295 \noverruling of plaintiff's special exception No. 3 to defendant's answer. The exception is: First, that the answer should have alleged that notice was given to Fetzer Co. at Middletown, Ohio, as required by the warranty; and, second, because it attempts to plead rescission without pleading fraud, and without describing the property tendered.\nThe notice provided in the warranty relied on should be alleged, or the facts relied upon as excusing the giving thereof. The plea for rescission is insufficient for the reasons stated. We sustain this assignment of error.\nWe sustain the seventh assignment of error. The plea of waiver was bad on special exception in not setting out either that it was expressly agreed to by Fetzer Co., or some one authorized to act for them, or setting out the facts relied upon to constitute a waiver. The portion alleging waiver with other parties should have been eliminated upon special exception.\nWe overrule the eighth assignment of error, which complains of the admission of the testimony of J. W. Conger to the effect that he had made a report to Fetzer Co.\nThe ninth, tenth, and thirteenth assignments of error complain of the admission of the evidence of witnesses who had used drills made by Fetzer Co., but sold by other persons than defendant, each testifying that the drill used was a Columbia drill, to which plaintiff interposed the objection that it was incompetent to show defects in a piece of machinery under investigation by showing that another machine made by the same people was defective. This evidence was not admissible, and we sustain these assignments. Haynes v. Plano Mfg. Co., 36 Tex. Civ. App. 567,82 S.W. 532; Hill v. Hanan Son, 131 S.W. 245.\nThe eleventh assignment of error complains of the admission of evidence that the witness never knew of Fetzer Co. demanding a report directly from anybody that ever bought a drill from any agent at that place, and the twelfth assignment complains of the admission of the evidence of the witness Doubek that, while he was employed by Le Tulle Mercantile Company, said company handled Fetzer drills, and that Fetzer Co. never required of Le Tulle Mercantile Company a written complaint within one day from the day of sale of the machine found to be defective. Plaintiff objected to the testimony of both witnesses for the reason that the dealings between Fetzer Co. and other persons could not be shown to the extent or for the purpose of contradicting the terms of a written warranty entered into between Fetzer Co. and Haralson. This testimony was not admissible under the circumstances of this case. It would not show a waiver of the conditions of a warranty between defendant and Fetzer Co. We sustain these assignments of error.\nAs we believe there was sufficient evidence to require a submission of the issues to the jury, we overrule the fourteenth assignment of error, without discussing the evidence.\nFor the errors stated, the judgment will be reversed, and the cause remanded.\nReversed and remanded.\n On Motion for Rehearing.\nPlaintiff in error has filed a motion for rehearing, contending that we erred in overruling the assignment of error complaining of the action of the lower court in refusing to give the plaintiff's requested charge No. 1, directing a verdict for plaintiff.\nIt is earnestly insisted that the evidence shows that the goods were sold under a written warranty requiring certain notices to be given of defects in the machinery sold, and that the defendant must pay the amount due, with interest and attorney's fees, because he did not give the notices required by the warranty and thus give Fetzer Co. the opportunity to correct the defects or furnish new drills, as was their right under the provisions of the warranty. In our opinion we stated the rule with reference to breach of warranty to be that for such a breach the difference between the value of the article as it is and as it was warranted to be should be deducted from the price agreed to be paid. Appellant insists that said rule is not applicable to a case where the parties have provided another measure of damages, viz., the repair of defective parts or furnishing new machines. We think this contention is correct, and that a failure to comply with the conditions of the warranty should, as is specifically provided therein, be deemed conclusive evidence of satisfaction with the goods sold. J. I. Case Threshing Machine Co. v. Hall, 32 Tex. Civ. App. 217, 73 S.W. 835.\nThe evidence shows that some of the drills were sold by defendant, and that, while the same were defective, yet neither he nor any of the purchasers gave notice of such defects to Fetzer Co. such as is required by the terms of the warranty. The only notice given was in the fall of 1908, verbally, to an agent of Fetzer Co., and defendant also complained to the attorneys who had the claim for collection. These drills were paid for by the purchasers, and defendant paid Fetzer Co. for them. Defendant cannot be heard to claim any offset by reason of these drills having been defective.\nThe remainder of the drills were never set up, and therefore never tested by defendant. There is, consequently, no evidence that they are in fact defective. Defendant says he was unable to sell them. If so, he could not have complied with the portion of the warranty requiring notice of defects by the purchaser. The law does not *Page 296 \nrequire impossibilities, but it does require the compliance with conditions of a contract as far as it is within the power of a party. Defendant could have set up the other machines and given them a test, and notified Fetzer Co. of their defects and of the fact that he was unable to sell them. This he failed to do, and thereby has prevented Fetzer Co. from correcting such defects as might have been discovered, and from furnishing new drills where defects could not be corrected.\nThe evidence fails to show any waiver by Fetzer Co. of the terms of the warranty. The fact that same were waived with reference to another person purchasing drills from them would not prove waiver in this instance. The warranty expressly provides that no agent has authority to change it, so the conversation in which defendant complained to Fetzer Co.'s agent cannot be construed as a waiver.\nDefendant does not plead fraud, and while the contract is in our opinion hard and especially unreasonable in giving only one day to try the drills, and requiring notice by both purchaser and dealer, yet it is our duty to enforce the contract as made.\nWe have reached the conclusion that the trial court should have instructed a verdict for plaintiff as prayed for, and it appearing that the evidence has been fully developed, and that defendant cannot rely upon the warranty because he did not comply with its terms as far as he was able, judgment should be rendered by us for plaintiff. We therefore set aside the order remanding this case, and do now reverse the judgment of the district court, and, no foreclosure of the lien being prayed for in this court, we render judgment in favor of plaintiff against defendant for $1,212.58, with interest thereon from November 1, 1909, to the date of the judgment in the lower court, at the rate of 6 per cent. per annum, and also for 10 per cent. of the amount then due as attorney's fees, and for all costs of suit, as prayed for in appellant's brief and motion for rehearing.","per_curiam":false,"type":"020lead"}],"posture":"Error from District Court, Matagorda County; Wells Thompson, Judge.\n\nAction by William Fetzer against E. Haralson. There was a judgment for defendant, and plaintiff brings error. Reversed and: rendered.","precedential_status":"Published","slug":"fetzer-v-haralson"} {"attorneys":"Johnson Rogers and William N. Hensley, all of San Antonio, for appellants.\n\nOn the question of the liability of the retailer. Scruggins v. Jones, 207 Ky. 636 , 269 S.W. 743 ; Julian v. Laubenberger, 38 N.Y. Sup. 1052; Great Atlantic Pacific Tea Co. v. Gwilliams, 189 Ark. 1037 , 76 S.W.2d 65 .\n\n Guy Carter, of San Antonio, for appellee.\n\nOn the question of the implied warranty of the retailer engaged in selling food to the general public in unbroken packages. Kress Co. v. Ferguson, 60 S.W.2d 817 ; Brown Cracker Candy Co. v. Jensen, 32 S.W.2d 227 ; Wintz v. Morrison, 17 Tex. 372 .","case_name":"Griggs Canning Co. v. Josey","case_name_full":"Griggs Canning Company v. Norman Josey","case_name_short":"Josey","citation_count":86,"citations":["164 S.W.2d 835","139 Tex. 623"],"court_full_name":"Texas Supreme Court","court_jurisdiction":"Texas, TX","court_short_name":"Texas Supreme Court","court_type":"S","date_filed":"1942-07-22","date_filed_is_approximate":false,"id":4206771,"judges":"MR. CHIEF JUSTICE ALEXANDER delivered the opinion of the Court.","opinions":[{"author_id":5789,"ocr":false,"opinion_id":3978680,"opinion_text":"I most respectfully dissent from the opinion of the majority in this case. The following expresses my views:\nThe opinion of the majority, speaking through Chief Pustice Alexander, holds that a retailer of food impliedly warrants that all food sold by him is free from contamination and fit for human consumption. Such opinion further holds that the retailer's implied warranty, as above expressed, is universal in its application, in that it applies even to food that is put up by a manufacturer or processor in sealed bottles, cans, or other containers, with the name of such manufacturer or processor fully disclosed on the container. *Page 635 \nI agree that it is the general rule that the retailer of food sold for human consumption impliedly warrants that it is wholesome and fit for the purpose for which it is sold; but I think that the great weight of authority is to the effect that the general rule of implied warranty should not be applied in cases where the food sold by a retailer is put up in bottles, cans, or other sealed containers, with the name of the manufacturer or processor fully disclosed thereon. I think, further, that justice and fair play is better served by the application of the exception to the general rule just stated.\nThe general rule, which holds the retail dealer liable as on an implied warranty for injuries resulting from contaminated food sold by him, is based on the theory that such dealer has an opportunity to observe and inspect the appearance and quality of the food products which he offers for sale, — and, accordingly, he should be charged with knowledge of their imperfections. In cases where food is sold in sealed bottles, cans, or packages, appearing to be in good condition, the dealer has no knowledge of or opportunity to know their original or present condition. In fact, in such instances the consumer, who can see and inspect the food after the container has been opened, has a better opportunity to discover any contamination or imperfection than the retailer has. 22 Amer. Jur., p. 882, sec, 99, and numerous authorities there cited; 26 C.J., p. 783, and authorities there cited. I think the rule, as supported by the great weight of authority, is announced in American Jurisprudence, supra. I quote, as an expression of my views, as follows from that authority:\n\"Upon the question whether a dealer, in selling food or beverages in bottles, sealed cans, or sealed packages, impliedly warrants that it is wholesome and fit for food, there is some difference of opinion. The applicable provisions of the Uniform Sales Act, adopted in a majority of the states, are deemed by many courts to raise an implied warranty of the fitness of such foods or beverages. In the absence of any statutory provision, however, which may be construed to imply such a warranty, the majority of the courts passing upon the question have taken the position that the general rule implying warranty of wholesomeness or fitness of provisions for human consumption by a retail food dealer in favor of the purchasing consumer is not to be applied where the consumer purchased provisions put up by a manufacturer or packer in sealed can packages or containers from whom the retailer secures his stock. The reason *Page 636 \ngiven in support of this view that the rule of implied warranty between retailer and consumer is not to be extended to a sale by a retail grocer of canned goods which he purchased from the canner is that the doctrine of implied warranty proceeds on the presumption that the seller had some special means of knowledge as to the condition of the provisions which he sells. That rule was formulated upon the theory that the dealer had an opportunity to observe and inspect the appearance and quality of the food products which he offered for sale and was accordingly charged with knowledge of their imperfections. In the case of provisions in sealed cans, bottles, or packages appearing to be perfect, the dealer has, however, no knowledge of their original or present condition. Such provisions cannot be chemically analyzed every time they are used. It is said, therefore, to comport better with justice to hold that where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer and the customer knows as much about the article as the dealer and buys it without any representation from the dealer or reliance upon his judgment, knowing that there has been no inspection of it by the dealer, there is no implied warranty, although the dealer knows that the customer buys it for food.\n\"Under this rule rejecting the theory of implied warranty between the manufacturer or packer of provisions and beverages in sealed cans, bottles, and packages, the situation of the retailer and consumer regarding injuries from using such products is governed by the rules of law of negligence. Under this theory of liability, the duty the retailer owes to the consumer is to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of the care, skill, and experience of dealers in such products generally; and, if he discharges this duty, he will not be mulcted in damages because injuries may be produced by unwholesomeness of the goods. As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter. However, some courts have pointed out that this does not mean that retail dealers, as a matter of law, are not liable for imperfections in provisions sold in sealed packages, packed by reputable manufacturers, regardless of whether the defects could have been discovered by the use of reasonable care on the part of the dealer. If the circumstances are such that the dealer knew of, or can be said to be negligent *Page 637 \nfor failing to discover, patent imperfections which could have been detected without opening the package, he is liable. However, even under the modern common law a minority of the jurisdictions follow the rule under the statute and hold the dealer liable for injuries resulting from defective food sold in cans on the basis of implied warranty, refusing to draw a distinction between food and other provisions or between food in cans and that open for inspection. It has been held, without adhering to either of the above rules, that where the can containing the unwholesome food was so labeled as to conceal from the buyer the identity of the manufacturer, this conduct in legal effect put the retailer in the place of the manufacturer and rendered him liable upon an implied warranty to one who purchased the can and was injured by the eating of the contents.\"\nThe opinion of the majority grounds its holding that the retailer of food put up in sealed containers, with the name of the manufacturer or processor indicated thereon, occupies the position of an implied warrantor to the consumer, on the theory that public policy demands the application of such rule in order to conserve or protect the public health. The term \"public policy\" is a vague and indefinite one, and to my mind one not susceptible of an exact or precise definition. I think, however, it is a sound principle to say that a rule of law, not statutory, will not be grounded or based on public policy when the enforcement thereof will not accomplish any public good, and its nonenforcement will not result in any public injury. 50 C.J., p. 857, sec. 62. As applied to the sale of food put up in sealed containers, with the name of the manufacturer or processor indicated thereon, no practical benefit to the public health can be obtained by holding the retailer liable as an implied warrantor. There is no escape from this conclusion, because the manufacture or processing of such food is beyond the control of the retailer; and therefore mulcting him in damages can accomplish no benefit, to the public health. It is beside the point to say that the rule of implied warranty will conserve the public health, by making the retailer more careful in selecting the food he offers for sale; because if the retailer is negligent in that regard, he may be held as in a negligence action; and, besides, the opinion of the majority holds the retailer, regardless of what care he may exert in selecting his goods. In fact, such opinion holds the retailer even if the purchaser actually demands or selects the particular brand he wishes to purchase. *Page 638 \nThe opinion of the majority holds that the rule of implied warranty should be applied to the retailer in cases like the one under discussion, because in many instances the manufacturer or processor is far removed from the residence of the consumer and therefore difficult to sue. This can be nothing more than a rule of convenience, and, to my mind, no rule of convenience can ever justify mulcting one in damages who has done no wrong. No authority is cited in the opinion of the majority for such a rule, and I am convinced that none can be cited.\nFinally, I wish to say that the Uniform Sales Act has never been enacted in this State; and I express no opinion as to its effect on the question here involved.\nOpinion delivered July 22, 1942.","per_curiam":false,"type":"040dissent"},{"author_id":5777,"ocr":false,"opinion_id":3978679,"opinion_text":"This case is before this Court on certified question. Norman Josey's wife purchased a can of spinach from Jesus V. Ocon, a retail merchant. The label on the can plaintly showed the name and address of the manufacturer or processor. The spinach was unfit for human consumption. Josey's wife and stepson became ill as a result of eating the spinach. Under the foregoing facts, the Court of Civil Appeals has certified to this Court the following question:\n\"Was Ocon, the retail dealer, liable to Josey for selling his wife a can of unwholesome spinach, plainly labeled with the processor's name and address, upon the theory that he (Ocon) impliedly warranted that said spinach was fit for human consumption?\"\nWe assume that the purpose of the inquiry is to ascertain whether or not Ocon is liable to Josey in damages for personal *Page 625 \ninjuries suffered by Josey's wife as a proximate result of the eating of the unwholesome spinach. The question to be here determined is whether a retail merchant who buys canned food intended for human consumption from a manufacturer, and sells same to his customer for immediate consumption, is liable in damages for the injuries caused to the consumer thereof by reason of the unwholesomeness of such food.\nIn the case of Jacob E. Decker Sons, Inc. v. Mrs. Pearl Capps, (this volume, page 609) 164 S.W.2d 828, this day decided, we held that a nonnegligent manufacturer who processed and sold contaminated food to a retailer for resale for human consumption was liable to the consumer thereof for the injuries sustained by him as a result of the eating of such food. That holding was not based upon any supposed negligence of the manufacturer, nor upon the breach of any warranty implied in fact from the supposed terms of the contract, but was based upon the broad principle of an implied warranty imposed by law as a matter of public policy for the protection of human health and life. It was there recognized as a well-known fact that food products are processed and given the appearance of being suitable for human consumption and are placed in the channels of commerce with the intention that they shall pass from hand to hand until some one is induced to buy and consume the same; that it is usually impracticable, if not impossible, for the ultimate consumer to analyze the food and ascertain whether or not it is suitable for human consumption; and that where such products sold for human consumption prove to be unfit for that purpose, there is such an utter failure of the purpose for which it is sold, and the consequences of eating unwholesome food are so disastrous to human health and life, that the law imposes a warranty of wholesomeness in favor of the consumer against the processor and each vendor thereof as a matter of public policy. The warranty is imposed as a matter of public policy to discourage the sale of unwholesome food.\n1 The general rule is well established that in the sale of food products for immediate consumption by human beings there is an implied warranty that the commodity is wholesome and is fit for the purpose for which it is sold. 22 Amer. Jur. 880, Sec. 96; 37 Tex. Jur. 299; 55 C.J. 764; Race v. Krum, 222 N.Y. 410,118 N.E. 853, L.R.A. 1918F 1172; Wiedeman v. Keller, 171 Ill. 93,49 N.E. 210; Houston Cotton Oil Co. v. Trammel (Texas Civ. App.),72 S.W. 244. In order to recover for breach of this so-called implied warranty it is not necessary to *Page 626 \nprove any fault or negligence on the part of the dealer other than the mere sale of the unwholesome food.\n2 It is urged by the defendant that there is an exception to this rule in favor of a retailer who buys and sells goods in sealed containers. It must be conceded that there are authorities which recognize such an exception. Bigelow v. Maine C.R. Co., 110 Me. 105,85 A. 396, 43 L.R.A. (N.S.) 627; Scruggins v. Jones,207 Ky. 636, 269 S.W. 743; Elmore v. Grenada Grocery Co., 189 Miss. 370,197 So. 761; Davis v. Williams, 58 Geo. App., 274,198 S.E. 357; Pennington v. Canberry Fuel Co., 117 W. Va. 680,186 S.E. 610; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726. These authorities base their holding on the ground that there is and can be no reliance on the skill and judgment of the retailer, because the purchaser knows at the time he buys the canned goods that the seller has had no opportunity to examine its contents and is therefore in no better position than the buyer to determine whether or not it is fit for human consumption. It must be remembered, however, that the rule which holds a vendor of food products liable in case they prove to be unwholesome is not based on any negligence of the vendor nor on any supposed implied terms of the contract, but on the broad principle of a warranty imposed by law as a matter of public policy for the protection of public health. It is said that the warranty is implied, irrespective of the seller's knowledge of the defects therein. See authorities above cited, and especially 55 C.J. 764, Sec. 733, p. 764.\nMr. Williston in his work on Sales, in our opinion, satisfactorily answers the contention that a retailer who sells canned goods should escape the usual liability imposed on a food vendor. In discussing the authorities sustaining such a contention, he says:\n\"The imposition of absolute liability upon a dealer who sells canned goods of reputable manufacture has been denied by the Supreme Court of Maine on the ground that the seller cannot possibly discover that a particular can is defective, and that it is, therefore, unjust to subject him to liability. The same argument, however, may be made in regard to any implied warranty, not only to food, but of other articles where the seller could not discover the defect. Accordingly, if canned goods are to be made an exception to the general rule governing sales of food, the whole law of implied warranty should be revised and placed on the basis of negligence. But the general principle of *Page 627 \nthe common law is opposed to this, and certainly if a dealer is ever to be made liable for injuries caused by defective goods where he has been guilty of no fault, the reasons are stronger for holding him liable for selling defective food than in any other kind of sale. According to the weight of authority, presumably for these reasons, a dealer is liable for selling such food even though in cans of a reputable brand.\" 1 Williston on Sales, pp. 481, 482.\nThe leading case refusing to make an exception to the liability of the dealer on implied warranty in case of canned goods is Ward v. Great Atlantic Pacific Tea Co. (1918), 231 Mass. 90,120 N.E. 225, 5 A.L.R. 242. In that case the plaintiff recovered damages from the defendant, a retail grocery concern, for injuries to his teeth caused by a pebble in a can of beans. While the court in that case based its holding of liability under Subdivision 1 of Section 15 of the Uniform Sales Act, the court made it clear that the provision of the Sales Act was only a codification of the common law as it had theretofore existed in Massachusetts, and in the course of its opinion said:\n\"There appears to us to be no sound reason for ingrafting and exception on the general rule, because the subject of the sale is canned goods, not open to the immediate inspection of the dealer, who is not the manufacturer, any more than of the buyer. It doubtless still remains true that the dealer is in a better position to know and ascertain the reliability and responsibility of the manufacturer than is the retail purchaser. But the principle stated in Farrel v. Manhattan Market Co.,198 Mass. 271, 15 L.R.A. (N.S.) 884, 126 Am. St. Rep. 436, 84 N.E. 481, 15 Ann. Cas. 1076, 21 Am. Neg. Rep. 142 (that there is an implied warranty in sales of food), is a general one. It has long been established. Simply because it may work apparent hardship in certain instances is no reason for changing it to fit particular cases. It is a salutary principle. It has become wrought into the fabric of the law as the result of long experience. It may be assumed that the affairs of mankind have become adjusted to it. It has recently been adopted by the legislature in codifying the law as to sales. It imposes liability in the absence of an express contract between the parties governing the subject. It places responsibility upon the party to the contract best able to protect himself against original wrong of this kind, and to recoup himself in case of loss, because he knows or comes in contact with the manufacturer. * * * The retail purchaser in cases of this sort ordinarily would be at *Page 628 \nsome disadvantage if his only remedy were against the manufacturer.\"\nIn the case of Ryan v. Progressive Grocery Stores (1931),255 N.Y. 388, 175 N.E. 705, 74 A.L.R. 339, Judge Cardozo, writing for the New York Court of Appeals, approved the decision of the Massachusetts court in Ward v. Great Atlantic Pacific Tea Co., supra, as applied to cases where the selection of the goods is made by the dealer, and held that where the buyer selects the brand and does not rely on the skill and judgment of the dealer there is an implied warranty of merchantable quality under Subdivision 2 of Section 15 of the Sales Act. Other decisions holding the retailer liable under the Sales Act are Burkhardt v. Armour Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260; Griffin v. James Butler Grocery Co., 108 N.J.L. 92, 156 A. 636; Lieberman v. Sheffield Farms-Slawson-Decker Co., 117 Misc. 531, 191 N.Y. Supp. 593; Bolitho v. Safeway Stores, 109 Mont. 213,95 P.2d 443; Gindraux v. Maurice Mercantile Co. 4 Cal. 2d 206,47 P.2d 708; Giminez v. Great Atlantic Pacific Tea Co., 264 N.Y. 390, 191 N.E. 27; Clearly v. Firth National Stores, 291 Mass. 172,196 N.E. 868; Singer v. Zabelin, 24 N.Y. Supp. 2d 962. The same rule prevails in England under Sec. 14 of the Sale of Goods Act. Jackson v. Watson (1909), 2 K.B. 193, 16 Ann. Cas. 492. The rule under the Sales Act, as deduced from the above-cited cases, seems to be that reliance by the buyer upon the skill and judgment of the seller is presumed unless the contrary is shown, and that where it appears that the buyer relied on his own judgment in selecting the brand still there is an implied warranty of merchantable quality under Subdivision 2 if the article was bought by description. It must be remembered, however, that the Uniform Sales Act does not recognize an implied warranty in sales of food distinct from the implied warranties applying to sales of other commodities. Before the adoption of the Sales Act, a majority of the American Courts which had considered the question held that there was an implied warranty of wholesomeness, peculiar to sales of food, based upon public policy, and these courts apparently did not require a showing of reliance by the buyer on the skill and judgment of the seller. Van Bracklin v. Fonda, 12 Johns. (N.Y.) 468, 7 Am. Dec. 339; Race v. Krum, 222 N.Y. 410, 118 N.E. 853, L.R.A. 1918F 1172; Hoover v. Peters, 18 Mich. 51; Wiedeman v. Keller, 171 Ill. 93,49 N.E. 210. See, also, Perkins, \"Unwholesome Food as a Source of Liability,\" 5 Iowa Law *Page 629 \nBulletin, 6-35, and Jacob E. Decker Sons, Inc., v. Capps, (this volume, p. 609) 164 S.W.2d 828, this day decided. In fact, the Sales Act, which has not been adopted in Texas, was rather a restriction on the warranties that could be implied under an ordinary contract of sale instead of an enlargement of the warranty imposed by law in sales of food. It abolished the distinction between the implied warranty of wholesomeness and other implied warranties. Rinaldi v. Mohican Co., 225 N.Y. 70,121 N.E. 471.\nNor must it be supposed that all the decisions holding the retailer liable on an implied warranty where food is sold in the original package have been based on the Sales Act. It is true the more of such cases have been decided under the Act, but that is because the act has been adopted in a large majority of the states. There are quite a number of cases from other states decided before the adoption of the Sales Act, or where the Act has not yet been adopted, in which the vendor of food products has been denied the right to escape his common-law liability under the defense that the goods were in sealed cans and he could not know the condition of the contents thereof. Chapman v. Roggenkamp, 182 Ill. App. 117, for instance, was decided by the Appellate Court of Illinois in 1913, before the Act was adopted in that state. It was held that the retail dealer was liable for injuries resulting from eating unwholesome canned peas. The defendant vigorously contended that there should be no implied warranty because he had purchased the can of peas from a wholesaler or packer, and had no greater knowledge concerning its condition than the buyer, and that the buyer, knowing of these facts, did not rely on the dealer's superior knowledge. Nevertheless, the court applied the principle of Wiedeman v. Keller, 171 Ill. 93, 49 N.E. 210, wherein it had been held that in the sale of food products for human consumption there was a warranty imposed by law as a matter of public policy for the protection of public health, saying:\n\"Counsel endeavors to distinguish the Keller case, supra, from the present case. He says that in that case the dealer had an opportunity of inspecting the pork before selling it, which opportunity of inspection the defendant in the present case did not have because the peas sold to plaintiff were in a sealed tin can. Inasmuch as it appears from the opinion in the Keller case, and from several authorities cited therein, that public safety demands that in all sales of provisions for domestic *Page 630 \nuse by a retail dealer, there should be an implied warranty of the fitness and wholesomeness of said provisions for consumption, and inasmuch as it further appears in the Keller case, as also in the present case, that the retail dealer was not aware at the time of the sale of the unwholesomeness of the articles of food, we think that, under the facts of this case and the weight of authority, the defendant is liable on an implied warranty.\" This case was followed in Sloan v. F.W. Woolworth Co., 193 Ill. App. 620.\nThe Sales Act has not been adopted either in Kansas or in Missouri, but recent decisions in both of those states have held the retailer liable. Degouveia v. H.D. Lee Mercantile Co., 231 Mo. App. 447, 100 S.W.2d 336, involved the liability of the retailer for injuries resulting from a fly in a can of salmon. The Kansas City Court of Appeals refused to make an exception to the liability of the retail dealer in cases of canned goods, saying:\n\"Those authorities which deny liability on the part of the retail dealer, under such circumstances, say that their view of the matter is founded upon justice and reason. Admittedly, those authorities are based upon an exception to the general rule, which all authorities recognize, that is, that under common law principles there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the latter. Apparently all of the authorities agree that there should be no exception in the case of the sale of food in cans or sealed packages, unless the ends of justice would be better served by making one. We are doubtful if such ends would be better served by denying the liability of the retail dealer. There is no doubt but that the retail dealer is in a better position to know and ascertain the reliability and responsibility of the manufacturer of the article, which he is handling, than the purchaser from him. To adhere to the general rule places the responsibility upon the party to the contract best able to protect himself and to recoup himself in case of loss, because he knows, or comes in contact with, the manufacturer or the wholesaler, as the case may be, from whom he purchased the article and who, undoubtedly, would be responsible over to him, upon a proper showing, on the theory of breach of implied warranty of fitness.\"\nSwengel v. F. E. Wholesale Grocery Co., 147 Kan. 555,77 P.2d 930, demonstrates that the common law of implied *Page 631 \nwarranty of wholesomeness based upon public policy may be of wider scope than the implied warranty under the Sales Act. The injury was caused by drinking sauerkraut juice packed by a well-known canner. The court held that the retailer and all intermediate handlers were liable, and that the purchaser did not waive his right to rely upon the warranty by calling for a particular brand, saying:\n\"We think that a merchant, in displaying articles of food for sale, impliedly warrants that each and all of the articles are fit, whether of well known or little known brands, or whether packaged or not, and that the fact that the purchaser chooses one or the other should not relieve the dealer. And if the dealer is liable, under the circumstances instant in this case, so are the intermediate handlers.\"\nA very thorough discussion of the authorities on the question here involved, and of the reasons for holding the retailer of canned goods liable for damages caused by the unwholesomeness thereof, will be found in Cushing v. Rodman, 65 App. D.C., 258,82 F.2d 864, 104 A.L.R. 1023.\nOur own Court in the case of Walker v. Great Atlantic Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170, had before it a case in which the plaintiff had purchased from the defendant, a retail merchant, a can of corn which bore the label of the defendant as distributor and did not disclose the identity of the manufacturer. The judgment of the Court of Civil Appeals (104 S.W.2d 627), which held that the defendant was not liable, was reversed. The Court, speaking through Judge Martin, discussed both lines of authorities on the question of the liability of the retail dealer where the goods are in sealed cans, and after referring to the fact that the retailer's label on the can concealed the name of the manufacturer, finally concluded that whatever might be the general rule, under the peculiar facts of that case, the retailer was liable. During the discussion of the case, however, no doubt was left by the Court on the question of the unsoundness of the retailer's contention that he was entitled to escape liability on the theory of lack of knowledge or means of knowledge that the goods were unfit for human consumption. It was therein said by the Court:\n\"It will be noted that in the present case the Court of Civil Appeals, in reaching the conclusion that no implied warranty exists, emphasizes the lack of knowledge or means of knowledge *Page 632 \non the part of the seller of the unfitness of the food for human consumption. We turn aside here briefly to note that the Texas statute, known as our pure food laws, in pointed language repudiates this as a defense in all prosecutions for the sale of adulterated foods. Article 717 of the Penal Code in part provides: `It shall not be necessary for the indictment to allege or for the State to prove that the Act or omission was knowingly done or omitted.'\n\"Again: `No dealer shall be prosecuted under this chapter when he can establish a guaranty signed by the wholesaler, manufacturer, or other party residing in the United States from whom he purchased such article, to the effect that the same is not adulterated or misbranded within the meaning of this Act, designating it. Said guaranty, to afford protection, shall contain the name and address of the party making the sale of such article to such dealer, and in such case said party shall be amenable to the fines and other penalties which would attach in due course to the dealer under the provisions of this chapter.' Article 714, Penal Code.\n\"See, also, articles 706 and 707, Penal Code, and article 4471, R.S. 1925.\n\"We mention these only to illustrate a plain legislative purpose to protect the public against the sale of poison food, and to accomplish such it was thought necessary to abrogate as a defense the very matter emphasized as proper in the opinion supra. The sale and purchase in question was made presumptively with full knowledge of the above law by both parties. Defendant's store was what in modern parlance has come to be known as a `helpy selfy.' No statements were made by defendant concerning the kind or quality of the goods in question. The can of corn was so labeled as to conceal from the buyer the identity of the manufacturer. This conduct in legal effect put the retailer in the place of the manufacturer.\"\n3 Aside from the above authorities, which hold the retailer liable, we think the rule which would exempt him from liability merely because he has no means of knowing whether the contents of the sealed cans are unfit for human consumption is unsound in principle. In the first place, the local dealer is the only party with whom the consumer has had any dealings in the transaction. He is the one who got the consumer's money *Page 633 \nfor the worthless goods, and he is the one who should account to the consumer when it is found that the goods are not what they purport to be. In recognition of the obligation flowing from this relation it is a common practice for the consumer to return goods to the retailer and secure a refund of the purchase price when it is found that they are worthless. It is but natural that the consumer should look to the only one with whom he has dealt, instead of going to a stranger, for redress. Moreover, if the retailer is held responsible he will exercise greater precaution in determining the reliability and responsibility of the distributor or manufacturer. In the second place, it would amount to a practical denial, in some instances, of the right of the consumer to redress to hold that he must look exclusively to the manufacturer. It is a well-known fact that in many instances the product has been processed in a distant state or in a foreign country. This is well illustrated by the facts involved in the case of Burkhardt v. Armour Co., 115 Conn. 249, 161 A. 385, 98 A.L.R. 1260. In that case a resident of Connecticut purchased a can of meat from a local merchant, and the merchant had purchased it from Armour Company, of the State of Illinois, who in turn had purchased it from Frigorifico Armour de la Plata, of Argentina. The latter had purchased it from a local packer in Argentina. In such an instance the consumer would have to go to the foreign country for redress. This he could ill afford to do. In fact, the laws of the country where the goods had been processed might deny any recovery because of the lack of privity of contract. Moreover, the consumer would be required to prove that the food was unwholesome at the time it had been packed and that it had not deteriorated after leaving the manufacturer's hands. This would require the tracing of the product through the various refrigerators and warehouses in its entire route from the manufacturer to the consumer, and would present an insurmountable difficulty. The consumer should be permitted to recover from the one with whom he dealt and in accordance with the law of the country where his contract was made. An action against the retailer would afford him a remedy close at hand, which could be practically realized on; whereas, a right to sue a manufacturer in a foreign country might be of no avail. In the third place, the local dealer can protect himself against financial loss by demanding a guarantee of protection from his vendor, as he is required to do under Penal Code, Article 714 (hereinabove quoted), in order to protect himself against a criminal prosecution, and he can also plead over against his *Page 634 \nvendor and thus pass the loss back to the processor, where it properly belongs. The dealer is the one who selected his vendor and is the one who should be required to look to such prior vendor in order to recoup his loss. He, the retailer, is in much better position to put pressure on the one with whom he has dealt, and thus bring about an equitable adjustment of the loss. And in the fourth place, by making every one responsible who handles food products intended for human consumption a greater stimulus is provided to insure that none but wholesome food is sold, and thus there is afforded a better protection for human health and life in keeping with the declared policy of this State. See Vold on Sales, p. 466; Brown, \"Liability of Retail Dealers,\" 23 Minn. L. Rev. 585-611; Perkins, \"Unwholesome Food as a Source of Liability,\" 5 Ia. L.B. 6-35; Lessler, \"Implied Warranty of Quality in Sales of Food,\" 14 Conn. B.J. 45-63; Eldredge, \"Vendor's Tort Liability,\" 89 U. Pa. L. Rev. 306; Harris, \"Sales — Liability to a Consumer for Unwholesome Food,\" 9 U. of N.Y.L.Q. Rev. 360-366; Note, \"Sales — Implied Warranty of Wholesomeness of Foods,\" 12 Neb. L.B. 165-175.\nWe hold that a retailer who sells unwholesome food for human consumption is liable to the consumer for the consequences under an implied warranty imposed by law as a matter of public policy, even though the food is in sealed containers bearing the label of the manufacturer and the retailer has no means of knowing that the contents are unfit for human consumption. We answer the question certified by the Court of Civil Appeals in the affirmative.\nOpinion delivered July 22, 1942.","per_curiam":false,"type":"020lead"}],"posture":"Question certified by the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.\n\nNorman Josey brought this suit against a partnership doing business as the Griggs Canning Company and Jesus V. Ocon, a retail merchant doing business in Bexar County, for damages because of personal injuries to members of his family resulting from the eating of canned spinach which was unfit for human consumption, and which was purchased from the said Jesus V. Ocon in an unbroken package in which the Griggs Canning Company had packed it. Plaintiff alleged a cause of action against all defendants upon an implied warranty, and against the members of the canning company for negligence in the manner\nof packing the spinach. The suit was filed in Bexar County, the residence of the retail merchant Ocon, and defendants, individual members of the Griggs Canning Company, have filed a plea of privilege to be sued in Medina County, the county of their residence. The other defendants answered with pleas in abatement, demurrers and pleas in bar. Plaintiffs controverted the plea of privilege, and the plea of privilege was overruled. Defendants excepted to this action of the court and upon appeal to the Court of Civil Appeals, that court certified to the Supreme Court the question of the liability of the retail merchant.\n\nQuestion answered.","precedential_status":"Published","slug":"griggs-canning-co-v-josey"} {"case_name":"State v. Kidder","case_name_short":"Kidder","citation_count":3,"citations":["299 Neb. 232"],"court_full_name":"Nebraska Supreme Court","court_jurisdiction":"Nebraska, NE","court_short_name":"Nebraska Supreme Court","court_type":"S","date_filed":"2018-03-09","date_filed_is_approximate":false,"id":4495270,"opinions":[{"download_url":"https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00005867PUB","ocr":false,"opinion_id":4272523,"opinion_text":"Nebraska Supreme Court Online Library\nwww.nebraska.gov/apps-courts-epub/\n05/04/2018 12:09 AM CDT\n\n\n\n\n - 232 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\n\n\n\n State of Nebraska, appellee, v.\n M atthew J. K idder, appellant.\n ___ N.W.2d ___\n\n Filed March 9, 2018. No. S-16-1124.\n\n 1.\t Constitutional Law: Search and Seizure: Motions to Suppress:\n Appeal and Error. In reviewing a trial court’s ruling on a motion to\n suppress based on a claimed violation of the Fourth Amendment, an\n appellate court applies a two-part standard of review. Regarding histori-\n cal facts, an appellate court reviews the trial court’s findings for clear\n error. But whether those facts trigger or violate Fourth Amendment\n protections is a question of law that an appellate court reviews indepen-\n dently of the trial court’s determination.\n 2.\t Rules of Evidence: Other Acts: Appeal and Error. It is within the\n discretion of the trial court to determine relevancy and admissibility of\n evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev.\n Stat. § 27-404(2) (Reissue 2016), and the trial court’s decision will not\n be reversed absent an abuse of discretion.\n 3.\t Criminal Law: Convictions: Appeal and Error. In criminal cases,\n the purpose of harmless error review is to ensure convictions are not\n set aside for small errors or defects that have little, if any, likelihood of\n having changed the result of the trial.\n 4.\t Criminal Law: Appeal and Error. Harmless error jurisprudence rec-\n ognizes that not all trial errors, even those of constitutional magnitude,\n entitle a criminal defendant to the reversal of an adverse trial result.\n 5.\t Convictions: Appeal and Error. It is only prejudicial error, that is,\n error which cannot be said to be harmless beyond a reasonable doubt,\n which requires that a conviction be set aside.\n 6.\t Appeal and Error. When determining whether an alleged error is so\n prejudicial as to justify reversal, courts generally consider whether the\n error, in light of the totality of the record, influenced the outcome of\n the case.\n 7.\t Verdicts: Juries: Appeal and Error. Harmless error review looks to\n the basis on which the jury actually rested its verdict. The inquiry is\n\f - 233 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\n not whether in a trial that occurred without the error, a guilty verdict\n would surely have been rendered, but whether the actual guilty verdict\n rendered was surely unattributable to the error.\n 8.\t Trial: Evidence: Appeal and Error. In conducting harmless error\n analysis an appellate court looks to the entire record and views the erro-\n neously admitted evidence relative to the rest of the untainted, relevant\n evidence of guilt.\n 9.\t Verdicts: Evidence: Appeal and Error. Overwhelming evidence of\n guilt can be considered in determining whether the verdict rendered\n was surely unattributable to the error, but overwhelming evidence of\n guilt is not alone sufficient to find the erroneous admission of evi-\n dence harmless.\n10.\t Evidence: Appeal and Error. When conducting harmless error review,\n an appellate court may consider whether the improperly admitted evi-\n dence was cumulative and tended to prove the same point as other prop-\n erly admitted evidence.\n11.\t Appeal and Error. Plain error may be found on appeal when an error\n unasserted or uncomplained of at trial, but plainly evident from the\n record, prejudicially affects a litigant’s substantial right and, if uncor-\n rected, would result in damage to the integrity, reputation, and fairness\n of the judicial process.\n12.\t Sentences. A sentence validly imposed takes effect from the time it\n is pronounced, and any subsequent sentence fixing a different term is\n a nullity.\n13.\t ____. Any attempt to modify a sentence validly imposed is of no effect,\n and the original sentence remains in force.\n\n Appeal from the District Court for Douglas County:\nK imberly Miller Pankonin, Judge. Affirmed in part, and in\npart vacated and remanded with directions.\n\n Thomas C. Riley, Douglas County Public Defender, L. Robert\nMarcuzzo, Douglas A. Johnson, and Natalie M. Andrews for\nappellant.\n\n Douglas J. Peterson, Attorney General, and Austin N. Relph\nfor appellee.\n\n Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and\nFunke, JJ.\n\f - 234 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\n Stacy, J.\n Matthew J. Kidder appeals his convictions for first degree\nmurder and use of a deadly weapon to commit a felony. We\naffirm his convictions, but find plain error in the sentence\nimposed on the conviction for use of a deadly weapon to\ncommit a felony. We therefore vacate that sentence only and\nremand the cause with directions.\n\n FACTS\n On June 25, 2015, Jessica Nelson’s mother received a tele-\nphone call advising that Nelson had not shown up for work.\nHer mother went to Nelson’s house to check on her and dis-\ncovered Nelson’s body partially submerged in the bathtub,\nunclothed, with the water running. She was curled up in a\nfetal position, and one hand was clutching a cell phone charg-\ning cord. Nelson’s clothes were piled in the tub near her feet.\nBlood was pooled under Nelson’s head, and there was a liga-\nture mark on her neck.\n Police officers arrived and processed the scene as a homi-\ncide. Investigators found no point of forced entry into the\nhome. They took photographs and collected Nelson’s cell\nphone, the charging cord, and the clothes from the bathtub.\nBlood was found outside the bathroom, in the living room,\nand in Nelson’s bedroom. Swabs were taken of the cell phone\ncord and the various biological substances found throughout\nthe house. Investigators noticed Nelson’s right thumbnail was\nbent back, so they also swabbed under her fingernails and took\nfingernail clippings.\n An autopsy revealed bruises and abrasions on Nelson’s\nneck, hemorrhaging in her eyes, and a ligature mark on her\nneck that was consistent with the cell phone cord. The cause of\ndeath was strangulation. There was also evidence Nelson had\nbeen sexually assaulted. She had a laceration and bruising in\nher vaginal area, as well as contusions to her head, abdomen,\nand bowel.\n\f - 235 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\n Text Messages From K idder\n Nelson’s cell phone was analyzed, and detectives found\nwhat they described as “eerie” text message conversations\nwith a telephone number later confirmed to belong to Kidder.\nNelson and Kidder had known each other since childhood.\n The text conversation began on February 4, 2015. The first\nmessage arranged for Kidder to shovel snow from Nelson’s\ndriveway. For the next several months, Kidder texted Nelson,\noften suggesting they meet up. Typically, Nelson either turned\nKidder down or did not respond.\n On April 16, 2015, Kidder texted saying he needed some-\nplace to “h[a]ng out” while he waited to run an early morn-\ning errand, and he asked if he could stop at Nelson’s house.\nNelson agreed, but stated she would likely still be asleep\nand would leave the door unlocked. She told Kidder he\ncould watch television, nap on the couch, or use the chairs\noutside while he waited. Later, the following text conversa-\ntion occurred:\n [Kidder:] Ill admit, a little part of me wanted to run in\n and doggy pile you, but i didnt feel like being stabbed or\n beat up. Lol.\n [Nelson:] Lol yeah that def would’ve happened. Im a\n grouch when my sleep is interrupted unless you’re [my\n son], then I’m less grouchy lol[.]\n [Kidder:] Lol.\n Maybe next time.\n [Nelson:] If you want to die.\n I do keep a good sized knife in my nightstand drawer.\n [Kidder:] Challenge accepted.\n ....\n We will need to lay down some ground rules though.\n No hair pulling, no biting. Lol.\n [Nelson:] Or you could just leave me alone when I’m\n sleeping. Save us all the hassle[.]\nKidder continued to text Nelson regularly, and some of\nKidder’s messages were sexual in nature. On June 19, a few\n\f - 236 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\ndays before the murder, Kidder sent Nelson the following\nsequence of text messages:\n [Kidder:] Scale of feeling playful stabby to murdered\n on my sleep.\n Yeah. Trying to make a joke, and now shes mad at\n me. Lol.\n In*\n I figured itd be a funny “breaking the ice” joke since\n every other guy sends dick pics for their first or all com-\n munication and im the one who asked off\n the wall questions.\nNelson did not respond to these text messages; nor did she\nrespond to the text message Kidder sent several days later, on\nthe evening of June 24, asking, “Who’s down to hang out or\ncatch a movie saturday night?”\n\n DNA Evidence\n Forensic analysts found two DNA profiles on the cell phone\ncord collected from the crime scene. Nelson could not be\nexcluded as one of the contributors, and Kidder could not be\nexcluded as the other contributor. The probability of someone\nother than Nelson and Kidder being the contributors of the\nDNA profiles on the cell phone cord was 1 in 254 million for\nCaucasians, 1 in 14.3 billion for African Americans, and 1 in\n1.68 billion for American Hispanics.\n The swab taken from under the fingernails on Nelson’s\nleft hand revealed similar results: Two profiles were present,\nNelson could not be excluded as the contributor for one, and\nKidder could not be excluded as the contributor for the other.\nThe probability of someone other than Nelson and Kidder\nbeing the contributors to the DNA found under Nelson’s left\nfingernail was 1 in 101 million for Caucasians, 1 in 10.6 bil-\nlion for African Americans, and 1 in 936 million for American\nHispanics.\n A mixture of DNA was found under Nelson’s right thumb-\nnail, which was bent back. Nelson could not be excluded\n\f - 237 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\nas the major contributor, and Kidder could not be excluded\nas the minor contributor. The probability of someone other\nthan Kidder being the minor contributor was 1 in 1,550 for\nCaucasians, 1 in 33,330 for African Americans, and 1 in 5,800\nfor American Hispanics. The analyst testified that the lower\nprobabilities were a function of the fact that only a partial DNA\nprofile was developed.\n Historical Cell Site\n Location Information\n Detectives obtained Kidder’s cell phone records from his\nservice provider. Using historical cell site location informa-\ntion, detectives determined that Kidder’s cell phone used a cell\ntower in the area near Nelson’s home at 11:56 p.m. on June 24,\n2015, and again at 12:02 a.m. on June 25. Almost 30 minutes\nlater, at 12:29 a.m., Kidder’s cell phone used cell towers in the\nvicinity of his residence.\n K idder’s Statements\n Several days after the murder, police interviewed Kidder.\nThey noticed he had a cut on his hand, consistent with a\nfingernail. Kidder said he received the cut while working on\nJune 24, 2015, but he did not report it to his employer. Kidder\nexplained that he worked from 3 to 11:40 p.m. most weekdays\nand that he checked Facebook during his breaks. Kidder’s\nworkplace was near Nelson’s house. Kidder provided police\nwith a DNA sample and exemplar fingerprints and allowed\npolice to download information from his cell phone.\n Several weeks later, Kidder was taken to a police sta-\ntion for additional questioning about Nelson’s murder. After\nwaiving his Miranda1 rights, Kidder was asked about Nelson\nand stated:\n I kinda classify women into like three stages: ones I could\n be friends with, ones I just want to see naked, and ones I\n\n 1\t\n See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694\n (1966).\n\f - 238 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\n want to sleep with. . . . [Nelson] was kinda in between I\n want to see her naked and no feelings . . . just because she\n had a nice rack. . . . She had nice boobs.\nKidder repeatedly denied visiting Nelson’s home on June 24,\n2015—the night of the murder. But he told police he was at\nher home on June 23 to help her move furniture, and he made\na point of mentioning he sweated heavily on Nelson’s couch\nand mattress. At the conclusion of the interview, Kidder was\narrested for Nelson’s murder.\n While Kidder was in jail, he called his father. The jail\ncall was recorded. During the call, Kidder admitted he was\nat Nelson’s house for about 20 minutes on the night she\nwas killed.\n K idder’s Statements\n to Cellmate\n While in jail, Kidder shared a cell with Randy Anderson\nfor approximately 20 hours. Afterward, Anderson contacted\npolice and offered to testify about statements Kidder made\nto Anderson while they were cellmates. When Anderson con-\ntacted police, he was awaiting sentencing on plea-based con-\nvictions for burglary and making terroristic threats.\n At trial, Anderson testified that Kidder told him the fol-\nlowing: On June 24, 2015, Kidder saw Nelson’s Facebook\npost about being home alone. After getting off work around\nmidnight, Kidder went to Nelson’s home and knocked on the\nside door. Nelson unlocked the chain on the door and let him\nin. Almost immediately, Kidder somehow caused an injury\nto Nelson’s face. She screamed, and Kidder began strangling\nher with his hands. As they struggled, Nelson cut Kidder’s\nhand with her fingernail. Eventually Nelson lost consciousness.\nKidder then took her to the bedroom and removed her sweat-\npants. Kidder did not directly admit that he sexually assaulted\nNelson, but he did admit that he strangled her to death with\nthe cell phone cord, then placed her in the bathtub and ran the\nwater to “rins[e] DNA.”\n\f - 239 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\n Anderson also knew several details about the crime and\nthe crime scene before they became public knowledge. For\nexample, Anderson knew that (1) after the murder, Kidder\nwashed his shoes and stuffed them with newspaper to dry\nthem; (2) Nelson had a chain lock on her door; (3) Nelson was\nin the fetal position in the bathtub; (4) Nelson had an L-shaped\nsectional couch that was cut during the assault; and (5) Nelson\nwas wearing sweatpants the night she was killed.\n Evidence From K idder’s\n Laptop Computer\n After Kidder was arrested, police obtained a warrant to\nsearch Kidder’s home. One of the items seized pursuant to the\nwarrant was a laptop computer found in Kidder’s bedroom.\nA few days later, police obtained a second search warrant,\nauthorizing an examination of Kidder’s laptop computer to\nsearch and copy the following data: user account information,\nmedia files such as images and videos, document files, Internet\nbrowsing history and associated cache files, email messages,\nand chat and instant messages.\n While searching Kidder’s Internet browsing history files,\na forensic analyst found that Kidder’s laptop computer was\nused to search an Internet pornography website using terms\nlike “strangled,” “forced fucked,” “fucked by intruder,” and\n“pantyhose bound.” Because the searches were conducted\nwhile the laptop computer was in private browsing mode, the\navailable history was limited. But the forensic analyst was\nable to determine the website was accessed between June 20\nand July 17, 2015. The analyst also determined that a video\ntitled “Psycho-Thrillers presents Waitress Kidnapped, Raped,\nand Strangled” had been downloaded on July 17. That video\ndepicted a man kidnapping a waitress, forcing her to have sex\nat gunpoint, strangling her with a belt when she resisted, and\ncontinuing to sexually assault her after she was dead. Three\nother videos with similar content were also found on Kidder’s\nlaptop computer.\n\f - 240 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\n Motions to Suppress and\n Motion in Limine\n Kidder moved to suppress the evidence obtained from the\nsearch of his laptop computer, arguing that neither search war-\nrant was supported by probable cause. In addition, he argued\nthe warrant to search the laptop computer was overbroad and\ninsufficiently particular.\n Kidder also filed a motion in limine seeking to exclude the\nevidence obtained from his laptop computer. He argued the\nevidence was hearsay, irrelevant, and unfairly prejudicial. He\nalso argued a Neb. Evid. R. 4042 hearing was necessary to\ndetermine the admissibility of the evidence because it involved\nprior bad acts.\n The district court overruled the motions to suppress. It\nfound that the search warrants were supported by probable\ncause or, alternatively, that either the good faith exception or\nthe independent source doctrine applied. Regarding testimony\nabout the Internet browsing history and violent pornography,\nthe district court found it was admissible without a rule 404\nhearing because it was “intrinsic evidence forming the factual\nsetting of the crime or forming an integral part of the crime.”\nThe court did not permit the videos to be shown to the jury or\nreceived into evidence. But at trial, the forensic analyst was\npermitted, over objection, to testify about the search terms\nfound in Kidder’s Internet browsing history and to describe,\nin general terms, the content of the downloaded video that\ndepicted a woman being sexually assaulted, strangled to death\nwith a belt, then further assaulted.\n Evidence of Prior\n Sexual Assault\n The jury heard evidence that in 2008, Kidder had sexually\nassaulted one of his friends in her home. Kidder had gone to\nthe woman’s home, claiming to be locked out of his house.\n\n 2\t\n See Neb. Rev. Stat. § 27-404 (Reissue 2016).\n\f - 241 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\nShe let him in, and after a few minutes of talking, Kidder\ngrabbed the woman and threw her to the ground. He got on top\nof her and placed his hands on her neck. She began to scream,\nso Kidder moved his hands to her mouth and nose, closing her\nairways. She briefly shoved his hands off and screamed “no,”\nbut Kidder’s hands returned over her face and his grip got\ntighter. Eventually, she shoved Kidder’s hands off again, but\nthis time she told him “okay.” Kidder then sexually assaulted\nthe woman and left. Kidder subsequently entered a plea of no\ncontest to a charge of attempted first degree sexual assault.\nThe district court in the instant case ruled that evidence of the\n2008 sexual assault was admissible under Neb. Evid. R. 414,\nNeb. Rev. Stat. § 27-414 (Reissue 2016). No error is assigned\nto this ruling on appeal.\n\n Verdicts and Sentencing\n The jury found Kidder guilty on count I, first degree murder,\nand on count II, use of a deadly weapon to commit a felony.\nThe district court imposed a sentence of life imprisonment on\ncount I. On count II, the court initially imposed a consecutive\nprison sentence of 50 to 50 years but, after a sidebar confer-\nence requested by defense counsel, reduced the term to 20 to\n20 years. The State urges us to find plain error on this basis,\nso we set out the pertinent portion of the sentencing colloquy\nin its entirety:\n [The court:] So, it is the judgment and sentence of\n this Court . . . that you be imprisoned in an institution\n under the jurisdiction of the Nebraska Department of\n Correctional Services for a period of life on Count [I]\n and 50 to 50 years on Count [II]. Both sentences to be\n served consecutively. I’ll give you credit of 475 days you\n have against that sentence.\n Also pursuant to Nebraska statute, you’ll be required\n to give a sample of your DNA.\n Is there anything further?\n [Defense counsel]: Your Honor, may I approach?\n\f - 242 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\n THE COURT: You may.\n [Defense counsel]: Thank you.\n (Off-the-record discussion at the bench)\n THE COURT: For clarification for the record, the\n offense date in this case is June 25th, 2015, which was\n two months prior to the law change. The law changed on\n Class [II] felonies in August of 2015, making it a one to\n 50. This was prior to the law change, which then brings\n the penalty range on the Class [II] as a 1 to 20.\n So, therefore, I am going to clarify and in con-\n formance with the proper statute, the Count [II], the\n judgment and sentence of the Court is that you be\n sentenced under an institution under the jurisdiction of\n the Nebraska Department of Correctional Services for\n a period of 20 to 20, which is the maximum sentence\n for the law at that time. Those two sentences will [run]\n consecutively.\nThe trial court entered a sentencing order reflecting the life\nsentence pronounced on count I and the modified sentence\nof 20 to 20 years’ imprisonment on count II. Kidder timely\nappealed his convictions.\n\n ASSIGNMENTS OF ERROR\n Kidder assigns, restated, that the district court erred in (1)\noverruling his motion to suppress evidence acquired as a result\nof seizing and searching his laptop computer and (2) over-\nruling his motion in limine and permitting the State to offer\ntestimony about his Internet browsing history.\n\n STANDARD OF REVIEW\n [1] In reviewing a trial court’s ruling on a motion to sup-\npress based on a claimed violation of the Fourth Amendment,\nan appellate court applies a two-part standard of review.3\nRegarding historical facts, an appellate court reviews the trial\n\n 3\t\n State v. Hidalgo, 296 Neb. 912, 896 N.W.2d 148 (2017).\n\f - 243 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\ncourt’s findings for clear error.4 But whether those facts trig-\nger or violate Fourth Amendment protections is a question of\nlaw that an appellate court reviews independently of the trial\ncourt’s determination.5\n [2] It is within the discretion of the trial court to determine\nrelevancy and admissibility of evidence of other wrongs or\nacts under rule 404(2), and the trial court’s decision will not be\nreversed absent an abuse of discretion.6\n\n ANALYSIS\n Both of Kidder’s assigned errors pertain to the admission\nof evidence discovered through forensic analysis of his lap-\ntop computer. He argues it was error to admit this evidence\nbecause it was obtained using search warrants that lacked\nprobable cause and were overly broad and insufficiently par-\nticular. He also argues that a rule 404 hearing was required to\ndetermine the admissibility of such evidence.\n The State counters that the search warrants were supported\nby probable cause and were sufficiently particular, and it\nargues no rule 404 hearing was necessary because the lap-\ntop computer evidence was inextricably intertwined with the\ncharged crimes. Alternatively, the State argues that any error in\nadmitting the evidence was harmless.\n For the reasons discussed below, we agree any error was\nharmless and thus do not address the merits of whether the\nevidence was properly admitted.\n\n H armless Error\n [3] Pursuant to Neb. Evid. R. 103, Neb. Rev. Stat. § 27-103(1)\n(Reissue 2016), “[e]rror may not be predicated upon a rul-\ning which admits or excludes evidence unless a substantial\n\n 4\t\n Id.\n 5\t\n Id.\n 6\t\n State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016), cert. denied ___\n U.S. ___, 137 S. Ct. 1212, 197 L. Ed. 2d 254 (2017).\n\f - 244 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\nright of the party is affected[.]” When it comes to eviden-\ntiary error, this statutory authority forms the foundation for\nthis court’s harmless error jurisprudence. Generally speak-\ning, in criminal cases, the purpose of harmless error review\nis to ensure convictions are not set aside “‘for small errors or\ndefects that have little, if any, likelihood of having changed the\nresult of the trial.’”7\n [4,5] Harmless error jurisprudence recognizes that not all\ntrial errors, even those of constitutional magnitude, entitle a\ncriminal defendant to the reversal of an adverse trial result.8 It\nis only prejudicial error, that is, error which cannot be said to\nbe harmless beyond a reasonable doubt, which requires that a\nconviction be set aside.9\n [6,7] When determining whether an alleged error is so preju-\ndicial as to justify reversal, courts generally consider whether\nthe error, in light of the totality of the record, influenced the\noutcome of the case.10 In other words, harmless error review\nlooks to the basis on which the jury actually rested its verdict.11\nThe inquiry is not whether in a trial that occurred without the\nerror, a guilty verdict would surely have been rendered, but\nwhether the actual guilty verdict rendered was surely unattrib-\nutable to the error.12\n [8-10] In conducting this analysis, an appellate court looks\nto the entire record and views the erroneously admitted evi-\ndence relative to the rest of the untainted, relevant evidence\nof guilt.13 Overwhelming evidence of guilt can be considered\n\n 7\t\n State v. Britt, 293 Neb. 381, 423-24, 881 N.W.2d 818, 847 (2016).\n 8\t\n State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).\n 9\t\n Id.\n10\t\n Id.\n11\t\n State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).\n12\t\n Id.\n13\t\n State v. Britt, supra note 7; State v. DeJong, 287 Neb. 864, 845 N.W.2d\n 858 (2014); State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).\n\f - 245 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\nin determining whether the verdict rendered was surely unat-\ntributable to the error, but overwhelming evidence of guilt is\nnot alone sufficient to find the erroneous admission of evidence\nharmless.14 An additional consideration is whether the improp-\nerly admitted evidence was cumulative and tended to prove the\nsame point as other properly admitted evidence.15\n The record in this case demonstrates that any error in\noverruling the motion to suppress and the motion in limine\nwas harmless. Both motions related exclusively to evidence\nobtained from Kidder’s laptop computer. That evidence\nshowed that sometime between June 20 and July 17, 2015,\nKidder used explicit terms to search with his laptop com-\nputer for violent pornographic videos depicting acts that were\nsimilar to the manner in which Nelson was killed. We must\nconsider this evidence relative to the rest of the evidence of\nKidder’s guilt.\n First, there was uncontroverted physical evidence establish-\ning Kidder’s guilt. Kidder’s DNA was found on Nelson’s fin-\ngernails and on the cell phone cord used to strangle her. A few\ndays after Nelson’s body was discovered, Kidder was observed\nto have a cut on his hand consistent with a fingernail mark,\nand when Nelson’s body was discovered, her thumbnail was\nbent back.\n Next, there was detailed evidence of a confession. Kidder’s\ncellmate testified that Kidder confessed to Nelson’s murder.\nThe cellmate’s credibility was strengthened by the fact that he\nknew details about the crime and the crime scene that had not\nbeen released to the public.\n Finally, in addition to the physical evidence and the confes-\nsion, there was considerable circumstantial evidence estab-\nlishing Kidder had both the motive and the opportunity to\ncommit the crimes. Kidder left work shortly before the crimes\n\n14\t\n State v. Britt, supra note 7; State v. DeJong, supra note 13.\n15\t\n State v. Britt, supra note 7; State v. Trice, 292 Neb. 482, 874 N.W.2d 286\n (2016).\n\f - 246 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\noccurred, and cell site location information placed his cell\nphone in the vicinity of Nelson’s home around the time she\nwas assaulted and strangled. Kidder also admitted to his father,\nin a recorded telephone conversation, that he was at Nelson’s\nhouse for about 20 minutes on the night of the murder. Kidder\nadmitted to investigators he wanted to “see [Nelson] naked,”\nand Kidder’s text messages to Nelson contained sexual over-\ntures that were either rebuffed or ignored. There was evidence\nthat in 2008, Kidder had choked and sexually assaulted a friend\nafter she allowed him into her home. Likewise, Nelson was a\nfriend of Kidder’s and there were no signs of forced entry into\nNelson’s home.\n The untainted, relevant evidence of Kidder’s guilt was over-\nwhelming, and the laptop computer evidence was cumulative\nof other relevant evidence tending to prove motive. Thus, even\nif the evidence obtained from Kidder’s laptop computer was\nerroneously admitted at trial, we find the guilty verdicts were\nsurely unattributable to that evidence. Any error in admit-\nting the evidence from Kidder’s laptop computer was harm-\nless beyond a reasonable doubt. We therefore reject both of\nKidder’s assignments of error and affirm his convictions.\n Plain Error in Sentencing\n The State asks that we find plain error in the sentence\nimposed on count II. It contends the trial court’s initial sen-\ntence to a prison term of 50 to 50 years was validly imposed\nand took effect as soon as it was pronounced and that the\ncourt’s subsequent reduction of the term to 20 to 20 years’\nimprisonment was a nullity. We agree.\n [11] Plain error may be found on appeal when an error\nunasserted or uncomplained of at trial, but plainly evident\nfrom the record, prejudicially affects a litigant’s substantial\nright and, if uncorrected, would result in damage to the integ-\nrity, reputation, and fairness of the judicial process.16\n\n16\t\n State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).\n\f - 247 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\n The judge’s remarks during sentencing suggest that during\nan off-the-record sidebar discussion, the court was advised\nthat the sentence it had just pronounced on count II was out-\nside the penalty range for Class II felonies. But the sentence\noriginally imposed was not outside the penalty range.\n On count II, Kidder was found guilty of use of a deadly\nweapon, other than a firearm, to commit a felony.17 At the\ntime of Kidder’s offense, and at the time of his sentencing,\nthis crime was classified as a Class II felony,18 punishable by\na minimum of 1 year’s and a maximum of 50 years’ impris-\nonment.19 Thus, the court’s initial pronouncement on count II\n(imposing 50 to 50 years’ imprisonment) was valid, and the\nquestion becomes whether the subsequent modification of that\nvalid sentence was plain error.\n [12,13] We have consistently applied the rule that a\nsentence validly imposed takes effect from the time it is\npronounced,20 and we have explained that any subsequent\nsentence fixing a different term is a nullity.21 We have applied\nthis rule to attempts to modify a valid pronouncement during\nthe sentencing hearing22 and to attempts to modify a valid\nsentence that has been put into execution.23 Thus, any attempt\n\n17\t\n See Neb. Rev. Stat. § 28-1205(1)(a) and (b) (Reissue 2016).\n18\t\n § 28-1205(1)(b).\n19\t\n Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).\n20\t\n See, State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014); State v. Clark,\n 278 Neb. 557, 772 N.W.2d 559 (2009); State v. Schnabel, 260 Neb. 618,\n 618 N.W.2d 699 (2000); State v. Kinney, 217 Neb. 701, 350 N.W.2d 552\n (1984); State v. Cousins, 208 Neb. 245, 302 N.W.2d 731 (1981); State\n v. Snider, 197 Neb. 317, 248 N.W.2d 342 (1977), overruled on other\n grounds, State v. Cousins, supra note 20.\n21\t\n State v. Kinney, supra note 20; State v. Cousins, supra note 20; State v.\n Snider, supra note 20.\n22\t\n See, State v. Kinney, supra note 20; State v. Cousins, supra note 20.\n23\t\n See, State v. Clark, supra note 20; State v. Schnabel, supra note 20.\n\f - 248 -\n Nebraska Supreme Court A dvance Sheets\n 299 Nebraska R eports\n STATE v. KIDDER\n Cite as 299 Neb. 232\n\nto modify a sentence validly imposed is of no effect, and the\noriginal sentence remains in force.24\n It is possible, in limited circumstances, to correct an inad-\nvertent mispronouncement of a valid sentence before the\ndefendant has left the courtroom,25 but that is not the circum-\nstance here. The district court did not mispronounce its initial\nsentence of 50 to 50 years’ imprisonment on count II. To the\ncontrary, it is evident from the judge’s sentencing remarks\nthat she intended to sentence Kidder to the maximum term\nof imprisonment authorized by the law. Because the sentence\noriginally pronounced was valid, it took effect as soon as it was\npronounced and any attempt thereafter to modify it to a term\nof 20 to 20 years’ imprisonment was plainly erroneous and of\nno legal effect.\n We thus vacate that portion of the sentencing order impos-\ning a term of 20 to 20 years’ imprisonment on count II and\nremand the cause to the district court with directions to rein-\nstate the valid term originally pronounced on that count.\n CONCLUSION\n For the foregoing reasons, we reject Kidder’s assignments\nof error and affirm his convictions. We find plain error in\nmodifying the term of the sentence validly imposed on count\nII and therefore vacate that portion of the sentencing order\nand remand the cause to the district court with directions to\nreinstate the term of 50 to 50 years’ imprisonment originally\npronounced. In all other respects, the judgment of the district\ncourt is affirmed.\n\tA ffirmed in part, and in part vacated\n\t and remanded with directions.\n K elch, J., not participating in the decision.\n Wright, J., not participating.\n\n24\t\n Id.\n25\t\n See State v. Clark, supra note 20.\n\f","page_count":17,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"state-v-kidder"} {"attorneys":" Carl D. Poen, pro se. Ralph W. Jones , for the respondent. ","case_name":"Poen v. Commissioner","case_name_full":"CARL D. and NELLIE G. POEN v. COMMISSIONER OF INTERNAL REVENUE","case_name_short":"Poen","citation_count":0,"citations":["38 T.C.M. 910","1979 Tax Ct. Memo LEXIS 298","1979 T.C. Memo. 226"],"court_full_name":"United States Tax Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Tax Court","court_type":"FS","date_filed":"1979-06-11","date_filed_is_approximate":false,"id":4811096,"opinions":[{"ocr":false,"opinion_id":4594523,"opinion_text":"CARL D. and NELLIE G. POEN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, RespondentPoen v. CommissionerDocket No. 3040-78.United States Tax CourtT.C. Memo 1979-226; 1979 Tax Ct. Memo LEXIS 298; 38 T.C.M. (CCH) 910; T.C.M. (RIA) 79226; June 11, 1979, Filed *298 Carl D. Poen, pro se. Ralph W. Jones, for the respondent. SCOTTMEMORANDUM OPINION SCOTT, Judge: Respondent determined a deficiency in petitioners' Federal income tax for the calendar year 1976 in the amount of $7,315.08. In their petition, petitioners alleged error in respondent's determination for violation of their constitutional rights and referring to the manner in which their return was prepared as an expression of protest. Petitioners assign as grounds for their allegations of error only that their rights under the Fifth Amendment to the Constitution of the United States have been violated. Respondent in his answer affirmatively alleged a claim for an addition to tax under section 6653(a), I.R.C. 1954, in the amount of $365.75. On March 6, 1979, respondent filed a motion for partial summary judgment asking for summary judgment for the deficiency as determined in the notice of deficiency. Respondent's motion was heard in Boise, Idaho, at the same time that a trial was held on respondent's affirmative allegations. The issues here are whether respondent's determination of a deficiency in some way violates petitioners' rights under the Fifth Amendment,*299 and whether respondent has established that a part of petitioners' understatement of tax is due to negligence or intentional disregard of rules and regulations. Petitioners, who resided in Nampa, Idaho, at the time their petition in this case was filed, filed a joint Federal income tax return for the calendar year 1976. Attached to this return were three W-2 Forms showing total salaries or wages paid to the two petitioners during the calendar year 1976 in the amount of $34,813, and that from the salaries and wages so paid the amount of $4,447.42 was withheld for Federal income taxes. The return showed petitioners' name, address, social security number, and the occupation of Carl D. Poen as shop foreman and of Nellie G. Poen as clerk. Also the return showed petitioners as claiming four personal exemptions, two for themselves and two exemptions for two dependent children, the names of the children being given. In the spaces provided on the Form 1040 for showing wages, salaries, dividends, interest income and other income, as well as adjusted gross income, appear \"* *\".In each space provided for showing the computation of the amount of tax due and the space for showing total tax*300 due appears the word, \"NONE.\" The return was signed by each petitioner under penalties of perjury. Attached to the return was a form letter requesting to be shown how a return could be filed without waiving \"1st, 4th, 5th, 7th, 8th, 9th, 10th, 13th, 14th and 16th Amendment Rights\"; a purported affidavit questioning what is a \"Dollar\"; articles discussing how tax dollars are spent, foreign aid, and the U.S. Supreme Court decision with respect to abortion. There were also various other attachments to the return consisting of copies of articles concerning various aspects of Government and other matters. Respondent in his notice of deficiency computed petitioners' tax on the basis of the total income as shown on the Forms W-2 filed by petitioners. Following the computation, respondent showed the amount of tax which had been withheld and the amount to be paid, and explained in the deficiency notice that the amount shown as a deficiency may not be the amount billed since all or a portion of the refund claimed had been held to offset a portion of the deficiency. Respondent's explanation of the adjustment in the deficiency notice was that an adjustment on a Federal income tax return*301 as an expression of protest is not provided for in the law. Petitioners at the hearing agreed that they had received income as shown on the Forms W-2 filed with their return. Their only contention was that the determination of deficiency violated their Fifth Amendment rights. There is no merit whatsoever to petitioners' claim of error in respondent's determination of a deficiency in their tax based on the Fifth Amendment to the Constitution. Petitioners attached to their return the W-2 Forms showing the amount paid to them as salaries and wages, and it is this amount only on which respondent computed the tax due by them. The return as filed by petitioners made no claim for itemized deductions and reported no income other than salaries and wages as shown on the Forms W-2 attached to the return. Under these circumstances, it is difficult to see to what petitioners refer in claiming rights under the Fifth Amendment. If petitioners are intending to contend that their Fifth Amendment rights are being violated by being required to file an income tax return, this is not a valid position. United States v. Sullivan,274 U.S. 259\">274 U.S. 259 (1927); Cupp v. Commissioner,65 T.C. 68\">65 T.C. 68 (1975),*302 affd. 559 F.2d 1207\">559 F.2d 1207 (3d Cir. 1977). If petitioners are contending that to require them to come forward to prove error in respondent's determination by showing that they would have deductions in excess of the standard deduction on which basis respondent computed their income tax, this arguent is likewise invalid. Roberts v. Commissioner,62 T.C. 834\">62 T.C. 834, 838 (1974). Petitioners, in their oral argument and their brief, cite a number of cases dealing with rights of parties under the Fifth Amendment. However, none of these cases are relevant to the issue here. We grant respondent's motion for partial summary judgment and will find the deficiency in petitioners' tax as set forth in the statutory notice of deficiency. The only evidence respondent offered at the trial to support his affirmative allegation of the addition to tax for negligence was petitioners' tax return for the year 1976. The Court at the trial called attention to the paucity of the evidence offered to support the affirmative allegation, and counsel for respondent stated that he would rest on the record as it stood. The return filed by petitioners does not show the figures for income received*303 by petitioners in the space where such figures should appear. However, respondent's computation in the notice of deficiency is based on the income shown on the Forms W-2 attached to the return. The major defect in petitioners' return is that it contains no tax computation, instead showing no tax due when in fact tax was due based on the income from salaries or wages shown on the return. Since the return showed no tax due, it appears that no tax was paid with the return even though had the tax due been properly computed it would have exceeded the tax withheld and a payment should have been made by petitioners when the return was filed. Our question therefore becomes whether the failure to make a tax computation on the return and pay the tax due along with the return is negligence and an intentional disregard of rules and regulations. In our view these failures to comply with the rules and regulations standing alone are not sufficient to sustain respondent's burden of showing that part of the underpayment is due to negligence or intentional disregard of rules and regulations.Too much is left to speculation. Had the evidence shown whether petitioners had in prior years filed proper*304 returns, an assumption as to petitioners' negligence or intentional disregard of rules and regulations by not including a tax computation on their return for the year here in issue could more properly be made. The burden of proof of an affirmative allegation is on respondent. In this case he has failed to carry this burden. An appropriate order and decision will be entered.","per_curiam":false,"type":"010combined"}],"precedential_status":"Unpublished","slug":"poen-v-commissioner"} {"attorneys":"Douglas W. Samski, pro se. William E. Bonano, for the respondent. ","case_name":"Samski v. Commissioner","case_name_full":"DOUGLAS W. SAMSKI v. COMMISSIONER OF INTERNAL REVENUE","case_name_short":"Samski","citation_count":0,"citations":["52 T.C.M. 156","1986 Tax Ct. Memo LEXIS 239","1986 T.C. Memo. 366"],"court_full_name":"United States Tax Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Tax Court","court_type":"FS","date_filed":"1986-08-11","date_filed_is_approximate":false,"id":4826874,"opinions":[{"ocr":false,"opinion_id":4626025,"opinion_text":"DOUGLAS W. SAMSKI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, RespondentSamski v. CommissionerDocket No. 31389-83.United States Tax CourtT.C. Memo 1986-366; 1986 Tax Ct. Memo LEXIS 239; 52 T.C.M. (CCH) 156; T.C.M. (RIA) 86366; August 11, 1986. Douglas W. Samski, pro se. William E. Bonano, for the respondent. WRIGHTMEMORANDUM FINDINGS OF FACT AND OPINION WRIGHT, Judge: Respondent determined deficiencies and additions to tax due from petitioner for the years 1980 and 1981 as follows: Additions to TaxYearDeficiencySec. 