Case Information

TARTER v. MONARK BOAT CO.

No. unknown

United States Court of Appeals, Eighth Circuit

May 8, 1978

430 F.Supp. 1290 | 567 F.2d 836

PER CURIAM.

In this diversity action plaintiff-appellee, a citizen of Missouri, sued MonArk Boat Company, defendant-appellant, a corporation organized and existing under the laws of Arkansas, for breach of a contract executed on August 12, 1972. The contract provided inter alia, that in exchange for the payment by plaintiff of $160,000, MonArk was obligated to construct a 58-foot custom-built aluminum houseboat. Twenty percent of the purchase price was payable on the signing of the contract, twenty percent upon completion of the hull, twenty percent upon installation of the cabin, twenty percent upon setting of the machinery, ten percent upon completion of the boat, and ten percent upon delivery. Between August 10, 1972, and July 9, 1973, plaintiff paid four installments of $32,000 each to MonArk, for a total of $128,000.

The houseboat was eventually constructed by another company, AlumaShip, Inc., to whom plaintiff's contract had been assigned. The boat, as delivered to plaintiff, was deficient in many respects. Repeated efforts by plaintiff to prevail upon MonArk to remedy the defects were unavailing and this litigation ensued.

The evidence was submitted to The Honorable John F. Nangle, who found the issues for plaintiff and rendered a judgment in his favor for a total of $39,915.22, which was substantially less than the amount plaintiff claimed the evidence established as his damages. The amount of the judgment is not in dispute on appeal.

The district court filed comprehensive findings of fact and conclusions of law. Tarter v. MonArk Boat Co., 430 F.Supp. 1290 (E.D.Mo.1977). Inasmuch as the district court has accurately delineated the essential evidence in its findings and the premise for its judgment, we forego a repetition of the facts.

Succinctly stated, the main controversy centers on the question of whether a novation occurred by reason of the assignment of the contract to AlumaShip, Inc. The district court addressed this issue, id. at 1293-94, and concluded that the evidence failed to establish an express or implied consent on the part of plaintiff to relieve MonArk of its contractual obligations to plaintiff.

MonArk presses the same contention in this court and argues that the court's findings on the novation question are clearly erroneous. We decline to accept the position and argument espoused by MonArk. Indeed, on this record, the findings of the district court are supported by substantial evidence, are not clearly erroneous, and were not induced by an erroneous view of the law.

A review of the entire evidence does not "[leave us] with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Consequently, we affirm on the basis of the soundly-reasoned opinion of the district court.

Case Information

Moses J. CHILEMBWE, Appellant, v. Donald WYRICK, Warden, Appellee.

No. 77-1963

United States Court of Appeals, Eighth Circuit.

Submitted May 1, 1978. Decided May 8, 1978.

Moses J. Chilembwe, pro se.

John D. Ashcroft, Atty. Gen., and Robert L. Presson, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, BRIGHT and ROSS, Circuit Judges.

PER CURIAM.

Moses J. Chilembwe appeals from the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254, attacking the legality of the revocation of his probation. We affirm.

Chilembwe pleaded guilty to first degree robbery in the Circuit Court of St. Louis County, Missouri, on March 30, 1973, and was sentenced to eight years imprisonment. Sentence was suspended and Chilembwe was placed on five years probation.

On October 1, 1974, Chilembwe's probation officer filed a violation report alleging that Chilembwe had violated four conditions of his probation by failing to obtain permission before leaving Missouri, failing to notify his probation officer of any change in his residence, using unprescribed narcotics, and failing to report regularly. On October 12, 1974, Chilembwe was arrested in Clark County, Nevada. He challenged extradition proceedings and was not returned to Missouri until March of 1975. On June 6, 1975, a probation revocation hearing was held, probation was revoked, and the sentence of imprisonment was executed.

In his habeas corpus petition Chilembwe challenged the jurisdiction of the Missouri state court to enter the order revoking his probation1 and contended that the revocation proceedings violated his rights to due process in several respects. The district court dismissed the petition.

On appeal Chilembwe raises only one allegation of error that merits discussion. He contends that he was denied due process of law because he did not receive a preliminary revocation hearing as required by the Supreme Court's holding in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). It is undisputed that Chilembwe requested a preliminary hearing sometime after his arrival in Missouri but did not receive one.

The fundamental purpose of a preliminary hearing is to determine whether there is probable cause to believe that the detained probationer has committed acts which violate the conditions of his probation. Cf. Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).2 This court holds that where obtaining permission before leaving the state is a condition of parole, a parolee's presence in another state without such permission is sufficient probable cause to believe he committed an act which constituted a violation of his parole such that a preliminary probable cause hearing is not required. Stidham v. Wyrick, 567 F.2d 836 (8th Cir. 1977). This precedent controls our decision here since there are no differences relevant to due process between parole revocation and probation revocation. See Gagnon v. Scarpelli, supra, 411 U.S. at 782.

The judgment is affirmed.

LAY, Circuit Judge, concurring.

I concur in the result reached. I am satisfied preliminary cause was established for the revocation of Chilembwe's probation; however, the holding of a final revocation hearing may not justify the denial of a preliminary factual hearing to establish the existence of probable cause at the site of arrest of either a parolee or of an individual on probation.

In Stidham v. Wyrick, 567 F.2d 836 (8th Cir. 1977), we held that a preliminary hearing was not necessary to determine whether probable cause or reasonable grounds exists to find a parole violation when the parolee is found in another state contrary to the condition of his parole. I do not read Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), or Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), to hold, even under these circumstances, that a preliminary hearing is not needed. The purpose of the on-the-site hearing is to avoid the possibility of any mistake or misunderstanding which might arise and the concomitant hardship resulting from returning the parolee to prison. A parolee may be able to show mitigating circumstances which would alter the initial decision to revoke the parole. For example, the inability to notify the officer of a dire emergency or some misunderstanding by the parolee or officer might possibly be aired at the situs of arrest. The burden placed upon the authorities by Morrissey and Gagnon is not so great that their requirements could not be recognized at all times under all circumstances.

We have also reviewed Chilembwe's other due process contentions and find them to be without merit.

Footnotes

1 Moses J. Chilembwe continues to challenge the jurisdiction of the Missouri court to revoke his probation in light of his pending habeas corpus petition in the United States District Court for the District of Nevada. This contention is without merit. There is no doubt that once Chilembwe was before the Missouri court it had personal jurisdiction over him. See Bistram v. United States, 253 F.2d 610, 612 (8th Cir. 1958), quoted in Evans v. United States, 325 F.2d 596, 602 (8th Cir. 1963), cert. denied, 377 U.S. 968, 84 S.Ct. 1649, 12 L.Ed.2d 738 (1964). Chilembwe does not challenge the state court's subject matter jurisdiction. His contention that the federal jurisdiction was obstructed or "usurped" by his removal to Missouri is frivolous since the Nevada federal court did exercise its jurisdiction.

2 In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) the Supreme Court was dealing with a parole violation. However, the same principles apply to probationers. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).