6653(b) 1Sec. 6654 21980$3,850$1,925$5419814,6872,344308After concessions, the issues*240 for decision are: (1) whether there are deficiencies in petitioner's income tax in the amounts determined by respondent for the years 1980 and 1981; (2) whether petitioner is liable for additions to tax under section 6653(b) for taxable years 1980 and 1981; (3) whether petitioner is liable for an addition to tax under section 6654 for 1981; and (4) whether petitioner is liable for damages under section 6673. FINDINGS OF FACT Some of the facts have been stipulated and are so found. The stipulation of facts and attached exhibits are incorporated herein by this reference. When the petition in this case was filed petitioner resided in Modesto, California. Petitioner was a civil engineering technician employed by the City of Modesto during the years here in issue. Petitioner graduated from high school and completed 2 1/2 years*241 of college. He has continued his education by taking one course per year in night school. Petitioner filed Federal income tax returns reporting various amounts of wage income for the years 1976, 1977, 1978, and 1979. Petitioner had income from wages for the years 1980 and 1981 in the amounts of $19,941.95 and $22,679.56, respectively. He received Forms W-2 from his employer reflecting those amounts. Petitioner also received interest income in the amount of $96 in 1980 and $58 in 1981. Petitioner is entitled to itemized deductions for the years 1980 and 1981 in the amounts of $3,583 and $3,526, respectively, after allowance for the zero bracket amount. Petitioner submitted Forms 1040 for the years 1980 and 1981. These forms contained no information from which his taxable income could be determined. The phrases \"Object Self-incrimination\" or the word \"None\" appeared opposite each line item, except that the Form 1040 filed by petitioner for 1980 reflected the amount of Federal income tax withheld by his employer. Petitioner was advised by letters dated June 5, 1981, and July 6, 1982, that the Forms 1040 he submitted for 1980 and 1981 were not acceptable as Federal income tax*242 returns. On July 7, 1981, petitioner wrote to the Director of the Internal Revenue Service Center at Fresno, California. In his letter, petitioner stated that the Fifth Amendment of the United States Constitution gave him the right to refuse to provide the information requested on his Federal income tax return. On May 12, 1976, April 10, 1980, and April 28, 1980, petitioner executed and filed with his employer Forms W-4 (\"Employees Withholding Allowance Certificate\"). On the Form W-4 filed May 12, 1976, petitioner claimed 6 withholding allowances. On the Form W-4 filed April 10, 1980, petitioner claimed 3 withholding allowances. On the Form W-4 filed April 28, 1980, petitioner claimed 4 withholding allowances. Each of these forms reflected the proper number of allowances based on petitioner's marital status and number of dependents at the time the form was filed. On February 25, 1981, petitioner executed a Form W-4 and filed a Form W-4 with his employer on which he claimed to be exempt from Federal income tax withholding because he did not owe any Federal income tax in 1980 and did not expect to owe any Federal income tax in 1981. Above the signature line on the Forms W-4*243 filed by petitioner the following statement appears: \"Under the penalties of perjury, I certify that I am entitled to the number of withholding allowances claimed on this certificate, or if claiming exemption from withholding, that I am entitled to claim the exempt status.\" In a notice of deficiency dated August 16, 1983, respondent determined deficiencies in petitioner's Federal income tax for 1980 and 1981, and additions to tax thereon under section 6653(b) and section 6654. Mr. Samski filed his petition in this Court on November 7, 1983. In his petition, petitioner stated that the determination of the deficiency and the additions to tax were arbitrarily determined and that this was done solely because petitioner claimed his constitutional rights. OPINION The first issue for consideration is whether there is a deficiency in income tax due from petitioner for taxable years 1980 and 1981. The parties have stipulated as to the amount of wage and interest income received by petitioner during those years, and to the amount of excess itemized deductions to which petitioner is entitled. Respondent's determination of the deficiencies is presumptively correct. Welch v. Helvering,290 U.S. 111\">290 U.S. 111 (1933);*244 Rule 142(a). In his Memorandum of Law, petitioner abandons 6 of the 7 arguments he had raised in contesting the deficiencies determined by respondent, including his claims that the notice of deficiency was issued without due process; that under the Fifth Amendment he had a right to object to the questions on the Forms 1040; that the Admiralty-Maritime Court, rather than the Tax Court, has jurisdiction to hear this case; that wages do not constitute taxable income; that the income tax must be apportioned and cannot be applied against petitioner; and that supplying the information required on the Forms 1040 would require petitioner to waive his rights under the Fourth Amendment. Petitioner stipulated that he received wage and interest income for the years in issue, but contends that such income is not taxable. The only argument offered by petitioner in support of his claim that respondent's determinations are incorrect is that the Sixteenth Amendment to the United States Constitution was never ratified by the requisite number of state legislatures. This argument is wholly without merit. United States v. Stahl,792 F.2d 1438\">792 F.2d 1438 (9th Cir. 1986); Coleman v. Commissioner,791 F.2d 68\">791 F.2d 68 (7th Cir. 1986).*245 Petitioner has offered no evidence other than the Sixteenth Amendment argument to overcome the presumption of correctness in the notice of deficiency. Accordingly, we sustain respondent's determination with respect to the deficiencies determined by respondent for taxable years 1980 and 1981. The second issue for consideration is whether petitioner is liable for additional to tax under section 6654 for taxable year 1981. Section 6654 provides for an addition to tax for underpayments of estimated tax. Respondent has conceded the addition to tax under section 6654 for taxable year 1980. Again, respondent's determination is presumptively correct. Welch v. Helvering,supra; Rule 142(a). Petitioner has offered no evidence on this issue. Therefore, we hold that petitioner is liable for the addition to tax under section 6654 for taxable year 1981. The third issue for consideration is whether petitioner is liable for additions to tax under section 6653(b) for the taxable years at issue herein. Section 6653(b) provides that if any part of an underpayment of tax is due to fraud, there shall be added to that tax an amount equal to 50 percent of the underpayment. *246 Respondent has the burden of proving, by clear and convincing evidence, that there is an underpayment of tax due from petitioner and that some part of the underpayment for each year in issue was due to fraud. Sec. 7454(a); Rule 142(b); Stone v. Commissioner,56 T.C. 213\">56 T.C. 213, 220 (1971). The fraud envisioned by section 6653(b) is actual, intentional wrongdoing, and the intent required is the specific intent to evade a tax believed to be owing. Wilson v. Commissioner,76 T.C. 623\">76 T.C. 623, 634 (1981). The existence of fraud is a question of fact to be resolved upon consideration of the entire record. Gajewski v. Commissioner,67 T.C. 181\">67 T.C. 181, 199 (1976), affd. without published opinion 578 F.2d 1383\">578 F.2d 1383 (8th Cir. 1978); Otsuki v. Commissioner,53 T.C. 96\">53 T.C. 96, 105-106 (1969).Fraud is never presumed, but rather must be established by affirmative evidence. Beaver v. Commissioner,55 T.C. 85\">55 T.C. 85, 92 (1970). Direct proof of the taxpayer's intent is rarely available; therefore, fraud may be proved by circumstantial evidence. Spies v. United States,317 U.S. 492\">317 U.S. 492 (1943); Rowlee v. Commissioner,80 T.C. 1111\">80 T.C. 1111, 1123 (1983).*247 The taxpayer's entire course of conduct may establish the requisite fraudulent intent. Stone v. Commissioner,supra at 213, 223-224; Otsuki v. Commissioner,supra.The Forms 1040 filed by petitioner in 1980 and 1981 contained no information from which his income and his tax liability could be determined. Such forms do not constitute income tax returns within the requirements imposed by the Internal Revenue Code. United States v. Porth,426 F.2d 519\">426 F.2d 519 (10th Cir. 1970), cert. denied 400 U.S. 824\">400 U.S. 824 (1970); Edwards v. Commissioner,680 F.2d 1268\">680 F.2d 1268 (9th Cir. 1982); United States v. Daly,481 F.2d 28\">481 F.2d 28 (8th Cir. 1973), cert. denied 414 U.S. 1064\">414 U.S. 1064 (1973). Petitioner, therefore, failed to file returns for the years in issue. We have held that for purposes of the fraud addition to tax under section 6653(b), the failure to file a return, standing alone, is not sufficient.Kotmair v. Commissioner, 86 T.C. (June 19, 1986). However, the failure to file a return, together with the submission of false Forms W-4 is sufficient to establish fraud under section 6653(b). Rowlee v. Commissioner,supra;*248 see also Stephenson v. Commissioner,79 T.C. 995\">79 T.C. 995, 1007 (1982), affd. 748 F.2d 331\">748 F.2d 331 (6th Cir. 1984); Habersham-Bey v. Commissioner,78 T.C. 304\">78 T.C. 304, 313-314 (1982). In the instant case, petitioner had filed several proper income tax returns as well as Forms W-4 prior to the taxable years in issue. For taxable year 1980, petitioner failed to file a return. However, he engaged in to other activity which could be considered as evidence of a specific intent to evade a tax believed to be owing. In 1981, however, the filed a false Form W-4 in addition to his failure to file a return. The filing of a false Form W-4, under penalty of perjury, together with the failure to file a return constitutes clear and convincing evidence of fraud under section 6653(b). Therefore, we hold that petitioner is not liable for the addition to tax under section 6653(b) for taxable year 1980, and that petitioner is liable for the addition to tax under section 6653(b) for taxable year 1981. The final issue for decision is whether petitioner is liable for damages under section 6673. 3 Based on the entire record in this case, we decline to award damages under*249 section 6673. To reflect concessions of the parties and the foregoing, Decision will be entered under Rule 155.Footnotes1. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954, as amended and in effect during the years here in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. ↩2. Respondent has conceded that petitioner is not liable for the addition to tax under section 6654 for taxable year 1980.↩3. Section 6673 provides: Whenever it appears to the Tax Court that proceedings before it have been instituted or maintained by the taxpayer primarily for delay or that the taxpayer's position in such proceedings is frivolous or groundless, damages in an amount not in excess of $5,000.00 shall be awarded to the United States by the Tax Court in its decision. Damages so awarded shall be assessed at the same time as the deficiency and shall be paid upon notice and demand from the Secretary and shall be collected as part of the tax.↩","per_curiam":false,"type":"010combined"}],"precedential_status":"Unpublished","slug":"samski-v-commissioner"} {"case_name":"State v. Sherwood","case_name_full":"The State of Washington v. Jack B. Sherwood","case_name_short":"Sherwood","citation_count":0,"citations":["112 Wash. App. 1001"],"court_full_name":"Court of Appeals of Washington","court_jurisdiction":"Washington, WA","court_short_name":"Court of Appeals of Washington","court_type":"SA","date_filed":"2002-06-03","date_filed_is_approximate":false,"id":4933505,"opinions":[{"ocr":true,"opinion_id":4741189,"opinion_text":"\nAppeals from a judgment of the Superior Court for Snohomish County, No. 97-1-02009-8, Richard J. Thorpe, J., entered July 28, 2000. Remanded by unpublished per curiam opinion.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-sherwood"} {"case_name":"State v. Fellas","case_name_full":"The State of Washington v. Anthony W. Fellas","case_name_short":"Fellas","citation_count":0,"citations":["143 Wash. App. 1033"],"court_full_name":"Court of Appeals of Washington","court_jurisdiction":"Washington, WA","court_short_name":"Court of Appeals of Washington","court_type":"SA","date_filed":"2008-03-11","date_filed_is_approximate":false,"id":4944258,"opinions":[{"ocr":true,"opinion_id":4752161,"opinion_text":"\nAppeal from a judgment of the Superior Court for Clal-lam County, No. 06-1-00403-4, Kenneth D. Williams, J., entered December 1, 2006. Reversed and remanded by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-v-fellas"} {"attorneys":"Max I. Exline, Pueblo, Colorado, Attorney for Plaintiff-Appellant/Cross-Appellee., Worley Law Firm, LLC, Henry D. Wor-ley, Colorado Springs, Colorado, Attorney for Defendant-Appellee/Cross-Appellant.","case_name":"Archuleta v. Gomez","case_name_full":"Ralph L. ARCHULETA, as Trustee of the Ralph L. Archuleta Living Trust, Plaintiff-Appellant/Cross-Appellee v. Theodore D. GOMEZ, Defendant-Appellee/Cross-Appellant","case_name_short":"Archuleta","citation_count":0,"citations":["290 P.3d 482","2012 CO 71"],"court_full_name":"Supreme Court of Colorado","court_jurisdiction":"Colorado, CO","court_short_name":"Supreme Court of Colorado","court_type":"S","date_filed":"2012-12-03","date_filed_is_approximate":true,"id":5327803,"judges":"Hobbs","opinions":[{"author_str":"Hobbs","ocr":true,"opinion_id":5157883,"opinion_text":"\nJustice HOBBS\ndelivered the Opinion of the Court.\n¶ 1 This appeal from a judgment by the Water Court for Water Division No. 2 follows our remand in the case of Archuleta v. Gomez, 200 P.3d 333 (Colo.2009).1 The plaintiff in the underlying case is Ralph L. Archuleta as Trustee for the Ralph L. Archuleta Living Trust2; the defendant is Theodore D. Gomez.\n¶ 2 This adverse possession dispute is between neighbors over legal interests in water and easement rights for three ditches diverting water from the Huerfano River in the Arkansas River Basin. After conducting additional evidentiary proceedings, as we directed in our first decision in this case, the water court found that Gomez had adversely possessed Archuleta's deeded legal interests in the Archuleta Ditch and Manzanares Ditch No. 1, but it also found that Gomez had not adversely possessed Archuleta's deeded legal interest in Manzanares Ditch No. 2.\n¶ 3 The Archuleta Ditch extends across Gomez's upper (westernmost) parcel of irrigated land but does not reach Gomez's nonadjacent lower parcel or Archuleta's parcel, which lies immediately to the east of Gomez's lower parcel. Manzanares Ditch No. 1 cuts across the southeastern corner of Gomez's lower parcel and the southern part of Ar-chuleta's parcel. Manzanares Ditch No. 2 runs across the northern part of Gomez's lower parcel and previously extended to the northern part of Archuleta's adjoining parcel until Gomez plowed it under, severing the connection to Archuleta's property.\n¶ 4 The water court ordered payment of costs in favor of Gomez but denied Gomez's request for a partial award of attorney fees. The water court enjoined Gomez from interfering with Archuleta's interest in Manza-nares Ditch No. 2, and, in an order entered after the time for amending the water court's judgment had run, the water court provided additional details for the injunction, ordering Gomez to reconstruct Manzanares Ditch No. 2 across the northern part of Gomez's lower parcel to Archuleta's property.\n¶ 5 We affirm the judgment of the water court in part, concluding that Gomez adversely possessed Archuleta's legal interests in the Archuleta Ditch and Manzanares Ditch No. 1. We reverse the water court's judgment in part, ordering it to enter an infunetion for reconstruction of Manzanares Ditch No. 2 and an easement across the northern part of Gomez's lower parcel to Archuleta's adjoining parcel, so that Archuleta will receive the flow of water his legal interest in this ditch entitles him to divert.\na\n¶ 6 We turn to a discussion of the facts and the law pertinent to this appeal.\n*485A. Standard of Review\n¶ 7 We accept the water court's factual findings on appeal unless they are so clearly erroneous as to find no support in the record. Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation Dist., 256 P.3d 645, 660 (Colo.2011). The sufficiency, probative effect, weight of the evidence, and the inferences drawn therefrom are for the water court to determine, and we will not disturb them on appeal. Matter of Gibbs, 856 P.2d 798, 801 (Colo.1993). We review the water court's conclusions of law de novo. San Antonio, Los Pinos & Conejos River Acequia Pres. Ass'n v. Special Improvement Dist. No. 1 of Rio Grande Water Conservation Dist., 270 P.3d 927, 985 (Colo.2011); S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226, 1232 (Colo.2011).\nB. Adverse Possession Water Law Requires Quantification of Historical Beneficial Consumptive Use\n¶ 8 In our prior opinion in this case, we held that, to succeed in his adverse possession elaim to Archuleta's legal interests in the Archuleta Ditch, Manzanares Ditch No. 1, and Manzanares Ditch No. 2, Gomez must prove by a preponderance of the evidence that, behind the headgate, he-hostile to the owner and under claim of right-notoriously, adversely, exclusively, and continuously made actual beneficial consumptive use of all or a portion of Archuleta's deeded water interests on the Gomez lands for the eighteen-year adverse possession period, not just that he intercepted water from the three ditches belonging to Archuleta's legal interests. Archuleta v. Gomez, 200 P.3d at 337, 342, 345.\n¶ 9 Quantification of the use Gomez and Archuleta actually made of the deeded interests in dispute is required because the mature limit, seope, and measure of a water right is not equivalent to the flow of water diverted (typically expressed in cubic feet per second (e.f.s.)) but, rather, is the amount of water needed and consumed annually in making beneficial use of the water-in this ease, for crop production (typically quantified by number of acre-feet). See Daniel S. Young & Duane D. Helton, P.E., Developing a Water Supply in Colorado: The Role of an Engineer, 3 U. Denv. Water L.Rev. 378, 384, 379-80 (2000). Diversion of water, by itself, cannot ripen into a water right if the water is not beneficially used. Archuleta v. Gomez, 200 P.3d at 343.\n¶ 10 We have previously explained the difference between rate of flow and quantifica tion of actual beneficial consumptive use, as follows:\n[P]rior to the modern trend of implementing express volumetric limitations in decrees, most water rights were quantified by a two-part measurement. First, a decree contained a flow-rate of water, in cef.s., which the owner was entitled to divert from the stream. Second, a decree stated the use to which that diverted water could be put, such as irrigation of erops or municipal uses.\n[[Image here]]\nWith the advent of improved engineering techniques, courts began to utilize another approach to prevent injury to juniors in change proceedings. Under the modern method, courts now translate the petitioner's historical consumptive use into a volumetric limitation stated in acre-feet.\nFarmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189, 197-98 (Colo.1999) (citations omitted).\n¶ 11 Stated differently, the flow of irrigation water through a canal into a farm lateral and then applied to an agricultural field results in crop production that involves consumption of an amount of water belonging to the legal interest in the water right; water not consumed in applying a flow of water to a field becomes surface and/or subsurface return flow that is part of the public's water resource available to fulfill other adjudicated water rights, in order of their decreed priority. A diversion flow rate specified in a decree is neither the measure of a matured water right, nor conclusive evidence of the appropriator's need for which the appropriation was originally made. Burlington Ditch, 256 P.3d at 665. Indeed, our cases relating to the \"duty of water\" are founded on this principle-that any given acreage of cropland needs and is limited to a productive amount of water. Archuleta v. Gomez, 200 P.3d at *486343. The \"duty of water\" is that measure of water which, by careful management and use, is reasonably required to be applied to any given tract of land for such period of time as may be adequate to produce therefrom a maximum amount of such crops as ordinarily are grown thereon-this is not a hard and fast unit of measurement, but varies according to conditions. Weibert v. Rothe Bros., Inc., 200 Colo. 310, 316-17, 618 P.2d 1367, 1371 (1980); Farmers Highline Canal & Reservoir Co. v. City of Golden, 129 Colo. 575, 584, 272 P.2d 629, 684 (1954).\n¶ 12 Adverse possession litigation is not the same as an application for change of a water right which requires resume notice to all potentially affected water users on the stream. - Nevertheless, quantification of historical beneficial consumptive use is required in an adverse possession case in order to determine whether the adverse possessor has divested the legal interest owner of its right. All prior appropriation water rights are based on need for the water diverted, and need varies with weather conditions, available precipitation, soil type, water demand for crops grown, and other variables that are typically taken into account in a change of irrigation water right case. Into every decree, regardless of the diversion rate stated on the face of the decree, is read the implied limitation that no more water can be diverted than can be used beneficially. See Weibert, 200 Colo. at 318, 618 P.2d at 1872.\n¶ 13 Thus, in an irrigation right adverse possession case, the \"exclusive\" and \"continuous\" proof requirements necessitate both (1) intercepting water within the ditch that belongs to another person's right, at times and in amounts the adverse possessor's crop production requires and (2) placing the intercepted water to an actual beneficial use that results in water consumption for erop production. Archuleta v. Gomez, 200 P.3d at 347, 348. The adverse possessor irrigator may have need for additional consumptive use water because, given the junior status of his or her water right, the parcel to be irrigated is \"water short,\" in that the supply of water available under his or her right falls short of that needed for desired crop production.\n¶ 14 The General Assembly and our case law declare that the goals of Colorado water law include \"optimum - use,\" § 87-92-501(2)(e), C.R.S. (2012), protection against injury to water rights, § 37-92-501(4)(a), CRS. (2012), and sustainability, § 37-92-501(4)(a)(I). Hence, the state's policy of water use appropriation and administration does not require a single-minded endeavor to squeeze every drop of water out of surface streams and tributary aquifers; instead, these goals can only be achieved through optimum use, with appropriate regard for all significant factors, including environmental and economic concerns, Alamosa-La Jara Water Users Prot. Ass'n v. Gould, 674 P.2d 914, 935 (Colo.1983), and a balancing of land and water resources, San Antonio, Los Pinos & Conejos River Acequia Pres. Ass'n, 270 P.3d at 952.\n¶ 15 Accordingly, adverse possession water law does not reward wasteful water use, nor does it promote illegal enlargement of the amount of the historical beneficial consumptive use entitlement the legal interest owner possessed. See Archuleta v. Gomez, 200 P.3d at 337, 346-47. In an adverse possession water case, the water court must evaluate all relevant circumstances surrounding the rival claimants' use of the contested water rights. Id. at 348.\nC. Application to this Case\n¶ 16 In the present appeal, Archuleta argues that Gomez did not prove adverse possession of any of his water right interests in the three ditches because \"the expert testimony established the irrigation efficiency of the Gomez operation was only 50 percent.\" Archuleta contends that Gomez did not demonstrate adverse possession because he \"did not show he consumptively used all of Ar-chuleta's water\" and because Gomez did not prove he \"continuously\" used Archuleta's water. In making this assertion, Archuleta misconstrues our prior statement in Archuleta v. Gomez that Gomez must \"demonstrate adverse possession of all or any portion of Archuleta's deeded interests in the adjudicated irrigation water rights.\" Id. at 337. By that wording, we intended to express *487that one can adversely possess the flow that the legal interest owner historically diverted but cannot consume more than the legal interest owner consumed. Archuleta's arguments ignore that prior appropriation irrigation law is based on water actually needed for erop production under variable conditions. See Young & Helton, supra, at 379. Archuleta's contentions conflate application of a flow of water to a field, consumptive use, and return flows based on erroneous logic that Archuleta's legal interests include the right to consume return flows. See id. at 379-80 (explaining the relationship between a crop water requirement, irrigation efficiency, and \"the total amount of water that needs to be diverted from a water source in order to supply the erop irrigation requirement\"). Fifty percent efficiency is typical of crop water consumption in this Arkansas River Basin area, according to Gary Thompson's expert testimony in this case. This mirrors the discussion in the Young and Helton article we cite above:\nThe water not consumed by the crop returns to the water source as either surface water runoff or deep percolation through the groundwater system.... [Ilf the crop irrigation requirement is 100 acre-feet of water and the farm efficiency is fifty percent, the total amount of water that needs to be delivered to the irrigation system to ensure a full crop water supply is 200 acre-feet.\nSee id. at 380.3 Return flows from Archule-ta's legal interests belong to the public's water resource-not to Archuleta-as part of the supply of water upon which other adjudicated water rights depend. See Archuleta v. Gomez, 200 P.3d at 346.\n¶ 17 We now turn to the adverse possession and injunction issues in this appeal.\n1. Gomez Proved Adverse Possession of Archuleta's Legal Interests in the Ar-chuleta Ditch and Manzanares Ditch No. 1.\n¶ 18 In regard to adverse possession of Archuleta's legal interests in the three ditches, the water court found that Gomez had adversely possessed Archuleta's legal interests in the Archuleta Ditch and Manza-nares Ditch No. 1.\n¶ 19 Turning to the Archuleta Ditch, faced with conflicting testimony that also involved credibility determinations, the water court found that Gomez had adversely possessed for the eighteen-year statutory period Ar-chuleta's legal interest in that ditch:\nThe Archuleta Ditch runs through Gomez's Upper Parcel. It ends at the boundary of Gomez's Lower Parcel.\nThe Archuleta Ditch is operated on a 12 day rotation, in which Theodore Gomez has four days. He has used that water right to irrigate the Upper Parcel. It is undisputed that the Archuleta ditch has not extended as far east as the Lower Parcel, or to the Archuleta Property, since at least 1968, if indeed it ever reached. Between 1968 and his death in 1991, Lupe Archuleta was never granted or exercised a turn in the rotation, and no water from the Ar-chuleta Ditch was used on the Archuleta Property during that 18+ year period. Neither Lupe nor Ralph Archuleta ever contributed to the maintenance or repair of that ditch nor has any claim been made that Lupe and Ralph Archuleta's record ownership interest in the Archuleta Ditch was used by others with their permission.\nThe question arose as to what benefit Archuleta received from the Archuleta Ditch, priority no. 30. The Court finds that the Archuleta Ditch does not reach the Ralph S. Archuleta property and has not since 1968.\n¶ 20 Evidence in the record supports these findings, and we defer to them. Archuleta argued that he had used tail water from Gomez's upper parcel use of the Archuleta Ditch water, alleging that it entered into and comingled with water of Manzanares Ditch No. 2 prior to irrigation on Gomez's lower parcel, from which tail water then traveled east onto Archuleta's adjoining parcel. The water court found that the evidence demon*488strated \"it would be impossible to receive tail water from the no. 830 (Archuleta Ditch) because it does not reach the Gomez lower parcel.\" Again, the record supports this finding, and we defer to it.\n¶ 21 In regard to Manzanares Ditch No. 1, faced with conflicting testimony that also involved credibility determinations, the water court found that Gomez had adversely possessed for the cighteen-year statutory period Archuleta's legal interest in that ditch. Both Archuleta and Gomez produced multiple witnesses on the question of Archuleta's legal interest in and use of Manzanares Ditch No. 1. The water court found Gomez's evidence to be credible in contrast with Archuleta's evidence, resolving the conflicting testimony in favor of Gomez's adverse possession:\nMr. Gomez further testified that Lupe Ar-chuleta never used the Manzanares Ditch No. 1 after 1968, and that Ralph Archuleta began using it only in the mid to late 1990's. One of the few things that Ralph Archuleta and Theodore Gomez did agree on was that in the late 1990's, Theodore Gomez found Ralph Archuleta using the Manzanares Ditch No. 1 on at least one oceasion, and told Mr. Archuleta that he, Mr. Archuleta, did not own any rights in the ditch, and that he had to quit using it. It appears to the Court this confrontation would have occurred at a much earlier time if Mr. Archuleta had been using the ditch which leads the Court to find that Archuleta was not using it.\n¶ 22 The water court then turned to the rotation agreement recorded in 1984 among parties purporting to have a legal interest in Manzanares Ditch No. 1. While the rotation agreement included Gomez, it did not include Archuleta. The water court found that if \"Lupe Archuleta had been making even sporadic use of the Manzanares Ditch No. 1 prior to that time\" he \"would have been included in the rotation agreement.\" In addition, \"neither Lupe nor Ralph Archuleta ever contributed labor or money to the maintenance and repair of the common elements of the ditch.\" The court then found that Ralph Archuleta's version of the facts was not credible:\nThe Court concludes that in light of all the testimony, the Plaintiff Ralph Archuleta's version of the facts is not credible. The court finds that from 1968 until his death in 1991, Lupe Archuleta did not use the Manzanares Ditch No. 1. The Court further finds that Theodore Gomez's use of Lupe Archuleta's record interest in the Manzanares Ditch No. 1 during the same time period was actual, adverse, hostile, notorious, exclusive and continuous, thus constituting conclusive evidence of absolute ownership of Lupe Archuleta's record interest in the Manzanares Ditch No. 1 pursuant to C.R.S. 88-41-101.\nEvidence in the record supports the water court's findings, and we uphold them.\n¶ 23 With respect to whether Gomez had made actual beneficial use to the exclusion of Archuleta utilizing the Archuleta legal interests in both the Archuleta Ditch and Manza-nares Ditch No. 1, the water court found that he had and that he accomplished this without enlarging the historical beneficial consumptive use belonging to Archuleta's legal interests in those ditches. Expert evidence in the case supported that Gomez's parcels were \"water short\" at times and needed the adversely possessed water for crop production.\n¶ 24 As to the Archuleta Ditch, the water court found that Gomez had increased his consumptive use by 8.9 acre-feet annually on his upper parcel, above the amount of water available under his rights and to the exclusion of Archuleta, by adversely possessing Archuleta's interest in the ditch, and this use did not enlarge the historical beneficial use belonging to Archuleta's legal interest in that ditch.\n¶ 25 As to Manzanares Ditch No. 1, the water court found that Gomez had increased his consumptive use by 5.5 acre-feet annually on his lower parcel, above the amount of water available under his rights and to the exclusion of Archuleta, by adversely possessing Archuleta's legal interest in the ditch, and this use did not enlarge the historical beneficial use belonging to Archuleta's legal interest in that ditch,\n¶ 26 Evidence in the record supports the water court's findings, and we uphold them. We conclude that Gomez has adversely pos*489sessed Archuleta's legal interests in the Ar-chuleta Ditch and Manzanares Ditch No. 1.\n2. An Injunction Is Proper to Reconstruct Manzanares Ditch No. 2 Across the Northern Part of Gomez's Lower Parcel.\n¶ 27 Although Gomez did not appeal the water court's finding that he did not adversely possess Archuleta's legal interest in Manzanares Ditch No. 2, that finding is relevant to the injunction issue in this case involving reconstruction of that ditch.4 The evidence supports an injunction because Gomez wrongfully caused an illegal enlargement of consumptive use of ditch water and wrongfully severed the ditch to the injury of Archuleta's legal interest, See Enlarged Southside Irrigation Ditch Co. v. John's Flood Ditch Co., 120 Colo. 423, 429-30, 210 P.2d 982, 985 (1949) Roaring Fork Club, L.P. v. St. Jude's Co., 36 P.3d 1229, 1236-37 (Colo.2001). In its order of October 18, 2011, the water court found and concluded that Gomez had not adversely possessed Archule-ta's legal interest in Manzanares Ditch No. 2 and that he had wrongfully severed the ditch so that it no longer extends to Archuleta's parcel:\nThe Court finds that Gomez did not adversely possess Archuleta's interest in the Manzanares Ditch No. 2 because Ar-chuleta continues to irrigate his property through the tail water provided from Gomez's irrigation on his property through the Manzanares Ditch No. 2.\nThe real question becomes how Archule-ta proposes to transport water directly from Manzanares No. 2 to his property. Previous testimony indicates that Gomez plowed up Manzanares No. 2 and put the water into a sealed-off pipe on the west side of his Lower Parcel so that the ditch no longer extended onto Archuleta's property.\nNevertheless, Gomez should be enjoined from prohibiting Archuleta's access to water from the Manzamares Ditch No. 2 (Priority 31).\nThe Court is uncertain whether water from the Manzanares Ditch No. 2 would reach Archuleta's property but for the tail water, The Court reaches this decision based upon the principles it was required to consider on remand and not because Archuleta did anything affirmatively to protect his ownership in the water right during the adverse possession period.\nGomez urges the Court to adopt the position that Archuleta's north pasture is receiving water from a source other than the Manzanares Ditch No. 2. The Court is unwilling to make such a leap of faith. The Court should make a declaration of adverse possession of water \"upon reasonably clear and satisfactory evidence.\" Losbbaugh [Loshbaugh] v. Benzel, 133 Colo. 49, 61-62, 291 P.2d 1064, 1070-71 (1956) (citing Romminger [Rominger] v. Squires, 9 Colo. 327, 329, 12 P. 213, 214 (1886)).\n(Emphasis added). A water right decreed for irrigation use cannot be enlarged beyond the amount of water necessary to irrigate the lands for which the appropriation was made. In re Water Rights of Cent. Colo. Water Conservancy Dist., 147 P.3d 9, 14 (Colo.2006). Cross-examination testimony of Gomez's expert, Gary Thompson, supports rather than refutes a conclusion that Gomez illegally enlarged use of Manzanares Ditch No. 2, rather than adversely possessing Archule-ta's interest. Attempting to side-step the question of enlargement posed by Archule-ta's counsel, Thompson pointed out the \"impossibility\" of both Archuleta and Gomez making beneficial consumptive use of the Ar-chuleta legal interest at the same time.\nQ If Mr. Archuleta did not cease to use his water and both he and Mr. Gomez continued to use it, would that be an expansion of use?\nA -It seems to me that it would be instead of really an expansion of use, it's a-a general impossibility that they could both be using that same interest of the water right at the same time. I mean, the water *490can't be used in both places at the same time.\nQ So instead of an expansion of use problem, it is a sort of a logical impossibility. Well, if you're covering more acreage with the same water, that's an expansion of use, isn't it?\nA It sometimes is, yes. Not always is but sometimes is. But this would be-this would be the same water-the same water being used on both pieces of ground at the same time, not the water being spread more thinly. It is-it is-the water has been cloned into two pieces of the same water right, again, it's-I think it's impossible. It's either one or the other.\n¶ 28 Evidence in the record demonstrates that Archuleta's northern 5.2 acres continuously received an irrigation supply sufficient to annually produce pasture grass before, during, and after Gomez's alleged period of adverse possession. Gomez's own testimony supports the conclusion that the northern portion of Archuleta's property was irrigated by surface runoff and sub-irrigated by subsurface flow from Gomez's irrigation employing Manzanares Ditch No. 2 water:\nMr. Worley: Now, have they (Lupe Ar-chuleta or his son Ralph Archuleta) used tail water from time to time?\nMr. Gomez: Well, he gets all my tail water. Sub-irrigated. Right now.\nArchuleta v. Gomez, 200 P.3d at 389.\n¶ 29 Thompson calculated the historical beneficial consumptive use of Archuleta's legal interest in Manzanares Ditch No. 2 to be 4.6 acre-feet of water annually. He also determined that Gomez's interception of the water belonging to Archuleta's legal interest produced an additional 3.7 acre-feet of water consumption annually on the Gomez property. The combined effect of Archuleta's water use and Gomez's water use of Manzanares Ditch No. 2 water was an enlargement of the consumptive use made of Archuleta's legal interest in the ditch. As Thompson testified, it is \"impossible\" for these rivals to consume water simultaneously that belongs to Ar-chuleta's legal interest. \"It's either one or the other.\" Thompson testified that, when the flow of water (typically expressed in c.f.s.) is applied to agricultural crops in this region of Colorado, the water consumption amount is fifty percent (typically expressed in amount of acre-feet of water consumed). The other fifty percent is return flow. As we have consistently iterated in our longstanding case law, return flow belongs to the public's water resource and is subject to appropriation, adjudication, and administration in order of decreed priority. See Burlington Ditch, 256 P.3d at 663. The law's prohibition against undecreed enlargements protects flows upon which other appropriators rely in order of their decreed priorities. Id.\n¶ 30 Gomez held no decreed appropriation that entitled him to benefit from the return flow resulting from Archuleta's use of his legal interest in Manzanares Ditch No. 2. Nevertheless, according to Thompson's caleu-lations, Gomez increased his consumptive use of Manzanares Ditch No. 2 water by 3.7 acre-feet after he severed the ditch from its connection with Archuleta's adjoining property. Thompson testified that Manzanares Ditch No. 2 is so short in length, and so close to the Huerfano River, that return flows from irrigation get back to the river within a very short time. Because Archuleta neither abandoned his legal interest in Manzanares Ditch No. 2, nor did he cease to have the benefit of it on his lands, Gomez's increased use of the waters flowing in the ditch constituted an illegal enlargement of use of Manzanares Ditch No. 2 water. As the evidence in the record demonstrates, Gomez did not dispossess Archuleta of his legal interest in Manza-nares Ditch No. 2. All that Gomez accomplished by severing the ditch and increasing his use of ditch water was to possess an amount of water that would otherwise have returned to the Huerfano River, thence to the Arkansas River, as return flows from Archuleta's irrigation use. See Archuleta v. Gomez, 200 P.3d at 346.\n¶ 31 Thus, the record demonstrates that Gomez committed two wrongful acts: illegal enlargement of a water right and illegal destruction of a ditch From the time of his original complaint in this case to the appeal now before us, Archuleta has sought reconstruction of Manzanares Ditch No. 2 (Priority No. 31) in order to receive the water his interest in the ditch entitles him to divert. *491Id. at 337, 348. Archuleta testified about Gomez's actions in plowing under the ditch, as follows, in the 2007 proceedings that led to the first appeal in this case:\nQ What did Mr. Gomez do which stopped the No. 31 ditch from reaching your property?\nA He plowed it under.\nQ Show the Court on Exhibit 1 where Mr. Gomez plowed over the ditch and stopped it from reaching your property, the No. 31 ditch?\nA - 81 ditch was-No. 31 ditch ran straight through his property and through-this is mine, and he plowed it under throughout his area, his parcel (indicating).\n¶ 32 In its order of October 18, 2011, the water court enjoined Gomez \"from interfering with Archuleta's rights in Manzanares Ditch No. 2, Priority 381.\" It is clear that the water court was issuing an injunction. - But it added necessary detail to the injunction in a subsequent order dated January 19, 201%, after the time for amending the judgment under C.R.C.P. 59(J) had expired. It directed Gomez to reconstruct the ditch and provide for an easement across Gomez's property. It ordered Gomez to\nreconstruct the Manzanares Ditch No. 2 across the northern part of the 40 Acre Tract so that it reaches the northwest corner of Archuleta's north field.\nGomez shall be responsible for the cost of installing a culvert 16 inches in diameter and 16 feet in length, which Gomez will install in the ditch at the location near the northeast corner of the 40 Acre Tract where Gomez has access to his property from the County Road.\nGomez shall give Archuleta a 24 foot wide easement, 12 feet on each side of the centerline of the Manzanares Ditch No. 2.\n¶ 33 We reverse the water court's judgment, in part, because it failed in its infunetion order of October 18th, 2011, to encompass the necessary scope and detail. It is clear that the water court-having found that Gomez had not proved adverse possession-concluded that Gomez must respect Archule-ta's legal interest in water and easement rights for Manzanares Ditch No. 2, but the court abused its discretion in not sufficiently protecting Archuleta's legal interest in both the easement and the water rights of Manza-nares Ditch No. 2.\n¶ 34 In Roaring Fork, we held that the owner of property burdened by a ditch easement may not move or alter that easement unless that owner has the consent of the owner of the easement. 36 P.3d at 1231. A ditch easement is a property right that the burdened estate owner may not alter absent consent of the benefited owner. Id. at 1231-32. A water right operating in combination with the easement for the ditch are vested property rights. Id. at 1238. Ditches are linear delivery systems that function as a part of a whole. Id. Nonconsensual, unilateral alterations jeopardize valuable vested property rights both in the easement and in the water rights exercised by means of the ditch. Id.\n¶ 35 Because Gomez wrongfully interfered with Archuleta's water and easement rights for Manzanares Ditch No. 2 and enlarged the use of that diteh's water, we direct the water court to enter an injunction ordering Gomez to reconstruct the ditch, provide for an easement for the ditch across the northern part of his forty-acre lower parcel to Archuleta's adjoining parcel, and cease diverting any water that Archuleta's legal interest entitles Archuleta to divert to his parcel. The injunetion may include the terms the water court set forth in its belated January 19, 2012, order and any additional terms appropriate to prevent illegal enlargement and accomplish protection of Archuleta's legal interest in Manzanares Ditch No. 2. See Enlarged Southside Irrigation Ditch, 120 Colo. at 429-30, 210 P.2d at 985 (directing injunction to prevent an enlarged use of water that should have been returned to the stream for the benefit of other appropriators).\n3. Costs and Attorney Fees\n¶ 36 The water court entered judgment for $12,872.39 in costs in favor of Gomez and against Archuleta in its February 8, 2012, order. This order followed up the water court's order of February 7, 2012, determining that Gomez was the prevailing party *492in the litigation, because Gomez established adverse possession of Archuleta's legal interests in the Archuleta Ditch and Manzanares Ditch No. 1. In explaining this award of costs, the water court observed that \"to obtain water rights by adverse possession is a significant accomplishment, especially in a water-short river such as the Arkansas River.\" The water court pointed out that, while Archuleta was \"successful on maintaining ownership of the Manzanares Ditch No. 2, he did not acquire anything he did not already own.\" Whether to award costs is a matter within the trial court's discretion, and we will not reverse its determination on appeal absent a clear abuse of discretion. See § 183-16-122, C.R.S. (2012), C.R.C.P. 54(d); Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 389-90 (Colo.1994).5 We find no abuse of discretion here.\n¶ 37 As to Gomez's request for attorney fees under section 18-17-102(4) against Ar-chuleta, alleging that Archuleta's position in regard to the Archuleta Ditch was substantially frivolous, groundless, or vexatious, the water court in a separate order dated February 7, 2012, refused to award attorney fees to Gomez against Archuleta. The water court found that Archuleta had reasonably relied on the opinion of his expert, Jeffrey Clark. In response, Gomez points out that Clark based his opinion, at least with regard to the Archuleta Ditch and Manzanares Ditch No. 1, on Archuleta's evidence, which the water court found not to be eredible. On the other hand, Archuleta has successfully resisted Gomez's claim for adverse possession of any legal interest in Manzanares Ditch No. 2 and has succeeded in this appeal in obtaining an injunction ordering reconstruction of the ditch. To award the attorney fees Gomez requested would require a hearing, findings, and entry of an order specifically setting forth reasons for finding Archuleta's defense of his legal interests to be frivolous, groundless, or vexatious. See § 13-17-103(1), C.R.S. (2012) (requiring the court to consider factors and specifically set forth the reasons for awarding attorney fees); City of Aurora ex rel. Util. Enter. v. Colo. State Eng'r, 105 P.3d 595, 618 (Colo.2005); Pedlow v. Stamp, 776 P.2d 382, 386 (Colo.1989) (requiring the court to hold a hearing pursuant to section 13-17-108(1)). The water court made no such findings, nor do we. We agree with the water court that the ordinary rule-each party is responsible for its own attorney fees-should prevail in this case. See City of Aurora ex rel. Util. Enter., 105 P.3d at 618.\nII.\n¶ 38 Accordingly, we affirm the judgment of the water court in part, reverse it in part, and return this case for entry of an injunetion consistent with this opinion.\n\n. The issues Archuleta raises are:\nI. - Whether the trial court erred in finding adverse possession as to two of Archule-ta's ditch rights and in denying injunc-tive relief where it was not shown the rights were continuously consumptively used by Gomez for the applicable time period.\nIL _ Whether the trial court erred in failing to grant mandatory injunctive relief requiring Gomez to restore the path of the Manzanares Ditch No. 2 to Archuleta's property.\nIII. Whether the trial court was precluded by rule 59(j) from finding the defendant was the prevailing party and awarding costs, and if not precluded, whether the trial court erred in finding the defendant was the prevailing party and awarding costs.\nThe issue Gomez raises on cross-appeal is:\nWhether the water court's denial of Gomez's motion for an award of part of his attorney fees was arbitrary or capricious?\nGomez does not appeal the water court's finding that he did not adversely possess Archuleta's legal interest in Manzanares Ditch No. 2; nor does either party appeal the water court's finding that none of the legal interests in these ditches were abandoned.\n\n\n. On January 28, 2011, the water court granted an Unopposed Motion for Substitution of Parties, ordering Ralph L. Archuleta as Trustee for the Ralph L. Archuleta Living Trust substituted in place of Ralph L. Archuleta in his personal capacity. We continue to identify the party as \"Archuleta\" for the sake of brevity.\n\n\n. Thus, \"return flow\" typically consists of two components: (1) surface water runoff (often referred to as \"tail water'\") and (2) water not consumed by crops that has infiltrated the ground.\n\n\n. Our prior remand for further evidence and findings in this case also involved Archuleta's request for an injunction requiring Gomez to restore ditch rights-of-way and allow Archuleta's water to pass through the ditches to his parcel. Archuleta v. Gomez, 200 P.3d at 337.\n\n\n. Archuleta asserts that the water court's award of costs to Gomez cannot stand because it occurred after the time for ruling on motions under C.RC.P. 59(j) had expired. We disagree. Instead, C.R.C.P. 54 controls this issue. The determination of who is a prevailing party and may receive an award of costs may occur at any time after resolution of all the claims pending before the water court. See Matter of Water Rights of Bd. of Cnty. Comm'rs of Cnty. of Arapahoe, 891 P.2d 981, 984 (Colo.1995).\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"archuleta-v-gomez"} {"attorneys":"Dean & Dean, for plaintiff in error., Seaborn & Barry Wright, contra.","case_name":"Rome Railway & Light Co. v. Keel","case_name_full":"ROME RAILWAY & LIGHT COMPANY v. KEEL","case_name_short":"Keel","citation_count":0,"citations":["3 Ga. App. 769"],"court_full_name":"Court of Appeals of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Court of Appeals of Georgia","court_type":"SA","date_filed":"1908-02-24","date_filed_is_approximate":false,"headnotes":"1. To attempt to mount a slowly moving street-ear is not. necessarily negligent.
2. An allegation in pleading which contradicts anything of which the court must take judicial cognizance is absolutely nugatory and will be disregarded.
(a) The courts are required to take notice of primary physical laws.
(1) Fairly construed, the petition in this ease asserts a physical impossibility and is therefore demurrable.
3. The special demurrers are not meritorious.
","id":5750715,"judges":"Powell","opinions":[{"author_str":"Powell","ocr":true,"opinion_id":5602936,"opinion_text":"\nPowell, J.\nKeel sued the Rome Railway and Light Compaq, alleging, in his petition: The defendant is a street-railway oom*770pany-. Plaintiff was at one of the defendant’s stations, preparing to board a car as a passenger. As the car approached he signaled the motorman to stop, and the motorman saw the signal and wound up the brakes, but failed to get the car to a complete stand at the station, and went past it. As the car passed, plaintiff boarded the step of the front platform safely. The motorman saw him. As plaintiff was stepping from the step of the car to the platform, the motorman threw off the brakes; the car jumped forward and jerked, knocked and threw the plaintiff off the car, he was thrown under the wheels, and certain enumerated injuries ensued, to the damage of the plaintiff. The plaintiff was 17 years old, was an apprentice moulder, earning $3 per day, and by the time he reached 21 years of age would have been earning $6 per day had the injury not occurred. Tt is alleged that the defendant was negligent, in that the motorman threw the brakes off said car and caused and allowed it to jump forward and throw petitioner off.\nThe defendant demurred, on the grounds: No cause of action is alleged; the proximate cause of the injury was plaintiff’s negligence in attempting to board the front platform of a moving car; the allegations of negligence are too vague and indefinite; also specially that it is not alleged how far the car was from plaintiff when he signaled it; also that it is not alleged that the loosening of the brakes was done in an unusual or negligent manner; nor is it alleged that the jump forward and jerk of the car was in any way unusual or out of the ordinary way of the movement of cars; the allegation that the plaintiff was without fault states a mere conclusion of the pleader ; and the allegation that by the time he reached 21 years of age he would have been earning $6 per day is speculative and indefinite. This demurrer was overruled, and the defendant excepts.\n1. To attempt to mount a slowly moving street car is not necessarily negligent. If while the passenger is getting upon the ear the motorman, by producing an unusual and unnecessary jerk, throws him off, a liability against the company may be predicated thereon. Also a sudden acceleration of the speed while the pas' senger is in the act of getting aboard may be negligent. White v. Atlanta Consolidated Street Ry. Co., 92 Ga. 494; Gainesville Mid. Ry. v. Jackson, 1 Ga. App. 632. In Ricks v. Ga. Sou. & Fla. Ry. Co., 118 Ga. 259. a recovery was denied because the sudden *771acceleration of the train had begun and was already dangerous ■when the plaintiff tried to catch a car rail which he missed. In the transaction now before us, if safe entrance into the car was reasonably practicable at the time the plaintiff attempted to mount, and the motorman negligently did something to render it dangerous, a liability might be predicated; but if the attempt was fraught with danger ab initio, and the motorman did nothing to increase the danger, the plaintiff should not recover, though he succeeded in accomplishing a part of what was attempted without actually encountering injury.\n2. The defendant’s liability to the plaintiff, however, rests solely on the allegation that the releasing of the brakes was negligence; and this act, which is a casual and ordinary act in the operation of ears, and which is not in the particular instance averred to have been unusual or unnecessary, depends for its sufficiency for that purpose upon the effect alleged, that it caused the car to jump forward and to jerk petitioner off. This must be viewed in the light of the other allegations of the petition'. . It is stated that the car was approaching a usual stopping place and that the motorman was in the act of bringing it to a stop, that he had the brakes on. The petition does not allege whether the electric current was off or on; but, especially in the absence of a direct allegation on this point, it is proper for us to assume that the current-was off, this being the usual condition of a car when a stop is about to he made or when the brakes are applied. There is no allegation that concurrently with the release of the brakes the power was turned into the motors. The case rests solely upon the proposition that a release of the brakes caused the car to jump forward with a jerk; a proposition wholly contradictory of the laws of physics and to ordinary experience. Leaving out of consideration external causes, including condition of the track, curves, etc., we dare say that no motorman can impart a jerk to his car by releasing his brakes or by throwing off his current. Jerks and jolts come from throwing on the brakes or the current, active forces that tend to disturb the inertia.\nThe only forces tending to propel a car, when the current is off, are its momentum and, if the.track be down-grade, gravity. Opposed to both of these forces is friction. We will first consider the car to be running on level ground; here the momentum is *772gradually expended in overcoming the friction, and the car will slowly stop. The application of brakes increases the friction so that the momentum is the more quickly overcome and the speed undergoes a rapid reduction. If you release the brakes, i. e. remove the excess friction, you do not add to the momentum, you merely subtract from the friction, and there results, not an increase of speed, a jumping forward of the car, but merely a constant but less rapid reduction of speed. If the car is running down-grade, gravity as well as momentum is opposed to friction and may be strong enough to keep the car in motion and to accelerate it despite the friction. In this case as in the other, the application of brakes, by adding to the friction, tends to overcome the forces of gravity and the momentum of the car, and a reduction of speed ensues. If, now, the brakes be released, there may result not only a diminution in the degree at which the speed is- being reduced, but an actual acceleration of the'car; but now, as before, there can be no sudden jerk, for gravity, through a well-known law, produces a uniform acceleration. Under these laws of nature, of which the court must take judicial notice, a sudden jump or jerk of the car can not be produced by merely throwing off the brakes; something else must concur to produce these effects. We are made surer that this' a priori reasoning is not fallacious, by the corroboration of actual personal observation; though the judgment of the court must rest upon the application of the physical laws, and not on the personal experience; for knowledge of the latter nature can not extend the court’s judicial cognizance. By experiments personally observed by the writer through the courtesy of a local motorman, he finds that when the current is not on, the releasing of the brakes does not, whether on level ground or on down-grade, produce any sudden jerk or jump of the car. On down-grade there is usually a smooth, gradual acceleration; on level track, by an illusion, the car seems to gain speed when the brake is first released, but closer observation shows that in fact there is no acceleration, but only a change from rapid to slow reduction of speed. .Thus, a posteriori, we reach the same result to which our a priori reasoning led, that it is physically impossible that a release of the brakes alone could have produced the result claimed; and no other cause is shown. We may say further that, after our minds reached this conclusion, we submitted the opinion, *773for verification, to the professor of physics in one of the leading technical institutions of the country, and he says, in reply: “You arc entirely correct in your reasoning and deductions as indicated in your paper which I enclose. The laws of physics justify the conclusion you have arrived at.” ¡\nA party will not be permitted to maintain in his pleadings a contradiction of those things of which the court is required to take judicial cognizance. Of the primary physical laws the courts must take notice. 16 Cyc. 854 (8). Therefore the pleading is demurrable when it sets up a contradiction of these laws. Since a physical impossibility can not exist at all, it can not be admitted even by demurrer. Such' an allegation must be treated -by the courts just as they would treat an allegation that what is not law is law, i. e. it must be wholly disregarded. Therefore the court erred in not sustaining the general demurrer. Compare McEwen v. Atlanta Ry. Co., 120 Ga. 1008.\n3. As the plaintiff may seek still to avoid the dismissal of his action, by an amendment made before tjie remittitur is filed, we deem it proper to pass upon the special demurrers. ' The demurrer on the ground ■ that the distance plaintiff was from the car when he gave the signal is not meritorious. Cedartown Cotton Co. v. Miles, 2 Ga. App. 79 (1, a), (58 S. E. 289). Nor is the demurrer to the categorical allegation that the plaintiff was without fault good. Jarrell v. American Pipe Bending Co., 2 Ga. App. 764 (14), (59 S. E. 188); Georgia Midland R. Co. v. Evans, 87 Ga. 673, 675. The demurrer to the paragraph alleging that the plaintiff’s earning capacity would increase is not well.taken. Central Ry. Co. v. Minor, 2 Ga. App. 804 (59 S. E. 81).\n\nJudgment reversed.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued February 18,","precedential_status":"Published","slug":"rome-railway-light-co-v-keel","summary":"Action for damages, from city court of Floyd county — Judge Hamilton. December 9, 1907."} {"attorneys":"O’Steen & Wallace, for plaintiff in error., Lawson Kelly, solicitor, contra.","case_name":"Hutchinson v. State","case_name_full":"HUTCHINSON v. State","case_name_short":"Hutchinson","citation_count":0,"citations":["8 Ga. App. 684"],"court_full_name":"Court of Appeals of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Court of Appeals of Georgia","court_type":"SA","date_filed":"1911-01-31","date_filed_is_approximate":false,"headnotes":"1. In any case in which the inquiry is material the method in which a public road was established — whether by legislative enactment, by order of the county authorities, by prescription, or by dedication, — must be shown. Where a witness, without objection, testifies that a certain road is a public road, and no effort is made to test the sources of his information or question his statement that the road in question is in fact a public road, it must be assumed that more specific and definite proof of the fact that the. road is lawfully a public road was waived. An opinionative statement of a witness, even though it be a conclusion unsupported by such facts as are necessary to constitute a road a public road, where no objection is urged thereto upon the trial, can not be challenged for the first time upon review, as incompetent and insufficient.
2. A conviction of being intoxicated upon a public highway is not supported by proof that the defendant was intoxicated at a store within 15 or 30 feet of the public road.
","id":5752441,"judges":"Russell","opinions":[{"author_str":"Russell","ocr":true,"opinion_id":5604719,"opinion_text":"\nRussell, J.\nThe defendant was found guilty of being intoxi-cated on a public highway, under the provisions of the act of 1905 (Acts 1905, p. 114). Two points are raised by the record.\n1. Upon the trial there was oral testimony to the efEeet that the *685road leading from Nichols to Broxton, in Coffee county, was a public road. No objection was offered as to the competency of this testimony. In the motion for new trial, for the first time, it is insisted that the testimony offered upon the trial, to the effect that the road under investigation was a public road, was incompetent for that purpose. As we pointed out in Johnson v. State, 1 Ga. App. 195, there are various ways in which a public road can be established ; and if, in any case, the fact that the road is a public road is questioned, the proof must show that such road is in fact a public highway. Nevertheless, in the absence of any objection at the time of the trial, to the competency of the testimony, and no question being then raised as to the statement, we think that the statement that a named road is a public road is sufficient to prove that fact. Where a witness testifies upon direct examination that a road is a public road, the accuracy of his statement may be tested upon cross-examination, and if it then develops that his statement is a mere conclusion, his prior statement should be withdrawn from the jury. But while public roads can only be created in certain designated wajrs, and a road which does not become a public highway in one of the ways recognized by law is not “a public road,” still the fact that some roads are public roads may rest entirely on parol. As to roads which are created by prescription or dedication, for instance, no writing may ever have been executed; the title of the public in the road may rest wholly on the acts and sayings of the donor in case of dedication, or on the length of timé which a road has been worked and maintained by the proper authorities and used by the public in the case of prescription. It frequently occurs, in legal investigation, that the statements of witnesses are accepted as satisfactory proof of facts as to which there may be higher and better evidence. In the absence of an inquiry in regard to this, the-statement of the witness is sufficient. In any such case the point can be raised by cross-examination, and if in any case it appears that the statement of the witness is merely opinionative, and that the conclusion which he has given as if it was a substantive fact is not legally supported, the court should withdraw the testimony which has been elicited upon this point from the consideration of the jury, and require proper proof of the fact necessary to be established. An objection to the competencjr of testimony which would be sufficient if it were not incompetent can not, however, be raised *686for the first time upon review. As cfte judge, and not the jury, passes upon the competency of testimony (the jury judging only its sufficiency), if testimony which may be incompetent is permitted to go to the jury without challenge, it must be assumed that the question of competency is waived, and that the question of sufficiency is the only one which can thereafter be raised. If the statement of the witnesses in this case) that the road on1 which it is alleged in the indictment that the defendant was intoxicated was a public road, was a mere conclusion, it was in the power of the defendant at the trial to develop that fact, and to require the witnesses to give the facts upon which they based their conclusions; and if it appeared that the facts necessary to support the conclusion depended upon evidence of a higher order than the oral statements of the witnesses (such as an order of the proper county authorities), and this was not produced, the objection should have been sustained. As a reviewing court we can not say whether this testimony was incompetent ór not, for it may be that the witnesses who testified that the road from Nichols to Broxton was a public road knew that the road had been used and worked by the public for more than 20 years, but it is certain that the defendant waived inquiry into the sources or the character of their information, and thereby waived any objection to the method by which the fact that the road was public was proved.\n2. The judge charged the jury that “if you find in this case that the defendant appeared in an intoxicated condition on a porch or shed of a store, and find that this shed or porch was within 15 to 30 feet of a public road, and further find that he made his 'intoxicated condition manifest by boisterousness, and by being in indecent conditions and acting, and by vulgar, profane, and unbecoming language, and by loud and violent discourse, and you further find that there is- no obstruction between the store shed and public road, and find that a person in that public road could have observed him in such intoxicated condition and could have heard the language then used, then he would be guilty, and you should so find; for this would be on a public highway, as contemplated by the law.” We think the learned trial judge erred in this charge. Criminal statutes are to be strictly construed. It may be that the legislature considered the fact that any person who is in view and hearing of an intoxicated person who is acting indecently might be *687annoyed thereby and is entitled to be protected therefrom. But in passing the act of 1905 (Acts 1905, p. 114) which penalizes drunkenness on public streets or highways and within the curtilage of private dwellings and upon steamboats, the lawmakers expressly restricted its operation so . as to exclude any such construction. This act should perhaps have been extended so as to cover other instances where drunkenness would be just as offensive to decency and good morals, but it did not do so, and it is impossible for the law to be so stretched by judicial construction as to include one who is drunk merely because he is on the side of a public road. One difficulty in doing so consists in the fact that it would be hard judicially to prescribe the exact distance qn either side of a public road to which the offense should be extended. The existence of the offense would depend upon quite a variety of circumstances. . In the present case the judge told the jury that if the accused was drunk and manifesting it by indecent conduct in from 15 to 30 feet of the public road, he would be guilty; yet there might be a ease where another person, having a stronger voice or otherwise better facilities for acting indecently, might in his conduct be much more offensive to the public morals, and yet be 150 feet from the public road. Therefore, to construe the act as the judge did would be to amend the act so as to make it similar to the statute which prohibits the discharge of firearms on a piiblic highway, or within 50 yards thereof, between dark and daylight. The power of the court to construe the language of the legislature according to its spirit rather than to the letter has often been very liberally exercised, and wisely so, in behalf of the liberty of the citizen. But the courts can not amend an act of the General Assembly, even if there is good reason for the amendment, so as to interpolate even the most healthful regulation, if thereby an act theretofore not unlawful is made penal. The act of 1905, which the defendant in this case was charged with violating, declares- it to “be unlawful for any person or persons to be and appear in an intoxicated condition on any public street or highway,” etc. We are of the opinion that this language is unambiguous, and that the words “on the public highway” do not include near the public highway. We are aware that there is a line of decisions in which the word “on” is held to be synonymous with near or contiguous. See Words and Phrases, Yol. 6, p. 4961-4963. We have taken the pains to examine several cases *688upon this subject. Every case we have been able to find in which the word “on” is.construed to mean near to, adjacent, or contiguous, however, was a civil case; and of course a 'far greater liberality of construction is allowable in such cases than where a criminal statute is to be construed. We have been unable to find any case where a statute making'it a crime to do an act at a specified time or at a definite place has been construed to include an act done near the forbidden time or place, unless the locality, included by implication was in some way necessarily connected with the locality in which the act was forbidden. The store, porch, or shed in this case was not only not a part of the road, but was not in any way necessary to the road or its use. We think the judge erred in his charge, and that a new trial should be had. Judgment reversed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"hutchinson-v-state","summary":"Accusation of misdemeanor; from city court of Douglas — Judge Lankford. July 11, 1910."} {"case_name":"Morrison v. Piper","case_name_full":"Robert C. Morrison v. Roger H. Piper","case_name_short":"Morrison","citation_count":0,"citations":["160 A.D.2d 1066"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1990-04-05","date_filed_is_approximate":false,"id":6060929,"judges":"Weiss","opinions":[{"author_str":"Weiss","ocr":true,"opinion_id":5924547,"opinion_text":"\nWeiss, J. P.\nAppeal from an order of the Supreme Court (Viscardi, J.), entered May 11, 1989 in Essex County, which denied plaintiffs motion for partial summary judgment.\nOn December 2, 1977, Lilian Maier conveyed 2.3 acres of property she owned in Essex County by warranty deed to plaintiff, her nephew, retaining to herself some 30 acres. That deed included language creating reciprocal preemptive rights granting each the right of first refusal to purchase the property of the other. The language in relevant part states: \"The party of the first part and the party of the second part agree and covenant that during their life each shall have a right of first refusal to purchase the property conveyed and the property retained, respectively. * * * This right of first refusal is intended to bind the party of the second part, his heirs and assigns only during the life of Lilian Teresa Maier[,] the party of the first part and those persons who directly take as a result of a gift by her or by her death. * * * This right of refusal is intended to bind the party of the first part, her heirs and assigns, only during the life of Robert C. Morrison, the party of the second part and those persons who directly take as a result of a gift by him or by his death. This right shall continue until the property is either conveyed or assigned by the donees or beneficiaries or until their death, whichever occurs first.”\n*1067Maier died in 1980 and bequeathed her 30-acre parcel to her sisters, Elizabeth Brassel and defendants Mary T. Owens and Helen C. Whelehan, as tenants in common. In August 1984, Brassel, Owens and Whelehan executed and recorded three separate deeds conveying approximately one third of the parcel to each individually. An additional 1.24-acre parcel was conveyed by the same three persons to Elizabeth Brassel. Plaintiff executed and acknowledged all four deeds, allegedly for the purpose of consenting to the conveyances. Each contained the following relevant language:\n\"The above described parcel is subject to a 'right of first refusal’ as set forth in the deed given by Lilian Teresa Maier to [plaintiff] * * *.\n\"[Plaintiff] hereby executed and acknowledged this deed for the purpose of consenting to this conveyance.”\nThereafter, Owens and Whelehan each conveyed her respective parcel to defendants Roger H. Piper and Drusilla A. Piper. Plaintiff then commenced this action seeking judgment, inter alia, determining the terms of the sales to the Pipers and requiring them to convey the property to him, should he so elect. The complaint alleged a failure to honor plaintiff’s right of first refusal and charged that the Pipers purchased with knowledge of his rights. Supreme Court denied plaintiff’s motion for partial summary judgment finding that plaintiff did have a right of first refusal which did not violate the common-law rule prohibiting unreasonable restraints on alienation, but which was violative of the rule against perpetuities (see, EPTL 9-1.1 [b]). Supreme Court further found that a question of fact existed as to whether plaintiff’s execution of the 1984 deeds by Brassel, Owens and Whelehan, which allegedly evidenced his consent to the subdivision of the 30 acres between them also constituted a release of his preemptive right of first refusal.1 This appeal by plaintiff followed.2\nThe rule against perpetuities (EPTL 9-1.1 [b]) provides, in relevant part, that: \"No estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in being at the creation of the estate *1068and any period of gestation involved. In no case shall lives measuring the permissible period of vesting be so designated or so numerous as to make proof of their end unreasonably difficult.” The specific language in the deed from Maier to plaintiff to be tested against this statute is: “This right of first refusal is intended to bind [Maier/plaintiff], [her/his] heirs and assigns only during the life of [Maier/plaintiff] and those persons who directly take as a result of a gift by [her/him] or by [her/his] death. This right shall continue until the property is either conveyed or assigned by the donees or beneficiaries or until their death, whichever occurs first.”\nOur analysis must focus on the narrow question of whether the right of first refusal may be exercised “later than twenty-one years after one or more lives in being at the creation of the estate [execution of the deed]” (EPTL 9-1.1 [b]), and thus be violative of the statute. The answer is obvious and plaintiff, while not conceding as much, seeks to avoid invalidation by urging that we sever and excise any offensive portion and salvage the remainder (see, e.g., Matter of Fischer, 307 NY 149; Hawthorne v Smith, 273 NY 291; Matter of Lyons, 271 NY 204). Here, since vesting of title may be postponed not only during the life of plaintiff, but perhaps for the lives of his donees and beneficiaries whose number is uncertain, the right of first refusal is invalid (see, EPTL 9-1.1 [b]; 56 NY Jur 2d, Estates, Powers and Restraints on Alienation, § 486, at 552-553).\nHaving found the preemptive right invalid, we next turn to plaintiff’s argument that we heed the intent and dominant purpose manifested by Maier to create and preserve the preemptive right in favor of plaintiff during his lifetime. However, the intent in any instrument creating an interest in real property must be gathered from the entire document and be consistent with law (see, Real Property Law § 240 [3]). Here, the intent to pass the benefits of the preemptive right on to the donees, beneficiaries, heirs and assigns is unequivocally expressed and must be considered (see, Smith v Smith, 116 AD2d 810, 811-812; Buffalo Seminary v McCarthy, 86 AD2d 435, 444-445, affd 58 NY2d 867).\nIn a further effort to avoid the effect of the rule against perpetuities, plaintiff contends that the right of first refusal in this case should be governed by the holding in Metropolitan Transp. Auth. v Bruken Realty Corp. (67 NY2d 156). We do not find that Metropolitan compels a different result. The public interest exception to the rule prohibiting remote vesting is limited solely to \"commercial and governmental activi*1069ties because neither 'lives in being’ nor 'twenty one years’ are periods which are relevant to business or governmental affairs” (supra, at 166).\nIn Smith v Smith (116 AD2d 810, 811-812 supra), this court held that where the exercise of a right of first refusal may occur later than 21 years after one or more lives in being at the time the interest in property is created, it is invalid under the statute. The same result must pertain here. Supreme Court correctly denied plaintiffs motion for partial summary judgment. We further find that defendants. are entitled to summary judgment dismissing the complaint against them, which relief should have been, and hereby is, granted.3 Accordingly, it is unnecessary to reach plaintiffs remaining arguments.\nOrder modified, on the law, without costs, by granting summary judgment in favor of defendants and dismissing the complaint against them, and, as so modified, affirmed. Weiss, J. P., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.\n\n. Supreme Court did not address the cross motion for summary judgment by Owens and Whelehan.\n\n\n. We note that plaintiff failed to timely serve Owens and Whelehan with a notice of appeal (see, CPLR 5513 [a]; 5515 [1]). However, after they received late service of the notice of appeal, Owens and Whelehan defended the appeal. Since the omission appears harmless and without prejudice, we grant an extension of time to cure to plaintiff nunc pro tunc (see, Peck v Ernst Bros., 81 AD2d 940).\n\n\n. As the issue is fundamental to recovery, this court is empowered to search the record and award summary judgment even though the nonmovant did not appeal (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106,110-111).\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"morrison-v-piper"} {"case_name":"In re the Estate of Di Raffaele","case_name_full":"In the Matter of the Estate of Salvatore M. Di Raffaele, Ignazio Di Raffaele, Appellant Eleanor M. Di Raffaele","citation_count":0,"citations":["271 A.D.2d 888"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1946-12-16","date_filed_is_approximate":false,"id":6183211,"opinions":[{"ocr":true,"opinion_id":6049266,"opinion_text":"\nAppeal by petitioner, Ignazio Di Raffaele, from an order of the Surrogate’s Court of Queens County denying his application for the revocation of letters of administration on the estate of the deceased issued to the administratrix Eleanor Mantellina Di Raffaele. Order unanimously affirmed, with costs to the respondent, payable out of the estate. Ro opinion. Present — Hagarty, Acting P. J., ¡Carswell, Johnston, Adel and Rolan, JJ.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-the-estate-of-di-raffaele"} {"attorneys":"Hepburn, for plaintiff in error., Doty, with whom was R. Q. Hale, for defendant.","case_name":"Yoder v. Yoder","case_name_full":"Yoder versus Yoder","case_name_short":"Yoder","citation_count":0,"citations":["18 Pa. 471"],"court_full_name":"Supreme Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Supreme Court of Pennsylvania","court_type":"S","date_filed":"1852-06-17","date_filed_is_approximate":false,"headnotes":"F. settled upon, land and died in possession, leaving his widow and minor child in actual possession. The widow, during the minority of her child, sold the improvement right to B., who took possession, and died leaving a widow and children. The widow of B. became married to Y., who went upon the land, and afterwards purchased from the child and heir of F., the settler. Y. afterwards sold to the plaintiff, his son.
_ In an ejectment by the son against Y. and his wife, and another in possession, it was held that the purchase by B. from the widow of F. gave to him no title as against the heir of F., and the possession by Y. was the continuance of a wrong against the said heir; that there was no obligation in F. to purchase for his wife and those with him in possession; and that his purchase from the heir of F. and his conveyance to the plaintiff, gave the latter title as against the wife of Y. and the family of B.; and that the wife of Y., although abandoned by her husband, could not, under the possession of F., her husband, maintain her possession of the land by virtue of the statute of limitations.
","id":6360405,"judges":"Lowuie","opinions":[{"author_str":"Lowuie","ocr":true,"opinion_id":6229162,"opinion_text":"\nThe opinion of the Court was delivered, by\nLowuie, J.\nPeter Yoder acknowledges the Ery title, that it is now owned by Benjamin Yoder, and that he is Benjamin’s tenant. Under such circumstances, neither Peter nor any of his family can claim to have obtained a title by adverse possession.\nThe Ery title was good against all but the Commonwealth; and Peter Burris got no shadow of title, as against the heir of Ery, when he bought from Ery’s widow. And when Burris died, and Peter Yoder married his widow and continued the possession of the Burris family, he was continuing a wrong against the heir of Ery. When, therefore, Mrs. Stahl arrived at age and asserted her title as heir of Ery, it would have been wrong for Peter Yoder to resist her claim, either for the Burris family or for himself. Being in conscience bound to abandon a possession wrongfully held, *473he was not under any kind of obligation to buy in the true title for the benefit of those who, with him, were holding in disregard-of it; and there was nothing to prevent him from buying for himself. When he took the deed'to himself] and then conveyed to Benjamin, he was distinctly asserting a purchase on his own account, and there is no evidence that he ever considered himself as holding for the Burris family. The Court below was therefore right in directing a verdict for the plaintiff.\nJudgment affirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"yoder-v-yoder","summary":"Error to the Court of Common Pleas of Juniata county. This was an action of ejectment brought to February Term, 1851, for 135 acres of land, in which Benjamin Yoder was plaintiff, and Peter Yoder and Eleanor his wife, and William Burris, were defendants. The evidence in the cause showed that the land was originally settled by George Fry about 1800. That he built a house, cleared some land, and lived there until his death, about 1806. He left a widow and one child nine years old, who continued to live upon the land until about 1813, when the widow sold out the improvement right to Peter Burris, who went upon the land and lived there until his death in 1824. In 1825 Peter Yoder married Eleanor, the widow of Burris, and went to live on the land, where the widow and children of Burris then were. On 7th April, 1827, Peter Yoder bought the land from John Stahl and wife, the latter being the only child and heir at law of George Fry, and got a deed for it; and on the 4th June, 1827, he sold and conveyed the land to Benjamin Yoder, the plaintiff below. The possession of Peter Yoder and his family, and of such of the Burris family as remained at home, has been continued up to this day. In 1814, Peter Burris obtained a warrant for the land and had it surveyed, but pursued the matter no further. In 1849 Benjamin Yoder applied for a warrant, and then Peter Yoder was one of his witnesses to prove the settlement, and testified that he had lived on the land as tenant of Benjamin since 1827. On the trial it was contended on the part of the plaintiff that the Fry title was abandoned. 2. The purchase of Peter Yoder enured for the benefit of the widow’s title. 3. That Peter Yoder had been in possession from 1827 till 1850, and the statute of limitations operated; and 4. That Fry had no title. Watts, J., charged that there was no evidence in the case that Ery had abandoned his title. He made a settlement and died on the land. His widow and child continued to live on the land till Burris purchased from the widow of Ery. The latter left the land, took her child with her, and gave the possession to Burris. There is in this no evidence of abandonment. He also charged that Peter Yoder’s purchase did not enure to the benefit of his wife. His purchase from the child of Ery gave him title, and his subsequent conveyance to his own son Benjamin Yoder, the plaintiff, vested the title in him. The wife of Peter Yoder, whose husband had left her, cannot claim possession by the statute of limitations. Yerdict for plaintiff. Error was assigned to the charge."} {"attorneys":"No counsel marked for appellant. R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.","case_name":"McNair v. State","case_name_full":"McNAIR V. THE STATE","case_name_short":"McNair","citation_count":0,"citations":["3 Ala. App. 670"],"court_full_name":"Alabama Court of Appeals","court_jurisdiction":"Alabama, AL","court_short_name":"Alabama Court of Appeals","court_type":"SA","date_filed":"1912-01-18","date_filed_is_approximate":false,"id":6644423,"opinions":[{"ocr":true,"opinion_id":6521130,"opinion_text":"\nPer curiam.\nDismissed on motion.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"mcnair-v-state","summary":"Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Jr."} {"case_name":"Protests 819737-G of S. S. Adams Co.","case_name_full":"Protests 819737-G, etc., of S. S. Adams Co. (New York)","citation_count":0,"citations":["2 Cust. Ct. 577"],"court_full_name":"United States Customs Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Customs Court","court_type":"FS","date_filed":"1939-02-14","date_filed_is_approximate":false,"id":6747716,"judges":"Evans","opinions":[{"author_str":"Evans","ocr":true,"opinion_id":6629820,"opinion_text":"\nOpinion by\nEvans, J.\nFollowing the authorities cited in Abstract 15400 the court dismissed the protests.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"protests-819737-g-of-s-s-adams-co"} {"case_name":"In re Bristol","case_name_full":"IN THE MATTER OF SCOTT BRISTOL, AN ATTORNEY AT LAW","case_name_short":"In re Bristol","citation_count":0,"citations":["131 N.J. 374","619 A.2d 1311"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1993-02-24","date_filed_is_approximate":false,"id":7405197,"opinions":[{"ocr":true,"opinion_id":7324392,"opinion_text":"\nORDER TO SHOW CAUSE\nThe Office of Attorney Ethics having filed a petition with the Supreme Court recommending that SCOTT BRISTOL of NEWARK, be immediately temporarily suspended from the practice of law, and good cause appearing;\nIt is ORDERED that SCOTT BRISTOL is temporarily suspended from the practice of law, effective immediately, and until further Order of this Court; and it is further\nORDERED that the Office of Attorney Ethics take such protective action, pursuant to Rule l:20-ll(c), as may be appropriate to gain possession and control of the legal files, records, practice and trust assets of SCOTT BRISTOL, wherever situate, pending further Order of this Court; and it is further\nORDERED that all funds, if any, currently existing in any New Jersey financial institution maintained by SCOTT BRISTOL, pursuant to Rule 1:21-6, shall be restrained from disbursement except upon application to this Court, for good cause shown, pending the further Order of this Court; and it is further\n. ORDERED that SCOTT BRISTOL show cause before this Court on March 30, 1993, at 2:00 p.m., Supreme Court Courtroom, Hughes Justice Complex, Trenton, New Jersey, why his temporary suspension and the restraints herein should not continue pending final disposition of any ethics proceedings pending against him and further why the funds restrained from disbursement should not be transmitted by the financial institutions who are the present custodians to the Clerk of the Superior Court for deposit in the Superior Court Trust Fund, pending the further Order of this Court; and it is further\n*375ORDERED that David E. Johnson, Jr., Esquire, or his designee, present this matter to the Court; and it is further\nORDERED that SCOTT BRISTOL be restrained and enjoined from practicing law during the period of his suspension and that he comply with Administrative Guideline No. 23 of the Office of Attorney Ethics dealing with suspended attorneys; and it is further\nORDERED that the Office of Attorney Ethics shall cause this Order to be published on two successive days in the Newark Star-Ledger and in two successive issues of the New Jersey Law Journal and the New Jersey Lawyer.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-bristol"} {"case_name":"Healy v. Metropolitan St. Ry. Co.","case_name_full":"HEALY v. METROPOLITAN ST. RY. CO.","case_name_short":"Healy","citation_count":0,"citations":["83 N.Y.S. 1107"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1903-07-07","date_filed_is_approximate":false,"id":7423871,"opinions":[{"ocr":true,"opinion_id":7343581,"opinion_text":"\nNo opinion. Judgment and order affirmed, with costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"healy-v-metropolitan-st-ry-co","summary":"Action by Thomas J. Healy against the Metropolitan Street Railway Company. E. D. O’Brien, for appellant. M. Esberg, for respondent."} {"case_name":"Protests 713642-G of Turin Grotto Restaurant","case_name_full":"Protests 713642-G, etc., of Turin Grotto Restaurant (Philadelphia)","citation_count":0,"citations":["7 Cust. Ct. 284"],"court_full_name":"United States Customs Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Customs Court","court_type":"FS","date_filed":"1941-10-08","date_filed_is_approximate":false,"id":8122768,"judges":"Cline","opinions":[{"author_str":"Cline","ocr":true,"opinion_id":8083813,"opinion_text":"\nOpinion by\nCline, J.\nThe invoices describe the merchandise as Italian peeled tomatoes and tomato sauce. A question arose on circuit whether, in view of Vitelli v. United States (2 Cust. Ct. 326, C. D. 154), affirmed in Vitelli v. United States (28 C. C. P. A. 131, C. A. D. 134), on tomato paste, the plaintiff should be precluded from presenting his case insofar as tomato sauce is concerned. The court held that he should not be precluded from so doing. No sample was produced but the plaintiff introduced testimony of the owner of the restaurant in question, who is the importer of the merchandise. He testified, among other *285things, that he, together with the chef, always examined the importations of tomato paste by “smelling the spices, tasting the sauce and looking at it,”-and that from his examination he is able to identify the ingredients which, in this case, consist of bay leaves, cloves, rosemary, marjoram, and sometimes whole peppers, together with the “meaty substance of tomatoes,” celery, carrot juice, and garlic. He stated that the main use of the merchandise by him in his business was to put it on spaghetti, over 90 percent being used in that way, although he also uses it to put on veal cutlet to make it tasty; that it is used in the condition as imported to make food more palatable, and that he never uses it alone. He also testified that the uses to which he puts the imported commodity differ from those to which tomato paste, tomato purée, whole tomatoes, and tomato juice are put. On cross-examinatipn he stated the cans were labeled “Salsa-Pomidoro,” which he interpreted to mean tomato sauce. It appeared from the testimony that the so-called tomato sauce herein differs considerably from the commodity the subject of Schroeder v. United States (14 Ct. Cust. Appls. 267, T. D. 41882), affirming Abstract 50727, wherein the merchandise was invoiced as “Salsa di Pomodoro.” The plaintiff cited the case oí. United States v. Heinz (26 C. C. P. A. 9, T. D. 49557) in which the court held the merchandise consisting of tomatoes, onions, sugar, salt, vinegar, and spices, to be a sauce. From the entire record in this case the court found that the testimony of the importer, standing alone, is not conclusive as to the chief use of the commodity, and that the importer’s conclusion as to the contents based on smell and taste was not sufficient to establish that the goods are anything more than tomatoes, prepared or preserved in any manner. The court held that the plaintiff failed to overcome the presumption of correctness attaching to the collector’s action. The protests were-therefore overruled.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"protests-713642-g-of-turin-grotto-restaurant"} {"case_name":"Emig v. United States","case_name_full":"William H. Emig v. United States","case_name_short":"Emig","citation_count":0,"citations":["39 Cust. Ct. 422"],"court_full_name":"United States Customs Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Customs Court","court_type":"FS","date_filed":"1957-09-12","date_filed_is_approximate":false,"id":8142506,"judges":"Wilson","opinions":[{"author_str":"Wilson","ocr":true,"opinion_id":8103869,"opinion_text":"\nOpinion by\nWilson, J.\nIt was stipulated that the merchandise consists of platinum fox fur skins, undressed, similar in all material respects to those the subject of United States v. O. Brager-Larsen (36 C. C. P. A. 1, C. A. D. 388). The claim for free entry under paragraph 1681 was, therefore, sustained.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"emig-v-united-states"} {"attorneys":"Mr. Morris Fedder for the plaintiff. Mr. Martin Fedder was on the brief., Mr. J. W. Hussey, with whom was Mr. Assistant Attorney General Charles K. Biee, for the defendant. Mr. Andrew D. Sharpe was on the brief.","case_name":"Jacobs Bros. v. United States","case_name_full":"JACOBS BROTHERS, INC. v. United States","citation_count":0,"citations":["136 Ct. Cl. 690","146 F. Supp. 222"],"court_full_name":"United States Court of Claims","court_jurisdiction":"USA, Federal","court_short_name":"Court of Claims","court_type":"FS","date_filed":"1956-11-07","date_filed_is_approximate":false,"id":8612884,"judges":"Jones, Laramoee, Littleton, Madden, Whitaker","opinions":[{"author_str":"Madden","ocr":true,"opinion_id":8591524,"opinion_text":"\nMaddeN, Judge,\ndelivered the opinion of the court:\nThe plaintiff filed fraudulent income and excess profits tax returns for each of the years 1943, 1944, and 1945. The frauds were discovered and the Commissioner of Internal Revenue in 1951 assessed increased excess profits taxes for those years on the basis of the plaintiff’s true income. He also, acting pursuant to section 293 (b) of the Internal Revenue Code of 1939, 26 U. S. C. (1952 Ed.) § 293, assessed a 50 percent fraud penalty upon the deficiencies, that is, the difference between the excess profits taxes paid by the plaintiff, and those that it should have paid.\nThe result of the increase in the plaintiff’s excess profits taxes was a decrease in its income taxes, since, under 26 U. S. C. (1940 Ed., Supp. IV) §26 (e) a taxpayer was entitled to a credit on its normal tax net income of an amount equal to its adjusted excess profits net income. The Commissioner of Internal Revenue, therefore, at the same time that he assessed the deficiencies and interest and fraud penalties relating to the plaintiff’s excess profits taxes, allowed and credited to the plaintiff the overassessments of its income taxes which resulted from the increase in its excess profits taxes. The plaintiff paid the amounts determined by the Commissioner.\nThe plaintiff filed claims for refund of parts of the amounts paid, asserting that in determining the amounts to which the 50 percent fraud penalty should be applied, the Commissioner should have deducted the overpayments of income tax from the deficiencies in excess profits tax.\nThe Government urges that the excess profits tax and the income tax were separate taxes. It cites Babcock and Wilcox Co. v. Pedrick, 212 F. 2d 645 (CA2), and W. G. Duncan Coal Co. v. Glenn, 120 F. Supp. 948 (D. C. W. D. Ky), which hold that in determining the dates from which interest *692on deficiencies and overassessments should run, the two types of taxes should be treated as separate.\nThe plaintiff points to section 26 (e), referred to above, which allows a credit in determining income tax net income of the amount of a taxpayer’s adjusted excess profits net income. It cites section 710 (a) (1) (B), which provides that the income tax and the excess profits tax added together should not exceed 80 per centum of the taxpayer’s surtax net income.\nThe sections of the Code defining “deficiency”, section 271 (a) (1) (2),26U. S. C. (1952 Ed.) § 271, and providing for the 50 percent fraud penalty, section 293 (b), 26 TJ. S. C. (1952 Ed.) § 293, appear in chapter I of the Code, which relates to income taxes. They are incorporated into subchapter E of chapter II, which relates to the excess profits taxes here in question, by section 729 (a), 26 U. S. C. (1940 Ed.) § 729, which says:\nAll provisions of law (including penalties) applicable in respect of the taxes imposed by Chapter 1, shall, insofar as not inconsistent with this subchapter, be applicable in respect to the tax imposed by this subchapter.\nThere is no clear mandate in the statutes which required the Commissioner of Internal Revenue to do what he did. The interest cases relied on by the Government involve statutes which provide definitely on what date taxes are due and from what date interest should be computed. In the instant case, if honest returns had been made, the plaintiff’s income for income tax purposes would have been reduced because of the credit of its excess profits tax income, and only the taxes shown by combining the information shown on the two returns would have been payable. We think that when the two returns were corrected by the Commissioner to eliminate the results of the plaintiff’s fraud, only the deficiency shown after considering the two corrected returns together should have been used as the sum to which to apply the fraud penalty.\nThe plaintiff also claims that the 10 percent postwar refund credit of excess profits taxes, provided for by sections 780 and 781 of the Code, as amended, 26 U. S. C. (1940 Ed., Supp. IV) Secs. 780, 781, should have been deducted from the ex*693cess profits tax deficiency before the 50 percent fraud penalty was applied to it. This contention concerns only the taxes for the year 1943, since the Commissioner did make the deduction for the years 1944 and 1945. The cited sections provided that if the excess profits taxes were paid before July 1, 1945, the taxpayer should be given a non-interest-bearing, nonnegotiable bond of the United States for the amount of the refund, payable on the cessation of hostilities in the then current war; but if the tax was paid after July 1,1945, the refund should be made in cash.\nAt the time the plaintiff’s return for 1943 was made, even if the return had been a non-fraudulent one, the plaintiff would not have received the 10 percent post-war deduction either in cash or by credit. It would have received a bond, not payable until an undetermined time in the future. On a return which was later shown to have involved a deficiency, the deficiency would not have been decreased or otherwise affected by the Government’s bond. We conclude, therefore, that the 50 percent fraud penalty was properly applied to the 1943 excess profits tax deficiency, as reduced by the income tax overassessment, but without any reduction on account of the 10 percent postwar refund credit. Stein v. Commissioner, 25 T. C. 940, 963.\nThe plaintiff is entitled to recover and judgment will be entered to that effect. The amount of the judgment will be determined in further proceedings, pursuant to Rule 38 (c).\nIt is so ordered.\nLaramoee, Judge; Whitaker, Judge; Littleton, Judge; and JoNes, Chief Judge, concur.\nFINDINGS OF FACT\nThe court, having considered the facts as stipulated by the parties, and the briefs and argument of counsel, makes findings of fact as follows:\n1. Plaintiff was incorporated under the laws of the State of Maryland on September 21, 1926. Its stock has at all times been owned by Charles B. Jacobs, Irvin B. Jacobs, and Samuel B. Jacobs in proportions of 37%:37%: 25, respectively. Its principal place of business is located at 1512 *694Harford Avenue, Baltimore 2, Maryland, and its principal business activity is the manufacture and sale of women’s uniforms.\n2. Plaintiff was organized to succeed to the business of a partnership consisting of Charles B. Jacobs, plaintiff’s president; Irvin B. Jacobs, plaintiff’s vice-president; and Samuel B. Jacobs, plaintiff’s secretary-treasurer.\n3. Plaintiff filed fraudulent income and excess profits tax returns for each of the calendar years 1943, 1944, and 1945. The returns for 1943 disclosed net income of $78,129.42 and income tax liability of $31,251.77, declared value excess profits tax of $221.14, and no excess profits tax due. The returns for 1944 reported net income of $82,943.34 and income tax liability of $21,580.92 and excess profits tax liability of $24,787.34. The returns for 1945 reported net income of $67,261.07 and income tax liability of $22,460.99 and excess profits tax liability of $9,997.73. Plaintiff duly paid the amounts of taxes shown due on the returns.\n4. Plaintiff’s federal income and excess profits tax returns for the calendar years 1939 to 1946, inclusive, were examined by Internal Revenue Agent M. W. Hardesty, whose findings were incorporated in a report dated October 19,1948. With respect to the calendar years 1943,1944, and 1945, the agent determined plaintiff’s net income to be $110,712.78 for 1943, $122,575.19 for 1944, and $98,081.86 for 1945. The increases made by the agent were attributable to the disallowance of salesmen’s commissions accrued and deducted in an excessive amount of $13,401.38 and the addition to income of unreported sales aggregating $19,273.34 for 1943. The agent disallowed claimed salesmen’s commissions of $18,565.62 and added unreported income from sales of $21,066.23 for 1944. The agent disallowed claimed deductions for salesmen’s commissions of $5,242.09 and added to income unreported sales in the amount $5,969.33 for 1945. For 1945, the agent also disallowed a loss on the sale of property to a controlled corporation in the amount of $19,609.37. The Commissioner of Internal Revenue approved, with minor adjustments, the revenue agent’s findings, except in respect of the loss of $19,609.37 for 1945. A 50 percent fraud penalty was assessed under the terms *695of section 293 (b) of the Internal Revenue Code of 1939.\n5. Pursuant to the reports of revenue agents, field conferences, and plaintiff’s “Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment” dated January 9, 1951, the Commissioner of Internal Revenue in March 1951 assessed deficiencies against plaintiff for 1943,1944, and 1945 as follows:\n1943 — Declared value excess profits tax $2,156.53, interest thereon $893.39, and penalty thereon $1,067.95; excess profits tax $50,673.82, interest thereon $19,438.96, and penalty thereon $28,255.05. The Commissioner also allowed and refunded an over-assessment of income tax in the amount of $10,890.75, plus statutory interest thereon.\n1944 — Declared value excess profits tax $1,489.96, interest thereon $527.85, and penalty thereon $744.98; excess profits tax $33,806.93, interest thereon $11,976.91, and penalty thereon $17,156.47. The Commissioner also allowed and refunded an over-assessment of income tax of $559.37, plus statutory interest thereon.\n1945 — Excess profits tax $15,592.19, interest thereon $4,588.37, and penalty thereon $7,616.60. The Commissioner also allowed and refunded an overassessment of income tax in the amount of $1,076.85, plus statutory interest thereon.\nThe minor discrepancies in the foregoing 50 percent penalty computations were occasioned by adjustments and payments made in conformity with earlier revenue agents’ reports. The assessed deficiencies were paid or satisfied on various dates during 1951 and 1952.\n6. The bases upon which the deficiencies for 1943, 1944, and 1945 were determined were (1) that plaintiff had fraudulently overaccrued on its books and deducted in its federal tax returns amounts falsely represented as liability for salesmen’s commissions, and (2) that in each of the years sales from which substantial amounts of income had been realized by plaintiff were not shown in plaintiff’s books of account and had not been reported in its federal tax returns.\n*6967.The computations of penalties by the Commissioner of Internal Revenue on plaintiff’s excess profits tax deficiencies were as follows:\n\nDeficiency Excess Profits Tam 1949 1944 1945\n\nRevenue agent’s report 12/6/44- $5,836.28\nRevenue agent’s report 11/21/46- $506.01\nRevenue agent’s report 10/19/48- 50, 673.82 33, 806.93 $15,233.14\nDeficiency for purposes of computing penalty_ 56, 510.10 34,312.94 15,233.14\nFifty percent penalty_$28,255.05 $17,156.47 $7,616.60\n8.Plaintiff’s computations of the proper penalties on the excess profits tax deficiencies are as follows:\n\nDeficiency Excess Profits Tam 1949 1944 1945\n\nRevenue agent’s report 12/6/44- $5, 836.28\nRevenue agent’s report 11/21/46- $506. 01\nRevenue agent’s report 10/19/48- 50,673. 82 33,806.93 $15,233.14\n$56,510.10 $34,312.94 $15,233.14\n\nOverassessment income tarn per\n\nRevenue agent’s report 10/19/48- $10,890. 75\nPost-war refund — report 12/6/44_ 583.63\nPost-war refund — report 10/19/48_ 5, 067.38\n$559.37 $1, 076.85\n$16, 541. 76 $559.37 $1,076. 85\nDeficiency for purposes of computing penalty_ $39,968.34 $33,753.57 $14,156.29\nFifty percent penalty_ $19,984.17 $16, 876. 79 $7, 078.15\n9.On June 5, 1952, plaintiff timely filed claims for refund for each of the years 1943, 1944, and 1945, with the District Director of Internal Revenue at Baltimore, Maryland. The claims were disallowed by letter dated April 8, 1953.\nCONCLUSION OF LAW\nUpon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of *697law that plaintiff is entitled to recover, and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Eule 38 (c) of the Eules of this court.\nIn accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount' due plaintiff, it was ordered May 8, 1957, that judgment be entered for the plaintiff for $7,287.97.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"jacobs-bros-v-united-states"} {"attorneys":"Michael D. Eagen (argued), Nancy A. Lawson, Dinsmore & Shohl, Cincinnati, Ohio, Thomas M. Green, Green & Green, Dayton, Ohio, for defendants-appellees., James F. Brockman, Lindhorst & Drei-dame, Cincinnati, Ohio, for Nicolet, Inc., Joseph A. Gerling, Lane, Alton, & Horst, Columbus, Ohio, for Porter Co., Inc. & Southern Textile Corp., Robert E. Sweeney (argued), Robert P. Sweeney, Robert E. Sweeney Co., L.P.A., Cleveland, Ohio, for plaintiffs-appellants.","case_name":"Yung v. Raymark Industries, Inc.","case_name_full":"George A. YUNG, Margaret M. Yung v. RAYMARK INDUSTRIES, INC. Armstrong World Industries, Inc. Nicolet, Inc. Eagle Picher Industries, Inc. The Celotex Corp., successor in interest to Philip Carey Briggs Manufacturing Co. Panacon Corporation H.K. Porter Company, Inc. Southern Textile Corporation Owens-Illinois Inc. Turner-Newall Ltd.","case_name_short":"Yung","citation_count":0,"citations":["789 F.2d 397"],"court_full_name":"Court of Appeals for the Sixth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Sixth Circuit","court_type":"F","date_filed":"1986-04-28","date_filed_is_approximate":false,"id":8949876,"judges":"Martin","opinions":[{"author_str":"Martin","ocr":true,"opinion_id":8940605,"opinion_text":"\nBOYCE F. MARTIN, Jr., Circuit Judge.\nIn this diversity asbestos-related injury action, George Yung and his wife appeal the denial of a directed verdict and the denial of a judgment notwithstanding the verdict. In a trial solely on the issue of whether the statute of limitations barred the Yungs’ suit, the jury found that the action was barred and therefore the issues of liability and damages were not tried. The Yungs argue that the defendants did not produce sufficient evidence for the jury to consider and that the evidence was insufficient to form a basis for the jury’s verdict. In addition, the Yungs claim that the trial court’s instructions to the jury were not proper. Finally, the Yungs claim that the trial court abused its discretion by trifurcating the action so that the statute of limitations issue was tried separately from the liability issue and the damages issue.\nOn January 28,1983, the Yungs filed this action claiming that George Yung had in*398haled asbestos, asbestos dust and asbestos fibers while working in the industry and that this ingestion directly and proximately caused him “to develop an asbestos-related lung disease and to suffer other bodily injuries.” The defendants asserted that the Yungs’ claim was barred because Yung had known or should have known about his injury in 1976.\nIn 1976, Yung was given a physical examination by Dr. Cotton Feray. A chest x-ray in conjunction with the examination by Dr. E.K. Davis, who died before trial, was made and reported to Dr. Feray. The report, which was entered into evidence, provided,\nChest A & lateral: ... There is some old pleural calcification present in the left upper lung anteriorly and also in left lung base posteriorly and immediately above the hemidiaphragram. These areas of pleural calcification may simply be secondary to old scarring. However, cal-cifications such as this are sometimes seen after exposure to asbestos dust. Is there any history of such exposure? There are some fibrotic changes in both lungs and there is blunting of both costo-phrenic angles which is felt to be secondary to old scarring. The lungs are otherwise clear at this time.\nE.K. Davis, M.D.\nDr. Feray, who was qualified as an expert witness, testified that he showed the report to Yung and discussed the contents of the report with him. Dr. Feray testified that he gave a copy of the x-ray report to Yung. Yung testified that Dr. Feray never discussed the report with him nor was he shown the report. Yung admitted that by 1972 he knew of the dangers and illnesses associated with asbestos. In 1981, while hospitalized for heart surgery, Yung disclosed to a lung specialist that he had worked with asbestos for years. The lung specialist then diagnosed Yung’s lung problems as asbestosis.\nThe applicable statute of limitations, Ohio Revised Code section 2305.10, states:\nAn action for bodily injury ... shall be brought within two years after the cause thereof arose.\nFor purposes of this section, a cause of action for bodily injury caused by exposure to asbestos ... arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured by such exposure, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured by the exposure, whichever date occurs first.\nIf Yung knew or should have known of his asbestos-related injury in 1976, this statute of limitations extinguished Yung’s cause of action in 1978. His suit in 1983 would therefore be barred.\nThe Yungs argue that the defendants did not present sufficient evidence for the jury to consider and that there was insufficient evidence for the jury’s verdict that the Yungs’ claim was barred by the statute of limitations. As a consequence, the Yungs claim that the motions for directed verdict and judgment notwithstanding the verdict should have been granted. The defendants, by presenting the evidence outlined above, raised a question of fact whether Yung, by the exercise of reasonable diligence, should have known in 1976 that he had been injured by exposure to asbestos. The opinion of Dr. Davis in his report, admitted without objection from the Yungs, describes findings of pleural calcification, fibrotic changes, blunting of the costophrenic angles and scarring that would alert any layman to the presence of a lung injury. Yung admitted that he knew of the dangers of asbestos and its effects by 1972. The report contains the following question: “Was there exposure to asbestos to account for these findings?” This evidence, along with the disputed testimony of Dr. Feray that he gave the report to Yung and talked with him about it, raises a question of fact as to whether Yung knew or with the exercise of reasonable diligence, should have known that his lungs were injured and that the injury was asbestos-related.\n*399Ohio law states that the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry that must be established by the opinion of medical witnesses competent to express such an opinion. Darnell v. Eastman, 23 Ohio St.2d 13, 17; 261 N.E.2d 114 (1970); Stacey v. Carnegie-Illinois Steel Corp., 156 Ohio St. 205, 101 N.E.2d 897 (1951). The report of Dr. E.K. Davis is sufficient in this statute of limitations context to satisfy the Ohio requirement. The only question that remains is whether this knowledge was given to Yung by his treating physician, Dr. Feray. We feel there is no basis to disturb the jury finding that it was.\nThe standards for a directed verdict and for judgment notwithstanding the verdict are basically the same. Standard Alliance Inc. v. Black Clawson Co., 587 F.2d 813, 823 (6th Cir.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 396 (1979). The standard of review is whether “it is clear that reasonable men could come to only one conclusion from the evidence.” Bellamy v. Bradley, 729 F.2d 416, 418 (6th Cir.), cert. denied, — U.S.-, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 579 (6th Cir.1979). If there is “.substantial evidence from which the jury could find in favor of the party against whom the motion is made,” the motion should not be granted. Bellamy, 729 F.2d at 418. The court in considering the motions must view the evidence in a light most favorable to the party against whom the motion is made. Littlejohn v. Rose, 768 F.2d 765, 770 (6th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1260, 89 L.Ed.2d 570 (1986). Bellamy, 729 F.2d at 418.\nConsidering the evidence before the jury here, we cannot say that reasonable people could only conclude that Yung did not know of his asbestos-related lung injury or that with the exercise of reasonable diligence, he could not have become aware of his asbestos-related lung disease. In a light most favorable to the defendants, the evidence establishes that Yung knew well before the 1976 examination that asbestos exposure could cause various injuries including lung diseases. A chest x-ray report of Dr. Davis noted lung calcifications and other abnormalities. The report also noted that these calcifications could be related to asbestos exposure. Dr. Davis, in his report, even asked Dr. Feray if Yung had ever been exposed to asbestos. Yung testified that he was never given the report nor told about it. Given Dr. Feray’s testimony, accepted by the jury, that he gave the x-ray report to Yung it must be concluded that Yung knew or with the exercise of reasonable diligence should have known that he had asbestos-related lung injury. Having determined that Yung knew or should have known of his asbestos-related lung injury in 1976, the jury easily concluded that, according to Ohio Revised Code section 2305.10, the action for recovery for asbestos-related lung injury filed in 1983 was not within the two-year statute of limitations period and therefore was untimely. See also Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 487 (3rd Cir. 1985).\nThe Yungs claim that prejudicial error was committed by the trial judge in charging the jury as follows:\nYou will be asked to answer two questions. Question number one, “Do you unanimously find that the plaintiff, George Yung, was advised by competent medical authority before January 27, 1981 that he had been injured by exposure to asbestos?”\nYes or no.\nNumber two, “Do you unanimously find that plaintiff, George Yung, by the exercise of reasonable diligence, should have been aware before January 27, 1981 that he had been injured by exposure to asbestos?”\nYes or no.\nIf you have answered either questions yes, then you will use verdict form one. Verdict form one finds in favor of the defendants and against the plaintiff, George Yung on the issue submitted.\n*400The Yungs argue that these instructions assume that the manifestation of any bodily injury due to exposure to asbestos starts the running of the statute as to all bodily injuries that can be caused by such exposure.\nOhio Revised Code section 2305.10 represents the legislature’s awareness that asbestos injuries are not apparent immediately upon exposure to asbestos and that parties should not be barred from bringing actions for injuries of which they are not cognizant. The discovery rule of 2305.10 therefore provides that the statute of limitations will not begin to run until after the party learns of his injury or with reasonable diligence should have been aware of his injury. See O’Strieker v. Jim Walter Corp., 4 Ohio St.3d 84, 88-90, 447 N.E.2d 727 (1983).\nThe statute does not explain whether knowledge of one type of asbestos injury causes the statute of limitations to begin running as to all asbestos-related injuries. In Craddock v. Eagle-Picher Industries, Inc., 8 Ohio App.3d 383, 457 N.E.2d 338 (Lake County Ct.App.1983), the court held that a workers’ compensation claim for lung cancer was not barred, under Ohio Revised Code section 4123.85, the workers’ compensation statute of limitations, by the workers’ prior knowledge of lung disease. Other jurisdictions have found that knowledge of the presence of one disease stemming from a latent cause does not begin the running of the statute of limitations as to another disease caused by the same latent source. See, e.g., Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir.1982) (applying D.C. law to asbestos); Goodman v. Mead Johnson & Co., 534 F.2d 566, 574 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977) (applying New Jersey law to contraceptive drugs). In Wilson, a diagnosis of mild asbestosis was held not to bar a later action based on a lethal form of cancer. Wilson, 684 F.2d at 117-20.\nWe need not speculate as to whether Ohio would follow Wilson and treat asbestosis and cancer as separate illnesses and separate actions because those are not the facts before us. The Yungs’ complaint claimed “asbestos-related lung disease” and “other bodily injuries.” The evidence presented concerned Yung’s knowledge in 1976 of lung injury and a diagnosis of lung injury in 1981. Other than the mention in the complaint of “other bodily injuries,” the evidence does not suggest that separate and distinct illnesses are involved. Given this evidence, the jury concluded that Yung knew or should have known that he was injured and that the injury related to asbestos. Though the instructions to the jury and therefore the jury’s response were more general than perhaps was necessary, the instructions were proper and in accordance with the Ohio statute of limitations.\nThe Yungs’ final argument is that the district court abused its discretion by trifurcating the trial so that the statute of limitations affirmative defense was tried separately. Rule 42(b) of the Federal Rules of Civil Procedure provides that “the court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial” for any claim or issue. The decision whether to try issues separately is within the sound discretion of the court. Helminski v. Ayerst Lab., Div. of American Home Prod. Corp., 766 F.2d 208, 212 (6th Cir.), cert. denied, — U.S.-, 106 S.Ct. 386, 88 L.Ed.2d 339 (1985); In re Beverly Hills Fire Litigation, 695 F.2d 207, 216 (6th Cir.1982). Abuse of discretion exists only where there is “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Taylor v. U.S. Parole Comm’n, 734 F.2d 1152, 1155 (6th Cir.1984) (quoting McBee v. Bomar, 296 F.2d 235, 237 (6th Cir.1961).\nHere the court considered the prejudice to the Yungs as a result of a separate trial on the statute of limitations issue. However, they argue that trying the statute of limitations issue separately allowed the defendants a procedural advantage because the Yungs were required to introduce their *401theory of the case even before the liability aspect of the case. Any prejudice to the Yungs was offset by the benefit derived from the burden of proof being upon the defendants to prove knowledge of the lung condition on the part of Yung.\nNor, as argued by Yung, is the statute of limitations issue so connected to the liability issue that the two issues must be tried together. See Gasoline Prod. Co. v. Champlin Refining Co., 283 U.S. 494, 499-500, 51 S.Ct. 513, 514-15, 75 L.Ed. 1188 (1931). The issue as to whether the Yungs’ claim was barred involved an x-ray report completed in 1976 and the actions and conversations pertaining to that report. Also, there was testimony that Yung knew of the dangers and effects of asbestos in 1972. The trial on liability would have involved evidence that Yung was exposed to asbestos, that the diseases had manifested, that the diseases were caused by asbestos ingestion, and that the defendants’ conduct in producing or promoting the product or in failing to warn Yung or in some other way was responsible for Yung’s injury. Though the two issues are tangentially related, the evidence on the liability issue is a much larger and a much broader body of information than that necessary for the trial of the statute of limitations question.\nHere, the jury verdict determining that the statute of limitations barred recovery precluded the necessity of trying the second and third issues: liability and damages. Whether resolution of a single issue would likely dispose of an entire claim is extremely relevant in determining the usefulness of a separate trial on the issue. Beverly Hills, 695 F.2d at 216; Beeck v. Aquaslide 'N' Dive Corp., 562 F.2d 537, 542 (8th Cir.1977). This procedure should be encouraged because court time and litigation expenses are minimized. Therefore, separate trials on a statute of limitations issue are particularly appropriate. See, e.g., Braun v. Berenson, 432 F.2d 538, 541 (5th Cir.1970); Ellingson Timber Co. v. Great Northern Ry., 424 F.2d 497, 498 (9th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 354, 27 L.Ed.2d 265 (1970); Burnham Chem. Co. v. Borax Consol., Ltd., 170 F.2d 569 (9th Cir.1948), cert. denied, 336 U.S. 924, 69 S.Ct. 655, 93 L.Ed. 1086 (1949). The case was originally given seven to ten days for trial. Yet, only two days were used. Certainly judicial economy was served by dealing with the statute of limitations issue separately.\nThe judgment of the district court is affirmed.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued Feb. 6, 1986.","precedential_status":"Published","slug":"yung-v-raymark-industries-inc"} {"attorneys":"Carl L. Shipley for petitioners. Solicitor General Marshall, Assistant Attorney General Douglas, Alan S. Rosenthal and Edward Berlin for the United States.","case_name":"Rough Diamond Co. v. United States","case_name_full":"Rough Diamond Co., Inc. v. United States","citation_count":0,"citations":["383 U.S. 957"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1966-03-28","date_filed_is_approximate":false,"id":8963866,"opinions":[{"ocr":true,"opinion_id":8955117,"opinion_text":"\nCt. Cl. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"rough-diamond-co-v-united-states"} {"case_name":"Willard v. Westinghouse Electric Corp.","case_name_full":"Willard v. Westinghouse Electric Corp.","case_name_short":"Willard","citation_count":0,"citations":["495 U.S. 966"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1990-05-29","date_filed_is_approximate":false,"id":9098178,"opinions":[{"ocr":true,"opinion_id":9092475,"opinion_text":"\nC. A. 3d Cir. Certiorari before judgment denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"willard-v-westinghouse-electric-corp"} {"case_name":"White v. Peoples Bank & Trust Co.","case_name_full":"White v. Peoples Bank & Trust Co.","case_name_short":"White","citation_count":0,"citations":["531 U.S. 861"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2000-10-02","date_filed_is_approximate":false,"id":9261237,"opinions":[{"ocr":true,"opinion_id":9256059,"opinion_text":"\nC. A. 5th Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"white-v-peoples-bank-trust-co"} {"attorneys":"Mr. Herbert S. Duffy, attorney general, Messrs. Horwitz, Kiefer & Harmel, Mr. George P. Baer, Mr. Stanley I. Adelstein and Mr. Henry P. Webber, for appellant., Mr. Frank E. Stevens and Mr. J. J. S my the, for appellees William G. Schaeffer and Rnth E. Schaeffer.","case_name":"Sowers v. Schaeffer","case_name_full":"In Re Appropriation by Supt. of Public Works: Sowers, Supt., Appellant, v. Schaeffer Et Al., Appellees","case_name_short":"Sowers","citation_count":63,"citations":["99 N.E.2d 313","155 Ohio St. 454","155 Ohio St. (N.S.) 454"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"1951-05-23","date_filed_is_approximate":false,"headmatter":"VENUE: Change of Venue — Carriers—Agency. A common carrier, ,1 sued in a county in or through which it does not operate any line of railway, is entitled to a change of venue to the county where it does so operate, even though it does have, in the county where sued, an agency, but such agency had nothing whatever to do with the subject matter of the action. (Sections 3497, 3500, Code, 1897.)
VENUE: Change of Venue — Estoppel—Evidence. Evidence in the 2 form of correspondence reviewed, and held insufficient to estop a carrier from insisting on its right to a change of venue.
CERTIORARI: Orders Reviewa'ble — Change of Venue. Certiorari 3 will lie to review an order of the municipal court denying a change of venue in an action involving $30.
","id":7205960,"judges":"Evans, Gaxnor, Ladd, Salinger","opinions":[{"author_str":"Evans","ocr":true,"opinion_id":7117502,"opinion_text":"\nEvans, J.\n1. Venue : change of venae: carriers : agency. I. The case pending in the municipal court is entitled Hymon Levich v. Atchison, Topeka & Santa Fe Railway Company. The action was brought upon a pay *893check issued by the railway company to one Ignacio Mendez, and purporting to have been endorsed by such payee. Such check was not payable at any particular place. The defendant in such action (plaintiff herein) filed a motion to change the place of trial to Lee County, Iowa, and supported such motion with a showing that such railway company operated a line of road in Lee County, Iowa, and that it neither operated nor owned any line of road in any other county in the state of Iowa. It claimed the benefit of the provisions of Section 3497 of the Code of Iowa, whereby suit against it could be brought only in said Lee County. The plaintiff in said action resisted such motion with the following affidavit:\n“Polk County, 1\n“State of Iowa, .j\nSH'\n“I, Hymon Levich, being duly sworn, depose and say that I am the plaintiff in the above action; that the Atchison, Topeka & Saute Fe Eailway had and has an agency in the city of Des Moines; that the check in question was mailed from the paymaster to the local agent or agency, and by or under the authority of said agent, the check was delivered.”\nUnder this affidavit the plaintiff therein claimed the benefit of Code Section 3500, which provides that, when such corporation maintains an office or agency for the transaction of business in any county, actions may be brought in such county upon any transaction growing out of the business of such agency. This contention was met by a showing that one Larrimer was the only agent of the defendant railway company in Polk County, and that the business of his agency was confined to matters connected with the transportation of passengers and freight over said railway; that such agency had no duty to perform in the distribution of pay checks to employees; and that such office or agency *894had never had anything to do in any manner with the check involved in suit. It will be noted that the affidavit of Levich above set forth specifies no name of alleged agent, and states a mere conclusion. The affidavits presented on the part of the railway company are undisputed as to any fact therein stated.\nWe think the showing of the railway company was definite and undisputed, that it had no office or agency in Polk County except that of Larrimer, and that the check upon which the suit was founded did not grow out of the business of such office or agency in any manner; and that, therefore, the only proper place for the bringing of suit against the railway company was in accordance with the provision of Section 3497, which would require such suit to be brought in Lee County.\n'2. ofilvenueC-lianse dence*6’' eTi\" There is a claim in the nature of a plea est°PPel made by the plaintiff Levich by reason of certain correspondence had with the defendant railway company after payment had been refused on the check. The plaintiff therein put in evidence the following letters, received from the railway company:\n“Mr. W. N. Jordan,\n“304 Clapp Block,\n“Des Moines.\n“Dear Sir: Replying- to your letter of February 13th, relative to our Arkansas River Shop Check No. 28601 in favor of Ignacio Mendez, amounting to $30.01, which was cashed by Mr. Hymon Levich and the check dishonored by this office account payee, claiming forged endorsement. Beg to state this check was forwarded to tké agent of the C. R. I. & P. lines at Valley Junction, Iowa, on June 22nd, 1916.\n“Yours truly,\n“E. L. Copeland, Treasurer.”\n*895“Mr. W. N. Jordan, Attorney,\n“304 Clapp Block,\n“Des Moines, Iowa.\n“Dear Sir: Deferring to your letter of February 13tk, and to mine of the 15th regarding forged endorsement on our Arkansas Division Shop, pay check No. 28601, drawn in favor of Ignacio Mendez, amounting to $30.01, covering his May, 1916, wages. Attorneys for Mendez are pressing me for a duplicate pay check in settlement of these wages. And before issuing same, I should like to ask if any action is being contemplated by Mr. Levich, the first endorser of the check. Unless some action is taken immediately, I shall have to make settlement with Mendez on the basis that his endorsement on the above mentioned check was forged and his money never received by him.\n“Yours truly,\n“E. L. Copeland, Treasurer.”\nThe letters thus set forth purport to be in response to a letter written by the plaintiff’s attorney, which is not included in the record. The full significance, therefore, of this correspondence cannot be ascertained from- this record. The claim for the plaintiff is that this correspondence lulled him into a sense of security, and in effect induced him to bring his action in Polk County, because the check had been mailed to Polk County to an agent of another railroad company. It does appear therefrom that the correspondence was had after the purported endorsement of the check had been repudiated, on the ground that the payee of the check challenged the alleged endorsement as a forgery. We see nothing in the correspondence which can be said to have lulled the plaintiff into a sense of security; nor does it contain any admission inconsistent with the showing made by the affidavits. The correspondence indicates further that no objection or defense is urged against the check as orig*896inally issued by the railway company. It is the endorsement to Levich that is challenged as a forgery. The place where such endorsement was made, whether genuine or a forgery, could not affect the right of the railway company .to insist upon Lee County as the proper place for bringing suit. The.purported endorsement of the payee of the check does not purport to have been made by the railway company nor by any agency thereof. Upon the record, therefore, we think the railway company was clearly entitled to a change of the place of trial to Lee County.\n3. cjsbtiobaki : orders review o?veniíeanse II. It is urged, however, that certiorari will not lie, because the plaintiff in such ' suit * comPlete remedy by a direct appeal from the intermediate order overruling the motion. It has been held by this court, however, that no appeal will lie from an intermediate order sustaining or overruling a motion for a change of venue. The order can be reviewed only by a direct appeal from the final judgment. Allerton v. Eldridge, 56 Iowa 709; Horak v. Horak, 68 Iowa 49; Edgerly v. Stewart & Hunter, 86 Iowa 87.\nThere is the further consideration that the amount involved was only $30, and no appeal from a final judgment thereon could be had except upon certification. We have held that, ifi such a case, certiorari will lie for want of a right of appeal. Chicago, B. & Q. R. Co. v. Castle, 155 Iowa 124. It is also urged that we cannot interfere with the discretion of the trial court, nor with its finding of facts upon conflicting evidence. We find no real conflict in the evidence. The facts are undisputed. The statute confers no discretion upon the trial court to refuse a change of place of trial upon such showing.\nWe must hold therefore, that the order of the trial court was an illegality, within the meaning of the statute. It is accordingly — Annulled.\nGaxnor, O. J., Ladd and Salinger, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"atchison-topeka-santa-fe-railway-co-v-mershon","summary":"Appeal from Des Moines Municipal Court. — J. E. Mershon, Judge. Original proceeding in this court brought to test the legality of an order by the municipal court of the city of Des Moines, refusing to the plaintiff herein a change of place of trial in g, certain action pending in such municipal court wherein Levich was plaintiff and the complainant herein was defendant."} {"attorneys":"Bennett H. Brummer, Public Defender, and Timoth J. Ferreri, Sp. Asst. Public Defender, for appellant., Robert A. Butterworth, Atty. Gen., and Leslie Schreiber, Asst. Atty. Gen., for ap-pellee.","case_name":"Robins v. State","case_name_full":"Early ROBINS v. The STATE of Florida","case_name_short":"Robins","citation_count":0,"citations":["605 So. 2d 1028"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1992-10-20","date_filed_is_approximate":false,"id":7669084,"judges":"Gersten, Levy, Nesbitt","opinions":[{"ocr":true,"opinion_id":7603741,"opinion_text":"\nPER CURIAM.\nAffirmed. Salazar v. State, 560 So.2d 1207 (Fla. 3d DCA), dismissed, 567 So.2d 435 (Fla.1990); Viera v. State, 532 So.2d 743 (Fla. 3d DCA 1988), review denied, 542 So.2d 991 (Fla.1989); Baker v. State, 466 So.2d 1144 (Fla.3d DCA 1985), affirmed, 483 So.2d 423 (Fla.1986).\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"robins-v-state"} {"attorneys":"Arthur J. Morburger, Miami; Wein-stein, Bavly & Moon and Alvin N. Wein-stein, Miami, for appellant., Alejandro Vilarello, City Attorney, and Myrna D. Bricker and Charles C. Mays, Assistant City Attorneys, for appellee.","case_name":"Lind v. City of Miami","case_name_full":"George LIND v. The CITY OF MIAMI","case_name_short":"Lind","citation_count":0,"citations":["821 So. 2d 1112"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"2002-06-12","date_filed_is_approximate":false,"id":7811187,"judges":"Gersten, Green, Levy","opinions":[{"ocr":true,"opinion_id":7752280,"opinion_text":"\nPER CURIAM.\nAffirmed. See Wong v. Crown Equipment Corp., 676 So.2d 981 (Fla. 3d DCA 1996); Adkins v. Economy Engineering Co., 495 So.2d 247 (Fla. 2d DCA 1986).\n","per_curiam":false,"type":"020lead"}],"other_dates":"Rehearing Denied Aug. 7, 2002.","precedential_status":"Published","slug":"lind-v-city-of-miami"} {"attorneys":"David B. Rozwaski, special public defender, in support of the petition., Richard F. Jacobson, assistant state’s attorney, in opposition.","case_name":"Cobb v. Commissioner of Correction","case_name_full":"GRADY COBB v. COMMISSIONER OF CORRECTION","case_name_short":"Cobb","citation_count":0,"citations":["244 Conn. 903"],"court_full_name":"Supreme Court of Connecticut","court_jurisdiction":"Connecticut, CT","court_short_name":"Supreme Court of Connecticut","court_type":"S","date_filed":"1998-03-05","date_filed_is_approximate":false,"id":7897546,"opinions":[{"ocr":true,"opinion_id":7845464,"opinion_text":"\nThe petitioner Grady Cobb’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 914 (AC 14206), is denied.\n","per_curiam":false,"type":"020lead"},{"ocr":true,"opinion_id":7845465,"opinion_text":"\nBERDON, J.,\ndissenting. I would grant the petitioner’s petition for certification to appeal.\nKATZ, J., did not participate in the consideration or decision of this petition.\nRichard F. Jacobson, assistant state’s attorney, in opposition.\nDecided March 5, 1998\n","per_curiam":false,"type":"040dissent"}],"precedential_status":"Published","slug":"cobb-v-commissioner-of-correction"} {"attorneys":"English & English for appellants., L. G. Slavens and L. H. Waters for respondents.","case_name":"Hubbard v. Slavens","case_name_full":"JOSEPH R. HUBBARD, ELLEN L. JEFFRIES and HORACE B. JEFFRIES v. LUTHER C. SLAVENS and SALLIE SLAVENS","case_name_short":"Hubbard","citation_count":0,"citations":["218 Mo. 598"],"court_full_name":"Supreme Court of Missouri","court_jurisdiction":"Missouri, MO","court_short_name":"Supreme Court of Missouri","court_type":"S","date_filed":"1909-03-31","date_filed_is_approximate":false,"disposition":"Aefiemedi","headnotes":"1. APPEAL: Equitable Defense: No Evidence Preserved. Where plaintiffs have omitted from the record all the evidence heard at the trial, they will be held on appeal to admit that the respondents put in evidence below to establish every jot and tittle of their whole defense — legal and equitable.
2. - — : -: -: Argument of Merits. In such case any argument of the merits on the facts is afield and inappropriate.
3. EJECTMENT: Equitable Defense: Unsettling Ancient Rights. Courts turn a cold eye and a face of stone to an attempt to judicially unsettle land titles fortified by the healing influence of time, on which owners have rested securely for a half century. Where the father of the plaintiff remaindermen received the money for the land in question nearly fifty years before the suit is brought, it will be intolerable to elevated justice to permit the remaindermen (his children) to recover it except on the sternest principles of plain law.
4. MOTION TO STRIKE OUT: Waiver: Demurrer in Effect. Where plaintiff files a motion to strike out defendant’s answer, by pleading over on the merits he waives his right to insist that the court erred in overruling his motion. Nor is such waiver obviated by the fact that the motion in some of its phases covers the same ground as a general demurrer. It is confusing orderly procedure to treat a demurrer and a motion to strike out as interchangeable and to be used indifferently. They fulfill a different office — the demurrer seeking a judgment on an issue at law; the motion, a mere order.
5. TRIAL BY JURY: Equity or Law Case: No Evidence Preserved. Where the evidence is not preserved in the bill of exceptions, the court will consider a ruling of the trial court denying to plaintiffs a right to a trial by jury; for the trial court having construed the answer as putting the cause in chancery, the question presented is one of jurisdiction, that is, whether the court had the right to proceed to a trial without a jury. In such case it is not clear how the evidence would throw any light on the question.
6. -: -: Ejectment: Equitable Defenses. If the answer to plaintiff’s ejectment pleads such substantive facts as entitle defendants to affirmative equitable relief, the cause is in chancery, and a jury should be denied plaintiff.
7. -:-: -: -: Estoppel In Pals. Though it be admitted that matter constituting equitable estoppel in pais is a good defense at law in an ejectment suit, it would be a non sequitur to say the defendant may not use the same matter of estoppel in pais as grounds for affirmative relief in equity, where alone he can get such relief.
8. -: -: -: -: -Binding on Heirs: Knowledge. An estoppel binding an ancestor is binding on his heirs and devisees. So that if the father of plaintiffs, through whom they claim as remaindermen, was estopped to assert title to the land, they likewise are estopped, whether or not they had knowledge of the matters which would have estopped him.
9. PRACTICE: Demurrer: Answering. By answering over plaintiffs waived their demurrer to defendants’ cross petition on every proposition except that the cross petition did not state a cause of action.
10. EJECTMENT: Limitations: Thirty Years: Duty to Pay Taxes. Where the testator was estopped to lay claim to the land, for that he had received the money for which he sold it, there was nothing upon which the life estate given by the will to the wife could operate, and therefore it is beside the question to decide whether the duty was upon the life tenant and not upon the remainderman to pay the taxes, or whether the thirty-year Statute of Limitations pleaded by defendant is or is not a good defense to the remaindermen’s suit in ejectment.
11. PLEADING: Exhibits: Speaking Demurrer. A demurrer'strikes squarely at the face of the petition and nowhere else. Mere exhibits constitute no part of the petition for the purposes of a demurrer.
12. -: Equitable Defense: Limitations: Demurrer. A demurrer to defendants’ answer in ejectment, setting up matters which constitute an affirmative equitable defense, will not be sustained on the ground that the pleaded matter is barred by the Statute of Limitations, if to sustain it the whole equitable defense would be struck down for every purpose, whether as a mere bar or as a cross action.
","id":8059540,"judges":"Lamm","opinions":[{"author_str":"Lamm","ocr":true,"opinion_id":8016783,"opinion_text":"\nLAMM, P. J.\nPlaintiffs Joseph E. and Ellen L., as the only children of Chester Hubbard, deceased, and as remaindermen under his will, uniting with Ellen’s husband, Horace B., sue defendants (husband and wife) in ejectment in the Jackson Circuit Court on October 26,1905. Defendants answer by way of a general denial, by way of the thirty-year Statute of Limitations, and by way of an equitable defense upon which they ask affirmative, equitable relief.\nProm a decree for defendants, plaintiffs appeal.\nThe bill of exceptions, containing no evidence, contents itself, first, with showing plaintiffs’ motion to strike out parts of the equitable defense, the adverse ruling of the court thereon, and an exception saved; *606second, plaintiffs ’ motion to submit the cause to a jury, the adverse ruling of the court and an exception,- and, third, plaintiffs ’ motions for a new trial and in arrest, the adverse rulings thereon and exceptions.\nThe abstract of the record proper shows the petition, the answer and copies of exhibits A. B. C. and D, a demurrer to the second and third defenses, the order of the court overruling the demurrer, the order of the court overruling the motion to strike out, the reply, the decree, the affidavit for an appeal, the order allowing one and the record entry showing that the bill of exceptions was settled, allowed, signed and filed.\nPoints made seek some elaboration of the pleadings, viz:\nThe petition charged that Chester Hubbard died in 1861, seized of certain real estate in Kansas City, Missouri (describing it); that he left a will probated in Iowa at the county of his domicile (also in Jackson county, Missouri, in 1865); that by such will he devised to Mary R., his wife, all his real estate with remainder over to plaintiffs, his children, share and share alike; that Mary R. died in January, 1900; and that her life estate fell in and said remaindermen became entitled to possession. Ouster is laid as of February 1st, 1900.\nAttending to the answer, it denies all allegations not expressly admitted true, admits possession, avers that the defendant, Luther C., has been husband of the defendant, Sadie, for forty-five years, avers that they are now, and they and those under whom they claim have been, in open, notorious and continuous adverse possession under a claim and color of title for forty-eight years; that the title emanated from the government seventy years ago; that neither the said Chester in his lifetime nor the plaintiffs since his death have been in possession nor paid any taxes for said forty-eight years; nor have plaintiffs brought any action to recover said premises under Revised Statutes *6071899, sec. 4268; wherefore, they pray judgment that the title of plaintiffs he adjudged barred and that the title be vested by the court in the defendant Sallie.\nBy the third defense it is alleged plaintiffs are the children and only heirs at law of Chester Hubbard who died July 21, 1861; that by will he left the real estate belonging to him to his wife for life and to his children in remainder; that plaintiffs claim the real •estate in controversy as devisees or heirs, but that Chester was not seized of the premises at the time of his death and, therefore, plaintiffs took nothing under the will either as remaindermen or heirs.\nTo this end, it sets forth elaborately in many pages of print, facts constituting an equitable defense and upon which affirmative relief is predicated. For instance (summarizing): It alleges that on the 16th day of September, 1856, Chester and Mary R. Hubbard executed a power of attorney to one Summers authorizing him to collect all debts due them and to lease and sell and convey any real estate belonging to them in Jackson county, Missouri; and to execute and deliver deeds to purchasers, which said power of attorney was put of record one month later and continued in full force and effect until Chester Hubbard’s death; that shortly after its execution Hubbard moved to Keokuk, Iowa, where he resided until his death in 1861.\n{Note: It will aid in understanding the case to say, what will appear presently, that the land sued for was acquired by Hubbard after said power of attorney was executed and that such fact creates the main basis of plaintiffs’ claim. )\nThe answer goes on to allege that Hubbard' on March 12, 1857, bought from one Ranson a large tract of land for $9,000 (the premises sued for being a part of such large tract); that on that date Ranson conveyed said tract to Hubbard, who, having paid $1,000 theretofore to bind his bargain, on that day executed *608to Ranson Ms three promissory notes for the balance of the purchase money and to secure them executed to Ranson a mortgage on the premises; that Mary R., being absent from the State of Missouri at that time, he (Hubbard) executed the mortgage in his own proper person and caused said Summers to join with him in executing it as the attorney in fact of Mary, under said power, which mortgage was at once put of record; that Hubbard and Summers by their joint act in executing said mortgage construed the power of attorney as authorizing Summers to deal with and convey the premises under said power and that thereby and by its record said Summers was held out to the world by Hubbard as having such authority; that afterwards on the 21st day of September, 1857, said Hubbard, then being in Kansas City, entered into a written agreement to sell and convey the real estate purchased from said Ranson to one King for the sum of $13,500, who agreed to buy at that figure; that the terms of sale evidenced by said contract were a cash payment of $1,500, a certain sum at thirty days, a certain sum ($3,375) on March 12, 1858, a like sum on March 12th, 1859, and like sum on March 12, 1860 — all said deferred payments to be secured on the premises by mortgage; that said contract was put in the hands of one Bouton, a notary public; that on the next morning Hubbard, Summers, King and Bouton met at the latter’s office and King in pursuance of his contract paid to Hubbard in person the said cash payment, who receipted_on the back of the contract for the same and employed Bouton to draft the deed and mortgage; that Plubbard then and there stated he was unable to stay for the preparation and exchange of said instruments but was compelled to go home that afternoon; thereupon he instructed said Summers to execute and deliver the deed to King and instructed King to deliver said notes and mortgage to Summers, and directed the latter to record the mortgage, and went his way; that in pursuance of *609those instructions said Summers, as such an attorney in fact of Chester and Mary, did execute to King a warranty deed for said premises and said King made said notes for the deferred payments and made such mortgage as security and delivered them to Summers; that Bouton then delivered said contract to Summers; that the deed to King and the mortgage to Hubbard were recorded' shortly, to-wit, on October 14, 1857; that on the same day the deed from Ranson to Hubbard was put of record; that the deed from Hubbard to King was made and executed on behalf of Chester and Mary R. by said Summers by the express direction and instruction of said Chester, who then and there held him out as having authority to make that deed under his said power of attorney; that King at that time knew that Summers had acted as attorney in fact for Mary R. under Jhe same power of attorney by joining in the execution and acknowledgment of said mortgage from Hubbard to Ranson and had notice of the recording of said mortgage and of the fact that Hubbard held Summers put as having full power and authority and that they so construed said power; that said King, having such notice and knowing that Hubbard had instructed Summers as attorney in fact to execute the deed to him (King) he was led to believe that Summers had such power and acting on that belief he paid said cash payment to Hubbard in person and as part of the transaction accepted Hubbard’s deed made by Summers as attorney in fact, under said directions and instructions of Hubbard, and made and delivered to Summers, for Hubbard, the said notes and mortgage.\nIt is next averred that King’s notes to Hubbard for the deferred payments were partly paid by King to Hubbard in his lifetime and that the residue was paid to William Holmes, administrator of Hubbard’s estate, after his death; that said Holmes was such administrator in Jackson county, and after collecting said *610residue of purchase money, he paid out and distributed such proceeds as part of Hubbard’s estate and released said mortgage; that Hubbard took possession under Ranson’s deed and delivered possession to King on the date of King’s deed; that King beld actual, open, notorious and continuous adverse possession from that date under claim and color of title until in 1865 be turned over possession to one Hite, wbo bought tbe premises.\nTbe answer next averred that Hubbard in bis lifetime paid said Ranson payments, except tbe last one; that tbe last Ranson note was transferred to one Scruggs; that in March, 1862, in Jackson county, Missouri, Scruggs commenced a suit to foreclose tbe mortgage, making King, Ranson and tbe unknown heirs and representatives of Chester Hubbard parties defendant ; that Ranson was duly served and* service was attempted on tbe other defendants by publication; that in November, 1862, tbe suit was dismissed as to tbe unknown heirs and representatives of Hubbard, and thereupon such proceedings were bad that a decree was rendered finding tbe amount due on tbe last Ranson note and foreclosing tbe equity of redemption of tbe remaining defendants, Ranson and King, and decreeing a sale; that a sale was made and said Hite became tbe purchaser and received a marshal’s deed, which deed assumed and intended to convey tbe land; that King turned over possession to Hite, and, there being doubts about tbe validity of tbe sale, said King executed a deed to tbe premises shortly thereafter; and that after King’s deed to Hite tbe latter paid Holmes, administrator of Hubbard, tbe last note due from King to Hubbard and said administrator discharged tbe lien of tbe Hubbard mortgage, as said.\nTbe answer then alleges that Hite beld adverse, open and continuous possession under bis deeds, until in April, 1867, and then conveyed a ten-acre tract of the land to one Gates wbo went into possession and *611held adversely until September 10th of that year, making lasting improvements, and on the 10th of September, 1867, Gates sold and conveyed the north half of his ten acres to defendant, Sallie Slavens, who recorded her deed; that Sallie and her co-defendant, Luther 0., entered into possession under their deed and have ever since held open, notorious and continuous adverse possession, and have made lasting and valuable improvements; that said Sallie is the real and equitable owner of the real estate mentioned in the petition, the same being a part of that purchased from Gates; that Chester Hubbard lived four years after the deed made by Summers as attorney in fact to King as aforesaid, knew said deed had been executed and recorded, knew King was in possession of the premises under it and claimed them adverse to Hubbard, knew King was receiving the rents and paying the taxes, knew that he, Hubbard, had a mortgage on said premises, and so knowing during all that time failed to repudiate said deed to King, failed to disclaim any interest in the mortgage and notes given to him by King, failed to make any claim to said premises or the possession thereof, or to pay taxes or demand rent, failed to return any of the purchase money paid him by King, but, on the contrary, he ratified and acquiesced in the execution of said deed to King so made by said Summers as his attorney in fact.\nThe answer further, pleads certain defects and ambiguities in certain deeds in defendants’ chain of title and alleges that in certain instances deeds of correction were made (describing them) and in other instances alleges that narrations were made which cured ambiguities and uncertainties.\nBased on the foregoing allegations, the answer charges that the conduct, acts, words, conveyances, etc., of Chester Hubbard in his lifetime and those of the said Summers as his attorney in fact, as aforesaid, estopped said Hubbard in his lifetime from denying *612that he had conveyed said premises to King as recited in the mortgage and deed, from denying that King became the owner of the premises. It further charges that said acts, conduct and words of Hubbard (again specifying them) not only estopped him from denying that the premises passed to King by the deed to him but estopped him from denying that Summers had authority under the power of attorney and directions and instructions aforesaid to execute King’s deed and estopped him in his lifetime from claiming any interest in or title to the premises. That plaintiffs as heirs or devisees are bound by the conduct, act and doings of their ancestor as set forth and may not deny that defendant,; Sallie Slavens, is the owner of the premises and are barred and estopped from any interest in said land.\nIt seems there was an original answer to which Exhibits A, B, C, and D were attached. Without otherwise describing such exhibits or pleading the contents thereof, the trial answer then alleges that said exhibits so attached to the original answer are made a part of the defense of this answer.\nIt prays that the court adjudge and decree that effect be given to said estoppels and that the title to the premises be vested in defendant, Sallie, and winds up with a prayer for general relief.\nThe exhibits referred to in the answer need not be set forth.\nPlaintiff’s demurrer to the second and third defenses was as follows: The defense of the thirty-year statute of repose was assailed because it “does not state facts sufficient to constitute a defense to plaintiffs’ petition.” The equitable defense was demurred to because it, first, “does not state facts sufficient to constitute a defense to the plaintiffs’ cause of action;” second, “it does not state facts sufficient to constitute a cross petition or cause of action in favor of said defendants;” third, because it “shows on its face that if *613any canse of action ever existed in favor of said defendants, as stated and claimed in said defense, the same is barred by limitation and lapse of time.” i\nThe reply denied some and admitted other averments of the answer and then charged that it was not the duty of plaintiffs as remaindermen to pay the taxes prior to the year 1900 when the life estate of Mary R. fell in. It alleges that it was the duty of “defendants, as life tenants of said estate, to pay the taxes on said estate during the continuance of the life estate.” It admits the averments of the answer relating to the will of Chester Hubbard, admits Ranson’s deed to Hubbard, that Hubbard entered into possession under it, admits Hite’s possession under the marshal’s deed, and admits Grates ’s possession, but avers it was not under color of title, and then proceeds to deny, seriatim, the averments of the answer.\nThe decree follows:\n“And now, on this day come the parties herein in person and by their respective attorneys, and this cause coming on to be heard upon the pleadings and evidence in the case and the court having heard the evidence and arguments of counsel, and having considered the same, and being fully advised concerning all and singular the matters herein, doth find:\n“First. The court finds the issues made by the petition of plaintiff, and the general denial of the defendants’ answer, for the defendants, and against the plaintiffs.\n“Second. The court finds the issues raised by the second count of said defendants’ answer for. the defendants and against said plaintiffs.\n“Third. The court finds the issues raised by the third count in said defendants’ answer, and the equitable defense therein, in favor of said defendants and against said plaintiffs.\n“Fourth. It is therefore ordered, adjudged and *614decreed by the court that tbe said plaintiffs take nothing by their action.\n“It is further ordered, adjudged and decreed that the plaintiffs ’ title in and to the land in controversy in this cause, to-wit, beginning 634% feet north of the southwest corner of the east half of the west half of the southeast quarter of section thirty-three in township fifty, north, in range thirty-three, west, in Jackson county, in the State of Missouri, and running thence west 182% feet, and thence east 235 feet, thence south 182%- feet, thence west 235 feet to the place of beginning, in Kansas City, Missouri, be and the same is divested out of said plaintiffs and the title to the same be, and hereby is, vested in the said defendant, Sallie Slavens, and confirmed in her, and that said defendants have and recover of said plaintiffs tbe costs of this suit, and that they have execution therefor.”\nI. On such a record some preliminary observations may aid in reckoning our bearing at the outset. They will, serve in the nature of a judicial calculation of our latitude and longitude.\n(a) In the first place, appellants have, ex industria, kept back every shred of the evidence. That fact is of obstinate and controlling importance; for from such omission it follows invincibly that they are held to admit on appeal that respondents put in competent and sufficient proof below to establish every jot and tittle of their whole defense. That is, to borrow an old-fashioned chimney-corner figure, homely yet speaking, their noses are judicially held to the grindstone of the concession that each and every averment of the answer was proved to the satisfaction of the trial court, and this admission runs like a marking cord through the whole warp and woof of the case.\nIn order that the full significance of this large admission should stand out in bold relief, we have heretofore set forth at length the substance of the averments of the answer at expense of brevity.\n*615(b) In the second place (as a corollary), it becomes quite vain for appellants’ learned counsel to argue the merits of the case on tbe facts, as he apparently now and then does in his briefs and as was done orally at our bar. The facts are not only a sealed book, but are settled against him.\n(c) In the third place, we take the opportunity of saying that it is a matter of tranquil and entire satisfaction to us that the trial court found itself dealing with facts warranting a decree in favor of defendants. To judicially unsettle land titles, fortified by the healing influence of time, on which owners have rested securely for a half century, is a matter of such gravity and anxiety that this court has consistently, during its whole life, turned a cold eye and a face of stone on such efforts (however learnedly and astutely presented, as here), saying so in words with the bark on. For example, in McClanahan v. West, 100 Mo. l. c. 324, it was said: “And it is to be distinctly understood that this court views with disfavor proceedings like the present, instituted nearly the life of a generation after the transaction on which they are supposed to be based occurred, and which, if successful, to paraphrase the strong language of Judge Scott on one occasion, would ‘make the dead sin in their graves.’ ”\nTo this end it is trite learning that the rules' of evidence are relaxed in support of ancient and dim transactions — this from the very necessity of things. Not that the adage, Necessity knows no law, is applied, but that courts administer the law to attain just results and to that end use the everyday wisdom, the good sense, of mankind in establishing old transactions.\nIn aid of a title attacked by these very plaintiffs on grounds somewhat similar to those in this case, Fox, J. [Hubbard et al. v. Kansas City Stained Glass Works & Sign Co. et al., 188 Mo. l. c. 35] quoted approvingly from Agnew, J., in Richards v. Elwell, 48 Pa. St. l. c. 364, 367, language in point and not amiss to repeat:\n*616“If the rule,” says Agnew, J., with animation, “which requires the proof to bring the parties face to face and to hear them make the bargain, or repeat it, and to state all its. terms with precision and satisfaction is not to he relaxed after the lapse of forty years, when shall it be? . . . There is a time when the rules of evidence must be relaxed. We cannot summon witnesses from the grave, rake memory from its ashes, or give freshness and vigor to the dull aud torpid brain.”\n. Chester Hubbard and his estate had the money for the land in question fifty years gone. For his children to now recover the land itself under such circumstances is- a proposition' so intolerable to elevated justice that no court would give ear to it unless constrained thereto by the sternest principles of plain law. As will presently appear, it is good ground for congratulation that no such principles are known to us.\n(d) In the fourth place, we are forbidden by express statute to consider on appeal any exceptions not passed on below. [R. S. 1899, sec. 864.] Therefore, while in this case appellants ’ brief takes a wide range and many propositions are discussed therein, yet, on referring to the bill of exceptions, we find the statutable chart of our channel well marked out. The exceptions saved in the bill cover two propositions, viz., first, error in overruling the motion to strike out; second, error in overruling the motion to submit the cause to a jury. True, an exception was saved to overruling the motions in arrest and for a new trial, but those motions strike at matters not here for review under the skeleton bill of exceptions, save and except the two enumerated. To the above errors should he added a third, viz.: the ruling of the court on the demurrer. Let us attend to them seriatim.\nII. Of the motion to strike out.\nWhen a party as an intermediate step in the evolution of a lawsuit files a motion to strike out all or a *617part of his adversary’s petition or answer, and the court passes an order overruling such motion, the option is presented to the movent to stand on his motion and thus prove his faith by his works, or to plead over to the merits. When, not standing on the motion, he pleads over to the merits and on such joinder of issue of fact pitches his battle in a legal forum, and takes his chance of winning or losing on such joinder (and loses), he may not thereafter “tread back in his tracks and trip up his adversary’s heels” on the ruling on the motion. He is held to have waived the motion. His exception is a dead coal and no subsequent blowing, however deft and persuasive, will breathe a spark of fire into it, under the rules of appellate practice in this jurisdiction. [White v. Railroad, 202 Mo. l. c. 561, et seq., and authorities cited; Hudson v. Cahoon, 193 Mo. l. c. 557.]\nAppellants’ counsel frankly concedes, in his brief in reply, so much; except that he argues (as we grasp it) that the motion in some of its phases covers the same ground as a general demurrer and hence should be judged of as a demurrer. But the office of a demurrer is one thing, the office of a motion to strike out is another — the one seeks a judgment on an issue at law, the other seeks a mere order. It is confusing to orderly procedure to treat them as interchangeable and to be used indifferently, the one for the other. [Ewing v. Vernon County, 216 Mo. 681.]\nWe hold that when appellants joined issue on the facts, by pleading over to the merits by reply to the answer, they waived their motion to strike out.\nIII. Of the motion to submit the cause to a jury.\n(a) Before the trial began the court construed the answer as putting the cause in chancery, to be heard by a chancellor. Thereupon plaintiffs submitted a written demand in the form of a motion for a jury and saved an exception to the order overruling that motion. *618This assignment of error presents the main bone of contention.\nIt has already been pointed out that the evidence is not preserved in the bill of exceptions. As a general rule, in an equity case, the trial court cannot be compelled to allow bills of exceptions that do not preserve the evidence on the merits. [State ex rel. Guinan v. Jarrott, Judge, 183 Mo. 204.] But presently after the Jarrott case, in an equity suit a change of venue was applied for below and disallowed. Thereupon it was contended that appellant could not have his exception to that ruling considered on appeal without bringing up all the evidence. But we refused to so hold, putting our ruling on the ground that the question presented was one of jurisdiction; that is, whether the court had the right to proceed with any trial whatever. On such question we held the evidence on the merits was immaterial, and, therefore, the bill of exceptions need not contain a transcript of it. [State ex rel. Priddy v. Gibson, Judge, 184 Mo. 490.] That case was followed in State ex rel. Priddy v. Gibson, Judge, in 187 Mo. l. c. 547-8. Since the Jarrott case, supra, there has been a line of cases holding that we could not review an equity case on the merits unless all the evidence was preserved and brought here. [Guinan v. Donnell, 201 Mo. 173; Patterson v. Patterson, 200 Mo. 335; Pitts v. Pitts, 201 Mo. 358.]\nConsidering the grounds upon which the Guinan, the Patterson and the Pitts cases stand we are inclined to hold that, on principle, they do not control the case at bar, but that the Priddy cases do. Allowing some deference to the trial chancellor, equity cases are tried de novo (in a sense) in an appellate court on the merits, hence there are manifest reasons why the evidence should be preserved and sent up, none of which pertain to the ease at bar. The demand for a jury was in the nature of a challenge to.the jurisdiction of the trial judge to try the case on the facts. If he erred in hold*619ing jurisdiction in equity, it is not clear how the evidence on the merits would throw any light on the point. Hence we shall consider the assignment in the absence of the evidence.\n(b) The only question debatable is: Was the answer such a pleading of substantive facts as- entitled defendants to affirmative equitable relief? If answered, Yea, then the cause went into equity and there was no error in overruling the motion for a jury. [Pitts v. Pitts, supra, and cases cited,] If answered, Nay, then, in spite of the equitable matter set up by way of defense, the cause continued at law and plaintiffs were entitled to a jury. [Kerstner v. Vorweg, 130 Mo. 196; Thompson v. Bank, 132 Mo. App. l. c. 228.]\nIs there substance in the assignment of error? We think not. This, because:\n(1) It is argued that matter constituting equitable estoppel in pais is a good defense at law in an ejectment suit. Granted, but it would be a non sequitur to say that a defendant may not use the same matter of estoppel in pais as grounds for affirmative relief in equity, where alone he can get such relief. Estoppels in pais originated in equity, they stand on principles of refined ethics and were always a head of equity jurisdiction. The doctrine was merely borrowed by courts of law as a convenience. That the law has been enriched and enlarged by such borrowed principle ought not to oust courts of equity from enforcing the ancient principles of equity; for the jurisdiction of equity often runs concurrently with that of law. If a litigant be in such a fix that on the facts he is entitled to relief and if the relief at law be inadequate, or “if it is not complete, if it does not attain the full end and justice of the case, if it does not reach the whole mischief and secure the whole right of the party in the present time and in the future, equity will intervene and give such relief and aid as the exigency of the particular case *620may require.” [1 Story, Eq. (11 Ed.), sec. 33; Hanson v. Neal, 215 Mo. 256, and cases and authorities cited.]\nWhether in strictness of speech, a title may he “created” by estoppel is a refinement of no value in the light of modern equity jurisprudence. If A by his actions and conduct, having not spoken when in conscience he should speak, is estopped to speak when in conscience he should keep quiet, if he by ratification with knowledge, by the receipt of purchase money, by turning over possession or by similar means is estopped to assert title in himself and is also estopped, by the same token, to deny title in B, if he has retained the bare naked legal title to the land under such condition of things as makes him seized merely to B’s use — we say, if these things occur (as they do, as shown by this answer) then rounded-out justice demands that one other step be taken, vis.: when B asks it in his pleading the chancellor should not let go of his jurisdiction until A’s naked and bare legal title is vested out-and-out over into B who already holds the beneficial title — this under the maxim that equity considers that done which should have been done.\nIn Kirk v. Hamilton, 102 U. S. l. c. 77, quoting from 2 Smith Lead. Cas., pp. 730-740 (7 Am. Ed. with notes by Hare and Wallace) it is said: “It is well established that an estate in land may be virtually transferred from one man to another without a writing, by a verbal sale accompanied by actual possession, or by the failure of the owner to give notice of his title to the purchaser under circumstances where the omission operates as a fraud; and although the title does not pass under these circumstances, a conveyance will be decreed by a court of equity.”\nSpeaking of the appropriation of the doctrines of equitable estoppel by the common law, Herman lays down the rule to be (2 Herm. on Estoppel, sec. 744) that such appropriation will not “estop the right to seek redress by an application in due form to chan*621eery.” A great array of decisions from this court might he cited to sustain the proposition that whether the force of the decree is directed to specific performance, or to some other form of vesting title from one into another, because of matter of equitable estoppel in pais, a court of equity is allowed jurisdiction. [See, for example, Hubbard v. Glass Works, supra; Kirkpatrick v. Pease, 202 Mo. 471; Shaffer v. Detie, 191 Mo. 377.]\n(2) But it is argued (as we grasp the thread of it) that the estoppel does not concern the heirs or devisees of Hubbard, that they are not bound, because they did not participate in the acts of their ancestor, and had no notice or knowledge of those acts, hence, as estoppels proceeds on knowledge, it can not affect them. But counsel in his fervor inadvertently argues unsoundly because he overlooks a proposition, one of the very taproots of the doctrine of estoppel, to-wit, that an estoppel binding an ancestor binds his heirs and privies. “Equitable estoppels,” says Herman, “are as binding upon parties and privies as legal estoppels, and are as effectual in courts of law as an equity.” [2 Herm. on Estoppel, see. 787.]\nPlaintiffs as heirs and privies are bound.\nThe assignment of error now up is disallowed.\nIV. Of the demurrer.\n(a) By replying over appellants waived their demurrer except on one proposition, viz.: that the answer did not state facts sufficient to constitute a cause of action as a cross petition. [Paddock v. Somes, 102 Mo. l. c. 235; Hoffman v. McCracken, 168 Mo. l. c. 343; Hanson v. Neal, supra.]\n(b) It is argued that the second and third defenses were insufficient in point of law. As to the thirty-year Statute of Limitations it is insisted that it cannot apply because the duty to pay taxes was cast upon the life tenant. But this argument runs in a circle. It *622begs the question. It assumes Mary R. Hubbard was life tenant under the will. But if the equitable title passed in her husband’s lifetime, then she may have been entitled to dower, but a life estate was not cast upon her by the will. There was nothing for that will to operate upon, and no life tenant, or remaindermen so far as the property in this suit is concerned.\n(c) The principal argument in support of the assignment of error runs on the theory that we should look into the exhibits filed with the answer and, so looking, we would discover that the petition states no cause of action. Whatever may be the doctrine elsewhere there is no such thing as a “speaking demurrer” known to the jurisprudence of this State — that is, a demurrer that alleges affirmative' matter which, taken with the allegations in the petition, shows that no cause of action is stated. Whatever may be the doctrine elsewhere, in this State a demurrer strikes squarely at the face of the petition and nowhere else. Mere exhibits, under our practice, constitute no part of the petition for the purposes of a demurrer. This has been held early and late. [6 Ency. PI. and Pr., 298-299 ; Hadwin v. Home Mut. Ins. Co., 13 Mo. 473; Curry v. Lackey, 35 Mo. 389; Hoyt v. Oliver, 59 Mo. 188; Hickory County v. Fugate, 143 Mo. 71; State ex rel. v. Crumb, 157 Mo. l. c. 561; Pomeroy v. Fullerton, 113 Mo. l. c. 453.]\n(d) Finally, we are confronted with the suggestion that the demurrer was well enough because on its face the answer shows that the pleaded matter constituting the equitable defense, insofar as it serves as a cross petition upon which affirmative equitable relief is predicated, is barred by the Statute of Limitations and, consequently, is dead for the purposes of affirmatiye relief. But this view of it overlooks the fact that if the demurrer were held well taken, then the whole equitable defense would be struck down for every purpose whether as a mere bar or as a cross action. [Sebree v. Patterson, 92 Mo. 451.]\n*623Not only so, but tbe demurrer was bad from tbe viewpoint of a challenge at law to the answer as a cross action. A defendant long in peaceable and adverse possession, buttressed by an equitable title, among the traditional nine points in his favor,, is within the protection of, but not within the mischief struck at by, the Statute of Limitations. Such equitable owner, so disturbed and vexed in his peace and property rights by an attack on his ownership and possession, may summon to his aid very ancient matter of defense — matter growing stronger instead of staler by the mere flux of time — and when he has so summoned it to his aid he may use it by way of counterstroke to make his title impregnable for all time, as well as to parry the attack itself. So runs the law. [Michel v. Tinsley, 69 Mo. 442; Epperson v. Epperson, 161 Mo. 577; Butler v. Carpenter, 163 Mo. 597; Williamson v. Brown, 195 Mo. l. c. 329.]\nThe premises all considered, the facts on which the decree was based being conclusively presumed true on this appeal, under the omission of the evidence in the bill of exceptions, and the answer showing facts of the most persuasive and convincing character appealing for relief, we conclude the chancellor dealt out righteousness in his decree. Let it be affirmed. It is so ordered.\nAll concur.\"\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"hubbard-v-slavens","summary":"Appeal from Ray Circuit Court. — Hon. J. W. Alexander, Judge. (1) The demurrer to the second defense and the motion to strike the same out should have been sustained for the reason that the thirty-year Statute of Limitations does not apply. That statute was adopted in 1889. Hunt v. Searcy, 167 Mo. 184; Hall v. French, 165 Mo. 430; Howell v. Jump,, 140 Mo. 441; Shumate v. Snyder, 140 Mo. 77; Pryor v. \"Winter, 83 Pa. St. 202. (2) The power of attorney was insufficient to convey after-acquired title. It was recorded; therefore, King knew its contents. .Greve v. Coffin, 14 Minn. 264; Allis v. Goldsmith, 22 Minn. 123; Penford v. Waiver, 96 Mich. 139; Weare v. Williams, 85 la. 253; Union Trust Co. v. Meous, 201 Pa. St. 374. (3) Defendants allege matters they claim as an estoppel. These allegations are matters in pais, and there is no allegation in the petition that these defendants were in any way affected by those matters, or relied thereon, and therefore such matters do not constitute a defense to plaintiffs’ petition. (a) There is no allegation in the answer anywhere that any one of these acts pleaded as an estoppel were ever called to the attention of defendants at any time, or that they changed their position on account of anything plaintiffs’ ancestors or they have done, and therefore this in no manner authorized these defendants to plead or prove them. There can be no estoppel unless the party who alleges it relied upon the representation, was induced to act by it, and thus relying and induced, did take some action. Rosencranz v. Swofford Bros. D. G. Co., 175 Mo. 537; Burke v. Adams, 80 Mo. 504; Blodgett v. Perry, 97 Mo. 263; Rogers v. Marsh, 73 Mo. 64; Eitelgeorge v. Mutual House Bldg. Assn., 69 Mo. 57; Barnes v. Perry, 61 Mo. 449 ; 11 Am. and Eng. Ency. Law (2 Ed.), 439, and notes; 16 Cyc. 744 and notes; Ralls v. Ritter, 180 111. 161; Pleasant Hill Light & P. Co. v. Quinton, 109 S. W. 1061. (b) A party cannot be divested of his title by estoppel. Foster v. Hobson, 107 N. W. 1101. Nor do estates pass by estoppel. Turner v. Baker, 64 Mo. 218. (c) All matters alleged in the answer except those of the notes and mortgages are matters not in writing. Where an estoppel in pais has heen invoked against claim of title to real estate, the doctrine is opposed to the letter of the Statute of Frauds, and would greatly impair the security of titles to real estate if they were allowed. Miller v. Graves, 38 111. 457; Patterson v. Huchcach, 3 Cal. 535; Martin v. Railroad, 83 Me. 100; Trenton Banking Co. v. Duncan, 86 N. Y. 221; Bolling v. Peters-burg, 3 Rand 563. (d) An essential to estoppel by misrepresentation or concealment is that the party pleading it should have relied upon the conduct of the other, and been induced by it to act or refrain from acting. Blodgett v. Perry, 97 Mo. 263; Bales v. Perry, 51 Mo. 449; Wright v. McP'ike, 70 Mo. 175; Acton v. Dooley, 74 Mo. 63; State Bank v. Frame, 112 Mo. 502; Smith v. Roach, 59 Mo. App. 295. (4) The mortgage from Hubbard to Ranson was a void instrument. Sec. 15, ch. 32, p. 35, R. S. 1855. It was unsealed and failed to describe the land in dispute. (5) The Statute of Limitations could not apply to plaintiffs’ cause of action for the reason that the entry of Hite under the void foreclosure sale broke the continuity of possession of King within ten years from the time of King’s alleged entry, and while plaintiffs had no right to sue, Hite’s entry being adverse to King, (a) To tack possession to a preceding adverse possession must be by and solely under contract or conveyance valid on its face. 1 Cyc. 1007, 1008, note 2; Simpson v. Dowing, 23 Wend. 216; Chouquette v. Barada, 23 Mo. 331; Shaw v. Nicholay, 30 Mo. 99; Crispen v. Hannavan, 50 Mo. 536. (b) The deeds from Hite to Gates and from Gates to Slavens being void, not describing the property, were not color of title and not sufficient to tack Hite’s prior possession. Each entry was a new entry. The pleading, therefore, shows the Statute of Limitations did not apply to plaintiffs. (6) The motion to strike out should have been sustained. This pleading violates Sec. 592, R. S. 1899, in not being plain and concise. Mallinckrodt v. Nemnich, 169 Mo. 388; Sidway v. Land Co., 162 Mo. 374; Goldman v. Gilliland, 10 Sawyer 636; Pomeroy’s Code Remedies, sec. 517; Chitty on Pleading, 245. (7) The third defense is legal, not equitable, and plaintiffs could not be deprived of their right to trial by jury thereby. The court erred in overruling plaintiffs’ demand for jury trial. U. S. Const., Bill of Rights; Const, of Mo., Bill of Rights, 17; R. S. 1899, sec. 691. (a) In ejectment suits, right of trial by jury has always existed, and equitable defenses are triable at law in ejectment suits. O’Day v. Conn, 131 Mo. 321; Pomeroy’s Equity Jurisprudence, sec. 802. The prayer for such other and further relief has no application to the facts stated. State ex rel. v. Evans, 176 Mo. 310, 317; Jennings v. Moon, 135 Ind. 173. (b) Plaintiff cannot sue in equity when his claim constitutes a defense to an action at law. 17 Ency. PI. and Pr., 277 and 285; 6 Am. and Eng. Ency. Law, 153. (c) It is not necessary to go into a court of equity for the purpose of obtaining an equitable estoppel, when the case is not otherwise of equitable jurisdiction. 11 Am. and Eng. Ency. Law, 421, note 2; Bevard v. German Savings Institute, 44 Mo. 445; Concord v. Norton,-16 Fed. 477; Drexel v. Biring, 16 Fed. 552; Shilito Co. v. McChesn-ey, 45 Fed. 478. (d) Where the execution of a paper is one of the main issues being tried, it is error to take the case from the jury. If the contract set out is in the case, it is one of the main issues and is specifically denied. Grady v. Ins. Co., 60 Mo. 116; North Pa. Coal Co. v. Snowden, 42 Pa. St. 488; Donahue v. Meister, 88 Cal. 121; Hannah v. Kranz, 167 111. 121; Fountaine v. Hudson, 93 Mo. 62; Sneathen v. Sneathen, 104 Mo. 201; Whiting v. Stevens, 97 111. 182; State v. Harney, 168 Mo. 167; Tinsley v. Kemrey, 170 Mo. 310; State v. Bockstruck, 136 Mo. 335; Edwardson v. Barnbord, 50 Mo. 81; Grand Lodge v. Elwoner, 26 Mo. App. 108. (1) In determining tbe sufficiency of a pleading tbe court cannot look beyond it to exhibits filed with it. Hoyt v. Oliver, 59 Mo. 189; Hickory Co. v. Fugate, 143 Mo. 79. The exhibits were no part of respondent’s answer. State ex rel. v. Crumb, 157 Mo. 547; Pomeroy v. Fullerton, 113 Mo. 453. (2) By filing a reply after plaintiffs’ demurrer and motion to strike out were overruled they waived every objection made to defendants ’ answer except that it did not state facts sufficient to constitute a cause of action or a defense. Leise v. Meyer, 143 Mo. 556; Hudson v. Cahoon, 193 Mo. 557. (3) The petition alleges that Hubbard died in July, 1861. It is alleged in the second defense that defendants and those under whom they claim have been in the adverse possession of the premises in question for a period of 48 years, next before the commencement» of this suit, and states a case within the purview of Sec. 4268, R. S. 1899. Collins v. Pease, 146 Mo. 135; De Hatre v. Edmonds, 200 Mo. 267; Crain v. Peterman, 200 Mo. 299. (4) Defendants in' their third defense state a cause of action on which they are entitled to equitable relief. The facts alleged in defendants’ third defense constitute an equitable estoppel and entitled them to a decree vesting the title to the premises in question in them.' Martin v. Railroad, 93 Me. 100; 2 Pom., Eq. Juris., sec. 803. Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity from asserting rights which might perhaps have otherwise existed either of property, contract or of remedy, as against another who has in good faith relied upon such conduct and has been led to change his position for the worse. Martin v. Railroad, supra; Wilkins v. Gibson, 113 Ga. 38; Galbraith v. Lunsford, 87 Term. 89'; 2 Pom. Eq. Juris., sec. 810; Hill v. Black-welder, 113 111. 283; Thompson v. Borg (Minn.), 95 N. W. 896; Kirk v. Hamilton, 102 U. S. 69. At the time Summers, as attorney in fact for Hubbard and wife, made the deed of September 22, 1857, for the premises in question to King, under the power dated in September, 1856, King knew that Summers, under that power of attorney, mentioned in this defense, had joined with Hubbard as attorney in fact for Mrs. Hubbard in the execution of the said mortgage on said premises to Ranson, and knew that Hubbard, before said deed was executed, had directed Summers to make said deed to King as attorney in fact for himself and wife, under the same power of attorney, and King was thereby led to- believe and did believe that said Summers had authority to make said deed, and paid the greater part of the purchase price to Plubbard in his life time and the balance to his estate, then Hubbard in his life time was estopped from denying that Summers had authority to make said deed and his heirs, the plaintiffs, are bound by his acts and conducts. Mechem on Agency,'secs. 84, 707; Story on Agency, sec. 127; 2 Smith Ld. Cases, pp. 744-764, 765; Johnson v. Hurley, 115 Mo. 520; Oak Grove Soc. v. Murray, 145 Mo. 622; Hubbard v. Glass \"Works, 188 Mo. 43; Smith v. Shelley, 12 Wall. 358; Barnett v. Smart, 158 Mo. 181; Murray v. Mayo, 157 Mo. 248; Herman on Estoppel, secs. 1081, 1088; Jones v. Bliss, 48 Minn. 307; 2 Pom., Eq. Juris., sec. 821. The appropriation of the doctrines of equity by the common law will not estop the right to seek redress by an application in due form to equity. If estopped by his acts and conduct, a court of equity will decree a conveyance or vest the title. Hubbard v. Glass Works, 188 Mo. 43; Herman on Estoppel, secs. 744, 835; 2 Smith Ld. Case, pp. 734-740; Kirk v. Hamilton, 102 U. S. 69; Bigelow on Estoppel, 557. (5) If, upon the facts stated in this defense, defendants are entitled to equitable relief, plaintiffs were not entitled to a jury. O’Day v. Conn, 131 Mo. 325; Shaffer v. Detie, 191 Mo. 388; Martin v. Tnrnbangh, 153 Mo. 172. (6) The Statute of Limitation has no application to an equitable defense even where affirmative relief is asked. On that grouM the demurrer to this defense was properly overruled. Butler v. Carpenter, 163 Mo. 604. (7) The courts regard such suits as this with disfavor. Williams v. Mitchell, 112 Mo. 313; Osborne v. Welden, 146 Mo. 185; Hubbard v. Glass Works, 188 Mo. 35. “Such suits, if successful,” in the language of Judge Scott, “would make the dead sin in their g’raves.” McLannahan v. West, 100 Mo. 324. (8) Equitable estoppel in pais originated in equity, and was there enforceable for all purposes. It gradually became enforceable also in courts of law as'a bar, but no further, since courts of law can give no affirmative relief. Opposing counsel claims that because our third equitable defense might be used as a defense at law, sufficient to bar plaintiffs from claiming possession in this ejectment suit, we cannot therefore take it into equity by asking affirmative relief. That is not the law. Olreichs v. May, 15 Wall. 43."} {"case_name":"Belgian Linen Importing Co. v. United States","case_name_full":"Belgian Linen Importing Co. v. United States","citation_count":0,"citations":["41 Cust. Ct. 318"],"court_full_name":"United States Customs Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Customs Court","court_type":"FS","date_filed":"1958-07-02","date_filed_is_approximate":false,"id":8143924,"opinions":[{"ocr":true,"opinion_id":8105306,"opinion_text":"\nProtests abandoned April 23, 1958. (Not published.) (Initial No. 160232-K (B).) Plaintiff’s application for rehearing granted.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"belgian-linen-importing-co-v-united-states"} {"attorneys":"Víctor Gutiérrez Franqui, Luis F. Sanchez Vilella y C. Morales, Jr. for petitioner. Juan Enrique Géigel, Guillermo Silva, Jaime A. Garcia Blanco and Hernán G. Pesquera for plaintiff and respondent. F. Ponsa Feliú and Luis Blanco Lugo for intervener-respondent.","case_name":"Cabinero León v. Cobián Theatres of Puerto Rico","case_name_full":"Consuelo Cabinero León, and v. Cobián Theatres of Puerto Rico, Inc., and Petitioner Hanover Fire Insurance Co., Intervener and","citation_count":0,"citations":["81 P.R. 926"],"court_full_name":"Supreme Court of Puerto Rico","court_jurisdiction":"Puerto Rico, PR","court_short_name":"Supreme Court of Puerto Rico","court_type":"TS","date_filed":"1960-06-30","date_filed_is_approximate":false,"id":8564121,"judges":"Becerra, Fernández, Herein, Pimentel, Saldaña","opinions":[{"author_str":"Becerra","ocr":true,"opinion_id":8537316,"opinion_text":"\nMr. Justice Santana Becerra\ndelivered the opinion of the Court.\nOn the night of May 17 to 18, 1949, a fire broke out in the building of the Rex Theater in Cataño, leaving it practically ruined. The plaintiff, as owner and lessor of the premises, filed this complaint against Cobián Theatres of Puerto Rico, Inc., lessee of the theater, suing it for damages in the amount of (1) $58,797.48, cost of reconstruction of the building and repair of the damage suffered therein; (2) $7,565.00, cost of repair of certain special equipment proper to this business; and (3) $18,011, value of the equipment for the projection and reproduction of sound, seats, screen, mechanical ventilators and other personal property which was totally destroyed. She also claimed rental at the rate of $375 a month not received from the date of the fire until October 26, 1949, date of the complaint, amounting to $2,033.25 plus the rental accrued during the suit.\n*929The plaintiff alleged that she owned the premises where the Rex Theater was located and the equipment for the projection of motion pictures and other personal property-installed in the theater; that from August 1, 1947 and by virtue of a 10 year lease the defendant came in possession of the theater and its annexes as well as the personal property installed therein, paying a monthly rental of $375; that on May 18, 1949 a fire broke out in said building totally destroying it together with the motion picture equipment and other personal property; that prior to May 18 Cobián Theatres had subleased to another person part of the theater building for the operation of a bar where food was served using kerosene stoves, without the plaintiff being notified of that sublease; that the fire broke out, pursuant to the plaintiff’s information, in a kerosene stove in the subleased part; and that as a result of said fire the plaintiff suffered the afore-claimed damages. She also alleged that Cobián had ceased paying the monthly rental from the date of the fire.\nThe defendant answered accepting the lease of the building, the occurrence of the fire, and its failure to pay the rental after the fire. It denied other points and alleged affirmatively that the motion picture equipment and installations were exclusively its own not the lessor’s; that it ceased holding the premises from the time of the fire since the latter became useless for the purposes for which it leased it, without the plaintiff having reconstructed it and placed it at its disposal; that it was not in possession of the premises at the time the complaint was filed; that when it came in possession of the real property in 1947 the part of the building which it allegedly subleased for a restaurant or bar was already held by another person as sublessee of a former lessee, and was devoted to the same purposes with the plaintiff’s knowledge, and since 1936 there existed in the main building premises used as a bar; and that the fire broke out without any fault or negligence on the part of the defendant or any person to whom fault could be charged. Cobián Theatres *930also alleged that the building was covered by an insurance policy of $35,000 with Hanover Fire Insurance Co. and on June 30, 1949 this company paid to the plaintiff for its loss the amount of $21,884.75; that the losses suffered totaled that sum and that from that date the company was sub-rogated in the rights and actions of the plaintiff, the latter not having any interest or cause of action as to damages for the destruction of the building.\nAfter the case was submitted1 the Superior Court concluded that the building leased consisted of the main premises devoted to a movie house which had been closed 18 months previously, and another independent premises devoted and used for a canteen which was occupied by a third person as Cobián’s sublessee; that the cost of reconstruction of the building at the time of the fire less depreciation was $26,333.39; that certain destroyed installations were owned by the plaintiff and it fixed a recoverable value of $8,912.98, and that other motion picture equipment consisting of seats, screen, ventilators, projection equipment, as well as other personal property did not belong to the lessor but to the lessee-defendant. It stated that the evidence did not permit it to make any conclusions as to the term necessary to make the repairs which would have permitted the building to be leased again, nor as to the reasonable term needed to lease it. In relation to other points, the court *931concluded that soft drinks and food were served in the subleased canteen for which a fluid gas stove was used, and that the fire originated in the kitchen of said canteen and from there it spread to the remainder of the building. It found proved that prior to May 18 there were two fire alarms in the building: after the former the defendant removed the fuses, locked the theater doors “to prevent hoodlums from entering,” save one to give access to the person who did the cleaning, it had extinguishers and saw to the cleaning of the surroundings which was done frequently eliminating the garbage and papers. An employee of Cobián made monthly inspections to determine whether the theater was locked and clean. After the latter was closed down the lessee’s employees did not visit the canteen.\nIn its conclusions of law the trial court was of the opinion that the defendant was liable for damages. It decided that the thing lost held by the lessee was presumed to have been lost through its fault and not through a fortuitous event; that in the specific case of fire the lessee is liable unless he proves that the fire arose from an extraneous cause and that there was no fault or negligence on his part, and that if he fails to prove the cause or origin of the fire the lessee is not relieved from his liability and the presumption that it was due to his fault will then be applied. Even assuming, the lower court continued, that the lessee is relieved from liability by proving that it took care of the property with the diligence of a good family father, the evidence would be incomplete because although it could be affirmed that Cobián took several precautions to prevent a fire, they were limited to the premises devoted to the motion picture house, but the fire did not originate in these premises but rather in the adjoining canteen and there was no evidence showing that precautions were taken in the canteen to prevent a fire therein. Pursuant to its conclusions it rendered judgment ordering the defendant to pay $26,333.89 as cost of reconstruction of the building of which sum $21,884.75 should be *932paid to the intervener Hanover Fire Ins. Co. and the remainder $4,448.64 to the plaintiff with the sum of $8,912.98 for the installations destroyed.\nBoth parties appealed although we only need consider defendant’s appeal.2 The latter charges the lower court with the following errors: (1) in deciding that the defendant is liable for the loss occurred in the property leased for failure to show that the fire was due to a fortuitous event; (2) in determining that the defendant did not prove to have used the thing leased with the diligence of a good father of a family; (3) in assuming that it was incumbent on the defendant to rebut by the preponderance of the evidence the presumption of fault established by § 1453 of the Civil Code; (4) that the presumption of fault established by this section deprives the defendant of its property without due process of law and is contrary to the Fifth and Fourteenth Amendments of the Constitution of the United States and to § 7 of Art. II of the Constitution of the Commonwealth of Puerto Rico; and (5) that the court erred in granting to the plaintiff the value of the special installations of the Rex Theater notwithstanding her failure to have established said value at the time of the fire.\nSections 1445(2), 1451, 1453, 1458, 1136 and 1137 of the Civil Code (1930 ed.) 31 L.P.R.A. 4052, 4058, 4060, 4065, 3191 and 3192, are directly applicable to this case. Section 1445 (2) compels the lessee to use the thing leased as a diligent father of the family, applying the same to the use agreed upon, and in the absence of an agreement, to the use which may be inferred from the nature of the thing leased according to the custom of the land. Section 1451 imposes on him the obligation to return the estate at the expiration of the lease in the same condition in ivhich he *933received it, except what may have been destroyed or impaired by time or by unavoidable reasons. Section 1453 makes the lessee liable for the deterioration or loss suffered by the thing leased, unless he proves that it took place tvithout his fatilt. Section 1458 provides that if the thing leased is lost or any of the contracting parties do not comply with what has been stipulated, the provisions of § § 1136, 1137, 1054 and 1077 of the Civil Code shall be observed respectively.3\nProof of obligations devolves, pursuant to § 1168, upon the persons claiming their fulfilment, and that of their extinction upon those opposing it. Pursuant to the provisions of § 1451 which compel the lessee to return the property in the same condition in which he received it, the plaintiff limited herself to offering evidence of the fact itself of the fire which destroyed the property and of the damages which she allegedly suffered as a consequence thereof. Ramirez v. Muñoz et al., 33 P.R.R. 350 (1924) ; Del Valle v. M. González & Co., 39 P.R.R. 739 (1929). Pursuant to § 1168 in harmony with ⅞ § 1453, 1136 and 1137 it was incumbent on the defendant to prove that said obligation to return was extinguished by loss of the thing. At this point, the question turns on whether the defendant proved that the loss took place without its fault —§ 1453— and contrary to the presumption that it occurred through its fault — § 1137— and not by a fortuitous event or lack of fault, as Puig Peña calls it when speaking about nonfulfilment.4 We must decide then, whether or not there was fault on its part in the loss of the thing leased which otherwise would extinguish *934the obligation of the lessee herein to return it in the same condition in which it received it.\nThe mention of fault immediately brings into consideration § 1057 of the Civil Code (1930 ed.) —31 L.P.R.A. § 3021 — which provides that “The fault or negligence of the debtor consists of the omission of the steps which may be required by the character of the obligation, and which may pertain to the circumstances of the persons, time, and place”; and that “Should the obligation not state what conduct is to be observed in its fulfilment, that observed by a good father of a family shall be required.” It happens that § 1445(2) particularly applicable to leaseholds, provides the same rule of a diligent father of the family in the use of the thing {“culpa levis in abstracto” of the Roman law.)5 Section 1.057 requires a fortiori an evaluation of the specific facts and circumstances of each case in determining the guilt or its absence.6 Let us examine the facts and circumstances *935in the four occasions when the court has had the controversy of this ease under consideration: In Ramírez v. Muñoz et al., 38 P.R.R. 17 (1928) the lessee of a masonry building in Caguas subleased a part for a grocery store, another part for a tobacco warehouse and to a third person. During the night a fire broke out causing damage to the building. The owner sued the lessee and the sublessees for the return of the property in the condition in which they had received it or the payment for deterioration. There was evidence to prove that after the fire was extinguished there was burnt tobacco and the smell of kerosene; that there were cans of kerosene unopened and unburnt and that the fire started within the building. To relieve themselves from fault, the defendants testified that they used to search the grocery thoroughly and lock it before going home, that they had a night watchman paid by the merchants to keep watch in the street; that when the fire occurred all the house was locked and that in their opinion it was caused by the electric wires because they had been the cause of other fires in Caguas; that kerosene was sold in the business; that the kerosene *936was not set on fire because the fire did not reach the place where it was; that before the fire they had a gasoline stand but they had suppressed that business; that the warehouse which housed the tobacco business was closed at six in the afternoon and was lighted by electricity; that before going to bed they used to go to the warehouse and push the doors to ascertain whether they were locked.\nWith regard to § 1466 (1911 ed., § 1453, 1930 ed..), this Court, upon reversing the judgment charging liability to the lessee, stated:\n“A summary of the evidence of the defendants as a whole shows that they acted as prudent men in the use of the parts of the house which they had respectively subleased, for they locked the doors of the house each night after making an inspection, they paid their share of the wages of the night watchman employed by the merchants for watching each night their business premises, which was also done by a policeman. They showed that the part of the house occupied by them had electric light; that there had been other fire outbreaks in Caguas caused by electric wires; that J. Muñoz & Co. had removed a gasoline stand which they had installed as ordered by the owner if they failed to insure the house against fire, and though they kept in the grocery business some boxes of kerosene cans, the sale of that article was part of their grocery business. In view of that evidence, which has not been contradicted, we are of the opinion that the defendants showed that the fire which caused the damages to the house occurred without their fault and therefore the defendants are not liable for the repairs to the house.”\nIn Del Valle v. M. González & Cia., 39 P.R.R. 739 (1929), the liability of the lessee for the fire of the building leased, was upheld, but the decision rested not so much on whether or not the latter had succeeded in destroying the presumption of fault as on the fact that the lower court found proved affirmatively that the fire was due to the negligence of the employees of the defendant.\nRuiz v. Umpierre, 49 P.R.R. 262 (1935) upheld the liability of the lessee for the fire which occurred in a resi*937dence while the latter’s son occupied and lived it, although the contract prohibited the subleasing of the premises. A reading of the detailed summary of the defendant’s evidence which appears on p. 264 of the opinion, raises certain doubt in our minds as to whether in the light of our evaluation in the case of Ramirez, supra, the defendant did not also prove that the fire had not been due to the fault. The opinion itself reflects that doubt in stating that we were not at all satisfied that the defendant did not have a debatable case and we relieved him from the award of costs. Perhaps the court considered important the fact that the defendant had turned over the house to his son and that on at least one other period he had subleased it to a person who in turn permitted others to occupy it for purposes not consistent with due care and also that he did not present evidence, after the discovery underneath the staircase of a can from which smoke was coming out and was covered with a piece of sackcloth, that anything was done to take special care of the house.\nFinally in Puig v. Waldrop Photo Co., 54 P.R.R. 75 (1939) a building in San Juan was leased to the defendant under clauses in a public deed which stipulated that the lessee could not bring any inflammable materials nor explosives into the house. The lessee subleased the entrance hall and the upper part of the premises to a third person with the same prohibition regarding the introduction of explosives or inflammable materials. There was an explosion and a fire broke out in the subleased portion which caused considerable damage to the entire premises. The complaint was dismissed and plaintiff assigned as error the holding that the defendant was not at fault nor negligent and that it had acted diligently like a wise administrator, merely because it had stipulated that the sublessee should not bring into the house inflammable or explosive materials; and because the defendant failed to produce any evidence to overcome the presumption of fault established by § § 1137 *938and others of the Civil Code. It was stipulated that an explosion had occurred, followed immediately by a fire as a result of the storage of several packages of torpedoes which the sublessee had stored in the floor subleased to him. Considering the point that the lessee had not overcome the presumption of law as to his fault, we said:\n“It can be safely concluded that defendant had no active part in the storing of the explosives. The mere fact that their introduction took place in the subleased part of the building would tend to support such a conclusion. After an analysis of the circumstances, we are inclined to uphold the decision of the lower court. The reasoning would necessarily start out from the fact that the Waldrop Photographic Co. had bound itself not to introduce inflammable materials into the building. There is no evidence that its business was such as to make such introduction probable, nor that there was reason to believe that the defendant had ever at any time directly violated such a clause. Consistent with the agreed restriction and with a consciousness of its sense of responsibility thereunder, the defendant inserted such a limitation in the deed of sublease. Thereafter the fire took place and there was an express denial of any knowledge or responsibility with regard to its source or effects. This may be seen from the notarial demand for repairs (Acta de Reque-rimiento) which appears in the record. It is extremely difficult to prove a negative state of facts and much more so when such proof is required as to a state of mind. By this we mean that defendant could do little more, if anything at all, than deny knowledge.”\nIn order to determine, in the light of those precedents and the applicable doctrine, whether or not the defendant proved to be exempted from fault for the occurrence of the fire, it is necessary to set forth a series of additional facts and circumstances revealed in the record which the trial court did not mention in its findings. The plaintiff’s evidence showed that in 1935 Rafael Arcelay and Francisco Rodriguez constructed the theater in partnership and then prepared a site or annex measuring about ten feet wide by fifteen feet long at the entrance of the lobby to be used by *939Rodríguez as a canteen or soda fountain. Rodriguez operated the business for some time and then leased it to another person. On May 29, 1936, Arcelay accompanied by his wife, plaintiff herein, and Rodriguez, leased the theater, including the canteen premises held by a third person, to Rafael Ramos Cobián, for a period of six years and an extension of four, the lessee remaining authorized to sublease. Rafael Ramos Cobián, president of the defendant, testified that from the beginning said canteen housed a kerosene stove and another heating appliance, and the business was well-known for the confection of “pastelillos” which everybody ordered; upon closing down the theater in November 1947 the canteen remained in operation because it was not part of the theater, it was attached to the building but stood out as something independent therefrom. He testified that after locking it he was informed that smoke had burst forth from the theater and that the firemen came and the next day he ordered all the fuses in the installation removed and the current disconnected; he learned that it was not due to the electric current but rather to the fact that someone inside the building had fallen asleep while smoking and some papers had taken fire, and he ordered all the doors to be locked and notified the police. He did not have any films there. He kept his books in the premises which he used as office. There were extinguishers in good conditions examined yearly by the firemen. He closed down the. Rex theater in November 1947, after putting in operation another one which he constructed nearby, because of unsafe conditions which it offered the public according to the reports of the firemen and the Department of Health; after it was closed down he visited the premises two or three times, the last time being about three months before the fire; he did not leave a watchman there, but a janitor from the other theater used to go and inspect the place and clean it, and the other employees went there often. He *940asked the owner of the canteen, who was a police captain, to have the police watch the theater.\nWitness Humberto Rodriguez Pardo testified that the canteen was operated by one of the owners of the theater when it was constructed, that he subleased it in 1940 and kept the business of the sale of coffee, “pastelillos,” refreshments, etc., until January 1948, when he sold the business to José Cedeño; there was a bar in front and a glass partition on a concrete wall which was six feet high, rendering visible the place where the “pastelillos” were prepared; the stove contained kerosene and stood on a concrete base between two walls of concrete also. Cooking stopped at about 10:30 p.m. and before closing he would remove the gas tanks, putting them aside to see if the stove was well turned off. The firemen inspected the business every month and he received no complaint from them. About two weeks after the theater was closed down an employee of Cobián in charge of the property, removed the fuses. There were two fire alarms, one before the theater was closed down, due to cigarettes which were thrown on the roof and another, when some papers were burned after it was locked. Eduardo Regal said that he was in charge of the defendant’s properties; shortly after the Rex was closed down he removed the fuses from the building to eliminate the electric current and blocked all the doors, except one, to allow cleaning; the extinguishers were located in place as required by the firemen; the janitor of the other neighboring theater would clean the premises periodically and the witness frequently went to inspect it. He blocked the doors more firmly after he found some burnt papers. He might have been at the building three days or a week before the fire. He knew that there was a kerosene stove in the canteen and that coffee was brewed. He used to go and collect the rent from Rodriguez Pardo and he would see the stove from the counter.\nThe intervener presented as evidence of rebuttal the testimony of Francisco Castillo, first witness heard by the *941trial judge. He said he was a paid watchman in the section of the Rex theater, at about one o’clock he heard a noise within the canteen as if something fell, he saw a light and another person forced the door and he saw fire in a stack of beer cases that were close to the stove. He saw kerosene tanks there and a stove leaning on the stack sideways. They went into action and the policemen notified the firemen. The canteen was a separate spot from the theater. The defendant presented in counterrebuttal the testimony of José A. Cedeño, Police Captain, who operated the canteen at the time of the fire. He said that he sold refreshments and “pastelillos\" and had discontinued the food and that the stove did not have any gas in the tanks. He used to pay the rent by mail and nobody went personally to collect. Cobián went several times to the canteen after the theater was closed. He was notified of the fire at his home and upon arriving it was practically extinguished. The intervener offered the testimony of detective Carlos A. Rodriguez, to the effect that in May 1949, snacks and sea food were sold there.\nAside from the foregoing evidence, the record shows that the plaintiff acquired the property on January 7, 1942, in liquidation of conjugal property and knew that there was a canteen there. On July 25, 1947, she leased the theater to the defendant Cobián Theatres, represented by its president Rafael Ramos Cobián, including the canteen premises, at that time held by Humberto Rodriguez Pardo, as sublessee, for the term of 10 years as of August 1, 1947. The defendant was authorized to freely sublease the property. Three months later, on November 27, 1947, the theater was closed down. The canteen in possession of the sublessee, although attached to the building, was an independent body and remained in operation.\nThe petitioner maintains that to be released from its liability it merely had to prove that it used the thing as a diligent father of a family and that that was its obligation pursuant to § 1445(2). The respondents argue on the *942contrary that to be released it was not sufficient for the latter to prove such thing — which would be at the most a factor to be considered in determining the degree of liability — , but rather that it was bound to prove affirmatively that the loss was due to a fortuitous event and it is the duty of the lessee pursuant to § 1451 to return the thing in the same condition in which it received it, except what may have been destroyed by unavoidable reasons. These two obligations, to use the thing with the diligence of a good father of a family and to return it in the same condition in which he received it, except what may have been destroyed by unavoidable reasons, are neither in the field of reality of the facts nor in the doctrinal scope so unconnected with each other as presented by the litigants, particularly the respondent. When final liability must be produced the Code itself arranges them in the common area of fault.\nAn unavoidable cause which relieves from the obligation to return the property in the condition in which it was received, as Manresa says — Vol. 10, 5th ed., p. 601 — and is accepted, is the fortuitous event. But immediately thereafter the commentator states that that section “does nothing more than apply the general doctrine of obligations” and points to § 1105 (§ 1058 of our Code), where no one shall be liable for events which could not be foreseen or which having been foreseen, are inevitable and to § 1182 (§ 1136 of our Code) dealing with the extinction of the obligation to deliver a thing when said thing should be lost without fault of the debtor. And as to the obligation to use the thing as a diligent father of a family, Manresa states, op cit. at 555, that the lessee has at his disposal a thing belonging to another “and is strictly debtor thereof since he shall return it at the expiration of the lease” (italics ours) ; and that “in this concept” without the Code saying anything on the commented section (§ 1445(2) of our Code) “it would be subject to the provisions of § 1.104 [§ 1057] which says that the fault or negligence of the debtor consists in the *943omission of the steps which may be required by the character of the obligation, and which may pertain to circumstances of the person, time, and place, and that where the obligation does not state what conduct is to be observed in its fulfilment, that observed by a good father of the family shall be required. But the Code has set forth expressly in this place the conduct of the father of a family; that is, the average conduct, as binding on the lessee, to indicate that he shall observe it not only insofar as he is debtor thereof but in the acts of its use or, in other words, as such lessee.”\nIt is clear that upon determining the liability of the lessee as debtor of the thing for its loss or deterioration, there can be no absolute abstraction of the concept of the conduct that the latter should have observed in the use thereof, especially since § 1453 places such liability on the latter’s fault, and also bearing in mind the provisions of § 1057. As liberating or extinguishing agent of the obligations, the fortuitous event in the positive concept is that event which could not be foreseen or which having been foreseen, was inevitable, pursuant to § 1058 of the Civil Code. —31 L.P. R.A. § 3022. A more modern tendency used by José Castán for reasons which he explains and are followed by many commentators, tends to define the fortuitous event which relieves from liability more simply by way of exclusion, and as Castán himself calls it, “with negative formula.” Thus he says that the most important application of the fortuitous event is its reason of nonliability in the nonfulfilment of the obligations, and that “in this sense it may be defined (with negative formula) as that accident not chargeable to the debtor which precludes the exact fulfilment of the obligation,” although he later defines it also with the positive elements of § 1058 “as the event not chargeable to the debtor, unforeseen or foreseen, but inevitable” which prevents fulfilment.7\n*944Puig Peña, after stating that liability is traditionally understood as a consequence of fault, and that to declare a person liable for a certain event it is absolutely necessary to relate it to the general principles governing fault, referring to the “casus” says that “the foregoing shows that the exact and correct test for defining the fortuitous event is the negative or per exclusionem, defining it as any event not chargeable to the person obliged.” 8\n*945■ At least with regard to the case of fire in the leased property, we have followed the formula of exclusion in the consideration of the fortuitous event. Our previous decisions did not compel the lessee to prove affirmatively the fortuitous cause of the fire; we only required him to prove his lack of fault in the event. Our doctrine could not be otherwise because although § 1451 declares the obligation of the lessee to return the property after using it in the same condition in which he received it, except what may have been destroyed or impaired by unavoidable reasons that is, by a fortuitous event, when his liability is involved for the actual loss of the thing, the Code exonerates him if he proves that it occurred without his fault, as provided by § 1453 and, by reference of § 1458, § 1136. By establishing the presumption of fault on the part of the lessee and not the fortuitous event, § 1137 places on said lessee the burden to prove the absence of his fault, but does not compel him, as does the French Code expressly in § 1733,9 to prove the fortuitous cause — which he could not foresee or which having foreseen, was inevitable —of the fire.\nThe trial court’s conclusion, was therefore erroneous as a question of law, to the effect that it devolves on the lessee to prove that the fire was due to a fortuitous event and that *946unless he proves the cause or origin of the fire he is not relieved from liability and the presumption of fault will be applied to him. That conclusion is contrary to the doctrine and provisions of the Code. Manresa, cited by the court in support of said conclusion and who among the commentators followed the traditional positive concept of the fortuitous event — the event which could not be foreseen or which having been foreseen was inevitable — in dealing with the specific case of fire of the thing leased merely reaches the following conclusion after examining the sections equivalent to §§ 1451, 1453, 1136 and 1137: “It necessarily follows that in order to be exempt from liability, the lessee must prove that the fire occurred without fault or negligence on his part.” The judgment of January 8, 1929, of the Supreme Court of Spain cited also by the court in support of its conclusion, is not strictly applicable. It dealt with merchandise deposited in the customhouse which was destroyed by a fire. Ordinances of the customhouse which released the latter from the duty to deliver the deposit only in case of vis major were also considered, and the plaintiff had alleged specific acts of negligence on the part of the depositary. Before the court of first instance the State only limited itself to prove, presenting the record of the investigation, that it did not know the possible causes of the fire and that they could have been due to the deficient installation of electric current for lighting. The Audiencia decided that it was a case of a fortuitous event reversing the court of first instance and the judgment of the Supreme Court, in reversing the Audiencia, establishes the doctrine that the proven fact of ignorance of the cause of the fire does not bring about the affirmative conclusion that it was due to a fortuitous event. The judgments of October 7, 1899, and of March 26, 1928, cited in the judgment of January 9, 1929, dealt with merchandise burned in land transportation and applied § 361 of the Code of Commerce, equal to § 279 of the 1932 edition, which imposes on the carrier the obligation to prove the accident *947or force majeure. And see the judgment of June 12, 1950 where the liability of the lessee for the fire is discussed in terms of “his fault.”\nThe evidence shows that the specific cause or agent causing the fire was unknown. As we noted in the case of Waldrop, supra, it is extremely difficult to prove a state of negative facts, especially since a fire is not considered in itself a fortuitous event and human conduct plays a part. Upon deciding in this particular case what was the proper conduct to be followed or that should have been undertaken or if having failed to do so the defendant committed fault, pursuant to the diligence required by the nature of the obligation, we must consider that which attaches to the circumstances of persons, time and place which arise from the foregoing uncontroverted evidence —§ 1057— and which apparently were not weighed by the trial court. There exists the fact that in constructing the theater with her husband, plaintiff herself had part of the building used as premises for the operation of a business which required therein the means for cooking food for the public; that Cobián individually in 1936 as well as the defendant in 1947 upon leasing the building already found persons holding these premises as sublessees operating that type of business, the presence of a stove with the necessary fuel for its use being consequently an ordinary or normal and not unusual act; that for thirteen years cooking was done in that place without this activity causing any threats of fire and the firemen inspected the business and never complained; the position of the premises which rendered the stove visible from any point thereof, and also the fact that when Rodriguez Pardo ceased holding the premises the person selected or tolerated by the defendant as sublessee was a high officer of the police force, on whom it could reasonably rely, due to his position, as a responsible and careful person aware of the risks of a fire. Under these facts and circumstances the diligence observed by the defendant in making periodical inspections *948and taking general care of the property was normally the proper one.\nThat evidence having been weighed 10 in the light of our decisions cited, of the applicable doctrine and provisions of the Code, we must conclude that there was no omission on the part of the defendant —§ 1057— in exercising the diligence required by the character of the obligation (slight fault of the father of the family, § 1445(2), “average or normal type of diligent person”) and which pertain to the circumstances of persons, time and place as indicated by the evidence.\nIn view of the foregoing the judgment appealed from is reversed and another will be entered instead, dismissing the complaints, with costs on plaintiffs, without attorney’s fees.\nMr. Chief Justice Negrón Fernández, Mr. Justice Pérez Pimentel and Mr. Justice Saldaña did not participate herein.\n\n The hearing of the case commenced on January 23, 1951 before the Hon. Pedro Pérez Pimentel and continued during March 13 and 14, ■with the introduction of all the evidence of both parties. The attorneys requested the transcript of evidence in order to prepare their briefs and pending these proceedings the Hon. Pedro Pérez Pimentel was appointed Justice of this Court. On November 30, 1953, more than two years later, a complaint of the intervener, Hanover Fire Insurance Co., was permitted, which alleged to have paid to the owner of the building, on June 30, 1949, the amount of $21,884.75 in payment of the loss she suffered for this fire and requested judgment against Cobián for said sum with interest from June 30, 1949. On March 18, 1954 a new hearing was held before the Hon. Jesús A. González and it was agreed to submit the case to him on the basis of the stenographic record. Three witnesses testified briefly before Judge González, two as evidence of rebuttal of the intervener and one as counter rebuttal of the defendant.\n\n\n The plaintiff limited herself to filing a notice of appeal without further steps to perfect it. Upon answering the defendant’s brief she has not discussed that part of the judgment which was adverse to her in the light of her claims.\n\n\n Section 1136 — 31 L.P.R.A. $ 3191 — under the heading referring' to the extinction of obligations provides: “An obligation, consisting in the delivery of a specified thing, shall be extinguished when said thing should be lost or destroyed without fault of the debtor and before he should be in default.” Section 1137 — 31 L.P.R.A. § 3192 — : “Whenever the thing should be lost, when in the possession of the debtor, it shall be presumed that the loss occurred by his fault and not by a fortuitous event, unless there is proof to the contrary and without prejudice to the provisions of section 1949.”\n\n\n IV-1 Derecho Civil Español 237.\n\n\n M. M. Traviesas, La Culpa, 13 Revista de Derecho Privado 273' (289).\n\n\n On this point José Castán Tobeñas states: “The essence of fault (.) is contained in the lack of diligence and foresight presumed on the part of the author of the act. In this sense the Civil Code defines a fault as ‘the omission of the steps which may be required by the character of the obligation, and which may pertain to the circumstances of the persons, time and place’ ($ 1.104).\n“ . . . . But in modern times, and as a reaction against the exaggerated complication of the Roman theories on degrees of fault, there has arisen that of judicial discretion, which surrenders the weighing-of the fault and the extent of its responsibilities to the sound discretion of the courts, on the basis, as De Diego says, that it will always be necessary for the judge to consider the special circumstances of each case, and then, when he is fully aware of them, no rules are needed to reach an equitable decision (1). The most modern codes follow this trend; thus the German Code makes the award of damages and the amount thereof dependent on the discretion of the judge who freely weighs the facts (§ 254, par. 1).\n“Our Civil Code establishes as a general test for the cases where the obligation does not state the diligence to be displayed in its fulfilment, that it should be the diligence observed by a good father of the family (§ 1.104, par. 2), which is taken as average or normal, type of diligent person (2). In this aspect the system of the Civil Code is influenced by the Roman system wherefrom it takes the type of slight fault (3). But it should be borne in mind that in defining fault, § 1.104, *935par. 1, in the afore-stated terms, part of a subjective point of view, which devolved on the courts to determine in each particular case the proper conduct, and therefore, the fault for which the debtor was liable (1). Furthermore, from another point of view, the Code is inspired on the theory of judicial discretion upon authorizing that the liability arising from negligence may be mitigated by the court, according to the case (⅞ 1.103). As a whole this system signifies progress, by the flexibility with which it permits to adapt the idea of fault to each concrete type.” 3 Derecho Civil Español, Común y Foral. (8th ed.), 146. In similar terms Puig Peña, op cit. at 245, 253, expresses himself, commenting on the old Roman theory of degrees of fault and diligence exercised: “Pursuant to the Code, one should only observe those steps which may be required by the character of the obligation, not in itself, but taking into account the circumstances of the persons, time and place. Only by way of suppletion, that is, when nothing transpires from the obligation or the latter is silent, it shall require the conduct to be observed by a good father of the family, which represents the average type of normal conduct (§ 1104, par. 2). In each case, then, the courts shall be the ones called upon to decide the standard of conduct, and whether for failure to observe it the debtor has committed fault.” And see VIII-1 Manresa, (5th ed.), 192 et seq.\n\n\n-3-Derecho Civil Español Común y Foral (8th ed.), 152-53. Castán explains:\n“The concept of fortuitous event integrated by these positive elements *944has had great historical preponderance, condensed in Vinnio’s famous definition: comme quod humano captu prsevidere non potest neo cui prseviso potest resistit’ (1). Its meaning has passed to many modern Codes including ours, as we have just seen, among others.\n“A great part of modern doctrine has challenged that traditional concept, adducing that in view of the variety of the notion of fortuitous event, because of the intimate relation that it must bear with the degree of diligence to be observed by the debtor in each concrete case, it is impossible to give a positive definition of a fortuitous event, but merely a negative concept or by exclusion, as fact not chargeable to fault of the debtor, which prevents fulfilment of the obligation (2).\n“But a good number of authors, like Giorgi, return to the traditional subjective concept, considering that it is the only one that does not permit confusion between excusable fault and the fortuitous event and the one that answers to the meaning of the Codes inspired by the Roman law (3).\n“The German Code follows the new criterion: it does not define the fortuitous event nor particularly speaks of it and identifies it with the impossibility of performing the undertaking (see ⅞ 275).\n“The Spanish Code is fundamentally influenced by the traditional concept; but actually it does not adopt a very clear standard in the face of the concept in question. Section 1.105 answers to the positive theory; but $ 1.182, similarly to $ § 1.122 and 1.147, seem to obey the negative theory. Valverde considers, without hesitation, that our Code accepts the classical concept of fortuitous event. Díaz Pairó (4) considers, as a rule, that preference should be given to the negative idea of the fortuitous event; but subsequently proposes a conciliatory solution. Puig Peña (1) does not risk an absolute deviation from the traditional formula and says that the positive theory of § 1.105 is the one most sought in our doctrine and jurisdiction.”\n\n\n IV-I Tratado de Derecho Civil, 245-46. Discussing the conflict in the doctrines as to what was the real essence of a fortuitous event, which some placed on “unforeseeableness” and others on “unavoidability” and the difficulties which have arisen therefrom in concrete cases, Puig Peña says that due to this a great number of text writers favor the negative theory or theory of exclusion, relating it to the complete absence of fault. Like Castán, Puig Peña indicates the adoption by our Code of the negative theory in § 1136 and others.\n\n\n Section 1733 of the French Code added specifically for the event of fire, provides that the lessee is liable for the fire -unless he proves that the fire was caused by a fortuitous event, vis major, or by a defect of construction or that the fire was communicated from an adjacent property.. Even so, Laurent comments, French Civil Code, Vol. XXV, p. 333: “It is wondered whether the facts enumerated by law are the only ones which the lessee is allowed to prove. Should it be interpreted in the sense that the evidence to be presented by the lessee consists in establishing- that the loss has taken place without his fault? These are the assertions of § 1732. Such is, in our concept, the meaning of § 1733; it is the opinion of the majority of authors and is sanctioned by the case law. But reasons for doubting are not lacking. There is more, we cannot admit all the reasons which are given in support of the opinion wfe set forth. (Author’s italics.) Section 1732 to which it refers, similar to our ⅞ 1453, provides that “the lessee is liable for the deterioration which has taken place during his enjoyment unless he proves that it has taken place without his fault.”\n\n\n We are in the same position as the trial court to weigh the evidence, since the case was submitted on the record, and as to the brief oral testimony presented before the lower court, we accept the manner it settled the sole conflict that arose with Cedeño’s testimony to the effect that he had already discontinued serving- food.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Submitted May 23, 1958.","precedential_status":"Published","slug":"cabinero-leon-v-cobian-theatres-of-puerto-rico"} {"attorneys":"Alton Lee Simpson, Appellant Pro Se. Frank DeArmon Whitney, United States Attorney, Steve R. Matheny, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.","case_name":"United States v. Simpson","case_name_full":"United States v. Alton Lee SIMPSON","case_name_short":"Simpson","citation_count":0,"citations":["202 F. App'x 621"],"court_full_name":"Court of Appeals for the Fourth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Fourth Circuit","court_type":"F","date_filed":"2006-10-13","date_filed_is_approximate":false,"id":8625141,"judges":"Gregory, King, Traxler","opinions":[{"author_str":"Per Curiam","ocr":true,"opinion_id":8604514,"opinion_text":"\nPER CURIAM:\nAlton Lee Simpson appeals the district court’s orders denying his motion claiming the court improperly delegated authority to the Bureau of Prisons to set a payment schedule pursuant to the Inmate Financial Responsibility Program for repaying restitution and denying his motion for reconsideration. We have reviewed the district court’s orders and the record and affirm for the reasons stated by the district court. See United States v. Simpson, No. 5:99-cr-00127-BO-3 (E.D.N.C. Nov. 4, 2005; Jan. 31, 2006). Rule 36 of the Federal Rules of Criminal Procedure does not entitle Simpson to relief as there was no clerical error. Relief was not available to Simpson in a motion for reconsideration or by filing a 28 U.S.C. § 2255 (2000) motion. 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.\n\nAFFIRMED.\n\n","per_curiam":true,"type":"020lead"}],"other_dates":"Submitted: Sept. 22, 2006.","precedential_status":"Published","slug":"united-states-v-simpson"} {"attorneys":"Matthew D. Foster, Pepper Hamilton LLP, Washington, DC, for Plaintiff., Betsy Eileen Lehrfeld, Swankin & Turner, Washington, DC, for Defendant.","case_name":"Consolidated Rail Corp. v. RAY, EX REL. BOYD","case_name_full":"CONSOLIDATED RAIL CORPORATION, Plaintiff, v. James T. RAY, for the Estate of Harold F. BOYD, Defendant","citation_count":1,"citations":["693 F. Supp. 2d 39"],"court_full_name":"District Court, District of Columbia","court_jurisdiction":"USA, Federal","court_short_name":"District of Columbia","court_type":"FD","date_filed":"2010-03-02","date_filed_is_approximate":false,"headmatter":"1. A town, whose charter embraces section 789 of the Code, has authority to issue license to retail spirituous liquors and to tax therefor.
2. If one who has paid such tax seeks to recover it back, it is for him to show that the ordinance imposing the license fee or tax' under the authority of the charter was illegally passed. Having paid the money and seeking to recover it, the onus is on the plaintiff; the presumption is that the ordinance follows the charter, and if it does not, the plaintiff must show it.
3. It matters not that the act of 1872, so far as it affects pre-existing charters and amends them, be unconstitutional as decided in 60 Oa., 404, if its provisions, codified from sections 774 to 797 inclusive, be by charter granted in 1875,' incorporated therein, they become part of the charter so granted at that time and are as valid as any other part thereof.
","id":5709295,"judges":"Jackson","opinions":[{"author_str":"Jackson","ocr":true,"opinion_id":5559251,"opinion_text":"\nJackson, Justice.\nThe town of Donglasville exacted a license fee or tax for retailing liquors at the rate of $150.00 per annum from the defendant in error, Johns; whereupon he sued the town to recover the money paid, and the jury found for him $225.00 principal, and $38.41 interest. The town moved for a new trial, and on its refusal excepted and brought the case to this court.\n1. The main question is, did the town have the right to exact the license tax ? That is to be answered by its charter. The charter is found in acts of 1875, p. 162, and in acts of 1876, p. 25, and in the Code, sections 774 to 797 inclusive. The act of 1876 incorporates these provisions of the Code into the charter of the town and makes them part thereof. Section 783 is thus made part of the charter, and that section is as follows :\n“ Whenever anything for which state license is required, is to be done within such town or village, the council may require a-town or village license therefor, and may impose a tax thereon, for the use of the town or village, and may require a bond with sureties conditioned as prescribed in section 779, payable to such town or village, in such penalt}1' as it may think propel’} and may revoke such license at any time if the condition of said bond be broken.”\n*426It is argued for defendant in error, that inasmuch as the state allowed the counties to issue these licenses by section 529 of the Code, until the act of February 25, 1876, therefore the words, “ state license,” did not authorize or embrace, or confer the power on the town to license ; and so the court below seemed to have held. But we think that the section cited does empower the town to tax and license retailers. The state operates through counties. The practical administration of justice and execution of law is entrusted by it to the counties. County license to retailers is by authority of the state and for the state, and the people thereof residing in that part of it embraced within the counties ; and in this particular section the intention of the legislature was to confer the power upon towns to tax for such license therein, whenever the state through the counties required such a license. The words would be without meaning otherwise.\nIndeed, such has ever been the law of Georgia, see Cobb’s Digest, p. 1038-39, acts of 1809 and 1838 ; and it seems to us clear that such was the intention of this section of the Code, being part of the act of 1872, and made part of this charter. Construing all our legislation in'pari materia and gathering light from our past history, all doubt vanishes. Hence the penal code prescribes punishment for retailing without license and has done so time out of mind, and the indictment had to negative the idea that the retailer had been licensed by a town or city. Cobb, 818; Code, §4565. We therefore hold that the power to levy this tax or license charge, is conferred by its charter on the town of Douglasville.\n2. Has the town exercised -the power ? The defendant in error has paid the tax and now seeks to recover it. The town exacted it of him. The presumption is that it passed an ordinance levying the tax or its marshal would not have collected it, nor would the defendant in error have paid it. As he seeks to get back money illegally exacted from him as he charges, he must show that it was illegally exacted. It *427is upon him to produce the minute book, and show wherein the ordinance was not legally enacted. He holds the affirmative. The town has the money. To get it he must show it has it wrongfully, and wrongfully took it from him. Therefore, we hold that it was for him, not for the town, to introduce the proper book — minute book — and to show that the power conferred by the'charter was illegally exercised.\n3. It matters not that the act of 1872 — embraced in these provisions or sections of the Code — from 774 to 797 — is unconstitutional, so far.as it undertook to amend charters, as held in 60 Ga., 404. The charter granted Douglassville in 1876, put these provisions in its organic law and made them part of itself. The legislature might have taken them from an English book or from a newspaper, and engrafted them on the charter ; when it did so, it became law to this town, and all its citizens.\nFor the reasons above set forth, we are of the opinion, that the charge of the court and the verdict of the jury; were and are illegal, and we must reverse the judgment overruling the motion for a new trial, and direct that the-same be granted, and the case tried in accordance with the-above views.\nJudgment reversed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"town-of-douglasville-v-johns","summary":"Municipal corporations. Powers. Taxe. Onus prolandi. Constitutional law. Before Judge Buchanan-Douglas Superior Court. July Adjourned Term, 1879. Johns brought suit against the town of Douglasville to recover $225.00 with interest, alleging that he had paid that amount for license to retail liquor in the town, and that the latter had no authority to exact it. Defendant pleaded the general issue. The evidence was, in brief, as follows : In October, 1875, Johns went to Douglasville for the purpose of engaging in the retail liquor trade. Before he could engage in the business, he was required to pay a license tax at the rate of one hundred and fifty dollars a year; and on October 5, 1875, he paid the sum of $37.50 for a license to January 5, 1876; on that day, he gave promissory notes, payable quarterly, for his license to January 5, 1877; and on the last named date, he paid $37.50 for the next quarter’s license. The promissory notes have all been paid voluntarily; none of them were paid until after due, and some of them had been placed in the hands of a justice of the peace for suit; the marshal made the collections, and turned the money over to the treasurer. The jury found the plaintiff $225.00 besides interest. Defendant moved for a new trial on the following, among other grounds: (1.) Because the verdict is contrary to law and the evidence. (2.) Because the court rejected the ordinance of March 10, 1875, amended October 4, 1875, imposing a license tax of $150.00 per annum on retailers. This ruling was based on the ground that the council had no power to make such an ordinance at the time it was passed. (3.) Because the court charged, in effect, that prior to February 1876, the town had no authority to require such a tax, and if any was so required and collected, it was illegal, and plaintiff could recover the amount paid with interest; that although since February 1876, the town had a charter power to assess such a tax, yet not having since then passed any ordinance for that purpose, a requirement and collection of the tax without such ordinance would be illegal, and money so paid could be recovered, with interest. The motion was overruled, and defendant excepted. For the other facts, see the opinion."} {"attorneys":"W. E. Sutiles and W. I. Heyward, for plaintiff., Moore & Pomeroy, for defendant.","case_name":"Howell v. Chomsky","case_name_full":"Howell v. Chomsky","case_name_short":"Howell","citation_count":0,"citations":["133 Ga. 674"],"court_full_name":"Supreme Court of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Supreme Court of Georgia","court_type":"S","date_filed":"1909-12-24","date_filed_is_approximate":false,"id":5726747,"judges":"Lumpkin","opinions":[{"author_str":"Lumpkin","ocr":true,"opinion_id":5577011,"opinion_text":"\nLumpkin, J.\nThere was no abuse of discretion in refusing to grant an injunction.\n\nJudgment affirmed.\n\n\nAll the Justices concur.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued June 11,","precedential_status":"Published","slug":"howell-v-chomsky","summary":"Petition for injunction. Before Judge Pendleton. Pulton superior court. April 7, 1909."} {"attorneys":"Niles L. Garrett for Defendant and Appellant., Thomas C. Lynch, Attorney General, Eilizabeth Miller and Mark W. Jordan, Deputy Attorneys General, for Plaintiff and Respondent.","case_name":"People v. Scott","case_name_full":"THE PEOPLE, and v. TRACY SHELTON SCOTT, and","case_name_short":"Scott","citation_count":0,"citations":["255 Cal. App. 2d 721"],"court_full_name":"California Court of Appeal","court_jurisdiction":"California, CA","court_short_name":"California Court of Appeal","court_type":"SA","date_filed":"1967-11-07","date_filed_is_approximate":false,"id":5805004,"judges":"Fourt","opinions":[{"author_str":"Fourt","ocr":true,"opinion_id":5660199,"opinion_text":"\nFOURT, J.\nThis is an appeal from a judgment of conviction (upon a plea of guilty) of issuing checks without sufficient funds and an appeal from a judgment of conviction of forgery.\nOn about October 27, 1964, defendant with counsel pleaded guilty to a complaint charging a violation of section 476a, Penal Code (superior court case numbered 295,971). Proceedings were suspended, defendant was placed on probation for five years, a part of the terms being that he make restitution, obey the laws and not possess or write any checks and not have a bank account upon which he could draw checks. For good reason probation was revoked on March 17, 1966. On August 25, 1966, defendant was sentenced to the state prison, the term to run concurrently with the sentence in superior court case numbered 303,276.\nIn an information filed in Los Angeles on April 20, 1965, (case numbered 303,276) defendant was charged in count I with forgery in that he did on January 28, 1965, forge a cheek for $332.67 with intent to defraud John Fairchild, Associated Manufacturing Company, Inc., Altadena Federal Savings & Loan, and Union Bank, Pasadena branch. In count II defendant was charged with forgery in that he did on February 1, 1965, forge a cheek in the sum of $982.52 with intent to defraud the institutions above named in count I. It was further charged that defendant previously had been convicted of a felony, namely, of writing cheeks without sufficient funds. Defendant denied the charged prior conviction and pleaded not guilty to counts I and II of the information. Defendant was found guilty as charged in counts I and II and the charge of the prior convictions was found to be true. Defendant was sentenced to the state prison on counts I and *719II, the term to ran concurrently with the sentence imposed in case No. 295,971. Defendant has appealed from both judgments.\nA résumé of some of the facts is as follows: Defendant’s wife had spent some time in a California women’s penal institution and there she met Patricia Springer whom she later introduced to her husband. In December 1964 Patricia Springer was released from prison on parole (while Mrs. Scott was still serving her sentence) and she immediately contacted appellant to obtain some personal belongings which he was keeping for her. Scott, who was then self-employed in the trucking business, thereafter began to see Patricia Springer regularly and soon became intimate with her. She moved into his apartment and he rented a car for her.\nDuring this period Scott persuaded Patricia Springer, who previously had served time in prison for grand theft, to seek employment in the accounting or bookkeeping department of some office where she might obtain access to checks or money. In mid-January 1965, Patricia Springer found employment with an agency that supplied temporary office help and was assigned to work in the accounting department of the Associated Manufacturing Company. There she made unauthorized use of payroll and general obligation checks by printing several with the eheckwriter in various amounts payable to “ T. S. Scott. ’ ’ When she gave these checks to defendant they were without maker’s signature, and she testified that the forged signatures of two company officers were drawn in by another acquaintance, Mike Ross. Associated Manufacturing Company owed no money to T. S. Scott. Defendant, however, indorsed at least two such cheeks in the amounts of $332.67 and $982.52, respectively, cashed them, and opened an account at a savings and loan institution with the proceeds. Within a few weeks Scott closed his account by withdrawing the entire balance.\nWhen the checks were returned by the bank to Associated Manufacturing Company, Patricia Springer removed them and either gave them to Scott, or otherwise disposed of them. Ultimately, the bank noticed a discrepancy on a check forged with the signatures of Associated Manufacturing Company officers and alerted the company. Apparently it thereafter held the checks for the company officers. The two checks constituting the counts upon which Scott was convicted were presented in evidence and identified by the company officers and Patricia Springer.\n*720Scot.t. testified in Ms own defense that he had loaned Patricia Springer money which she later had repaid with checks drawn on Associated Manufacturing Company. Further that the checks were signed by the makers when he received them and that she had told him that they were given to her by friends to repay his loans to her. There were three checks wMch he had cashed. Further, that he had used the money to pay his attorney and to open a bank account. He testified also that the total amount of the checks and the money received from her exceeded his loan to her and that he had returned the balance to her in cash. He also stated that he had left Patricia Springer when his wife returned from prison, and that Patricia Springer had become angry and had threatened to get even with him. When Patricia Springer was first arrested, she refused to implicate Scott; however, she later changed her story and testified that Scott had instigated the crimes.\nAppellant now contends that he was convicted upon the uncorroborated testimony of Patricia Springer, an accomplice to the crime. Such is not the ease. There was independent corroborative evidence adequate to sustain Scott’s conviction by intimately connecting him with the crime. (People v. Luker, 63 Cal.2d 464, 469 [47 Cal.Rptr. 209, 407 P.2d 9]; People v. Lyons, 50 Cal.2d 245, 257 [324 P.2d 556]; People v. Lewis, 222 Cal.App.2d 136, 144 [35 Cal.Rptr. 1].) Scott endorsed the checks and negotiated them in the presence of John Quinn of Altadena Federal Savings and Loan Association, who identified Scott, the checks and their amounts, and the savings account transactions. The checks at that time bore the unauthorized, forged signatures of two officers of Associated Manufacturing Company; each officer testified that he had not authorized the preparation or signatures upon the checks. Appellant concedes that he received checks totalling $1,600 payable to him and drawn upon an unknown company by makers identified only as “friends” from Patricia Springer, who had just been released from prison. Neither the company nor the officers owed him any money; Patricia Springer owed him only $700 and by his own testimony he negotiated the cheeks and returned the excess proceeds to her in cash. According to the authorities hereinbefore cited, this evidence sufficiently corroborated Patricia Springer’s testimony.\nAppellant further contends that his conviction cannot stand because his accomplice’s testimony was impeached. *721The weight to be accorded to impeached testimony lies within the judgment of the trier of fact. (People v. Johnson, 21 Cal.App.2d 673, 674 [70 P.2d 198].) We have determined that Patricia Springer’s testimony was sufficiently corroborated to render it competent, admissible evidence. The decision of the trier of fact will not be disturbed unless upon no hypothesis whatever there is sufficient substantial evidence to support the conclusion on appeal. (People v. Tostado, 217 Cal.App.2d 713, 718 [32 Cal.Rptr. 178]; People v. Villegas, 213 Cal.App.2d 63, 66 [28 Cal.Rptr. 546].) The court, which was required to weigh the evidence and determine the credibility of witnesses, was entitled to believe the accomplice’s testimony. This evidence demonstrates that Scott set in motion all forces contributing to the crime by persuading Patricia Springer to obtain a position where she had access to checks and thereafter to make unauthorized use of such checks. Appellant knew when he received and negotiated the checks that he was not entitled to the money, and it may be presumed that he knew that the makers’ signatures were forgeries. He, nonetheless, exercised dominion and control over the funds thereby represented for his own benefit The evidence was sufficient to establish his guilt.\nReference is made either by appellant or by respondent to the judgment in case numbered 295,971; presumably, appellant makes no contention with reference to the judgment in that case. In any event, the record seems clear that appellant pleaded guilty to the charge and was properly sentenced.\nScott’s attempted appeal from the order denying probation is dismissed; such orders are generally nonappealable. (People v. Mason, 109 Cal.App.2d 87, 89 [240 P.2d 64]; People v. Ross, 206 Cal.App.2d 542, 543 [24 Cal.Rptr. 1].)\nThe judgment in superior court case numbered 295,971 is affirmed.\nThe judgment in superior court ease numbered 303,276 is affirmed.\nWood, P. J., and Lillie, J., concurred.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-scott"} {"case_name":"Los Angeles County Department of Children & Family Services v. Maria N.","case_name_full":"In re HARRY N., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, and v. MARIA N., Defendants MANUEL P., Movants and Appellants ROSA S., Objectors and","citation_count":0,"citations":["93 Cal. App. 4th 1378"],"court_full_name":"California Court of Appeal","court_jurisdiction":"California, CA","court_short_name":"California Court of Appeal","court_type":"SA","date_filed":"2001-11-28","date_filed_is_approximate":false,"id":5808782,"judges":"Cooper","opinions":[{"author_str":"Cooper","ocr":true,"opinion_id":5664148,"opinion_text":"\nOpinion\nCOOPER, J.*\nHarry N. (the Minor), bom mid-January 1999, was declared a dependent of the juvenile court soon after his birth. He was bom with symptoms of drug withdrawal; both parents had histories of drug abuse, and his father had a history of arrests and convictions for violent offenses. He is currently in the care of respondents, his foster parents, with whom he was placed virtually at birth and who wish to adopt him.\nBoth the Los Angeles County Department of Children and Family Services (the Department) and the Minor’s paternal aunt and uncle appeal from *1381orders of the juvenile court. Appellants all argued for placement with the paternal relatives, who live in Puerto Rico. The court ordered that the Minor remain with the foster parents and that the adoption by them be set for finalization.1 The court also ordered that the Minor not be removed from the home of his foster family without prior court order. The Department’s appeal is from the order after a hearing under Welfare and Institutions Code section 366.26.2 Manuel and Aleida P., the paternal uncle and aunt who wish to adopt the Minor, appeal from the juvenile court’s order denying their section 388 petition.\nThis appeal presents an unusual and difficult factual situation. As observed by the juvenile court, “the difficulty is unusual because we have two families who wish to take care of Harry for the rest of his life.” At least as of the time the juvenile court’s decision was made, both prospective adoptive families received excellent reviews and were considered by the juvenile court to be appropriate parental choices for the Minor. Although the juvenile court ultimately sided with the foster parents, who had cared for the Minor since he was days old, the court did not express the view that placement with the paternal relatives in Puerto Rico would have been an abuse of discretion by the Department. Indeed, in most of the dependency cases we see, placement with a loving, responsible, biologically related family would be a welcome alternative for children within the system. Had these relatives lived in California instead of in Puerto Rico, where there was a delay in the home study, it is likely the Minor would have been taken from the foster family and placed with them early in the process.\nThe legal question presented to us by the parties is whether the Department or the court has the right to determine the specific family in which a dependent child will be placed for adoption once parental rights have been terminated and whether there is a statutory preference for the caretaker family in the circumstances of the case at bench. We hold that, absent an abuse of discretion, the Department has been given the authority to place dependent children in an adoptive home following termination of parental rights. The statutory “preference” for the caretaker family is that their application shall be processed and, if satisfactory, the family study “shall be completed before the processing of the application of any other person . . .” *1382(§ 366.26, subd. (k)), not that the caretaker family will automatically become the adoptive parents, although that frequently occurs. We shall therefore reverse and remand the matter for further proceedings consistent with this opinion.\nProcedural History and Statement of Facts\nWithin two weeks of the Minor’s birth, the Department filed a section 300 dependency petition. The minor, who was transferred to a neonatal intensive care unit at one day old, was detained and placed with the S’s. He had been bom two months early, with a positive drug screen.3\nOn January 29, 1999, the court found a prima facie case for detaining the Minor; vested temporary placement and custody with the Department; and gave the Department the discretion to release the Minor to any appropriate relative.\nThe jurisdictional/dispositional hearing report for February 19, 1999, stated that Mother was bom in Chicago but went to Puerto Rico with her parents as a young child. She met Father, a native of Puerto Rico, where relatives of both still live. The social worker opined that the foster mother “has the expertise to meet most of [the Minor’s] emotional and physical needs at this time in her foster home.”\nOn February 19, 1999, the juvenile court ordered the amended petition sustained in large part; declared the Minor a dependent of the court; and ordered family reunification services. Parents were to have visits not less than twice a week, and as often as could be arranged.4\nA status review hearing report was prepared for August 6, 1999, when the Minor was six months old. The report stated that the foster parents “are providing excellent care and supervision for the Minor. They have provided him with a safe [and] stable home and environment” and the Minor “appears to be happy and thriving in his placement” and was bonding with the foster mother. In addition to the Minor, the foster parents cared for a biological daughter and an adopted daughter. According to the report, the Minor had been taken to many doctor visits, including in late July, when he stopped *1383breathing and became red and the foster mother reported reviving him with mouth-to-mouth resuscitation.5\nThe foster mother also reported that the Minor’s parents had stopped visiting in late March. However, on July 7, 1999, the paternal grandmother called regarding taking custody of the grandchild. She made “numerous telephone calls” and arrived from Puerto Rico to visit with the Minor. The paternal grandmother and a paternal aunt and uncle all visited with the Minor on July 27, and the grandmother and uncle visited on July 29, 1999.\nThe foster mother had been contacted by the adoption unit in early July 1999. The adoption assessment dated July 16, 1999, recommended adoption by the current caretaker, who stated she and her husband loved the Minor “very much” and wanted to adopt him. The CSW’s report also noted: “Additionally, Mrs. [P.], Minor’s paternal grandmother, living in Puerto Rico arrived in Los Angeles the week of July 25, 1999 and had 2 visits with the Minor in a neutral setting. She continues to desire to receive the child.”\nThe paternal grandmother and an aunt appeared at the hearing on August 6, 1999. Mother and Father also appeared. The court was informed that the “grandmother is here from Puerto Rico and would very much like the Minor placed with her.” The court stated: “It does appear that the Department is evaluating through the D.I.F. referral the grandmother in Puerto Rico, and I certainly think that would be the most appropriate placement also, ffl] I am ordering that the Department make every effort to place this child through the D.I.F. placement unit in Puerto Rico as soon as possible, assuming that it is appropriate.” Moreover, “If the child could not for any reason be placed with the paternal grandmother, then certainly the Department should be looking at [another paternal relative, who lives in Carson.][6] There is no reason with two relatives present that appear appropriate that this child should remain in foster care.” The court specifically ordered the Department to evaluate the paternal grandmother in Puerto Rico “forthwith.”7\nOver parents’ objections and after denial of their request for a hearing on the reasonableness of the reunification services, reunification services were *1384terminated. The court found the present placement was appropriate and ordered that the paternal grandmother first and then the paternal aunt be evaluated forthwith for placement. Moreover, the court decided that the Department had the discretion to release the Minor to any appropriate relative. The matter was continued for a permanent plan hearing scheduled for December 8, 1999.\nBy the time of the December 8, 1999, hearing, the Department recommended termination of parental rights and that the Department proceed with adoption planning.8 The section 366.26 hearing report noted that the paternal grandmother had returned to Puerto Rico. The likelihood of adoption was reported to be “excellent” by either the paternal grandmother, paternal uncle, or foster mother. The grandmother, who was unknown to the Department before July 1999, planned to adopt the Minor.9 She was “highly motivated in gaining custody and adoption” and stated the child “is of her blood, and needs to be in a family home, not a [stranger’s] foster home.” The grandmother had called frequently from Puerto Rico as to the status of the home study and transfer of the child to her custody. However, despite her calls to the Puerto Rican Children Services, the home study report from Puerto Rico had not yet been received, possibly due to the “frequent closure of government offices due to the large number of hurricanes.”\nThe foster mother still wanted to adopt. The Minor was “happy when foster mother reentered the room” and there was “a good bonding” with the foster mother, who reported that the Minor continued to get sick regularly.\nA different referee conducted the December 8, 1999, hearing. Mother and Father both appeared. The paternal grandmother and a paternal aunt were present. Counsel for the Minor asked for a continuance, stating that the report was not adequate for the section 366.26 hearing. She believed “there was a misunderstanding by the Department” regarding placement of the child in Puerto Rico and “it was not the intention of the court and, in fact, the code requires that preference by given to the current caretaker of the child. Those individuals do wish to adopt this child, and they must be considered first, under the code.” Counsel for the Department agreed that a supplemental report was in order and stated “we did do an evaluation of the *1385foster home and found that when we were recommending placement with the foster mother, it is just not contained in today’s report.” Because of the misunderstanding, the Department also asked the matter be put over for a supplemental report.\nCounsel for Father asked that family “be given priority and especially in this case where tremendous efforts have already been made in that regard by the grandmother in Puerto Rico. She has tried to move mountains to make this happen and has been in regular contact with the Department here . . . .”\nThe Department was to continue evaluating the home of the grandmother in Puerto Rico, not place the Minor there, and was to prepare a report addressing the feasibility of adoption by the foster mother as well as the DIF (Desarrollo Infantil Familiar) update. The court ordered the Minor not to be moved absent prior order of the court unless there was an emergency. A request to approve a family vacation in Mexico with the foster parents was denied without prejudice to bringing in medical evidence that the trip would be appropriate.\nOn December 14, 1999, there was a walk-on request for the Minor to accompany the foster parents on a holiday visit to Mexico. A report was prepared on the feasibility of taking the Minor on vacation to Mexico. The Department recommended against the trip, given Minor’s prior medical assessments and fragility, even though two doctors had cleared the travel.\nCommissioner Losnick again presided on December 14, 1999. Grandmother was present. Over objection of the Department, Father, and Mother, the vacation request was granted.10 The Department’s request for a stay of the visit to Mexico was also denied. The court further ordered that the paternal grandmother could visit the Minor as often as possible while she was in Los Angeles.11\nA supplemental section 366.26 report was prepared for February 1, 2000, when the Minor was 13 months old. There had been no participation by the parents,, so termination of parental rights was recommended. The report indicated that, fortunately for the Minor, there were several prospective adoptive parents. The paternal grandmother had been “anticipating the placement of the Minor with her since her first contact with this CSW in July 1999 when the international placement referral was made.”\n*1386A paternal uncle, Manuel P. and his wife, Aleida, were also evaluated. They are the relatives who, along with the Department, are appellants in the matter before us. The uncle, 36 years old, has a bachelor’s degree in criminal justice and has been employed for 11 years with the police in Puerto Rico. His wife was in the fourth year of criminal justice studies and has been employed as a secretary. They do not have a child and are both receptive to adopting the Minor. “They feel they can offer the Minor a home within his family Puerto Rican tradition. Also, they are resolved to raise the child within their union as they have no other children.”\nThe DIF report on the paternal relatives was attached to the report but had. not yet been translated. The court was informed that the report favored adoption with the paternal uncle “as he provides more resources, larger home and means to provide for the medical care for the minor.” The CSW could not reach the uncle as the telephone had been disconnected.\nFurthermore, the foster parents were evaluated. They are a licensed foster home. Mr. S., bom in 1953, in Mexico, was the fifth of seven children; he attended school until the ninth grade in Mexico, attended an English training school in California, and was employed for 11 years as a missile assembly operator. Mrs. S., also bom in Mexico, was the ninth of nine children and attended school until the 11th grade. They came from the same town, knew each other as youths, and married in Mexico when he was 24 and she was 23 years old. She stopped outside employment in 1992. Their natural children are a 21-year-old son and 15-year-old daughter, both of whom live at home and attend school. They adopted now five-year-old Carrie S. The family has bonded with the Minor “immensely” and has given him “more than adequate care and love.” The siblings refer to the Minor, who has been in their home since he was two weeks old, as their brother.\nA status review hearing report was prepared for the February 1, 2000, hearing. The Minor reportedly “continued to receive excellent care at the home of his foster parents.” He “appeared to be happy and thriving in his placement.” The trip to Mexico was cancelled “due to extended family problems and Mrs. [S.] breaking her big toe.” A copy of the home study from Puerto Rico was received on January 14, 2000, in Spanish; it had not yet been translated.\nThe pediatric rehabilitation department at Miller Children’s Hospital submitted a report based on a December 9, 1999, evaluation. The Minor was doing well, had made great progress, and his foster mother “appears very devoted to him . . . .”\n*1387At the hearing on February 1, 2000, the juvenile court terminated parental rights. Moreover, the court found it likely the Minor would be adopted. The court ordered that the Minor was not to be moved without prior order of the court and asked for a report for the next hearing to include the date of finalization of adoption hearing. Moreover, the court viewed a photograph of the Minor and stated he looked “quite healthy and happy to me. Though we were given information earlier in his life that he was frail, he does not appear to be frail in that picture.” Father’s counsel added, “I know that the court does not have the authority to choose the adoptive family, but for the record, it is Father’s wish that his mother, the paternal grandmother, be the person to adopt this child.”\nGrandmother Maria P. in propria persona filed a section 388 petition on April 26, 2000. She sought to modify foster care “because he is my grandson and love him and I know I can take good care of him.” Petitioner sought a hearing on the petition. The court denied the petition in that “parental rights have been terminated and petition fails to show a change of circumstances” and “on the ground that it does not appear that the best interests of the child(ren) may be promoted by the proposed change of order.”\nOn about June 21, 2000, there was a walk-on request for curtailment of visits by the paternal grandmother and other parties. On May 30, 2000, counsel for the foster parents had written to the Department stating a social worker had visited the foster mother and “told her that the minor will most likely be moved to the home of his biological grandmother in Puerto Rico.” On July 21, 2000, the court granted the walk-on request for modification of visits and, over the Department’s objections, ordered there be no visits for any birth relatives for the child until the next hearing.\nOn August 1, 2000, the date for the next scheduled hearing, the foster parents filed a motion for de facto standing/status. The foster mother’s declaration detailed her care for the Minor, her desire to pursue adoption, and the infrequency of visits by the paternal relatives. The Minor’s pediatrician attested to the “strong emotional bond and affection” between the Minor and his foster mother and opined that separating the Minor from the foster family would be against his best interest and injurious and detrimental to the Minor’s well-being and development.\nThe CSW’s report for August 1, 2000, recommended the Minor be placed with the paternal uncle, Manuel P., and his wife, Aledia, and requested authorization for the Minor to accompany the paternal family to Puerto Rico.\n*1388The paternal relatives had visited twice in July 1999, once in August 1999, once in July 2000, and were scheduled for a visit on July 24, 2000.12 The paternal uncle, his wife, and the grandmother traveled from Puerto Rico in May 2000, but a visit with the Minor was not arranged.\nHowever, the report indicated that the Minor continued “to receive excellent care from his foster parents . . . and has a close relationship with the [foster] family.” Moreover, the CSW observed the Minor “constantly hugging [the foster mother] during the home visits.” He was still receiving weekly in-home physical therapy for development of his motor skills. Home studies were being completed for both the foster family and the paternal grandmother, uncle, and aunt, all of whom wanted to adopt the Minor. The aunt and uncle stated that “Harry’s arrival to their home would be the best blessing.” The foster mother stated she “loves Harry and wants to adopt him.”\nAt the August 1, 2000, hearing, given the opposition to both motions, the court asked for response and reply briefs on the motions filed by the foster parents and the paternal uncle to be de facto parents. The paternal aunt, uncle and grandmother were permitted at least two visits with the Minor, with the foster parents and the social worker, if desired, present. The court specified that the child should be allowed to play and sit without coercion or cajoling. The matter was continued to September 18, 2000, for a hearing on the motions and to address Minor’s placement.\nThe paternal uncle filed a section 388 petition on August 7, 2000. He declared that he and his wife wanted visitation with the Minor pending further hearing and wanted the Minor to visit in Puerto Rico. He and his wife were desirous of adopting the child but were informed the foster mother opposed the adoption.\nThe Department filed a brief stating it was not opposed to the de facto parental status motion of the foster parents or the section 388 motion filed by the paternal relatives. In addition, the Department sought an order permitting placement of the Minor with his paternal relatives for adoptive placement. As it does on appeal, citing section 366.26, subdivision (j), and Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 734-735 [68 Cal.Rptr.2d 239] (Theodore D.), the Department argued it has the authority to replace a child absent a showing that the Department has abused its *1389discretion. Furthermore, it argued that placement of the Minor with his paternal relatives, who had maintained constant contact and a request for adoption, served the Minor’s best interests.\nMinor’s counsel argued that the Department’s authority to place children for adoption is not absolute; that the Minor is bonded to his foster family, and the current placement is appropriate. Relying on section 366.26, subdivision (k), the Minor’s counsel asked the court to order the Department to process the application of the foster parents to adopt the Minor.\nThe CSW’s report for September 18, 2000, recommended that the Minor be placed with the paternal uncle and his wife. Furthermore, the Department requested authorization for the Minor to accompany the relatives to Puerto Rico, with a one-way airline ticket for the Minor. The paternal relatives had visited the Minor three times in August 2000.13 Although there were some transportation problems, the visits “went well” and the paternal uncles, aunt and paternal grandmother “continued to demonstrate a commitment in adopting their relative child.” The aunt is infertile, loves children, and this adoption “represents a dream come true for her and her husband, and possibly the only opportunity to become parents.”\nThe report also stated that the Minor had been in the foster home since he was an infant and “has a close relationship with the [foster] family,” who still wish to adopt him. The foster parents had provided the Minor “with a nurturing home environment.” The foster mother stated she loves the Minor and wants to adopt him.\nThe foster parents and all the paternal relatives were present at the September 18, 2000, hearing. The court started “by indicating . . . this is probably one of the more difficult types of cases that this court has to decide. These are very delicate issues. The circumstances are unfortunate, frankly, in the way that the relatives found out about Harry and the fact that this child was placed with the [S.’s] early in his life.”\nThe court granted the foster parents’ de facto parent motion. The parties then argued the issue of placement, with the Department contending that, absent an abuse of discretion, where a child will be placed prior to adoption is “within the purview and exclusive control of the Department . . . .” Furthermore, it would not be an abuse of discretion to place the child with a *1390paternal aunt and uncle who have requested adoption from an early stage, have visited Los Angeles from Puerto Rico at their own expense to visit the boy, and through no fault of theirs but because of reasons beyond their control have been unable to claim custody of the Minor.\nCounsel for the foster parents argued that concession of their de facto parent status admitted they are the psychological parents of the Minor and in effect conceded that any change in the current status “would necessarily be disruptive to Harry’s life.” While agreeing “in the abstract” that the abuse of discretion standard applied, counsel did not concede it was the only standard that applied. Instead, when the Legislature decided that following termination of parental rights the court was not to look from the standpoint of the parents, it also should not look from the standpoint of other relatives. Citing section 366.26, subdivision (k), counsel argued that the caretaker has a “head start” in the adoptive process and should be permitted that leg up as “the people who have demonstrated love, concern, compassion, daily care, control, and custody of that child.” Furthermore, stating it was “unfortunate” the Department did not act quickly and the family members waited so that “so much time has passed,” counsel argued it would be an abuse of authority to disrupt Harry’s life from the only family he has known.\nCounsel for the paternal aunt and uncle argued that they came forward over a year ago and have complied with everything the Department has asked them to do. For whatever reason, the Department did not get the Minor on the plane to Puerto Rico, but that was not the fault of the paternal relatives. The Minor has done well with the P.’s when he has been with him, and counsel offered to produce testimony about that relationship. Moreover, the paternal grandmother is also available to provide care.\nCounsel for the Minor argued that the Department could have placed the Minor with the relative in Puerto Rico very easily early on but did not choose to do so. Such a placement could have been made when reunification services were terminated in mid-1999. In the meantime, the Minor continued to be in a home with good people who have cared for him. Finally, the issue was a legal one for the court, and section 366.26, subdivision (k), mandates a preference for the foster parents who have cared for the child.\nThe Department responded that the Department could not have placed the child with the paternal relatives until an Interstate Compact for Placement of Children was completed, which did not occur until January 2000, just prior *1391to the section 366.26 hearing where parental rights were terminated.14 Moreover, there is a familial preference from the detention until the section 366.26 termination of parental rights, and then the Department has the exclusive control unless it is being arbitrary or capricious.\nIn explaining its decision, the court stated it had no reason to believe that either the foster parents or the paternal relatives “are not sincere, good, well-intentioned families, both of whom want to provide a stable environment and family for this child. [^] [T]his case is not about whether the [S.’s] or the [P.’s] would be better parents. I will take it for granted that each of you . . . would be excellent parents. That’s not what we’re here for today.” Moreover, had the paternal family known about the child, “they would have stepped forward even sooner. These are very unfortunate circumstances, frankly.”\nThe court noted that one could not seriously argue that a child is not impacted from a change of placement at 18 months. The court agreed with the statutory interpretation that section 366.26, subdivision (k), indicates a preference for the caretakers. “There are innumerable good reasons for that. In this particular case the [foster parents] had this child placed with them at birth. They are the parents, as far as this child is concerned. The court does not see a reason why they couldn’t adopt this child.\n“The court did make an order at [the Minor’s counsel’s] suggestion over the Department’s objection that the child not be moved without prior court order. I will, frankly, tell you, and I will through the record of the appellate court that the reason I make those orders not to move children without my further approval is the very nature of this case which is when children are moved from people who had them placed with them with the intention and hope and dream and support of adopting, and the Department moves the children to another placement, be it a relative or not a relative.”\nThe section 388 petition filed August 7, 2000, was denied. In addition, the court ordered the Minor was not to be replaced into any other home or moved without prior court order from the home of the foster family. Adoption was to remain the plan. The court allowed visits with the paternal relatives in the days they would be in town and suggested that “should the adoption go forward, that the [relatives] get to be a part of the child’s life.” However, the court would not order the visits to be outside the presence of the foster parents. The report for the next hearing was to include the date set for finalization of adoption hearing.\n*1392The Department, which had filed a rehearing motion, withdrew that motion, stating the withdrawal was “not to be construed as a waiver of any and all appellate” or other rights. On November 14, 2000, the Department filed a notice of appeal from the juvenile court’s “order of September 18, 2000.” Represented by a new attorney, the paternal aunt and uncle filed a notice of appeal from the “denial of the 388 petition on Sept. 18, 2000.”\n\nPostappeal proceedings in the juvenile court\n\nAs referenced in the Department’s reply brief and in its opposition to Minor’s motion to dismiss the appeal and remand for further proceedings in the juvenile court, the Department filed a section 388 petition on June 6, 2001. Responding to the court’s order of February 10, 2000, that the Minor not be moved without prior order of the court, the Department asked that that order be changed and that the Department should be allowed the discretion to suitably place the Minor with the paternal aunt and uncle as prospective adoptive parents. This request was made in light of the May 15, 2001, denial of the home study for the foster parents and the recommendation by the adoption staff that the Minor should be placed with his paternal aunt and uncle, with the goal of adoption.\nAccording to the exhibits attached to the Department’s papers, the foster parents were informed by letter that the Department was “unable to approve you as an adoptive applicant for the minor . . . based, on but not limited to the following information; you are not allowing this child to reach his developmental milestones. For example, after reviewing the case notes, there were recommendations made by the Regional Center when Harry was 23 months of age, that a pre-school program is needed for him to address his cognitive and language delays. You were not willing to follow the Regional Center recommendations, therefore the minor’s delayed language skills and socialization skills have not been addressed.”\nIn addition, though the Minor’s “primary physician states that he is a normal healthy child,” the Department was concerned that the Minor “had an excessive amount of medical appointments that resulted in many dosages of medicine and antibiotics. For example, during this first year of life, eight different doctors saw Harry at four different offices. While the majority of the visits were to Dr. Takla or his associates, doctors in South Gate and Montebello also saw Harry. Antibiotics were prescribed at least three times and he was seen in the Emergency Room twice, for a total of 25 visits. [f] In Harry’s second year of life, in a fourteen-month period, Harry was seen 31 *1393times by Dr. Venegas and was taken to the Emergency Room five times. He was given antibiotics at least ten times. [|] These were 33 visits in his 2nd year of life, five Emergency Room visits. The current total of medical appointment for Harry (who is only 27 months of age) has been at least 60 visits and 7 Emergency Room visits. The doctor is seeing Harry more frequently at this age, than when he was an infant.”\nThe Department concluded from this pattern “that a number of Harry’s illness or doctor’s visits were exaggerated to prevent visits with his relatives, [f] The above concerns raise questions as to whether or not your home is the best environment for this minor.”\nAn ex parte application filed by the Department, dated May 30, 2001, outlined in detail the foster parents’ alleged obstruction of visitation by the paternal aunt and uncle following a March 19, 2001, statement by the juvenile court giving the Department discretion to arrange such visits, including overnight visits. The CSW’s interviews with the Minor’s pediatrician, the hospital and the public health nurse were included. His pediatrician thought Puerto Rico “will be great for Harry” and was surprised at the medications given by other doctors and the length of the foster mother’s administration of an antibiotic he had prescribed.15\nFurther, the foster mother had objected to further visitation with paternal siblings in San Pedro after a December 1999 visit, saying they “were too wild and that ‘my home is not a kindergarten.’ ” Visits in April and May 2001 with those siblings went well when supervised by the paternal aunt and uncle.\nThere were several specific instances where the foster parents reportedly obstructed visits with the paternal relatives, one in which the foster father was “spitting mad” and shoved the child at the CSW. There were angry objections to an unannounced visit by the CSW, who saw that the Minor was healthy and relaxed despite reports by the foster family and their attorney that he was “becoming increasingly sick with each visit.”\nOn May 18, 2001, the foster parents appealed the Department’s decision to deny the adoptive home study and requested an immediate hearing. They argued that the CSW “was predetermined to deny the [S.’s] adoption home study.”\n*1394Contentions on Appeal\nThe paternal aunt and uncle contend: 1. They have standing to appeal the denial of their section 388 petition since they are aggrieved by the court’s decision.16 2. The court erred in denying placement with them since they had an approved home study and the Department recommended the Minor be placed with them. 3. Notwithstanding section 366.26, subdivision (k), the application of the foster parents is not required to be granted by the court merely because the child has lived in that home since birth.\nThe Department contends: 1. The juvenile court’s only role should have been to review the Department’s placement decision for an abuse of discretion. 2. The Minor may be placed with paternal uncle Manuel P. within the guidelines set forth in section 366.26, subdivision (k).\nRespondent foster parents contend: 1. The juvenile court appropriately ordered that the Minor not be removed from his de facto parent placement. 2. The section 388 petition was properly denied. 3. Application of section 366.26, subdivision (j), to the extent it grants the Department complete discretion concerning a minor’s placement without judicial oversight, is inconsistent with public policy and this state’s expressed position that changes of placement should be avoided.\nThe Minor filed a letter brief and request for dismissal arguing that postbriefing occurrences, primarily the Department’s denial of the foster family’s home study for adoption and the juvenile court’s consideration of a section 730 evaluation to address harm to Harry by a move from his family, make dismissal of the appeal and remand to conduct a hearing on the Minor’s best interests would be preferable to considering this appeal.\nThe Department opposed the motion to dismiss and/or remand. As discussed above, in its opposition the Department attached the section 388 *1395petition it filed June 6, 2001, and supporting papers. The superior court file, with which we have augmented the record on appeal, states that the motion was denied on June 12, 2001, the written order stating that “this matter and issue is currently before the court of appeals [jzc].”17\nThis division denied the motion to dismiss and remand on June 20, 2001.18\nDiscussion\n1. Appellants have standing, and this appeal is not an impermissible collateral attack on the April 27, 2000, order.\nPreliminarily, respondents contend that the paternal aunt and uncle’s section 388 petition, from the denial of which their appeal is taken, cannot properly seek review of the placement because the petition was more limited in its request. In addition, respondents argue that the Department’s appeal is an impermissible collateral attack on the April 27, 2000, order and that the Department should not be able to seek review by appealing the September 18 order. Although the paternal relatives’ appeal must be reviewed as a denial of a section 388 petition, many of the issues presented may be raised. In any event, the Department’s appeal is timely and appropriate given the changing circumstances presented at each hearing in the juvenile court. (See § 395; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250-1251 [98 Cal.Rptr.2d 844] [postdispositional orders are separately appealable and must be appealed within 60 days].)\n2. Interaction of the applicable statutes.\nIn the case at bench, the Department recommended adoption by the Minor’s paternal aunt and uncle in Puerto Rico. The court acknowledged that the paternal aunt and uncle were appropriate and made no findings as to *1396whether the Department had abused its discretion in making its decision. Nevertheless, for reasons set forth above, the juvenile court ordered the Minor placed with his foster parents. The parties argue about the application of various statutes.\nAppellants rely in large part on subdivision (j) of section 366.26, which provides: “(j) If the court, by order or judgment declares the child free from the custody and control of both parents, or one parent if the other does not have custody and control, the court shall at the same time order the child referred to the State Department of Social Services or a licensed adoption agency for adoptive placement by the agency. However, no petition for adoption may be granted until the appellate rights of the natural parents have been exhausted. The State Department of Social Services or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption is granted. With the consent of the agency, the court may appoint a guardian of the child, who shall serve until the child is adopted.” (Italics added.) Appellants point out that, had Manuel and Aledia P. lived in California, the Minor would likely have been placed with them long before the hearing in February 2000. (See § 361.3 [preference for placement with relative when child is removed from the physical custody of parents].)\nRespondents rely heavily on subdivision (k) of section 366.26, which they contend affords foster parents a preference over all others who attempt to disturb that relationship. Subdivision (k) provides: “Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child’s emotional well-being, [f] As used in this subdivision, ‘preference’ means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.” (Italics added.)19 The statute gives the caretaker or foster parent preference in that “if satisfactory, the family study shall be completed *1397before the processing of the application of any other person for the adoptive placement of the child.” (§ 366.26, subd. (k).) That language gives preference in time for processing the application but does not necessarily mandate that other applications will not also be considered.\nCase authority supports appellants’ view that, absent an abuse of discretion, the Legislature has given the power to the Department, not the court, to decide where a child should be placed after parental rights are terminated and pending adoption. (Theodore D., supra, 58 Cal.App.4th 721, 724-725, 733-734 [“Absent a showing that DSS’s placement decision is patently absurd or unquestionably not in the minor’s best interests, the court may not interfere and disapprove of the minor’s placement.”]; accord, Los Angeles County Dept. of Children etc. Services v. Superior Court (1998) 62 Cal.App.4th 1, 10-11 [72 Cal.Rptr.2d 369].)20\nThe court in Theodore D., supra, 58 Cal.App.4th 721, 736, distinguished C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 918 [106 Cal.Rptr. 123], decided decades before under different statutes, and where the children were removed from the home of prospective adoptive parents, not the case in Theodore D. The court in C.V.C., supra, 29 Cal.App.3d 909, 918-919, concluded that prospective adoptive parents were entitled to a trial de novo in superior court before a child was removed from their home and were entitled to judicial review of the agency’s decision using the independent judgment standard.\nIn re Stephanie M., supra, 7 Cal.4th 295, reversed a decision of the Court of Appeal which would have favored a Mexican grandmother over the child’s foster parents. Our Supreme Court upheld the juvenile court’s determination on the best interest of the child and held its determination should “not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]” (Id. at p. 318.) The Department in In re Stephanie M. agreed with the placement decision of the juvenile court and along with the minor petitioned for review (id. at p. 302), so the Supreme Court did not need to discuss or decide the issue before us, where the Department and the *1398juvenile court differ as to a placement decision. Similarly, in In re Sarah S. (1996) 43 Cal.App.4th 274, 279 [50 Cal.Rptr.2d 503], the Department and the juvenile court agreed that the proper placement was with the foster parents who had been caring for the child.21 We agree with the line of cases that, absent an abuse of discretion, gives the Department authority for placement at this stage in the proceedings. The Department has been given the resources for investigation and evaluation of the placement decision. The juvenile court’s role is to decide if there was an abuse of discretion in the decision.\nAppellants argue there was no abuse of discretion in the Department’s choice of adoptive parents for the Minor. (In re Mark V. (1986) 177 Cal.App.3d 754, 759 [225 Cal.Rptr. 460]; Los Angeles County Dept. of Children etc. Services v. Superior Court, supra, 62 Cal.App.4th 1, 10, 12.) To be sure, the juvenile court agreed that the paternal relatives would give the Minor a wonderful home. The Department argues that in such a case, where the Department’s decision was not arbitrary, capricious or absurd, the juvenile court exceeded its own powers as limited by statutory and case law and its judgment should be overturned.\nRespondents counter that the Department is statutorily and constitutionally limited in exercising its discretion to remove a child from a foster parents’ home. (§ 366.26, subd. (k); see C.V.C. v. Superior Court, supra, 29 Cal.App.3d 909, 915-918.) [same court as later Theodore D., 58 Cal.App.4th at pp. 724, 731-733].) Moreover, in choosing the paternal relatives instead of the foster parents, the respondents contend that, under the facts of this case, the Department abused its discretion, another ground for affirming the decision of the juvenile court.22\nGiven the applicable law, we must reverse the juvenile court’s decision because it did not give the appropriate weight to the Department’s recommendation. We remand for the juvenile court’s consideration of whether the Department abused its discretion in making the recommendation. However, significant time has elapsed and circumstances may well have changed in *1399either or both families seeking to adopt the Minor and perhaps even in the Department’s recommendation in light of any changing events. We, like all the parties to this appeal, are most concerned with the best interests of the Minor, a child loved by two families, only one of which can adopt him.\nWe shall therefore reverse and remand for further proceedings in the juvenile court. In reviewing the decision of the Department, the juvenile court may consider circumstances that have arisen following the filing of this appeal.\nDisposition\nThe orders appealed from are reversed, and the matter is remanded for further proceedings consistent with this opinion.\nBoren, P. J., and Nott, J., concurred.\n\nPresiding Justice of the Court of Appeal, Second Appellate District, Division Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.\n\n\ninitially, the Department acknowledged that the foster mother had given the Minor excellent care and that there was no reason to believe she will act against his interests, but that the Minor’s very best interests were to be placed with his caring and loving biological parents. By the time the reply briefs were filed, the Department was reporting that the foster parents had engaged in dangerous parenting practices and was not recommending them as adoptive parents.\n\n\nUnless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.\n\n\nThe parental rights of the Minor’s mother (Mother) and father (Father) have been terminated, and they are not parties to this appeal. At the time of Minor’s detention, Mother had an 11-year-old daughter living with the maternal grandmother in Puerto Rico. Father had three children living in San Pedro with their mother. By August 6, 1999, Mother had stopped visiting and reportedly told the foster mother “they are giving her the child.”\n\n\nThe foster mother was under the impression that the visits were limited to one hour once a week. So counsel requested more frequent visits.\n\n\nThe incident was said to have occurred on July 29. The foster mother took the baby to Dr. Takla on July 30 and reported the matter to the CSW (children’s social worker) during her August 4 visit.\n\n\nThat “aunt” was the girlfriend of father’s brother. The court stated, “They may want to get married to be placement options.”\n\n\nThe initial order was for the evaluation to be “as soon as absolutely possible with discretion to place this child with her.” When counsel pointed out that the grandmother had already contacted the Department, and the Department had discretion with placement with relatives “and nothing has happened,” the court changed the order to evaluation “forthwith.”\n\n\nThe Department also asked that the court deny any request from the Minor’s attorney for the Minor to accompany his foster mother to Mexico, based “on the need for the child’s availability for possible placement in Puerto Rico upon receipt of a report from International Placement. Additionally, the recommendation is based on Minor’s fragile health.”\n\n\nThe grandmother was described as a 53-year-old Puerto Rican national, a divorced mother of six, with one adult son living with her. She is a nurse and works at a local hospital and has no criminal history. Another son would be willing to care for the Minor if for some reason the grandmother could not do so.\n\n\nOne objection to the trip was that the grandmother had traveled from Puerto Rico to see Minor and was trying to adopt the child, and the trip would interfere with her ability to visit him.\n\n\nCounsel for the father informed the court that the grandmother had had a visit the previous Friday and had tried to schedule another visit but the “foster mother apparently indicated that she couldn’t do that until she had some kind of authorization from the court.” The court replied: “Obviously, she’s traveled a far distance, and to be able to see this child once would be [woefully] insufficient.”\n\n\nDuring that visit, the Minor first clung to the foster mother. When the CSW accompanied the paternal relatives, without the foster mother, for a visit in a park, the Minor and paternal relatives, the CSW “observed the child and paternal family members taking pictures, playing together, and exhibiting affection via hugs and kisses. Toward the end of visit, the child Harry was [initiating] the kisses.”\n\n\nThe visits to Los Angeles since the Minor’s birth have cost the parental relatives over $5,000 in travel expenses alone. The total trip takes more than 10 hours from Puerto Rico to Los Angeles, with seven and one-half hours on the airplane. This amount of money does not include the expenses to retain an attorney.\n\n\nThe court agreed.\n\n\nHowever, a letter from Dr. Venegas allegedly left out many of the details of their conversation.\n\n\nTheir standing is not contested by respondents to the extent that they are aggrieved by the denial of the section 388 petition. However, as respondents point out, their section 388 petition asked only that the court’s order staying visitation be lifted and that the relatives be permitted a visit with the minor in Puerto Rico. There was no request for adoptive placement made in the section 388 petition from which the paternal relatives appeal. Given the visitation granted on September 18, 2000, respondents argue that the paternal relatives’ appeal from the section 388 petition is “entirely without merit.”\nFurthermore, respondents argue that the Department is prevented from seeking review of the April 27, 2000, order denying the requested change of placement because, although a party aggrieved by that order, it neither petitioned for a writ or appealed the April order. (See Adoption of Alexander S. (1988) 44 Cal.3d 857, 866-868 [245 Cal.Rptr. 1, 750 P.2d 778].)\n\n\nIn addition, the superior court file contains a section 730 evaluation conducted by a psychologist at the request of the juvenile court. The evaluation was filed August 2,2001; and the matter was on that date continued until September 17, 2001.\n\n\nIn response to the Minor’s brief and in its reply brief, the Department produced new evidence that the foster parents “are seriously deficient caretakers.” Among the more serious charges is the report that the foster parents mistreated other foster children in their care by leaving for vacation in Mexico and placing the children in the care of an unapproved relative, who beat the children. The same report stated inter alia that the foster parents blocked the Minor’s visits with siblings and sabotaged attempts by the paternal aunt and uncle to visit the child.\n\n\nRespondents also rely on Family Code section 8704, subdivision (b), in analyzing Welfare and Institution Code section 366.26, subdivision (j). However, Family Code section 8704, subdivision (b), applies only “[a]fter the adoption petition has been filed,” at which *1397time “the department may remove the child from the prospective adoptive parents only with the approval of the court” and with supporting motion, notice, and affidavits. Subdivision (a) of Family Code section 8704 supports the Department’s “exclusive custody and control of the child until an order of adoption is granted’ and specifically recognizes the Department’s discretion to terminate any placement. (See Theodore D., supra, 58 Cal.App.4th 721, 732-733.)\n\n\nAppellants concede that the court may overrule the Department’s placement decision if it is patently absurd or unquestionably not in the minor’s best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [27 Cal.Rptr.2d 595, 867 P.2d 706].)\n\n\nThe court in In re Sarah S., supra, 43 Cal.App.4th 274, 276-277, without discussing section 366.26, subdivision (j), held that section 361.3 “does not apply to a placement made as part of a permanent plan for adoption. Once the juvenile court determines that reunification efforts have failed, the only statutory preference in the adoption process is for a ‘relative caretaker or foster parent’ as provided in subdivision (k) of section 366.26.” Because the Department and the court agreed on placement, there was no need to discuss subdivision (j).\n\n\nBoth sides argue that their position is in the child’s best interest, which must always be considered. (In re Sarah S., supra, 43 Cal.App.4th 274, 511, fn. 13; In re Stephanie M., supra, 7 Cal.4th 295, 320.)\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"los-angeles-county-department-of-children-family-services-v-maria-n"} {"case_name":"Rosenthal v. Kelly","case_name_full":"In the Matter of Philip Rosenthal v. Ann M. Kelly, and Philip Simon","case_name_short":"Rosenthal","citation_count":0,"citations":["275 A.D.2d 429","713 N.Y.S.2d 128"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"2000-08-23","date_filed_is_approximate":false,"id":6189560,"opinions":[{"ocr":true,"opinion_id":6055795,"opinion_text":"\n—In a proceeding pursuant to Election Law § 16-102, inter alia, to validate petitions designating Philip Rosenthal as a candidate in a primary election to be held on September 12, 2000, for the nomination of the Democratic Party as its candidate for the public office of Trustee in the Village of Spring Valley, the appeal is from a final order of the Supreme Court, Rockland County (Sherwood, J.), dated August 9, 2000, which denied the petition and dismissed the proceeding.\nOrdered that the final order is affirmed, without costs or disbursements.\nThe petitioner alleged that the respondent Philip Simon abandoned his domicile in the Village of Spring Valley, and therefore his position as a Trustee in the Village of Spring Valley became vacant.\n“For a change to a new domicile to be effected, there must be a union of residence in fact and an ‘absolute and fixed intention’ to abandon the former and make the new locality a fixed and permanent home” (Matter of Hosley v Curry, 85 NY2d 447, 451, quoting Matter of Newcomb, 192 NY 238, 251). The party alleging the change of domicile has the burden of proving the change by clear and convincing evidence (see, Matter of Hosley v Curry, supra). Under the circumstances, the petitioner has failed to meet his burden. Mangano, P. J., Thompson, Sullivan, Krausman and Goldstein, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"rosenthal-v-kelly"} {"attorneys":"E. Willard Jones, for executor; J. W. Rayhill, for Elizabeth Owens, legatee.","case_name":"In re Judicial Settlement in the Estate of Jones","case_name_full":"Matter of Judicial Settlement in the Estate of Jane Jones","citation_count":0,"citations":["6 Mills Surr. 288","56 Misc. 421","107 N.Y.S. 1030"],"court_full_name":"New York Surrogate's Court","court_jurisdiction":"New York, NY","court_short_name":"New York Surrogate's Court","court_type":"SS","date_filed":"1907-11-15","date_filed_is_approximate":true,"headnotes":"Wills—Interpretation and construction—Terms creating legacies, etc.—Bules and implications—General demonstrative or specific legacies.
Where a testatrix, after a bequest to her sister, gave her husband the use of certain real property during his life with power to sell it and provided, if he should sell, the legacy to the sister should be paid from the proceeds; and where such real property was not sold by the husband in his lifetime but was sold by the executor after the husband’s death, under a discretionary power of sale, for a price sufficient to pay the debts of the testatrix and the legacy to her sister; and where there was no personal estate out of which such legacy could be paid, held, that the legacy should be paid out of the proceeds of such sale; and the executor could not divert the same to the payment of expenses of administration and other legacies, nor would such proceeds fall into the residuum of the estate, leaving such legacy unpaid.
","id":6278593,"judges":"Sexton","opinions":[{"author_str":"Sexton","ocr":true,"opinion_id":6146595,"opinion_text":"\nSexton, S.\nThe executor in this estate has filed his final account, and asks for a final decree distributing the estate.\nIn the first clause of the will the testatrix directed that all lawful debts be paid, then bequeathed $200 to her sister, Elizabeth Owens. By the second clause she devised to her husband, absolutely, the blacksmith shop property and the life use of their home in Trenton village, then further provided: “Also, I give and bequeath unto my aforesaid husband the use of my lot on ¡street leading from aforesaid Trenton Village towards Steuben, *289for and during the life of my aforesaid husband, and I hereby empower and authorize my aforesaid husband to sell, convey, transfer, deed, and deliver in my name and stead the aforesaid vacant lot on street leading from aforesaid Trenton Village toward Steuben, to pay and cancel my unpaid debts and the bequest of $200 to my aforesaid sister, and of the balance, after such payment of the sum arising from the aforesaid sale, publicly or privately held, I give and bequeath the use to my aforesaid husband for and during his life.”\nThe testatrix then bequeathed $600 to a daughter of said Elizabeth Owens, and $200 equally to nephews, to be paid after the death of her said husband, and “ all the residue, rest and remainder of property both real and personal,” she then gave absolutely to her adopted daughter, Hannah Griffith, and appointed Ellis W. Griffith executor, with power to sell and convey “ real estate or any part thereof, as he, my said executor, thinks advisable.”\nThe husband never sold the lot, and upon his death all the real estate in which he had a life use was sold by the- executor. The lot described in the second clause of the will brought $260. The homestead sold for $1,200. There was no personal property. The debts of the testatrix amounted to $45.50. All legacies, debts and expenses of administration have been paid except a balance of $190 on the Elizabeth Owens legacy. There remains in the executor’s hands $339'.75 for distribution.\nIt is contended that this balance should go into the residuum, because it cannot be legally used to pay the Elizabeth Owens legacy, for the reason that said legacy and debts of testatrix were expressly charged on the vacant lot, under the second clause of the will, and that the husband was directed to sell it to pay said legacy and debts, and not having sold it the legacy cannot be paid out of the general estate. This contention is untenable, for the reason that the husband was not directed to sell, but *290“ empowered and authorized ” only. The language used by the testatrix creates a naked power which in law is not above the dignity of a permission. The property in question was a vacant lot of about four acres. It seems reasonable that the power of sale was given to the husband to enable him to dispose of the lot in case it should prove unremunerative. If he sold, he was directed to pay said legacy and debts, and have the life use of any balance then remaining. He could sell the lot clear of the legacy and debts. They were not made a charge or lien thereon, and only in the event of a sale were they at all involved. The lot was sold by the executor after the death of the husband, under a discretionary power of sale, for $260. This amount would more than pay the legacy of $200 and the debts of $45.50. If the lot was charged with the payment of said sums, as contended, it was the duty of the executor to have so applied the said proceeds. Instead, he used the money, all but $10, toward debts and expenses of administration. He afterward sold the balance of the real estate, under the power given him, for $1,200, and paid $800' in discharge of general legacies. The executor’s construction of the will evidently was, that, there being no personal property, the real estate should pay the legacies, except that the husband should have sold the vacant lot and paid the Owens legacy. He having failed to sell and pay, the proceeds of the sale thereof, the executor contends, must go to the residuary legatee. The testatrix showed more concern about the security of the Owens legacy than of any other. It is absolute, and first given in the will, and protected in case of the sale of the lot by the husband. If the husband had exercised his power of sale, he would have been obliged to pay this legacy and the debts out of the proceeds ; and the only portion of the proceeds that would fall into the residuum would be the amount realized in excess of $245.50, which amount would pass to the executor as such on the death of the husband. 'Can it be possible, because of the failure of the husband to sell, all the proceeds of the lot fall into the residuum ? *291I think not. The fact that the executor was empowered to sell the lot in question is evidence of the fact that the testatrix did not give, or intend to give, the husband a mandatory and exclusive power of sale. Nor did she intend that the legacy should lapse or her debts go unpaid, in the event of failure on the part of the husband to sell.\nThe will was made October 11, 1903, and testatrix died November 21, 1903, and must have had the amount of her property in mind, and must have known that she had no personal property with which to discharge legacies, and must have known that, if they were to be paid at all, the money must come from a sale of the real estate, of which she had sufficient for that purpose. It is hard to believe that a rational person would provide for her sister in her will, in the amount of $200, intending that it should not be paid to her.\nThe testatrix had no children. She had adopted Ann Griffith, the residuary legatee. It is plain that the testatrix was sincere in the gift of all the legacies. The claims of blood are remembered and considered. She gave her sister, Elizabeth Owens, $200. The household effects, upon the death of her husband, she gave to said sister and to a niece, equally. She gave $600 to a daughter of Elizabeth Owens and to two nephews $200 to be divided equally. To her husband she devised the blacksmith shop property and the use of all household effects and real estate while he lived. Upon his death the executor was authorized to sell all real estate. There was real estate more than sufficient to pay all debts and legacies, and no personal property applicable to the payment thereof. These legacies were not meant to be nugatory or unavailing. They were general legacies and gifts made with knowledge in the testatrix that she had nothing but real estate: out of which they could be paid.\nThe testatrix undoubtedly intended to charge the legacy to-Elizabeth Owens upon the real estate, within the established rules applicable to the question, as settled by many adjudica*292tions. Lefevre v. Toole, 84 N. Y. 95; Hoyt v. Hoyt, 86 id. 142; Scott v. Stebbins, 91 id. 605; McCorn v. McCorn, 100 id. 511; Morris v. Sickley, 133 id. 456; Hogan v. Kavanaugh, 138 id. 417.\nThe residuary clause of the will gives “ all the residue, rest and remainder of property, both real and personal, of every name and nature,” etc., to said adopted daughter, Ann. Griffith. There being no personal property, it must be held that the intention of the testatrix was to- have the three money legacies, aggregating $1,000, paid from the proceeds of all the real estate.\nIn this State, where the language of the will blends the entire estate, both real and personal, into one residue, after giving legacies, and indicates the intention of the testator to be to give, by the residuary clause, only such residue as shall be found to remain after the satisfaction of the previous disposition of the will, the legacies are a charge upon the real estate. Forster v. Civill, 20 Hun, 284; Hall v. Thompson, 23 id. 335; Lefevre v. Toole, supra.\nI hold that the balance of the legacy to Elizabeth Owens of $190 must be paid out of the proceeds of the real estate, and the residue to the residuary legatee.\nA decree will be entered accordingly.\nDecreed accordingly.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-judicial-settlement-in-the-estate-of-jones","summary":"Proceeding upon the final settlement of the accounts of an -executor."} {"attorneys":"Gary A. Friedberg, with him Barry Goldstein, and Modell, Pincus, Hahn & Reich, for appellant., Kenneth W. Mahowshi, Acting Chief Counsel, with him J. Leonard Langan, Assistant Attorney General, for appellee.","case_name":"In re Revocation of Restaurant Liquor License No. R-149","case_name_full":"In the Matter of Revocation of Restaurant Liquor License No. R-149 and Amusement Permit No. AP-149, Issued to Firenze Tavern Corporation Firenze Tavern Corporation","citation_count":0,"citations":["42 Pa. Commw. 440"],"court_full_name":"Commonwealth Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Commonwealth Court of Pennsylvania","court_type":"SA","date_filed":"1979-05-04","date_filed_is_approximate":false,"id":6492547,"judges":"Crumlish, Mencer, Rogers","opinions":[{"author_str":"Rogers","ocr":true,"opinion_id":6365228,"opinion_text":"\nOpinion by\nJudge Rogers,\nFirenze Tavern Corporation has appealed from an order of the Court of Common Pleas of Philadelphia County upholding, after a de novo hearing, an order of the Pennsylvania Liquor Control Board suspending the appellant’s restaurant liquor license for ten days. The offense charged was that of permitting persons on the licensed premises to solicit or entice others for the purpose of the purchase of beverages.\n*442The first point raised by the appellant is that there is a fatal inconsistency between Section 493(25) of the Liquor Code,1 which prohibits licensees from employing or permitting the employment of females for the purpose of enticing customers to drink or buy drinks, and the regulation of the LCB2 under which it was charged, which provides that no licensee may permit any person to entice another person for the purpose of the purchase of drink. The exact point in issue was decided against the appellant’s position in Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 150 A.2d 112 (1959).\nThe appellant’s second point seems to be that the proofs were insufficient to support the lower court’s inference of fact that the appellant’s bartender knew that females were soliciting drinks in the appellant’s bar. We disagree. No purpose would be served by repeating the investigating officer’s testimony accurately described in Judge Abraham Gafni’s able opinion for the court below, to which reference may be had. The evidence clearly supports the inference that the appellant’s bartender knew that women were soliciting drinks.\nThe appellant finally says the hearing judge erred in admitting the investigating officer’s account of what the person who allegedly asked him to buy her drinks said to him at the bar in the presence of the bartender. The appellant says that this was inadmissible hearsay. If the Judge ruled incorrectly in this regard the error was harmless because the conversation objected to, as it developed, was without relevance to the offense charged. The officer’s testimony that the woman asked him to buy her drinks went into the record at another place without objection.\nOrder affirmed.\n*443Order\nAnd Now, this 4th day of May, 1979, the order below filed April 13, 1978 is affirmed.\n\n Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-493(25).\n\n\n 40 Pa. Code §13.101.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"Argued April 2, 1979,","precedential_status":"Published","slug":"in-re-revocation-of-restaurant-liquor-license-no-r-149"} {"attorneys":"Reavis & Reavis and I. E. Smith, for appellant., Roscoe Anderson, Edwin Walloon -and' S. P. Davidson, contra.","case_name":"Svanda v. Svanda","case_name_full":"Fannie Svanda v. Frank Svanda, Sr.","case_name_short":"Svanda","citation_count":0,"citations":["86 Neb. 203"],"court_full_name":"Nebraska Supreme Court","court_jurisdiction":"Nebraska, NE","court_short_name":"Nebraska Supreme Court","court_type":"S","date_filed":"1910-03-10","date_filed_is_approximate":false,"disposition":"\nReversed with directions.\n","headnotes":"1. Deeds: Delivery: Acceptance. A deed conveying real estate was duly executed and delivered to the scrivener by whom it was written, with instructions to forward it to the register of deeds for record, the grantee being present and assenting thereto. Held, That this consituted a delivery to and acceptance of the deed by the grantee, and the title was thereby vested in the grantee.
2. Specific Performance: Evidence. Plaintiff alleged that before the date of the execution of a deed to real estate she was an unmarried woman; that defendants, the father and mother of an unmarried man, agreed and promised her, in consideration that she would marry their son, they would give and convey to them jointly a designated 160-acre tract of land; that, relying upon their promise, she was married to the son. In a suit for specific performance of the contract, it was shown that subsequent to the marriage a conveyance of a tract consisting of 120 acres of said land was made to plaintiff and her husband, the deed being delivered to a third party to be placed upon record, such delivery being agreed to and accepted by the grantees without objection. Held, That by those acts the title to the land conveyed vested in the grantees jointly upon such delivery, and that plaintiff could not maintain a subsequent action for the specific performance of the contract to convey the 160 acres.
3. ■——■—; Relief. In such case, where it was shown that the grantor, without the consent of plaintiff, obtained the return of the deed to him and destroyed it, the court should refuse to enforce specific performance, but should by proper decree confirm and quiet the title of plaintiff in - the land conveyed, the prayer of the petition being for general relief.
4.-: Pleading: Homestead. In such case, where the answer alleged that a portion of the land claimed by plaintiff constituted the homestead of defendants, and no reply was filed denying such allegation, the decree of the district court denying any relief will be reversed, with direction to allow the pleadings to be reformed, if desired, and ascertain whether the land conveyed by the husband alone included any part of the homestead, and, if so, such part, not exceeding $2,000 in value, be excluded from the decree.
5. Vendor and Purchaser: Deeds: Destbttction. The destruction by the grantor of a deed conveying real estate, after delivery and without the consent of the grantee, will not divest the grantee of title, the possession of the deed having been obtained by the grantor without the consent of such grantee.
","id":6775770,"judges":"Reese","opinions":[{"author_str":"Reese","ocr":true,"opinion_id":6658996,"opinion_text":"\nReese, C. J.\nThis action was commenced in the district court for Richardson county for the specific performance of a contract for the conveyance of real estate described in the petition as the east half of the northeast quarter of section 20 and the west half of the northwest quarter of section 21, all in township 2 north, of range 13 east of the sixth P. M., in Richardson county. It is averred in the petition, in substance, that on the 3d day óf March, 1907, she was an unmarried woman of the age of 17 years, and was in the employ of defendants, Frank Svanda, Sr., and Aloisia Svanda, his wife, and that their unmarried son, Frank Svanda, Jr., was living with his parents as a member of *205the family; that the parents of Frank, Jr., on divers times suggested to plaintiff that she become the wife of the young man, and proposed to her, as an inducement to such marriage, that they would convey to the young couple jointly a certain tract of land consisting of 160 acres, the conveyance to be executed as soon after the marriage as it could be conveniently done; that under this arrangement the plaintiff and the said Frank Svanda, Jr., who is made defendant herein, were married, said marriage and the conveyance of the land having been previously agreed to by the parents of both parties; that soon after their marriage the defendants, Frank Svanda, Sr., Frank Svanda, Jr., and plaintiff, went to the city of Humboldt, and a deed of conveyance was executed by Frank Svanda, Sr., to plaintiff and her husband, but which was not accepted by them as not in accordance with the agreement; that at a later date the same parties went to the city of Humboldt, and another deed was prepared and executed by the said Frank Svanda, Sr., and delivered to plaintiff and her husband; that said deed did not comply with the former agreement, but that plaintiff was ignorant of the legal effect of some of its provisions and the deed was accepted by them, and was by the said Frank Svanda, Sr., delivered to the notary by whom it was written, and before whom it was acknowledged, to be by him sent to the register of deeds of Eichardson county for record; that upon their return to the home of the defendants the said Frank Svanda, Sr., becoming angry at plaintiff because she declined to submit to his advances, telephoned to some one in Humboldt to see the notary and direct him not to send the deed to Falls City for record, but to return the same to him. It is alleged that the execution of the two deeds was such a recognition of the contract to convey, and, with the marrige, such part performance thereof, as fo remove all defense or excuse for the failure of performance; that soon after the. execution and delivery of said deed her husband, under the influence of his parents, abandoned her, and has refused to make provision for *206her, and the defendants, Frank Svanda, Sr., and his wife, Aloisia Svanda, have refused to make said conveyance as agreed, and that from the beginning their aim and design Avas to practice a fraud upon her, and that they never intended to comply with their said contract, but that they desired said marriage in order to secure the services of plaintiff as a “common drudge to do the work of their household.” It is alleged that she has fully performed her part of the said contract, and insists that defendants comply with theirs. The prayer is for specific performance of the contract conveying to plaintiff an undivided half of the land in question, or if the court is of the opinion, by reason of subsequent conveyances having been made by defendants of said property, that specific performance cannot be decreed, that an accounting be had of the value of the land, and that a decree be entered in her favor for a sum of money equal to one-lialf the value of the land promised and agreed to be conveyed, and for general relief. A copy of the deed last executed, and Avhich it is alleged was delivered to her and her husband, is attached to the petition as an exhibit. The petition is of unusual length, but it is believed the foregoing contains the essential averments sufficient to an understanding of the questions presented.\nThe defendants filed their joint answer, admitting their relationship to each other; that Frank Svanda, Sr., is the owner of the real estate in question, and deny all other averments in the petition. They specifically deny the promise or agreement to convey the land described in the petition, or any portion thereof, to plaintiff and her husband; allege that they had no knowledge of the contemplated marriage.until after it had been consummated, and that “there Avas no contract of any sort entered into or considered and discussed betAveen Frank Svanda, Sr., and Aloisia Svanda and this plaintiff and Frank Svanda, Jr., by which said Frank SA'anda, Sr., and Aloisia Svanda were to convey said lands, or any portion thereof, to plaintiff and Frank Svanda, Jr., until about two weeks after *207said marriage had been consummated between plaintiff and Frank Svanda, Jr.” It is alleged that the lands mentioned in plaintiff’s petition are and were at the time the alleged contract was made the home and homestead of said Frank Svanda, Sr., and Aloisia Svanda, the same being occupied as such by them; that while they never agreed to convey any of said land to plaintiff and Frank Svanda, Jr., in contemplation of said marriage, or to induce them to intermarry, still Frank Svanda, Sr., in order to comply with the urgent request of plaintiff, offered to convey to her and Frank Svanda, Jr., a portion of the lands, subject to a life tenancy therein of himself and wife, but that his wife, Aloisia- Svanda, refused to join in said conveyance; and deny that the offer to make such conveyance was in the attempted consummation of any antenuptial agreement. No reply was filed. The trial resulted in a finding and decree dismissing plaintiff’s petition. Plaintiff appeals.\nFrom reading the petition, answer and bill of exceptions, we receive the impression that the cause was tried upon the contention of plaintiff that an antenuptial contract was made whereby the defendants Frank Svanda, Sr., and wife agreed to convey to their son and his wife the 160 acres of land designated, in consideration of their marriage, and that when the marriage was consummated they became dissatisfied with the contract, and exerted an influence over the son and induced him to abandon his wife and join them in defeating her rights, and, by his aid, avoiding the contract. As alleged in the petition' and shown by the evidence, the defendants, after the marriage of plaintiff to their son, transferred their real estate, including the land in question, to the different members of the family, and which it was alleged was for the purpose of defrauding plaintiff. But, upon the suggestion of counsel in the argument, that this part of the case would require no attention here, that part of the pleadings has been omitted from our statement of the issues. Much of the attention of the trial court, as well as of counsel, was *208devoted to the question of whether the marriage, even if plaintiff’s contention that an antenuptial contract was made, Avas such a part performance as to take the contract out of the statute of frauds. HqAvever, Ave are persuaded that that question is not involved in the case, and it will not he considered.\nThe evidence shows beyond controversy that, after the marriage of plaintiff to the junior Svanda, they and the senior Svanda went to Humboldt, and a deed of some kind was prepared by AAdiich certain real estate, or some interest therein, was conveyed to the young people, but, the deed not being satisfactory, it Avas not delivered, nor accepted, and was destroyed. No copy of that deed appears in the record, nor are its contents given. At a later date the same parties again went to Humboldt, and applied to another notary, and another deed Avas prepared by him which was accepted by all parties as being correct, and the deed was, by mutual consent, entrusted to the notary to be sent to Falls City for record. The parties returned to their home. After their arrival at their home defendant, Frank Svanda, Sr., telephoned to a friend in Humboldt to go to the notary, get the deed, and return it to him. This order was Avithout the consent of the grantees. The party called upon the notary as requested, but the deed had already been mailed and was then in the post office. In accordance Avith the request, the notary Avent to the post office, procured the deed, and some days later returned it to the grantor, who, without the knoAvledge or consent of plaintiff, destroyed it. The notary, however, had prepared and retained a copy of the deed, and this copy was attached to the petition, fully identified and verified, and introduced in evidence, showing the acknoAvledgment, witnessing, etc. It is in all respects a legally executed instrument. The copy attached to the petition describes the land, conveyed as the east half of the northeast quarter of section 20 and the west half of the west half of the northwest quarter of section 21, all in township 2 north, range 13, while the copy in the bill *209of exceptions gives tlie description as the east half of the northeast quarter of section number 20 and the Avest half of the Avest half of the nortlnvest quarter of section number 13 (21), same township and range. We assume that the discrepancy is a clerical error of the copyist, and will notice it no further. There can be no doubt but that the conduct of the parties at the time of the execution of the deed of conveyance Avas intended for, and was, a delivery of the deed, and that the title Avas thereby vested in the grantees. McGuire v. Clark, 85 Neb. 102; Rogers v. Heads Iron Foundry, 51 Neb. 39; Brown v. Westerfield, 47 Neb. 399; Jamison v. Jamison, 4 Del. Ch. 311; Bates v. Winters, 138 Wis. 673. This being true, the title was not affected by the subsequent procurement of the deed and its destruction by the grantor Avithout the knowledge and consent of the grantee. Brown v. Westerfield, supra. See 16 Am. Dig. (Cent. ed.) “Deeds”, col. 167, sec. 135. The evidence sIioaa's that the surrender of the deed Avas with the consent of Frank Svanda, Jr., but not of plaintiff. The deed having been executed, and accepted by plaintiff, must be held as a completion and close of the transaction, and she is entitled to a decree confirming the transfer unless it be slioAvn that some part of the land is included in the homestead of the defendants, the senior Svandas. It is well settled that, Avhen a court of equity acquires jurisdiction of a cause and of the parties thereto, it will retain the cause for all purposes and determine all matters put in issue. See cases cited in 1 Page, Nebraska Digest, 791.\nThe decree of the district court is reversed and the cause remanded, with leave to the parties to reform the pleadings should they desire to do so, and the district court is directed to hear evidence as to the homestead quality of the land. If any portion of the property conveyed is found to be included in the homestead, the deed will be held to be ineffectual as to that part, not exceeding $2,000 in value.\nReversed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"svanda-v-svanda","summary":"Appeal from the district court for Richardson county: Leander M. Pemberton, Judge."} {"case_name":"Finlay & Associates, Inc. v. Borg-Warner Corp.","case_name_full":"FINLAY & ASSOCIATES, INC. v. BORG-WARNER CORPORATION","citation_count":0,"citations":["77 N.J. 467"],"court_full_name":"Supreme Court of New Jersey","court_jurisdiction":"New Jersey, NJ","court_short_name":"Supreme Court of New Jersey","court_type":"S","date_filed":"1978-05-02","date_filed_is_approximate":false,"id":7380819,"opinions":[{"ocr":true,"opinion_id":7299698,"opinion_text":"\nPetition for certification denied. (See 155 N. J. Super. 331)\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"finlay-associates-inc-v-borg-warner-corp"} {"case_name":"Leone v. State","case_name_full":"John J. LEONE v. STATE of Florida","case_name_short":"Leone","citation_count":0,"citations":["229 So. 2d 321"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1969-12-12","date_filed_is_approximate":false,"id":7511479,"opinions":[{"ocr":true,"opinion_id":7434956,"opinion_text":"\nPER CURIAM.\nAffirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"leone-v-state"} {"case_name":"Williams v. Dorsainvil","case_name_full":"Jerry L. WILLIAMS and Manchester Insurance and Indemnity Company v. Esther DORSAINVIL and Keith Dorsainvil, her husband","case_name_short":"Dorsainvil","citation_count":0,"citations":["281 So. 2d 81"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1973-07-10","date_filed_is_approximate":false,"id":7532655,"opinions":[{"ocr":true,"opinion_id":7457189,"opinion_text":"\nPER CURIAM.\nAffirmed.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"williams-v-dorsainvil"} {"attorneys":"Weissman & Straus and Mark Weissman, North Miami Beach, for appellant., Joseph S. Paglino, Miami, for appellee.","case_name":"Equitable Life Assurance Society of the United States v. Goldfarb","case_name_full":"The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES v. Richard B. GOLDFARB","case_name_short":"Goldfarb","citation_count":0,"citations":["451 So. 2d 1040"],"court_full_name":"District Court of Appeal of Florida","court_jurisdiction":"Florida, FL","court_short_name":"District Court of Appeal of Florida","court_type":"SA","date_filed":"1984-06-26","date_filed_is_approximate":false,"id":7604464,"judges":"Barkdull, Baskin, Genson, Jor","opinions":[{"ocr":true,"opinion_id":7534681,"opinion_text":"\nPER CURIAM.\nAffirmed. Fla.R.Civ.P. 1.420(e).\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"equitable-life-assurance-society-of-the-united-states-v-goldfarb"} {"case_name":"Protest 988249-G of Vandegrift","case_name_full":"Protest 988249-G of F. B. Vandegrift & Co. (New York)","citation_count":0,"citations":["11 Cust. Ct. 219"],"court_full_name":"United States Customs Court","court_jurisdiction":"USA, Federal","court_short_name":"U.S. Customs Court","court_type":"FS","date_filed":"1943-07-15","date_filed_is_approximate":false,"id":8125734,"judges":"Cline","opinions":[{"author_str":"Cline","ocr":true,"opinion_id":8086792,"opinion_text":"\nOpinion by\nCline, J.\nThe record showed that the bags containing the seed were marked “Tsehechoslowakai” and the collector required that the bags be marked with the word “Czechoslovakia” before they were released from customs custody. As the merchandise was marked with a foreign word, which is not a compliance with the statute, the merchandise was held not legally marked, and the protest was overruled.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"protest-988249-g-of-vandegrift"} {"attorneys":"For the petitioner there were briefs by the Attorney General and Harold H. Persons, assistant attorney general, and oral argument by Mr. Persons., For the respondent there was a brief and oral argument by W. Roy Kopp of Platteville, special counsel., A brief was filed by Charles F. Smith of Wausau, and W. J. P. Aberg of Madison, as amici curiae.","case_name":"State ex rel. Thomson v. Giessel","case_name_full":"State ex rel. Thomson, Attorney General v. Giessel, Director of Department of Budget and Accounts, [Forest Crop Case.]","case_name_short":"Giessel","citation_count":0,"citations":["265 Wis. 207"],"court_full_name":"Wisconsin Supreme Court","court_jurisdiction":"Wisconsin, WI","court_short_name":"Wisconsin Supreme Court","court_type":"S","date_filed":"1953-11-03","date_filed_is_approximate":false,"id":8235843,"judges":"Broadfoot","opinions":[{"author_str":"Broadfoot","ocr":true,"opinion_id":8200582,"opinion_text":"\nBroadfoot, J.\nSec. 10, art. VIII of the Wisconsin constitution provides in part as follows:\n“The state shall never contract any debt for works of internal improvement, or be a party in carrying on such works. . . . Provided, that the state may appropriate moneys for the purpose of acquiring, preserving, and developing the forests of the state; but there shall not be appropriated under the authority of this section in any one year an amount to exceed two tenths of one mill of the taxable property of the state as determined by the last preceding state assessment.”\nThe portion thereof referring to appropriations for the purpose of acquiring, preserving, and developing the forests of the state was added by an amendment adopted in 1924. Since the year 1939, under the provisions of sec. 70.58, *212Stats., there has been levied and collected an annual tax of two tenths of one mill “for the purpose of acquiring, preserving, and developing the forests of the state, the proceeds of such tax to be paid into the conservation fund.” In addition, the legislature has appropriated out of the general fund varying amounts for payment to the towns in accordance with sec. 77.05 (2). This section provides for the payment of 10 cents per acre, but also provides that if the appropriation is insufficient the payments shall be proportionately reduced. In 1952 the full amount of 10 cents per acre was paid. In other years the amount was reduced, and the lowest payment was in the year 1940, when it amounted to five and two-tenths cents per acre. From 1942 on there has also been a separate appropriation by sec. 20.07 (2) (c) for payment of the expenses of administration of ch. 77, Stats. This appropriation is not before us and is not being passed upon.\nThe voucher in question involves only lands entered under ch. 77, Stats. Payments to counties for forestry purposes are treated in separate sections of the statutes and payments therefor to counties are made from the conservation fund, which includes the amounts raised by the levying of the tax of two tenths of one mill.\nThe respondent contends that the payment of the acreage contributions provided for by sec. 77.05 (2), Stats., from the general fund would be unconstitutional since in excess of the over-all limitation of sec. 10, art. VIII of the constitution. First, because the acreage contributions by the state out of the general fund are part of a complete program provided for by ch. 77, Stats., and they contribute, as truly as the reduced tax payment by the landowner, to the general purpose of acquiring, preserving, and developing the forests of the state. Second, because the payments are not a state aid for the reason that there is a provision for repayment in case the landowner withdraws his property and a severance *213tax is provided under which the state is repaid its advances, whereas state aids are usually in the form of outright grants.\nOn the authority of statements made in bulletins issued by the Wisconsin conservation commission, the United States department of agriculture, and the University of Wisconsin, it is contended that the plan of taxation adopted for forest crop lands provides for tax reform rather than tax relief, and that the whole purpose of the acreage contribution by the state is therefore a part of this tax-reform procedure and is for the purpose of acquiring, preserving, and developing the forests of the state.\nIt is further contended by the respondent that these acreage contributions, standing alone, would be unconstitutional since not for a public or state purpose, which also shows that they are a part of the general forestry program and are therefore subject to the constitutional limitation on the amount that can be appropriated by the legislature in one year for forestry purposes.\nIn passing upon the merits of these contentions some general rules of taxation must be kept in mind, for the power of the legislature to appropriate public funds is coextensive with the power to tax. The legislature has plenary power over the whole subject of taxation. It may select the objects therefor, determine the amount of taxes to be raised, the purposes to which they will be devoted, and the manner in which property shall be valued for taxation. It may exempt property from taxation and limit the exercise of the taxing power of municipal corporations. These rules are subject only to constitutional restrictions and limitations. One of these is that the tax and appropriation must be for a public purpose.\nWith these rules in mind the solution of the case before us depends upon the answers to two questions: First, is the appropriation subject to any constitutional restriction or limitation? Second, is the appropriation for a public purpose?\n*214Our attention has been called only to the limitation of sec. 10, art. VIII of the constitution. We can find no further restriction or limitation that could apply. It is true that the appropriation authorizes payments based upon the amount and location of lands entered pursuant to ch. 77, Stats. The fact that provision is made in ch. 77 is not controlling. Attention is called to county-owned forestry lands. There, too, the legislature provides an acreage contribution. That contribution is provided for in ch. 28, Stats., and the legislature states expressly that the payments are to be used exclusively for “the purchase, development, preservation, and maintenance of a county forest reserve.” The payments to counties are made out of the conservation fund from the proceeds of the two tenths of one mill tax and the conservation commission, through an audit, makes sure that the said payments are expended and used by the counties solely for the purposes provided by statutes. The payments in question are made to towns, which pay 40 per cent thereof to school districts, 20 per cent to counties, and the towns retain 40 per cent for their own use. There is no provision in the statutes that these funds be used for forestry purposes or for any other particular purpose, and in fact, the amounts thereof go into the respective treasuries and are used as other tax funds are used for purposes determined by the governing bodies.\nHaving deprived the local units of a portion of their tax base that would otherwise be available for the imposition of general taxes, the legislature has granted an aid to make up, in part at least, such loss of revenue. The fact that the state will recover some part at least of the annual appropriations does not change the nature or validity of the aid. Nor would the fact, if it be a fact, that the appropriations are part of a plan of tax reform rather than tax relief affect the validity of the appropriations. Although the appropriations are related to the Forest Crop Law, they are not an integral part thereof. The landowner is induced to enter his lands under *215the Forest Crop Law because of the limitation upon the taxation thereof provided by the legislature. Acreage payments to the towns in which his lands are located cannot in any way affect his taxes on his forest crop lands.\nThe matter is one of legislative discretion. The legislature may increase, diminish, or abolish the appropriations without affecting in any way the landowner’s tax burden, so far as his forest crop lands are concerned. Thus, the first question must be answered in the negative.\nThe general rule as to the public purpose of the expenditure of public funds is stated in 81 C. J. S., States, p. 1149, sec. 133, as follows:\n“Generally, in connection with the validity of the expenditure of state funds, what is ... a public purpose, is a question for the legislature to decide, with respect to which it is vested with a large discretion, which cannot be controlled by the courts unless its action is clearly evasive. . . . Where a doubt exists whether the purpose of an appropriation is public or private, it will be resolved in favor of the validity of the appropriation,' . . .”\nThat rule has been followed in Wisconsin. In the case of Brodhead v. Milwaukee, 19 Wis. *624, this court said:\n“To justify a court in declaring a tax void, and arresting proceedings for its collection, the absence of all possible public interest in the purposes for which the funds are raised must be so clear and palpable as to be immediately perceptible to every mind. Claims founded in equity and justice, in the largest sense of those terms, or in gratitude or charity, will support a tax.” (Headnotes 3 and 4.)\nThis rule was cited with approval in the case of State ex rel. New Richmond v. Davidson, 114 Wis. 563, 88 N. W. 596, 90 N. W. 1067. A cyclone struck the city of New Richmond in 1899, killing more than 100 people, injuring about 500 more, destroying the entire business district, including the water-works tower, tank, and pumping station, and its *216electric-light plant, and the city incurred large expense in caring for the injured,-clearing up the debris to prevent disease, and in the relief and aid of the homeless and destitute. Afterward it borrowed funds from the state out of its trust funds. The legislature then made an appropriation from the general fund to the trust fund for the purpose of relieving the city of its indebtedness to the state. This was held to be for a public purpose.\nIn the case of State ex rel. Wisconsin Development Authority v. Dammann, 228 Wis. 147, 178, 277 N. W. 278, 280 N. W. 698, this court cited with approval the following quotation from Carmichael v. Southern Coal & Coke Co. 301 U. S. 495, 514, 57 Sup. Ct. 868, 81 L. Ed. 1245:\n“This court has long and consistently recognized that the public purposes of a state, for which it may raise funds by taxation, embrace expenditures for its general welfare. [Citations.] The existence of local conditions which, because of their nature and extent, are of concern to the public as a whole, the modes of advancing the public interest by correcting them or avoiding their consequences, are peculiarly within the knowledge of the legislature, and to it, and not to the courts, is committed the duty and responsibility of making choice of the possible methods. [Citations.] As with expenditures for the general welfare of the United States [Citations], whether the present expenditure serves a public purpose is a practical question addressed to the lawmaking department, and it would require a plain case of departure from every public purpose which could reasonably be conceived to justify the intervention of a court. [Citations.]”\nThus, as in the case of taxation, the question of whether an expenditure of public funds constitutes a public purpose is largely within the discretion of the legislature. The courts cannot interfere with the legislative determination upon either subject unless there is a very clear abuse of discretion. Thus, the second question must be answered in the affirmative.\n*217The appropriation has been made, the taxes have been levied and collected for this purpose, and the respondent must audit and approve the payment.\nThe decision in this case was announced on the 22d day of October, 1953, because of the resumed session of the state legislature. The decision was based upon the reasons stated in the foregoing opinion, and was as follows:\n“By the Court. — Let a peremptory writ of mandamus issue under the seal of this court directing the respondent to approve and certify for payment voucher number 21,209 submitted by the state conservation commission of Wisconsin on June 11, 1953, as prayed for in the petition.”\n","per_curiam":false,"type":"020lead"}],"other_dates":"\nOctober 9\n","precedential_status":"Published","slug":"state-ex-rel-thomson-v-giessel"} {"attorneys":"On behalf of the defendant-appellant Hupy and Abraham, S.C., the cause was submitted on the briefs of Brandon D. Derry and Amanda Pirt Meyer of Hupy and Abraham, S.C., Madison., On behalf of the defendant-appellant and defendant-respondent General Casualty Insurance Company, the cause was submitted on the briefs of David J. Pliner of Corneille Law Group, LLC, Madison., On behalf of the plaintiff-respondent Watertown Regional Medical Center, Inc., the cause was submitted on the briefs of Peter B. King of Peter B. King Attorney at Law, SC, Fontana.","case_name":"Watertown Regional Medical Center, Inc. v. General Casualty Insurance","case_name_full":"Watertown Regional Medical Center, Inc., Plaintiff-Respondent v. General Casualty Insurance Company, Defendant-Respondent, Hupy and Abraham, S.C., Defendant-Appellant Watertown Regional Medical Center, Inc., Plaintiff-Respondent v. General Casualty Insurance Company, Hupy and Abraham, S.C.","citation_count":0,"citations":["354 Wis. 2d 195","2014 WI App 62"],"court_full_name":"Court of Appeals of Wisconsin","court_jurisdiction":"Wisconsin, WI","court_short_name":"Court of Appeals of Wisconsin","court_type":"SA","date_filed":"2014-04-17","date_filed_is_approximate":false,"id":8239050,"judges":"Blanchard, Kloppenburg, Lundsten","opinions":[{"author_str":"Lundsten","ocr":true,"opinion_id":8204270,"opinion_text":"\nLUNDSTEN, J.1\n¶ 1. These consolidated appeals present a dispute regarding who is responsible for Watertown Regional Medical Center's statutory \"hospital lien\" for medical services rendered to a personal injury claimant, Nathaniel McGuire.2 The parties to the appeals are the Medical Center; the law firm that represented McGuire in his personal injury action, Hupy and Abraham, S.C.; and the tortfeasor's insurer, General Casualty Insurance Company. The injured party, McGuire, may or may not owe the Medical Center for medical treatment. McGuire is not a party to this action, and the parties before us do not discuss his liability. Thus, we do not address whether McGuire has liability. ¶ 2. The primary question here is one of statutory interpretation involving whether, under the hospital lien statute, Wis. Stat. § 779.80,3 an attorney or law firm who receives and then distributes a settlement *200payment on a personal injury claim is, under the lien statute's language, a \"person making any payment to [the] injured person ... as compensation for the injuries sustained.\" See § 779.80(4). We conclude that an attorney or law firm that merely receives and distributes a settlement payment is not such a \"person.\" General Casualty, however, is such a \"person\" because General Casualty \"ma[de] . . . payment to [McGuire] . . . as compensation for the injuries sustained.\" Therefore, so far as the hospital lien statute is concerned, General Casualty, not Hupy, is liable to the Medical Center under the statute.\n¶ 3. A second question is whether, apart from the hospital lien statute, Hupy must indemnify General Casualty for the lien amount. General Casualty alleges that Hupy is liable under three theories that support three separate claims against Hupy: breach of contract, negligence/assumed duty, and equitable estoppel. We disagree that Hupy is liable under any of these theories. We conclude that General Casualty's contract claim fails because nothing in the settlement documents shows that Hupy agreed to be responsible for paying the lien amount. We also conclude, under the undisputed facts here, that General Casualty's other two claims against Hupy are not viable.\n¶ 4. The circuit court concluded that both Hupy and General Casualty were liable for the Medical Center lien. The court also concluded that Hupy must indemnify General Casualty for the lien amount. We leave in place the circuit court's decision in appeal No. 2013AP2511 holding General Casualty liable, but reverse the court's decisions in appeal No. 2013AP2324 holding Hupy liable to the Medical Center and to General Casualty.\n\n*201\nBackground\n\n¶ 5. The material facts are not in dispute. McGuire was injured in an accident allegedly caused by General Casualty's insured. McGuire received medical treatment from the Medical Center, and filed a personal injury action against General Casualty and its insured. The Medical Center filed a lien under the hospital lien statute and served notices with respect to both General Casualty and McGuire.\n¶ 6. McGuire, who was represented by Hupy, and General Casualty settled McGuire's personal injury action for $30,000. General Casualty made the settlement check payable to Hupy's trust account. Hupy then distributed the funds to McGuire and others with an interest in the proceeds. At the time of the settlement, Hupy was aware that McGuire owed the Medical Center money for medical expenses related to McGuire's personal injury, but Hupy did not distribute funds to the Medical Center.4\n¶ 7. The Medical Center brought a small claims action against both Hupy and General Casualty, seeking recovery from each of them. The Medical Center initially named McGuire as a defendant, but the record *202shows that McGuire was dismissed from the action. General Casualty cross-claimed against Hupy, seeking indemnification.\n¶ 8. On motions to dismiss and for summary judgment, the circuit court concluded that the terms of Wis. Stat. § 779.80 make both Hupy and General Casualty liable for the Medical Center lien. The court also concluded that Hupy must indemnify General Casualty for the lien amount because Hupy contractually agreed to be responsible for the lien as part of the settlement. Hupy and General Casualty both appeal.\n\nDiscussion\n\n\nA. Statutory Liability Under Wis. Stat. § 779.80\n\n¶ 9. The parties dispute as a matter of statutory interpretation whether Hupy or General Casualty or both are liable for the Medical Center's lien under the terms of Wis. Stat. § 779.80. To resolve this dispute, we must interpret the statute and apply it to the undisputed facts, which is a question of law for de novo review. See Tammy W-G. v. Jacob T., 2011 WI 30, ¶ 16, 333 Wis. 2d 273, 797 N.W.2d 854.\n¶ 10. \"[Statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'\" State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted). Statutory language is \"interpreted in the context in which it is used; not in isolation but as part of a whole;. . . and reasonably, to avoid absurd or unreasonable results.\" Id., ¶ 46.\n*203¶ 11. Here, the focus is on Wis. Stat. § 779.80(4), but, as we shall see, other subsections of that statute provide pertinent context. Subsection (4) provides that \"the person making any payment to [the] injured person ... as compensation for the injuries sustained shall, for a period of one year from the date of such payment, remain liable to the hospital for the amount of [the] lien.\"5\n*204¶ 12. The question is whether Hupy, General Casualty, or both are a \"person making any payment to [McGuire] ... as compensation for the injuries [McGuire] sustained.\" See id. We agree with the circuit court that General Casualty is a \"person making any payment\" under the hospital lien statute. However, an intermediary that passes along a payment, like Hupy did here, is not such a \"person.\"\n¶ 13. There appears to be little case law interpreting Wis. Stat. § 779.80. The parties supply no such case law, and we have located none that is helpful. We disagree with Hupy that Yorgan v. Durkin, 2006 WI 60, 290 Wis. 2d 671, 715 N.W.2d 160, provides meaningful guidance on the question of statutory interpretation presented here. Yorgan did not involve a statutory lien under § 779.80. As we shall see, however, Yorgan pro*205vides some support for our conclusion on the second issue below regarding Hupy's non-statutory liability to indemnify General Casualty.\n¶ 14. In the absence of case law guidance, we conclude that the statutory language is plain as applied to both General Casualty and Hupy. We first provide our plain language interpretation of the hospital lien statute as applied to each of General Casualty and Hupy. We then address the Medical Center's and General Casualty's contrary arguments.\n\n1. Statutory Language As Applied To Each Of General Casualty And Hupy\n\n¶ 15. The statute imposes liability for a hospital lien only on a person \"making any payment to [the] injured person ... as compensation for the injuries sustained.\" See Wis. Stat. § 779.80(4). General Casualty plainly is such a person. General Casualty is the source of the payment and made the payment because of its insured's obligation (or potential obligation) to provide compensation for McGuire's injuries. We acknowledge that Hupy served as the intermediary for General Casualty's payment, but fail to see how this interim step means that General Casualty did not make payment as compensation for McGuire's injuries.\n¶ 16. Hupy, in contrast, passed along funds from General Casualty, but cannot reasonably be seen as having made a \"payment.\" We do not hold that under all other statutory schemes a funding intermediary never makes \"payment,\" but the plain language here requires payment \"as compensation\" and Hupy did not make payment \"as compensation\" for McGuire's injuries. Hupy passed along another's payment that was compensation for McGuire's injuries.\n*206¶ 17. Stated another way, to hold Hupy liable under Wis. Stat. § 779.80(4) would be to read the statute as if liability attached to any person \"making or transferring any payment\" that \"is compensation for the injuries.\" But the statute refers only to a \"person making any payment... as compensation for ... injuries.\" Id. (emphasis added).\n¶ 18. Notice provisions in the statute support our interpretation of the statute as applied to both General Casualty and Hupy. Specifically, the statute requires that \"the hospital\" provide notice of the lien to the \"injured person,\" and to \"the person alleged to be liable\" and that person's \"insurer\" if their names and addresses may be ascertainable by reasonable diligence. Wis. Stat. § 779.80(3)(b) and (c). In contrast, there is no notice requirement for an injured person's attorney. Here, it appears undisputed that the Medical Center was required to, and did, provide notice of the lien by mail to McGuire and to General Casualty, but not to Hupy.\n¶ 19. To sum up so far, under the plain language of Wis. Stat. § 779.80(4), General Casualty but not Hupy is a \"person making any payment to [McGuire] ... as compensation for the injuries [McGuire] sustained.\" Therefore, General Casualty, but not Hupy, is statutorily liable to the Medical Center for the lien.6\n\n2. Medical Center's And General Casualty's Arguments\n\n¶ 20. The Medical Center's and General Casualty's arguments to the contrary are not persua*207sive. We start with the Medical Center's arguments, then turn to General Casualty's arguments.\n¶ 21. The Medical Center argues that Hupy, as well as General Casualty, is statutorily liable because Hupy, like General Casualty, made a \"payment to\" McGuire. The Medical Center is referring to the undisputed fact that General Casualty made the $30,000 in settlement funds payable to Hupy's trust account and the additional undisputed fact that Hupy then transferred the funds from its trust account to McGuire and others claiming an interest. As we understand it, the Medical Center argues, in effect, that \"payment\" under the statute includes a subsequent transfer of a \"payment,\" so that there are in effect two \"payments\": (1) the transfer of funds from General Casualty to Hupy's trust account, and (2) the transfer of those same funds from Hupy's trust account to McGuire.\n¶ 22. In our view, this interpretation is unreasonable for the reasons already explained. Hupy did not make a \"payment\" to McGuire. Rather, Hupy served as an intermediary for General Casualty's payment to McGuire.\n¶ 23. The Medical Center also argues that the hospital lien statute is plainly intended to protect the hospital, not the injured party's attorney, and that the statute must be liberally construed to protect hospitals. See Wes Podany Constr. Co v. Nowicki, 120 Wis. 2d 319, 324, 354 N.W.2d 755 (Ct. App. 1984) (concluding, at least for purposes of the construction lien statutes, that \"our lien laws are remedial in character and are to be liberally construed\"). We agree with the Medical Center that the hospital lien statute plainly protects hospitals and that we must liberally construe the statute to protect hospitals. But we fail to see how either of these propositions supports the view that a law firm like *208Hupy is liable under the statute. No matter how liberally in favor of the Medical Center we read the statute, it remains true that, under the statute's plain language, Hupy is not a \"person making . . . payment... as compensation for . . . injuries.\"\n¶ 24. We observe that a separate subsection of the statute expressly addresses the injured person's attorney. Specifically, Wis. Stat. § 779.80(5) expressly refers to the injured person's \"attorney\" and provides that a hospital lien \"shall not in any way prejudice or interfere with\" an attorney's lien or contract for legal services.\n¶ 25. We turn to General Casualty's arguments. General Casualty argues that Hupy is liable under the statute and also that General Casualty is not liable under the statute.\n¶ 26. Given our discussion above, there is little left of General Casualty's more specific arguments. General Casualty seems to assume that someone must have made payment to McGuire and therefore be liable under the statute and, according to General Casualty, that someone must be Hupy because only Hupy conveyed money to McGuire. However, we have already rejected the notion that passing along a payment is the same as making a payment under Wis. Stat. § 779.80(4).\n¶ 27. General Casualty's primary remaining argument is based on a comparison of the language in subsections (1) through (3) of the hospital lien statute to the language in subsection (4) of the statute. General Casualty points out that each of subsections (1) through (3) makes a clear, express reference to the tortfeasor or tortfeasor's insurer. For example, subsection (3) refers to \"the persons alleged to be liable for damages sustained by such injured person\" and to \"any insurer which has insured such person alleged to be liable for *209the injury.\" See Wis. Stat. § 779.80(3) and (3)(c). General Casualty points out that subsection (4), in contrast, uses different language, namely, the language we have been focusing on: \"the person making any payment to such injured person ... as compensation for the injuries sustained.\" General Casualty argues:\nThere is only one reasonable interpretation of this change in language between the subsections. The legislature necessarily contemplated that the \"person making any payment to such injured person\" not be limited to the \"person alleged to be liable,\" or to that person's liability insurer. If this was not the legislative intent, then the legislature would have simply repeated the phrase, \"person alleged to be liable\" in sub. (4).\nIn short, the \"person\" who remains liable to the hospital under sub. (4) includes any person who \"mak[es] payment to [McGuire],[\"] not just to the alleged tortfeasor and/or to the tortfeasor's insurer.\nWe are not persuaded by General Casualty's argument for two related reasons.\n¶ 28. First, General Casualty's argument, even if valid, does not lead to the conclusion that General Casualty is not liable under the statute. At most, it leads to the conclusion that some unknown others in addition to tortfeasors and their insurers could be liable under the statute. Assuming without deciding that the language in Wis. Stat. § 779.80(4) could be read to include persons other than tortfeasors and tortfeasor insurers, we have already provided reasons sufficient to explain why that language is not reasonably read to include a person that simply passes along a payment, as Hupy did here. As we have explained, the payment must be made by a person making the payment \"as compensation for ... injuries sustained,\" and Hupy is not such a person.\n*210¶ 29. Second, General Casualty's comparison-of-language argument is a mismatch. There is no place in the statute in which the legislature uses language other than \"person making any payment\" language to refer collectively to tortfeasors and tortfeasor insurers. Therefore, General Casualty's comparison-of-language argument does not show that the legislature must have intended to include additional persons in Wis. Stat. § 779.80(4). We need not and do not decide whether a \"person making any payment\" never includes persons in addition to tortfeasors and tortfeasor insurers. Rather, we conclude that General Casualty's comparison-of-language argument does not show that \"person making any payment\" must include additional persons, or that a \"person making any payment\" includes a law firm such as Hupy that serves as an intermediary for payment.\n¶ 30. General Casualty argues that excluding Hupy from Wis. Stat. § 779.80(4) leads to absurd and unreasonable results. However, each of General Casualty's supporting assertions pertains to a separate issue of whether, under the facts here, Hupy should be required to indemnify General Casualty. That is the issue we turn to next.\n\nB. Whether Hupy Must Indemnify General Casualty For The Lien Amount\n\n¶ 31. The question remains whether, apart from the hospital lien statute, Hupy must indemnify General Casualty for the lien amount. To begin, we reiterate that the question before us pertains to Hupy's potential liability. We acknowledge that our decision with respect to Hupy's liability may implicate McGuire's liability, but the question of McGuire's liability, if any, is not before us.\n*211¶ 32. Hupy and General Casualty dispute whether Hupy must indemnify General Casualty based on claims of breach of contract, negligence/assumed duty, and equitable estoppel. The circuit court determined that Hupy is liable, and the court appeared to rely primarily on General Casualty's theory that Hupy had a contractual obligation. We agree with Hupy that Hupy is not liable in contract because Hupy did not contractually agree to be responsible for the lien amount. We also agree with Hupy that General Casualty's other claims against Hupy are not viable based on the undisputed facts before the circuit court at the time the court rendered its decision.\n\n1. Contract\n\n¶ 33. We interpret contract language de novo. Kaitlin Woods Condo. Ass' n v. North Shore Bank, FSB, 2013 WI App 146, ¶ 10, 352 Wis. 2d 1, 841 N.W.2d 562. \"If the contract is unambiguous, our inquiry is limited to the four corners of the contract and we do not consider other evidence as to what the parties intended.\" Id. Here, we conclude that, under the pertinent documents, it is clear that Hupy did not contractually agree to be responsible for indemnifying General Casualty for the lien amount, nor did Hupy agree to facilitate payment to the Medical Center or any other entity.\n¶ 34. The key document is a release of claims form that McGuire and a Hupy attorney signed. In that release, the \"undersigned . . . agree[d] to indemnify and hold harmless [General Casualty and other released parties] against any and all claims by or on behalf of persons or entities rendering medical care or treatment *212to [McGuire] for the injuries sustained\" in an identified accident. The disputed contract interpretation question is whether Hupy is an \"undersigned\" within the meaning of the release.\n¶ 35. General Casualty's assertion that Hupy is an \"undersigned\" is based on the fact that both McGuire and a Hupy attorney signed the release. We disagree that this makes Hupy an \"undersigned.\" Reading the release as a whole, it is clear that Hupy is not an \"undersigned.\"\n¶ 36. The preliminary recitals in the release identify the \"undersigned\" as the party that sustained damages. The release states that \"the undersigned [is releasing claims] . . . for damages which the undersigned sustained as a result of' a specified accident. Obviously, Hupy did not sustain damages in the specified accident and, therefore, the term \"undersigned\" is not a reference to Hupy.\n¶ 37. Moreover, only McGuire signed under the statement: \"I FULLY UNDERSTAND, AND AGREE TO THIS RELEASE OF LIABILITY IN ITS ENTIRETY AND SIGN AS MY OWN FREE ACT.\" In contrast, the Hupy attorney signed under the statement: \"I acknowledge that this settlement and Release have been entered into upon the advice and recommendation of myself as attorney for [McGuire].\" Although not necessary to our conclusion, these clauses and the related signatures support our conclusion that only McGuire signed as the \"undersigned\" who was releasing various parties, including General Casualty. The Hupy attorney's signature relates to language, apparently required by statute as we discuss below, that acknowledged the settlement and the attorney's role in recommending that McGuire sign the release.\n*213¶ 38. We further note that, with respect to the handling of the settlement payment, nothing in the release purports to bind Hupy in any manner. For example, nowhere in the release does Hupy agree to how it will disburse funds that Hupy might receive from General Casualty or any other source.\n¶ 39. General Casualty directs our attention to Riegleman v. Krieg, 2004 WI App 85, 271 Wis. 2d 798, 679 N.W.2d 857. However, if anything, Riegleman supports Hupy's position. In Riegleman, we held that an attorney was contractually liable for medical expenses when the attorney signed a document expressly agreeing to \"honor the [patient/client's lien] to protect adequately said above named [health care provider].\" See id., ¶¶ 1-2, 25-27. Thus, unlike here, the attorney in Riegleman expressly took on a contractual obligation.\n¶ 40. In sum, nothing in the release indicates that Hupy agreed to indemnify General Casualty or to otherwise be responsible for facilitating payment to the Medical Center.\n¶ 41. In support of its contract interpretation argument, General Casualty cites Wis. Stat. § 757.38. According to General Casualty, this statute compels the conclusion that the Hupy attorney did more than merely witness the release. We agree that the attorney did more than witness the release, but we fail to see how this statutory language supports General Casualty's argument that Hupy contractually agreed to indemnify any party.\n¶ 42. Hupy acknowledges that it signed the release pursuant to Wis. Stat. § 757.38. That statute provides:\nNo settlement or adjustment of any action which shall have been commenced to recover damages for any *214personal injury or for the death as a result of any personal injury in which an attorney shall have appeared for the person or persons having or claiming a right of action for such injury or death shall be valid, unless consented to in writing by such attorney or by an order of the court in which said action is brought approving of such settlement or adjustment.\n(Emphasis added.) General Casualty points to the language we italicize above: \"No settlement... of any action ... in which an attorney shall have appeared for [a plaintiff] .. . shall be valid, unless consented to in writing by such attorney.\" General Casualty, however, does not present an argument supporting the proposition that the term \"consented\" means something more than acknowledging an awareness or approval of the release. Absent such an argument, we do not discuss General Casualty's reliance on § 757.38 any further.\n¶ 43. Finally, we reject General Casualty's argument that the mediation agreement and the settlement check support its view that Hupy is liable. The mediation agreement indicates that \"[McGuire] shall be responsible for all subrogation claims and unpaid medical expenses and shall indemnify [General Casualty and others] against such claims, contingent upon reaching an acceptable agreement with . . . the health care providers.\" Assuming without deciding that the mediation agreement is part of the settlement, General Casualty does not point to anything in the agreement indicating that Hupy is potentially responsible for paying the Medical Center's lien amount. As to the settlement check, the fact that it was made payable to Hupy's trust account — whether considered alone or with the other documents — does not support General Casualty's contention that Hupy agreed to pay the Medical Center. Based on the settlement documents, the only pertinent *215observation to make about the check is that Hupy's trust account was a temporary repository for General Casualty's payment to McGuire.\n\n2. Negligence!Assumed Duty And Equitable Estoppel\n\n¶ 44. We turn to General Casualty's argument that Hupy must indemnify General Casualty based on claims of negligence/assumed duty or equitable estoppel. The parties' arguments on these topics overlap significantly and boil down to a dispute about whether Hupy or General Casualty acted unreasonably under the circumstances. We make two initial observations that immediately call into question the viability of these two claims.\n¶ 45. First, it appears that General Casualty bases these claims in large part on its view that the settlement documents show that the parties \"intended\" that Hupy was bound to pay the Medical Center from the settlement funds. However, we have already explained that nothing in the release purports to bind Hupy in any manner regarding the funds. General Casualty makes various supporting \"intent\" arguments, but we view these arguments as an attempt to circumvent the settlement documents. As we have explained, those documents plainly indicate that Hupy did not agree to be responsible for paying the Medical Center.\n¶ 46. Second, General Casualty supplies no authority for the proposition that an adverse party may state claims for negligence or equitable estoppel against an attorney when the attorney's conduct at issue appears to involve nothing more than acts to carry out representation of a client. \" '[T]he well established rule of law in Wisconsin is that absent fraud or certain *216public policy considerations, an attorney is not liable to third parties for acts committed in the exercise of [the attorney's] duties as an attorney.'\" Yorgan, 290 Wis. 2d 671, ¶ 27 (quoted source and other supporting citations omitted). We question whether, under Yorgan, General Casualty may state claims for negligence or equitable estoppel against Hupy. Regardless, assuming without deciding that Yorgan is not a bar to those claims, we do not see how General Casualty's claims could succeed based on the undisputed facts before us.\n¶ 47. As to General Casualty's negligence/assumed duty claim, we fail to see how Hupy assumed a duty to pay the Medical Center when nothing in the settlement documents indicates that Hupy was responsible for paying the Medical Center. That Hupy was aware of the Medical Center's outstanding bill and distributed settlement funds to some third parties does not show that Hupy undertook a duty to pay the Medical Center.7\n*217¶ 48. Turning to General Casualty's equitable estoppel claim, the elements of equitable estoppel are:\n(1) action or non-action; (2) on the part of one against whom estoppel is asserted; (3) which induces reasonable reliance thereon by the other, either in action or non-action; (4) which is to the relying party's detriment.\nAffordable Erecting, Inc. v. Neosho Trompler, Inc., 2006 WI 67, ¶ 33, 291 Wis. 2d 259, 715 N.W.2d 620.\n¶ 49. The crux of General Casualty's equitable estoppel claim as we understand it is that Hupy's actions induced General Casualty to reasonably rely on Hupy to pay the Medical Center from the settlement proceeds. There is a disconnect, however, in General Casualty's argument because the Hupy \"actions\" on which General Casualty relies are Hupy's payments to other third parties from the settlement proceeds. By the time of those Hupy actions, General Casualty had already entered into the settlement and paid the $30,000. It makes no sense to say that General Casualty entered into the settlement and paid the money relying on Hupy's later actions.\n\nConclusion\n\n¶ 50. In sum, for the reasons stated, we affirm the judgment against General Casualty in appeal No. *2182013AP2511, but reverse the judgment and order against Hupy in appeal No. 2013AP2324.\nBy the Court. — Judgment and order reversed; judgment affirmed.\n\n These appeals were converted from one-judge appeals to three-judge appeals pursuant to Wis. Stat. Rule 809.41(3) (2011-12). All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.\n\n\n The claimant, Nathaniel McGuire, changed his name during the relevant time period. His former name was Nathaniel Dickman. In this opinion, we use his current name, including inserting his current name when we quote from documents.\n\n\n The lien statute at issue has not been amended since 1995.\n\n\n The submissions suggest that it is undisputed that Hupy was aware that McGuire owed the Medical Center money for medical expenses related to McGuire's personal injury, but unaware of the Medical Center's lien against McGuire. Our analysis below suggests that Hupy's knowledge is not relevant. However, we do not address the issue because neither the Medical Center nor General Casualty makes arguments persuading us that Hupy's knowledge matters given the other undisputed facts. We do not hold that an attorney's knowledge of a client's obligation or statutory lien would never be relevant to whether that attorney is liable for the underlying amount.\n\n\n Wisconsin Stat. § 779.80 provides, more fully:\n(1) Every corporation, association or other organization operating as a charitable institution and maintaining a hospital in this state shall have a lien for services rendered, by way of treatment, care or maintenance, to any person who has sustained personal injuries as a result of the negligence, wrongful act or any tort of any other person.\n(2) Such lien shall attach to any and all rights of action, suits, claims, demands and upon any judgment, award or determination, and upon the proceeds of any settlement which such injured person, or legal representatives might have against any such other person for damages on account of such injuries, for the amount of the reasonable and necessary charges of such hospital.\n(3) No such lien shall be effective unless a written notice ... shall be filed in the office of the clerk of circuit court in the county in which such injuries have occurred, or in the county in which such hospital is located, or in the county in which suit for recovery of such damages is pending, prior to the payment of any moneys to such injured person or legal representatives, but in no event later than 60 days after discharge of such injured person from the hospital.\n(a) The clerk of circuit court shall enter all hospital liens in the judgment and lien docket, including the name of the injured person, the date of the event causing the injury and the name of the hospital or other institution making the claim ....\nft)) Within 10 days after filing of the notice of lien, the hospital shall send by certified mail or registered mail or serve personally a copy of such notice with the date of filing thereof to or upon the injured person and the person alleged to be liable for damages sustained by such injured person, if ascertained by reasonable diligence. If such hospital fails to give notice if the *204name and address of the person injured or the person allegedly liable for the injury are known or should be known, the lien shall be void.\n(c) The hospital shall also serve a copy of such notice, as provided in par. (b), to any insurer which has insured such person alleged to be liable for the injury against such liahility, if the name and address may be ascertained by reasonable diligence.\n(4) After filing and service of the notice of lien, no release of any judgment, claim or demand by the injured person shall be valid as against such lien, and the person making any payment to such injured person or legal representatives as compensation for the injuries sustained shall, for a period of one year from the date of such payment, remain liable to the hospital for the amount of such lien.\n(5) Such lien shall not in any way prejudice or interfere with any lien or contract which may be made by such injured person or legal representatives with any attorney or attorneys for legal services rendered with respect to the claim of the injured person or legal representatives against the person alleged to be liable for such injury. Said lien shall also be subservient to actual taxable court costs, and actual disbursements made by the attorney in prosecuting the court action.\n\n\n Although we conclude that Hupy is not statutorily liable for the lien, we do not rely on Hupy's argument that Hupy is a \"legal representative\" as that term is used in Wis. Stat. § 779.80(4) and, therefore, is not a person making payment under § 779.80.\n\n\n Hupy relies on a Rule of Professional Conduct, SCR 20:1.15(d), and an ethics opinion interpreting that rule. See State Bar of Wisconsin Professional Ethics Committee Opinion #E-09-01, Lawyer's responsibilities when a client gives a third party a \"lien\" on settlement proceeds, 82 Wis. Law. No. 3 (March 2009). Hupy argues that it acted consistent with its ethical duty. General Casualty does not argue that Hupy violated the Rule. The Rule provides:\nUpon receiving funds or other property in which a client has an interest, or in which the lawyer has received notice that a 3rd party has an interest identified by a lien, court order, judgment, or contract, the lawyer shall promptly notify the client or 3rd party in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, the lawyer shall promptly deliver to the client or 3rd party any funds or other property that the client or 3rd party is entitled to receive.\n*217SCR 20:1.15(d)(1). We need not and do not rely on the Rule. We observe that \"the Rules of Professional Conduct for Attorneys are not determinative of an attorney's civil liability.\" See Yorgan v. Durkin, 2006 WI 60, ¶ 25 n.8, 290 Wis. 2d 671, 715 N.W.2d 160.\n\n","per_curiam":false,"type":"020lead"}],"other_dates":"\nSubmitted on briefs April 3, 2014.\n","precedential_status":"Published","slug":"watertown-regional-medical-center-inc-v-general-casualty-insurance"} {"attorneys":"E. L. Sckoenkals, Salt Lake City, for appellant., Callister, Callister & Lewis, Salt Lake City, for respondents.","case_name":"Treadway v. Glenn","case_name_full":"TREADWAY v. GLENN","case_name_short":"Treadway","citation_count":0,"citations":["118 Utah 246","221 P.2d 598"],"court_full_name":"Utah Supreme Court","court_jurisdiction":"Utah, UT","court_short_name":"Utah Supreme Court","court_type":"S","cross_reference":"See 55 C. J., Sales, Sec. 844. Action for truck repairs, trial court’s refusal to allow question of defendant relating to counterclaim, 108 A. L. R. 160. See, also, 3 Am. Jur., 649.","date_filed":"1950-08-14","date_filed_is_approximate":false,"id":8674747,"judges":"Latimer, McDon, Ough, Pratt, Wade, Wolfe","opinions":[{"author_str":"Wolfe","ocr":true,"opinion_id":8657710,"opinion_text":"\nWOLFE, Justice.\nThis action was commenced by the respondents, plaintiffs below, to recover the reasonable value of materials and services expended by them in making repairs to a truck owned by the appellant, defendant below, and for the reasonable value of ten truck tires which they allegedly sold to the appellant. The appellant had purchased the truck from the respondents and refused to pay for the tires and the repairs on the ground that the respondents were obligated to make the repairs and furnish the tires under the warranties of the sale. The appellant also counter-claimed, seeking to recover, among other things, $20,000 which he allegedly had lost in profits in a contract entered into by him to transport oil, due to the alleged improper design and construction of the truck. The facts of the case are in sharp dispute and for that reason each party’s version of the facts will be separately stated. The parties will hereinafter be referred to as they appeared in the lower court.\nThe defendant adduced evidence to the following effect: The plaintiffs, copartners, are distributors for Kenworth motor trucks in Salt Lake City, Utah. The defendant is a *248contractor engaged in road building. On February 13, 1946, the defendant signed a purchase order for a Kenworth truck which he intended to use in road building. He specified to the plaintiffs’ agent, J. E. Golightly, that he wanted a truck like the truck which the plaintiffs had sold to one Strong, who was also a road building contractor. The truck ordered was understood by the parties to be capable of hauling a twenty-five ton Caterpillar tractor. About a month later, W. J. Treadway, one of the plaintiffs, approach the defendant and advised him that the truck which he had ordered might not be satisfactory for his use and recommended that the defendant purchase a larger truck costing several thousand dollars more than the truck he had ordered. Treadway saw the equipment which the defendant contemplated hauling on the truck and both parties were of the opinion that the larger truck would be capable of transporting- the equipment. The defendant, following Treadway’s recommendation, cancelled his order for the smaller truck and instructed Treadway to order him a truck of the size and dimensions suggested by Treadway. The truck was to be specially constructed at the Kenworth factory in Seattle, Washington.\nAt this time, trucks were difficult to secure and it was December 26, 1946, when the truck was delivered. From the outset the truck did not prove satisfactory to the defendant. Because the wheel base was too long, an excessive amount of weight was thrown on the front axle, causing the front tires to smoke, burn and blow out even when thf truck was standing empty. Also, the long wheel base necessitated long drive shafts which, because of their length, would whip and tear out. The defendant, not being skilled in truck designing, did not know what caused the tires to blow out until, at the suggestion of a tire dealer, he had the front end of the truck weighed. It was then that he first learned that the front axle was overloaded.\nThe defendant had entered into a contract to haul oil for *249road building from Woods Cross, Utah, to McGill, Nevada. He intended to use the truck for that purpose, but because the truck was unsatisfactory, he was obliged to haul the oil by rail which cost him $20,000 more than if he had transported it himself.\nAfter the defendant had made many requests to the plaintiffs to alter the defective construction of the truck, the plaintiffs, in January of 1948, at no cost to the defendant, shortened the wheel base of the defendant’s truck, using another truck which the plaintiffs had in their shop as a model. After these changes were made, the truck proved satisfactory to the defendant.\nThe plaintiffs’ version of the facts differ in the following respects: When the defendant signed the purchase order for the truck on February 13, 1946, he informed Mr. Golightly that he wanted a truck upon which he could haul his Caterpillar tractor and constructed so that he could attach a semi-trailer to it upon which he intended to transport his power-driven excavating shovel. Later when Mr. Treadway called upon the defendant to discuss the truck he had ordered, he advised the defendant that the truck ordered was not large enough to haul the defendant’s Caterpillar tractor, but that a truck could be constructed for that purpose. The defendant thereupon informed Mr. Treadway, as he had Mr. Golightly, that he not only wanted a truck large enough to haul his Caterpillar tractor, but that he desired the truck constructed so it could pull a semi-trailer carrying his excavating shovel. Treadway cautioned the defendant that it would be difficult to build a truck which would perform these two functions because in order to properly balance the truck so that it could carry the tractor, the frame of the truck would have to project over the rear axle to such an extent that a semi-trailer could not be hooked on. Treadway further warned the defendant that if the truck were constructed in the manner specified by the defendant, there would be danger of too much weight being thrown on the *250front axle. The defendant assured Treadway that “he could handle it” and instructed him to place an order for a truck with a twenty-foot loading space behind the cab and-with the rear axle and wheels at the extreme rear end of the truck.\nThereafter Mr. Treadway received a sheet containing the specifications of the truck ordered and a letter from the engineering department of the Kenworth Motor Truck Corporation questioning the advisability of constructing the truck. In the letter it was pointed out that the wheel base would be so long that ninety per cent of any weight placed on the truck immediately behind the cab would rest on the front axle. The defendant’s reaction to the letter was that “the engineering department isn’t buying the truck. I am buying it and paying my money for it and that is the way I want it built.”\nThe truck was constructed in accordance with the defendant’s desire and upon delivery he executed a check for the full purchase price. During 1947 and in January of 1948, the plaintiffs made various repairs to the truck, which included installing a new drive line assembly and also placed ten new tires on the truck. It is for these repairs and tires that the plaintiffs seek recovery in this action. No complaints were made to the plaintiffs about the truck until January of 1948. At that time the plaintiffs remedied the complaints by shortening the wheel base of the truck at no cost to the defendant.\nThe trial court made findings of fact in favor of the plaintiffs on the issues presented by both the complaint and the counterclaim and entered judgment against the defendant for the cost of the tires and' repairs. The findings recited that the truck was built in accordance with the defendant’s desires; that the defendant was advised by both Mr. Treadway and the engineering department of Ken-worth Motor Truck Corp. that the truck would not be *251properly balanced in that too much weight would rest on the front axle, and consequently that Kenworth would not guarantee the performance of the truck; that the defendant nevertheless informed Mr. Treadway that he desired the truck to be built as specified by him; that subsequent to the delivery of the truck, the defendant experienced difficulty with the truck in that the front tires would frequently blow out when a load was placed on the truck; that this difficulty was due to the fact that the wheel base of the truck was too long, throwing too much weight on the front end of the truck; and that although the defendant was aware of the reason why the front tires blew out, he made no demand upon the plaintiffs to remedy the difficulty until just prior to January 5, 1948; that the plaintiffs made no special warranty on the truck and that having fully performed under the contract of sale, they were entitled to judgment for the reasonable value of the tires and repairs made to the truck by the plaintiffs.\nThe defendant assigns as error the lower court’s refusal to find that the plaintiffs warranted the truck to be capable of transporting the defendant’s equipment. There was no error, however, because there is competent evidence in the record to support the court’s finding that the plaintiffs did not so warrant it. As heretofore stated, the plaintiffs adduced testimony that both Mr. Treadway and the engineering department of the Kenworth Motor Truck Corporation questioned the advisability of constructing a truck with a wheel base of the length desired by the defendant, but when the defendant assured them that “he could handle it,” they acceded to his desire. Certainly on the strength of this evidence the trial court was justified in refusing to find that the plaintiffs warranted it to be capable of hauling the defendant’s equipment. The defendant refers us to the testimony of Mr. Treadway upon cross-examination where he stated that although the engineering department questioned the advisability of constructing the *252truck according to the defendant’s specifications, the department was of the opinion that it would prove satisfactory to the defendant. This testimony does not compel a finding that the plaintiffs warranted that it would be satisfactory for the defendant’s use. It is important to note in this regard that the engineering department qualified its opinion by stating that it thought the truck would prove satisfactory to the defendant if he did not place any weight on it immediately behind the cab, but properly balanced the weight towards the rear of the truck.\nHaving then decided that the lower court did not err in refusing to find that the plaintiffs warranted the truck to be capable of transporting the defendant’s equipment, it follows that there was no error on the part of the court in entering judgment for the plaintiffs on their complaint and in refusing to enter judgment for the defendant on his counterclaim for loss of profits allegedly sustained by him as a result of a claimed breach of warranty. The defendant contends, however, that the plaintiffs at least warranted that the truck when standing empty would be properly balanced. Assuming this to be true, the court was not required to believe the defendant’s testimony that the front axle was overloaded when the truck stood empty. The plaintiffs strongly maintained at the trial that it was properly balanced when standing empty. Mr. Treadway, who was present when the defendant weighed the truck at a tire dealer’s suggestion and found that the front axle was over loaded, testified that the defendant had a tank on it immediately behind the cab, which, as the engineering department had warned him, would overload the front axle.\nThe defendant contends that the court committed error in refusing him the right to cross-examine Mr. Treadway as to whether the defendant ordered the tires and the repairs made to his truck or whether the plaintiffs agreed to furnish them without charge under a warranty of sale. The record reveals, however, that the *253lower court only refused to allow the defendant to cross-examine Mr. Treadway on a matter which it considered not proper cross-examination. Counsel for the defendant had asked Mr. Treadway whether he had told the defendant at the time that the truck was delivered, that there was a vibration in the truck, but that it would not do any harm. The lower court sustained the plaintiff’s objection to that question on the ground that it was connected with the defendant’s counterclaim and hence should not be asked until evidence was introduced on the counterclaim. Subsequently, on rebuttal, it appears from the record that the defendant cross-examined Mr. Treadway in regard to whether he had told the defendant at the time that the truck was delivered, that the truck vibrated. Thus it is clear that there was no prejudicial error on the part of the court in this regard.\nWe have examined the other assignments of error made by the defendant, but find them to be without merit.\nThe judgment below is affirmed. Costs to the respondents.\nPRATT, C. J., and WADE, LATIMER, and McDON-OUGH, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"treadway-v-glenn"} {"attorneys":"Wolf, Popper, Ross, Wolf & Jones, New York City, for plaintiff; Howard L. Jacobs, New York City, of counsel., Harold L. Young, New York City, for defendants Martin S. Ackerman, Perfect Film & Chemical Corp. and E. Eugene Mason., Debevoise, Plimpton, Lyons & Gates, New York City, for defendant-trustees Cary W. Bok, Derek C. Bok, Robert D. Patterson and Mary Curtis Zimbalist; Peter W. Williamson, New York City, of counsel., Lord, Day & Lord, New York City, for defendants Harry C. Mills, Milton S. Gould, G. B. McCombs; Moreau D. Brown, Walter S. Franklin, Thomas S. Hyland and Lawrence R. Kessel; John W. Castles, New York City, of counsel., Dewey, Ballantine, Bushby, Palmer & Wood, New Yoi'k City, for Curtis Publishing Co.; Robert A. Meister, New York City, of counsel.","case_name":"Wolf v. Ackerman","case_name_full":"Miriam J. WOLF v. Martin S. ACKERMAN","case_name_short":"Wolf","citation_count":0,"citations":["308 F. Supp. 1057"],"court_full_name":"District Court, S.D. New York","court_jurisdiction":"New York, NY","court_short_name":"S.D. New York","court_type":"FD","date_filed":"1969-11-20","date_filed_is_approximate":false,"id":8793004,"judges":"Lasker","opinions":[{"author_str":"Lasker","ocr":true,"opinion_id":8777010,"opinion_text":"\nMEMORANDUM\nLASKER, District Judge.\nDefendant Curtis Publishing Company (“Curtis”) moves to transfer this action to the United States District Court for the Eastern District of Pennsylvania pursuant to Section 1404(a) of Title 28, U.S.C. Plaintiff counter-moves to stay the prosecution of Bok v. Ackerman, a suit pending in the Eastern District of Pennsylvania, described below. The motions are discussed seriatim.\n1. Motion to transfer.\nThis suit is one of several brought in the aftermath of the now terminated control by defendant Martin S. Acker-man (“Ackerman”) and defendant Perfect Film & Chemical Corp. (“Perfect”) of defendant Curtis and its well known publications, including the Saturday Evening Post. The action is a stockholder’s derivative suit on behalf of Curtis and its wholly owned subsidiary Saturday Evening Post Co. (“Post Co.”). Jurisdiction is established by Section 27 of the Securities Exchange Act of 1934, as amended (15 U.S.C. § 78aa). The complaint alleges violations of Section 10(b) of the Act (15 U.S.C. § 78j(b)) and Rule 10b-5 thereunder.\nThe elaborate complaint contains nine “counts,” each of which describes a different way in which Ackerman or Perfect, or both, allegedly “looted” Curtis alone or Curtis and one or more of its subsidiaries.1 The relief sought in-*1059eludes an accounting for all profits, rescission of sales of Curtis assets to Perfect, and appointment of a receiver for Curtis and Post Co.\nAt the time the motion to transfer was argued, two suits were pending in the United States District Court for the Eastern District of Pennsylvania in relation to the subject matter and one in the New York State Supreme Court, New York County. The New York state court action has since been stayed pending “final determination of the actions in the Federal Courts.”\nOf the two cases pending in the Eastern District of Pennsylvania, one (Bok v. Ackerman) was, like the present action, a stockholder’s derivative suit brought on behalf of Curtis. The other (The Curtis Publishing Company v. Perfect Film & Chemical Corp.) was brought directly by Curtis after its board of directors was no longer under the dominance of Ackerman. Curtis now moves to transfer the proceeding herein to the Eastern District of Pennsylvania. Before discussing the merits of the motion, it is to be noted that the Bok and Curtis cases have been consolidated in the Eastern District of Pennsylvania and are untried sub judice before Judge Higginbotham. Since the argument of the motion which forms the basis of the present opinion, substantial progress has been made towards settling the consolidated cases before Judge Hig-ginbotham.\nThe interrelationship between the instant suit and the Pennsylvania litigation is a primary factor in determining both the motion to transfer and the motion to stay. Counsel on both sides are in dispute as to whether there is any substantial difference between the scope of the Wolf complaint on the one hand and the scope of the Bok and Curtis on the other. In particular, plaintiff’s counsel contends that the Pennsylvania suits do not cover allegations contained in Counts 2, 3, and 5 of the Wolf complaint.2 Bearing in mind *1060the critical nature of a determination as to whether the scope of the Bok and Curtis complaints is as broad as that of the complaint before me, I have carefully analyzed and compared them. I conclude that, although the language and method of expression understandably, if not inevitably, vary between the Wolf and the Pennsylvania complaints, nevertheless, for the purposes determinative of this motion, the substance and scope of the Pennsylvania complaints is as broad as that of Wolf, and the Pennsylvania complaints encompass all the transactions covered by the Wolf complaint.\n* * *X*\nTitle 28, U.S..C. § 1404(a), provides:\n“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”\nIn the instant case there is neither doubt nor dispute that the case “might have been brought” in the Eastern District of Pennsylvania. As stated in Wyndham Associates v. Bintliff, 398 F.2d 614, 620 (2d Cir. 1968):\n“Section 27 of the Securities Exchange Act provides that suit to enforce liabilities under the Act or any rule or regulation thereunder may be brought in any district wherein any act or transaction constituting the violation occurred.”\nHere it is clear that acts or transactions constituting the alleged violations occurred in the Eastern District of Pennsylvania. The question therefore is whether the convenience of parties and witnesses and the interest of justice warrant transfer of this action to the Eastern District of Pennsylvania or whether it should remain for trial in this court.\nDetermination of the convenience of the parties is made with relative ease in this case in view of the fact that, although originally opposed by some of the defendants, all the defendants now favor the transfer, and the only party opposing the motion is the plaintiff. It is of at least some importance in this connection to note statistically that there are 15 defendants who either request or acquiesce in the request that the case be transferred, and that of the 15 defendants four (Ackerman, Perfect, Gould and Kessel) reside or have their principal place of business in New York, one (Hyland) resides in Connecticut, one (Cary Bok) resides in Maine, one (Derek Bok) resides in Massachusetts, and one (Mills) is described as a resident of New York and Florida. The remaining defendants reside in Pennsylvania, primarily in the Philadelphia area.\nWhile the cases have given substantial weight to a plaintiff’s choice of forum (e.g., Zorn v. Anderson, 263 F.Supp. 745, 749 (S.D.N.Y. 1966); Oil & Gas Ventures, etc. v. Kung, 250 F.Supp. 744 (S.D.N.Y. 1966), that presumption is not so rigidly applied in the case of derivative suits on behalf of corporations. As the Supreme Court stated in Koster v. Lumbermen’s Mut. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) (a stockholder’s derivative action) :\n“ * * * where there are hundreds of potential plaintiffs, all equally entitled voluntarily to invest themselves with the corporation’s cause of action and all of whom could with equal show of right go into their many home courts, the claim of any one plaintiff that a forum is appropriate merely because it is his home forum is considerably weakened.”\nSee also Schlusselberg v. Werly, 274 F.Supp. 758, 763 (S.D.N.Y. 1967); Miller *1061v. Steinbach, 268 F.Supp. 255, 283 (S.D.N.Y. 1967); Gold v. Scurlock, 290 F.Supp. 926 (S.D.N.Y. 1968).\nIn light of the policy expressed by the Supreme Court in Koster, supra, and the fact that here the plaintiff is apparently the only party whose convenience would be adversely affected by the transfer, while 15 other parties residing in a variety of states support the motion and would be convenienced in one manner or another, I find that the convenience of the parties favors granting the motion.\nAt the request of the court, counsel have submitted information as to the witnesses they propose to call, and it is clear from this documentation that the parties themselves will play the central role as witnesses in the case. This fact is highlighted, for example, by the statement of plaintiff’s counsel that Acker-man will be “without doubt the key witness.” Since the structure of this case is such that the parties themselves will be the primary witnesses, it appears that the “convenience of the witnesses” would also be served by transferring the action to the Eastern District of Pennsylvania. If these considerations were not sufficient to determine the matter, although it is believed that they are, the balance would certainly be tipped in favor of transferring the action to the Eastern District of Pennsylvania in view of the facts that the consolidated Bok and Curtis cases are pending there before Judge Higginbotham; that the Bok case was brought prior to the instant action; that substantial progress has been made in the settlement of those actions; that such proposed settlement will be submitted for approval to Judge Higginbotham, who will have thoroughly familiarized himself with the details of the cases, so that a settlement of the present action will be facilitated if one can be reached, or a trial of the issues if a settlement cannot be reached. In this connection it is to be noted that the proposed Pennsylvania settlement agreement provides for dismissal not only of the actions pending in the Eastern District of Pennsylvania, but also “all other litigation arising out of the transactions set forth in said civil actions.” I have observed above that, in my opinion, the transactions set forth in the Bok and Curtis cases are the same as those set forth in the Wolf complaint. But whether I am correct or not, it is proper that the disposition of the Wolf case should be acted upon in the jurisdiction in which the Bok and Curtis settlement is being supervised and approved. If the plaintiff before me is satisfied that the proposed settlement covers her complaint, there will, of course, be no problem. If, on the other hand, plaintiff argues that the proposed settlement does not cover certain counts in her complaint, she clearly could make known her objections to the proposed settlement in the Philadelphia forum and thereby assure that the allegations purportedly set forth in her complaint are included in the final settlement. In the light of these considerations, sound judicial policy suggests emphatically that the Wolf matter should be sub judice before the court which approves the settlement of the sister cases.\nAs Judge Bryan has pointed out (Rodgers v. Northwest Airlines, Inc., 202 F.Supp. 309, 313 (S.D.N.Y. 1962)):\n“The benefits and advantages to all parties in having the related actions considered in one jurisdiction under one judge are obvious. Pre-trial proceedings can be conducted more efficiently, duplication of time and effort can be avoided and the benefit to witnesses and to the parties calling them in having them attend only once at one location is plain. Furthermore, to require defendants to relitigate the issue of liability in a number of forums would be vexatious and would not serve the ends of justice.”\nSee also Axe-Houghton Fund A, Inc. v. Atlantic Research Corp., 227 F.Supp. 521 (S.D.N.Y. 1964).\nA final additional reason for supporting the transfer of the present *1062case to the Eastern District of Pennsylvania is that plaintiff seeks the appointment of a receiver for Curtis. The appointment of a receiver, if there is to be one, should be made by a court located in the community from which the receiver will be chosen; and it would be considerably more logical that, if a receiver is to be appointed for Curtis, he should emanate from Philadelphia, the center of Curtis’ activities. Johnson v. Baker, 81 F.Supp. 563, 565 (S.D.N.Y. 1948).\n2. Motion to stay the Pennsylvania action.\n The motion to stay the case of Bok v. Ackerman is predicated upon the assertion that Bok will not adequately represent and protect the interests of the stockholders of Curtis. To enjoin the prosecution of an action pending in another United States District Court before an able judge would be to impose a drastic remedy which I am unwilling to invoke without the clearest possible showing that such relief is warranted. The papers submitted in support of the motion to stay the Bok action do not sustain that high burden of proof. The allegations of the affidavit in support of the motion are based on the highly debatable theory that because Mr. Bok did not take affirmative action against Ackerman during the period of Ackerman’s dominance, he “acquiesced” in Ackerman’s acts and has by that acquiescence demonstrated his lack of qualification to represent the interests of the Curtis stockholders. Aside from the fact that such theorization is too speculative to support the issuance of a stay against litigation pending in another district, the affidavit of Ernest R. von Stark in opposition to the motion casts the most serious doubt upon the contentions made by the plaintiff. Specifically, Mr. von Stark, who has acted as attorney for the plaintiff in Bok v. Ackerman since the filing of the complaint, states:\n“Contrary to the allegations in the affidavit of Paul L. Ross, Esquire, submitted in support of the Motion for Stay, Cary W. Bok did not ‘approve of and acquiesce in all of the transactions complained of in the Wolf and Bok actions * * * ’ (affidavit, paragraph 5). In fact, Mr. Bok abstained from voting in favor of the appointment of Messrs. Ackerman and Mason as Directors of The Curtis Publishing Company and abstained from voting upon the election of defendant Ackerman as President of The Curtis Publishing Company. The first transaction challenged in the Complaint (paragraph 17) is the sale of the circulation and subscription companies by Curtis to defendant Perfect on May 17, 1968. Mr. Bok did not attend the meeting of the Board of Directors of Curtis on May 17, 1968 and, accordingly, did not vote in favor of the challenged transaction. Moreover, Mr. Bok did not attend any meeting of the Board of Directors of Curtis subsequent to May 17, 1968 and submitted his resignation as a Director on July 24, 1968. Because of his concern over the propriety of actions taken by defendants Acker-man, Mason and others with respect to The Curtis Publishing Company, Mr. Bok caused the retention of special counsel in October of 1968 to investigate the transactions entered into by defendant Ackerman in behalf of Curtis, and, on February 10, 1969 (prior to the institution of the suit in the instant case) authorized the filing of a stockholders’ derivative suit in the United States District Court for the Eastern District of Pennsylvania, seeking substantially the same relief as is claimed in the instant case.\n“Bok v. Ackerman has been vigorously prosecuted and will be vigorously prosecuted in the future both by the original plaintiff and by The Curtis Publishing Company. Moreover, consideration is now being given to amending the Complaint in that action to assert additional causes of action against the defendants. The simultaneous prosecution of the instant case and Bok v. Ackerman, with the consequent duplication of depositions and other pre-trial proceedings, would in*1063terfere with the orderly prosecution of Bok v. Ackerman; would be a substantial inconvenience to the litigants and witnesses; and would unnecessarily burden this Court.”\nNo refutation of Mr. von Stark’s affidavit has been made, and in the light of the considerations expressed above I find that it would be inappropriate to grant the requested stay.\nAccordingly, for the convenience of the parties and witnesses and in the interest of justice, the motion for transfer of the instant case to the Eastern District of Pennsylvania is granted. The motion for a stay of Bok v. Ackerman pending in the Eastern District of Pennsylvania is denied.\nSettle order on notice.\n\n. It is alleged that Ackerman, being president of Perfect, was on April 22, 1968 named president of Curtis by Curtis’ board of directors, and that Perfect agreed to loan Curtis $5,000,000; that, although these acts were claimed to have *1059been taken for the reason of improving Curtis’ financial condition, they were in fact taken to put Perfect and Acker-man in a position where they could and did “loot [Curtis] of all of its valuable assets through fraud and deceit”; that Ackerman caused Curtis to transfer its subsidiaries Curtis Circulation Co., National Magazine Service, Inc., Moore-Cot-trell Subscriptions Agencies, Inc., Keystone Readers Service and Curtis Distributing Company of Canada to Perfect for an inadequate consideration; that the members of the board of directors of Curtis other than Ackerman were clearly negligent in acquiescing in his and Perfect’s behavior; that Ackerman caused Curtis to sell its publications Ladies Home Journal and American Home to Downe Communications, Inc., for an inadequate consideration, and that the purchase price is still unpaid; that Ackerman caused Curtis to form the Saturday Evening Post Co. (“Post Co.”) and to transfer to this subsidiary its three remaining magazines, Saturday Evening Post, Holiday and Status; that Post Co. then entered into an agreement to purchase a stock interest in LIN Broadcasting Co., of which Ackerman was president, and that the price paid for the stock was excessive and served no corporate purpose of Post Co. or Curtis ; that in November 1968, Ackerman caused Curtis to issue to Perfect for inadequate consideration warrants to purchase the stock of the Post Co., this being for the sole benefit of Perfect and Ackerman; that in June 1968, Acker-man induced Time, Inc., to amend an existing agreement with Curtis so that circulation services were purchased from a subsidiary of Perfect rather than printing services from Curtis, thereby diverting profits from Curtis to Perfect; that Ackerman in May 1968 caused Curtis to transfer to Perfect, allegedly as repayment of loans made by Perfect to Curtis, assets of Curtis worth far in excess of the amount outstanding on the loans; that in October 1968, Ackerman caused Curtis to withdraw certain Pension Funds of Curtis, which were used for the benefit of Perfect and Ackerman rather than for Curtis; that Ackerman caused Curtis and Post Co. to purchase from Perfect services which were unnecessary, and caused Post Co. to transfer to Perfect for an inadequate consideration the right to publish Holiday and Status.\n\n\n. The specific contention made by plaintiff’s counsel in his letter of October 17 to the court is that Counts 2, 3 and 5 *1060of the Wolf complaint are not covered by the stipulation outlining the proposed settlement in the Bok and Curtis cases. However, since the stipulation of proposed settlement by its terms disposes of all claims under the Bok and Curtis complaints, an analysis of the stipulation must necessarily involve an analysis of the complaints themselves.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"wolf-v-ackerman"} {"attorneys":"H. S. Deming and Wharton Poor, both of New York City, for libel-ant. •, Ploward Thayer Kingsbury, of Newi York City, for British Embassy., John M. Woolsey and D. M. Tibbetts, both of New York City, for respondent.","case_name":"Texas Co. v. Hogarth Shipping Co.","case_name_full":"TEXAS CO. v. HOGARTH SHIPPING CO., Limited","citation_count":0,"citations":["265 F. 375"],"court_full_name":"District Court, S.D. New York","court_jurisdiction":"New York, NY","court_short_name":"S.D. New York","court_type":"FD","date_filed":"1919-02-03","date_filed_is_approximate":false,"disposition":"Libel dismissed.","headnotes":"I, Shipping <@=39 — Claus© in charter held not equivalent to restraint of princes clause.
Glauses in a charter limiting the use to trade lawful for ships of that nationality, and prohibiting broach of warranties in insurance policies that the ship shall comply with the orders of the government, and shall not start on a voyage, if ordered not to do so, are not equivalent to the ordinary restraint of princes clause.
3. Shipping <3=39 — Charter becomes one for particular vessel, when vessel is designated.
Where the charter left the particular vessel for the voyage to be designated at a date fixed therein, and the vessel was designated in accordance with those terras, the charter then became a charter for the voyage for that vessel, and no other.
3. Shipping <3=51 — Formal requisition by government immaterial, after chartered ship is taken without owner’s consent.
Where a chartered ship was taken by the owner’s government for war use. without the consent of the owner or any act by him to induce such taking, except to have it used for a more profitable transportation, it is immaterial, in determining the owner’s rights under a charter, whether there was a valid requisition by the government or not.
4. Shipping <@=51 — Owner not obliged to substitute another vessel for one taken by government.
Where the vessel which the owner chartered for a particular voyage was taken by the owner’s government before time for the voyage, the owner was not obliged to substitute another vessel to perform the charter.
5. Shipping <3=51 — Taking of vessel by foreign government renders performance of charter impossible.
Where a vessel was taken by the owner’s government for war use without the owner’s procurement or consent, the performance of a charter for a voyage by that particular vessel was rendered legally impossible, so that the owner was not liable in damages for failure to furnish the vessel for the voyage.
6. Admiralty <@=31 — May recognize equitable defense of impossibility of per formance.
Courts of admiralty may recognize the defense of impossibility of performance of the charter, which is an equitable rather than a strictly lega! defense. v
«gssaFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
","id":8831157,"judges":"Hough","opinions":[{"author_str":"Hough","ocr":true,"opinion_id":8816094,"opinion_text":"\nHOUGH, Circuit Judge.\nReflection on this very interesting case has led to the belief that it very fairly presents a question not peculiar to the admiralty, nor logically depending for existence on a state of war, although war presents the problem in an acute way, and one attracting more genera! attention than is commonly given to the events of peace. That question is: Was the performance of the contract, for tire breach of which this action is brought, prevented by the impossibility of performing it, within the modern meaning of that phrase?\n[1] Much discussion has been had concerning the efficacy of the certificate of the British ambassador. I do not now think it necessary to-*377place judgment on any resolution of that query, and by some findings of fact will attempt to show why, and to reduce the case to the point of legal impossibility, by which phrase I mean an impossibility recognized by law as dissolving a contract. The parties executed an agreement or charter party containing no “restraint of princes” clause, and (as I construe the document) no other clause or rider thereof authorized either party to invoke the line of decisions construing and enforcing that phrase.\n[2] The charter named no special ship as the subject of hire for the voyage agreed upon. That was the only matter therein left open; but, the moment the shipowners named the Baron Ogilvy as the vessel to perform that agreement, the charter became an ordinary voyage charter for that vessel, and none other. She was for all legal purposes the ship, and the only ship, that could perform that particular agreement.\n[3] Whether there was what libelants call a “valid requisition” by the British crown or not is immaterial, in the sense that the point is not controlling. If I accept the certificate of the ambassador, of course there was; but I avoid without decision that question, now before higher authority in The Gleneden, and hold on the evidence that the British government took and used the Baron Ogilvy, at and during the very time when the respondents had agreed to devote her to libelant’s service, and further that such use was in invitum, except in the sense that all British shipowners were, I presume, patriotically willing to have their vessels used for warlike purposes if and when no •other man’s ship was available.\nIn point of fact, respondents did not cause nor contribute to the taking over by government of the Ogilvy; probably‘it was no great surprise, but libelant was equally aware at and after charter date of the possibility of requisition. As matter of law, respondents were not bound to use effort to prevent requisition — i. e., to shift the burden to some other shipowner’s shoulders in the interest of either themselves or libelants — and it was entirely within their right to seek (when governmental use was certain) the carriage of mules, instead of something else, if mules promised less loss than other probable freight. This they did; nothing more.\n[4] Finally, libelants were under no legal obligation to substitute another vessel for the Ogilvy, any more than they were bound to make a new charter with libelants. Legally the two propositions are identical.\n[5] Thus the question for decision comes to this: If the means, and the only means, whereby an American contract can be performed, is taken away by a foreign government, so that performance becomes physically impossible, is the contract dissolved, so that losses or damages resulting from nonperformance lie where they fell in the first instance ? This is a large query; but some of the elements stated are still immaterial or irrelevant. The fact that the interfering action was governmental and foreign has been the groundwork or moving cause of libelant’s action; that is, reliance is placed on decisions holding that foreign governmental vis major preventing performance does *378not excuse. No decision binding on this court goes so far as to give the rule as above stated and insisted on by libelant. Whether the English cases touching the matter can be reconciled I more than doubt, and am not much concerned with; but neither Liverpool, etc., Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788, nor Rederiaktiebolaget Amie v. Universal Transp. Co., 250 Fed. 400, 162 C. C. A. 470, decided more than that one who in this country made a lawful contract, not in accord with the law of his own country, could not plead the foreign law to prevent his paying damages.\nThat is a very different thing from destroying (in a very real sense) the subject-matter of agreement. If it be true, as I believe it to be, that .for the purposes of this suit the Ogilvy was or became nonexistent, then the governmental element becomes as unimportant as the foreign, also the absence of the “restraint” clause, and the question is really reduced to its lowest terms, viz. whether the facts present a case of that “impossibility of performance” which is and long has been a recognized and growing reason for dissolving a contract.\nThat “ordinarily” impossibility is no defense has been said often enough. It was a common-law rule, and is consonant with the often referred to “unmorality” of our immemorial custom. For lawyers’ purposes it practically rests on Paradine v. Jayne, Aleyn, 26. For a modern application, see Rowe v. Peabody, 207 Mass. 226, 93 N. E. 604. But the defense is equitable, at least in a broad sense, and as equitable defenses have made their way at law, so the doctrine of impossibility has advanced.\nWars, and the demands and destructions of war, do not change the law in one sense; but in another they do, by multiplying and enforcing circumstances showing the need of change — of modernization. Without war, there had come to be recognized (inter alia) two well-known grounds of dissolution by impossibility — destruction of subject-matter without any one’s fault, and failure of mutually contemplated means of performance. Under these heads the Great War has only furnished innumerable instances and applications. . I think this litigation is one of them.\nFor tracing through multiplied decisions, and attempting to recognize and display the dominant lines of argument, I have no time; nor is that sort of thing useful in a court of first instance. • Respondent’s brief consists frankly in Mr. Mackinnon’s pamphlet, “Effect of War on Contract.” With its reasoning I agree, though (as above indicated) it seems to me more philosophical to regard the matter as a growth of equity, humanizing the common law.\n[6] In admiralty we may recognize and enforce equitable principles, without the strain that is often amusingly evident on the law side. The matter is one that has attracted comment for years in legal periodicals; reference to the volumes of the Harvard Law Review as noted below1 will give a key to the modern American cases. Of destruction of subject-matter, Martin Emerick Outfitting Co. v. Siegel, 237 Ill. 610, 86 N. E. 1104, 20 L. R. A. (N. S.) 1114, is a good ex*379ample, and of failure of contemplated means, Clarksville, etc., Co. v. Harriman, 68 N. H. 374, 44 Atl. 527.\nThe phrase “frustration of venture” has obtained much vogue of late, and The Allanwilde, 248 U. S. 377, 39 Sup. Ct. 147, 63 L. Ed. 312, 3 A. R. R. 15, will increase it. To me it seems only an equivalent for, and no improvement on, “impossibility of performance,” using impossibility in the practical sense so well illustrated by Maulé, J., when he pointed out that a shilling might be retrieved from deep water, yet legally it was “impossible” to do it, because no sensible man would attempt the foolish job.\nRibel dismissed, with costs.\n\n Vols. 14, p. 464; 15, pp. 63 and 418; 19, p. 462; and 12, p. 501.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"texas-co-v-hogarth-shipping-co","summary":"In ■ Admiralty. Libel by the Texas Company against the Hogarth Shipping Company, Limited, and another. Final hearing in Admiralty. Action for breach of voyage charter party. In February, 1915, a written agreement was made in New York between libel-ant (an American corporation) and Hogarth Shipping Company (a British corporation), -whereby libelant agreed to charter a steamship to carry a cargo of case petroleum from Port Arthur, Tex., to South African ports, lading to be made between April 15 and May 15, and steamship to he declared on or before March 15. On or about March 11, Hogarth Company declared the British steamship Baron Ogilvy to fulfill this contract, and libelant accepted her. At this date a large proportion (two-tlilrds) of respondent’s vessels were in government service, the demand lor shipping by the British government was increasing, the Ogilvy was a cargo boat, suitable for carriage of live stock as well as ordinary freight, and before the end of March, the Ogilvy being then in English waters, respondents were advised that her “requisitioning” was likely; the possibility of such governmental action was known to both parties when the chartering contract was made in February. The said contract contained no “restraint of princes,” etc., clause, but did contain the following: “It is a condition of this charter and the charterers undertake that: (X) The ship shall be employed only in such trades and employments and shall carry only such goods, persons and things ás are lawful for a British ship. * * * (3). There shall not be any breach of any of the warranties which are now or may during the continuance of this charter be contained in the policies or contracts of insurance of the ship with the War Risks Insurance Association in which the ship is entered. The warranties now contained in such policies are as follows: (a) That the ship shall comply, so far as possible with the orders of his majesty’s government and the directions or the committee as to routes, ports of call and stoppages, (b) That the ship shall not start on tbe voyage if ordered by his majesty’s government not to-do so. * * * The above clauses to be incorporated in all bills of lading.” On April XO a representative of the “Lord Commissioners” of the British Admiralty telegraphed to respondent’s agents in Glasgow that “The Baron Ogilvy is requisitioned under royal proclamation for government service.” This telegram was received by a member of the firm of Hugh Hogarth & Sons, managers for Hogarth Shipping Company, owners of the Ogilvy and XX other steamships. No reason appears why the copartnership should have been joined in this action, and no further attention will be paid to such joinder. Respondents did not seek this governmental occupation, which was far less profitable than their charter with Texas Company, nor did they attempt to have the requisition set aside, but there is some evidence that they succeeded in having the Ogilvy devoted to the carriage of mules at somewhat higher rates than other cargo. The loss, however, as compared with the agreed cargo of petroleum, was severe. Libelants were at once notified that, owing to the requisition, respondents would be unable to enter upon or perform their charter agreement of February, and it was fully proved that the Ogilvy was exclusively and continuously used by the British government from April XO until October 20, X9X5, or until a date long subsequent to the probable completion of the chartered voyage. In September X9X5, this libel was filed, claiming damages for breach of charter by refusing to tender the Ogilvy for loading. The answer alleged (X) frustration of contract and (2) that the quoted clauses of the charter agreement were equivalent to the usual “restraint of princes” clause. Before hearing the British ambassador obtained leave to appear as amicus curife,_and filed a suggestion and certificate, which in effect stated the fact of requisition and the dates of use of the steamship, declared that such requisition was for an indefinite period, and avowed the whole transaction as a “governmental act by the government of Great Britain and Ireland.”"} {"case_name":"Sanders v. United States","case_name_full":"Sanders et vir v. United States","case_name_short":"Sanders","citation_count":0,"citations":["531 U.S. 1015"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"2000-11-27","date_filed_is_approximate":false,"id":9258835,"opinions":[{"ocr":true,"opinion_id":9253652,"opinion_text":"\nC. A. 2d Cir. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"sanders-v-united-states"} {"case_name":"Deneeko Travon Shavers v. the State of Texas","citation_count":0,"court_full_name":"Court of Appeals of Texas","court_jurisdiction":"Texas, TX","court_short_name":"Court of Appeals of Texas","court_type":"SA","date_filed":"2023-06-01","date_filed_is_approximate":false,"id":9404563,"opinions":[{"download_url":"https://search.txcourts.gov/RetrieveDocument.aspx?DocId=14029&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa06%5cOpinion","ocr":false,"opinion_id":9400039,"opinion_text":" Court of Appeals\n Sixth Appellate District of Texas\n\n JUDGMENT\n\n\nDeneeko Travon Shavers, Appellant Appeal from the 102nd District Court of\n Bowie County, Texas (Tr. Ct. No.\nNo. 06-23-00100-CR v. 22F1020-102). Memorandum Opinion\n delivered by Justice Rambin, Chief Justice\nThe State of Texas, Appellee\n Stevens and Justice van Cleef participating.\n\n\n\n As stated in the Court’s opinion of this date, we find that the appeal should be dismissed\nfor want of jurisdiction. Therefore, we dismiss the appeal.\n We note that the appellant, Deneeko Travon Shavers, has adequately indicated his\ninability to pay costs of appeal. Therefore, we waive payment of costs.\n\n\n\n RENDERED JUNE 1, 2023\n BY ORDER OF THE COURT\n SCOTT E. STEVENS\n CHIEF JUSTICE\n\nATTEST:\nDebra K. Autrey, Clerk\n\f","page_count":1,"per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"deneeko-travon-shavers-v-the-state-of-texas"} {"attorneys":"Raymond E. Scott, Cullen, Sloman, Cantor, Grauer, Scott & Rutherford, P.C., Detroit, Mich., argued, for appellant. With him on brief was Ralph T. Rader., J. Robert Cassidy, Hughes & Cassidy, P.S., Sumas, Wash., argued, for appellees.","case_name":"Mainland Industries, Inc. v. Standal's Patents Ltd., and Roderick E. MacDonald as of the Estate of George M. Standal","case_name_full":"MAINLAND INDUSTRIES, INC., Appellant, v. STANDAL’S PATENTS LTD., and Roderick E. MacDonald, as Executor of the Estate of George M. Standal, Appellees","citation_count":13,"citations":["799 F.2d 746"],"court_full_name":"Court of Appeals for the Federal Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Federal Circuit","court_type":"F","date_filed":"1986-08-20","date_filed_is_approximate":false,"headmatter":"\n Before MARKEY, Chief Judge, and FRIEDMAN and BISSELL, Circuit Judges.\n
","id":475359,"judges":"Bissell, Friedman, Markey","opinions":[{"author_str":"Bissell","download_url":"http://bulk.resource.org/courts.gov/c/F2/799/799.F2d.746.86-667.html","ocr":false,"opinion_id":475359,"opinion_text":"799 F.2d 746\n 55 USLW 2152, 230 U.S.P.Q. 772\n MAINLAND INDUSTRIES, INC., Appellant,v.STANDAL'S PATENTS LTD., and Roderick E. MacDonald, asExecutor of the Estate of George M. Standal, Appellees.\n Appeal No. 86-667.\n United States Court of Appeals,Federal Circuit.\n Aug. 20, 1986.\n \n Raymond E. Scott, Cullen, Sloman, Cantor, Grauer, Scott & Rutherford, P.C., Detroit, Mich., argued, for appellant. With him on brief was Ralph T. Rader.\n J. Robert Cassidy, Hughes & Cassidy, P.S., Sumas, Wash., argued, for appellees.\n Before MARKEY, Chief Judge, and FRIEDMAN and BISSELL, Circuit Judges.\n BISSELL, Circuit Judge.\n \n \n 1\n Mainland Industries, Inc. (Mainland) appeals from the judgment of the United States District Court for the District of Oregon, No. Civ. 81-928-BE which found the U.S. patents Nos. 3,190,326 ('326) and 3,282,312 ('312) of Standal's Patents Ltd. not invalid, enforceable and infringed by Mainland's chipper machines, cutters and knives. We affirm.\n \n BACKGROUND\n Procedure\n \n 2\n Mainland filed a declaratory judgment action on October 2, 1981, against Roderick E. MacDonald, as executor of the estate of George M. Standal (Standal), and Standal's Patents Ltd. (collectively referred to as Standal's Patents) requesting a declaration of invalidity, unenforceability and noninfringement of the patents in suit. Standal's Patents filed its answer to the complaint and counterclaimed, alleging infringement of the '326 and '312 patents, false marking under 35 U.S.C. Sec. 292(a), violations of the United States antitrust laws, and unfair competition. Upon motion of Mainland, the counterclaims for false marking on the knife blade, alleged antitrust violations and unfair competition were dismissed. The counterclaim for false marking in advertising brochures remained an issue for trial.\n \n \n 3\n The issues of invalidity, unenforceability and infringement of the patents in suit and the remaining false marking counterclaim were tried to a jury. During the course of the trial, the trial judge admitted into evidence, over Mainland's objection, a videotaped deposition of Standal taken shortly before his death, during Canadian litigation for patent infringement filed by Standal's Patents against Mainland's Canadian parent, Bow Valley Resource Services, Ltd.\n \n \n 4\n The jury returned the verdict in the form of answers to twenty-three interrogatories, and found that the patents in suit were not invalid, were enforceable and infringed by Mainland, and that Mainland committed false marking in its advertising brochures. Mainland moved at the appropriate times for a directed verdict and a judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial. These motions, denied by the district court, were directed to several issues:\n \n \n 5\n (1) whether, as a matter of law, litigation in a foreign jurisdiction cannot constitute reasonable excuse for delay in alleging infringement;\n \n \n 6\n (2) whether there was substantial evidence to support the jury's findings that Mainland infringed, that no inequitable conduct occurred before the U.S. Patent and Trademark Office (PTO), and that Mainland practiced false marking in its advertising brochures; and\n \n \n 7\n (3) whether the videotaped testimony of Standal should have been excluded from the evidence.\n \n OPINION\n \n 8\n In this case we are not reviewing a \"naked\" general verdict, but a verdict accompanied by Rule 49(b), Fed.R.Civ.P., answers to interrogatories which assist our review in determining whether there is substantial evidence to support the jury's findings. The motions for JNOV or new trial are reviewed in connection with the appeal from the judgment entered on the verdict. Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1512, 220 USPQ 929, 935 (Fed.Cir.), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984).\n \n Denial of the JNOV Motion\n \n 9\n This court has outlined the analysis that the trial judge must perform in considering a motion for JNOV. The trial judge (1) must consider all the evidence in a light most favorable to the non-mover, (2) must not determine credibility of witnesses, and (3) must not substitute his choice for that of the jury's in deciding between conflicting elements in the evidence. Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893, 221 USPQ 669, 672 (Fed.Cir.), cert. denied, 469 U.S. 857, 105 S.Ct. 187, 83 L.Ed.2d 120 (1984); Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1546, 220 USPQ at 197 (Fed.Cir.1983).\n \n \n 10\n In order to convince this court that the trial judge erroneously denied the JNOV motion, Mainland must show that the jury's findings, presumed or expressed, were not supported by substantial evidence, Power Lift, Inc. v. Lang Tools, Inc., 774 F.2d 478, 227 USPQ 435, 436 (Fed.Cir.1985); Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 758, 221 USPQ 473, 477 (Fed.Cir.1984); see also Railroad Dynamics, 727 F.2d at 1513, 220 USPQ at 936; Perkin-Elmer, 732 F.2d at 893, 221 USPQ at 673, or that the trial judge abused his discretion in permitting the jury to consider the Canadian litigation as a factor bearing on the reasonableness of the delay. See Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734, 742, 220 USPQ 845, 850 (Fed.Cir.1984).\n \n A. Laches and Estoppel\n \n 11\n In order to assert the defense of laches successfully Mainland must prove (1) unreasonable and unexcusable delay in the assertion of the claim and (2) material prejudice resulting from the delay. Leinoff, 726 F.2d at 742, 220 USPQ at 850. Laches, however, bars only the right to recover pre-filing damages.1 Id. On the other hand, equitable estoppel bars claims for patent infringement if Mainland committed itself to act, and acted as a direct consequence of the conduct of Standal's Patents. See Young Engineers, Inc. v. ITC, 721 F.2d 1305, 1317, 2 Fed.Cir. (T) 9, 23 (1983) (estoppel to assert patent rights requires (1) unreasonable and inexcusable delay, (2) prejudice to the defendant, (3) affirmative conduct by patentee inducing belief of abandonment of claims against the alleged infringer, and (4) detrimental reliance by the infringer); Stickle v. Heublein, Inc., 716 F.2d 1550, 1559, 219 USPQ 377, 383 (Fed.Cir.1983) (estoppel by implied license cannot arise out of unilateral expectations or even reasonable hopes of one party); Studiengesellschaft Kohle, m.b.H. v. Dart Industries, Inc., 726 F.2d 724, 220 USPQ 841 (Fed.Cir.1984) (five year silence alone is not enough to give rise to estoppel).\n \n \n 12\n Once the delay in asserting infringement exceeds six years, the burden of proof shifts from the alleged infringer to the patentee to prove the existence and reasonableness of the excuse and to show lack of injury. Leinoff, 726 F.2d at 742, 220 USPQ at 850. This shifting of the burden of proof does not, however, change the nature of the inquiry, which remains essentially a fact specific inquiry determined in light of facts of each case. Leinoff, 726 F.2d at 742, 220 USPQ at 850; see also Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1550, 221 USPQ 1, 10 (Fed.Cir.1984).\n \n \n 13\n The thrust of Mainland's position is that Standal's Patents is barred under the doctrines of laches and estoppel from asserting patent infringement for two reasons: (1) litigation outside the United States is no excuse for delay, and (2) Mainland is prejudiced by the delay due to the death of many persons with actual knowledge of the facts and the unavailability of certain documents due to the lapse of time. This second assertion remains unsupported by any facts.\n \n \n 14\n In carrying its burden of proof, Standal's Patents submitted evidence both to show the delay was justified, and that Mainland was not prejudiced by the delay. Mainland in rebuttal offered no evidence of additional investment in the business, increased advertising expenses, improvements made to its equipment or any other change in reliance upon Standal's Patents' delay. The jury was instructed that other patent litigation could not excuse the delay in pursuing the patent infringement claim unless Mainland understood Standal's Patents' intention to pursue its patent rights. These instructions were not objected to.\n \n \n 15\n The trial judge reviewed the jury's findings on laches and estoppel and found them supported by substantial evidence. We agree with the conclusion of the trial judge: Mainland has failed to set forth how the jury's findings on laches and estoppel are not supported by substantial evidence. Moreover, we are unwilling to say as a matter of law that litigation in non-United States forums cannot be considered in determining excusable delay2 and on the factual record of this case, it was not an abuse of discretion to allow the jury to consider that foreign litigation.\n \n B. Remaining Issues\n \n 16\n Mainland argues that there is no substantial evidence to support the jury findings on inequitable conduct, infringement and false marking. We have considered Mainland's arguments and have carefully reviewed the evidence relied upon at trial, and conclude that the findings on inequitable conduct, infringement, and false marking are supported by substantial evidence. No error in the jury instructions is presented. It was with these instructions that the jury answered twenty-three interrogatories, including separate questions for each element of these issues. \"Determining the weight and credibility of the evidence is the province of the trier of fact.\" Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 856, 102 S.Ct. 2182, 2189, 72 L.Ed.2d 606, 214 USPQ 1, 7 (1982).\n \n Denial of the Motion for New Trial\n \n 17\n Appellate review of a motion for new trial is conducted on an abuse of discretion standard. Railroad Dynamics, 727 F.2d at 1512, 230 USPQ at 935. Mainland argued on its motion for a new trial, and urges to this court on appeal, that prejudicial error occurred in permitting the jury to view the videotaped deposition from the Canadian litigation of Standal who was very ill at the time of taping. \"The Federal Circuit reviews procedural matters that are not unique to patent issues under the law of the particular regional circuit court where appeals from the district court would normally lie.\" Panduit Corp. v. All States Plastic Manufacturing Co., 744 F.2d 1564, 1574-75, 223 USPQ 465, 471-72 (Fed.Cir.1984) (motion to disqualify law firm from representing opposing party); see also Chemical Engineering Corp. v. Essef Industries, Inc., 795 F.2d 1565 (Fed.Cir.1986) (award of expenses under Fed.R.Civ.P. 37(c)); Heat & Control, Inc. v. Hester Industries, Inc., 785 F.2d 1017, 228 USPQ 927 (Fed.Cir.1986) (propriety of order quashing subpoena in discovery matter). Application of the rules of evidence is a procedural matter and under Ninth Circuit law remains within the discretion of the trial judge. United States v. Ordonez, 737 F.2d 793, 811 (9th Cir.1984).\n \n \n 18\n The trial judge admitted Standal's out-of-court statements under the Rule 804(b)(1), Fed.R.Evid., exception to the bar against the admission of hearsay, Rule 802. Rule 804(b)(1) provides:\n \n \n 19\n Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:\n \n \n 20\n (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.\n \n \n 21\n Standal was unavailable because of his death. The trial judge found that, although different patents were involved, the issues raised in the Canadian litigation were substantially similar to the issues raised in the present litigation and that Mainland's parent company possessed requisite interest, opportunity and motive to develop the issues fully on cross-examination. The deposition was taken under oath and the trial judge regarded it as sufficiently trustworthy to be used to ascertain the truth. Compliance with the law of the Canadian proceeding is not contested. See Barker v. Morris, 761 F.2d 1396, 1399 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986) (admissibility of videotape deposition of unavailable witness in criminal prosecution is determined by whether there has been an adequate showing that the videotaped testimony had specific guarantees of trustworthiness and, though inadmissible under the California Evidence Code, the testimony would have been admitted under Fed.R.Evid. 804(b)(5)), see also United States v. King, 552 F.2d 833, 841-42 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977) (discussion of use of photographic or electronic presentation of testimony compared to stenographic transcript and live testimony).\n \n \n 22\n Mainland failed to indicate how the trial judge abused his discretion in permitting the jury to view the deposition and we find none. Since Mainland asserts prejudice in the admission of the videotape without delineating an evidentiary rule that excludes the admission, we view this request under Fed.R.Evid. 403 which provides:\n \n \n 23\n Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\n \n \n 24\n The decision to exclude evidence under Rule 403 is within the sound discretion of the trial judge and is a decision made on a case by case basis by balancing the probative value of the evidence against its prejudicial harm. United States v. Rubio, 727 F.2d 786, 798 (9th Cir.1983). In addition to exercising his discretion appropriately at trial, the trial judge found, on Mainland's motion for a new trial, that in fact, there was no indication that the jury was unduly influenced by sympathy for Standal and his wife. See also United States v. McCollum, 732 F.2d 1419 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 301, 83 L.Ed.2d 236 (1984) (not an abuse of discretion to admit portions of videotaped hypnosis session for purposes of demonstrating basis for hypnotist's opinion and excluding portion in which party recited his \"enhanced memory\" version of facts); see generally Durflinger v. Artiles, 727 F.2d 888 (10th Cir.1984) (in civil wrongful death action, not an abuse of discretion to admit videotaped confession of murder by the accused); compare Foster v. Crawford Shipping Co., Ltd., 496 F.2d 788 (3d Cir.1974) (reversible error to admit videotape of discussion between injured party and his attorney for purpose of establishing prognosis for recovery). Error may not be predicated on an evidentiary ruling unless a substantial right of the party is affected. See Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 627, 225 USPQ 634, 643 (Fed. Cir.), cert. dismissed, --- U.S. ----, 106 S.Ct. 340, 88 L.Ed.2d 326 (1985). The trial judge did not abuse his discretion in either permitting the jury to view the videotaped deposition or in denying the motion for new trial.\n \n \n 25\n Based on the foregoing discussion, the judgment is affirmed.\n \n \n 26\n AFFIRMED.\n \n \n \n 1\n The damages award is not appealed\n \n \n 2\n One commentator has noted: \"The case law is unclear on the status as an excuse for delay of administrative and other types of proceedings involving the validity of the patent or the patentability of the underlying invention. Such proceedings might include an interference, an application for reissue, a reexamination, or conceivably even an agency or court action in a foreign country concerning the same invention and similar issues of fact and law. On policy gounds [sic], it would seem that such proceedings should be treated similarly to other litigation. Thus, under appropriate circumstances and subject to the notice requirement applied to litigation, such proceedings should constitute a qualified excuse for delay.\" 4 D. Chisum, Patents, Sec. 19.05, at 19-178 (1985) (footnotes omitted)\n \n \n ","per_curiam":false,"type":"010combined"}],"precedential_status":"Published","slug":"mainland-industries-inc-v-standals-patents-ltd-and-roderick-e"} {"attorneys":"Submitted on the briefs: *, Charles Raymond Wheeler, Pro Se., Richard T. Morrison, Acting Assistant Attorney General, Richard Farber, Attorney, Teresa T. Milton, Attorney, Tax Division, Department of Justice, Washington, D.C., for Respondent-Appellee.","case_name":"Wheeler v. Commissioner","case_name_full":"Charles Raymond WHEELER, Petitioner-Appellant, v. COMMISSIONER of INTERNAL REVENUE, Respondent-Appellee","case_name_short":"Wheeler","citation_count":19,"citations":["528 F.3d 773"],"court_full_name":"Court of Appeals for the Tenth Circuit","court_jurisdiction":"USA, Federal","court_short_name":"Tenth Circuit","court_type":"F","date_filed":"2008-06-10","date_filed_is_approximate":false,"headmatter":"\n After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.\n \n See\n \n Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.\n
\n1. Where the jury find in favor of the plaintiff, on the trial of the issue made by a counter-affidavit, on the foreclosure of a laborer’s lien, the verdict must be for a fixed sum of money, or the amount of the finding must be ascertainable from the record. The verdict in this case being for a certain number of pounds of seed-cotton, in addition to a stated sum of money, and there being no evidence as to the value of the seed-cotton, the finding as to the seed-cotton was void. It could not be upheld -as a finding as to the plaintiff’s title to the cotton. Title can s not be settled on the trial of such an issué.
2. That part of the verdict which is expressed in dollars and cents is not supported by anything in the record.
","id":5758488,"judges":"Bloodworth","opinions":[{"author_str":"Bloodworth","ocr":true,"opinion_id":5611007,"opinion_text":"\nBloodworth, J.\nA justice of the peace issued an execution on the foreclosure\" of a laborer’s lien in favor of Shaw against -Trice, which was levied, and a counter-affidavit was filed. On appeal to a jury in the justice’s court the evidence showed that Shaw and his brother-in-law, Story, worked a farm on the land of Trice, on shares, Trice to have half of the crop and Shaw and Story a fourth *764each. The'jury rendered the following verdict: “We, the jury, find for the plaintiff $28.,38 and one fourth of -the 1390 pounds seed-cotton, with interest.” This verdict, in so far as it relates to the seed-cotton, is illegal and void, and no legal judgment could be entered thereon. In a proceeding to enforce a laborer’s lien the verdict, if, for the plaintiff, must be for a fixed amount, or an amount that can be made certain by the record, and upon which a legal judgment can be entered. Such a judgment becomes a special lien in favor of the plaintiff “on the products of their labor,superior to all other liens, except liens for taxes, and special liens of landlords on yearly crops” - (Civil Code of 1910, § 3335), and a general lien “upon the property of their employers, liable to levy and sale, for their labor, which is hereby declared to be superior to'all other liens, except liens for-taxes, the special liens of landlords on yearly crops, and such other liens as are declared by law to be superior to them.” Civil Code (1910), § 3334. On the trial of the issue made by the filing of a counter-affidavit to a laborer’s lien the only question for determination is the amount due the laborer by the landlord. The title to the property levied oh can not be settled on the trial of the issue raised by the counter-affidavit. The only construction that can be given the verdict in the instant case, so far as it relates to the seed-cotton, is that it placed the title thereto in the plaintiff. As stated above, this is illegal.\nEven with this clearly illegal portion of the verdict stricken, there are no facts to support the finding of that portion of the verdict expressed in dollars and cents. Judging from the verdict rendered, the jury had before it evidence not incorporated in the petition, which was adopted by the justice of the peace as his an7 swer. Yet neither traverse nor exception to the answer was filed, and we must decide the issue upon the record as brought to us. There -was no testimony whatever as to the value of the cotton. “A hew'trial will be granted'when the verdict of the jury is so uncertain that it can not be executed, or is expressed in such terms that an objectionable part can not be set aside with justice to both parties.” Mitchell v. Printup, 27 Ga. 469. Darien & Western R. Co. v. McKay, 132 Ga. 672 (64 S. E. 785). The judge of the superior court erred in overruling the certiorari.\n\nJudgment reversed.\n\n\nBroyles, P. J., and Harwell, J., concur.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"trice-v-shaw","summary":"Certiorari; from Pike superior court—Judge Searcy. January 12, 1918."} {"attorneys":"J. Guy Sharpe, Jr., for appellant., Robert W. Shurtz, Darryl A. Hunnings, Carol M. Nevits, for ap-pellee.","case_name":"In re N. S. M.","case_name_full":"In re N. S. M.","citation_count":1,"citations":["183 Ga. App. 398","359 S.E.2d 185"],"court_full_name":"Court of Appeals of Georgia","court_jurisdiction":"Georgia, GA","court_short_name":"Court of Appeals of Georgia","court_type":"SA","date_filed":"1987-06-22","date_filed_is_approximate":false,"id":5788242,"judges":"Beasley","opinions":[{"author_str":"Beasley","ocr":true,"opinion_id":5642650,"opinion_text":"\nBeasley, Judge.\nPetitioners below, the paternal grandparents of N. S. M., now age five, appeal the juvenile court’s denial of their petition to terminate the parental rights of appellee, the child’s mother, pursuant to OCGA § 15-11-81 (a), (b) (4) (B) (ii), and (b) (4) (C) (i) and (ii).\nPetitioners have had legal custody, consented to by the mother, since her 1982 divorce from petitioners’ son. He is in prison. The mother had no specific visitation and support rights or obligations in the original divorce, but in 1983 obtained visitation rights and was ordered to pay support. In April 1986 she filed a contempt action concerning visitation. The court did not hold petitioners in contempt but did direct the mother to pay support through the county receiver’s office and modified her visitation rights.\n1. The petition in this case was filed in May 1986 and the hearing was conducted on July 30. Thus, the provisions of new Article 2 of Chapter 11 of Title 15, OCGA, effective July 1, 1986, are applicable. In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987). Because the order denying termination does not make the specific findings required by OCGA §§ 15-11-91 and 15-11-33, this case is remanded to the trial court for these findings. No further ruling need be made with regard to enumeration number 3.\n2. One of the grounds asserted by petitioners for terminating the mother’s rights was that she had three DUI charges or convictions so as to prompt termination based on OCGA § 15-11-81 (b) (4) (B) (ii). In an effort to obtain evidence concerning the latest charge of April 8, 1985, then still untried, plus information concerning her “alcohol problem,” petitioners subpoenaed her counsel in the DUI matter, Mr. Nash. Nash obtained counsel and filed a motion to quash the subpoena, the granting of which is petitioners’ first enumeration of error. The subpoena to Nash, pursuant to OCGA § 15-11-22, required his appearance at trial and directed that he bring with him “[a]ny and all documents and records maintained by [him] on [the mother] for any and all reasons whatsoever.”\nNash filed an affidavit stating that he was in possession of no knowledge or information concerning the termination proceeding ex*399cept that which he had obtained by virtue of his employment as the mother’s attorney, and that to comply with the subpoena would place him in violation of the attorney/client privilege in OCGA § 24-9-21 (2). He also stated that he had a telephone conversation with petitioners’ counsel prior to the subpoena’s issuance in which Nash told their counsel he would not reveal any privileged information. During the hearing, the mother specifically asserted the privilege.\nWhen asked during the hearing what he expected to be able to obtain from the attorney, counsel for petitioners stated that he wished to question him concerning the fact of his employment for the 1985 DUI and the degree of intoxication that the mother registered on that occasion. Counsel for the mother stipulated that she had been charged with three DUIs over the past five years. She testified that she had two convictions and was awaiting trial on the 1985 incident. The tickets for the 1983 charge, which reflected the results of the breathalyzer test, and the 1985 charge were tendered by petitioners’ counsel. The results of the 1985 blood alcohol test were also tendered by petitioners’ counsel.\nThe trial court relied on OCGA §§ 24-9-24 and 24-9-25, which explain the attorney-client privilege and describe when an attorney may testify for or against a client.\nThis is not a situation where a party seeks to obtain unprivileged documents or information from an attorney during discovery after having attempted to obtain them from the party, nor is it a situation where the party is alleged to have waived the privilege. See Green, Ga. Law of Evidence (2nd ed.), § 153, & Chapter XIV, concerning the privilege/competency question; In re C. M., 179 Ga. App. 508, 510 (347 SE2d 328) (1986); Ray v. Dept. of Human Resources, 155 Ga. App. 81, 84 (1) (270 SE2d 303) (1980), concerning discovery in juvenile cases.\nSince all that petitioners sought was obtained through other sources or was available through other witnesses not used, such as the agency administering the blood alcohol test, the question is whether the trial court abused its discretion in not allowing petitioners to call Nash to the stand. See Klemme Cattle Co. v. Westwind Cattle Co., 156 Ga. App. 353, 355 (1) (274 SE2d 738) (1980); Classic Restorations v. Bean, 155 Ga. App. 694 (1) (272 SE2d 557) (1980). The evidence sought was at best cumulative and at worst would have invaded the privilege afforded to the attorney/client relationship, since there is no showing that Nash possessed any information other than that received from his client or which petitioners did not have or could not independently acquire. There was no error in disallowing Nash’s testimony.\nThe only authority cited by petitioners in support of the original subpoena and on appeal was Cranford v. Cranford, 120 Ga. App. 470 *400(170 SE2d 844) (1969), and Atlantic Coast Line R. Co. v. Daugherty, 111 Ga. App. 144 (141 SE2d 112) (1965). These cases are not on point because they dealt with discovery; here we have a subpoena for trial.\nThese cases do not require a different result than we reach. Atlantic Coast Line decided whether, under the predecessor act to OCGA § 9-11-34 (Request for Production), an attorney’s work product, i.e., statements of third party witnesses taken by a non-attorney in the course of an accident investigation, were discoverable. The court held that the seeker of the statements had not proven the “good cause” required before a court will allow one to even attempt to obtain work product of an attorney.\nCranford upheld a contempt citation involving a divorce suit where a licensed psychologist refused to produce, pursuant to a notice during discovery and a court order entered after hearing and consideration of the claim of privilege, cancelled checks, office registers, and other documents that would reveal his patients’ names. It is cited by petitioners for the proposition that a trial court may conduct an in camera review of claimed privileged information before ruling on its relevance or discoverability. While a trial court may do so, there was no request for it and the court’s not doing so sua sponte was not error. See Tribble v. State, 248 Ga. 274, 275 (280 SE2d 352) (1981).\n3. Finally, petitioners appeal the court’s imposition on their attorney of the fees incurred by the witness-attorney, in having the subpoena quashed. The motion seeking the attorney fees was made by the witness, not a party to the suit. Neither that motion nor the court’s order granting the fees refer to any authority allowing such a penalty. On appeal, appellee defends the award to the witness and relies on OCGA §§ 9-11-37 and 9-15-14.1\nThis was not a discovery dispute, but a trial subpoena, and therefore, the provisions of OCGA § 9-11-37 are inapplicable. Nor does OCGA § 9-15-14 apply, inasmuch as the fees were ordered on the motion of a witness, not a party, and they were awarded to that witness, not a party. Neither is there any provision of the juvenile code, (OCGA Title 15, Chapter 11) which authorizes the imposition of attorney fees in this type case. Although we agree with the trial court that the subpoena and the attendant costs and inconvenience to the witness were totally unjustified, there is no authority for such a sanction in these circumstances and it must be stricken.\n\nJudgment affirmed in part, reversed in part, and case remanded with direction.\n\n\nMcMurray, P. J., and Sognier, J., concur.\n\n*401Decided June 22, 1987.\nJ. Guy Sharpe, Jr., for appellant.\nRobert W. Shurtz, Darryl A. Hunnings, Carol M. Nevits, for ap-pellee.\n\n The witness has also filed a brief, relying on the same code sections. Although he denominates himself an “appellee,” he is not a party and thus we treat his brief as that of amicus curiae. Court of Appeals Rule 13.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-n-s-m"} {"case_name":"Neira v. Sgroi","case_name_full":"In the Matter of Nancy Neira v. Robert Sgroi, as Commissioner of the Suffolk County Department of Real Estate","case_name_short":"Neira","citation_count":0,"citations":["132 A.D.2d 703"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1987-07-27","date_filed_is_approximate":false,"id":6034583,"opinions":[{"ocr":true,"opinion_id":5897611,"opinion_text":"\nProceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Suffolk County Department of Real Estate, dated October 23, 1985, which, after a hearing, dismissed the petitioner from her position as a clerk typist.\nAdjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.\nThere is substantial evidence in the record to support the Hearing Officer’s finding that the petitioner (1) failed to do a priority work assignment given to her by her supervisor, (2) delayed performance of a priority assignment, (3) was guilty of excessive absenteeism, without prior permission, during the period commencing April 10, 1984 and ending March 12, 1985, and (4) was absent, without prior permission, for a period exceeding 10 consecutive working days commencing March 14, 1985, in violation of subdivision (4) of rule XIX of the Rules of the Suffolk County Civil Service Department. Furthermore, the penalty imposed was not so disproportionate to the offenses as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222).\nWe have considered the petitioner’s other contentions and find them to be without merit. Mangáno, J. P., Niehoff, Kooper and Spatt, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"neira-v-sgroi"} {"case_name":"People v. Isaacs","case_name_full":"The People of the State of New York v. Derrick Isaacs","case_name_short":"Isaacs","citation_count":0,"citations":["238 A.D.2d 356","656 N.Y.S.2d 918"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1997-04-07","date_filed_is_approximate":false,"id":6147408,"opinions":[{"ocr":true,"opinion_id":6012905,"opinion_text":"\n—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered November 22, 1994, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.\nOrdered that the judgment is affirmed.\nUpon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15 [5]). Further, we discern no basis in the record for disturbing the sentence imposed by the court (see, *357People v Suitte, 90 AD2d 80). Ritter, J. P., Altman, Krausman and Luciano, JJ., concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-v-isaacs"} {"attorneys":"Leslie Rutledge, Att'y Gen., by: Jennifer L. Merritt, Sr. Ass't Att'y Gen., for appellants/cross-appellees., Ark Ag Law, PLLC, by: J. Grant Ballard, Little Rock; and Davidson Law Firm, Little Rock, by: David L. Gershner, for appellees/cross-appellants., Dover Dixon Horne PLLC, Little Rock, by: Monte D. Estes and Michael G. Smith, for amicus curiae, Ozark Mountain Poultry, Inc., and 147 Arkansas Farmers.","case_name":"Ark. State Plant Bd. v. McCarty","case_name_full":"ARKANSAS STATE PLANT BOARD and Terry Walker, in His Official Capacity as Director of the Arkansas State Plant Board, Appellants/Cross-Appellees v. Michael MCCARTY, Perry Galloway, Matt Smith, Greg Hart, Ross Bell, and Becton Bell, Appellees/Cross-Appellants","case_name_short":"McCarty","citation_count":6,"citations":["576 S.W.3d 473","2019 Ark. 214"],"court_full_name":"Supreme Court of Arkansas","court_jurisdiction":"Arkansas, AR","court_short_name":"Supreme Court of Arkansas","court_type":"S","date_filed":"2019-06-13","date_filed_is_approximate":false,"id":6244244,"judges":"Baker, Goodson","opinions":[{"author_str":"Goodson","ocr":true,"opinion_id":6111404,"opinion_text":"\nCOURTNEY HUDSON GOODSON, Associate Justice\nAppellants/cross appellees Arkansas State Plant Board and Terry Walker, in his official capacity as the director of the Arkansas State Plant Board (the Board), appeal the Pulaski County Circuit Court's April 3, 2018 order declaring that the Board's April 15, 2018, dicamba cutoff rule is \"void ab initio,\" and \"null and void.\" Appellees/cross appellants, who are farmers Michael McCarty, Perry Galloway, Matt Smith, Greg Hart, Ross Bell, and Becton Bell (the Farmers), appeal the same order's dismissing with prejudice their first amended complaint on the basis of the Board's sovereign immunity. We dismiss the direct appeal as moot and dismiss as moot in part and reverse in part on cross appeal, and remand for further proceedings.\nI. Background\nThe Board approves and regulates herbicides that Arkansas farmers may use to combat invasive plant species. Arkansas row crop farmers struggle with competition from Palmer amaranth, which is commonly known as pigweed. Over the years, pigweed has developed a resistance to traditional herbicides. Dicamba-based herbicides effectively control pigweed but may only be used on plants grown from seed produced specifically to resist dicamba.\nDicamba is highly volatile, meaning that it has a tendency to evaporate and fall off-target and damage other plants that are not dicamba resistant. Dicamba was not approved for in-crop application in 2016. In 2017, the Board approved the use of what were believed to be less volatile formulations of dicamba-based herbicides for in-crop application. However, in 2017, the Board began investigating an unprecedented number of complaints of off-target dicamba herbicide injury. There was some dispute as to whether the improved dicamba-based herbicides were properly applied, or even if other dicamba-based herbicides were used. The Board therefore appointed a \"Dicamba Task Force\" to address the increased number of complaints and to propose rules for the use of dicamba by Arkansas farmers for the 2018 crop year. Pursuant to the task force's recommendations, the Board proposed a new rule that would prohibit the use of dicamba from April 16 through October 31 of each year.\n*475The Farmers used dicamba-based herbicide in 2017 and wished to use herbicide formulations containing dicamba in 2018. On September 29, 2017, the Farmers filed a petition for rulemaking. In their petition, the Farmers sought (1) the implementation of a May 25 cutoff date for dicamba application, (2) a requirement that there be a one-mile buffer between a dicamba application and any growing crop that is susceptible to dicamba injury, unless the applicator receives a written waiver for the application, (3) the creation of a special application permit for the growing season use of dicamba in circumstances of severe pigweed infestation; and (4) the instatement of a requirement that any individual or entity applying dicamba after April 15 must carry a mandatory liability insurance policy in the amount of $ 500,000. The Board denied the petition on October 19, 2017.\nOn November 9, 2017, the Board voted to ban the in-crop use of dicamba-based herbicides after April 15, 2018.1 On November 10, 2017, the Farmers filed suit in the Pulaski County Circuit Court seeking declaratory and injunctive relief and judicial review of administrative acts. The Farmers subsequently filed an amended complaint alleging that (1) Arkansas Code Annotated § 2-16-206 is an unconstitutional delegation of legislative appointment power to private industry, (2) Board members violated Arkansas Code Annotated § 25-15-209(a) by having unannounced meetings and communicating with third parties about the proposed dicamba ban, (3) the Board's refusal to initiate rule-making as requested in their petition and the Board's proposed April cutoff date were arbitrary and capricious, and (4) third-party contacts and procedural irregularities provided grounds for them to conduct discovery and present additional evidence to the trial court.\nOn January 19, 2018, the Arkansas Legislative Council approved the rule prohibiting dicamba usage from April 16 through October 31, and the new rule took effect ten days later. On February 15, 2018, the Board filed a motion to dismiss the Farmers' amended complaint, arguing that (1) the Farmers lacked standing, (2) the Farmers' claims were not ripe, (3) the Farmers failed to perfect service of process on the Board, and (4) the Farmers' claims were barred by sovereign immunity. Notably, the Board conceded that Andrews did not \"explicitly or implicitly overrule the line of cases that allow lawsuits for injunctive relief where a state official or agency is acting unlawfully, unconstitutionally, or otherwise outside the scope of his/its authority (ultra vires).\" See Bd. of Trs. of Univ. of Ark. v. Andrews , 2018 Ark. 12, 535 S.W.3d 616. However, the Board argued that the Farmers' complaint failed to allege sufficient facts to plead any unlawful or unconstitutional violation. The circuit court granted the Board's motion to dismiss on the basis of the asserted sovereign immunity defense. The circuit court dismissed with prejudice the Farmers' constitutional claims regarding the selection and procedures of the Board. The circuit court also determined that the Farmers alleged no facts with respect to their administrative rulemaking appeal that would establish an exception to sovereign immunity. The circuit court then determined that the Board's sovereign immunity resulted in a violation of the Farmers' due process rights, because the Farmers lacked any way to challenge the Board's actions. Therefore, on April 3, 2018, the *476circuit court ruled that the Board's rule was \"void ab initio\" and \"null and void\" as to the Farmers. The Board filed a notice of appeal as to the finding that the Board's rule was \"void ab initio,\" and \"null and void.\" The Farmers filed a cross appeal in which they appealed the circuit court's with prejudice dismissal of their complaint and the dismissal with prejudice of their allegations of constitutional violations.2\nII. Standard of Review\nIn reviewing a circuit court's decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Hodges v. Lamora , 337 Ark. 470, 989 S.W.2d 530 (1999). Furthermore, we look only to the allegations in the complaint and not to matters outside the complaint. Id. However, we treat only the facts alleged in the complaint as true but not a plaintiff's theories, speculation, or statutory interpretation. Id.\nIII. Direct Appeal\nThe Board appealed that portion of the circuit court's order declaring void and without effect the Board's rule establishing the April 2018 cutoff date for the in-crop application of dicamba herbicides. We have consistently held that we will not review issues that are moot because to do so would be to render an advisory opinion. Keep our Dollars in Independence Cty. v. Mitchell , 2017 Ark. 154, 518 S.W.3d 64. A case generally becomes moot when any judgment rendered would have no practical effect on a then existing legal controversy. Id. When a challenged statute is amended or repealed so as to eliminate the controversy between the parties while the appeal is pending, the appeal is rendered moot. Ark. St. Plant Bd. v. Bell , 2019 Ark. 164, 2019 WL 2223441. These mootness principles equally extend to agency regulations that are repealed while an appeal is pending. Id.\nWhile this appeal was pending, the Board promulgated a new rule that repealed the April 15 cutoff date. The new rule took effect March 9, 2019, and in-crop dicamba application is now allowed through May 25 of each year. Ark. Code R. 209.02.4-XIII(B)(1)-(2). We may take judicial notice of this new rule. Bell , 2019 Ark. 164. As a threshold matter, we must determine whether the Board's appeal is moot in light of the new rule.\nThe Farmers alleged in their complaint that if they were not allowed to use dicamba herbicides after the April cutoff date, they would suffer actual injury to their crops as well as financial injury. In its order, the circuit court ruled that\n[t]he State Plant Board Rule establishing an April 16, 2018, cutoff date for in-crop application of dicamba herbicides is void and not applicable to Plaintiffs: Greg Hart, Becton Bell, Michael McCarty, Perry Galloway, Ross Bell, and Matt Smith. The State Plant Board Rule is null and void as if it had never been enacted as to these individuals.\nThe circuit court noted that the case was not brought as a class action and that the rule establishing the April cutoff date is \"only applicable to the Plaintiffs in the present case.\" The Farmers' complaint was based on injury that they alleged they would sustain if the April cutoff date was implemented. The circuit court specifically referenced the April cutoff date in its order. Because the new rule provides that dicamba may now be used through May 25 *477of each year, the controversy between the parties has been eliminated as to the circuit court's order regarding the April cutoff date. We therefore dismiss the Board's appeal as moot.\nIV. Cross-Appeal\nThe Farmers appealed the circuit court's order dismissing their constitutional claims and their administrative appeal because of the State's sovereign immunity. Just as the Board's promulgation of the new dicamba cutoff rule renders the Board's direct appeal moot, the Farmers' cross appeal is moot with respect to their administrative appeal of the denial of their petition for rulemaking, as well as their claims regarding improper communications or procedural irregularities associated with that denial. However, the Farmers have also alleged that Arkansas Code Annotated § 2-16-206, which provides for the appointment of Board members from various private groups, is an unconstitutional delegation of legislative-appointment power to private industry. This claim is not moot. The circuit court noted that the Board raised the affirmative defense of sovereign immunity, cited Andrews , and dismissed the Farmers' constitutional claims with prejudice.\nThe circuit court's reliance on Andrews to find that the Farmers' complaint was barred by sovereign immunity is misplaced. Andrews held only that legislative waivers of the State's sovereign immunity are unconstitutional. After we decided Andrews , we concluded that the defense of sovereign immunity was inapplicable in a lawsuit seeking only declaratory and injunctive relief and alleging an illegal, unconstitutional, or ultra vires act. Martin v. Haas , 2018 Ark. 283, 556 S.W.3d 509. In Haas , a voter alleged that new voting verification requirements violated the Arkansas Constitution. Although the State raised sovereign immunity as a defense, we stated that\n[b]ecause appellee has asserted that Act 633 violates qualified voters' constitutional right to vote and seeks declaratory and injunctive relief, not money damages, this action is not subject to the asserted sovereign-immunity defense.\nId. at 8, 556 S.W.3d at 515.\nBecause the Farmers here alleged that the process by which Board members are appointed violates the constitution, and because the Farmers sought only declaratory and injunctive relief, their constitutional claims are not subject to the sovereign immunity defense. Accordingly, the circuit court's order dismissing the Farmers' constitutional claims is reversed, and this matter is remanded for further proceedings consistent with this opinion.\nDismissed as moot on direct appeal; dismissed in part as moot and reversed in part on cross-appeal; and remanded.\nBaker, J., concurs in part and dissents in part.\n\nThe parties at times refer to both April 15 and April 16 as the cutoff date. There is no dispute that in-crop application of dicamba-based herbicides were prohibited after April 15 under the 2018 rule.\n\n\nOn April 13, 2018, we granted the Board's motion for a stay of the circuit court's order pending the appeal.\n\n","per_curiam":false,"type":"020lead"},{"author_str":"Baker","ocr":true,"opinion_id":6111405,"opinion_text":"\nKaren R. Baker, Justice, concurring in part and dissenting in part.\nI concur in the majority's holding that the Board's appeal of that portion of the circuit court's order declaring the Board's rule establishing the April 2018 cutoff date for the in-crop application of dicamba herbicides is moot. However, I dissent from the remainder of the opinion because suit is barred based on Board of Trustees of University of Arkansas v. Andrews , 2018 Ark. 12, 535 S.W.3d 616.\nRelying on Martin v. Haas , 2018 Ark. 283, 556 S.W.3d 509, the majority holds \"that the defense of sovereign immunity was inapplicable in a lawsuit seeking only declaratory and injunctive relief and alleging an illegal, unconstitutional, or ultra vires act.\" This analysis is misplaced.\n*478In Haas , the court explained that sovereign immunity did not bar suit:\n[Haas] challenged the constitutionality of Act 633. \"We view our [sovereign immunity] cases as allowing actions that are illegal, are unconstitutional or are ultra vires to be enjoined.\" Cammack v. Chalmers , 284 Ark. 161, 163, 680 S.W.2d 689, 689 (1984) ; see also Bd. of Trustees of Univ. of Ark. v. Burcham , 2014 Ark. 61, at 4, 2014 WL 585981 (\"[T]he scope of the exception to sovereign immunity for unconstitutional acts or for acts that are ultra vires, arbitrary, capricious or in bad faith, extends only to injunctive relief.\").\nBecause Haas has asserted that Act 633 violates qualified voters' constitutional right to vote and seeks declaratory and injunctive relief, not money damages, this action is not subject to the asserted sovereign-immunity defense.\nHaas , 2018 Ark. at 7-8, 556 S.W.3d at 514-15.\nHowever, Haas , is distinguishable from this case because in Haas we reversed the circuit court based on our review of the language of the Act at issue and our constitution. We only reviewed the validity of the Act and declared that it was constitutional on its face and ended our analysis there. Our analysis did not review the actions of the State or entertain an injunction that is presented in this case. Stated differently, in Haas , the court did not determine whether sovereign immunity barred suit because we reviewed the face of the Act and did not reach the merits of the injunctive relief or review State action. We simply reviewed the words of the Act and whether those comported with our constitution.\nFurther, despite Haas , based on Andrews -the farmers' lawsuit is of no moment-the State cannot be sued under any circumstances. As I explained in my recent dissent in Arkansas Oil & Gas Comm'n v. Hurd , 2018 Ark. 397, 18-19, 564 S.W.3d 248, 258-59 :\nIn Andrews , the court held that \"never means never,\" therefore ... suit is barred based on the broad language in Andrews ... because Andrews did not identify exceptions, exemptions or the like. Again, the State may never be sued.\n...\nAndrews held that the State may never be made a defendant in any of her own courts. Accordingly, despite the majority's attempt to narrow Andrews , ... State conduct is at issue, and Andrews bars suit.\nHere, like Hurd , the majority attempts to limit Andrews. Yet, until Andrews is overruled, suit against the State is barred and the majority cannot pick and choose when an exception or exemption may apply.\nBased on my discussion above, I concur in part and dissent in part.\n","per_curiam":false,"type":"035concurrenceinpart"}],"precedential_status":"Published","slug":"ark-state-plant-bd-v-mccarty"} {"case_name":"State ex rel. Linndale v. Teske","case_name_full":"State ex rel. Linndale v. Teske","case_name_short":"Teske","citation_count":0,"citations":["71 Ohio St. 3d 1501"],"court_full_name":"Ohio Supreme Court","court_jurisdiction":"Ohio, OH","court_short_name":"Ohio Supreme Court","court_type":"S","date_filed":"1995-03-29","date_filed_is_approximate":false,"id":6878862,"judges":"Cook, Dismiss, Pfeifer","opinions":[{"ocr":true,"opinion_id":6771574,"opinion_text":"\nIn Mandamus. On answer of respondent. Sua sponte, alternative writ granted.\nPfeifer and Cook, JJ., dissent and would dismiss the cause.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"state-ex-rel-linndale-v-teske"} {"attorneys":"Molyneux & Maher, for appellants., T. M. Zmk, for appellees.","case_name":"Dalton v. Dalton","case_name_full":"John Dalton v. Margaret Dalton","case_name_short":"Dalton","citation_count":0,"citations":["178 Iowa 508"],"court_full_name":"Supreme Court of Iowa","court_jurisdiction":"Iowa, IA","court_short_name":"Supreme Court of Iowa","court_type":"S","date_filed":"1916-11-22","date_filed_is_approximate":false,"disposition":"Affirmed.","headnotes":"DESCENT AND DISTRIBUTION: Dower — Homestead Incumbrance —•Payment from General Assets. A widow who demands that the homestead be set off to her as part of her distributive share . may, as against the heirs of a solvent estate, enforce payment of a mortgage on the homestead on which the deceased husband was alone liable, out of Vie property of the estate other than the one-third share of the widow. In other words, in such ease, the widow may take the homestead free from the inoumbranee. Phrased otherwise, the two-thirds interest of the heirs must pay the mortgage.
","id":7205471,"judges":"Deemer, Evans, Preston, Weaver","opinions":[{"author_str":"Preston","ocr":true,"opinion_id":7116993,"opinion_text":"\nPreston, J.\nSsteibotmn : dower: homestead meumbranee; paymentfromgrenThe petition alleges that the widow is\nentitled to one third of all the property, and that the minor defendant and each of the plaintiffs are entitled to an undivided two twenty-sevenths 'of the estate. Partition is asked of all the property.\n„ ,, . , , , The answer of the widow avers that she ...... is the surviving widow of deceased; that, at the time of his death, she and her said husband, with their minor child, Helen, were living in the residence property in Le Mars, Iowa, and that the same was then their homestead; and that she and her minor child have, since the decease of said James Dalton, continued to reside on said lot as their homestead; that said lot is encumbered by a mortgage, with an unpaid balance of $2,000 and interest; that said mortgage encumbrance was not placed on said lot by the deceased, James Dalton, but was an encumbrance thereon, and its payment was assumadJby deceased when he purchased the lot; that defendant never joined in the execution of said mortgage. It is alleged, also, that funds of the estate of deceased, together with the other real estate belonging to said estate, are ample to pay the debts of deceased ivithout resorting to said homestead; that her distributive *510share in the real and personal' property of deceased has never been set off to her, and that she has never released her dower interest in the real estate of her husband; that, under Section 3367 of the Code, she is entitled to have her distributive share set off to her so as to include the dwelling house on the lot before referred to. She prays that the- said residence be not sold, but that it be set apart to her as a part of her distributive share, and that referees be appointed to appraise the same and the reasonable value of the interest which deceased had in said lot over and above the said mortgage encumbrance thereon, and prays that, with respect to the balance of the real estate described in the petition, she joins, in plaintiff’s prayer for a partition thereof, and she claims so much of said other real estate as, added to the reasonable value of the interest of deceased in- the said lot, over and above the mortgage encumbrance thereon, may be equal to her one-third distributive share in the real estate of deceased.\nWe do not understand appellants to seriously contend that the distributive share of the widow may not be set off so as to include the dwelling 'house. Section 3367 clearly so provides. The real contention is as to the $2,000 encumbrance. It is thought that the question has not heretofore been presented in precisely this form. They contend that to compel the two-thirds interest in the estate to pay a mort'gage against the homestead would reduce the interests of the heirs, or, as they put it, enhance the value of the widow’s share to more than one third of the husband’s estate. This feature of the case has been determined adversely to appellants’ claim, as we think, in Haynes v. Rolstin, 164 Iowa 180, 383. They contend, also, and cite authorities to the effect, that the dower interest in real estate attaches subject to the superior right of a purchase-money mortgage, and that the widow is not entitled to assert it as against the prior claim based upon the purchase-money lien, and that this is true even though the widow has not signed the mortgage, or when the claim is in the nature of a vendor’s lien. The *511trouble with this contention is that the widow is not asserting her claim as against the mortgagee, but'is only asking that her rights be determined as between the heirs and the widow.\nThere is a question, also, as to whether, as between her and the 'estate, or the heirs, this is a purchase-money mortgage. It is alleged in the answer, and admitted by the demurrer, that the deceased assumed this mortgage. But it does not appear whether the mortgagee assented thereto and released the mortgage, or whether deceased assumed the payment of the mortgage in the deed to him, or in some other way, or whether he simply purchased the property subject to the mortgage. But, under the record, we must assume that in some way deceased assumed the payment of the mortgage, and that it became his personal debt.\nThe circumstances might be such that the mortgagee could hold deceased personally, or still rely upon the lien of his mortgage and hold the property as well. But, as stated, that is not now the question presented. The question is whether, under the circumstances shown, the widow is, entitled to have her homestead set off as a part of her distributive share, free from the encumbrance. We think the instant ease is ruled by the holding in Haynes v. Rolstin, supra. In that case it was held, substantially, that, where a mortgage was a lien upon 80 acres of land,'which was sold, the grantee assuming the mortgage as a part of the purchase price of the land, the wife not being a party thereto, and the husband thereafter died, the widow took her interest in the homestead 40 free from liability for the mortgage debt, except for any deficiency after the sale of the other 40 acres; and that, under such circumstances, the widow could compel the other lands to be exhausted before selling the homestead. There is this distinction between the instant case and the case just cited, that here the mortgage was on the homestead alone, and does not include other property, as in the Haynes. ease. But we think it imposes no *512greater burden on appellants to require its payment, out of their shares of'the estate than if its payment were required out of other property included therein. It occurs to us that it is the same, so far as the rights of the appellants are concerned, and that it can make no difference to appellants whether this mortgage shall be paid out of property adjoining the homestead and included in the mortgage, or whether it shall be paid out of property situated in another county and not included in the mortgage. In other words, if their shares should pay this mortgage as one of the general debts of deceased, it is unimportant as to the property out of which the same shall be paid. The widow’s rights in the homestead are the same one way as the other, and her rights in the real estate of deceased are the same. The law gives her one' third of the real property, exempt from liability for the payment of debts of decedent. This being so, it follows that, as between the heirs and the widow, this mortgage, as one of the general and personal debts of deceased, must be paid from his estate other than the one-third share of the surviving widow. The answer alleges, and the demurrer admits, that the other property is sufficient to pay the mortgage.\nWe are of opinion that the trial court rightly decided the case, and the judgment or order appealed from is, therefore, ■ — -Affirmed.\nEvans, C. J., Deemer and Weaver, JJ.-, concur.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"dalton-v-dalton","summary":"Appeal from Cherokee District Court.-— Wm. Hutchinson, • Judge. This is an action in equity, brought by appellants, who are heirs of James Dalton, deceased, for the purpose of partitioning 384 acres of land in Cherokee County and a residence lot in Le Mars, in Plymouth County, Iowa. Defendant, Margaret Dalton, is the widow of deceased, and the other defendant is a minor heir. Separate answers were filed. Plaintiff! interposed a demurrer to the answer of the widow, which was overruled, and plaintiffs appeal."} {"attorneys":"Farrar, Goldberg & Dufour, of New Orleans, and Laycoek & Beale, of Baton Rouge, for appellant., Cross & Moyse and Odom & Strickland, all of Baton Rouge, for appellees.","case_name":"Hebert v. Baton Rouge Electric Co.","case_name_full":"HEBERT et ux. v. BATON ROUGE ELECTRIC CO.","case_name_short":"Hebert","citation_count":0,"citations":["150 La. 957","91 So. 406"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1922-03-27","date_filed_is_approximate":false,"disposition":"Affirmed as amended.","id":7258313,"judges":"Provosty","opinions":[{"author_str":"Provosty","ocr":true,"opinion_id":7172440,"opinion_text":"\n- By Division A, composed of Chief Justice PROVOSTY and Justices OVERTON and LECHE.\nPROVOSTY, C. J.\nThe workman of the-defendant company, in making the gas connection with an apartment, failed to notice that the gas outlet in the kitchen was open. The escaping gas filled the apartment, and *959asphyxiated the three year old child of the plaintiffs and its negro girl nurse. This suit is in damages for the mental pain of the plaintiffs from 'the death of the child, and for their loss of the companionship of the child.\nThe plaintiffs and Mr. and Mrs. Sicard had lgased the apartment and moved into it some four months previously, and the gas connection was being made at their reguest.\nThe gas outlet in the kitchen had been left open, or uncapped, by the workmen of the defendant company when they had disconnected the stove of the former tenants, some five months previously.\nThe workman testified that he looked for the fixtures and went into the kitchen and looked around for a gas stove outlet, and found none, and that he asked the nurse, and also Mrs. Sicard, the only one of the tenants present, where their gas stove was, and was told by them that they did not have any.\nMrs. Sicard testified that the workman had made no investigation, and that whether he inquired or not about a stove in the kitchen she did not remember.\nThe workman left as soon as he had completed his job, and Mrs. Sicard, who had come from -her place of employment merely to be present while the workman would be in the apartment, left also. Before leaving, she noticed the ,gas odor, and inquired of the workman about it. He reassured her, explaining that it came from a pipe he had opened. She had requested him to light one of the radiators, and he, experiencing some difficulty in getting the gas to ignite, and attributing the trouble to the presence of air in the pipe, had momentarily opened the pipe to let out the air.\nThis kitchen outlet consisted of a three-quarter inch pipe, protruding some nine inches out of the wall six or eight inches above the floor, with an elbow in it turned downward. It was in a corner, between a kitchen cabinet and the wall which cornered with the wall out of which it came, and therefore was an inconspicuous object, not easily seen by any one not particularly looking for it. Mr. Sicard, husband of Mrs. Sic-ard, had seen it a.t the time of moving into the apartment, but had paid no attention to it, and had not observed that it was uncapped. Mrs. Sicard did not remember whether she had ever seen it before the day of the fatal occurrence.\n[1] The fatal occurrence was not the result of unavoidable accident, but of some one’s negligence. Whose? Evidently, we think, the defendant company’s. And especially so in view of the admitted fact that the defendant company’s custom was not to cap outlets when disconnecting the gas service and removing fixtures, and of the further fact that the defendant company kept a record of having removed this particular fixture. Whether the negligence consisted in having left this outlet open at the time of removing the stove and cutting off the gas connection, or in not having closed it at the time of re-establishing the gas connection, appears to us to be immaterial.\nThe owner of the apartment was in no way negligent, since the piping of the house was in good order, save for the act of the defendant company in having left this outlet open.\n[2] The tenants were in no way negligent, since they had not theretofore been using gas, and therefore had had no occasion for informing themselves concerning outlets, and had the right to assume that the piping of the house was in good condition.\nMrs. Sicard was entirely justified in being satisfied with the assurance given her by the workman as to the source of the gas odor. And we think the same of Mrs. Hebert, the plaintiff, having been in like manner satisfied when she came to the apartment a while after the workman had left *961and was told by the negro girl of the explanation the workman had given to Mrs. Sicard. Moreover, a mother would hardly be negligent of the safety of her child, in such a case.\nDefendant charges contributory negligence in that the negro girl should have noticed the increasing intensity of the gas in the apartment and opened the windows.\nThe evidence shows that -the action of gas in such cases is insidious, so that the victim is insensibly overcome. Moreover the day being cold, the girl had been enjoined to keep the windows closed. The very purpose of making the gas connection was to bring the heating apparatus into service.\nCounsel for defendant argue that a gas company, when called upon for a gas connection, is not required to ascertain whether the piping in the house is in good condition, but has the right to assume that it is; that the owner of the house, or, vicariously, the tenant applying for the gas connection, has seen to that.\n[3] Granting this to be true, the trouble in the present case was not that the piping in the house was not in good condition; the trouble was that one of the outlets had been opened and left so. A gas company connecting its main with the service pipe of a house certainly owes the duty of ascertaining that the outlets in the house are closed, especially those which it had itself left open. It is held to “a degree of care commensurate with the dangerous character of the substance handled.” 20 Cyc. 1170, cited with approval in Bradley v. Shreveport Gas Co., 142 La. 49, 76 South. 233.\n[4] The jury allowed $7,500 to each of the plaintiffs. This court has not been in the habit of allowing large damages for the mental pain of parents at the loss of a young child and their loss of the companionship of the child. Westerfield v. Levis Bros., 43 La. Ann. 63, 9 South. 52; Rice et ux. v. Crescent City R. Co., 51 La. Ann. 108, 24 South. 791; Sundmaker v. Y. & M. V. R. Co., 106 La. 111, 30 South. 285; Le Banc v. Sweet, 107 La. 355, 31 South. 766, 90 Am. St. Rep. 303; Lindsey et ux. v. Tioga Lbr. Co., 108 La. 468, 32 South. 464, 92 Am. St. Rep. 384; Wilson v. Banner Lumber Co., 108 La. 590, 32 South. 460; Ortolano et ux. v. M., L. & T. R. & S. S. Co.. 109 La. 902, 33 South. 914; Buechner et ux. v. City of New Orleans, 112 La. 599, 36 South. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455; Parker v. Crowell & Spencer Lumber Co., 115 La. 463, 39 South. 445; Hollins et ux. v. New Orleans & N. W. R. Co., 119 La. 418, 44 South. 159; Bourg v. Brownell-Drews Lumber Co., 120 La. 1009, 45 South. 972, 124 Am. St. Rep. 448; Cherry et ux. v. Louisiana & A. R. Co., 121 La. 471, 46 South. 596, 17 L. R. A. (N. S.) 505, 126 Am. St. Rep. 323; Burvant et ux. v. Wolfe, 126 La. 787, 52 South. 1025, 29 L. R. A. (N. S.) 677; Robertson et ux. v. Town of Jennings, 128 La. 795, 55 South. 375; Le Blanc v. United Irrigation & Rice Milling Co., 129 La. 196, 55 South. 761; Weekly v. Louisiana Western R. Co., 129 La. 790, 56 South. 889, Ann. Cas. 1913B, 798; Roby et ux. v. Kansas City Southern Ry. Co., 130 La. 896, 58 South. 701; Lea et ux. v. Kentwood & E. Ry. Co., 131 La. 852, 60 South. 370; Johnson v. Industrial Lumber Co., 131 La. 897, 60 South. 608; Vincent et ux. v. M., L. & T. R. & S. S. Co., 140 La. 1027, 74 South. 541; Sutton et ux. v. Champagne, 141 La. 469, 75 South. 209; Albert v. Munch, 141 La. 686, 75 South. 513, L. R. A. 1918A, 240; Patton et ux. v. Frost-Johnson Lumber Co., 142 La. 117, 76 South. 580. We duly take into account that it was plaintiff’s only child.\n[5] The judgment appealed from is reduced to $5,000, of which $2,500 to each of the plaintiffs, and as thus amended it is affirmed; the plaintiffs to pay the costs of this appeal.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"hebert-v-baton-rouge-electric-co","summary":"Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. E. Brunot, Judge. Action by Leslie E. Hebert and wife against the Baton Rouge Electric Company. Judgment for plaintiffs, and defendant appeals.","syllabus":"\n(Syllabus by Editorial Staff.)\n
I.Gas &wkey;>l8 — Gas company held negligent in failing to close gas outlet in connecting main with apartment.
Where gas company, in connecting its main with an apartment, left gas outlet open, it was liable for death of child asphyxiated by escaping gas; the failure of the company to dose the outlet constituting negligence.
2. Gas (@=»I9 — Tenants who had never used gas held not negligent in failing to discover that gas company had left outlet open.
Tenants’ of apartment who had never before used gas were not negligent in failing to discover that gas company, in making connection, had left gas outlet open.
3. Gas &wkey;5Í7— Gas company in connecting main with service pipe of house is required to ascertain that outlets in house are closed.
A gas company connecting its main with the service pipe of a house has the dirty of ascertaining that the outlets in the house are closed, especially those which it has itself left open, being held to a degree of care commensurate with the dangerous character of the substance handled.
4. Death &wkey;>99(3) — $7,500 for death of child held excessive.
Verdict of $7,500 to each parent for death of three year old child is excessive, and will be reduced to $2.500 to each parent.
5. Costs 4&wkey;234 — Of ap.peal taxed against plaintiffs on reduction of judgment from $15,-000 to $5,000.
Where judgment of $7,500 for each parent was reduced on appeal to $2,500 to each, the costs of appeal will be taxed against the parents.
"} {"case_name":"English v. National Collegiate Athletic Ass'n","case_name_full":"Jon ENGLISH v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and Tulane University of Louisiana","case_name_short":"English","citation_count":0,"citations":["438 So. 2d 209"],"court_full_name":"Supreme Court of Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"Supreme Court of Louisiana","court_type":"S","date_filed":"1983-09-22","date_filed_is_approximate":false,"id":7598716,"judges":"Blanche, Dixon, Marcus, Watson","opinions":[{"ocr":true,"opinion_id":7528458,"opinion_text":"\nIn Re: Jon English, applying for Supervisory Writs and/or Writ of Review, and Stay Order to the Court of Appeal, Fourth Circuit, No. C-1357; Civil District Court, Parish of Orleans, No. 83-14981.\nDenied.\n","per_curiam":false,"type":"020lead"},{"author_str":"Dixon","ocr":true,"opinion_id":7528459,"opinion_text":"\nDIXON, J.,\nconcurs in the denial. The Court of Appeal acted promptly and correctly in the exercise of its supervisory jurisdiction.\n","per_curiam":false,"type":"030concurrence"},{"author_str":"Marcuswatson","ocr":true,"opinion_id":7528460,"opinion_text":"\nMARCUS and WATSON, JJ.,\nwould grant the writ, being of the opinion that the Court of Appeal erred in interfering with the conduct of the proceedings in the trial court.\n","per_curiam":false,"type":"040dissent"},{"author_str":"Blanche","ocr":true,"opinion_id":7528461,"opinion_text":"\nBLANCHE, J.,\nwould further grant, believing that the trial judge acted within the discretion permitted by CCP Art. 3606 after the first continuance was agreed to by all parties.\n","per_curiam":false,"type":"040dissent"}],"precedential_status":"Published","slug":"english-v-national-collegiate-athletic-assn"} {"attorneys":"Charles P. Ciaccio, Wessel, Bartels & Ciaccio Law Corp., New Orleans, for Dorothy Baltazor Walden, plaintiff-appellant., Jerry J. Blouin, New Orleans, for Wilmer J. Baltazor, provisional executor-appellee.","case_name":"Succession of Baltazor","case_name_full":"SUCCESSION OF Elise Lowe BALTAZOR","case_name_short":"Succession of Baltazor","citation_count":0,"citations":["540 So. 2d 1295"],"court_full_name":"Louisiana Court of Appeal","court_jurisdiction":"Louisiana, LA","court_short_name":"Louisiana Court of Appeal","court_type":"SA","date_filed":"1989-03-15","date_filed_is_approximate":false,"id":7640368,"judges":"Dufresne, Gaudin, Gothard","opinions":[{"author_str":"Dufresne","ocr":true,"opinion_id":7573116,"opinion_text":"\nDUFRESNE, Judge.\nThis is an appeal from a judgment on a motion to traverse the detailed descriptive list in a succession proceeding. The contestants are Dorothy Baltazor Walden, who is the daughter and an heir of the decedent, and Wilmer J. Baltazor, Dorothy’s brother, who is a son and heir of the decedent and also the provisional executor for the succession. At issue is the number of shares of voting stock in a family-owned corporation to be included in the assets of the succession. Dorothy Walden contends Wilmer Baltazor erred in listing 60 shares of the stock on the detailed descriptive list because hér mother donated 30 of these shares to her several years before her death.\nElise Lowe Baltazor, who died on October 14, 1977, was the widow of Gregory Albert Baltazor and the mother of Dorothy Baltazor Walden, Albert A. Baltazor and Wilmer J. Baltazor,. all born of her marriage to Gregory Baltazor. On December 10, 1957, Gregory and Elise incorporated a company known as Baltazor, Inc., with 900 authorized shares of stock. The stock was divided into two classes — Class A (voting common stock), of which there were 90 shares; and Class B (non-voting common stock) of which there were 810 shares. The Class A (voting) stock was issued to Gregory and Elise equally, 45 shares each; the Class B (non-voting) stock was issued 405 shares to Gregory, 404 shares to Elise, and one share to their son Albert.\nShortly after the company was incorporated, Gregory and Elise began transferring various amounts of stock to their children in equal amounts by periodic notarial acts of donation. By December 30, 1964, Gregory and Elise each had transferred all their Class B stock and 15 shares of the Class A stock to Albert, Dorothy and Wilmer. This left the parents with 30 shares apiece of the Class A stock.\n*1296Gregory died on April 22, 1970, leaving a will in which he left all his Class A voting stock in Baltazor, Inc., to his wife. On May 7, 1970, by notarial act of donation, Elise Baltazor donated to Dorothy Balta-zor, wife of Ernest Walden, 30 shares of Class A stock of Baltazor, Inc., represented by Certificate #20, dated December 30, 1964. Albert and Wilmer apparently did not learn of this donation until Elise’s succession was opened judicially.\nArticle XI of the Articles of Incorporation of Baltazor, Inc., contains the following provisions restricting transfers of shares:\n“No subscriber or shareholder shall sell, transfer, assign or otherwise dispose of, except through transfer by inheritance, the ownership of his allotment or shares, or any part thereof, unless said allotment or shares are first offered to the corporation and to the remaining subscribers and shareholders, at the bona fide price offered by a third party to the shareholder or subscriber proposing the transfer, by letter filed with the Secretary of the Corporation. * * *\nIn the event that the other shareholders and/or the Corporation do not exercise their rights within the times prescribed above, then and only then shall the shareholders desiring to sell or otherwise transfer be entitled to sell or transfer to whomsoever he sees fit * *\nThere is no evidence of compliance with these restrictions for any of the donations.\nOn February 17, 1972, by judgment of possession rendered in the Succession of Gregory Albert Baltazor, Elise was recognized as the particular legatee of all of her husband’s Class A voting stock in Baltazor, Inc., and was placed in possession of the full ownership of Certificate No. 19, for 30 shares, Class A, dated December 30, 1965, in the name of Gregory Albert Baltazor, and Certificate No. 20, for 30 shares, Class A, dated December 30,1964, in the name of Mrs. Elise Lowe Baltazor.\nOn February 22, 1974, Baltazor Fabrics, Inc., was incorporated, with Elise and her three children as incorporators. According to the parties, this corporation was intended to handle the management of the Balta-zor retail fabric stores, while Baltazor, Inc., was to manage the corporate real estate holdings. Apparently, however, the real estate and fabric store operations were never segregated and Baltazor Fabrics, Inc., is little more than a paper entity.\nFollowing Elise Baltazor’s death two testaments were found, one a typewritten statutory will dated January 31, 1974, and the other an olographic will dated October 15, 1974. Each contained somewhat different provisions, the statutory will being more favorable to Dorothy Walden than the olographic. Under the statutory will, Dorothy was bequeathed all of her mother’s Class A voting stock in Baltazor, Inc., and Baltazor Fabrics, Inc., and the rest of the decedent’s property was bequeathed equally to the decedent’s children, share and share alike. Under the olographic will, the decedent bequeathed “all the real estate and cash in the corporation” to the three children to be divided one-third each and bequeathed the stock in the stores as follows: 30% each to Albert and Wilmer and 40% to Dorothy, with a final bequest of a diamond ring to Dorothy.\nWilmer and Albert contested the probate of the statutory will, asserting it had been revoked by the posterior execution of the olographic will. Dorothy contended the olographic will merely acted as a codicil to the statutory will. Following a trial on the merits, the district court found that the olographic will was valid and that it revoked in its entirety the statutory will, because the posterior will was diametrically opposed to the first will and the clauses of the wills could not be reconciled.\nThereafter, Dorothy filed the motion to traverse the detailed descriptive list filed by Wilmer, which listed the only assets of the succession as 60 shares of the Class A common stock of Baltazor, Inc., with a fair market value of $1,200,000, and 60 shares of the Class A common stock of Baltazor Fabrics, Inc., listed “for memorandum purposes only.” Dorothy asserted Wilmer’s list was in error because 30 of her mother’s shares in Baltazor, Inc., had already been donated to her.\n*1297The district court denied the motion to traverse, assigning two reasons: first, that the May 7,1970, donation by Elise to Dorothy violated the stock-transfer restrictions of the corporate charter; second, that Dorothy is precluded by res judicata from asserting the validity of the donation of May 7, 1970, because she acquiesced in the subsequent judgment of possession in the succession of her father, in which Elise was placed in possession of the 60 shares of Class A stock of Baltazor, Inc. Dorothy has appealed.\nTransfer restrictions placed on the sale of corporate stock are valid. La. Weekly Pub. v. First Nat. Bank of Commerce, 483 So.2d 929 (La.1986). However, restrictions on the transfer of stock must be strictly construed in favor of transferability. Id.\nCiting the latter principle, the appellant asserts the critical issue here is the court’s interpretation of “inheritance” as used in Article XI of of the articles of incorporation, which provides that no shareholder may sell, transfer, assign or otherwise dispose of his shares, except through transfer by inheritance. She argues that to construe the restrictions here in favor of transferability, we must consider the term “inheritance” to include not only donations mortis causa but also donations inter vi-vos.\nThe forced heirship laws of Louisiana grant the forced heir the right to demand collation of inter vivos donations made to other forced heirs. The appellant, thus, contends a donation inter vivos is a part of one’s inheritance because an inter vivos donation to a forced heir is considered an advance on his or her inheritance.\nLSA-C.C. art. 1227 defines collation as “the supposed or real return to the mass of the succession which an heir makes of property which he received in advance of his share or otherwise, in order that such property may be divided together with the other effects of the succession.”\nUnder LSA-C.C. art. 1228, collation is due by descendants:\n“Children or grandchildren, coming to the succession of their fathers, mothers or other ascendants, must collate what they have received from them by donation inter vivos, directly or indirectly, and they can not claim the legacies made to them by such ascendants unless the donations and legacies have been made to them expressly as an advantage over their coheirs, and besides their portion.\n“This rule takes place whether the children or their descendants succeed to their ascendants as legal or as testamentary heirs, and whether they have accepted the succession unconditionally, or with the benefit of inventory.”\nLSA-C.C. art. 1229 sets forth the reasons for collation:\n“The obligation of collating is founded on the equality which must be naturally observed between children and other lawful descendants, who divide among them the succession of their father, mother and other ascendants; and also on the presumption that what was given or bequeathed to children by their ascendants was so disposed of in advance of what they might one day expect from then-succession.”\nIn addition, the Civil Code provides that collation is always presumed unless it has been expressly forbidden or the donor has directed that the gift is made as an advantage or extra portion. LSA-C.C. arts. 1230, 1231.\nAlthough appellant’s argument is plausible, we cannot agree that “inheritance” as used in the stock transfer restriction should include a donation inter vivos to a forced heir. A forced heir can escape the obligation of collation through the donor’s declaration of dispensation from collation (C.C. arts. 1231, 1232) or the donee-forced heir’s renunciation of the donor’s succession (LSA-C.C. art. 1237), so that a donation made to a forced heir cannot always be viewed as an advance on that heir’s share in the succession of the donor. Therefore, to construe the exception allowing escape from the transfer restrictions for “transfers by inheritance” in favor of transferability would not extend the mean*1298ing of “inheritance” to include a donation inter vivos.\nAccordingly, we are compelled to find the May 7, 1970, donation by Elise to Dorothy was null because Elise failed to follow the requirements of Article XI of the Articles of Incorporation regarding transfers of shares. In view of our conclusion on this issue, it is unnecessary to address the other issues raised by the appellant.\nFor the foregoing reasons, the judgment of the district court is affirmed. The costs of this appeal are assessed against the appellant.\nAFFIRMED.\n","per_curiam":false,"type":"020lead"}],"other_dates":"Writ Denied May 12, 1989.","precedential_status":"Published","slug":"succession-of-baltazor"} {"attorneys":"Robert C. Beatty, for relator. John C. Coleman, for respondents.","case_name":"People ex rel. Grout v. Stillings","case_name_full":"PEOPLE ex rel. GROUT, Comptroller v. STILLINGS","case_name_short":"Stillings","citation_count":0,"citations":["78 N.Y.S. 1131"],"court_full_name":"Appellate Division of the Supreme Court of the State of New York","court_jurisdiction":"New York, NY","court_short_name":"Appellate Division of the Supreme Court of New York","court_type":"SA","date_filed":"1902-11-21","date_filed_is_approximate":false,"id":8107669,"judges":"Brunt","opinions":[{"ocr":true,"opinion_id":8068336,"opinion_text":"\nPER CURIAM.\nThis is a certiorari to review an award made by commissioners, under chapter 537 of the Laws of 1893 and chapter 567 of the Laws of 1894, to Alexander D. Duff and others for damages to their premises on the easterly side of Railroad avenue by reason of a change of grade of that avenue. The claim was filed on the 3d day of December, 1894. The only questions presented are those discussed and decided in the case of People v. Stillings (handed down herewith) 78 N. Y. Supp. 333. The award should be confirmed, with $50 costs and disbursements on the opinions in those cases.\nVAN BRUNT, P. J., dissents.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"people-ex-rel-grout-v-stillings","summary":"Certiorari by the people, on the relation of Edward M. Grout, as comptroller, against William E. Stillings and others, as commissioners, and Alexander D. \"Duff and others, claimants, to review an award of damages to lands by reason of a change of grade of the street on which they front. Award confirmed."} {"case_name":"Com. v. Boone","case_name_full":"COM. v. BOONE, L.","case_name_short":"Com.","citation_count":0,"citations":["188 A.3d 527"],"court_full_name":"Superior Court of Pennsylvania","court_jurisdiction":"Pennsylvania, PA","court_short_name":"Superior Court of Pennsylvania","court_type":"SA","date_filed":"2018-03-14","date_filed_is_approximate":false,"id":8263764,"opinions":[{"ocr":true,"opinion_id":8229079,"opinion_text":"Unpublished Decision. Citation to unpublished opinion of the Superior Court of Pennsylvania is governed by Section 65.37 of the Operating Procedure of the Superior Court, 210 Pa. Code § 65.37.Affirmed.","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"com-v-boone"} {"attorneys":"James H. Ferguson, William W. Gordon, and Hunter H. Marshall, for complainant., Samuel Price, N. Goff, Jr., and William H. Hogeman, for defendants.","case_name":"Johns v. Slack","case_name_full":"JOHNS v. SLACK","case_name_short":"Johns","citation_count":0,"citations":["13 F. Cas. 709","2 Hughes 467"],"court_full_name":"District Court, D. West Virginia","court_jurisdiction":"West Virginia, WV","court_short_name":"D. West Virginia","court_type":"FD","date_filed":"1875-01-15","date_filed_is_approximate":true,"id":8653231,"judges":"Jackson","opinions":[{"author_str":"Jackson","ocr":true,"opinion_id":8633065,"opinion_text":"\nJACKSON, District Judge.\nThe bill alleges that at a judicial sale made in 1855, in a suit *710in the circuit court, of Kanawha county, in which Isaac Reed, as guardian, was complainant, and Mrs. E. Y. Cox and others were defendants, John N. Clarkson became the purchaser of a tract of 122% acres of land, adjoining the town of Charleston, in the county of Kanawha, for the sum of $15,400. He paid a portion of the purchase-money and executed his notes for the residue. Failing to discharge the notes as they fell due, such proceedings were had in the case as resulted in the appointment of William R. Cox and W. E. G. Gillison as commissioners to resell the property. After this decree was obtained, Clark-son paid four thousand dollars of the unpaid purchase-money, after which no steps were taken to resell the property until 1804. The last order made in the case, prior to the war, was at the fall term, 1859. A short time after, the condition of the country became very unsettled, and hence no move was made to enforce the decree, as we have said, until 1864. At the April term, 1804, of the circuit court of Kanawha county, on motion of William E. G. Gillison, F. A. Lovell was appointed a commissioner, instead of Cox and Gillison, to make the resale of the land under the decree rendered in 1S59. Shortly after his appointment, Lovell, as commissioner, advertised the land for sale, and on the 25th of June, 1864, sold the land pursuant to the several orders theretofore made in the case of Reed v. Cox's Heirs [unreported], at which sale Greenberry Slack became the purchaser.\nI have briefly given the history of this case, at least what I regard as material, to the time when the present controversy commenced. Upon this state of facts, the plaintiff in this proceeding seeks to set aside the conveyance made to the defendants, by Commissioner Lo-vell, in pursuance of the order of said court; alleging, first, that the action of Gillison, who held a double relation to the case, that of party in right of his wife, and counsel, was under the circumstances fraudulent. In reply to this position, I have to remark that it was his unquestioned right (if he thought proper) to act as counsel for the protection of his wife’s interests, as well as those of her friends. It was a question which he alone could best determine, whether it was prudent for him to maintain that legal relation to the case, and I am not aware of any legal rule that would be violated by such action. Being interested in right of his wife, he had an undoubted right to protect her interests and take such action as in his judgment would best subserve those interests. When, therefore, he thought the time had arrived to take such action, it was not only his legal right to move, but it was clearly his duty to do so. In determining this question, he had to exercise his discretion, the exercise of which is, under the circumstances, the subject of complaint. It does not occur to me, however1, that it was improperly exercised in the respects referred to, nor do I perceive that any injury has resulted from his action in this respect. At this point it is sought to connect the confiscation proceedings pending against Clarkson with the adtion of Gillison, by charging that he took advantage of the absence of both Clarkson and Cox to enforce the decree, pending proceedings of confiscation. The fact that Clarkson and Cox were absent and within the Confederate lines, and that confiscation proceedings had been commenced against them, and that such proceedings “constituted a damaging cloud upon the title of the property,” seems to me to be of little or no consequence. At the time of the sale, the proceedings had been pending for some time, and it was evident that there was no serious purpose on the part of the officers of the government to do more than confiscate any personalty Clarkson might have. In fact, this court had announced at a very early period after the passage of the confiscation acts, that in its judgment no estate in fee was liable to confiscation, and that opinion was published and most likely known to all interested parties in this district. But it must be borne in mind that the proceedings in confiscation were against Clarkson, who had only an equitable or contingent interest, and not against the parties who held the legal title to the property in question. Clarkson had no title to it, and could have none until the purchase-money due the estate of Cox was paid and fully discharged. At the time of the sale such was not the fact; on the contrary, the balance due on the original purchase, with the accumulated interest, was about equal to the original debt. Clarkson left the country early in 1861, with a full knowledge of the fact that a decree had been entered in the circuit court of Kan-awha county (which had been affirmed by. the court of appeals, the court of last resort) directing a resale of the land. This fact was also well known to the people of Charleston, as the property seems to have been the subject of much talk. Every one who took an interest in the property was informed of its situation. In fact, it nowhere appears that there was any effort upon the part of any one to conceal its true condition. Hence, I conclude that the condition of the property was so well understood that the confiscation proceedings pending at the time did not influence Gillison’s action, nor does the evidence disclose the fact that he in any way alluded to their pendency or used them for any purpose whatever. Nor does it appear that the pend-ency of such proceedings seriously affected the sale of the land in controversy. It is also alleged that the decrees should have been modified so as to lay the property off into lots for sale. But this was not done. And the question is asked why Gillison pressed the sale of the property without having first obtained such action before the sale was made. It is sufficient to say that it was not the duty of Gillison or those he represented to ask the court for a modification of the decree in that respect. It had been entered some years before and appealed from by Clarkson to the *711court of appeals, and by that court affirmed. The rights of all had been determined, and it was not in the power of either party to modify it. All they could legally and rightfully do was to execute it. Gillison considered the entire tract bound for the debt he represented. They had a lien on the whole tract, and were entitled to have it sold, unless Clark-son, or some ODe for him, could satisfy the court that a portion of the tract would pay off the balance of the debt; in which event, the court might have so decreed. But it nowhere appears that Clarkson, or any one for him, brought this matter to the attention of the court. If at this stage of the proceedings any one was chargeable with neglect to do what might have been proper under the circumstances, it certainly was not Gillison. In no view of this question as presented, was he bound to take such action. If there was any neglect in regard to this matter, it must be with those whose absence from their homes and the country would more properly account for it. It therefore seems to me that the point attempted to be made by, the plaintiff, that “it was a fraud on the part of Gillison to force a sale of the lands of Clarkson at the time and under the circumstances then existing,” is not well taken. I am unable to see anything in the conduct of Gillison calculated to prejudice the rights of any one. What he did he clearly had the right to do. He waited until 18&1, a period of five years after the final order had been entered, before he took any steps to enforce the decree. It is apparent that he delayed action until peace and tranquillity could be restored to the country. When he did move, the war was substantially over, and the country in this region quiet. But it is evident that the moving consideration with Gil-lison was to save the debt due Cox’s estate. When he moved for the sale, the property had been occupied by both of the contending armies, the fine mansion house had been to a great extent dismantled, the trees, shrubbery, and fences destroyed, and the value of the property supposed to be materially affected. It was at that time abandoned, the house unoccupied, the fields in commons. Its rapid decay consequent upon its abandonment was a most potent reason for his action in the premises. There is no view that I can take of Gillison’s conduct that would justify me in sustaining the charge of fraud against him. To sustain this allegation no direct proof has been brought, nor do I think the facts and circumstances of the case warrant the inference of fraud.\nThe next position of the plaintiff is “that the combination entered into by the purchasers of the land in question, evidenced by a written agreement, and the purchase of the land in pursuance thereof, was, under the circumstances, a fraud on the rights of Clark-son which rénders the sale void.” An examination of the agreement must satisfy any one that it does not of itself import or constitute a fraud upon the part of those who executed it. The fraud is, therefore,\" if it exist at all, subsequent to the execution of this instrument, and must have grown out of it. And first, it is contended that the sale is void, whether Lovell, the commissioner, was guilty of any official misconduct in the sale or not. To support this position the proceedings in confiscation are again invoked; this time in connection with B. H. Smith, another of the'defendants, instead of Gillison. As I have before remarked, the proceedings in confiscation seem not to have influenced the action of any one, nor does it appear that any one was deterred from bidding by reason of their pendency. It will not be gravely contended that the mere existence of such proceedings amounts to anything, when the purpose of the government was either well known, or it was within the power of any one desiring information on the subject to ascertain her object. The government not only did nothing for twq years before the sale of the property (after filing her libel), but. as we have seen, when the property was advertised for sale under the order of the circuit court of Kanawha county, she took no steps to prevent the sale. Under this state of things it must be presumed that she had abandoned her proceedings in confiscation, and subsequent events certainly tend to confirm this view of the case. I therefore conclude that there was nothing in the relation of the government, or its agent, B.#H. Smith, to this case, that would authorize this court to conclude that the proceedings in confiscation tended to cast a cloud upon the title, or that there was any such relation to the case on the part of the government, or its officer, as would justify presumption of fraud in fact or in law upon the rights of Clarkson. In this connection, however, it is alleged that independent of the consideration just referred to, the purpose and object of this combination was to perpetrate a fraud upon the rights of Clarkson, and that the parties to this agreement had conspired together to secure that result. To support this position, the evidence of a number of witnesses has been taken by the complainant, as to conversations had with parties to this contract who were members of this combination. In considering this allegation it becomes necessary for the court to examine the evidence in support of, as well as the denials of the defendants to the truth of, the allegation, and the evidence adduced by them in support of their positions. To do this, the court is required to weigh the evidence and to look at it in the same light that a jury would be expected to examine and pass upon it. The motives of the witnesses, their relation to the case, the circumstances by which they are surrounded, and their character for credibility, are all elements to be considered and weighed by the court in making up its judgment.\nHaving indicated the rules for our guidance in this particular, let us briefly examine *712the evidence of George High, James A. Young, and Charles C. Young, to this point. The first witness, High, details a conversation with Whittaker in which he says Whit-taker stated that “he had labored hard to get up the company and get all the moneyed men into it so as to have it their own way, whereby there would be no opposition bidding.” This conversation occurred after the sale, and conceding the statement to be true, would of itself tend to prove little or nothing; but he is contradicted in toto by Whittaker, and in part by McWhorter. Applying to him the well-known rule of “falsus in uno, falsus in omnibus,” I deem it unnecessary at this time to notice his testimony in. regard to Atkinson, who is dead, except to say that if what he asserts of him be true, that the members of the company were not to bid against each other, it does not, under the circumstances of this case, amount to anything, for the reason that the evidence discloses the fact that there was but one man in the company of any considerable means, the remaining members being men of moderate means, which of itself is a fact strongly tending not only to discredit his statements, but to establish the fact that the object of the combination was to enable men of small means to bid for the property, which is admitted to be true by John Slack, Sr. James A. Young details a conversation with Atkinson as to the value of the property, stating that Atkinson admitted that they had purchased the property far below its value by getting the moneyed men combined together. Charles C. Young speaks of a conversation with Greenberry Slack, on the morning of the sale, in which he stated that he expected to get the property for less than twenty thousand dollars, and that it was worth one hundred thousand dollars. If these conversations ever occurred, they are nothing more than idle declarations and un-sworn statements that are of little or no value when met by the statements of the parties under oath. Both statements are improbable, and, I might say, almost incredible. The conversation with Atkinson took place after the sale, whilst the one with Slack was on the morning of the sale. When Atkinson is said to have spoken the sale was ov.er, and he could have had no motive in making such a statement. The conversation with Slack is a mere expression of opinion as to what the property would sell for. There is no evidence tending to show that the statements in any way affected the value of the property or prevented any one from bidding. It is difficult to perceive what good could be accomplished by such statements, or how Slack or Atkinson could hope to. be benefited by them. The evidence clearly shows that neither Slack nor Atkinson were wanting in sense, but, on the contrary, they were both successful business men of limited means. Slack contradicts Young, and is sustained by his co-defendants and many other witnesses, who testify that the property brought its full value. The statements of the two Youngs are, as I have said, very Improbable, but, if not, they stand before the court with such a cloud resting upon them as to create doubt in the mind of the court as to the truth of their statements. Whilst Slack, on the one hand, is strongly sustained both by his co-defendants and the facts of the case as they are mainly developed, on the other hand the Youngs, whose statements seem to me so improbable, stand, if not entirely discredited, with their character for truth so assailed and impeached as to render it impossible for the court to credit their statements.\nIt will be observed that thus far I have examined the evidence relied on by the plaintiff to establish fraud on the part of Gilli-son and Smith. Passing from the consideration of the questions involved in their action, as well as the facts and circumstances attending the sale, I propose to examine the next position of the plaintiff, “that Lovell, the commissioner who made the sale of the land in question, was guilty of such official misconduct as to render the sale void.” This is a very grave charge under any circumstances, but it is particularly so when preferred against a man whose lips are forever sealed by death, and who can have no opportunity to meet it or to explain the transaction upon which it is founded. It is therefore eminently proper that the evidence tending to fix a stain, upon the memory of a man whose reputation up to the time of the transaction alluded to was without spot or blemish should be most carefully scrutinized. Therefore, before the mind of the court can be brought to this conclusion, the plaintiff must be required to establish the truth of the allegations by such credible evidence as not to leave its mind in doubt. This allegation of the bill would seem to resolve itself into two propositions. First, that the commissioner was guilty of such misconduct as would have prevented the court (if informed of his conduct) from confirming his action. Second, that he had such an interest in the result of the sale aw would disqualify him from acting as such commissioner. I have to some extent examined the conduct of Lovell on the day of sale in connection with Gillison. As we have seen, he was the commissioner of the court, charged with the naked duty of selling the land under the decree. Upon the day of sale he cried the property nearly the entire day, having at noon adjourned over for a short period for dinner. No undue haste was exhibited by him, no improper act on the day of sale is proven against him. True, there is an effort to prove that he did or said something about the title of the property. But this is not clearly proven. On the contrary, if he did anything, he replied to the questions concerning it, that he was acting as commissioner, and that persons desiring information about the title had better inquire of some *713lawyer, probably of Colonel Smith. Admit this to be true, and what is there in it? He is selling as commissioner, and sells only such title as is invested in him by the decree •of the court. The question asked was not an unusual one at judicial sales, and the reply to it was, in my judgment, not only proper, l>ut quite as usual. But the material fact is, who was deterred by his answer from bidding? What witness has been introduced to show that he would have given more for the property, or would have even bid upon it, except for the conduct of the commissioner?\nUpon this most material point the evidence is silent Much has been said by counsel in their arguments, tending to cast reproach upon the conduct of this commissioner on the day of sale. I confess that in the examination I have given this ease, I have been unable, after most diligent labor, to find in the conduct of Lovell on the day of sale, any act that in the least reflects upon his character, or assails his action as commissioner. It is, however, alleged that he was a member of the company who purchased the property, and that he fraudulently concealed his interest, thus defrauding the creditors of Clarkson by selling the land at a sacrifice. And here we have a most pertinent inquiry. What interest does the evidence show that Lovell had? If we look for direct proof on this point, none has been adduced except the evidence of Harvey Young, which is contradicted by John Slack. Sr. The written contract between the purchasers, filed by the defendants, does not disclose it. . The deed made by Slack for the benefit of the purchasers does not show it (although made long previous to the Institution of this suit). We must, therefore, look to the only other source, and which is mainly relied on to fix the interest of Lovell, viz., his admissions and declarations. To establish this point, the testimony of Harvey H. Young and others is chiefly relied on. It is to be remarked, that nearly all the declarations (except in one of the conversations Lovell had with Young) were made after the sale. They were made when Lovell was not on oath, and when no opportunity was given the defendants for a cross-examination of him to ascertain the truth of his statements. The purchasers acquired their rights to the property immediately after the sale, and some time previous to the date of these declarations. Admissions of this character cannot affect the title of the defendants. The principle is well settled that “admissions made after other persons have acquired separate rights in the same subject-matter, cannot be received to disparage their title, however it may affect that of the declarant himself.” The application of this principle might well be relied on to dispose of the declarations of Lovell, and further discussion upon this point rendered unnecessary. But it is not necessary to rely alone upon this principle. If the declarations ascribed to Lovell are true, he must have had some motive for making them. What that motive was is immaterial at this point of our discussion. He would then stand before the court as a witness of depraved and corrupt character, having furnished the evidence of his own guilt. The declarations, if true, convict him, as was well remarked, of “perfidy and gross turpitude.” If he were living and they were sworn to, they would be disregarded as coming from a soui’ce so corrupt as to entitle them to little or no credit. But when they are made, not under the sanction of an oath, and offered as the declarations of a witness who admits his own baseness, they become utterly worthless; and a judge sitting as a chancellor, with the right to draw “all inferences which a jury might draw, and all things which they may lawfully presume will be drawn and presumed by the court,” would wholly disregard testimony derived from a person so immoral and corrupt in character, and treat it as unworthy of credit.\nIt may be conceded, however, for the sake of the argument, that the declarations of Lovell are true, and entitled to consideration by the court in making up its judgment. Admitting to be true all they tend to prove, would the result be different? I think not. Testimony of this character is regarded as the weakest and most unreliable known to the law. It opens the door to fraud, is the most difficult to answer, and is usually resorted to by parties hard pressed to make out a case. In this case the declarations relied on are those of a dead man, and are to be received with the utmost caution. Evidence of this character, unless very strongly supported, is too weak to authorize the court to grant the relief sought for. Here, however, the declarations of Lovell are not only not strongly supported, but they are opposed by the united testimony of all the defendants that have spoken in this cause, who swear positively that at no time was Lovell a member of the company, nor did he at any time have any interest in the property purchased. But suppose Lovell was living, and introduced as a witness by the plaintiff, and admitted that the declarations made to Young and others were true, no one could or would question that the case tvould be much stronger against the defendants than it now stands. What would then be its condition? Would it not, upon this vital point to the plaintiff, resolve itself into an issue between Lovell claiming an interest in the property on the one hand, and all the defendants on the other denying his interest? Undoubtedly this would be the position of the case on this point. And the court would be required to decide between the testimony of a witness, standing alone, admitting his own turpitude, and the testimony of a number of persons opposed to him, who stand before the court unimpeach-ed, and as far as this court can see, unim-*714peaehable. Under such circumstances, it will readily be perceived where the weight of evidence would lie. Certainly no one of the counsel for the plaintiff would claim, before a jury, a verdict upon the evidence of Lovell alone, confronted and met by all the defendants in this case. If they did, the answer would simply be, the preponderance of evidence is with the defendants, and the jury would be compelled to find in accordance with the facts. I presume it will not be pretended that the evidence of all the witnesses who prove the declarations of Lovell, makes the case stronger for the plaintiff than he (Lovell) could make it, were he present. If therefore the case upon this point would fail if Lovell were present, admitting all to be true that is here claimed to have been said by him, certainly no one will be bold enough to question the correctness of the conclusion arrived at, founded upon evidence of his admissions and declarations in his absence. The defendants, however, are not driven to rely upon this position alone. They have assailed nearly every important witness introduced by the plaintiff tending.to establish Lovell’s complicity in the alleged frauds. A number of them admit their subornation in this case and the falsity of their testimony, while others stand in a position calculated to weaken the faith of the court in their statements, if, in fact, they are not so far discredited as to force the court to the conclusion that their evidence should be entirely disregarded.\nIt is a remarkable fact, running through all the evidence relating to Lovell’s declarations as to his interest, that not a witness of unblemished character, with a single exception, has been produced to prove them. The Youngs, and all others introduced for the purpose of proving his interest in the company, are men who belong to a particular class that seem to be present when needed, although many of them live out of the town of Charleston. Another fact is also striking, that Lovell lived here, was known by every one. and yet no one of unquestionable character, unless it be Harvey Young, who is contradicted by John Slack, Sr., and Ruff-ner, could be found to prove what the Youngs and their contemporaries have testified to. The court is therefore constrained to conclude that the evidence offered by the plaintiff is in a great measure derived from those of questionable character, whilst that of the defendants is from men who stand before the court unimpeached, and I infer unimpeachable, as it appears from the record in this case that both plaintiff and defendants have done all in their power to strengthen and fortify their positions.\nPassing from the various questions I have discussed, I propose to consider briefly the object and effect of the combination which it is alleged was formed for the purpose of defeating competition at the sale. That the object was to enable the defendants to bid at the sale and become the purchasers is clearly shown both by the agreement and the evidence. Surely it was a proper one, and has been sanctioned both by usage and law. I am not aware of any principle, either moral or legal, that would be violated by the formation of such an association as the evidence shows this one to be. If such was not the case, then our great industries and enterprises would at once be stayed, and the march of progress in the development of all the great resources of the country would be at an end. In every stage of society this mode has been adopted for the accomplishment of objects of greater or lesser magnitude. I cannot, therefore, see any objection to the formation of this association, nor to its avowed object. If we look to the effect produced by its formation, certainly the evidence does not show that any one was prevented from bidding, nor do we perceive' that the property, at the time, sold for less than its value. Whilst the testimony upon this point is conflicting, yet it is clear to my mind that the weight of the evidence in the cause supports this conclusion. It cannot be denied that the evidence is of the most conflicting character. After a careful examination of it, I have reached the conclusion that not only the preponderance but the great weight of the evidence is with the defendants. The allegations of fraud, so much relied on, are not sustained by testimony strong enough to justify the court in granting the relief prayed for. It is wanting in the essential elements that I have already shown it to be deficient in. But when we weigh the testimony offered by the plaintiff with that of the defendants, which is' supported and sustained by the answers filed in this case, in w'liieh they deny in most explicit and emphatic terms every allegation of fraud, the court cannot escape the conclusion that the plaintiff has failed to sustain his case by that preponderance of testimony which would justify the court in setting aside the deed from Lovell, which is' sought to be cancelled and annulled by this proceeding. And I may here remark that courts do not look with much favor upon a proceeding instituted, as this was, so long after the property had been sold, and passed into the hands of other and subsequent purchasers without notice. In this case it seems to me there was unnecessary delay in the institution of’ this suit. In the view I have taken in this case, I deem it unnecessary to discuss the legal questions arising on the demurrer and presented by the pleas of the defendants. Upon full consideration of this ease. I am of opinion that the case is with the defendants, and that the bill be dismissed with costs.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"johns-v-slack"} {"attorneys":"Ira M. Press, Sarah G. Lopez, Mark Allen Strauss, Kirby Mclnerney LLP, New York, NY, Lionel Z. Glancy, Robert Vincent Prongay, Glancy Binkow & Goldberg LLP, Los Angeles, CA, for Plaintiffs., Diane Leslie Webb, Andrew Michael Purdy, Joseph Edward Floren, Attorney at Law, Kimberly Alexander Kane, Morgan, Lewis & Bockius LLP, San Francisco, CA, Karen A. Pieslak Pohlmann, Marc J. Sonnenfeld, Morgan Lewis and Bockius LLP, Philadelphia, PA, Jennifer Renee Bagosy, Morgan Lewis & Bockius LLP, Lawrence David Lewis, Dwight Ludden Armstrong, Keith Paul Bishop, Allen Mat-kins Leek Gamble Mallory & Natsis LLP, Irvine, CA, Amy Wintersheimer Findley, Allen Matkins Leek Gamble Mallory & Natsis LLP, San Diego, CA, for Defendants.","case_name":"Cement & Concrete Workers District Council Pension Fund v. Hewlett Packard Co.","case_name_full":"CEMENT & CONCRETE WORKERS DISTRICT COUNCIL PENSION FUND v. HEWLETT PACKARD COMPANY","citation_count":0,"citations":["964 F. Supp. 2d 1128"],"court_full_name":"District Court, N.D. California","court_jurisdiction":"California, CA","court_short_name":"N.D. California","court_type":"FD","date_filed":"2013-08-09","date_filed_is_approximate":false,"id":8727473,"judges":"Tigar","opinions":[{"author_str":"Tigar","ocr":true,"opinion_id":8710671,"opinion_text":"\nORDER GRANTING MOTIONS TO DISMISS\nJON S. TIGAR, District Judge.\nIn this securities fraud suit, Defendants Hewlett Packard Co. and its former CEO, Mark Hurd, move to dismiss for failure to state a claim pursuant to the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4. Because the First Amended Complaint fails to satisfy the materiality and falsity requirements for a securities fraud claim, the Court will grant the motions with leave to amend.\nI. FACTUAL ALLEGATIONS\nLead Plaintiff Cement & Concrete Workers District Council Pension Fund’s operative First Amended Complaint, ECF No. 33 (“FAC”), filed on behalf of a class of purchasers of Defendant Hewlett Packard Co.’s stock who purchased between November 13, 2007, and August 6, 2010, and held the shares as of August 6, 2010, alleges that HP and its former Chairman, President, and CEO Mark Hurd committed securities fraud in violation of sections 110(b) and 20(a) of the Securities Exchange Act of 1934 (15 U.S.C. §§ 78j(b), 78t(a)), and Rule 10b-5 promulgated thereunder by the Securities Exchange Commission (17 C.F.R. 240.10b-5).\n*1134A. The 2006 Scandal\nThe FAC alleges that HP was embroiled in an ethics scandal in 2006 arising out of information leaks that implicated several HP executives and members of its board of directors. FAC ¶ 3-4. HP’s then-Chairman and General Counsel were both prosecuted for their role in the scandal. Id. ¶ 22. Defendant Mark Hurd had become CEO in 2005 and was not implicated; instead, “he emerged with his reputation for integrity not only intact, but made all the stronger for it.” Id. ¶ 22. HP’s shares “remained buoyant” during the scandal because of the concurrent increase in the profitability of its main business and increased market share. Id. ¶ 23. At that time, Wall Street generally approved of CEO Hurd’s efforts “to reshape the management ■ team, improve morale and cut costs,” as well as his implementation of strategies that resulted in HP’s increase in market share. Id. However, when Hurd was implicated on September 21, 2010, as a potential target in the 2006 scandal, HP’s stock price dropped 5.19 percent. Id. ¶ 24. The Complaint alleges that Hurd’s reputation for integrity was a material factor in HP’s success following the scandal. Id. 23-25. Hurd testified before Congress, issued press releases, briefed investors, and sent public letters to HP employees in an effort to restore public trust. Id. ¶ 23-28.\nB. Hurd’s Departure\nHP retained Jodie Fisher as an independent consultant in the fall of 2007 to help host executive events and introduce Hurd to important HP customers at hotel receptions around the world. Id. ¶ 34. Fisher’s contract was terminated in November 2009. Id. On June 29, 2010, Fisher’s attorney sent HP a letter containing allegations that Hurd had sexually harassed Fisher and that her contract was terminated because she refused his sexual advances. Id. ¶ 36. The letter also alleged that in March 2008, Hurd disclosed to Fisher HP’s plans to acquire Electronic Data Systems (“EDS”) at a time that the information was confidential. Id. HP’s Board of Directors immediately initiated an internal investigation into the allegations. Its results were presented to the board on July 28, 2010. Id. ¶ 38. The investigation revealed that Hurd had filed inaccurate expense reports, and that there were factual inaccuracies in the account Hurd initially gave to directors regarding the allegations. Id. Hurd initially claimed not to know Fisher well and to be ignorant of her pornographic career. An investigation revealed, however, both that Hurd was aware her prior career and that, as he eventually admitted, he and Fisher had a “very close personal relationship.” Id.\nThe investigation did not reveal evidence supporting Fisher’s allegations concerning sexual harassment or insider trading with respect to the EDS acquisition; however, the investigators did not interview Fisher or her attorney. Id. ¶ 39. On July 29, 2010, the board agreed to disclose Fisher’s allegations to the public as well as part of the investigation’s results, “having concluded that Hurd had irreparably comprised [sic] the board’s trust by misleading directors.” Id. ¶ 40. HP announced Hurd’s resignation on August 6, 2010. The press release included a statement from Hurd in which he stated: “I realized there were instances in which I did not live up to the standards and principles of trust, respect and integrity that I have espoused at HP and which have guided me throughout my career.... ” Id. ¶ 42. At that time, HP’s general counsel revealed some of the investigation’s findings, including that Hurd hired Fisher without disclosing their personal relationship to the Board, that there were numerous instances in *?which Fisher received compensation or expense reimbursement where there was not a legitimate business purpose, and that Hurd submitted numerous inaccurate expense reports that were intended to or had the effect of concealing his relationship with Fisher. Id. ¶ 44.\nWall Street and the press reacted strongly to Hurd’s departure. One Wall Street Journal Article stated: “ ‘The scandal brought to a surprising end the tenure of a CEO who has placed great emphasis on upgrading H-P’s ethics standards. Mr. Hurd had pledged to make the company’s code of business conduct stronger following a 2006 boardroom investigation that triggered the departure of then-HP chairwoman Patricia Dunn.’ ” Id. ¶ 46. HP’s share price fell 8.2% on the first trading day after the announcement, and one week later had dropped 12.6%. The day of the announcement, HP’s stock was trading at approximately $46. As of the filing of the First Amended Complaint, it traded at approximately $14, a 69% decline. Id. ¶ 48. An April 27, 2011 article concluded: “ ‘it seems safe to say that Hurd’s departure from HP has cost the company’s shareholders at least $10 billion and probably a lot more.’ ” Id. (quoting Blodget, Henry, businessinsider.com (April 27, 2011)).\nC. Alleged Securities Fraud\nThe FAC alleges that HP and Hurd made false and misleading statements when they (1) issued and updated HP’s Standards of Business Conduct Brochure (SBC) in 2006, May 2008, and June 2010, and (2) approved and issued SEC Forms 10-K and 10-Q throughout the class period that contained a “Risk Factors” section stating the risk of losing key personnel.\nThe FAC does not contain any detailed allegations regarding the 2006 SBC. Plaintiff alleges that in May 2008, Hurd and HP amended the SBC to restore confidence following the 2006 scandal. In the 2008 SBC, Hurd issued an opening statement in which he expressed his commitment “to build trust in everything we do by living our values and conducting business consistent with the high ethical standards embodied within our SBC.” Id. ¶ 52. The 2008 and 2010 SBCs outlined a number of ethical rules that Plaintiff alleges Hurd violated through his relationship with Fisher. Id. ¶ 53. Some of the ethical guidelines are specific; others, more general and aspirational. For example, the SBC provides both that “We are open, honest, and direct in all our dealings,” and that ‘We maintain accurate business records ... that accurately reflect the truth of the underlying transaction or event.” Id. It is clear from the allegations of the FAC that the SBC is directed primarily at HP’s employees, though the FAC alleges that the intended audience of the 2008 and 2010 SBC amendments also included Wall Street and HP’s shareholders and potential investors.\nAs to the SBCs, Plaintiff alleges: “These statements were misleading because in light of Hurd’s endorsement of these tenets, there was an implication that Hurd was in fact in compliance with them. In truth, Hurd was knowingly violating each of these tenets in his dealings related to Fisher, by (a) inappropriately using his position as CEO to attempt to pursue a romantic relationship with Fisher, (b) submitting expense reports that did not accurately reflect their meetings, and (c) knowingly allowing Fischer to receive compensation and/or expense reimbursement where there was not a legitimate business purpose.” Id. ¶ 56.\nPlaintiff also alleges that the following passage, included in the “Risk Factors” section of HP’s class period Form 10-Ks and the “Factors that Could Affect Re-*1136suits” section of HP’s class period Form 10-Qs, which was added to each form following the 2006 scandal, was false and misleading:\nIn order to be successful, we must attract, retain and motivate executives and other key employees, including those in managerial, technical, sales, marketing and IT support positions. Hiring and retaining qualified executives, engineers, skilled solutions providers in the IT support business and qualified sales representatives are critical to our future, and competition for experienced employees in the IT industry can be intense. The failure to hire executives and key employees or the loss of executives and key employees could have a significant impact on our operations.\nId. ¶ 58. Plaintiff alleges that the passage “constitutes a disclosure concerning the risk to HP’s success and operations associated with the failure to retain key employees or executives.” Id. ¶ 61. Plaintiff asserts that such disclosures “created a duty to disclose” Hurd’s “above-mentioned undisclosed and fraudulent business practices.” Id. ¶ 63. Plaintiff asserts that the Forms’ omission of “any mention of Hurd’s actual, fraudulent and noncompliant business practices” were material and rendered the forms “incomplete and misleading.” Id. ¶ 65.\nII. REQUESTS FOR JUDICIAL NOTICE\n“[A] district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). Federal Rule of Civil Procedure 12(d) provides: “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” However, courts may properly take judicial notice of material attached to the complaint. See Lee v. City of Los Angeles, 250 F.3d 668, 688-69 (9th Cir. 2001); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994), rev’d on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir.2002). If the documents are not attached to the complaint, they may be considered if their authenticity is not contested and the complaint “necessarily relies on them.” Lee, 250 F.3d at 688. This has become known as the “incorporation by reference” doctrine. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir .2005).\nIn addition, a Court may take judicial notice of matters in the public record. Federal Rule of Evidence 201(b) provides: a “judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” In contrast, a fact “subject to reasonable dispute” may not be considered. Lee, 250 F.3d at 689 (quoting Fed.R.Evid. 201(b)).\nAt the motion to dismiss stage, “ ‘[t]he court has complete discretion to determine whether or not to accept any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion.’ ” Nat’l Agr. Chemicals Ass’n v. Rominger, 500 F.Supp. 465, 472 (E.D.Cal. 1980) (quoting 5 Wright & Miller, Federal Practice & Procedure, § 678 (1969)).\nThe parties have each made requests for incorporation by reference or judicial notice. HP’s request for incorporation by reference of HP’s SBC as it existed in March 2010, ECF No. 56-1, is GRANTED, because it relates directly to a central allegation in Plaintiffs complaint. *?The remainder of the documents submitted by the parties are irrelevant and their competing requests are DENIED.\nIII. LEGAL STANDARDS\nOn a motion to dismiss, courts accept the material facts alleged in the complaint, together with reasonable inferences to be drawn from those facts, as true. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). However, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To be entitled to the presumption of truth, a complaint’s allegations “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011), cert. den’d, — U.S.-, 132 S.Ct. 2101, 182 L.Ed.2d 882 (2012).\nIn addition, to survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility does not mean probability, but it requires “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In the Ninth Circuit, “[i]f there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiffs complaint survives a motion to dismiss under Rule 12(b)(6). Plaintiffs complaint may be dismissed only when defendant’s plausible alternative explanation is so convincing that plaintiffs explanation is implausible.” Starr, 652 F.3d at 1216 (original emphasis).\nSecurities fraud plaintiffs must satisfy both Rule 9(b) and the requirements of the Private Securities Litigation Reform Act of 1995 (“PSLRA”). In re VeriFone Holdings, Inc. Sec. Litig., 704 F.3d 694, 701 (9th Cir.2012). The PSLRA establishes uniform and stringent pleading requirements for securities fraud actions, and was designed to end the practice of pleading “fraud by hindsight.” See In re Silicon Graphics, Inc. Sec. Litig., 183 F.3d 970, 988 (9th Cir.1999). A securities fraud plaintiff must plead both falsity and scienter with particularity. See Zueco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th Cir.2009). If the complaint does not satisfy the PSLRA’s pleading requirements, the Court must grant a motion to dismiss the complaint. 15 U.S.C. § 78u-4(b)(3)(A).\nIV. ANALYSIS\nSection 10(b) of the Securities Exchange Act of 1934 prohibits any act or omission resulting in fraud or deceit in connection with the purchase or sale of any security. To state a claim for violation of section 10(b), a plaintiff must plead: (1) a material misrepresentation or omission made by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance; (5) economic loss; and (6) loss causation, See Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, 552 U.S. 148, 157, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008).\nHP moves to dismiss the FAC on the grounds that the SBC and the risk factors section of HP’s Forms 10-K and 10-Q are not actionable because they are not material. HP also argues that dismissal is *1138necessary because Plaintiff has failed to plead falsity and scienter. Hurd moves to dismiss on the grounds that Plaintiff fails adequately to plead scienter and loss causation.\nA. Materiality\nFor statements to be actionable under the PSLRA, they must be both misleading and material. A statement or omission is misleading under the PSLRA and section 10(b) of the Exchange Act “if it would give a reasonable investor the ‘impression of a state of affairs that differs in a material way from the one that actually exists.’ ” Berson v. Applied Signal Tech., Inc., 527 F-3d 982, 985 (9th Cir.2008) (citation omitted). That statement or omission is material if there is a “substantial likelihood that the disclosure of the omitted fact would have-been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 , 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976). There arises a rebuttable presumption of reliance either where there is an omission of material fact by one with a duty to disclose, or where the challenged statements become public because public information is- assumed to be reflected in the market price of the security. Stoneridge, 552 U.S. at 159,128 S.Ct. 761.\nNot all alleged failures to disclose are actionable under section 10(b) or rule 10b-5. Absent “manipulation” or “deception,” that section and rule do not reach breaches of fiduciary duty, which are actionable only under state law. Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 473-74, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977); Vaughn v. Teledyne, Inc., 628 F.2d 1214, 1222 (9th Cir.1980) (citing Santa Fe). Consequently,' securities plaintiffs cannot “bootstrap” a breach of fiduciary duty claim into a federal securities fraud claim “by alleging that the disclosure philosophy of the statute obligates defendants to reveal either the culpability of their activities, or their impure motives.” Pahter v. Marshall Field & Co., 646 F.2d 271, 288 (7th Cir.1981). See also Biesenbach v. Guenther, 588 F.2d 400, 402 (3d Cir.1978) (quoting Bavin v. Data Systems Analysts, Inc., 443 F.Supp. 104 (E.D.Pa.1977) (“The unclean heart of a director is not actionable, whether or not it is “disclosed,” unless the impurities are translated into actionable deeds or omissions both objective and external”).\nHP argues that Defendants’ alleged conduct did not include “actionable omissions” within the meaning of the Exchange Act, even if it could have given rise to state corporate law remedies. The Court agrees.\n1. The SBCs are Inactionable Puffery\nPlaintiff first alleges that the 2008 and 2010 SBCs gave rise to a duty that Hurd disclose any conduct that violated the SBCs. Plaintiff argues that Hurd’s simultaneous promulgation and violation of the SBCs constituted a material omission within the meaning of the securities laws.\nGenerally speaking, the 2008 and 2010 SBCs, as well as other statements relating to HP’s ethical code of conduct, do not constitute actionable misrepresentations or omissions because they are not material. “ ‘[V]ague, generalized, and unspecific assertions’ of corporate optimism or statements of ‘mere puffing’ cannot state actionable material misstatements of fact under federal securities laws.” In re Cornerstone Propane Partners, B.P., 355 F.Supp.2d 1069,1087 (N.D.Cal.2005) (quoting Glen Holly Entertainment, Inc. v. Tektronix, Inc., 352 F.3d 367, 379 (9th Cir. 2003) (discussing common law fraud)). Such statements include those that are not “ ‘capable of objective verification’ ” or *?“ ‘laek[ ] a standard against which a reasonable investor could expect them to be pegged.’ ” Id. (quoting Grossman v. Novell, Inc., 120 F.3d 1112, 1119 (10th Cir. 1997)). “When valuing corporations, ... investors do not rely on vague statements of optimism like ‘good,’ ‘well-regarded,’ or other feel good monikers.” In re Cutera Sec. Litig., 610 F.3d 1103, 1111 (9th Cir. 2010). Instead, “professional investors, and most amateur investors as well, know how to devalue the optimism of corporate executives.” Id. This doctrine dovetails with the Exchange Act’s “safe harbor” provision for forward-looking financial statements (though here there are no financial statements at issue). 15 U.S.C. § 78u-5(c)(l).\nFor example, in Desai v. Gen. Growth Properties, Inc., 654 F.Supp.2d 836, 857 (N.D.I11.2009), the plaintiffs argued that the defendant’s publication of its code of ethics constituted a material omission by executives who were, at the same time, violating the code. The court dismissed the claim as predicated on puffery, based on the District of Colorado’s decision in Andropolis v. Red Robin Gourmet'Burgers, Inc., 505 F.Supp.2d 662, 685-86 (D.Colo.2007). In Andropolis, the court dismissed a securities fraud claim based on a code of ethics because “a code of ethics is inherently aspirational; it simply cannot be that every time a violation of that code occurs, a company is liable under federal law for having chosen to adopt the code at all, particularly when the adoption of such a code is effectively mandatory.” In Andropolis, as here, the code was'in effect while executives simultaneously violated it. The court noted that the plaintiffs were not without recourse because they could sue for breach of fiduciary duty. Id.; see also In re Constellation Energy Grp., Inc. Sec. Litig., 738 F.Supp.2d 614, 631 (D.Md. 2010) (dismissing omission claim based on optimistic statements regarding internal controls; “[s]imply because risk management and internal controls are important to Constellation’s business, it does not follow that any individual statement regarding these topics is per se material.”); In re The First Marblehead Corp. Sec. Litig., 639 F.Supp.2d 145, 160-61 (D.Mass.2009) (dismissing “generalized claims of mismanagement” based on “generalizations regarding integrity, fiscal discipline and risk management” where internal controls were allegedly inadequate because such claims are not actionable under securities laws).\nSimilarly, in EC A, Local Id I IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 205-06 (2d Cir.2009), the plaintiffs alleged that JP Morgan Chase (“JPMC”) made numerous misrepresentations regarding its “highly disciplined” risk management and its standard-setting reputation for integrity “because JPMC’s poor financial discipline led to liability in the WorldCom litigation and involvement in the Enron scandal,” giving rise to the plaintiffs’ claims. Id. The Second Circuit rejected that argument, noting that the plaintiffs misinterpreted the puffery doctrine: “Plaintiffs conflate the importance of a bank’s reputation for integrity with the materiality of a bank’s statements regarding its reputation. While a bank’s reputation is undeniably important, that does not render a particular statement by a bank regarding its integrity per se material.” The court concluded that JP Morgan Chase’s statements “did not, and could not, amount to a guarantee that its choices would prevent failures in its risk management practices.” Id. at 206. Indeed, “[n]o investor would take such statements seriously in assessing a potential investment, for the simple fact that almost every investment bank makes these statements. Finding that JPMC’s statements constitute a material misrepresentation would bring within the sweep of *1140federal securities laws many routine representations made by investment institutions.” Id.\nPlaintiff attempts to distinguish these authorities on the ground that, after the 2006. scandal, investors would have been looking for publicly available information to determine whether HP had put that scandal behind it. To Plaintiff, the 2008 and 2010 SBCs are exactly that kind of information.\nThe Court finds this distinction unpersuasive. Adoption of the Plaintiffs argument here would still render every code of ethics materially misleading whenever an executive commits an ethical violation following a scandal, in contravention of the authorities just cited. Moreover, notwithstanding the 2006 scandal, it remains the case that the statements Plaintiff identifies as material misrepresentations in the SBCs are “so general that a reasonable investor would not depend on [them] as a guarantee that [HP] would never take a step that might adversely affect its reputation.” ECA, Local 13k, 553 F.3d at 206.\nPlaintiff relies on the decision in Ross v. Career Educ. Corp., No. 12-cv-276, 2012 WL 5363431, at *7 (N.D.I11. Oct. 30, 2012), but the distinction between the facts in Ross and the facts here underlines how Plaintiff has failed adequately to plead materiality. In Ross, the defendant CEC was a private college that misrepresented the placement rates of its graduates,- i.e. the ■rates at which CEC graduates found employment in a field of their choosing. Id., at * 1, 3. After these misrepresentations were discovered, CEC made public statements that it had changed its practices and put its past troubles behind it. Importantly, unlike the generalized ethics codes at issue here, CEC issued statements specifically stating that it had changed its conduct with respect to its reported placement rates — statements that turned out not to be true. See, e.g., id. at *6 (“CEC’s company spokesman’s May 2011 statement regarding a new compliance culture: ‘[W]e have carefully reviewed and modified our policies and practices for reporting job placement rates, admissions and advertising.’ ”). The court in Ross concluded: “Given the nature of [the defendants’] tainted past, defendants’ statements about the company’s current status — that it had eliminated its significant regulatory issues — could have misled a reasonable investor to believe that [it] had remedied the practice that led to those problems — the company’s alleged improper reporting of [job] placement rates.” Id. Here, there is no analogous relationship between the pri- or misconduct at HP, Defendant Hurd’s conduct,. and the generalized statements contained in the SBCs.\nFinally, Plaintiff argues in the alternative that puffery can become actionable regardless of whether it is material when (1) the statement is not actually believed, (2) there is no reasonable basis for the belief, or (3) “the speaker is aware of undisclosed facts tending seriously to undermine the- statement’s accuracy.” Kaplan v. Rose, 49 F.3d 1363, 1375 (9th Cir. 1994). That rule, as stated in Kaplan, keys on the PSLRA’s safe harbor provision relating to financial projections, and applies only where the defendant has made “[a] projection or statement of belief.” Id. See generally Marx v. Computer Sciences Corp., 507 F.2d 485, 489 (9th Cir.1974) (setting forth test). That is because financial projections are “capable of objective verification.” In re Cornerstone, 355 F.Supp.2d at . 1087. But the court in Kaplan also reiterated that the false or misleading statement itself must be material. Kaplan, 49 F.3d at 1381 (“[a] plaintiff who shows reliance under the-theory that the market relied on a misrepresentation or omission must also establish materiality”). *?Plaintiff has not cited any authority applying Kaplan’s holding cases outside to does not cite to any authority holding that the rule it relies upon (1) applies outside the context of financial projections, or (2) absolves it of the materiality requirement.1\nCourts have repeatedly held that “ ‘no matter how untrue a statement may be, it is not actionable if it is not the type of statement that would significantly alter the total mix of information available to investors.’ ” Wenger v. Lmnisys, Inc., 2 F.Supp.2d 1231, 1245 (N.D.Cal. Mar. 31, 1998). Here, the 2008 and 2010 SBCs are not projections of future conduct, nor are they financial. They are not specific, nor do they suggest, expressly or impliedly, that CEO Hurd was in compliance with them at the time they were published. And, to the extent that they do outline specific ethical rules, those rules are unrelated to the 2006 scandal. The SBCs are codes of ethics, directed to employees, that, at most, constitute puffery — if the market was even aware of them.\nThe Court concludes that neither the 2008 and 2010 SBCs, nor any alleged omissions from them, were material.\n2. The Risk Disclosures Regarding Executive Retention Were Not Material\nHPs statements concerning executive retention are not actionable either. In relevant part, Plaintiffs allege that the HP Forms 10-K and 10-Q filed during the class period stated as a risk factor: “The failure to hire executives and key employees or the loss of executives and key employees could have a significant impact on our operations.” Again, Plaintiff conflates the materiality of statements concerning whether Hurd would, in fact, remain at HP with the materiality of vague and routine statements concerning the retention of executives in general. For the reasons discussed at length above, those statements are not material.\nMoreover, even if they were material, the risk factor statements were not false, nor did they create a duty to disclose Hurd’s alleged violations of the code of ethics. Just as the risk disclosure in FoxIIollow, cited by HP, was insufficiently specific to render it material and actionable, the disclosure here, if anything, suggests that some personnel might leave, not that Hurd would stay. See In re FoxHollow Techs., Inc. Sec. Litig., No. 06-cv-4595-PJH, 2008 WL 2220600, at *18-19 (N.D.Cal. May 27, 2008), affd, 359 Fed. Appx. 802, 805, n. 1 (9th Cir.2009) (“[T]he risk disclosure statements cited by plaintiff [would not] have reasonably led anyone to conclude that FoxHollow intended to retain management. Instead, the statements convey the opposite impression— that FoxHollow’s management was subject to change, that personnel might be replaced, and that investors should be aware of that possibility.”).\nB. Falsity\nIn pleading falsity, securities fraud plaintiffs face “no small hurdle,” as they *1142must satisfy the dual heightened pleading standards of Federal Rule of Civil Procedure 9(b) and the PSLRA. In re Veri-Fone Holdings, Inc. Sec. Litig., 704 F.3d 694, 701 (9th Cir.2012). See Zueco Partners, LLC v. Digimarc Corp., supra, 552 F.3d at 990 (9th Cir.2009). Securities fraud plaintiffs will survive a motion to dismiss only if they “specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(1).\nHere, Plaintiff does not meet that exacting standard. Separate and apart from whether Plaintiff has identified statements that are material to investors, Plaintiff also fails to identify statements that are false or misleading because it does not adequately explain how the SBCs are false or misleading. Instead, Plaintiffs argue -in general terms that Hurd was engaging in unethical conduct at the time the SBCs were promulgated.\nPlaintiff provides insufficient detail with respect to the conduct Hurd allegedly engaged in to enable the Court to determine (1) what the conduct was, (2) which provisions of the SBCs the conduct violated, or (3) when the conduct occurred. Moreover, Plaintiff fails to identify a section of the SBCs that would be rendered false or misleading had Hurd, at the time the SBCs were promulgated, been violating them. Instead, Plaintiff points to a litany of ethical guidelines that state only what HP’s ethical policies were, not whether HP’s employees were in compliance with them at the time. Insofar as Plaintiff argues that the former implies the látter, the decisions discussed above with respect to materiality foreclose that argument.\nC. Scienter\nThe PSLRA’s heightened scienter standard requires that plaintiffs “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). The required state of mind is a “mental state embracing intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 Ü.S. 185, 193-94 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). Deliberate or conscious recklessness constitutes intentional conduct sufficient to satisfy the scienter requirement. “[R]eckless conduct may be defined as a highly unreasonable omission, involving not merely simple, or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.” In re Silicon Graphics Inc. Sec, Litig., 183 F.3d 970, 974 (9th Cir.1999), abrogated on other grounds by South Ferry LP, No. 2 v. Killinger, 542 F.3d 776, 784' (9th Cir.2008) (quoting Sundstrand Corp. v. Sun Chem. Corp., 553 F.2d 1033, 1045 (7th Cir.1977)). “[T]he ultimate qúestion is whether the defendant knew his or her statements were false, or was consciously reckless as to their truth or falsity.” Gebhart v. SEC, 595 F.3d 1034,1042 (9th Cir.2010).\nThe “strong inference” required by the PSLRA “must be more than merely ‘reasonable’ or ‘permissible’ — it must be cogent and compelling, thus strong in light of other explanations.” Tel-labs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 324, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). “A court must compare the malicious and innocent inferences cognizable from the facts pled in the complaint, and only allow the complaint to *?survive a motion to dismiss if the malicious inference is at least as compelling as any-opposing innocent inference.” Zueco Partners, 552 F.3d at 991. In evaluating whether a complaint satisfies the “strong inference” requirement, courts must consider the allegations and other relevant material holistically, not “scrutinized in isolation.” In re VeriFone Holdings, 704 F.3d at 701.\n1. Scienter as to Hurd\nBecause Plaintiffs have not alleged any facts independently establishing that Hurd knew his conduct would have the effect of misleading investors, the Court cannot evaluate the parties’ arguments concerning scienter without the benefit of allegations that satisfy the materiality requirement. To be sure, Plaintiff has alleged that Hurd purposefully kept the nature of his relationship with Jodie Fisher a secret, at least from some people. But the parties’ briefing on this point misses the mark. Standing alone, those allegations give rise only to the inference that Hurd did not want his allegedly unethical conduct known. Wanting to keep something secret, in and of itself, is insufficient to implicate the PSLRA. Hurd’s conduct rose to the level of securities fraud only if, when he promulgated the SBCs and signed the SEC filings, he either intended to mislead investors or knew (or should have known) that failing to disclose his conduct would artificially inflate HP’s stock. See S.E.C. v. Platforms Wireless Int’l Corp., 617 F.3d 1072, 1092 (9th Cir. 2010) (“[S]ome degree of subjective understanding of the risk of misleading others is required.”). Plaintiff has therefore inadequately alleged the scienter requirement, because nothing suggests that Hurd thought that he could mislead investors with the statements the Court finds were immaterial.\nOn the other hand, addressing solely the issue of materiality, and assuming the Court had determined that the statements and omissions at issue were material, it is probable that the Court would reach a different conclusion as to the scienter requirement with respect to Hurd. Hurd obviously knew of his own conduct. See Platforms Wireless, 617 F.3d at 1094 (‘When the defendant is aware of the facts that made the statement misleading, he cannot ignore the facts and plead ignorance of the risk.”) (quotation omitted). Also, Plaintiff alleges that Hurd took steps to ■ conceal and cover-up his misconduct, i.e., by initially misleading the board’s investigators, attempting to suppress disclosure of Fisher’s letter, and silencing Fisher through a private settlement. FAC ¶¶ 84-86; see In re Nature’s Sunshine Prods. Sec.Litig., 486 F.Supp.2d 1301,1311 (D.Utah 2007) (“Evidence that a defendant has taken steps to cover-up a misdeed is strong proof of scienter”); In re Connetics Corp. Sec. Litig., No. 07 Civ. 2940, 2008 WL 3842938, at *15 (N.D.Cal. Aug. 14, 2008) (strong inference of scienter based on efforts to conceal stock sales). Plaintiff also alleges that Hurd resigned upon revelation of his misconduct (¶¶ 41-42, 85), a fact that “provides minimal, nondispositive supporting evidence of scienter.” In re Impax Labs., Inc., Secs. Litig., 2007 WL 7022753 (N.D.Cal. July 18, 2007). Taken as a whole, and assuming Plaintiff were able to satisfy the materiality requirement, these factual allegations support a reasonable belief of Hurd’s knowledge of false or misleading statements that were either reckless or intended to defraud.\n2. Scienter as to HP\nPlaintiffs claims against HP suffer from the same defects regarding materiality, and therefore the same defects re*1144garding scienter, as its claims against Hnrd. Moreover, Plaintiff does not argue2 that HP itself knew of Hurd’s allegedly unethical conduct, nor does Plaintiff identify any statements made by HP employees or officers other than Hurd as the basis of its securities fraud claims. Instead, Plaintiff argues that Hurd’s knowledge at the time of the promulgation of the SBCs and the inclusion of the risk factor section of the Forms 10-K and 10-Q can be imputed to HP.\nThe essence of Plaintiffs argument’ is that HP is liable under the doctrine of respondeat superior, which provides for the employer’s liability for the wrongful acts of its employees undertaken within the scope of employment. See Restatement (Third) of Agency § 2.04 (2006); Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1578 (9th Cir.1990) (en banc), cert, denied, 499 U.S. 976, 111 S.Ct. 1621, 113 L.Ed.2d 719 (1991) (respondeat superior available in securities fraud cases in addition to section 20(a) controlling person liability).\nHP responds that imputation here would be inappropriate, invoking the “adverse interest” exception to the imputation rule. HP argues that it is entitled to avoid imputation of Hurd’s scienter because “Hurd’s purported conduct was adverse to HP.” EOF No. 36 p. 23. Under the adverse interest exception, dismissal of the corporation from a securities fraud action is warranted where the only corporate agent who may supply the requisite scienter was acting completely adversely to the company’s interests. See In re ChinaCast Educ. Corp. Sec. Litig., CV 12-4621-JFW PLAX, 2012 WL 6136746 (C.D.Cal. Dec. 7, 2012); In re Apple Computer, Inc., 243 F.Supp.2d 1012,1023 (N.D.Cal.2002) (quoting In re Cendant Corp. Sec. Litig., 109 F.Supp.2d 225, 232 (D.N.J.2000)). As the court said in Cendant:\nThe rule that knowledge or notice on the part of the agent is to be treated as notice to the principal is founded on the duty of the agent to communicate all material information to his principal, and the presumption that he has done so. But the legal presumptions ought to be logical inferences from the natural and usual conduct of [people] under the circumstances. But no agent who is acting in his own antagonistic interest, or who is about to commit a fraud by which his principal will be affected, does in fact inform the latter, and any conclusion drawn from a presumption that he has done so is contrary to all experience of human nature.\nCendant, 109 F.Supp.2d at 232.\nThe court declines to hold that HP is entitled to invoke the adverse interest exception at this stage of the litigation. The Court cannot say at this stage of the case that HP is entitled to prevail on this defense as a matter of pleading, as opposed to a matter of evidence. The adverse interest exception is narrow and generally requires “an agent to completely abandon the principal’s interests and act entirely for his own purposes.” USACM Liquidating Trust v. Deloitte & Touche LLP, 764 F.Supp.2d 1210, 1218 (D.Nev. 2011) (emphasis added), aff'd sub nom. USACM Liquidating Trust v. Deloitte & Touche, 11-15626, 523 Fed.Appx. 488, 2013 *?WL 1715532 (9th Cir. Apr. 22, 2013). .See, e.g., In re CBI Holding Co., Inc., 529 F:3d 432, 448 (2d Cir.2008); In re Crazy Eddie Secs. Litig., 802 F.Supp. 804, 817 (E.D.N.Y.1992) (when agent acts both for himself and for principal, agent’s knowledge is imputed to principal even if agent’s primary interest is inimical to principal). In other words, the agent’s relations to the subject matter must be “so adverse as practically to destroy the relation of agency.” 3 Fletcher Cyclopedia of Private Corp. § 789. “Courts generally require total abandonment to invoke the adverse interest exception because ‘[t]his rule avoids ambiguity where there is a benefit to both the insider and the corporation, and reserves this most narrow of exceptions for those cases-outright theft or looting or embezzlement — where the insider’s misconduct benefits only himself or a third party....’” US ACM Liquidating Trust, 764 F.Supp.2d at 1218 (quoting Kirschner v. KPMG LLP, 15 N.Y.3d 446, 466-67, 912 N.Y.S.2d 508, 938 N.E.2d 941 (2010)).\nDetermining whether “this most narrow of exceptions” applies, and whether the Defendants’ relations to the subject matter were “so adverse as practically to destroy the relation of agency” are questions of fact not contained within the four corners of Plaintiffs allegations. The burden of proving the exception will fall to HP. The Court will not resolve it on a motion to dismiss. See Webceleb, Inc. v. Procter & Gamble Co., 10CV2318 DMS NLS, 2012 WL 460472 (S.D.Cal. Feb. 13, 2012) (questions of fact inappropriate for resolution on motion to dismiss); Great Am. Ins. Co. v. Chang, 12-00833-SC, 2012 WL 3660005 (N.D.Cal. Aug. 24, 2012) (factual disputes not resolvable on motion to dismiss); Giannini v. Am. Home Mortgage Servicmg, Inc., Cll-04489 TEH, 2012 WL 298254 (N.D.Cal. Feb. 1, 2012) (inappropriate for court to base dismissal on affirmative defense).3\nD. Causation\nIn securities fraud cases, plaintiffs must plead and prove the “causal connection between the material misrepresentation and the loss.” Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 342, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). Plaintiff must plead “both transaction causation, that the violations in question caused the plaintiff to engage in the transaction, and loss causation, that the misrepresentations or omissions caused the harm.” In re Daou Sys., Inc., 411 F.3d 1006, 1025 (9th Cir.2005) (quoting Ambassador Hotel Co. v. Wei-Chuan Inv., 189 F.3d 1017, 1026 (9th Cir.1999)). Loss causation can only be established if the plaintiff shows “that the misstatement or omission concealed something from the market that, when disclosed, negatively affected the value of the security. Otherwise, the loss in question was not foreseeable.” Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 173 (2d Cir.2005). Stated differently, plaintiffs will survive a motion to dismiss if they allege that the defendant’s ‘misstatements and omissions concealed the price-volatility risk (or some other risk) that materialized and played some part in diminishing the market value of the security.” In re Charles Schwab Corp. Sec. Litig., 257 F.R.D. 534, 547 (N.D.Cal.2009) (quoting Lentell, 396 F.3d at 177).\nHurd argues that Plaintiff fails to allege loss causation because Hurd’s resig*1146nation was not causally linked to the concealment, and ultimate disclosure, of his conduct. Hurd’s argument conflates materiality and causation. Plaintiff adequately alleges that Hurd’s resignation “both revealed the falsity of [his] prior statements and was a materialization of the previously undisclosed risks” of which he was aware. In re MannKind Sec. Actions, 835 F.Supp.2d 797, 815 (C.D.Cal.2011).\nPlaintiff also adequately alleges that it purchased the security at artificially inflated prices, and that the security readjusted to a lower, more accurate level following the materialization of the risk, causing Plaintiff to lose money. That allegation is sufficient if “the failure to disclose th[e] fact caused [the] injury through [the plaintiffs] undervaluation of the risk it was undertaking in accepting the [investment].” Charles Schwab, 257 F.R.D. at 547 (quoting Caremark, Inc. v. Coram Healthcare Corp., 113 F.3d 645, 648 (7th Cir.1997)). Though Plaintiff may ultimately fail to prove causation, it is entitled to allege loss causation as it has done here.\nThat Hurd could have resigned for any other reason does not alter the analysis. “By arguing what might have been, defendants seriously distort general principles of causation.” Ambassador Hotel, 189 F.3d at 1029. Hurd’s argument that violating the SBCs did not necessarily include the risk of resignation is also unavailing; the violation of ethical codes necessarily carries with it the risk of termination — a risk sufficient to sustain Plaintiffs causation allegations at the pleading stage. Finally, Hurd may be correct that the Board would have retained him but for his initial refusal to tell the Board the truth about Jodie Fisher. That factual dispute is also premature at this stage.\nPlaintiff alleges that the stock price dropped because Hurd resigned, and that Hurd resigned because his unethical conduct was revealed to the Board after he concealed it from the public. That is sufficient, provided Hurd concealed his conduct in a manner that involved making material misstatements or omissions to the public. Because here the omissions were not material, Plaintiffs claim must fail, not because Plaintiff fails adequately to allege loss causation, but because of the failure to establish materiality.\nE. Plaintiffs Derivative Section 20(a) Claim Fails\nSection 20(a) of the Exchange Act, which forms the basis of Plaintiffs second cause of action against Defendant Hurd, extends liability to persons who directly or indirectly control a violator of the securities laws. 15 U.S.C. § 78t(a). A claim under section 20(a) can only survive if the underlying predicate Exchange Act violation also survives. See Howard v. Everex Sys., Inc., 228 F.3d 1057, 1065 (9th Cir. 2000). Because the Court dismisses Plaintiffs Exchange Act claim, Plaintiffs second cause of action must also be dismissed.\nV. CONCLUSION\nBecause Plaintiffs claims are based on alleged misrepresentations that are not material, and on allegations that fail to establish falsity or scienter as to Hurd, Plaintiff has not stated a claim for relief under the Exchange Act, either under section 10(b) or 20(a).\nThe Court hereby DISMISSES Plaintiffs First Amended Complaint. Plaintiff may amend the complaint in a manner consistent with the terms of this Order within 30 days from the date of this Or*1147der.4\nIT IS SO ORDERED.\n\n. Plaintiff also cites Lapin v. Goldman Sachs Grp., Inc., 506 F.Supp.2d 221 (S.D.N.Y.2006) as a case in which the publication of statements “noting Goldman’s high ethical standards and its compliance with industry rules and regulations” was deemed to be actionable. Id. at 228-29. In Lapin, the alleged non-disclosure concerned conflicts of interest that allegedly biased analysts’ opinions in preparing Goldman’s equity research reports. Id. at 229. In Lapin, however, as in Ross, the evidence before the court also included statements that specifically denied the wrongdoing at issue. Id., at 229 (Goldman touted its \"insightful, unbiased research (emphasis added)). Thus, Lapin does not stand for the proposition that the publication of a general statement of ethical standards, without more, is a basis for liability.\n\n\n. The First Amended Complaint contained a single reference to a speech made by HP's Chief Ethics and Compliance Officer, Jon Hoak, FAC ¶ 55, but Plaintiff does not attempt to argue that the speech was misleading or material, nor does Plaintiff allege that it Was literally false, or that Hoak made the statement with the requisite state of mind to sustain a PSLRA claim. The Court assumes that Plaintiff has abandoned any claim with respect to Hoak’s speech.\n\n\n. Plaintiff also argues that the adverse interest exception cannot apply as against innocent third parties. Because HP has not established that the adverse interest exception applies to the complaint’s allegations at this stage of the litigation, the Court does not reach the question of whether it applies to innocent third parties.\n\n\n. If Plaintiff does not intend to amend its complaint, it must either voluntarily dismiss this action or file a notice of submission to the Court's ruling within 30 days of the date of this Order.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"cement-concrete-workers-district-council-pension-fund-v-hewlett-packard"} {"attorneys":"David E. Jeffery, of Lockport, N. Y., for trustee., George L. Grobe, U. S. Atty., by R. Norman Kirchgraber, Asst. U. S. Atty., both of Buffalo, N. Y., Kevin Killeen, of Buffalo, N. Y., for Raymond A. O’Gonnor and R. A. O’Connor Co., creditors.","case_name":"In re Niagara Falls Milling Co.","case_name_full":"In re NIAGARA FALLS MILLING CO.","citation_count":0,"citations":["34 F. Supp. 801"],"court_full_name":"District Court, W.D. New York","court_jurisdiction":"New York, NY","court_short_name":"W.D. New York","court_type":"FD","date_filed":"1940-08-14","date_filed_is_approximate":false,"id":8811308,"judges":"Knight","opinions":[{"author_str":"Knight","ocr":true,"opinion_id":8795693,"opinion_text":"\nKNIGHT, District Judge.\nIt appears beyond dispute that this estate has a substantial claim against the Government of the United States for a refund of so-called processing taxes. It also appears without controversy that the Government has a claim against the estate on account of certain income and excess profit taxes. There were certain disputes as to both the amount of the processing taxes and the amount of the Government taxes. An extensive effort was made by the trustee and representatives of the Government to reach a determination as to the amount of each of the claims in favor of or against the estate, and as a result of audits made on behalf of the trustee and by investigators for the Government, a compromise was tentatively agreed upon whereby the refund of the processing taxes was fixed at the sum of $61,673.03 and the amount of default taxes in the amount of $51,673.03, leaving the net amount due the bankruptcy estate from the Government, of $10,000.\nUpon the petition of the trustee which set forth the proposed terms of- the compromise, upon notice to all creditors in the estate, a meeting was held to pass upon the question of the adoption of the compromise as proposed. No testimony was taken. There was some discussion between the representative of the trustee and the attorney for the creditors named, but upon submission of the question to a vote, all of the creditors, in claims representing $38,709.-84, save the creditors Raymond A, O’Connor and R. A. O’Connor Company, who held a claim in the amount of $3,800, and certain creditors in small amounts, approved the compromise. The creditor Raymond A. O’Connor objected to the compromise and he now seeks to bring the decision for compromise to this Court for determination.\nSection 27 of the Bankruptcy Act, 11 U.S.C.A. § 50, provides that\" the trustee may compromise a controversy with the approval of the Court. The rule is well established that there is a wide discretion in the court in the approval of the compromise offer. Numerous factors must be taken into consideration, and it will be assumed that these have been considered.\nThe difficulty in this case is that there is no record to show the method by which the compromise was arrived at. The trustee employed auditors who examined the books of the company and these and numerous investigators apparently spent much time in their consideration, but no examination of any of these as to any of the records appears. Mr. O’Connor, one of the contesting creditors, is an auditor and was formerly employed by the bankrupt company. He is familiar with the books of the company, and as appears from briefs submitted, he has gone through the books for the purpose of determining not only the processing taxes, but also the taxes due the Federal Government.\nHad there been any evidence submitted before the Referee to show the basis and the reasonableness of the compromise, this Court would be slow to interfere with the decision of the Referee. It is true in this case that the objecting creditor did not ask for an examination before the Referee, and he, as well as the other parties, seems to have taken the position that everything was before the Court which was needed for the decision of the Court. This I do not think is so. Irrespective of the question of lack of objection on the part of the creditor, because the record is barren of proof to show what the basis of the settlement was, I think this matter must be sent back to the Referee for further testimony as indicated, on the part of the accountant, and so that Mr. O’Connor can present such testimony as he may be advised, etc.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"in-re-niagara-falls-milling-co"} {"attorneys":"Randolph Parmly, of New York City (Robert S. Blair, Lucius E. Varney, and Delos G. Haynes, all of New York City, of counsel), for plaintiff., Kenyon & Kenyon, of New York City (Wm. Houston Kenyon, Richard Eyre, and Theodore S. Kenyon, all of New York City, of counsel), for defendant.","case_name":"Safety Car Heating & Lighting Co. v. Gould Coupler Co.","case_name_full":"SAFETY CAR HEATING & LIGHTING CO. v. GOULD COUPLER CO.","citation_count":0,"citations":["245 F. 755"],"court_full_name":"District Court, W.D. New York","court_jurisdiction":"New York, NY","court_short_name":"W.D. New York","court_type":"FD","cross_reference":"See, also, 230 Fed. 848.","date_filed":"1917-09-11","date_filed_is_approximate":false,"disposition":"Bill dismissed.","headnotes":"1. Patents <§=328 — Infringement—Electrical Eegulation.
The Creveling patent, No. 747,686, lor a system of electrical regulation for use in car lighting, held limited to a constant current regulator, as distinguished from a constant potential regulator, and, as so limited, not infringed.
2. Patents <§=243 — Infringement—Combinations.
To establish infringement of a patent for a combination of old elements, it is not enough to point out substantially the same elements In combination in defendant’s structure, but it must also be shown that defendant’s system performs substantially the same function in substantially the same way as complainant’s; and where the result is attained by a new combination operating upon different principles,- and constituting a radical departure from complainant’s patent, there is no infringement.
3. Patents <§=327 — Infringement Suits — Effect of Decision.
In a patent infringement suit, it is the duty of the court, regardless of prior decisions on the question of anticipation, to give force and effect to the evidence in the pending case, and resort to the testimony of other expert witnesses in a prior action is not warranted.
","id":8820277,"judges":"Hazel","opinions":[{"author_str":"Hazel","ocr":true,"opinion_id":8804906,"opinion_text":"\nHAZEL, District Judge.\nThe John L. Creveling patent in issue, No. 747,686, granted December 22, 1903, for a system of .electrical regulation, has heretofore been considered by this court, and held infringed, in an action brought by the plaintiff herein against the United States Light & Heating Company (222 Fed. 310, affirmed 223 Fed. 1023, — C. C. A. —), and held not infringed in a case against its successor, the United States Light & Heat Corporation; it being shown in the latter case that defendant had not used Creveling’s constant output generator regulator, but had adapted a so-called double relay ampere hour system, including the constant potential lighting system, described in the McElroy patent No. 893,533, of earlier date. In still another action against the Gould Coupler Company, the defendant herein, on patent No. 1,070,080, granted to H. G. Thompson for a specific improvement of the Creveling patent with relation to charging the storage battery and protecting it from injurious overcharge, the decision of this court (229 Fed. 429) that infringement was proven was reversed by the Circuit Court of Appeals on appeal (239 Fed. 861, 152 C. C. A. 645). A motion for preliminary injunction herein was denied by Judge Ray.\n*756The case now coming before me at final hearing, the defendant company renews its attacks upon the validity of the patent in suit and the scope accorded the claims in the earlier litigation, denies infringement, and contends, inter alia, that the invention was for a specific addition .to a known car-lighting system, to wit, the addition of a control setting or readjusting attachment for the regulator, which operated automatically in obedience to the state of the battery charge, and that in defendant’s apparatus, which comprises a constant potential system claimed to operate upon an essentially different principle from plaintiff’s constant current system, there are no means for resetting or readjusting the regulator to determine the current remaining constant during speed changes.\nBefore referring to the claims involved, it should be understood that it was concededly old at the date of the patent in suit to combine a dynamo driven at variable speed from the car axle, a storage battery, and lamps, means for Charging the battery from the generator and for disconnecting the generator from the battery while the battery is supplying current to the lamps. Improvements on such system eventuated, which made it possible to supply current to the battery and lamps at the. same time or alternately. It is therefore with specific means for maintaining a constant generator current for charging the battery, throughout speed changes, and also for regulating means for protecting the battery from overcharge, that we are herein concerned. Claims 1 to 8, inclusive, are involved; 'but it will suffice to reproduce claims 1, 5, and 8, which are characteristic of the others:\n“1. In a system of electrical distribution, the combination with a generator adapted to be driven at variable speeds and a storage battery charged thereby of a regulator adapted to maintain given charging currents throughout changes in speed of the generator and means operated by changes in the difference of potential of the battery determining the said charging currents.”\n“5. In a system of electrical distribution, the combination of a generator, an accumulator charged thereby, means for maintaining the current output of the generator practically constant throughout changes in speed, and automatic means controlled by voltage oE the accumulator for altering the current upon changes in voltage of said accumulator.”\n“8. In a system of electrical distribution, the combination of a generator, an accumulator, a regulating device for regulating the output of the generator, and supplemental means controlling the regulating device, to determine the said output.”\nThese claims include the combination of (1) a dynamo driven at speed corresponding to the variable speed of the train, (2) a storage battery receiving its supply of current from the dynamo, and (3) a regulator maintaining charging current constant throughout speed changes and means which come into operation by changes or alterations in the potential or voltage of the battery for protecting the battery from injurious overcharge. Claim 8 is limited, and does not refer to battery protection.- Such means were not essential to the supplemental means for determining the generator output to be maintained, and hence need not be read into the claims by implication.\nThe specification referring to the objects of the invention says:\n“My invention relates to systems of electrical regulation, and has for its primary object to produce means for charging storage batteries from a genera*757tor running at variable speeds and to maintain a desired constant voltage upon the work circuit regulating the voltage directly by the output of the generator.\n“A further object of my invention is to produce a construction whereby, when the batteries shall have reached a certain voltage — that is, when they have become practically charged — the charging rate will be automatically changed, it being well understood that the voltage necessary to charge the cells at the normal rate will remain almost constant until the cells are practically charged, when a considerable rise in voltage is necessary to maintain this normal charging current. I have shown means which, when this rise in voltage takes place, operate to lessen the charging rate, thereby avoiding a useless waste of current and evaporation of electrolyte due to violent gassing of the cells.\n“My invention also, broadly considered, embodies a regulator adapted to maintain a constant current from a generator driven at variable speed and an interdependent regulator for determining the current which the regulator shall hold constant”\nA statement of the principal characteristics of the invention with brief reference to the conclusions arrived at in the original suit may assist in understanding the respective contentions of the parties herein. The patent relates essentially to an apparatus for supplying electricity for separately lighting railroad cars, regardless of whether or not they are connected to other cars. In prior constant current regulators it was concededly difficult to correct the field current during the charging period because of speed variations. It was impossible to continue charging the battery from the dynamo and at the same time maintain a desired constant voltage or pressure upon the conductors or circuits, so as to actuate the necessary instrumentalities to regulate the voltage directly by the current output. It was a problem not easily solved. Indeed, Professors Scott and Puffer, testifying in this action for defendant, said that, in car axle lighting systems generally, correction for speed was the important question, and this court in the original suit practically decided that Creveling substantially .solved the problem by regulating for a practically constant current, to wit, by his combination of means for controlling the current output for charging the battery and also automatically changing such current or charging rate by changing the voltage of the battery when it reached certain voltages or when the battery reached full charge, thus protecting it from injurious overcharge. By his combination of elements — old elements combined in a new and novel way — he achieved regulation for constant current from a variable speed generator, and by inclusion of another element, consisting of a voltage regulator or solenoid SI (Fig. 1) and automatically bringing into regulating action field coil 9 (opposing coil 8) located in shunt to the battery circuit, he altered or cut down the current, so as to protect the battery or \"determine the current which the regulator should hold constant.\nIn the original action a so-called stop charge apparatus, which operated to eliminate the charging current, and an apparatus with means for tapering off the current, were held infringements, since it was shown that a current regulating coil for maintaining constant current during speed changes, together with a voltage control device for regulating the current output were there employed. The proofs herein, as in the original suit, show that in Figures 1, 2, and 3 of the patent drawings there are traced a few structural modifications of the means *758for carrying out the invention. In Figure 1 the current regulating coil is in the main circuit and as arranged predominates the voltage coil to decrease the generator output; while in Figure 2 the regulating coil is put in the battery branch and the device is provided with two windings in the lamp circuit- for the purpose of varying the resistance (wires in shunt with the field coil) for making contact with the rheostat. The effect of such arrangement of wires was to permit the solenoid or* relay to determine the charging rate which “is varied by varying the effect of coil 8.” When the lamps are turned on, the current goes to the solenoid or relay 31, and through wires or neutralizing coils to obtain a constant battery charge, but upon turning the lamps off constant current is maintained during the period of battery charge, and is automatically cut down on the completion of the charge. In Figure 3 the pilot motor has two armature windings and a field winding (instead of two field windings and one armature winding, as in Figures 1 and 2), which function to increase the rotation of the motor in one direction and cause a rotation in the reverse direction upon one coil becoming stronger than the other, and in substantially this way the solenoid or relay wires protect, not only the battery from overcharge, but determine also the current to the battery which the regulator shall hold constant.\n[1] Referring, now, more particularly to the evidence and contentions presented herein. The expert witnesses disagree widely as to the effect of the modified forms of the apparatuses described in the drawings and specifications to which reference has been made — that is, as to whether the regulations in Figures 2 and 3 are both for maintaining battery current constant and not the generator current; but I think it is unnecessary to enter at length into the details of the conflicting opinions as I believe that the solenoid 31 and wire connections or means for determining the current output, though differing in form for attaining the result, related essentially to a constant current regulator as distinguished from a constant potential regulator, and accordingly that the claims are limited to such a regulator. Concessions by the patentee in the -Patent Office on interference with McFlroy acknowledge such limitation. The difference between such modes of regulation, tersely stated, is that a regulator for constant current includes devices for modifying the voltage while the constant potential regulator of Mc-Flroy modifies or changes the variations of tire current. The form of the apparatus or solenoid traced in Figures 2 and 3 is quite likely\" adjustable to correspond to lamp load, as testified by Mr. Hammer, for the purpose of regulating the battery charging current and maintaining it constant, but I think that such 'was not the intention of the patentee. Upon this point Mr. Waterman has made it clear that, if the patentee had wanted to provide for constant battery current regardless of lamp load, it would have been much easier to have arranged current coil 8 which receives the major portion of the current, in the battery branch of the main lead where it would have been affected only by the voltage changes, without the necessity of relying upon coil 31 to perform an additional function. -\nThe patentee’s method of arranging his wires, coils, and circuits persuasively indicates that the modified forms of the invention were, as *759claimed by defendant, to stop the solenoid from functioning when the lamps were turned on, for in such case the danger of overcharge was much lessened or entirely eliminated. Several of the claims, it is true, refer to “charging currents,” “determining the charging rate,” and “altering the currents upon changes of voltage,” causing one to suppose that the regulation was also for constancy of battery charging current; but the specified terminology seems to me to be equally readable upon the McElroy constant voltage regulation, and the scope of the patent in suit cannot be broadened to include such system. Mr. Waterman’s testimony regarding the adaptability of the solenoid, acting alternately upon the current regulator, to determine its standard of regulation, and its operation to readjust or reset the known generator regulator finds corroboration in the specification, Complainant, however, contends that claim 8 is expressly limited to a regulating device substantially responding to such resetting or readjustment feature, but such supplemental means relate particularly to means for regulating the regulator, to the end that the generator output shall at all times and under all conditions be regulated and remain in a state of regulation, and not that it shall be responsive to voltage or battery control.\nDefendant’s regulator, as shown in Model Exhibit 4 and in Exhibit M-6, embodies a variable speed dynamo, a storage battery charged by it, a field winding, and lamps, together with a carbon pile resistance located in the field circuit. There are also concededly means (automatically operated) for keeping the generator current substantially constant during speed changes which are controlled by the voltage of the battery for changing or modifying the current upon changes in voltage of the battery. Such means, however, are not believed to be the equivalent of the means described in the Creveling patent under consideration. In lieu of a voltage controlled relay for readjusting the regulator relative to the state of the battery the defendant adapts in its so-called simplex system two independently acting generator regulators, without providing any readjusting or resetting device for determining their action. The first regulator embodying in its structure a voltage coil 8 across the generator which operates to pull its core upwai*d, so as to move the end of a lever attachment on the device upward, by a projection contacts the carbon pile to increase the resistance by separating the discs. When the voltage coil 8 rests on its shoulders or stops regulation ceases. The second regulator has a current coil 5 in series with the battery acting through its core on the end of a lever attachment which engages the carbon pile opposite the lever attached to the first regulator, each lever operating to increase or decrease the carbon pile resistance by separating the carbon discs. By their engagement with the carbons such levers effect the regulation of the generator to maintain constant battery current. When the core of coil 5 is inactive,, the core of coil 8 raises above its base, and thereupon a short interval of constant voltage regulation results; but this is due to the weakness of the core. At such time the regulator is inoperative. The expert, Waterman, describing the operation of defendant’s regulator, says:\n“If the battery is in a discharged state, its voltage will be very low, and as soon as the speed of the train gets up high enough, a large current will flow *760through it. This voltage being low, coil 8 will not be acted upon, hut, there being a large current, coil 5 will be; so coil 5 will instantly assume the control by pushing up and down, as circumstances require with the varying speed, the regulator arm 4. Whichever operates, the system is a constant potential one. This has reference to the fact that coil 5 is not, in this instance, in the generator circuit, but in the battery circuit; so that the characteristic attribute of the constant potential system — one of the characteristic differences between constant current regulation and constant voltage regulation — is that .with the constant current regulation, properly so called, the generator cut-out is constant; the current is the same, whatever the regulator is set for. On this form of regulator, where the coil .5 is connected in the battery circuit, the current is not constant — the output is not constant — but it varies with the lamps; the more lamps, the more current; and that is an attribute of a constant voltage system; so a system arranged with this coil 5 is not in the main circuit, but in the battery branch, is more like a constant voltage system than it is like a constant current system. It has that characteristic of the constant voltage system, and since the battery voltage does not vary very widely, it is in effect a constant voltage; and as I shall show on further consideration, when the battery voltage begins to rise, its regulator ceases to act; so that with this defendant’s apparatus the generator is furnishing at all times a substantial constant voltage and it is never at any time furnishing a constant generator output.”\n[2] Complainant rejoins that infringement is not avoided as a constancy of current from the generator is evidently maintained during the period of charging the battery, and only upon nearing full charge is the voltage coil caused to operate automatically, resulting in a practical tapering off of the current to protect the battery. Defendant’s adaptation of the voltage coil not improbably acts to attain this result; but in patent law it is nevertheless established that there is no infringement, where the result is attained by a new combination operating upon different principles, constituting a radical departure from the patent which is the subject of the suit.\nIt is not enough, where the patentee’s claims are also for a combination of old elements, for a complainant to point out substantially the same elements in combination in a defendant’s structure. It must also be shown by preponderating evidence that a defendant’s system performs substantially the same function in substantially the same way. Complainant’s patent in suit is for a certain mode of regulating a constant current generator throughout speed change, with battery protection, the elements forming the combination performing their functions in a specified way, while the elements in combination in defendant’s apparatus, though perhaps at times incidentally operating to accomplish a similar result, are believed nevertheless to be dependent upon a widely different principle of operation. No solenoid for readjusting the voltage regulator is employed in defendant’s structure to maintain constant its voltage regulator; it being shown that changes in the lamp load only bring about change of current and not change or alteration of potential.\nIn the original action (222 Fed. 310) it was not intended to accord the claims in suit such latitude as to include a regulator having no means for determining or altering the current that is maintained constant or one that is shown to regulate by independent means for constant voltage, but which likewise does not maintain the current con*761stant. The tests made by Professors Scott and Puffer, as indicated by the charts in evidence, are believed, notwithstanding complainant’s criticism thereof, to support this mode of operation. See Exhibits Lr-4, L-6, L-8, L-9, and Q-5.\nDefendant claims that the Creveling patent is anticipated by the prior patent to Sellon, No. 299,021, and especially by the Dick patent, - No. 682,978, dated September 17, 1901, and as to claims 3, 4, and 8 by the Kennedy patent, No. 681,712. In Sellon’s patent there are elements in combination, such as a variable speed generator, battery lamps, and constant current regulator for preventing overcharging the battery; but I think it fairly appears from the specification that the object of the patentee was to regulate for constancy of voltage only, and not for constant current throughout speed changes. His specified means for protecting the battery did not include a voltage control of the battery, and the float control or magnet shown, was, I think, incapable of performing such function. Neither the combination of Creveling, nor a regulation or control of the voltage of the battery is shown, and hence the patent was not anticipatory. The Dick patent is again strongly urged as completely anticipating all the claims in suit, and defendant’s expert, Waterman, unequivocally testifies that in all material respects the Dick system therein described is the same as Creveling’s. Such testimony is not contradicted.\nThe importance of the Dick patent was appreciated in former litigations, but it was believed not indistinguishable, as it relates mainly to train lighting with batteries on separate cars and in a different state of charge as the cars are connected or disconnected. From the opinion of the court it appears that disadvantages arose in such system from the placing of the current modifying coil on the generator side of the automatic switch or across the main terminals, which resulted in energizing the modifying coils, even while the train was standing, from which its impracticability was implied. Moreover, there was evidence apparently to show that the charging of the battery was not automatic, but required hand adjustment. However, in this case it is shown that Dick disclosed means for determining or altering the current output, maintained constant by a current coil for the purpose of protecting the battery from overcharge. Such means were not the means of Creveling, but on the evidence herein they must nevertheless be considered to have an important bearing upon the scope of the involved claims. In Figure 5 of the Dick patent there is illustrated a generator driven with variable speed from the axle of the car, a shunt field winding, battery, and lamps, together with wires and circuits arranged to vary the field and the dynamo by a regulating lever operating to vary the resistance coil located in series with the field winding a.'\n[3] Defendant insists that such arrangement corresponds to regulation of the generator and to the movement in such regulator of the rheostat arm to vary the resistance in series with the field of the dynamo, and further that the Dick regulation was to maintain constancy of generator current throughout speed changes, while the battery was protected from overcharge by a solenoid with voltage and current *762coils thereon. In the Creveling patent, as heretofore pointed out, such coils oppose each other; but in Dick these windings are arranged to permit a somewhat different effect, the current coil functioning for a high standard of current, and on charging the battery a resistance coil located in series with the voltage coil is operated to reduce the charging current. It is undeniable that such .arrangement strikes one as being in all essentials not unlike Creveling’s, although the specific means for readjusting the current to be maintained constant by the regulator is not disclosed. To Mr. Waterman’s analysis of the Dick disclosure-complainant relies solely upon the failure of this court to find anticipation -in the original litigation to which reference has been made. It is, I conceive, the duty -of the court, regardless of any prior decisions on-the facts that may have been rendered in another case between different parties, to give force and effect to the evidence in the subsequent case, and resort to the testimony of other expert witnesses in another action, embodied in another record, is not warranted. Walker on Patents (5th Ed.) § 634, p. 710; Beach v. Hobbs (C. C.) 82 Fed. 916.\nIt is true that the evidence relating to the Dick patent consists of the opinion and views of an expert, based upon his examination of the-prior disclosures, and is not binding upon the court, even though undisputed; still, as it relates to an admittedly abstruse subject, such views and opinions cannot be wholly disregarded. But in view of what has been stated herein with reference to different modes of operation of defendant’s and complainant’s apparatuses, the defense-of anticipation need not be passed upon.\nInfringement not being established, the bill is dismissed, with costs.\n\n<§£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes*\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"safety-car-heating-lighting-co-v-gould-coupler-co","summary":"In Equity. Suit by the Safety Car Heating & Righting Company against the Gould Coupler Company."} {"attorneys":"W. W. Hoive, for complainants., W. H. Rogers, Atty. Gen., for defendants.","case_name":"Glover v. Board of Flour Inspectors","case_name_full":"Glover v. Board of Flour Inspectors","case_name_short":"Glover","citation_count":0,"citations":["48 F. 348"],"court_full_name":"U.S. Circuit Court for the District of Eastern Louisiana","court_jurisdiction":"Louisiana, LA","court_short_name":"U.S. Circuit Court for the District of Eastern Louisiana","court_type":"FA","date_filed":"1891-12-13","date_filed_is_approximate":false,"disposition":"Demurrer overruled.","headnotes":"1. Injunction — Doubtful Question — Demurrer.
A bill sought to enjoin an inspection oí flour about to be made under Laws La. Ex. Sess. 1870, p. 156, upon the ground that the statute was unconstitutional because the inspection provided for was confined to flour coming to New Orleans “ for sale; ” thus discriminating in favor of those who bought for their own use, and in favor of resident merchants, as against merchants residing in other states, contrary to the interstate commerce clause of the federal constitution. Hold, that as the question was a doubtful one, and it seemed probable that the court would be aided by proof of the manner in which the statute operated, a demurrer to the bill would be overruled.
2. Constitutional Law — Interstate Commerce.
The fact that the statute applied only to the port of New Orleans, and that no penalty was provided for its violation, were matters for the consideration of the legislature alone, and did not goto the question of its validity under the federal constitution.
","id":8857298,"judges":"Billings","opinions":[{"author_str":"Billings","ocr":true,"opinion_id":8842765,"opinion_text":"\nBillings, J.\nThe question in this case is presented by a demurrer to an injunction bill in equity. The plaintiffs are dealers in flour. The defendants are inspectors of flour. The bill is aimed at the statute under which the defendants are appointed. The question is whether, under the constitution of the United States, that statute is an unauthorized interference with, or an unwarranted regulation of, interstate and foreign commerce. That statute is found in No. 71 of the Acts of the Extra Session of 1870, at page 156. The statute is entitled “An act to amend and re-enact an act entitled ‘An act to establish a board of flour inspect*349ors for the city and port of New Orleans, ’ approved March 28, 1867, and numbered 159,” (Acts 1867, p. 297.) That statute authorized the governor, with the advice and consent of the senate, to appoint a board of flour inspectors of the city and port of New Orleans. They are required to inspect all flour imported or coining to the port of New Orleans for sale, solely for the purpose of ascertaining its purity and soundness, and whether of lawdul weight, but not for the purpose of classification and grading. They are to brand each barrel of sound and full-weight flour, and not to brand any other flour; such examination to be on the levee or in the warehouse, as the receiver may elect. It is declared not to be lawful to sell any flour as sound and merchantable unless the same is branded. The fee of the inspector is fixed at two cents per barrel.\nThe incompleteness of this statute, in that it provides for no examination of flour which shall come into any other port of Louisiana than the city or port of New Orleans, and its inefficiency as a means of securing sound, pure, and full-weight flour, in that it imposes no penalty, and simply makes it “unlawful to sell flour as sound and merchantable unless it has on it the official brand,” are manifest. These imperfections could be considered by the legislature of the state alone. The grave objection to the statute is that it applies only to flour imported or coming to the city of New'Orleans “for sale.” The citizen of Louisiana, bringing in either from another state or from abroad flour for his own use or consumption, need have no inspection, — need pay no tax. The citizen of Missouri, or any other state, who brings in his flour for sale, must have inspection and must- pay a tax. Does this statute create such an inequality, either in its terms or by its necessary operation, as brings it within the lino of unconstitutional laws, as defined and expounded in the case of Brimmer v. Rebman, 138 U. S. 78, 82, 11 Sup. Ct. Rep. 213, and the cases there referred to? This is a question not easy to determine. It is a question most proper for the supremo court. It is possible that the proofs which will be offered as to the manner in which the law wras enforced may aid this and the appellate court in the consideration of the case. The circuit judge, when he granted the injunction, seems to have dealt with the question guardedly, and required a bond which will amply protect the defendants until the end of the litigation, in (¡ase the injunction should, in the court of last resort, ho dissolved, or, if the bond already given is not ample, application may be made for a further bond. The argument for the validity of the statute of 1870 comes from the reservation in the constitution to the states to impose taxes absolutely necessary for the execution of inspection law's, (article 1, § 10, par. 2;) for, while aimed at protecting only the pocket of the community, and not at the protection of its health, and imperfect as to locality, and inefficient, because lacking sanctions or penalties, it is nevertheless, in form and by designation, an inspection lawn On the other hand, there is the argument that the statute, in substance and necessary operation, while laying a burden upon interstate commerce, lays it unequally upon the domestic citizen and the importer who is a citizen of another state. On the whole, T am of the opinion that I should overrule the demurrer, and let the stat-*350nte, and such facts as the proof may establish as to the necessary operation of the statute, come before the court to be dealt with upon the final hearing and in the appellate court.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"glover-v-board-of-flour-inspectors","summary":"In Equity. Suit for injunction by Booth F. Glover and others against the board of flour inspectors of New Orleans. On demurrer to the bill."} {"attorneys":"William J. Harte, William J. Harte, Ltd., Chicago, Ill., for plaintiff., Donald Hubert, James D. Montgomery, Acting Corp. Counsel, Chicago, Ill., for defendants.","case_name":"Charles v. City of Chicago","case_name_full":"Gladys CHARLES v. CITY OF CHICAGO, Charles A. Pounian and Lenora T. Cartright","case_name_short":"Charles","citation_count":0,"citations":["571 F. Supp. 1080"],"court_full_name":"District Court, N.D. Illinois","court_jurisdiction":"Illinois, IL","court_short_name":"N.D. Illinois","court_type":"FD","date_filed":"1983-09-27","date_filed_is_approximate":false,"id":8895095,"judges":"Bua","opinions":[{"author_str":"Bua","ocr":true,"opinion_id":8881573,"opinion_text":"\nORDER\nBUA, District Judge.\nBefore the Court is the defendants’ Motion to dismiss the Complaint or Alterna*1081tively, to Dismiss Charles A. Pounian and Lenora T. Cartright as Individual Party-Defendants to the Complaint For Violation of the Shakman Decree. Also pending is the Defendants’ Motion to Strike plaintiff’s prayer for relief requesting an award of punitive damages. For the reasons stated herein, the Motion to Dismiss the Complaint is granted without prejudice with leave given to file an amended complaint. Additionally, the Motion to Strike the portion of the prayer for relief seeking punitive damages is granted with prejudice.\nThe instant lawsuit was brought requesting this Court to issue a Rule to Show Cause why defendants should not be held in contempt of court for violation of the Shakman decree (See, Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315, 1356 app. (N.D.Ill.1979)) in connection with the termination of plaintiff’s employment. In sum, plaintiff alleges that she was told she was being terminated for budgetary reasons from her position as a probationary Human Services Worker II, a position which she believes she properly performed. She further alleges that she worked on the mayoral campaign of the former incumbent, Jane Byrne and in the 10th Ward Regular Democratic Organization. Finally, she alleges that on information and belief, her firing was politically motivated.1\nI.\nDefendants argue, and this Court agrees, that plaintiff’s complaint is wholly devoid of the factual allegations required to support a cause of action charging defendants with contempt. Under N.D.Ill.Civ.R. 18(a), a civil contempt proceeding is initiated by the filing of a notice of a motion for a rule to show cause.' Such a motion shall be supported by an affidavit which sets out “with particularity” the contemptuous behavior complained of. Id. No such particularity is present in the instant case.\nThis Court has held that a plaintiff’s belief that his termination was politically motivated, without more, is insufficient to state a cause of action for contempt. In Shakman v. Democratic Organization of Cook County (In re: Petition of Edward W. Zielinski), No. 69 C 2145 (N.D.Ill.1981), the Court held that the petitioner’s failure to set out objective facts in support of his contention that his termination was not related to his job performance or was, politically motivated was fatal to his petition. Similarly, in the case at bar, plaintiff fails to allege facts in support of the contention that her termination was not related to the City’s budgetary problems or to her ability or inability to properly perform her job. Additionally, plaintiff alleges no facts in support of her belief that her termination was politically motivated. Clearly, plaintiff’s complaint therefore must be dismissed without prejudice with leave given to amend the pleadings.\nII.\nAs part of her prayer for relief, plaintiff seeks an award of punitive damages. Defendants contend that this portion of the prayer should be stricken as beyond the scope of the relief available in civil contempt proceedings. Plaintiff does not challenge defendants’ motion.\nIt is well settled that while the purpose of criminal contempt proceedings is punitive, civil contempt proceedings are remedial. Gompers v. Bucks Stove and Range Company, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Commodity Futures Trading Commission v. Premex, Inc., 655 F.2d 779, 785, (7th Cir.1981); Pabst Brewing Co. v. Brewery Workers Local Union No. 77, AFL-CIO, 555 F.2d 146, 149-50 (7th Cir.1977); Shakman v. Democratic Organization of Cook County, 533 F.2d 344, 349 (7th *1082Cir.1976). Accordingly, a proceeding seeking enforcement of a prior court order or compensation for losses sustained as a result of noncompliance with such an order is considered to be civil in nature. Commodity Futures Trading Commission v. Premex, Inc., supra. In such a case, punishment is not the goal of the proceedings; consequently, punitive damages are not available. Id.\nIn the case at bar, plaintiff seeks to have this court enforce the Shakman consent pri- or order by reinstating plaintiff to her former position and by compensating plaintiff by awarding back pay, costs and attorneys’ fees, and other such relief as is just. From the foregoing, it is clear that the instant proceedings are civil in nature and therefore that punitive damages are not available. Plaintiff’s prayer for punitive damages must therefore be stricken.\n\nConclusion\n\nFor the reasons stated herein, plaintiff’s complaint is hereby dismissed without prejudice with leave given to amend the complaint. Defendants’ motion to strike the portion of the complaint seeking punitive damages is hereby granted with prejudice.\nIT IS SO ORDERED.\n\n. Defendants note that plaintiffs Complaint is not verified as required by N.D.Ill.Civ.R. 18, thus rendering plaintiffs “belief’ meaningless. However, where verification is required by rule, any deficiency may be supplied by way of amendment. Franzen v. E.I. DuPont de Nemours & Co., 36 F.Supp. 375 (D.C.N.J.1941); Fed.Proc.L.Ed. § 62:112. If plaintiff chooses to amend the complaint pursuant to this order, such complaint should be verified in compliance with Rule 18.\n\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"charles-v-city-of-chicago"} {"case_name":"United States v. William Green Construction Co.","case_name_full":"United States v. William Green Construction Co., Inc. and William Green Construction Co., Inc. v. United States","citation_count":0,"citations":["417 U.S. 909"],"court_full_name":"Supreme Court of the United States","court_jurisdiction":"USA, Federal","court_short_name":"Supreme Court","court_type":"F","date_filed":"1974-05-28","date_filed_is_approximate":false,"id":8998334,"opinions":[{"ocr":true,"opinion_id":8990748,"opinion_text":"\nCt. Cl. Certiorari denied.\n","per_curiam":false,"type":"020lead"}],"precedential_status":"Published","slug":"united-states-v-william-green-construction-co"}